Lifetime's Legal Argument

7/29/2019 Lifetime's Legal Argument

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SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION, THIRD DEPARTMENT XCHRISTOPHER PORCO, Clinton County Clerk'sIndex No. 2013/190Plaintiff-Re spondent,

LIFETIME ENTERTAINMENT SERVICES, INC.Defendant-Appellant.

EMERGENCYAFFIRMATION OFMICHAEL J. GRYGIEL

X

MICHAEL J. GRYGIEL, an attomey admitted to this court, affirms under penalties ofperjury:

1. I am a shareholder in Greenberg Traurig, LLP, and counsel in this proceeding toDefendant-Appellant Lifetime Entertainment Services, Inc. ("Lifetime"). I submit thisaffirmation in support of Lifetime's emergency application to vacate or stay pending appeal atemporary restraining order entered on March 19,2013 (the "March 19 Order"), pursuant to anAmended Order to Show Cause issued on that date by New York State Supreme Court, ClintonCounty (Robert J. Muller, J.S.C.). A copy of the March 19 Order is annexed hereto as Exhibit A.

2, The accompanying order to show cause is an emergency because it seeks tovacate or stay pursuant to CPLR 5518 an order that otherwise enjoins the national broadcast onMarch 23, 2013, of a film about the trial and conviction of Plaintiff-Respondent ChristopherPorco. The March 19 Order is a classic prior restraint in violation of the First Amendment to theUnited States Constitution, arrd Article 1, Section 8 of the New York State Constitution, andotherwise in violation of law. Lifetime seeks the accompanying order to show cause becauseabsent immediate relief its significant constitutional rights will be irreparably harmed and otherirreparable injury infl icted.

VS.


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3. In addition, the injunction against Lifetime was entered before the Court properlyobtained personal jurisdiction over Lifetime. Plaintiff has yet to serve his summons andcomplaint, copies of which are annexed hereto as Exhibit B. Plaintiff s Amended Affidavit,Memorandum, and Proposed Order to Show Cause were mailed to counsel for Lifetime andreceived on February 15,2013. (A copy of plaintiffs application for injunctive relief is attachedas Exhibit C for reference.) By letter dated March 4,2013, the lower court informed counsel thatLifetime had until March 11 to respond to plaintiff s motion; in hling its response, Lifetimenoted that it had not yet been served and specif,rcally reserved its objection to the lack of service,

4. Lifetime has today filed its Notice of Appeal and Pre-Calendar Statement, and hasserved them on Plaintiff-Respondent by f,rrst class mail, postage pre-paid. A copy of the Noticeof Appeal and Pre-Calendar Statement, as filed with Supreme Court are annexed hereto asExhibit D.

5. I have been unable to notify Plaintiff-Respondent of this request for emergency relief,or to seek his consent to its entry, because he is currently an inmate at the maximum securityprison at Dannemora, New York. Because Lifetime will suffer irreparable injury if the March 19Order is not stayed pending appeal, and because the order is a patently unconstitutional priorrestraint upon speech, advance notice of this request to Plaintiff-Respondent should be waivedunder the exigent circumstances presented.

6. No prior request has been made for the relief sought herein. \Dated: March 20,2013Albany, NY

2

ALB 1676573v1 J el


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EXHIBIT A


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SUPREME COI'RT ONTITE STTE OANEWYORKCOIJNTY OS CLINTOT\.CI{RISTOPTIERPORCO,Platntlfi

.against-IIETIME ENTERTAINMENT SERV CES, LLC., DeJndaht, *-xSuprorue Cour Clinton Couoty. ' ,llon, R, J, Mullor, Justioo Presiclirlgutcld 0r{ofil ro

AIVTENDEDOR.DNR TO SHOW CAUSEIndox No. 2013.190fff. {0. 0{-r. rw. $l

upon roading tefafaviru{r+tue tll| uv of ffbtUtl 2013, rho supporting Mtflldmomorandum of law, and upon tho summos and comphint herl. *LET the defordurt orthcir ottorrys show couso beforo this court at amodontorm, to bo hsldin aDdfortlre0ouutyofClhtonon /lil fb, Yllfl - .attheClitonCounrySuprernsCourrsrcliriron

137-Margarct Stret, Platbburgfr, New Yok 12901 at q: l_ o'clock ithsI tr+r [tt[ .as'cdun-sel c{n be bead:WIY a prolimiaary njurotion should uot be grantcd horoin pursuaut to Scctlon 6301 of ttro Civil

