In the Matter of the People, Appellant,v.Conrado Juarez, Defendant. Frances Robles, Nonparty Respondent.BriefN.Y.April 24, 2018APL-2017-00057 To be argued by DIANE N. PRINC (15 Minutes Requested) Court of Appeals STATE OF NEW YORK In the Matter of THE PEOPLE OF THE STATE OF NEW YORK, Appellant, -against- CONRADO JUAREZ, Defendant. FRANCES ROBLES, Respondent. BRIEF FOR APPELLANT CYRUS R. VANCE, JR. District Attorney New York County Attorney for Appellant One Hogan Place New York, New York 10013 Telephone: (212) 335-9000 Facsimile: (212) 335-9288 HILARY HASSLER DIANE N. PRINC MELISSA MOURGES ASSISTANT DISTRICT ATTORNEYS Of Counsel JUNE 9, 2017 STATUS OF RELATED LITIGATION Pursuant to N.Y. C.R.R. § 500.13(a), in the underlying criminal proceeding, People v. Conrado Juarez, N.Y. County Indict. No. 4667/2013, the parties are awaiting trial. TABLE OF CONTENTS Page TABLE OF AUTHORITIES .............................................................................................. ii PRELIMINARY STATEMENT ......................................................................................... 1 INTRODUCTION................................................................................................................ 2 QUESTION PRESENTED ................................................................................................ 8 JURISDICTIONAL STATEMENT ................................................................................... 9 THE RELEVANT RECORD ............................................................................................. 9 22 Years After The Murder Of Baby Hope, Defendant Conrado Juarez Is Charged With Her Murder After Making Incriminating Statements to Law Enforcement ................................................................................................................ 9 Four Days After His Arrest, Defendant Is Interviewed By Frances Robles, Who Publishes An Article Attributing Statements To Defendant Concerning The Murder ................................................................................................................ 11 After The People Subpoena Robles’ Testimony And Notes From Her Interview With Defendant, Robles Moves To Quash In New York Supreme Court ........................................................................................................................... 13 The Trial Court Denies Robles’ Motion to Quash ............................................... 19 The Appellate Division Reverses The Trial Court’s Denial of Robles’ Motion to Quash ......................................................................................................................... 21 POINT ................................................................................................................................... 22 THE PEOPLE HAVE MADE A CLEAR AND SPECIFIC SHOWING THAT FRANCES ROBLES’ TESTIMONY AND NOTES ARE SUFFICIENTLY CRITICAL OR NECESSARY TO THE PEOPLE’S CASE TO OVERCOME THE SHIELD LAW’S QUALIFIED PRIVILEGE FOR NONCONFIDENTIAL NEWS MATERIAL. .................................................................................................. 22 CONCLUSION ................................................................................................................... 53 ii TABLE OF AUTHORITIES FEDERAL CASES Arizona v. Fulminante, 499 U.S. 279 (1991) ......................................................................... 39 Baker v. Goldman Sachs & Co., 669 F.3d 105 (2d Cir. 2012) ................................. 45-46, 52 Branzburg v. Hayes, 408 U.S. 665 (1972) ........................................................... 25, 31, 36, 51 Gonzales v. National Broadcasting Co., 194 F.3d 29 (2d Cir. 1999)...................................... 48 In re American Tobacco Co., 880 F.2d 1520 (2d Cir. 1989) .................................................. 45 In re Application to Quash Subpoena to National Broadcasting Co. v. Graco Children Products, Inc., 79 F.3d 346 (2d Cir. 1996) ................................................... 45-47 In re Petroleum Products Antitrust Litigation, 680 F.2d 5 (2d Cir. 1982) .............................. 28 In re Shain, 978 F.2d 850 (4th Cir. 1992) ............................................................................ 36 New York Times Co. v. Gonzales, 459 F.3d 160 (2d Cir. 2006) ........................ 14, 25, 36, 49 Silkwood v. Kerr-McGee Corp., 563 F.2d 433 (10th Cir. 1977) ............................................ 28 Smith v. Daily Mail Publishing Co., 443 U.S. 97 (1979) ........................................................ 49 Sommer v. PMEC Assocs. & Co., No. 88 Civ. 2537, 1991 WL 73858 (S.D.N.Y. May 1, 1991) .................................................................................................. 47 United States v. Burke, 700 F.2d 70 (2d Cir. 1983) .................................................. 28, 47-48 United States v. Criden, 633 F.2d 346 (3d Cir. 1980) ..................................................... 28, 49 United States v. Cuthbertson, 630 F.2d 139 (3d Cir. 1980) ............................................. 28, 40 United States v. Marcos, No. 87 CR 598, 1990 WL 74521 (S.D.N.Y. June 1, 1990) ............................................................................................................................ 46-47 United States v. Moloney (in re Price), 685 F.3d 1 (1st Cir. 2012).......................................... 36 United States v. Nixon, 418 U.S. 683 (1974)............................................................. 35, 49, 51 United States v. Smith, 135 F.3d 963 (5th Cir. 1998) ........................................................... 36 iii United States v. Sterling, 724 F.3d 482 (4th Cir. 2013)................................................... 26, 36 United States v. Treacy, 639 F.3d 32 (2d Cir. 2011) ............................................ 28, 43, 47-48 Zerilli v. Smith, 656 F.2d 705 (D.C. Cir. 1981) ................................................................... 28 STATE CASES Doe v. Cummings, No. 91-346, 1994 WL 315640 (Supreme Court, St. Lawrence County Jan. 18, 1994) ................................................................................... 47 Flynn v. NYP Holdings, 235 A.D.2d 907 (3d Dept. 1997) ................................................. 45 Kapon v. Koch, 23 N.Y.3d 32 (2014) ..................................................................................... 52 Matter of Holmes v. Winter, 22 N.Y.3d 300 (2013) ................................................... 24-26, 49 Matter of Knight-Ridder Broadcasting v. Greenberg, 70 N.Y.2d 151 (1987) ....................... 25-26 Matter of Perito v. Finklestein, 51 A.D.3d 674 (2d Dept. 2008)........................................... 45 Matter of WBAI-FM v. Proskin, 42 A.D.2d 5 (3d Dept. 1973) .......................................... 27 Matter of Wolf v. People, 39 A.D.2d 864 (1st Dept. 1972) .................................................. 27 O’Neill v. Oakgrove Construction, Inc., 71 N.Y.2d 521 (1988) ....................................... passim People v. Bonie, 141 A.D.3d 401 (1st Dept. 2016) ............................................................... 40 People v. Combest, 4 N.Y.3d 341 (2005) ......................................................................... passim People v. Craver, 150 Misc. 2d 631 (County Court, Albany County 1990) ....................... 42 People v. Eisenman, 39 N.Y.2d 810 (1976) ........................................................................... 43 People v. Huntley, 15 N.Y.2d 72 (1965) .............................................................. 17-18, 41, 52 People v. Johnson, 61 N.Y.2d 932 (1984) ............................................................................... 42 People v. Le Grand, 67 A.D.2d 446 (2d Dept. 1979) ........................................................... 26 People v. Mercereau, 24 Misc. 3d 366 (Supreme Court, Richmond County 2009) ................................................................................................................................. 40 iv FEDERAL RULES Fed. R. Evid. 501 .................................................................................................................. 45 STATE STATUTES Civil Rights Law § 50-b .......................................................................................................... 2 Civil Rights Law § 79-h ............................................................................................ 14, 19, 25 Civil Rights Law § 79-h(b) ................................................................................................... 25 Civil Rights Law § 79-h(c) ................................................................................... 4, 21, 29, 37 CPL 640.10 .................................................................................................................. 9, 13, 17 CPL 710.70 ............................................................................................................................ 32 CPL 710.70(3) ....................................................................................................................... 41 CPLR 2304 ............................................................................................................................ 52 CPLR 3120(b) ....................................................................................................................... 27 CPLR 5602(a)(1)(i) ................................................................................................................. 9 OTHER AUTHORITIES Governor’s Approval Mem., L. 1990, Ch. 33 ................................................................... 30 COURT OF APPEALS STATE OF NEW YORK In the Matter of THE PEOPLE OF THE STATE OF NEW YORK, Appellant, -against- CONRADO JUAREZ, Defendant, and FRANCES ROBLES, Respondent. BRIEF FOR APPELLANT PRELIMINARY STATEMENT By permission of this Court granted on April 4, 2017, the People of the State of New York appeal from an October 20, 2016 order of the Appellate Division, First Department. By that order, the Appellate Division reversed an order issued by New York State Supreme Court Justice Bonnie G. Wittner and granted Respondent Francis Robles’ motion to quash a subpoena issued by the People and directing Robles to produce for in-camera review her notes of a jailhouse interview she conducted of defendant Conrado Juarez four days after his arrest for murder and to testify at defendant’s ensuing criminal trial on the murder charge. 2 INTRODUCTION In 1991, the partially-decomposed body of a four-year-old girl was found stuffed inside a picnic cooler near the Henry Hudson Parkway in upper Manhattan. Forensic analysis revealed that the child had died of asphyxia and had traces of semen in her anus. The semen was too degraded to develop a DNA profile. The body could not be identified, and investigators referred to her as Baby Hope. Over the course of the next 22 years, law enforcement attempted without success to identify Baby Hope and her killer. Finally, in 2013, a renewed investigation led the police to the dead child’s mother, who informed them that in the late 1980s the child-A -had been taken away from her by A s father when the child was just a toddler, and that the mother had never seen her daughter again.1 Further investigation led the police to defendant Conrado Juarez, a nephew of A ’s father, who was in his early thirties at the time of A ’s murder. On October 11 and 12, 2013, law enforcement officials interviewed defendant. After waiving his Miranda rights, defendant initially admitted only that he knew A and her sister M and had spent time with them at his sister’s apartment in the early 1990s after the girls were placed in his sister’s care. He stated that he would sometimes stay overnight at his sister’s apartment after work, and that his sister would subject 1 To protect her identity pursuant to Civil Rights Law § 50-b and N.Y. C.R.R. § 500.5(d), the victim in the underlying criminal proceeding is referred to by her first name or as “Baby Hope” throughout this brief. 