People v. Dan
342 N.Y.S.2d 731
N.Y. App. Div.
1973
Check Treatment

Order unanimously modified, in accordance with memorandum and as so modified, affirmed. Memorandum: Respondents ‍​​‌​​‌​​‌​‌‌​​​​​​‌‌‌​​​​‌​‌​‌‌​​‌​​​‌​‌‌‌​​​​​‌‍Dan and Barnes who are respectivеly a newscaster and a television cameraman appeal from an order *688 of Wyoming County Additional Special and Trial Term which granted the People’s motion to require' them to answer questions' put to them befоre the- ■ Grand Jury which they then refused to answer. ' The asserted ground for such refusal was that they were protected by section -79-h of the Civil Rights Law and the First Amendment of the United States Constitution from, dis- • closing any news or the source of any suсh news coming into their possession - in the. course of gathering-or obtaining news for broadcast by the television station -by which they were professionаlly employed. The questions which they refused to answer did not require them, to ‍​​‌​​‌​​‌​‌‌​​​​​​‌‌‌​​​​‌​‌​‌‌​​‌​​​‌​‌‌‌​​​​​‌‍disсlose news or the sources of their, news, information or knowledge. but merely asked them to testify about events which they had observed personally. In our opinion the ¡provisions of section 79-h of the Civil Rights Law afford appellants the privilege- of •refusing to divulge the identity' of any informant who has supplied them with information but the- statute does not permit them to refuse to .testify about events which they observed personally, including the identities of the persons whom they had observed. The provisions of section 79-h are similar to' the рrovisions of section 421.100 of' the Kentucky Revised Statutes which provides: “ No рerson shall be compelled to disclose in any legal procеeding or •trial before any court, or before any grand or petit jury . * * * the source of any information ‍​​‌​​‌​​‌​‌‌​​​​​​‌‌‌​​​​‌​‌​‌‌​​‌​​​‌​‌‌‌​​​​​‌‍procured pr obtained by him and published in a newspaper or by a radio or television broadcasting station by which he is engaged or employed.” In Branzburg v. Pound (461 S. W. 2d 345, affd. sub nom. Branzburg v. Hayes, 408 U. S. 665) the Kentucky Court of Appeals construed the Kentucky statute as affording a newsman the privilege of refusing to divulge thе identity of an informant who supplied him with information but held that the statute did not permit a reporter to refuse to testify about events which he had observеd personally, including the identities of those persons whom he had observed; The Kentucky statute protects a newsman from disclosing “ the source оf any information procured or obtained by him, and published * * * by a * * * television brоadcasting station”. Section 79-h of the Civil Rights Law protects a newsman from disclosing ‍​​‌​​‌​​‌​‌‌​​​​​​‌‌‌​​​​‌​‌​‌‌​​‌​​​‌​‌‌‌​​​​​‌‍11 any news or source of any such news coming into his possession * * * for broadcast by * * * television The holding of the Kentucky Court of Appeals should bе followed in the case at bar. We find no merit in appellants’ further contention that the provisions of the First Amendment to the United States Constitution and section 8 of article I of the New York State Constitution exempt them -from testifying before the Grand Jury. “ The Constitution does not, as it never has, exempt the nеwsmen from performing the citizen’s normal duty of appearing and furnishing information relevant to the Grand Jury’s task. ” (Branzburg v. Hayes, 408 U. S. 665, 691, supra.) We conclude that no constitutional prоvision exempts appellants from testifying before the Grand Jury and, while they аre not required to divulge the identity of an informant who has supplied them with informаtion, they are required to testify about events that they observed personally including the identity pf the person whom they observed. The order appealed from should be modified by adding thereto a provision that appellants are privileged to refuse ‍​​‌​​‌​​‌​‌‌​​​​​​‌‌‌​​​​‌​‌​‌‌​​‌​​​‌​‌‌‌​​​​​‌‍to divulge the identity of any informant who supplied them with information but that they are required, nevertheless, to testify about events which they observed personally including the identity of the persons whоm they observed. (Appeal from order of Wyoming Special and Trial Term directing respondents to answer questions put to them by the Grand Jury sitting in Wyoming County.) Present — Del Veeehio, J. P., Marsh, Witmer, Motile and Henry, JJ.