An order resolving a nonparty’s motion to quash a subpoena issued prior to the commencement of a criminal action is final and appealable. However, in Matter of People v. Juarez (Robles) (Ct. App. 6/27/18) (per curiam) (4-3), a closely divided Court of Appeals held that no direct appellate review is authorized for an order resolving a nonparty’s motion to quash a subpoena issued after the commencement of a criminal action.
This case arose out of a criminal prosecution in which the People charged Conrado Juarez with one count of second-degree murder for the killing of “Baby Hope,” a four-year-old girl. In 1991, the victim’s partially decomposed body was found in a cooler near the Henry Hudson Parkway. She had been sexually assaulted and suffocated, but the semen investigators discovered was too degraded for analysis. For two decades, police could not identify the victim or the killer. In 2013, officers tracked down the victim’s mother, and from there, identified defendant as the probable killer. After his arrest, defendant Juarez gave a videotaped confession in which he admitted to strangling the victim during a sexual encounter.
After giving the videotaped confession and while in pre-trial detention, the defendant gave an interview to nonparty Frances Robles, an investigative reporter with the New York Times. The Times subsequently published a story based on this interview, in which the defendant offered an alternate account of the victim’s death that differed in some respects from the video-taped confession.
Before defendant’s Huntley hearing, the People obtained two subpoenas meant to compel Robles’ participation in the case: one for Robles’ own testimony and one for Robles’ written interview notes. Robles moved to quash both. The trial court granted the motion with respect to the Huntley hearing but denied the motion with respect to the criminal trial itself. The Appellate Division reversed, concluding that the People had not made the necessary showing to compel disclosure in light of Civil Rights Law 79-h(c), which protects journalists and their sources. Significantly, the People did not allege that the orders were non-appealable, so the Appellate Division addressed the merits without any discussion of jurisdiction. The Court of Appeals granted the People leave to appeal.
In reaching its conclusion on the jurisdictional issue, the Court of Appeals majority relied on the general rule that, absent specific statutory authorization, interim orders arising out of a criminal proceeding are not appealable. The underlying purpose of this rule is to “limit appellate proliferation in criminal matters[.]” CPL article 450 governs criminal appeals. Article 450 contains no explicit authorization for direct appellate review of orders denying a nonparty’s motion to quash, so no such review may be had.
The majority relied upon the plain text of the CPL, which governs “[a]ll criminal actions and proceedings.” CPL 1.10(1)(a). A “criminal action” begins when the “first accusatory instrument is filed against a defendant in a criminal court,” CPL 1.20(16), and a “criminal proceeding” includes “any proceeding which (a) constitutes part of a criminal action or (b) occurs in a criminal court and is related to a . . . criminal action . . . or involves a criminal investigation.”
Based on the plain language above, the majority reasoned that an order resolving a motion to quash a subpoena issued prior to the filing of an accusatory instrument is appealable because such an order is essentially civil in nature and thus not subject to the rule restricting direct appellate review of orders in criminal proceedings. On the other hand, once a “criminal action or proceeding” has commenced, any order resolving a motion to quash a subpoena is not directly appealable because the order is part of a “criminal action or proceeding,” and there is no explicit statutory authorization for such an appeal in CPL article 450.
Judge Rivera authored a lengthy dissent, joined by Judge Wilson, in which she categorized the majority opinion as “a reversal of our settled law and against our State’s strong historical protections of journalists and the newsgathering process.”
In Judge Rivera’s view, the general rule restricting direct appellate review of orders arising out of criminal proceedings is inapplicable because motions to quash subpoenas, even when connected to a criminal investigation, are civil in nature and therefore not governed by the CPL. Thus, the critical distinction is not when the order resolving the motion to quash is issued but rather the status of the movant in a criminal proceeding. The limit on interlocutory appeals in criminal cases is partially justified by the opportunity for a direct appeal. However, the option of a post-trial direct appeal is unavailable to nonparties, so the rule against interlocutory appeals is inapplicable. Judge Rivera points out that the practical consequence of the majority’s holding is to leave Robles between a rock and a hard place. She can (1) comply with the order and jeopardize her reputation as a journalist; or (2) refuse and risk being held in contempt.