3 A to physical acts of discipline. In the same interview, which extended into the early morning hours of October 12, defendant confessed to having had sexual intercourse with then four-year-old A . Defendant denied having killed the child, claimed that A had died while in his sister’s care, and acknowledged that he had helped his sister dispose of her body after placing it inside a cooler. Finally, in a videotaped statement to the prosecutor later that morning, defendant confessed to having smothered A with a pillow while he was anally sodomizing her. Defendant’s confession was corroborated by other evidence known to police, and he was charged with A ’s murder. Given the passage of time and the deterioration of the semen found on A ’s body, no forensic evidence implicated him in the crime. On October 16, 2013, four days after he was charged with murder in a felony complaint and while he was detained at Rikers Island, defendant gave a 45-minute interview about his involvement in the crime to newspaper reporter Frances Robles. Soon after the interview ended, Robles memorialized what defendant had said to her in five or six pages of notes. The next day, October 17, 2013, Robles published a summarized account of the interview in the New York Times. That account included several representations-both in the form of direct quotations and other statements attributed to defendant-that matched almost exactly significant aspects of defendant’s representations during his police interview and videotaped statement. In particular, he repeated his admissions that he had known the dead child, sometimes stayed overnight 4 with her, helped discipline her, and helped his sister to dispose of the child’s dead body in a picnic cooler. Notably, defendant’s account to Robles did not include any mention of the sodomy and supplied a new basis for A ’s death: that she had died after an accidental fall. Defendant added that his previous confession to having killed A during an act of anal sodomy had been given under “duress” after the police “took turns grilling him” and that he caved under “much pressure.” Thereafter, and throughout the criminal proceeding, defendant argued that his confession to law enforcement, the most damning piece of evidence against him, was false and coerced. Accordingly, with an eye toward rebutting that argument and aware of their obligation to prove beyond a reasonable doubt that all defendant’s admissions to police and the prosecutor were truthful and voluntary, the People subpoenaed Robles’ testimony regarding defendant’s published, nonconfidential statements. Of course, the Shield Law, New York Civil Rights Law § 79-h(c) establishes a qualified privilege for a reporter’s unpublished, nonconfidential news material, which can be overcome upon a “clear and specific” showing that the material is “highly material and relevant,” “critical or necessary” to the litigant’s claim, and “not obtainable from any alternative source.” But, the People contended, because they sought only Robles’ testimony regarding defendant’s published statements, the subpoena would not implicate the Shield Law’s qualified privilege. Robles acknowledged that testimony solely concerning defendant’s published statements would not be privileged under the Shield Law. However, contending that her testimony would inevitably delve into unpublished 5 news material, and thus, that it would be subject to the Shield Law’s qualified privilege, Robles moved to quash in a special civil proceeding before Justice Bonnie Wittner, who was presiding over defendant’s criminal case. Upon the discovery of the existence of Robles’ notes from the interview-which were clearly unpublished-the People issued a separate subpoena for the notes and argued that they had made the required showing to overcome the Shield Law’s qualified privilege for both Robles’ testimony and notes. Robles subsequently moved to quash that second subpoena, raising the same claim of privilege under the Shield Law. Justice Wittner granted the motion to quash for purposes of the motion to suppress only. Then, after giving due consideration to the competing interests, Justice Wittner denied Robles’ motion to quash for purposes of defendant’s criminal trial, concluding that the People had made the required showing that Robles’ testimony and notes were highly material and relevant, were critical or necessary, and were not obtainable from another source. Justice Wittner ordered Robles to testify and produce her notes for an in-camera inspection, after which the court would produce to defendant only those portions that were relevant to his cross-examination related to her testimony authenticating his statements to her. In reaching that determination, Justice Wittner noted the paramount importance of defendant’s confession to the People’s proof, including the People’s “critical” need at trial to present “all possible evidence corroborative of his statements to the police in their efforts to prove beyond a reasonable doubt [to the petit jury] that his statements 6 were voluntary and truthful.” The judge also concluded that, in a murder case like this one, where there was “no forensic evidence connecting [defendant] to the death,” any statement by him “in which he discusses matters such as the charges against him and his relationship to the victim” is “highly material and relevant” to the ultimate issues to be decided at trial. On Robles’ appeal from the denial of the motion to quash, the Appellate Division, First Department, reversed. Without any apparent deference to the trial court’s findings, the court concluded that the People had failed to show that Robles’ testimony was either “critical or necessary” to the People’s proof in the criminal case. Indeed, the Appellate Division’s entire analysis of the issue consisted of a perfunctory finding that the information was neither critical nor necessary because the People had other evidence of defendant’s guilt: defendant’s videotaped confession, which “include[d] statements consistent with other evidence in the case.” The court also noted this State’s strong public policy supporting the freedom of the press, without giving due consideration to the People’s competing interest in the successful prosecution of the most serious of crimes: the sexual assault and murder of a child. The Appellate Division’s decision was demonstrably incorrect. Although New York state unquestionably has a longstanding tradition of protecting the freedom of the press, this Court has also recognized that that interest “must always be balanced” against the interests of the party seeking disclosure from a journalist. See O’Neill v. Oakgrove Construction, Inc., 71 N.Y.2d 521, 529 (1988). Of course, this Court has also 7 recognized that different interests may be implicated when the qualified privilege for nonconfidential material arises in the context of a criminal proceeding, that a criminal defendant’s interest in presenting all relevant evidence at trial is “substantial,” and that, “in any case, the interest in refusing to share nonconfidential information is significantly lower than when confidential material is at issue.” People v. Combest, 4 N.Y.3d 341, 345- 47 (2005) (emphasis in original). In concluding that Robles’ interests in not disclosing the nonconfidential material were superior, the Appellate Division failed to give due consideration to the People’s fundamental right to present all relevant evidence of a criminal defendant’s guilt, as well as the public’s strong interest in the effective prosecution of serious charges. The court also ignored that a criminal defendant’s statements in a murder case are almost always vital to the People’s proof, whether in the form of admissions or false denials. Further, the Appellate Division failed to consider that the actual burden Robles faces in this case, testifying and producing her notes regarding defendant’s statements, is “significantly lower” than if she were being compelled to divulge confidential sources. And, in concluding that Robles’ testimony was not critical or necessary because the People had legally sufficient proof of defendant’s guilt, the Appellate Division embraced an interpretation of the Shield Law that in effect establishes a near-absolute privilege for nonconfidential information when sought by the prosecution in criminal proceedings: presumably, any time the People have evidence sufficient to obtain an indictment, they will be barred from obtaining a journalist’s testimony or notes. Such 8 a constricted interpretation of the Shield Law flies in the face of this Court’s decision in Combest and the legislature’s intent in enacting the qualified privilege. Thus, this Court should reverse and deny Robles’ motion to quash the subpoena. QUESTION PRESENTED The 1991 murder and sexual assault of a four-year-old child went unsolved for 22 years until defendant Conrado Juarez, during custodial interviews with law enforcement officials, admitted details of his relationship with the child while she was alive and then ultimately confessed to sexually assaulting her, killing her, and disposing of her body. Due to the passage of time, the manner in which defendant disposed of the body, and the related deterioration of physical evidence, the People have neither forensic nor eyewitness evidence linking defendant to the crime. Thus, proof of defendant’s statements to law enforcement-the voluntariness of which defendant intends to challenge vigorously before the petit jury-will be the most crucial piece of evidence against him at trial. Days after defendant confessed, he made similar admissions (as well as false exculpatory ones) in a freely-given, jailhouse interview with journalist Frances Robles, who published excerpts of the interview in the New York Times but retained unpublished notes memorializing the entire interview. The statements to Robles are independently probative of defendant’s guilt and provide powerful support for the voluntariness of defendant’s precinct confession. In these circumstances, which include Robles’ concession that she is the only source of the jailhouse admissions, have the People made a clear and specific showing that Robles’ 9 testimony and notes are “highly material and relevant” as well as either “critical or necessary” to their case such that the Shield Law’s qualified privilege for nonconfidential news material is overcome? The Appellate Division answered, “No.” JURISDICTIONAL STATEMENT This Court has subject matter jurisdiction over this appeal under CPLR 5602(a)(1)(i). The action originated in New York State Supreme Court, New York County, Index No. 30222/15, upon the Supreme Court’s issuance of certificates adjudging Robles a material witness pursuant to CPL 640.10 and Robles’ subsequent motion to quash the subpoenas related to the material witness orders. The action was finally determined by the Appellate Division, First Department, in a Decision and Order dated October 20, 2016 (R235-38).2 This Court granted the People’s motion for leave to appeal by Order entered April 4, 2017 (R233-34). The grounds for this appeal were preserved, among other things, in the People’s submissions and arguments to the Supreme Court (R31-65, 85-95, 103-37), and in the People’s brief to the Appellate Division, First Department. THE RELEVANT RECORD 22 Years After The Murder Of Baby Hope, Defendant Conrado Juarez Is Charged With Her Murder After Making Incriminating Statements to Law Enforcement On July 23, 1991, highway workers found the body of a four-year-old girl stuffed in an Igloo picnic cooler in a wooded area near the Henry Hudson Parkway and 2 Parenthetical citations preceded by “R” are to the Record on Appeal. 