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People v. Novak

County Court, Sullivan County

September 20, 2013

The People of the State New of New York, Plaintiff,
Paul Novak, Defendant.

Gary Greenwald, Esq. Greenwald Law Offices Attorney for Defendant.

Hon. James R. Farrell Sullivan County DA Attorney for the People.

Stephen F. Lungen, Esq. Special Prosecutor, Attorney for the People.

William A. Hurst, Esq. Greenberg Traurig, LLP Attorney for Times-Herald Record.

Hilary Lane, Esq. NBC Universal—Law Department Attorney for NBC Universal.

Frank J. LaBuda, J.

As the jury trial of People v. Novak progressed through its full fifth week of trial testimony, the People served the Middletown Times-Herald Record newspaper with a Subpoena Duces Tecum, seeking to compel testimony from Victor Whitman, a reporter for the Times-Herald Record (hereinafter referred to as the "Record"), and production of all unpublished audio and video recordings and reporter's notes created during an August 2, 2013, interview of Defendant, Paul Novak, by a Record reporter (hereinafter referred to as the "Reporter") while on assignment for the newspaper. The interview took place at the request of Defendant at the Sullivan County Jail. The Times-Herald Record has filed a motion to quash the subpoena. NBC Universal has joined in that motion and submitted supplemental papers. The Court heard oral argument on September 11, 2013. [1]

The indictment before the jury charges the defendant, Paul Novak, for the murder of his estranged wife, arson in connection with the burning of the marital residence, burglary, grand larceny and insurance fraud. Jury selection for this trial began on August 5, 2013. At some point prior to jury selection, Defendant sought out and gave an interview to the Reporter for Record who has been reporting on this case for some time. [2] That interview occurred on August 2, 2013. The Times-Herald Record ran a front page story about the defendant and on the interview in the August 4, 2013, Sunday Edition of the paper. It also posted a "portion" of the video recorded interview on its website on August 4, 2013. The running of the story and posting of the interview detrimentally affected the jury pool, but the parties were eventually able to seat twelve jurors and eight alternate jurors. Opening statements and testimony commenced the following week, on August 12, 2013.

The People argue that they need the recordings and notes of the Reporter for proper examination of defense witnesses and Defendant, should he take the stand and testify. They argue that the recordings are not privileged, because Defendant requested and arranged the interview, and portions have been published, thereby invalidating application of New York's "Shield Law." The Record and NBC Universal (hereinafter referred to as "NBC") argue that the First Amendment constitutional reporter's privilege applies to all information obtained by a journalist while gathering the news, regardless of whether the information is published or used to publish other news stories and regardless of whether the person requests the interview.

The history of New York's Shield law dates back to 1970. Civil Rights Law §79-h(c). It has been amended in 1975 [3], 1981 [4], and 1990. [5] In its current version, it states in pertinent part,

Qualified protection for nonconfidential news.

Notwithstanding the provisions of any general or specific law to the contrary, no professional journalist... employed or otherwise associated with any newspaper... shall be adjudged in contempt by any court in connection with any civil or criminal proceeding... for refusing or failing to disclose any unpublished news obtained or prepared by a journalist... in the course of gathering or obtaining news... by a journalist... where such news was not obtained or received in confidence, unless the party seeking such news has made a clear and specific showing that the news: (I) is highly material and relevant; (ii) is critical or necessary to the maintenance of a party's claim, defense or proof of an issue material thereto; and (iii) is not obtainable from any alternate source. A court shall order disclosure only... [if] the above-described showing has been made and shall support such order with clear and specific findings made after a hearing.

Case law has evolved over the decades in response to the legislative amendments. In the landmark case of Knight-Ridder Broadcasting, Inc. v Greenberg, 70 N.Y.2d 151 [1987], the Court of Appeals stated, "Consideration of all the circumstances surrounding the 1981 amendment to the Shield Law leads inexorably to the conclusion that the Legislature, by considering and rejecting an explicit provision addressing the issue facing the court today, did not intend the Shield Law to create an absolute privilege' against disclosure." Id., at 158. In essence, the Court held that where portions of a recording have been broadcast, any claim of confidentiality with respect to such recording is destroyed, invalidating ...

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