The Third Department, in a full-fledged opinion by Justice Fisher, determined the petitioner, a reporter who had interviewed a murder suspect (Ramsaran) prior to his conviction (which was overturned), was entitled to a writ of prohibition preventing the enforcement of a subpoena to testify at the suspect’s second murder trial The People did not meet the criteria required by Civil Rights Law 79-h known as the New York Shield Law:
… [P]etitioner has made a sufficient showing that, if in error, respondent (County Court Judge) 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. * * *
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 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 alternative source” … . * * *
Even accepting that the information was “highly material and relevant” to the prosecution of Ramsaran, the People failed to establish that it was “critical or necessary.” There is a multitude of other evidence against Ramsaran, including the statements that he made during his telephone calls to 911, his girlfriend and to the police, as well as DNA evidence of the blood found on his clothes and the victim’s van. Contrary to the People’s contentions, Ramsaran’s statements during the interview do not contradict any of his other statements, but rather corroborate other available evidence against him … . Matter of Canning v Revoir, 2023 NY Slip Op 04623, Third Dept 9-14-23
Practice Point: This is a rare example of the granting of a writ of prohibition preventing a judge from enforcing a subpoena. The subpoena sought the testimony of a reporter who had interviewed a murder suspect. The People did not meet the criteria of the New York Shield Law which protects reporters from subpoenas when the reporter’s testimony is not “critical or necessary” to the People’s case.