Prootico Law aqd Rrilos, enjoiniug defeudal it subsidiaries ad relatcd corporations and their rcspectiveofficors, agcuts, sowant$, emptoycos and ttomcys, and all other porsons in aotve conccrt or participation withtheur, from producng, distributing, tolovising, otraring for salo, solioting ofibrs for the purchase of, oradvefising tho movicl "Romoo Killcr: Ths cluistophor florco Story," (the "MOVIB"), or any item nooriunotion witJr whicb tho namc of the plaintff Christophcr Porco, or ry part thoreo{ is uscd, and omotharwise exploiting plaitrdffChristopherPoroo's namq personality, or likrcss, orusing sanre for advortisingpurposcs or purposes of tado during tbo poudeuoy of tbrs aotirr, it ie:

ORDERIDT that pending te hsaig of this motion, tho dofendnt, its subsidiis and relatedcorporatms herein, thcir officers, agorrt6, scfl/nts cmpecs, and attomeye and all pere ons in ativs oonoort,or pafioipation $'ith thom be and bereby are, enjoined from distibuting, olovisig, oftring for salo, solioitiugofers fortho pruchaso o{ or adverdsingthc'MO\E" or any itcm in oonjunction wittr whictrthe name oftfc* \e llvrnl nct uni,ilail t1ttl, t'lftllffdllr1 i,l 0/f0ll'll0fl 0f c[,flt/lfl T0.Dhy, li|.'t ltda tlltt'h 1,lxtl) Md {1r (lty 0r cMr[r f0/t,0 rllfi 1'lni|ft rlh|d fifiinl ut{d [1[lci \, Ntt,

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plaiutiff Chrietopher Porooo cr any part thorco{, io uscd, atd from othsrwiso exploitiqg C}uutopher Poroo'snamq personolity, or likenols, or using sarrie for or oftrado. 'fl{ clurt'onN0iln! l 1r r|tr:d it e,r hrfi vi Tw ddl't ,1Tch{d nren,fXDIr:RED-llrat.plahtift-Christop}er-l+ler"r-furnirLr-unlc+t*kjrg,lo.lrrlu-tborqr}.irr t+6.rrof--$.--:-*onditioncdtluthjstptdler-$+rpe"ifiFi*findlytleronnhdtlatdei+notrrtitletlto*prolimirmr.inlrrrtior^'wilt rtrgtetlre'de-Lbntlat+llhngor nntl"vrntswlrictrmq bu-sastnhrcdttca*tn*hcrwli

ORDERJD, that sufEcicrt cauee appearing tboroforq lct scrvlco of a copy of this Amended Ordoito thow Causs anil all papors upon wbioh it is bassd, by delivery to the Now York Seorotary of Stato, in irscapacity as registod agent for ervcc of procoss for tho dofendan! thus upon the dendan on or befors theJ 1-- Aay of t'l UC- 2013, bo daanred good and $rfficientsoniootbsroof, *Doted: il.fch tq . y|.t ,

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Irrcscntly a,T'sul(TRO) eljoui:rg e Clu.i(hereinnlterthn n j,201 eaccordancs with Uniform Rulee for Trial Coufsded with notice of ths application and the- It i by now well os t ilp,ahgaring for a prelirninary p orsor dauage wlll rcsrrlt urles L6301.i se Pantel v Worlonents Clrcle/Arbetter Ring ltranch 1,8], zg A'D?II g'!7 "91B [2001]).

FJcre, delcndant frst conlends thnt monetary clnnragcs arc ulffcieut to redr.esr arry allegcdhf irt anrl, oonscrqrrent, plaiutiff wll not suffer nnrediate and incparablc injury in rhe 6b"eneof a'lrdo, 'l'ho courtn howcver, ir rrot por*uaclqcl, It has provioru;-beon hclril udercircrnrstlnccs similat to thoae herein, tlat"[t]o dsny the r{unctioo sougbt would pemrit a clear violation of the civil Righrsf,aw and geprive plaintiffof one of the tatutory remedios, thus limitng hin t ttreless satisfaotory remedy of a damage suit, Defeudants knew or should ave koru

ADDENDI]MTO AI\4EI\DED gRpDR TO SHOW CAUSE

tftat thov wers including plainti.ffas a character, by naure, at thei own rs since9g:qturr t quired his written consont', (Dwgont Colutmbla Broadcasttng Sys,(29 Misc 2d3941396 [Sup Cr, bfy Counry 196l]).Defendant next contends that the gsuance of a TRO rndor the clrcumstances heein"would set a dangerous precedeut[, as a]nyone who did not want his story recouuted - whethor apolitioian angry about repotting on his pt or, as here, a convictcd mrrdorer - could clain thcsory was icaton." With that said, howevedefendant .and,,as-1-nlt, the Court finds thisargumeut'[he Court has there'foro gtanted the requestcd TRO pending the rctu6 date of the modon.

Daled: March 11 ,zotsT c

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EXHIBIT B


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SUPRAME COURT OF THE STATE OF NEW YORKCOUNTY OF CLINTONCHRISTOPHER PORCO,I'1.intffi

F[LEDST/MMONS

-agalnst- rndexNo, /-/ 7AI-IFETIME ENTE RTAINMIINT SERVICES, LLCDefer,rlanl.