Additionally, Judge Rivera argued that, because Robles is a journalist who interviewed defendant in the course of newsgathering, New York’s Shield Law, Civil Rights Law 79-h, provides statutory authority for a journalist’s appeal from the denial of a motion to quash a subpoena in a criminal proceeding.
Because Judge Rivera would have held that the order in question was appealable, she next turned to the merits of the People’s argument that they “made out a clear and specific showing that Robles’ testimony and notes are critical or necessary to the People’s case.” To determine whether the people made the required showing under the “critical or necessary” prong, Judge Rivera applied a test articulated by the Second Circuit, under which “the party seeking disclosure must establish that ‘the claim for which the information is to be used virtually rises or falls with the admission or exclusion of the proffered evidence'” (citations omitted). Under this standard, Judge Rivera concluded that the People failed to satisfy the “critical or necessary” prong because the People had defendant’s video-taped confession and nothing defendant said during his interview with Robles shed any light on whether the confession was voluntary or coerced.
Judge Fahey also dissented, joined by Judge Wilson. Judge Fahey’s dissent focused on article I, section 8 of the New York Constitution, which provides that “[e]very citizen may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press.” New York’s Shield Law, enacted in 1970, was meant to protect journalists from contempt or other punishment for refusing to disclose confidential sources or other information. Like Judge Rivera, Judge Fahey emphasized New York’s long tradition “of providing the utmost protection of the freedom of the press.”
Judge Fahey would have held that the State Constitution grants a journalist the right to appeal an order denying a motion to quash a subpoena issued in a criminal action, “irrespective of any privileges granted by the Legislature now or in the future” in the Criminal Procedure Law.
In response to the People’s argument that, in lieu of a right to appeal, Robles could refuse to comply and then appeal any contempt order, Judge Fahey wrote:
It would be a bewildering irony for our criminal justice system to require a journalist to be held in contempt in order to assert those protections before an appellate body when the Shield Law itself expressly protects journalists from a contempt adjudication. Journalists should not be required to disobey the law, and potentially commit a criminal act, in order to vindicate the rights afforded to them by the State Constitution and by the legislature itself.
The majority noted that the Legislature is free to step in and provide for an appellate avenue in these types of cases.
However, despite repeated recommendations from the Advisory Committee on Criminal Law and Procedure that the CPL be amended to allow for an expedited appellate process for non-parties aggrieved by the denial of a motion to quash a subpoena in a criminal action, the legislature has not adopted that approach. Unless the legislature acts, CPL article 450 does not authorize a nonparty’s appeal under these circumstances. In the absence of statutory authorization, an order resolving a nonparty’s motion to quash a subpoena issued after the filing of the accusatory instrument in a criminal proceeding—contrasted with an order issued before the criminal action begins—is simply not appealable. We are not unsympathetic to Robles’s policy-driven arguments, echoed by our dissenting colleagues, concerning how best to balance the interests of the expedient resolution of criminal actions against the right of a nonparty in a pending criminal action to seek appellate review of an order denying a motion to quash a subpoena when the State’s longstanding interests in protecting the newsgathering role of reporters, or other weighty third-party concerns, are implicated. Nor do we minimize the significance of the rights provided by article I, § 8 of the New York State Constitution. However, the right to appeal is not premised on the nature of the challenge waged, and this Court cannot “create a right to appeal out of thin air” (Laing, 79 NY2d at 172). “That the [l]egislature has not authorized an appeal from an order in a criminal proceeding is conclusive; and any arguments for a change in the practice . . . must be addressed to [that forum]” (Facebook, 29 NY3d at 251 [internal quotation omitted]).
(cleaned up). (BD/LC)