Opinion
2868N.
Decided February 17, 2004.
Order, Supreme Court, New York County (Brenda Soloff, J.), entered on or about June 10, 2003, which denied petitioner's motion to unseal materials submitted in support of a search warranted executed on or about May 16, 2003, unanimously affirmed, without costs.
David A. Schulz Gayle C. Sproul, for Petitioner-Appellant.
Michael S. Morgan, for Intervenor-Respondent.
Before: Buckley, P.J., Sullivan, Williams, Gonzalez, JJ.
We reject respondent's argument that this appeal is not properly before us. This Court properly acquired jurisdiction over the matter since petitioner commenced an original proceeding in this Court ( see CPLR 506[b][1]; 7803[2] and [4]), respondent was given permission to intervene in the matter and the proceeding was converted to a direct appeal ( see CPLR 103[c]; Matter of Newsday, Inc. v. Soloff, 308 A.D.2d 395).
In determining whether the public or media has a qualified First Amendment right of access to criminal proceedings, the significant considerations are whether the place and process have historically been open to the press and general public, and whether public access plays a significant positive role in the functioning of the particular process in question ( see Press-Enter. Co. v. Superior Ct., 478 U.S. 1,8). Since the warrant application process has historically not been open to the public and public access "would hinder, rather than facilitate the warrant process and the government's ability to conduct criminal investigations" ( Times Mirror Co. v. United States, 873 F.2d 1210, 1213; and see Matter of Baltimore Sun Co. v. Goetz, 886 F.2d 60, 64-65; United States v. Cianci, 175 F. Supp.2d 194, 200-201; but see Matter of Search Warrant for Secretarial Area Outside of Office of Gunn, 855 F.2d 569, 573-574 , cert denied 488 U.S. 1009), we conclude that the warrant records sought are not subject to the qualified First Amendment right of access. Even assuming, arguendo, that there is a qualified constitutional right of access to warrant records, such a right would be outweighed if there is substantial probability that disclosure would compromise an ongoing investigation ( see Search Warrant for Secretarial Area Outside Office of Gunn, 855 F.2d at 574; Matter of Search Warrants in Connection with Investigation of Columbia/HCA Healthcare Corp., 971 F. Supp. 251, 253; Matter of Search Warrants for Natl. Bldrs. Corp., 833 F. Supp. 644, 646), a circumstance that would justify denial of access in this case.
Access under the common law was also properly denied ( see People v. Burton, 189 A.D.2d 532, 535-356; and see Nixon v. Warner Communications, Inc., 435 U.S. 589, 597-598). The interests advanced by respondent in opposing disclosure — the protection of the identity of a confidential informant and to avoid compromising an ongoing investigation — are substantial and are not outweighed by the generalized public interest in the warrant application process ( see People v. Castillo, 80 N.Y.2d 578, 583, cert denied 507 U.S. 1033; People v. Darden, 34 N.Y.2d 177, 181; and see Times Mirror Co., 873 F.2d at 1217-1219; United States v. Cianci, 175 F. Supp.2d at 202).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.