GANNETT CO. v. DEPASQUALE
55 A.D.2d 107 (1976)
In the Matter of Gannett Co., Inc., Petitioner, v. Daniel A. DePasquale, as Judge of The Seneca County Court, et al., Respondents
Appellate Division of the Supreme Court of the State of New York, Fourth Department.
December 17, 1976
Nixon, Hargrave, Devans & Doyle (
Robert Bernius of counsel), for petitioner.
John M. Sipos ( Alan Marrus of counsel), for Daniel A. DePasquale, respondent.
Thomas L. Jones ( Alan Marrus of counsel), for Kyle E. Greathouse, respondent.
Stuart O. Miller ( Alan Marrus of counsel), for David R. Jones, respondent.
Walter J. Ward, District Attorney, ( Alan Marrus of counsel), respondent pro se.
MOULE, J. P., SIMONS, DILLON and GOLDMAN, JJ., concur.
Petitioner Gannett Co., Inc. seeks an order of prohibition pursuant to CPLR article 78 vacating and prohibiting enforcement of two orders of the Seneca County Court which excluded the public and press from a pretrial Huntley
Petitioner owns and operates two daily newspapers and one television station in the Rochester area. In the course of its news reporting activities petitioner assigns reporters to cover criminal proceedings that are expected to generate interest among the general public. People v Kyle Edwin Greathouse and Davis Ray Jones is one such proceeding currently in the pretrial stage in Seneca County. Defendants Greathouse and Jones were indicted for the crimes of murder, robbery and larceny. It was alleged in the indictment that Greathouse and Jones robbed and murdered a fishing companion and dumped the victim's body into Seneca Lake. Thereafter the defendants fled the jurisdiction and were eventually arrested in Michigan. Subsequently they were returned to New York to face criminal charges. The case against the defendants is somewhat unique in that the alleged victim's body had not been recovered when the indictments were returned, and the record indicates that the corpus of the alleged victim is still missing. Another unusual circumstance is that one of the defendants is 16 years old.
The defendants subsequently filed a motion pursuant to CPL article 710 to suppress certain statements attributed to them. The Huntley hearing was conducted before Honorable DANIEL A. DePASQUALE, Seneca County Court Judge, who ordered that the hearing be closed to the public and press upon the request of the defendants. In the first order the court gave as its reasons for closure that the Huntley hearing "is not the trial of the matter. Certain evidentiary matters may come up in the testimony of the People's witnesses that may be prejudicial to the defendant, and for those reasons the Court is going to grant both motions". During the hearing petitioner sought a postponement to argue its right to be present and to have access to transcripts of the completed portion of the hearing. Petitioner's request was denied and the hearing remained closed. Thereafter petitioner moved to vacate the closure order nunc pro tunc and for immediate access to the completed stenographic transcripts of the suppression hearing. The County Court once again denied the relief requested "on the theory that under the special and unusual circumstances — one of these two defendants being 16 years of age — that there was a reasonable probability of prejudice to the defendants, and the Court therefore found it necessary to
This proceeding presents a basic conflict between petitioner's First and Sixth Amendment right to attend criminal proceedings and publish information with regard thereto and the constitutional right of the defendants to receive a fair trial before an impartial jury. The issue is whether the public and representatives of the news media may be excluded from a pretrial suppression hearing concerning the voluntariness of alleged confessions and admissions on the ground that an open hearing would create a reasonable probability of prejudice to the defendants.
The accused in a criminal prosecution has a constitutional right to a public trial (US Const, 6th Amdt; Duncan v Louisiana,
Precisely because "the public at large has a vital stake in the concept of a public trial" (People v Hinton, supra, p 73), the circumstances under which a trial court may order closure have been closely circumscribed. Closure is permitted only in "unusual circumstances" (People v Hinton, supra) or upon a clear showing that such an order is required to prevent "a serious and imminent threat to the integrity of the trial" (Matter of Oliver v Postel, supra, citing Craig v Harney,
The exclusionary order entered by the County Court is not supported by a showing of compelling factual circumstances. Respondent DePasquale indicated that the reason for closure was the reasonable probability of prejudice to the defendants. The only factual reason given is that one of the defendants is 16 years of age. There is no further reason given. No finding was made concerning the extent of pretrial coverage in the case, the impact which the disclosures would be expected to produce, the size of the prospective jury pool in Seneca County nor as to any other matter that would indicate with a reasonable amount of certainty that the defendants could not receive a fair trial in Seneca County without a closed Huntley hearing. The closure order entered here lacks the requisite factual basis necessary to overcome the right of the public and press to open judicial proceedings.
There is a second infirmity in the County Court order which overshadows the right of the public to open judicial proceedings. The exclusionary order entered here infringed petitioner's First Amendment rights in that it constituted a violation of the right of the press to publish free from unlawful governmental interference. It is clear that a closed trial order restricts media access to information ordinarily made available to the general public. By denying access to the media a Trial Judge can effectively prevent the publication of testimony or other information deemed prejudicial to the accused. It is this feature of the instant closed trial order that is
The fact that such an order "constituted a novel form of censorship cannot insulate or shield it from constitutional attack" (Matter of Oliver v Postel,
The County Court excluded the public and press from the Huntley hearing due to the reasonable probability of prejudice to the defendants inherent in conducting an open proceeding. The prejudice to which the County Court was referring was the possibility that massive pretrial publication of the defendants' confessions and incriminating statements would infect prospective jurors with such prejudice against the defendants, conscious or unconscious, that they could not receive a fair trial in Seneca County. (See People v Pratt,
Prior restraint on speech and publication is "the most serious and least tolerable infringement on First Amendment rights" (Nebraska Press Assn. v Stuart,
Applying these standards to the order under review we find that the "heavy burden imposed as a condition to securing a prior restraint" has not been met here (Nebraska Press Assn. v Stuart, supra, p 570). Respondent made no findings with regard to the nature and extent of pretrial news coverage. Nor did Judge DePASQUALE inquire into whether other measures would be likely to mitigate the effects of unrestrained pretrial publicity. And no determination was made as to how effectively the exclusionary order would operate to prevent the threatened danger (Nebraska Press Assn. v Stuart, supra, pp 562-567). The record in the instant case clearly does not support the entry of respondent's restrictive order barring the public and press from the defendants' Huntley hearing. The reasons set forth by the County Court cannot justify the violation of First Amendment rights evident here.
Petitioner has also asserted a due process right to notice and a hearing prior to the entry of exclusionary orders which are directed at the press to prevent the publication of matters prejudicial to the defendant in a criminal proceeding. Such rights have been accorded to the press in cases involving direct prior restraints (Matter of New York Times Co. v Starkey, supra; United States v Schiavo,
The record shows that the closure order under review was entered specifically to prevent petitioner from disseminating the inherently prejudicial disclosures that inevitably follow
For the reasons stated, the orders of the County Court should be vacated and the petitioner should be granted immediate access to the stenographic transcript of the pretrial Huntley hearing.
Application unanimously granted without costs. Orders vacated and matter remitted to Seneca County Court in accordance with Per Curiam opinion.
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