10 Dyckman Street in Manhattan. The child’s body was naked and partially decomposed. Forensic analysis revealed that the child had died of asphyxia, and that she had traces of semen in her anus, although the semen was too degraded to generate a DNA profile. The body could not be identified, and police investigators referred to her as Baby Hope (R85-86). Periodically over the course of the next 22 years, police attempted without success to identify Baby Hope and her killer. Finally, in 2013, a tip led them to Margarita C . DNA testing established that C was the mother of the dead child, who was identified as A . In an interview with police, C explained that in the late 1980s, she had lost custody of A and another daughter, named M to the girls’ father, Genaro R , and had never seen A again. In 1995, C was reunited with M when R ’s nephew, defendant Conrado Juarez, returned her to C . At the time, defendant told C that A was dead (R86). Police interviewed R and defendant’s family members, who recounted that, after gaining custody of his two daughters in the late 1980s, R had given the girls, then toddlers, to his niece, Balvina Juarez, to care for them. Family members also reported that defendant, Balvina’s then 30-something brother, often spent the night with Balvina and the two girls in Balvina’s apartment. One relative reported that about two years later, that relative saw defendant and Balvina remove an Igloo picnic cooler from the apartment, enter a cab with it, and return later without it. The relative also 11 stated that A , who had disappeared around that time, was never seen again. Balvina died in 1995 (R86-87). Police located defendant on October 11, 2013, and he agreed to accompany officers to a precinct for questioning. In his first interview with police that evening, defendant waived his Miranda rights and then admitted knowing A and spending time with her in Balvina’s apartment. As the interview continued into the early morning hours of October 12, he also confessed to sexually abusing A about a day before her death. Defendant denied killing A however, and claimed that he had learned of her death from his sister Balvina. Defendant stated that he had helped Balvina dispose of A ’s body by placing it in a cooler and bringing it to a park (R87). Later in the morning of October 12, defendant gave a videotaped statement to a prosecutor. Defendant repeated the admissions that he had made to the police about sexually assaulting A and helping his sister dispose of the body. In this statement, however, defendant added that he had smothered the child with a pillow while anally sodomizing her. Thereafter, defendant was charged with the felony murder of A (R87). Four Days After His Arrest, Defendant Is Interviewed By Frances Robles, Who Publishes An Article Attributing Statements To Defendant Concerning The Murder On October 16, 2013-four days after defendant was arrested and charged by felony complaint with A ’s murder-Frances Robles, a newspaper reporter, visited him in jail at Rikers Island. Defendant agreed to the interview with Robles, 12 which lasted about 45 minutes. About 20 or 25 minutes after the interview ended, Robles memorialized what defendant had said in “five or six pages of notes” (R27, 87). The following day, Robles published a summarized account of the interview in the New York Times. Entitled, “Suspect Recalls the Short Life of ‘Baby Hope,’” the article contains several representations by defendant-both in the form of direct quotations and other statements attributed to him-that closely mirrored his statements during his interviews with the police and the prosecutor (R20-25, 27). Specifically, Robles quoted defendant as stating that A and her sister were his uncle’s young daughters, and that his uncle brought them to his sister’s apartment in Astoria so that she would raise them. In the article, Robles quoted defendant as telling his sister “to get some kind of receipt” from the girls’ “real mother,” “[e]ven if it’s not notarized,” because his sister was “going to be the one raising those girls.” In addition, defendant, who “sometimes stayed over in Astoria” with his sister and the girls, described “the extra workload his sister faced” taking care of the girls and the frustrations he and his sister faced in disciplining them (R20-22). However, unlike his videotaped statement to the prosecutor, defendant is quoted as denying that he killed A : “I told the police that I put a pillow over her face and killed her … but it wasn’t like that.” Instead, diverging from the account he had given to police, defendant told Robles that his sister had called him to say that A had died after falling down the stairs. Defendant “said he helped his sister stuff the girl into a cooler,” and then the two siblings “flagged a taxi off the street and rode in silence 13 to the park, where they dropped the blue picnic cooler.” Afterward, defendant and his sister “never spoke of it again.” Finally, defendant told Robles how, four years after A ’s death, he returned M to her birth mother and informed the mother that A “is no longer with us” (R22-23). After The People Subpoena Robles’ Testimony And Notes From Her Interview With Defendant, Robles Moves To Quash In New York Supreme Court After his indictment for Murder in the Second Degree, defendant moved to suppress his statements to law enforcement as coerced and involuntarily made. In particular, defendant contended that his will had been overborne by an unduly lengthy interview by law enforcement officials, and that officials had not honored his invocation of his right to remain silent (R19, 88, 107-12). In anticipation of hearing and trial, the People petitioned the Supreme Court for a Certificate Adjudging Robles, a Florida resident, to be a Material Witness Pursuant to CPL 640.10. In an accompanying affirmation, the prosecutor contended that Robles was “the only source of the information that the People seek, and that her testimony about defendant’s statements during her interview would be material, necessary, and relevant to defendant’s claim, at a pretrial hearing and at trial, that his statements to law enforcement were involuntary and untruthful.” The prosecutor also asserted that Robles’ testimony would not be subject to any privilege under the Shield Law, since the People sought to elicit her testimony regarding “only published, non-confidential, information-specifically, the 14 statements that defendant Juarez made and that were reported” by Robles in her article (R85-90). On December 11, 2015, under Index Number 30222/2015, the Honorable Bonnie G. Wittner issued the certificate, concluding that Robles possessed “material and admissible evidence,” including statements made by defendant that were published in the Times article (R96-99). The People presented the certificate to a judge in Florida, and on February 4, 2016, the judge issued a subpoena requiring Robles to testify in New York (R101-02). On February 9, 2016, Robles moved to quash the subpoena in the Supreme Court, arguing that her testimony was protected under the qualified privilege for nonconfidential, unpublished news material set forth in Civil Rights Law § 79-h (R153- 54). In support of that motion, Robles submitted an affidavit dated February 8, 2016 in which she averred that testifying about defendant’s statements would put her work as a journalist and the “public’s right to know in jeopardy” (R16-19). On February 23, 2016, counsel for the People and Robles appeared before Justice Wittner for a hearing on Robles’ motion to quash (R103-21). Counsel for Robles argued that, although the “published statements” in the article were “not privileged under the New York Shield Law,” Robles’ testimony, particularly on cross-examination, would be “privileged” under the Shield Law, as it would inevitably delve into unpublished news material. Counsel also contended that Robles’ testimony would not 15 be “critical and necessary” in that the People’s case against defendant did not “virtually rise and fall” on Robles’ testimony (R104-06). In response, the prosecutor contended that to the extent the Shield Law’s three- pronged test for discovery of nonconfidential, unpublished news material applied, the People had met that test. The prosecutor explained that the People sought “to introduce testimony about what the defendant told Ms. Robles in order to help prove, as we must, that his statements [to law enforcement] were voluntarily made after [a] knowing and intelligent waiver of his constitutional rights.” First, defendant’s statements to Robles were “highly material,” since it “goes without saying in a criminal case that any admissions by the defendant, whether to police or others regarding the circumstances surrounding the crime are highly material and relevant” (R106-11). Next, the prosecutor noted that, given the lack of forensic evidence linking the defendant to the murder, and that defendant was the sole surviving witness of the events culminating in A ’s death and the disposal of her body, defendant’s confession was the most crucial evidence of his guilt in this case. The prosecutor also recounted that under New York law, a defendant can always challenge the voluntariness of his statements to law enforcement at trial, even after his motion to suppress has been denied. Against that backdrop, the prosecutor contended that Robles’ testimony concerning defendant’s statements was “critical or necessary” to the central issue of the voluntariness and truthfulness of defendant’s confession to law enforcement. As the prosecutor explained, in determining whether defendant’s confession was voluntarily 16 made, the jury was entitled to consider the highly relevant and material statements he made to Robles about the crime. Further, the prosecutor noted that any cross- examination of Robles “would be limited by the rules of evidence,” and questions regarding “her impression of his truthfulness, or the intricacies of her newsgathering process” would not be relevant or material. Lastly, the prosecutor noted that if Robles had notes from her interview, they might be relevant for defendant’s cross-examination of Robles (R106-11). After considering the parties’ arguments, Justice Wittner denied Robles’ motion to quash the subpoena. The judge observed that there was “no eyewitness” to the murder, that the DNA evidence from the semen was “not sufficient to create a profile,” and that defendant was “challenging in every way” the truthfulness and voluntariness of his statements to law enforcement officials. Thus, the court found that defendant’s statements to Robles, “made days after his arraignment and after he had spoken to his counsel,” were “critical and necessary.” Given that defendant might seek to cross- examine Robles regarding the circumstances of the interview-including other representations that he may have made that were not reflected in Robles’ article- Justice Wittner ordered that the subpoena be amended so that it called not only for Robles’ testimony, but also for Robles to “come with notes [of her interview of defendant] which would have to be inspected by [the court] in camera if she has them.” Justice Wittner then stayed her order denying the motion to quash while the People sought the second subpoena (R116-21). 