To the aboveramed defbndant:You are hereby sumnroncd to appear in this ction by serving a notice of.'aprearancc on plaintiff. rvithin

twenty days after:thc scrvicc ofthis snmmons, exclrLsivc ofthe clay of seruicc, or withinthirty darys af'tcl servccis complcte if the summons is not pcrsonally delivcrccl to you r,vitln the Statc of Nerr,v York Iu casc


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SIJPREME COURT OF TIJT ST'ATJ] OF NNW YORKCOUNTY OF CI,INTON 'taCHRISTOPHER I'ORCO,PlainrifJ"

FILEEFtB 4 ?013CLINTON COUNTYOLRKS OFFICE

VERI:FIND COIUPLA"INT'-agarnst- Inclc.x No, O/,*,/ ? O

Ll FETINIE EN'r'ERTAINMENT SEIVICES, LL ClD


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6. That on or about Decemler l, 2012 plairrtiff learned that defendarrt, Lifetime BntcrturentServices, LLC, through its r.vholly owned subsidi:rry Lifetirne Television Network, is engagecl iu productionancl rluned widestrlreacl telecasting within this state a.nd elsewhere of a "rnode fbr T.V," nrovie entitled:"l{omeo Kller: The Chrstopher Porco Story." (Thc "MOVIE") (see, Exhibjts "4"-"8").

7. Thatthe"MOVIE"isaknor,virlgaudsubsturtiallyfictio:ralizedaccontrt, "lrrspircdbyatruestory,"(Exhibit "C"), about plairtifT and lhe cvents that led to his incarceratiou, lJpcln iufcrmrartion rLrd bclicf.defendant is utiliziug a screeuplay, and has retainecl the scrvices of octors to porray plairrt"if aud otlters, anclm so doing appropriates plaintiff s name, likencss, nnd peirsonrlity for prrrposes of pLofit.

I '['hat appearance ofplaintiff s tunre ad likcn-css inthc "MOVIE" and relatcd prornotioual tnateraland advcrtisements curscs plairrtiff to be identified in connection with defcndarrt's contmcrcial p::oductiol.

9. Tllali plarntiff has not givcn conscnl to, or in any way auflrorizcd the use of his -nzwrc and lilccnessin defbrdant's "MOVIE" und lelated material,

10, 'Ihat defendant took plaintrfl"s nan.Lc and lkcuess, and is rlrurning to use thcnr in thc "MOVIE"lvithotrl plairiffl s conseril and authoriz"rtion.

I t , Ttrat on Dcccmbcr 20, 2012 plaintifi caused a demand in writing to be made nporr the VicePresiclsnt of Produstion at Lifbtime Tclevision Network, with a copy to dcfendaurX, (Exhibit "F"), to ccase anddsslstirthe afbremetrhionedunauthorizcd appropriation of planrtiff s nune and likeness f:rpurposes ofprofit.

12. Tlu:I on Jauuary '22,2013 plalrrtiff reccivccl a rcspcrnse from r:ounsel fcrr the clcfbudaul, whcreirrcounsel clrjLuedthrtthe "MOVIE," despito ils rcliance on inragincd clialogue and evetrts, rudthe use of a 'scriptnnd actors, is "editorial," and is not being made for commercial purposes, Brscd on this logic, couutscl opinedthat tlie "MOVIE" does not fall within thc purview of the Civil Rights l.aw, which prohibits cournrcrcialappropriations of a persclu's tamo or likeness. (Exhibit "G")

13. The usc by defenclant of plairrtiff"s narne, likeness, alrd porsonality for pnrposcs of tradc,odvertisiug and comrnercial benetrt, was withoutthe conscnt, writtcn or oral, of plairrtiffor ulyoe authorizsdto givc surch consct, was entirely unauthorized, and constitutes a violafion of socticns 50 and 5l of the CivilRights Lar,v of the Stats of New York,


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14, Defendaut has violated sections 50 ancl5I of the Civil fuglrts Law of the Statc of New Yorkknowrgly, r.villfrlly, and iri bad faith.

15. By reason of the forcgoirrg aud pursuaut to section 51 oftlie Civil Riglts Law of the State of Newil York, plaintiff denrands that defcndant bc enioined fi'om :my fiirthcr rmarrthorizcd production. exhibiticn,distribution, or otber use or exploitation oftho "MOVIE", and of any other related tnaterial or advcrtisertrcntscontaining plaintiff s ntrnre, likertess, or personality.

