Stenger & Finnerty, Buffalo (
Joseph M. Finnerty of counsel), for Buffalo News.
Nixon Peabody LLP, Buffalo (
Mark A. Molloy of counsel), for WGRZ-TV and others.
Hodgson Russ, Buffalo (
Paul I. Perlman of counsel), for LIN Television Corporation.
Eliot Spitzer, Attorney General, Buffalo (
Barbra A. Kavanaugh of counsel), for State of New York.
Michael A. Battle, United States Attorney, Buffalo (
Kathleen Mehltretter of counsel), for United States of America.
Frank J. Clark, District Attorney, Buffalo (
Joseph J. Marusak of counsel), for People of the State of New York, plaintiff.
Bruce A. Barket, Garden City, and
John V. Elmore, Buffalo, for James C. Kopp, defendant.
OPINION OF THE COURT
MICHAEL L. D'AMICO, J. The defendant, James Kopp, is charged under Indictment No. 98-2555-S01 with two counts of murder in the second degree. It is alleged that the defendant, on October 23, 1998, caused the death of Dr. Barnett Slepian by shooting him. There has been considerable interest by the media in this case and numerous applications for audio-visual coverage have been made to this court. There is no mechanism under current New York law to entertain those applications, other than part 131 of the Rules of the Chief Administrator of the Courts (22 NYCRR). On its face section 52 of the Civil Rights Law, however, renders part 131 without effect with respect to those applications. On December 13, 2002, under Indictment No. 98-2555-S01, the Buffalo News (hereinafter the News), as proposed intervenor, moved for an order of this court allowing still photographic trial coverage. At the same time, under Index No. 13043-2002, the News and one Robert Kirkham, a staff photographer (hereinafter Kirkham), initiated a separate action for declaratory judgment that section 52 of the Civil Rights Law is unconstitutional in barring media coverage of courtroom proceedings. Named in the declaratory action as defendants were the State of New York, George E. Pataki as Governor, Eliot Spitzer as Attorney General, Frank J. Clark as District Attorney of Erie County and James C. Kopp as defendant in People v Kopp under Indictment No. 98-2555-S01. On December 17, 2002, WGRZ-TV, Gannett Broadcasting and NBC News (hereinafter NBC) moved this court for access to videotape and/or televise the trial and related court proceedings in the instant prosecution as intervenors and, in their own separate declaratory action, under Index No. 13181-2002, also moved for a judgment declaring that section 52 of the Civil Rights Law is unconstitutional as it applies to this request. The defendants named in this action mirror those named in the above-referenced declaratory action brought by the News. On December 23, 2002, LIN Television Corporation (hereinafter LIN), owners and operators of WIVB-TV, also moved for that jurors, not sequestered during a trial, would, firstly, be unable to discern for themselves what testimony is important and, secondly, be aware of news coverage in general of a high profile criminal case on which they serve as jurors. Just as these arguments have been unsuccessful in limiting or preventing camera use in those jurisdictions which have opted to allow cameras, they are unsuccessful here in defendant Kopp's attempt to persuade the court that his rights to a fair trial and due process would be adversely affected. This court concludes that still photography is not covered by Civil Rights Law § 52. Nonetheless, this court will consider the positions of the parties and other participants in the criminal action as well as the News in determining the scope of photographic coverage. In virtually every jurisdiction which allows coverage—and consistent with the opinions of most courts—the trial judge is given broad discretion to determine when to permit camera coverage. In New York, when the experiment with cameras was authorized by the Legislature, the Chief Administrator of the Courts issued rules governing coverage (Rules of Chief Administrator of the Courts [22 NYCRR] part 131). Those rules will apply to the use of still photography during the trial of James Kopp in this court. Consistent with those rules, this court will issue an order which may contain restrictions on the use of still photography after consultation with the applicant and the parties. For all the foregoing reasons, the court hereby denies all applications to declare section 52 of the Civil Rights Law unconstitutional, dismisses, in full, each and every declaratory action brought in respect thereto and denies permission to videotape and/or televise the judicial proceedings in the case of People v Kopp. As to the applications of intervenors NBC and LIN, the motions are denied in all respects. As to the application by the News, to allow access for still photographic coverage, the motion is granted, subject to the further order of this court.