17 Consistent with that order, the People applied for a second certificate pursuant to CPL § 640.10 seeking Robles’ testimony and production of her notes for an in-camera inspection so that the court could examine their contents both to determine whether they contained other admissions by defendant and to define the scope of cross- examination (R80-83). On March 9, 2016, Justice Wittner issued the certificate, and on March 30, 2016, a Florida judge issued the subpoena for Robles’ testimony and notes (R133-39). Robles again moved to quash the subpoena for her testimony and notes. In support of that motion, Robles submitted an affidavit dated March 30, 2016 in which she averred with respect to her notes that they were made about 20 or 25 minutes after her interview of defendant and that they consisted of “five or six pages” memorializing what defendant had said to her to the “best of [her] ability” (R75-76, 140-42). By papers dated April 6, 2016, the People reiterated their arguments that they had sufficiently shown that Robles’ testimony and notes were highly material and relevant, were critical or necessary to the issue of the voluntariness of defendant’s confession, and were not available from another source. On April 13, 2016, Justice Wittner issued an order in which she held that, for purposes of the Huntley hearing only, at which she would be the finder of fact, Robles’ testimony and notes were not critical or necessary under the Shield Law. The judge, who was aware of the article’s contents from the prior hearing and motion practice, also left open the possibility of revisiting the issue “subject to the evidence adduced at the 18 Huntley hearing” (R12). On April 26 and 27 and July 1, 2016, Justice Wittner held a Huntley hearing in the underlying criminal proceeding. In a written decision dated August 2016, Justice Wittner denied defendant’s motion to suppress his statements as involuntarily made. On June 7, 2016, the prosecutor and counsels for Robles and defendant appeared again before Justice Wittner.3 The court noted that Robles’ motion to quash was still pending with respect to defendant’s trial, and asked the prosecutor and counsel for defendant to clarify the scope of their direct and cross-examinations of Robles if she were to testify at trial. The prosecutor responded that she would ask Robles to confirm that the direct quotations of defendant and statements clearly attributable to him were accurate, but would not ask Robles for her impressions, conclusions, or surmises about defendant or the case (R32-39). Counsel for defendant-who unsurprisingly did not want Robles to testify at all-requested a wide scope for his cross-examination, including probing Robles on her sources for the article beyond defendant (R39-49). Counsel for Robles objected to a wide-ranging cross-examination, contending that it would violate the Shield Law (R45-62). Justice Wittner responded that she would not allow defendant to probe Robles’ impressions of defendant or her motivations in writing the article, but, consistent with the Shield Law and defendant’s Sixth 3 Although defendant was not a party to the motion to quash, the court invited him so that it could consider the scope of any cross-examination of Robles at trial (R32). 19 Amendment rights, would allow defendant to challenge Robles’ testimony with regard to his statements, including whether she understood him accurately in Spanish (R45- 62). Granting Robles’ request to file additional papers, the court reserved decision and adjourned the matter (R62-64). On June 17, 2016, counsel for Robles again moved to quash the subpoena for her testimony and notes (R13). By papers dated June 27, 2016, the People reiterated their argument that they had made the required three-prong showing under the Shield Law for Robles’ nonconfidential, unpublished material. Robles filed a reply on April 11, 2016. The Trial Court Denies Robles’ Motion to Quash On August 4, 2016, Justice Wittner issued a written order denying Robles’ motion to quash and compelling Robles to testify at defendant’s trial and produce her notes for an in-camera inspection. The court concluded that Robles’ notes and any cross- examination, “beyond the authentication of the published statements, would be protected by the New York State Shield Law, Civil Rights Law Sec. 79(h) unless they involve evidence which is (1) highly material and relevant, (2) critical or necessary to the issue of the voluntariness of defendant’s statements[,] and (3) unavailable from another source.” Justice Wittner held that the People had met their burden under the Shield Law. The court first determined that because Robles was “the only one present at the interview, the evidence is not available from another source.” Further, the court held 20 that Robles’ testimony and notes regarding defendant’s statements were “highly material and relevant,” because they referred to the “charges against” defendant and “his relationship to the victim.” The court also noted the absence of other evidence- including forensic evidence-connecting defendant to the charged murder, and that defendant’s statements “to law enforcement and [ ] Robles are the only evidence linking him to the crime.” Thus, the court concluded, it “is critical that the People present all possible evidence corroborative of his statements to the police” to prove to the petit jury “beyond a reasonable doubt that the statements were voluntary and truthful” (R9- 11). Finally, the court stated that “[a]ppropriate cross examination” by defendant, “as required by the Sixth Amendment, will be permitted,” and that it would review Robles’ notes from the interview in camera and disclose to defendant “only those portions, if any, relevant to cross-examination related to her testimony authenticating [defendant’s] statements to her.” The court added, however, that a “wide ranging examination” of Robles “concerning her reporting or interviewing techniques in general, other sources for her article, and questions about other crime stories will not be permitted.” Instead, the court would allow questions “directly relevant to her reporting of” defendant’s “statements to her” (R9-11).4 4 Immediately after issuing her order denying Robles’ motion to quash, Justice Wittner granted a stay of her order pending Robles’ appeal to the Appellate Division, First Department (R12.2). 21 The Appellate Division Reverses The Trial Court’s Denial of Robles’ Motion to Quash On August 4, 2016, Robles filed a notice of appeal from the trial court’s order denying her motion to quash. The parties submitted briefs on an expedited basis. By decision and order dated October 20, 2016, the Appellate Division, First Department, unanimously reversed the trial court’s order. The court noted that 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.” Thus, the court concluded, “[u]nder 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,’ (O’Neill v. Oakgrove Const., 71 NY2d 521, 527 [1988]),” the People had 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]).” (R235-38). 22 POINT THE PEOPLE HAVE MADE A CLEAR AND SPECIFIC SHOWING THAT FRANCES ROBLES’ TESTIMONY AND NOTES ARE SUFFICIENTLY CRITICAL OR NECESSARY TO THE PEOPLE’S CASE TO OVERCOME THE SHIELD LAW’S QUALIFIED PRIVILEGE FOR NONCONFIDENTIAL NEWS MATERIAL. In 2013, some twenty years after the crime, the People charged defendant Conrado Juarez with second-degree murder after he confessed to suffocating four-year- old A while anally sodomizing her in 1991. In connection with that criminal proceeding, the People sought the testimony and notes of journalist Frances Robles, who elected to interview the jailed defendant about the facts of the crime, including his interactions with the child and his involvement in her death, and then published a summarized account of that interview. Robles moved to quash the subpoena, asserting that the Shield Law’s qualified privilege from compelled disclosure of nonconfidential news material applied. The trial court, which also presided over the underlying criminal matter, denied that motion with respect to Robles’ testimony at the criminal trial and the production of her related notes for in-camera review. Weighing the parties’ competing interests, the trial court concluded that the People had made the required showing under the Shield Law that Robles’ testimony and notes about defendant’s statements regarding the crime were highly material and relevant, critical or necessary to the maintenance of the People’s case, and not obtainable from any alternative source. With respect to the critical or necessary prong, 23 the trial court found that the People had made a sufficient showing because the defendant at trial would challenge the voluntariness and truthfulness of his confession to law enforcement-the most crucial piece of evidence against him. Thus, the court concluded, the defendant’s statements to Robles about the crime, in which he repeated many of his prior admissions to law enforcement, but also made new statements, including false exculpatory ones, were critical or necessary to the People’s burden of proving the truthfulness and voluntariness of defendant’s statements, as part and parcel of their efforts to prove his guilt beyond a reasonable doubt. The court was also careful to limit the burden to Robles, holding that a “wide ranging examination … concerning her reporting or interviewing techniques in general, other sources for her article, and questions about other crimes stories will not be permitted” (R10-11). On appeal, the Appellate Division reversed that well-reasoned decision, concluding that Robles’ testimony and notes were not critical or necessary to the People’s proof because 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.” The court also noted the strong public policy in this state of protecting the newsgathering role of journalists and found, against that backdrop, that the People had not made a clear and specific showing that Robles’ testimony and notes were “critical or necessary” (R235-38). In so deciding, the Appellate Division, in contravention of this Court’s well- settled law, failed to give proper weight to the competing interests at stake, including 24 the People’s strong interest in the successful prosecution of this serious murder case, and the fundamental interest in criminal proceedings that all relevant evidence be presented at trial. Further, the Appellate Division overlooked not only this Court’s guidance in Combest that, in the context of the qualified privilege embodied in the Shield Law, criminal cases involve different considerations than civil cases, but also this Court’s recognition that “in any case, the interest in refusing to share nonconfidential information is significantly lower than when confidential material is at issue.” Combest, 4 N.Y.3d at 345-46 (emphasis in original). The Appellate Division also failed to give due deference to the ruling by the trial judge, who was uniquely well versed in the facts of the criminal proceeding, and well-positioned to gauge the need for Robles’ testimony and notes at trial. In short, the Appellate Division failed to properly weigh the potent prejudice to the People resulting from the preclusion of this highly relevant and material information, and the comparatively minimal intrusion into Robles’ newsgathering activities that would result from testifying at trial and producing her notes for an in- camera review. Given these clear errors in the Appellate Division’s decision, this Court should reverse. A. The Shield Law was enacted in 1970 to protect journalists from the compelled disclosure of their confidential sources. More specifically, the statute provides an “absolute privilege precluding reporters from being compelled to reveal the identity of confidential sources.” Matter of Holmes v. Winter, 22 N.Y.3d 300, 308-09 (2013) (citing 25 Civil Rights Law § 79-h[b]); see also Matter of Knight-Ridder Broadcasting v. Greenberg, 70 N.Y.2d 151, 155 (1987) (“New York’s Shield Law was enacted in 1970 in response, in part, to attempts by the Federal Government to compel the disclosure of confidential information and sought to protect newspersons from contempt charges for failing to disclose such information or its sources that were obtained during the news gathering process”) (citing Governor’s Mem. 1970 NY Legis. Ann. At 508).5 This absolute privilege for confidential sources is both sweeping and unmatched in federal law. Indeed, the United States Supreme Court, in contrast, has refused to recognize a reporter’s privilege precluding compelled disclosure of confidential sources in the grand jury context. Branzburg v. Hayes, 408 U.S. 665, 689-92 (1972). And, the Second Circuit and other federal circuit Courts of Appeal have recognized only a qualified privilege for confidential sources that can be overcome upon a showing of a “compelling governmental interest” in identifying the source. See New York Times Co. v. Gonzales, 459 F.3d 160, 170-72 (2d Cir. 2006) (reporter’s privilege for confidential sources “overcome as a matter of law” upon a “clear showing of a compelling governmental interest in the investigation, a clear showing of relevant and unique 5 Since its enactment in 1970, the Shield Law has been amended several times to “strengthen its provisions.” Holmes, 22 N.Y.3d at 308-09 (citations omitted). In 1975, the Shield Law was amended to clarify that journalists were protected from revealing their confidential sources before grand juries. Civil Rights Law § 79-h, as amended by L. 1875, ch. 316. In 1981, it was amended, inter alia, to expand the definition of journalists. Id., as amended by L. 1981, ch. 468. Finally, in 1990, it was amended to include a qualified privilege for unpublished, nonconfidential news material. Id., as amended by L. 1990, ch. 33, § 1. 