WIIEREFORE, the plaintiff demands,iudgemetrt agaiust the defondant for:

1, A permanerf iqjurtctior njoining tJrc defendant, ifs subsidiaries ulcl relatcd corporartions and thcirrespeclivc officers, agcnts, servants, enrployecs, and attomeys, aud ail other pcrsons itr colrcerl or participattonwith tlrenr, from producing, dis[rjbuting, televisiug, offering fbr salc, soliciting oflbrs tbr the purchase of, oraclvcrtrsingthe"MOVIE"oranyotheritcrninconjuuctionwiththenamcofplaiutiffCbristophet Porco,oranypartthcreof, is used, and from other-wise cxploingplaiutiff Christophcr Porco's lttnle, persorrality or likencss,or nsing sune for advcrtising plrrposes or for purposes of trerde;

2. Sqch other iurd further relief as the Corrrl may dcent just ancl propcr undor all the ciLcutnstartces,ncluding, but not linrited to, plaintiffs costs and disburscments in tliis action,

Drtcd:,lanunry 29, 2013

PorcoPlaintif, )rl-,t'eClinl.on Correctional F'acilityP,0, Box 2001Dannemora, NY 12929


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VERIFTCATION

STATE OF NEWYORK )COUNTY OF CLINTON ) ss:TOWN OF DANNEMORA)CHRISTOPHER PORCO, being duly sworn, deposes and says that ho is the plaintiff.inthe within

action; that he has read the foregoing complaint arrd knows the contents thereof; that the satne is true to hisknowledge or int'ormation and belief; that to those rnatters alleged on infonnation ancl belief, he believcs themto bc tnre,

Clrristopher Porc


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EXHIBIT C


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SUPREME COT'RT OF THE STATE OF NE\ry YORKCOUN1'Y O}'CLINT'ON __*-_-YCHRISTOPHER PORCO,

Plaintif,-against- AMENDED AFFTDAVTT

Index No. 2013-190LIFETIME ENTERTAINMENT SERVICES, LLC.Defenclanl.

STATE OF NEW YORK )COUNTY OF CLINTON ) ssrTOWN OF DANNEMORA)Christopher Porco, being duly sworn deposes and says;

1. I aur the plaintiffin the above-entitled action. I anr personally farniliar with all the facts andcrcumstances hereinaft er stated.

2. I anmaking this affidavit in support of a prelirninary inunction ald temporary restraining orderenjoirng defbndant, its subsidiaries and related coqrorations and their respective officers, agents servants,etnployees and attorneys, and all other persons in active concert or participation with them, from producing,distributnrg, televising, offerhrg for sale, soliciting offirs for the pur^chase of, or advertising the "MOVlEl' orany othel itcm in conjunction with which the name of the plaintiffChristopher Porco, or any part thereof, isused, and from otherwise exploitingplaintiff Christopher Porco's name, personalily, orlikeness, ornsirrg sarnefor advertising purposos or purposes of trade while this motion is pending and during the pendency of thisaction.

3. This reliefis sought by application for an order to slrow cause rather than by notice ofurotionbecause of the urgent need for prompt protection of niy riglrts under Civil Rights Law Section 5l and in orderto prevent irreparable irlury upon violation thereto. Upon infonnation and belief defendar plans to televisethe "MOVIE" on March 23"r, while this action is pending. (Exhibit "H")

4. This arnended nrotion replaces,the previous application for a prelirninary injunction submitted tothis CoLut, rs I have leamed that the "MOVIE" is scheduled to air on March 23"l, (Exlibit "I{") and thns atemporary restraining order is ncccssary to protoct n:y rigl'rts while this motion is pendrng, in the hopes the


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m,emorallclum of law annexed hereto.

8. On tis day I am sending a copy of this motion, and all papers upon which this action is based, tothe attorney for the defendant in accordance with unifonn Rule 202.7(f).

9. I pray therefore that the Order to Show Cause in the fonn prefixsd hereto be signed, and that upotrthe returu date of said order to show cause the applications thereby brought on for hearing be granted.

Dated:February 12,2013

Plainttff, pro-se

THIS

Qualified in ClintonCommission /!


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EXIIIBIT 664))


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Lifetime To Do Chris Porco Movie Wth Matt Barr, Eric McCormaclDavidovichBy I{ELLIE AtREt'lA rrloay Homw , 12 @ l:28pm [,srrys: Erlc llccormucl Lifetime, Romeo Killer: The Chris Porco Story

