The Court of Appeals returns for the April-May Session (and so do I after a month off) on Tuesday, April 24, 2018. The Court has three cases on its argument docket (the Court’s case summaries can be found here), which involve the following issues: (1) whether accidental disability retirement benefits are a collateral source that must be offset from an award of future damages under CPLR 4545; (2) whether a New York choice of law provision in a nondisclosure agreement required application of both New York procedural and substantive law, such that the New York borrowing statute (CPLR 202) would require the plaintiff to satisfy two different statutes of limitations, New York’s and that of the forum state; and (3) whether the denial of a motion to quash in a criminal trial is appealable, and whether the Appellate Division properly granted the motion to quash based on the qualified protection for a journalist’s nonconfidential material.
No. 58 Matter of People v Conrado Juarez; Frances Robles
In a brutal case of the sexual abuse and murder of a 4 year old, the Court of Appeals will hear arguments on whether the denial of a motion to quash a subpoena in a criminal case is appealable. Should the Court decide that it is, a really interesting question of journalistic privilege lies beneath.
For 22 years, the police were unable to identify the 4-year-old murder victim who was found in a picnic cooler in Manhattan in 1991. When she was eventually identified in 2013, the police questioned her cousin, Conrado Juarez, as the suspect. He confessed after hours of interrogation, and was charged with murder. Two days later, Frances Robles, a reporter with the New York Times, interviewed him at Rikers Island, but Juarez changed his story. Instead of participating in the murder, this time he said he only helped his sister dispose of the victim’s body after she fell down the stairs.
Juarez moved to suppress his confession as involuntary, and in response the police subpoenaed Robles to testify at the suppression hearing and for her notes. Robles moved to quash the subpoena based on New York’s Shield Law, Civil Rights Law § 79-h(c), which generally protects from disclosure the information reporters gather while investigating stories.
Supreme Court denied the motions to quash the subpoenas, balancing the interests in favor of the People’s access to all evidence that could go to show that Juarez’s statements were voluntary. The Appellate Division, First Department reversed, and granted Robles’s motions to quash, holding
the People have a videotaped confession by the defendant that has been found admissible at trial and that includes statements consistent with other evidence in the case. Under the circumstances, and in keeping with ‘the consistent tradition in this State of providing the broadest possible protection to “the sensitive role of gathering and disseminating news of public events”‘…, we find that the People have not made a ‘clear and specific showing’ that the disclosure sought from Robles (her testimony and interview notes) is ‘critical or necessary’ to the People’s proof of a material issue so as to overcome the qualified protection for the journalist’s nonconfidential material (Civil Rights Law § 79-h[c]).
On appeal, however, the People now argued that the Court lacks jurisdiction to hear the case because a trial court order denying a nonparty’s motion to quash a subpoena in a criminal case isn’t appealable. The People’s argument is based on the Court of Appeals’ decision about one year ago in the Facebook search warrants case, where the Court held that denial of a motion to quash in a criminal case isn’t appealable, and the Court lacks jurisdiction to consider the underlying merits question.
Unless the Court decides to reconsider its prior precedent from only a year ago, which is highly doubtful, or decides that search warrants are somehow different from subpoenas in criminal cases, this case is going to end up just like the Facebook case, dismissed for lack of jurisdiction and remanded for the Appellate Division to do the same. That’s really unfortunate, but it seems to me unavoidable.
The Appellate Division, First Department’s order can be found here.