26 information in the reporters’ knowledge, and a clear showing of need”); see, e.g., United States v. Sterling, 724 F.3d 482, 510 (4th Cir. 2013).6 But as this Court has recognized, New York “has a long tradition, with roots dating back to the colonial era, of providing the utmost protection of freedom of the press,” and, consistent with that tradition, the New York Constitution and statutory scheme both “provide[ ] a mantle of protection for those who gather and report the news-and their confidential sources-that has been recognized as the strongest in the nation.” Holmes, 22 N.Y.3d at 307, 310. In fact, the “protection of the anonymity of confidential sources is a core-if not the central-concern underlying New York’s journalist privilege, with roots that can be traced back to the inception of the press in New York.” Id. at 316 (emphasis in original). Given the original Shield Law’s exclusive focus on protecting journalists from compelled disclosure of confidential sources, courts in this state nearly uniformly declined to recognize a privilege for nonconfidential news information prior to the 1990 amendment which explicitly included such a privilege. See, e.g., Knight-Ridder, 70 N.Y.2d at 151 (then-applicable Shield Law did not prohibit compelled disclosure of nonconfidential information); People v. Le Grand, 67 A.D.2d 446, 451-52 (2d Dept. 1979) 6 In contrast, and as noted in Holmes, “at least 16 states have adopted privilege statutes that provide absolute protection to a reporter’s confidential sources.” Holmes, 22 N.Y.3d at 320 n.7. 27 (same); Matter of WBAI-FM v. Proskin, 42 A.D.2d 5, 6-7 (3d Dept. 1973) (same); Matter of Wolf v. People, 39 A.D.2d 864, 864 (1st Dept. 1972) (same). The privilege was expanded, first by this Court, and then by statute, in evident concern for the practical burden of routine discovery demands for nonconfidential news material. Specifically, and prior to the enactment of the statutory privilege, this Court first recognized in O’Neill, 71 N.Y.2d 521, a privilege for nonconfidential news material under the free press and speech guarantees of the New York state and federal Constitutions. In O’Neill, a civil plaintiff, who was injured in an automobile accident after sliding off a roadway under construction, sued the contractors and subcontractors responsible for the construction. Id. at 525. A photojournalist had taken dozens of photographs of the accident scene, including photographs depicting evidence not captured in police photographs. The plaintiff moved for an order pursuant to CPLR 3120(b) directing the photojournalist to produce the photographs for inspection and copying. Id. The photojournalist cross-moved for a protective order, arguing that the photographs were privileged under the state and federal constitutions, but the trial court denied that motion and ordered the journalist to produce the photographs. Id. On appeal, this Court held that although the rules of civil discovery generally promote full disclosure of all relevant material, “additional considerations” applied to the discovery of information from those “engaged in newsgathering or reporting activities.” O’Neill, 71 N.Y.2d at 526. In particular, given the press’s role in reporting on newsworthy events “that often give rise to litigation,” the press would be diverted 28 from their newsgathering and reporting roles if they had to “routinely” respond to requests for discovery in civil actions. Id. at 526-27. In light of these “practical burdens on time and resources” that could result from routine discovery demands, the Court recognized a “reporter’s qualified privilege” for nonconfidential news material. Id. at 527. Pursuant to that qualified privilege, compelled disclosure of nonconfidential news material was appropriate “only if the litigant demonstrates, clearly and specifically, that the items sought are (1) highly material, (2) critical [or necessary] to the litigant’s claim, and (3) not otherwise available.” Id.7 7 In support of this test, the Court cited decisions from federal and state courts purporting to recognize a reporter’s qualified privilege under the First Amendment. O’Neill, 71 N.Y.2d at 527. Notably, however, the majority of those decisions involved protections for confidential material-not nonconfidential material as in O’Neill. See Zerilli v. Smith, 656 F.2d 705, 712 (D.C. Cir. 1981) (recognizing “the public interest in protecting a newspaper’s confidential sources”); Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 437 (10th Cir. 1977) (recognizing that a reporter may “claim his privilege in relationship to particular questions which probe his sources” when they gave information “in confidence”); In re Petroleum Products Antitrust Litigation, 680 F.2d 5, 7 (2d Cir. 1982) (recognizing public’s interest “in preserving the confidentiality of journalists’ sources”). In the federal cases involving nonconfidential news material, two of the courts concluded that the parties seeking the nonconfidential information had overcome the journalists’ privilege. See United States v. Criden, 633 F.2d 346, 358-59 (3d Cir. 1980); United States v. Cuthbertson, 630 F.2d 139, 148-49 (3d Cir. 1980). In the other case relied upon by this Court, United States v. Burke, 700 F.2d 70 (2d Cir. 1983), the Second Circuit concluded that the criminal defendant had not overcome the journalists’ privilege, when the nonconfidential news material he sought-a witness’s statements to the journalists-amounted only to “further impeachment evidence” that would have been “cumulative” in light of all the other impeachment evidence that had already been admitted. Id. at 77-78. Notably, however, the Second Circuit later recognized that its holding in Burke had not adequately accounted for a criminal defendant’s interests in presenting a defense. See, e.g., United States v. Treacy, 639 F.3d 32, 43 (2d Cir. 2011). 29 After announcing the three-part test, the Court noted that it was “but a complement to the general principles governing compelled disclosure,” which always require a court to weigh “competing interests” such as the “need for discovery” and “burden to be borne by the opposing party.” Id. at 529. Thus, in considering whether to compel disclosure of nonconfidential news material, “a court would consider the extent, if any, that press activities will be affected and, if so, whether such is justified by the interest to be served.” Id. In 1990-two years after the Court’s decision in O’Neill-the legislature amended the Shield Law to include a qualified privilege for nonconfidential, unpublished news material, essentially codifying the Court’s holding. Governor’s Program Bill Mem, L. 1990, ch. 33 at 14-15. Pursuant to the 1990 amendment, a court may compel the disclosure of nonconfidential, unpublished news only upon a clear and specific showing that the news is (i) highly material and relevant, (ii) critical or necessary to the maintenance of a party’s claim, and (iii) not available from any alternative source. Civil Rights Law § 79-h(c). Further, because O’Neill was a civil case, the 1990 amendment also clarified that the three-part test for nonconfidential news material applied “to criminal proceedings” as well as civil ones. Governor’s Program Bill Mem, L. 1990, ch. 33 at 15.8 8 According to the Governor’s Program Bill Memorandum, journalists “encounter the most problematic incursions into the integrity of the editorial process when they are drawn into the criminal justice system merely because they reported on a crime,” and thus, the “need 30 After its decision in O’Neill, this Court did not consider the scope of the qualified privilege for nonconfidential material again until 2005, in Combest, 4 N.Y.3d 341. In that case, a criminal defendant was indicted for “murder and related charges” for his involvement in a gunfight that left a bystander dead. Id. at 343-44. Detectives- accompanied by a film crew that was creating a documentary about the detectives- interviewed the defendant, who “gave oral and written statements confessing to his participation in the shootout, but attempting to explain his actions as justified by self- defense.” Id. The film crew captured the interview and confession on video and audiotape. A few hours later, the defendant “gave a 14-minute videotaped statement to an assistant district attorney, filmed by the prosecution.” Id. Prior to trial, the defendant subpoenaed the film crew for production of the tapes of his arrest and interrogation that had not been broadcast. The film crew moved to quash, asserting that the defendant had not made the required three-prong showing to overcome the qualified privilege under the Shield Law, and the trial court, after a hearing, ultimately agreed, quashing the subpoena. Id. at 344-45. On appeal to this Court, the defendant argued that the Shield Law was unconstitutional as applied to criminal cases. Combest, 4 N.Y.3d at 345-46. Noting that for protection of non-confidential information and sources is [ ] greatest in criminal cases.” Governor’s Program Bill Mem, L. 1990, Ch. 33 at 15. However, the Governor’s Approval Memorandum also noted that the amendment did “not override the right to a fair trial guaranteed to defendants in criminal proceedings by the United States and New York State Constitution.” Governor’s Approval Mem., L. 1990, Ch. 33 at 15-16. 31 O’Neill stood for the proposition that “when faced with a litigant’s request for information in the possession of the media, competing interests must be balanced,” this Court reasoned “that different factors might be involved in criminal cases,” and, in any event, that a criminal “defendant’s interest in nonconfidential material weighs heavy.” Id. It also concluded that “in any case, the interest in refusing to share nonconfidential information is significantly lower than when confidential material is at issue.” Id. (emphasis in original). Where confidential materials are involved, “the media may have real reason to fear that their ability to find sources willing to provide information will soon evaporate if their guarantees of confidentiality will not be honored.” Id. In contrast-and although not “question[ing] the importance of nonconfidential news gathering”-the Court relied on the defendant’s assertion that his request for the unpublished tapes of his interview did not involve significant burdens on the press, including “intrusions upon speech or assembly” or “prior restraint” on “what the press may publish.” Id. (quoting Branzburg, 408 U.S. at 681-82). Ultimately, the Court determined that it did not need to “decide what standard is constitutionally required in order to overcome a criminal defendant’s substantial right to obtain relevant evidence,” since it was clear that the defendant “met his burden under the Shield Law.” Combest, 4 N.Y.3d at 346-47. First, the Court determined that it was “beyond dispute that a defendant’s own statements to police are highly material and relevant to a criminal prosecution.” Id. at 347. Similarly, “the voluntariness of a defendant’s statement is highly material and relevant when put in issue by the defense,” 32 because, even after a motion to suppress has been denied, a defendant may still argue and present evidence at trial suggesting that his statements were involuntarily made. Id. In fact, when that defense is raised at trial, “‘the court must submit such issue to the jury under instructions to disregard such evidence upon a finding that the statement was involuntarily made.’” Id. at 347-48 (quoting CPL 