EXCLUSIVE: Lifetlme is turning another infamous real-life crimestory into a TV movie with Rorneo Killer: The Chris Porco Story.Matt Barr, Eric McCormack and Lolita Davidovich star in theproject, inspired by the true story of Christopher Porco, wo wasconvicted of kilfing his father and attempting tomurder his mother. Written by Edithe Swensenand to be drected by Norma Bailey; RomeoK//er centers on beloved, handsome college student Chris Porco (Begirl's dream in the small town of Delmar, NY- Porco was accused ofhls father and disfguring his mother, Joan (Davidovich), in a savagemade all the more shocking when a local police detective (Mcconmother identified Chris as her attacker. Also cast in the movie ls En(Anowl, wo plays Lauren Phillps, a young love interest of the accumaintained his innocence. The lllm is executlve produced by Steve Solomos, Harvey Kahn, Michael JatFilms and llene Kahn Power of Kahn-Powers Pictures.This marks Perception star McOormack's return to Lifetime where he toplined another ripped-from-the heils Clerk Rockefeller? lt also brings Barr back to A+E Networks after his breakout role n the blockbustelHatfields & McCoys. Qorco's story has been extensively covered on TV including a one-hour documrHours Mystery and an pisode of the truTVs Forensic F/es. Additionally, a 2009 episode of CBS' CS,featured an attack similar to the one Porco was convioted of.

Gct Dedlinc ncw and lcrt FREE to your inbor...Email Arklress..,

'{ I-ouinfomdon i sfe mdmn.This adic tvas pinted from lttp://www.deadIoe.coEl20l2/11/lifetime-todo+hrls-porco-nnvie-witlnstt-ban+lc-mccolnnck-h

\

rlRlated: Prmetine Emmy I Season 5 | Season I I Episode Gude I Desperate Hour Search

1112/2013 9:08 PM


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E,XHIBIT 66 ))


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Deadline Hollywood: Porco murder movie plannedSfF roporlUdsod 7: f 3 E n fimdy, OFr S, 2D'12

The story of onc of the Capital Region's mosl noloriorrc crimes nppnrrntly will be oming to ltre smll ssrn as t mnde.for-television movle, DedlincHollywood reported Friday that couvicted mutdercrChristopbcr Pon:o will be nrtad Mtt Barrin fetime networkfllck about him killiug hisfather aod disfiguring his mother i ar ax flttsckPorco was ed aud couvicted of beating hs parents with an ax as thcyslept in te bcdmom of ther srurbon Delmar home. Joan and Peter Porto, whodied om his iljuries, were found blutlgeonetl on Nov. 15, zoo4, setting in motlo an inlensive zr-month investigation and the most widely followednrudercase on econil ln tbis region.Pomo, who public rleclaeil bis inocence at bis zoo6 seutcuciug, io serving 5o yeare lo Iife in slate pison.the flm's reported title is 'Romeo Klllcn Tte Chris Porco Stor/ ond it 'centers o beloved, haoilsome college studeut Chris Porco (Barr), wbo was everygitt's drem in the small towu of Delmar,"According Deadine Hollywood, the scrcenplayfor the novie was witten by Edithe Swensen and it will b alictealby Norma Bailey,Iso starriug will be Eric M{ormack as o polce detcctiv and Llita }vjdovich as Joan ?orco. lte report does uol neution atr air dale for te rovie uorwhethertle cet indudes a chamcter inspired by tlefense atlomeyTcrence L Kindlon.corDmet o thls story at http://blog.timesunion.com/cime- Staffreport

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Lawbeat: Porco movie takes libertieswith charactersBy Robert GavlnPublisH 4:38 pm, Tuesday, Decenber 4,2012

So the Christopher Porco story is headed for the small screen. Is what actually happenedheaded there too?Porco, notv 29, was convicted in zoo6 of the Nov. 15, 2oo4, ax killing of his father Peter andnear-fatal maiming of his mother, Joan It is arguably the most high-profile murder case inthe history of Albany County.Filming on "Romeo Killer: The Chris Porco Story" began last week in Vancouver, BritishColumbia. Based on an ear description of the project, some people familiar with the murdercase might be scratching their heads about the upcoming Lifetime network flidcA promo put out by Lifetime described Porco, played by actor Matt Bary as a 'beloved,handsome college student ... who was everygirl's dream in the small town of Delmar, NewYork." The convicted killer's mother will be played by actress Lolita Davidovich while EricMcCormack (former star of 'Will and Grace") will play a local police detective who seesPorco's mother nod "yes" when asked if her son attacked her.\Some of the main players in the achral case were not mentioned; others seem to be, shall wesay, exaggerated.

"I definitelywouldn't descbe (Porco) as a Romeo," said one law enforcement official veryfamiliar with the Porco case.While Porco had some female admirers at his trial and a girlfriend at one point, placing amajor girlfiend character in the film could be seen as a stretch. Actress Emily BettRickards will play a Porco girlfriend.McCormack's detective is clearlybased on retired Bethlehem sleuth Christopher Bowdish,who now worlis for the U.S. Marshals service and has grayer hair and at least 10 yearson McCormack.When asked about the fihn possibly taking liberties, Lifetime spokeswoman Gina Noceroreplied, 'Well, we say inspired by the true story."It's unclear whether a character will be directly based on Terrlr Kindlon, the Albany lawyer,who with his wife, Laurie Shanks, defnded Porco."f can't imagine a Lifetime drama being made about the intricacies of a motion for a changeof venue," said Kindlon, who was OK with the casting "as long as it's not Pee-wee Herman."

