Canning v. Revoir

220 A.D.3d 16

196 N.Y.S.3d 810

In the Matter of Andrea CANNING, Petitioner,

v. Frank B. REVOIR Jr., as County Judge of Chenango County, et al., Respondents,andPeople of the State of New York, Respondent.

CV–23–1000

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: August 17, 2023

Decided and Entered: September 14, 2023

Davis Wright Tremaine LLP, New York City (Katherine M. Bolger of counsel), for petitioner.

Benjamin K. Bergman, Special Prosecutor, Binghamton, for People of the State of New York, respondent.

Before: Egan Jr., J.P., Clark, Ceresia, Fisher and McShan, JJ.

OPINION AND JUDGMENT

Fisher, J.

Proceeding pursuant to CPLR article 78 (initiated in this Court pursuant to CPLR 506[b][1] ) to prohibit respondent County Judge of Chenango County from enforcing a subpoena requiring petitioner to testify in a criminal trial.

In 2014, petitioner, an investigative journalist for the NBC News, conducted an interview of respondent Ganesh Ramsaran as he was awaiting trial for the murder of his wife (hereinafter the victim). During the interview, Ramsaran denied killing the victim and made several statements relating to the circumstances involving the disappearance and death of the victim. Portions of the interview were used for two Dateline episodes that reported on the victim's death, both of which were nationally televised several times. Ramsaran was subsequently convicted of murder in the second degree; such conviction was ultimately affirmed (see People v. Ramsaran, 154 A.D.3d 1051, 1051, 62 N.Y.S.3d 555 [3d Dept. 2017], lv denied 30 N.Y.3d 1063, 71 N.Y.S.3d 13, 94 N.E.3d 495 [2017] ; People v. Ramsaran, 141 A.D.3d 865, 35 N.Y.S.3d 549 [3d Dept. 2016], revd 29 N.Y.3d 1070, 57 N.Y.S.3d 457, 79 N.E.3d 1120 [2017] ). Thereafter, following a successful motion pursuant to CPL 440.10, Ramsaran's conviction was vacated and a new trial was ordered.

In preparation for the new trial, respondent People of the State of New York served a subpoena on petitioner, seeking to have her testify at trial in connection with her interview of Ramsaran. Petitioner filed a motion to quash the subpoena before respondent County Judge of Chenango County (hereinafter respondent), arguing that the information sought was protected by the qualified immunity for journalists under Civil Rights Law § 79–h (c), which was opposed by the People. Respondent denied the motion to quash, finding that Civil Rights Law § 79–h did not apply and, nevertheless, such privilege had been overcome. Petitioner commenced this original proceeding pursuant to CPLR article 78, seeking a writ of prohibition preventing respondent from enforcing the subpoena or from holding her in contempt for refusing to testify.¹

Our threshold inquiry is whether a writ of prohibition will lie in this case. A writ of prohibition "is an extraordinary remedy and, in cases involving the exercise of judicial authority, is available only where there is a clear legal right, and then only when a court acts or threatens to act either without jurisdiction or in excess of its authorized powers" ( Matter of Heggen v. Sise, 174 A.D.3d 1115, 1116, 104 N.Y.S.3d 760 [3d Dept. 2019] [internal quotations marks, ellipsis and citation omitted]; see Matter of Rush v. Mordue, 68 N.Y.2d 348, 353, 509 N.Y.S.2d 493, 502 N.E.2d 170 [1986] ). To that end, such remedy "does not lie as a means of seeking a collateral review of an error of law, no matter how egregious that error might be, in a pending criminal proceeding, but only where the very jurisdiction and power of the court are in issue" ( Matter of Collins v. Lamont, 273 A.D.2d 528, 530, 708 N.Y.S.2d 202 [3d Dept. 2000] [internal quotation marks and citation omitted]; see Matter of Hussain v. Lynch, 215 A.D.3d 121, 125–128, 187 N.Y.S.3d 426 [3d Dept. 2023] ; Matter of Klein v. New York State Joint Commn. on Pub. Ethics, 214 A.D.3d 1096, 1098, 185 N.Y.S.3d 367 [3d Dept. 2023] ). The issuance of a writ of prohibition is committed to the sound discretion of the reviewing court, and is premised upon "the gravity of the harm caused by the act sought to be performed by the official[,] whether the harm can be adequately corrected on appeal or by recourse to ordinary proceedings at law or in equity[ ] and whether prohibition would furnish a more complete and efficacious remedy even though other methods of redress are technically available" ( Matter of Rush v. Mordue, 68 N.Y.2d at 354, 509 N.Y.S.2d 493, 502 N.E.2d 170 [internal quotation marks, ellipsis and citation omitted]; see Matter of County of Suffolk v. Kennedy, 211 A.D.3d 937, 938, 180 N.Y.S.3d 585 [2d Dept. 2022] ; Matter of Mollen v. Mathews, 269 A.D.2d 42, 46, 710 N.Y.S.2d 399 [3d Dept. 2000] ).