710.70). Thus, this Court concluded that the defendant had made a clear and specific showing that the tapes of his statements to police were “highly material and relevant, and critical or necessary to his defense.” Combest, 4 N.Y.3d at 349. This was so because the tapes “would support” both the defendant’s involuntariness claim, as well as his justification defense, at trial. Id. at 348. In particular, according to the defendant, the tapes would show “the various ruses undertaken by the interrogating detective in an attempt to induce him to confess,” the “extent to which he would have felt physically intimidated,” and “the visibility of the detective’s holstered gun.” Id. at 348-49. They would also show defendant’s statements to police supporting his justification defense, including statements tending to rebut the People’s theory that he was the initial aggressor. Id. The Court held that the Shield Law’s “critical or necessary” prong was satisfied, even though the defendant “was provided with the brief videotaped statement” he gave to the prosecutor in which he stated that he had “been forced to return fire after being shot at.” Id. at 341, 344, 350. As this Court explained, the defendant “was entitled to present evidence, if he could, that he had been coerced into making a statement through 33 a variety of techniques employed during the earlier interrogation period.” Id. at 349. Moreover, even if “no single alleged threat [by police] was sufficient by itself to establish” that the defendant’s statement “was involuntary,” the Court recognized that “a jury’s assessment of the voluntariness of defendant’s statements may, as defendant contends, involve more than an analysis of the words spoken to and by him,” but also the “intangibles” that could only be found “on the tapes.” Id. Although the Court did not make explicit what standard it was applying when determining that the sought-after tapes were critical or necessary under the Shield Law, it is clear from the Court’s analysis that it was not requiring the defendant to show that his defenses would “rise or fall” on the sought-after material before ordering disclosure. After all, as the Court noted, the defendant was provided with his videotaped statement to the prosecutor in which he stated that he had been forced to return fire in self- defense. Combest, 4 N.Y.3d at 349. Thus, he could have presented his justification defense even without the tapes of his prior police interviews. Nonetheless, the Court determined that when the challenged evidence is highly relevant to claims of involuntariness and justification, a criminal defendant should not be barred from using it. Clearly underpinning the Court’s analysis was a determination that a criminal party’s “substantial right to obtain relevant evidence,” Combest, 4 N.Y.3d at 347, outweighed the press’s interest in avoiding the “practical burdens” resulting from the compelled disclosure of its nonconfidential news material. O’Neill, 71 N.Y.2d at 527. 34 As the Court has repeatedly noted, when faced with a litigant’s request for information from the media, a court must balance the competing interests of the party seeking the material against the press’s interest in refusing disclosure, including the “extent, if any, that press activities will be affected.” See, e.g., O’Neill, 71 N.Y.2d at 529; Combest, 4 N.Y.3d at 346. The Combest Court concluded that the criminal defendant’s interest in presenting all relevant and material evidence in support of his defenses at trial outweighed the press’s interest in divulging nonconfidential material. And, that was true even though the defendant could technically have presented his defense without the sought-after material. Thus, Combest plainly held that, in the context of a criminal proceeding, the Shield Law’s “critical or necessary” prong can be satisfied by a showing that the sought-after information “support[s]” a criminal litigant’s theory at trial, even if the litigant has some other evidence supporting that theory. Combest, 4 N.Y.3d at 346, 348. B. As demonstrated, this Court has repeatedly recognized that, when considering whether to compel disclosure of nonconfidential news material, a court must consider and weigh the requesting party’s need for the information against the burdens to be borne by the press in producing such information. O’Neill, 71 N.Y.2d at 529; Combest, 4 N.Y.3d at 346. Here, similar to a criminal defendant’s interest in presenting a defense at trial, the People have a profound interest in the successful prosecution of the most 35 serious of criminal charges: the sexual assault and felony murder of a four-year-old girl that went unsolved for 22 years until investigative efforts finally led to defendant. Of course, the United States Supreme Court has recognized a “historic[al] commitment to the rule of law,” which is “nowhere more profoundly manifest than in our view that the twofold aim (of criminal justice) is that guilt shall not escape or innocence suffer.” United States v. Nixon, 418 U.S. 683, 708-09 (1974) (citation omitted). Indeed, because “[w]e have elected to employ an adversary system of criminal justice in which the parties contest all issues before a court of law,” there is a “fundamental and comprehensive” need “to develop all relevant facts in the adversary system”: The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts. The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence. To ensure that justice is done, it is imperative to the function of courts that compulsory process be available for the production of evidence needed either by the prosecution or by the defense. Nixon, 418 U.S. at 709. Thus, in Nixon, the United States Supreme Court rejected the President’s claim that his “general privilege of confidentiality of” his communications outweighed the “fair administration of criminal justice,” cautioning that “exceptions to the demand for every man’s evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth.” Id. at 709-13. Notably, it was this strong “public interest in law enforcement and in ensuring effective grand jury proceedings” that led the Supreme Court to decline to recognize a reporter’s privilege from divulging confidential sources in response to grand jury 36 subpoenas in Branzburg, 408 U.S. at 690-91 (“the Constitution does not, as it never has, exempt the newsman from performing the citizen’s normal duty of appearing and furnishing information relevant to the grand jury’s task”). And it has been the same interest in effective law enforcement and criminal prosecution that has led other federal courts to reject reporters’ claims of privilege for both confidential and nonconfidential information. See Sterling, 724 F.3d at 498-99 (recognizing “compelling public interest in effective criminal investigation and prosecution” when concluding reporter could be compelled to identify his confidential sources); United States v. Moloney (in re Price), 685 F.3d 1, 16 (1st Cir. 2012) (noting that “strong interests in law enforcement precluded the creation of a special rule granting reporters a privilege which other citizens do not enjoy”); Gonzales, 459 F.3d at 170-72; In re Shain, 978 F.2d 850, 853-54 (4th Cir. 1992) (in holding that journalists could be compelled to give testimony regarding nonconfidential news material, noting that the “government clearly retains an interest in the testimony to rebut any suggestions of [the defendant’s] innocent intent”); see also United States v. Smith, 135 F.3d 963, 971-73 (5th Cir. 1998) (recognizing that public’s “great” interest in “convicting its criminals” when refusing to recognize a journalist’s “qualified privilege not to disclose nonconfidential information in criminal cases”). Without question, New York’s protection for journalists is broader than the federal privilege and includes a qualified privilege for nonconfidential news material. But, unlike the protection for confidential sources, the protection for nonconfidential sources is not absolute. Rather, it must occasionally yield to overarching interests of 37 litigants in criminal proceedings, and that is certainly true where the burden to the journalists is not undue and where the sought-after testimony and evidence is critical or necessary to a material issue at trial. O’Neill, 71 N.Y.2d at 529; Combest, 4 N.Y.3d at 346. C. In this case, as the trial court found, the People have made a “clear and specific” showing sufficient to overcome the Shield Law’s qualified privilege protecting the unpublished, nonconfidential news material Robles gathered when interviewing defendant Conrado Juarez in jail about the charged murder. At the outset, it bears repeating that the information sought from Robles does not involve a confidential source, as the People seek only her testimony and notes regarding defendant’s statements to her concerning the crime. And, the People established that Robles’ testimony and notes in that regard were: (i) “highly material and relevant” in the criminal proceeding, (ii) critical or necessary to the maintenance of the People’s case against defendant, and (iii) not available from any other source. See Civil Rights Law § 79-h(c). As the trial court explained, Robles was the only person at the interview with defendant, so the evidence is not available from another source. Moreover, due to the decomposition of A ’s body and the manner in which defendant discarded her- naked in an abandoned cooler that was left in a wooded park for an unknown amount of time-investigators were unable to identify her when they first discovered her in 1991 and were acutely hindered in their contemporaneous investigation into her death: 38 They did not know where the child had been killed and could not search the scene of her murder for forensic or eyewitness evidence. Although it was clear from the condition of A ’s body that she had been murdered and subjected to anal sodomy, the semen was too degraded to obtain a DNA profile. Indeed, it was not until 22 years later that a tip led investigators to defendant. By that time, witnesses were no longer available or their memories had faded and the investigators’ ability to find corroborating evidence was severely hampered. And, unlike in a civil case, the People cannot depose defendant and thus must rely on his voluntarily-given statements to police and civilian witnesses. Under the unique circumstances of this case, defendant’s confession to law enforcement officials is, without question, the most crucial piece of evidence against him. Thus, the trial court soundly concluded that where the critical issue to be determined at trial will be the voluntariness of defendant’s confession, an issue on which the People bear the heavy and exclusive burden of proof, all of defendant’s statements about the charged crime, including those made in an orchestrated, post- arrest meeting with a reporter, are highly material and relevant to the issue of guilt, as well as “critical or necessary” to the People’s proof at trial (R10-11). Moreover, as Justice Wittner also recognized, defendant had a stake in obtaining the materials, too. After all, once Robles testified to defendant’s published statements, he would undoubtedly have a right of access to her unpublished notes for use on cross- examination. 