IN RE: GRAND JURY SUBPOENA DATED JANUARY 26 (2000)

In consolidated proceedings pursuant to CPLR 2304 to quash two Grand Jury subpoenas, the petitioners appeal from so much of an order of the Supreme Court, Suffolk County (J. Jones, J.), dated January 31, 2000, as denied, in part, their respective applications to quash the subpoenas, and directed Elizabeth Moore and Scott Feldman to appear before the Grand Jury for the limited purpose of verifying the accuracy of certain published statements.

ORDERED that the order is affirmed insofar as appealed from, with costs;  and it is further,

ORDERED that the stay granted by decision and order on motion of the court dated February 3, 2000, is vacated forthwith.

During a Grand Jury investigation of alleged official misconduct involving the Sheriff of Suffolk County, the District Attorney of Suffolk County subpoenaed Elizabeth Moore, a reporter employed by Newsday, and Scott Feldman, a newscaster employed by News 12 Long Island, both of whom had interviewed the Sheriff.   Newsday and News 12 Long Island applied to quash the subpoenas on the ground that the reporters possessed a qualified Constitutional privilege, as well as a statutory privilege under Civil Rights Law § 79-h, commonly known as the Shield Law.

After a hearing, the Supreme Court limited the subpoenas to require only “testimony in response to questions aimed solely to authenticate for admission as evidence before the Grand Jury the videotape broadcast * * * and the newspaper article”, and otherwise denied the applications.   The Supreme Court based its decision on the assurances of the District Attorney that the inquiry would be limited to “narrowly worded questions designed to satisfy the ministerial act of validating certain alleged admissions made during the interviews which were published by the media”.   The District Attorney promised that the newscaster would be asked only if he was depicted on the videotape and if the portion of the interview that was broadcast “fairly and accurately” recorded the Sheriff's statements, and the newspaper reporter would be asked only if she interviewed the Sheriff on a certain date and if she “fairly and accurately” reported his statements.   In addition to the foregoing limitations, the Supreme Court directed the District Attorney to refrain from inquiring about any conversations that were not published or broadcast.

The petitioners contend that the subpoenas should be quashed in their entirety because the requested information is protected by a qualified reporters' privilege under the Federal and State Constitutions.   The petitioners have abandoned any claim of protection under the Shield Law.   Under the particular circumstances of this case, there is no basis to invoke the constitutional privilege recognized by the Court of Appeals in O'Neill v. Oakgrove Constr.,71 N.Y.2d 521, 528 N.Y.S.2d 1, 523 N.E.2d 277, with respect to the limited questions permitted by the Supreme Court (see, Tofani v. State of Maryland, 297 Md. 165, 465 A.2d 413), since the material in question has already been broadcast or published.

MEMORANDUM BY THE COURT.