Examining this matter in such a light, we agree that petitioner has made a sufficient showing that, if in error, respondent exceeded his jurisdiction and power in denying petitioner's motion to quash the subpoena and in ordering her to testify to the information that she obtained in her capacity as a journalist in contravention of Civil Rights Law § 79–h. Known as the New York Shield Law, section 79–h (c) provides that a journalist shall not be "adjudged in contempt by any court in connection with any civil or criminal proceeding" for refusing to disclose information that enjoys the law's qualified privilege for nonconfidential news. Distilled from the reporter's privilege, which has roots from the colonial era and in the free press provisions of the State and Federal Constitutions, the legislative history of the New York Shield Law reveals "that [the Governor] and the [L]egislature intended the statute to provide the highest level of protection in the nation" to journalists working in this State ( Holmes v. Winter, 22 N.Y.3d 300, 307, 309, 980 N.Y.S.2d 357, 3 N.E.3d 694 [2013] [internal quotation marks and citation omitted], cert denied 572 U.S. 1135, 134 S.Ct. 2664, 189 L.Ed.2d 209 [2014] ; see O'Neill v. Oakgrove Constr., Inc., 71 N.Y.2d 521, 524, 526–527, 528 N.Y.S.2d 1, 523 N.E.2d 277 [1988] ). Inasmuch as the New York Shield Law "prohibits a New York court from forcing a reporter to reveal [confidential or privileged materials], both by preventing such a directive from being enforced through the court's contempt power and by rendering any evidence that is covered by the provision inadmissible" ( Holmes v. Winter, 22 N.Y.3d at 308, 980 N.Y.S.2d 357, 3 N.E.3d 694 ), we are satisfied that respondent's "very jurisdiction and power" are in issue to afford a collateral review ( Matter of Collins v. Lamont, 273 A.D.2d at 530, 708 N.Y.S.2d 202 [internal quotation marks and citation omitted]; see Matter of Hussain v. Lynch, 215 A.D.3d at 128, 187 N.Y.S.3d 426 ).

Despite the significant origins and purpose of the New York Shield Law, even within the context of a challenge to a ruling involving its provisions, there is no right to appeal "an order resolving a nonparty's motion to quash a subpoena issued after the filing of the accusatory instrument in a criminal proceeding" ( People v. Juarez, 31 N.Y.3d 1186, 1190, 82 N.Y.S.3d 336, 107 N.E.3d 556 [2018] ; see Matter of 381 Search Warrants Directed to Facebook, Inc. [New York County Dist. Attorney's Off.], 29 N.Y.3d 231, 242, 55 N.Y.S.3d 696, 78 N.E.3d 141 [2017] ). Petitioner's other limited options, which may include a challenge to any finding of contempt against her, are untested and implicate her oath and ethics as a journalist (see People v. Juarez, 31 N.Y.3d at 1205–1206, 82 N.Y.S.3d 336, 107 N.E.3d 556 [Rivera, J., dissenting]), and further pervert the clear language of the statute and legislative history behind the New York Shield Law that seeks to prevent journalists from being threatened with or charged with contempt in the first instance (see People v. Juarez, 31 N.Y.3d at 1208, 82 N.Y.S.3d 336, 107 N.E.3d 556 [Fahey, J., dissenting]; Holmes v. Winter, 22 N.Y.3d at 308, 980 N.Y.S.2d 357, 3 N.E.3d 694 ; see also Matter of Beach v. Shanley, 62 N.Y.2d 241, 255, 476 N.Y.S.2d 765, 465 N.E.2d 304 [1984] [Wachtler, J., concurring]). Petitioner's posttrial options, if successful, may further undermine the propriety of Ramsaran's second murder trial; given the sensitive nature of murder trials for those involved – especially the victim's family – a writ of prohibition offers a "complete and efficacious remedy" to avoid such outcome, whereas "an appeal or other proceedings would be inadequate to prevent [that] harm" ( Matter of Hussain v. Lynch, 215 A.D.3d at 128, 187 N.Y.S.3d 426 [internal quotation marks and citation omitted]). Although "[t]he appealability or nonappealability of an issue is not dispositive" ( Matter of Holtzman v. Goldman, 71 N.Y.2d 564, 570, 528 N.Y.S.2d 21, 523 N.E.2d 297 [1988] ), when considering the gravity of the harm within the backdrop of the significant historical context for the reporter's privilege and the legislative history for the New York Shield Law, coupled with the inadequacy of petitioner's remedies on appeal or in a separate proceeding, we find that a writ of prohibition is appropriately sought by petitioner under these facts and circumstances (see People v. Juarez, 31 N.Y.3d at 1191 n 5, 82 N.Y.S.3d 336, 107 N.E.3d 556 ; Matter of Rush v. Mordue, 68 N.Y.2d at 353, 355, 509 N.Y.S.2d 493, 502 N.E.2d 170 ; see also Matter of Newsday, Inc., 3 N.Y.3d 651, 652, 782 N.Y.S.2d 689, 816 N.E.2d 561 [2004] ; Matter of Associated Press v. Bell, 70 N.Y.2d 32, 37, 517 N.Y.S.2d 444, 510 N.E.2d 313 [1987] ; Matter of Gannett Co. v. De Pasquale, 43 N.Y.2d 370, 374, 401 N.Y.S.2d 756, 372 N.E.2d 544 [1977], affd 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 [1979] ).

Turning to the merits, we agree with petitioner that the People were seeking nonconfidential material that triggered the tripartite test set forth in Civil Rights Law § 79–h.² To overcome the qualified privilege afforded to petitioner under the New York Shield Law, it was incumbent on the People to make "a clear and specific showing that the news: (i) is...