39 In concluding to the contrary, the Appellate Division apparently did not disagree with the trial court’s findings that the People had satisfied the first and third prongs of the Shield Law’s three-part test, i.e., that the subpoenaed material was “highly material and relevant” and “not available” from another source. Rather, the Appellate Division disagreed with the trial court’s conclusion that the material was “critical or necessary” to the People’s case. In the Appellate Division’s view, since the People had a “videotaped confession” by defendant “that has been found admissible at trial and that includes statements consistent with other evidence in this case,” 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,’” Robles’ testimony about defendant’s statements to her was not “critical or necessary” to the People’s proof at trial (R237-38). That analysis was fundamentally flawed. First, the Appellate Division’s conclusion that Robles’ testimony and notes concerning defendant’s statements were not critical or necessary ignores the realities of a criminal trial, the nature of the People’s evidence against defendant, and this Court’s own precedent. Indeed, it blinks reality to suppose that in any criminal case, and especially in a murder case, any and all statements made by the defendant pertaining to the crime are not fundamentally critical to the prosecution. See Combest, 4 N.Y.3d at 347 (“It is beyond dispute that a defendant’s own statements to police are highly material and relevant to a criminal prosecution”); see also Arizona v. Fulminante, 499 U.S. 279, 292 (1991) (“A defendant’s confession is ‘probably 40 the most probative and damaging evidence that can be admitted against him’”) (White, J., dissenting) (citation omitted); see also People v. Bonie, 141 A.D.3d 401, 403-04 (1st Dept. 2016) (“Here, the outtakes of an interview of defendant taken at a detention center in which he discusses, inter alia, the charges against him and his relationship with the victim, are on their face ‘highly material and relevant,’” as well as “‘critical or necessary’ to the People’s effort to prove motive, intent, and consciousness of guilt, since they contradict defendant’s earlier statements to police”); People v. Mercereau, 24 Misc. 3d 366, 368-72 (Supreme Court, Richmond County 2009) (concluding that outtakes of the defendant’s statements to news reporter were “critical or necessary” under the Shield Law, and recognizing that “a defendant’s statement in a criminal case is always relevant”); see also Cuthbertson, 630 F.2d at 148 (“verbatim and substantially verbatim statements held by CBS of witnesses that the government intends to call at trial” were, “[b]y their very nature,” both relevant and “not obtainable from any other source,” as they were “unique bits of evidence that are frozen at a particular place and time”). That is especially true in a case like this one, where defendant’s incriminating statements to law enforcement officials, and, potentially, to others outside the law enforcement community, are the most vital proof of his guilt. And the importance of a defendant’s statements to civilian witnesses, even in their role as journalists, is further heightened where, as here, the defense at trial will turn, by necessity, on whether the admissions the defendant made to law enforcement were voluntary and truthful. Every criminal defendant has a right to challenge before the petit jury the voluntariness of his 41 confession, even when the trial court has previously ruled at a Huntley hearing that the statements are admissible. See CPL 710.70(3); see also Combest, 4 N.Y.3d at 348. Of course, where the issue of voluntariness is raised at trial, the law imposes on the People the heaviest of burdens: to prove to the jury the voluntariness of the statements beyond a reasonable doubt. See People v. Huntley, 15 N.Y.2d 72 (1965). Against this backdrop, it was Justice Wittner who correctly ruled that the People were entitled to Robles’ testimony and notes about her interview with defendant. First, there was a remarkably close affinity between defendant’s statements to law enforcement and the account he provided Robles, such that Robles’ testimony would severely undercut any claim that defendant’s statements to the police and the prosecutor were coerced. Specifically, as was the case with his confession to law enforcement officials, defendant admitted to Robles that he knew the child victim in this case; defendant explained that she was the daughter of his uncle, who gave her to defendant’s sister to raise in her apartment in Astoria (R20-25, 85-87). Similarly, defendant admitted to Robles, as he did to police, that he often spent the night in his sister’s apartment with his sister and A : “He said he sometimes stayed over in Astoria when he had to be at work early at a job in Queens” (R20-25, 85-87). Critically, defendant also admitted to Robles, as he had to police and the prosecutor, that he had helped dispose of A ’s body by stuffing it in a picnic cooler and transporting it to a park (R20-25, 85-87). 42 That admission to a crime, along with all his other incriminating statements to Robles, were essential to the People’s trial position that defendant’s precinct statements were not the product of an overborne will. See Combest, 4 N.Y.3d at 347-49 (“a jury’s assessment of the voluntariness of defendant’s statements may, as defendant contends, involve more than an analysis of the words spoken to and by him,” including other “intangibles” concerning the defendant’s admissions); People v. Craver, 150 Misc. 2d 631, 632-33 (County Court, Albany County 1990) (in concluding that the People were entitled under the Shield Law to present reporter’s testimony regarding the defendant’s statements to her about charged murder, noting the “uniqueness of each admission” by a defendant “and their admissibility under the laws of New York State,” as well as criminal defendants’ rights in this state to challenge before the petit jury the voluntariness of a confession at trial, even after a motion to suppress has been denied). Moreover, even defendant’s denial to Robles that he had smothered the child during an act of anal sodomy-a denial that was accompanied by defendant’s insistence to Robles that his precinct admissions to felony murder were the product of police overreach-was highly relevant and vital to the People’s case. After all, the People are entitled to introduce false exculpatory statements made by a criminal defendant where they tend to reflect consciousness of guilt. See, e.g., People v. Johnson, 61 N.Y.2d 932, 934 (1984) (defendant’s manslaughter conviction based upon legally sufficient evidence, including the “statements made by defendant [that were] properly received in evidence [and] disclosing a pattern of inconsistent, and sometimes false, exculpatory stories 43 [which] permitted the jury to draw an inference of defendant’s consciousness of guilt”); People v. Eisenman, 39 N.Y.2d 810, 811 (1976) (“Evidence of guilt is substantially and convincingly established by the defendant’s statements to the police and examining pediatrician that he was ‘just teaching the kids karate.’”); see Treacy, 639 F.3d at 43 (defendant’s “false exculpatory statements” to reporter “provide circumstantial evidence of guilt”). And here, defendant’s denial to Robles was particularly damning. Four days after his confession to law enforcement officials, defendant elected voluntarily to give an interview to a newspaper reporter, outside the presence of his lawyer, and to use the interview as a platform to distance himself from his own confession. In addition to showing his awareness of his own guilt, those denials to Robles displayed a level of sophistication and calculation that bore directly on any claim that he had been overwhelmed by police just a few days earlier.9 Indeed, this case is a prime illustration of how a criminal defendant can manipulate the criminal justice system by granting an interview to a reporter for publication that facially undercuts his prior admissions, and then rely (from afar) on the reporter’s claim that she is immune from court process. 9 Similarly probative is defendant’s statement to Robles that he told his sister to get some kind of documentation, even if unnotarized, from the girls’ mother (R20-22). That statement revealed a certain knowledge and experience on the part of defendant that would undercut any trial defense that he was coerced by law enforcement officials into giving a false confession. 44 Justice Wittner correctly refused to countenance any effort that converted from a shield to a sword the reporter’s qualified privilege for nonconfidential sources. D. In reversing Justice Wittner’s holding, the Appellate Division relied on the fact that the People have a videotaped confession from defendant that is corroborated by some other evidence. Implicit in that analysis is the misguided view that because the People have legally sufficient evidence of guilt in this case, they cannot make an adequate showing under the Shield Law that additional proof from Robles is either critical or necessary to their case. That analysis is also consistent with Robles’ ill- founded position-asserted before both Justice Wittner and the Appellate Division- that the “critical or necessary” prong of the Shield Law mandates that the litigant’s claim or defense must “virtually rise or fall” on the subpoenaed information (R104-05). But this Court in Combest rejected such an expansive interpretation of the Shield Law’s qualified privilege for nonconfidential news material. In particular, the Court appreciated that the defendant in Combest “was provided with the brief videotaped statement he ultimately gave to the prosecutor”-in which he set forth a justification defense that he had been forced to return fire. But the Court also recognized that the outtakes of his earlier interviews with law enforcement would tend to bolster his justification defense and could be used to support a claim that his statements were involuntary. Under those circumstances, the Court held that the reporter’s outtakes were “critical or necessary” to his defense and that he was entitled to present such 45 evidence. Combest, 4 N.Y.3d at 349. In other words, this Court concluded that even though the defendant had sufficient evidence to allow him to advance a trial defense, his request for the outtakes did not impinge on the qualified protections afforded to the reporter under the Shield Law. That same logic applies to the People’s fundamental right to present all relevant evidence at trial, consistent with the public’s strong interest in effective law enforcement and prosecution. To be sure, some courts, including the Second Circuit Court of Appeals, have construed New York’s Shield Law’s “critical or necessary” prong to require a showing that the litigant’s case “rises or falls” on the sought-after evidence. See, e.g., In re Application to Quash Subpoena to National Broadcasting Co. v. Graco Children Products, Inc. [“Graco”], 79 F.3d 346, 351 (2d Cir. 1996); accord Baker v. Goldman Sachs & Co., 669 F.3d 105, 108 (2d Cir. 2012) (citing Graco for the proposition that a claim must “virtually rise[ ] or fall[ ]” on the subpoenaed information for it to be “critical or necessary” under the Shield Law); Matter of Perito v. Finklestein, 51 A.D.3d 674, 675 (2d Dept. 2008) (same); Flynn v. NYP Holdings, 235 A.D.2d 907, 908 (3d Dept. 1997) (same).10 10 In civil cases in which the federal court’s jurisdiction is premised upon the diversity of the parties, the existence of a privilege is to be determined by reference to state law. See In re American Tobacco Co., 880 F.2d 1520, 1527 (2d Cir. 1989); see also Fed. R. Evid. 501. Thus, in Graco, the Second Circuit was called upon to apply the Shield Law when reviewing a district court’s order on a motion to quash a subpoena seeking “production in New York of the out- takes from a Dateline program produced in New York City by NBC, a New York-based broadcaster.” Graco, 79 F.3d at 351. 