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Kindlon also turned serious."This event, this tragedy, in one sense it's Shakespearian. It really is a fascinating story soit's easy to understand why someone would want to make a movie," Kindlon said. "My fear isit is going to open a lot of old wounds. That's just unfortunate. Obviously the story is in thepublic domain, and there's nothing we cn do about it."District Attorney David Soares' offce gave a similar comment, saying: '"While weundestand the reasons for the media attention and interest in the facts surrounding thisclse, our main objectivehas always been holding this individual accountable for thesedevastating crimes. We feel justice has been served in this case and remain confident that Mr.Porco belongs in prison for the rest of his life."Outsde influences kept outsideTo prevent outside influences from affecting tle r-member jury deciding the Troy absenteeballot-fraud trial, jurors have been kept from the halls and escorted to other building exits.On Nov. r4, the second day of jury selection in the trial of Democratic ElectionsCommissioner Edward McDonough, former City Councilman Michael LoPorto showedup and talked to some people inside a courtroom filled with hundreds of potential jurors.LoPorto, a gregarious restaurateur with a very noticeable voice, was acquitted of allpossession of forged instrument charges against him at trial in July and is now veryoutspoken in his dislike for Special Prosecutor TFey Smith \As a result, LoPorto's presenoe in the courthouse - within earshot ofjurors coming and goingin the hallways - has apparentlybeen the topic a conferences between a woried Smith,McDonough's attorney Brian Premo and Judge George Pulver JrWhile it appears LoPorto has not been banned from the courthouse, some measures put inplace became apparent one day last week. Court officers at the front desk called thecouhoom when LoPorto came into the building. While l,oPorto stood talking to reportersoutside the courtroom door, the blind in the window of the door was drawn and jurors wereescorted from the building through a back entrance.LoPorto said he was "surprised" bythe attention, but he has chosen not to enterthe courtroom.The jury is being protected inside the curtroom as well. Both Smith and Premo have beenvery animated during testytestimony, with Premo at times smiling broadly and shaking hishead looking straight at jurors when he hears what he considers iff prosecution testimony.But on Mony a chucHe was heard during Smith's redirect of former City ClerkWilliamMclnerrrey, a key prosecution witness.

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Smith objected, and the defense was chastised by Pulver.ilW2013 8:54 PM


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The issue of undue jury influence was one of the issues of an Appellate Division decision inRensselaer County in the 2oo2 rape trial of former Washington County tor,vn police chiefThomas Levandowski.The state Supreme Court Appellate Oivisiothrew out 38 of 43 counts and a So-year prisonterm against lvandowski for improper trial tactics by former District Attorney PatriciaDeAngelis, who prosecuted tle case.The justices found it improper that family members and friends of the victim as well asemployees of the district attorney's office had seated themselves up frontby the jurywearingribbons of support during summations.Bob Gardinier [email protected]. SL8-494-24o3 . @RobertGavinTU

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EXTIIBIT 66D))


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Porco tale headed to small, sc

At th point,.

T2013

Lifetime movie to memory of the andortray Delmar murderand ensuing trial

By MARCY VELTEr.l: *'P:|: t .:* ::.?!.he infamous Christopher:o murder story will soonorh-ayed tlrrough a Ufetimeision movie.he network has announdnovie qn:ll be "^lled'Romeorr: The Christopher Porcoy" and will focus on thenar native and Universityochester student who wasicted of h1ling his fafher andnpting to kin his motherwithr in 2004.fetime spokeswoman Ginaro said the movie ldl showrht of tre murder all reup t}rough the tuial, bu!d some details may notti:f accurate.Ve sayit's inspired by aFuer," shesaid. .hough Porco still maintainsnnocence, he was found inArigust of 2010 of harringlered his fathe Pete andr$irg to murder his mothe,, as they slept inside theirLer Brockley Street home.ncident is presumed to have. over forged cosignarressfudent loan and car loanChristopher Porco took out;ut his parents' knowledge-'an Porco survived the Nov.

professed hereven iough

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Porco's l.*yr, TerrenceIGndlon, said noione from the

