On appeal from Superior Court of New Jersey, Law Division, Hunterdon County, L-736-02.
Before Judges King, Lisa and Fuentes.
The opinion of the court was delivered by: Fuentes, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Plaintiff Courier News moves, under R. 2:5-6(a), for leave to appeal the decision of the Law Division denying its application made pursuant to the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13. Plaintiff seeks access to tape recordings of all 911 calls made on February 14, 2002, in connection with the death of Costas Christofi at the home of Jayson Williams. These recordings are in the custody of defendant Hunterdon County Prosecutor's Office as evidence in the case of State v. Jayson Williams. On March 4, 2003, we granted the motion of the New Jersey Press Association to intervene as amicus curiae. Williams did not participate in the proceedings before the Law Division and did not make an application to intervene here. On March 12, 2003, we heard oral argument on plaintiff's motion. We now grant leave to appeal *fn1 and summarily reverse. R. 2:2-3(b); R. 2:8-3(b).
In the early morning hours of February 14, 2002, an emergency 911 telephone call was placed from the home of former professional athlete Jayson Williams in connection with the death of Costas Christofi. Immediately thereafter, law enforcement authorities concluded that the death was a homicide and seized the tape recording of the 911 call as evidence in the criminal investigation. On May 1, 2002, a Grand Jury indicted Williams on various criminal charges including aggravated manslaughter, hindering apprehension, tampering with a witness and tampering with evidence. *fn2
On July 8, 2002, a Courier News reporter formally requested a copy of the 911 tape from the Hunterdon County Prosecutor's Office. On July 10, 2002, defendant denied the request based on the following reasons:
1. The release of the information requested will jeopardize the continuing investigation and prosecution of the pending, post- indictment case of State v. Williams, and 2. The release of the information requested would be otherwise inappropriate because it is evidence in a pending criminal prosecution;
3. The release of the information requested would be otherwise inappropriate because its release would impair the constitutional rights of victims. N.J. State Constitution, Article 1, Paragraph 22, N.J.S.A. 52:4B-36. 4. The release of the information requested would be otherwise inappropriate because its release might impair the right of the defendant to obtain a fair trial. N.J. State Constitution, Article I, Paragraph 10. By letter dated October 22, 2002, counsel for the Courier News again requested from defendant a copy of the 911 tapes. Defendant again denied the request.
On December 18, 2002, plaintiff filed an action in lieu of prerogative writs and an order to show cause with verified complaint seeking access to the 911 tape as a government record under OPRA. *fn3 The Law Division judge entered the order to show cause on December 18, 2002, and made it returnable on January 24, 2003.
On the return date of the order to show cause, the court construed plaintiff's application as one seeking "a mandatory preliminary injunction." Invoking the authority of Crowe v. DeGioa, 90 N.J. 126 (1982), the court then concluded that plaintiff had not shown irreparable harm because: "Defendants do not take the position that they refuse to release the 911 tapes, but indicated that the tapes will be released very shortly when one of the tapes will be admitted in evidence [in the criminal trial]." The court also found that granting plaintiff's request would alter the status quo.
The pretrial media coverage has been extensive. To publish the transcripts of the tapes on the eve of jury selection would have a potential to make it more difficult to select a fair and impartial jury panel. The argument that a foreign jury could be ...