46 But this Court has never adopted such a stringent interpretation of the Shield Law’s protections for nonconfidential materials. Indeed, the Combest Court clearly declined to impose such a heavy burden on criminal litigants seeking nonconfidential materials. And, even the dissent in Combest-which concluded that the defendant had not made a sufficient showing to overcome the Shield Law’s qualified privilege-stated, “I would not give the statutory words ‘critical or necessary’ a draconian reading,” and “would not hold that a person seeking to compel disclosure under that statute must show that the evidence he seeks is likely to be decisive in the case.” Combest, 4 N.Y.3d at 352-53 (Smith, J., dissenting). Nor is there any basis for this Court to overrule its precedent and embrace such a “draconian” reading of the statute. To begin, the courts applying the “virtually rises or falls” standard noted above-the Second Circuit in Baker and Second and Third Departments of the Appellate Division-relied on the Second Circuit’s holding in Graco. Graco in turn relied on a decision from the United States District Court for the Southern District of New York, United States v. Marcos, No. 87 CR 598, 1990 WL 74521 (S.D.N.Y. June 1, 1990), which had first applied the “virtually rises or falls” standard to the qualified privilege for nonconfidential news material. See Graco, 79 F.3d at 351 (citing Marcos, 1990 WL 74521, at *3, for proposition that a claim must “virtually rise 47 or fall” on the sought-after information for it to be “critical or necessary” under the Shield Law).11 But, Marcos involved a federal criminal prosecution, and the district court was applying federal law, not the New York state Shield Law, when determining whether the government had overcome the reporter’s privilege for nonconfidential news material. See Marcos, 1990 WL 74521, at *2-4. In particular, in concluding that the reporter’s privilege had not been overcome, the court cited the Second Circuit’s holding in another federal criminal prosecution, Burke, 700 F.2d 70. See Marcos, 1990 WL 74521, at *4 (citing Burke when concluding that the government “has not shouldered its ‘demanding burden’ of demonstrating that the broadcast excerpt is necessary or critical to its case”). Thus, to the extent some courts have relied on Marcos for the proposition that the Shield Law requires application of the “virtually rises or falls” standard, those decisions are of no persuasive authority. In fact, in the years following Marcos, the Second Circuit determined that it had “once set too high a bar for overcoming the [reporter’s] privilege in criminal cases and consciously lowered that bar.” Treacy, 639 11 Graco also cited Sommer v. PMEC Assocs. & Co., No. 88 Civ. 2537, 1991 WL 73858, at *3 (S.D.N.Y. May 1, 1991), which itself relied solely on Marcos for the proposition that the Shield Law’s “critical or necessary” prong related to nonconfidential information requires a showing that the litigant’s claim “virtually rise[s] or fall[s] upon the admission or exclusion of the material sought.” Sommer, 1991 WL 73858, at *3. In addition, Graco cited Doe v. Cummings, No. 91-346, 1994 WL 315640 (Supreme Court, St. Lawrence County Jan. 18, 1994), which- without citing any source-concluded with respect to the “critical or necessary” prong, that the “test is not merely that the material be helpful or probative, but whether or not the defense of the action may be presented without it.” Id. at *1. For the reasons explained in the text, these courts’ interpretation of the “critical or necessary” prong is simply incorrect. 48 F.3d at 43; see also Gonzales v. National Broadcasting Co., 194 F.3d 29, 34 n.3 (2d Cir. 1999) (observing that Second Circuit’s Burke decision “undervalued the needs of criminal defendants”). And, the Second Circuit now holds that to overcome the reporter’s privilege for nonconfidential material recognized under federal law, a litigant need only show that the material is “of likely relevance to a significant issue in the case” and “not reasonably obtainable from other available sources.” Treacy, 639 F.3d at 42-43. Beyond all that, practical and policy concerns weigh heavily against interpreting the Shield Law’s “critical or necessary” prong to require criminal litigants to show that claims virtually rise or fall on the sought-after information. After all, in this case, the People plainly have a prima facie case against the defendant Juarez, given his confession and the corroborative proof. And that is presumably true in every criminal case in which a grand jury returns a legally sufficient indictment against a defendant. If the rule were that a party seeking a journalist’s testimony and notes cannot obtain them unless the party can demonstrate that its case would fail as a matter of law without the journalist, then the Shield Law’s protection for nonconfidential material would in almost all cases be as absolute as the protection for confidential sources. Plainly, the legislature did not intend any such outcome when it enacted the Shield Law’s qualified privilege, and this Court followed suit in Combest. E. The Appellate Division’s holding was erroneous for two additional reasons. First, in concluding that the People had failed to show that Robles’ testimony and notes 49 were not “critical or necessary,” the court cited the “tradition of this State of providing the broadest possible protection to the sensitive role of gathering and disseminating news of public events.” (R237-38) (citing O’Neill, 71 N.Y.2d at 527). The People agree that New York has a long tradition of providing the utmost protection of freedom of the press, including “significant protection” for nonconfidential news material. Holmes, 22 N.Y.3d at 307, 315. Nevertheless, as the Court has also recognized, the interests of the news media, even though significant, “must always be balanced” against the competing interest of the party seeking disclosure, here, the People. O’Neill, 71 N.Y.2d at 529; see Smith v. Daily Mail Publishing Co., 443 U.S. 97, 106 (1979) (although courts “have shown a special solicitude for freedom of speech and of the press, we have eschewed absolutes in favor of a more delicate calculus that carefully weighs the conflicting interests to determine which demands the greater protection under the particular circumstances presented”) (Rehnquist, J., concurring) (citations omitted); Criden, 633 F.2d at 358 (“Courts must tread carefully on the hallowed ground where these basic concerns, the free flow of information and the fair administration of criminal justice, conflict.”). In concluding that Robles’ interests prevailed, the Appellate Division gave no apparent consideration to the People’s own “need for discovery,” O’Neill, 71 N.Y.2d at 529, or to their “fundamental and comprehensive” right to “develop all relevant facts” before the jury to ensure that “guilt shall not escape or innocence suffer.” Nixon, 418 U.S. at 708-09; see also Gonzales, 459 F.3d at 179 (“It is axiomatic that in seeking [ ] 50 testimony and evidence, the prosecutor acts on behalf of the public and in furtherance of the ‘strong national interest in the effective enforcement of its criminal laws”) (internal citation omitted). Certainly, Robles has an interest in not divulging her nonconfidential news material. But, that interest is not unduly burdened in this case. After all, this is not a case in which Robles was on the scene of an accident or crime, conducting immediate interviews of witnesses and developing an independent narrative of the event from her own investigative efforts. Instead, Robles sought out an interview with an already incarcerated defendant charged with murder and solicited his views of the crime and of his prior confession. In this context, where the sought-after information-Robles testimony and notes-does not remotely involve confidential sources, and the burden to Robles is minimal, the qualified privilege must yield to the criminal litigants’ paramount interests in presenting all relevant evidence and effective cross-examination. Thus, the Appellate Division’s apparent conclusion that Robles’ interests outweighed all others was clearly incorrect. Moreover, here, the trial court took great pains to protect Robles’ news-gathering interests. See O’Neill, 71 N.Y.2d at 529 (court should consider “the extent, if any, that press activities will be affected and, if so, whether such is justified by the interest to be served”). Indeed, aware of her duty to determine the scope of cross-examination given the competing interests, Justice Wittner set reasonable, prospective limits on the scope 51 of cross-examination that would be determined once the court had reviewed Robles’ notes in camera (R11). Thus, this case will involve: [N]o intrusions upon speech or assembly, no prior restraint or restriction on what the press may publish, and no express or implied command that the press publish what it prefers to withhold. No exaction or tax for the privilege of publishing, and no penalty, civil or criminal, related to the content of published material is at issue here. The use of confidential sources by the press is not forbidden or restricted; reporters remain free to seek news from any source by means within the law. No attempt is made to require the press to publish its sources of information or indiscriminately to disclose them on request. Branzburg, 408 U.S. at 681-82. In short, any intrusion on Robles’ newsgathering abilities is virtually non-existent. She is not being asked to divulge confidential sources or to testify about her newsgathering or reporting activities. She is not being told what to publish or not publish. Rather, she is being asked to testify and to produce notes only about defendant’s nonconfidential statements to her about the charged crime. By contrast, the People’s interest in presenting all relevant evidence to the jury in this unproven murder case is “fundamental and comprehensive.” Nixon, 418 U.S. at 708-09. In concluding that the inconvenience to Robles from being asked to share nonconfidential material was greater than the People’s interest in the fair administration of justice, the Appellate Division erred. Finally, it is clear that the Appellate Division failed to give any deference to the trial court’s factual findings when reversing its order denying Robles’ motion to quash. As a general matter, it is well settled that a trial court order on a motion to quash a 52 subpoena is reviewed for an abuse of discretion. See, e.g., Kapon v. Koch, 23 N.Y.3d 32, 39 (2014) (“The Appellate Division applied the correct standard when it held that the trial court did not abuse its discretion in denying petitioners’ motion [to quash the subpoena under CPLR 2304] on the ground that they failed to meet their burden of establishing that their deposition testimonies were irrelevant to the California action”); accord Baker, 669 F.3d at 110 (reviewing a “district court’s ruling on a motion to quash a subpoena … for abuse of discretion”) (internal quotation marks and citations omitted). Here, the trial court, after presiding over the criminal case for months and sitting as factfinder at the Huntley hearing, denied Robles’ motion to quash. Thus, when it determined that Robles’ testimony and notes were “critical or necessary” to the People’s proof at trial, the court was uniquely well-versed in the evidence to be presented and issues to be decided at defendant’s criminal trial. In concluding otherwise, the Appellate Division failed to give appropriate deference to the trial court’s evaluation of the factual issues. See Kapon, 23 N.Y.3d at 39. Thus, its decision should be reversed for this reason as well. * * * The Appellate Division’s decision reversing the trial court’s order denying the motion to quash was erroneous. In determining, contrary to the trial court’s finding, that Robles’ testimony and notes were not “critical or necessary” to the maintenance of the People’s case against the defendant Juarez, the Appellate Division misapplied this Court's precedent, failed to balance the parties' competing interests, and failed to afford deference. Thus, the decision and order should be reversed. CONCLUSION The order of the Appellate Division should be reversed. HILARY HASSLER DIANE N. PRINC MELISSA MOURGES Assistant District Attorneys Of Counsel June 9, 2017 Respectfully submitted, CYRUS R. VANCE,JR. District Attorney New York County BY: ---=---~--1/c_--z__ ... DIANE N. PRINC Assistant District Attorney 53 PRINTING SPECIFICATIONS STATEMENT I certify that the word count for this brief is 13732, excluding the Table of Contents and Table of Authorities. The word processing system used to prepare this brief and to calculate the word count was Microsoft Word 2016. The brief is printed in Garamond, a serifed, proportionally spaced typeface. The type size is 14 points in the text and headings, and 13 points in the footnotes. DIANE N. PRINC Assistant District Attorney