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Porco m urder cse holds public in thrallBy Robel Ge!Upd.bd 7:t2 0, Frlday, Mtf,r m 2012ALB.ANY - The Chrietopher lorco nruder case will attact attcntion in zor3 -just not the way his lawyers had hopcd.The convicted ax murdererfrom Delnrarlost his nal appas for a nerv trial ths year, brrt gained the interest of Lifatime television nctwork. It will air lnode-for''IV move inspircd by the former ollege student who killed l)is fathe, Peter, and maimed his mothcr, Joan, as they slept at thelr 3 Bmcklry Drivehome on Nov. t5, zoo4.It is aryuablythe mot notoious crime in thc Capital Rcgion's history. the rejection of his appal bytle top cout in Americ was chosen by readcm who votedit on timesunion,com as one of the Capital Region's top ro storis for eorz.Porco, now29, ffi6 convicted at t 2oo trial that was mordto Orange Countybecause of beavypretrial publicty. His fatherws court clerk toAnthonyv.Cadona, pesidingjustice of the Appellate Dvision ofstatc Suprcme Court for the third Department,Christopher Porco, convicted ofsecond-degrc murderand attempted second-degree murder, is serving a prison scntence of46 years to life at ClntonCorrectional Facilily,His laryer, Terence L, Kindlon, who with his wlfe, Iurie Shanks, represented Porco during the trial, hoped tlat the U.S. Supreme Cout would hear lheappeal. Kinrllon said Porro's rights were violated when Omnge CountyJudge Jefftey Berry, who pruided ovet the trial, llowedAlbany CounS pmsccqtors toelicit testimony that a gravely injured Joan Poc identified her son as her attac.kecWhen asked by Bethlehem Detective Christopher Bowrlish if heryounger son had hiedto kill herwith an ax, Joan Pom, a srmh t}erapist, nodded "yes.'Shelater saitl sbe lost hermemory of the ner-deat exchange with the detective who questioned heras pararnedie worked to save her life,Kindlon argued tt Bnce Joan Pon could not resll Bowdish's questioning, the ddeose couldn't effedively cross-examine her. He sad Porco had aconstitutional right to mnftont the witsress who mqde t}re acqrsation and witolt having that opporhmty, thejudge should not have allorvetl thc testimony,In esrlypril, the Supreme Court denied Kindlon's petition, whch asked it to re.examne the actions of a tnal court. Kindlon filed a second writ of habescorpus appea with te high court asking it to consider whetherihe conviction was a violation offederal law and, a6 t result, should be overtuned.Once again, he was rejected. That came after the stte Court ofpeals, tle top cou in New York, unanimouly found the evidence agaihst Poco to be'bverwhelming" - and that any enorby Berry in ollowing testimony rbout the exchtngbetween Josn Potm and the detective was "harmless' to thejury'sdecision making,Wth the Supreme Court'e decision, Poco had en


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Clrristopher Porco, H06 46686Clintor Correctioual FacilityP.O. Box 2001

Dannemora, New York 12929December 20,2012

Ms. Julie SterlVice President of ProductionLifetime Television Network309 West 49'h StreetNew York, New York 10019

CEASE & DESISTDear Ms. Stem:

It has come to my attention that your network is producing and planning to televise a movieerttitled, "The Romeo Killer: The Christopher Porco Story," This movie is ostensibly about my familyand me, and the events that led to my incarceration.

Using my name and likeness for the purposes of trade or advertising in 'the context of afictionalized drama, without my express written consent, unequivocally runs afoul of New York CivilRights Law section 50. As I have not, and will not be giving my consent to use my name for this project,I demand that you immediately take the following action:- Cease all production on ary project that uses my nalne or likeness \- Remove rny nalne and likeness from any advertising or promotional material. Give me written assurance that the above actions have been completed, and that no effort will be

made in the future to use my nalne or likeness for any unauthorized project at your networkIf you refuse to desist in violating my statutory right to privacy, or do not respond to this letter ina timely fashion, I will file suit pursuant to New York Civil Rights Law section 51, and will seekinjunctive and monetary relief to prevent further assaults on my rights. I look forward to your reply.

Sincerely,

Christopher Porcocc'. Nancy Debuc

President and General ManagerLifetime Entefainment Services, LLC235 45th StreetNew York, New York 10017John R. Polster, Esq.Attomey for Joan Porco224 State Street 'Schenectady, New York 12305


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tre TEVINE SULTIVANKOCH &SCHULZ, LIP321 West 44th StreetSuite 1OOONew York, NY 10036(212) 850-6rOO I Phone(212) 850-6299 | FaxDavid Schulz(212) [email protected] 17,2013

By U.S. MailChristopher Porco#06A6686Clinton Correctional FacilityPO Box 2001Damremora, NY 12929

Re: "The Romeo Killer: The Christopher Porco Story"Dear Mr. Porco:

This firm represents Lifetime Television Network ("Lifetime"). I write in response toyour letter dated December20,2072, di.r:ected to Julie Stem, Vice President of Production atLifetime, concerning the television film "The Romeo Killer: The Christopher Porco Story" (the"film"). You claim that the use of your name and likeness in the film violates Section 50 of theNew Yok Civil Rights Law, and dqmand that Lifetime cease all production on the film.Lifetime respectfully rejects your reuest. The use of your name. and likeness in the film will notviolate Sections 50 or 11 of the CivilRights I.aYr,r or any other of your rights'Please be advised that Civil Rights Law Sections 50 and 51 apply only to the use of aperson's name or likeness in a "purely commercial setting." Aningtonv, N,Y, Times Co.,55N.Y.2d 433,442 (1952). New York's highest court repeatedly has instructed that this provision"is to be nanowly construed and 'strictly limited to nonconsensual commercial appropriations ofthe name, portrait or picture of a living person."' Messenger v, Gruner + Jahr Printing &Publ'g,94 N.Y.2d 436, 441(2000) (emphasis added) (citation omitted). Editorial content on amatter of public interest, such as the television filrn here, does not constitute a "commercial" useas a matter of law. Messenger,94 N,Y.2d at 441.The fact that a publication is produced for profit does not make the use of a person'sname or likeness "commercial." The Court of Appeals underscored this point in Stepano v.News Group Publ'ns, Inc.,64 N,Y.2d 174,184-85 (1984):I Section 50, which you reference in your letter, provides only for criminal sanctions, anddoes not create a civil claim. ,See N.Y. Civ. Rights Law $ 50 ("A person, firm or corporation thatuses for advertising purposes, or for the purposes of trade, the name, portrait or picture of anyliving person without having first obtained the written consent of such person, or if a minor ofhis or her parent or guardian, is guilty of a misdemeanor.").

Washlngton New York Philadelphla Denver


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i LEVINE SUTTIVAN: KOCH & SCHULZ, LLPChristopher Porcofanuary L7,20L3Page2

The fact that the defendant may have fpublished the rticle at issue] solelyor primarily to increase the circulation of its magazine and therefore itsprofits, as the Appellate Division suggested, does not mean that thedefendant has used the plaintiffs picture for trade purposes within themeaning of the statute. Indeed, most publications seek to increase theircirculation and also their profits.

See qlso, e.g., Arrington, 55 N.Y.2d at 440 (Section 51 not violated by an editorial use "carriedoh for a profit" or "for the very purpose of encouraging sales of the publications"); Gaeta v.Home Box Office,645 N.Y,S.2d707,710 (Civ. Ct. N.Y. Co. 1996) (same). See also Best v. A&ETelevision Networl


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2"^ rv'ovt' le a-. far\h 3LtYe>ln rttt'a 4o s 'u)q.i< )"1"'o'' k;llngs 4- -al3Bethlehem _- Lifetime television network has released the ai date of its small screenmovie about the Christopher Porco mruder case.{The network hs announced the movie, called "Romeo KiIIer: The ChristopherPoco Story," will premier on Saturdey, March 23 at8 p.m. The movie will focuson the Detmar native and University of Rochester student who was convicted ofkilling his father and attempting to kill his mother with an ax in 2004.Acording to tbe networlq the movie will sbowthe night of the murder all the wayup through the ial, but added some details may not be totally accurate. The creditswill state the tle is "inspired by aue story."Production of the movie began in late 2012 tn Vancouver, according to a Lifetimespokeswoman. Porco vill be played by Matt Barr, who was most recently in theHistory Channel miniseries "Hatflrelds and McCoys." Erik McCormick from "Willand Grace" will play Bethlehem police detective Joe Sullivan and actress LolitaDavidovich will play Joan Porco-fThough Porco still maintains his innocence, he was found guilty in August of 2010of having murdered his father, Peter, and atempting to mruder his mother, Joan, asthey slept inside thei former Brockley Street home. The incident is presumed to havebeeir over forged co-signatures on a student loan and car loan that Christopher Porcotook out without his parents' knowledge.Joan survived the Nov. 15,2004, attak, but was badly injuries. She later claimed nomemory of the incident and professed her son's innocnce, oven though policeclaimed she indicated with a nod her son hd made the attack. That nod was later thebasis for a long appeals process by Porco's legal team. In April of 20l2,the UnitedStates Suprerne Cort denied a petition to rsview the muder conviction.Porco is now 29, but was 20 at the time ofthe murder. He is now serving 50 years inprison.The film is set to portray Porco as a "beloved, handsome qlgc student .,. who wasevery girl's dream in the small torm of Delma, New York."#Lifetime Network released the first still fromthe movie on its press website, whichdepists Bar @or.co) and McCormick (Detective Sullivan) sitting across from eachother at a table, in wllt appears to be a police station.

'#The movie's dcscriptfon says prosecutors believed Potco to be na devious andcurning sociopath" while "many in the town of Delmar firmly believe the jurywrongfully convicted an innocent young maI."View The Spotlight's previous story aborf the movie here.+,t|,\Jtf .r, wr


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SI,]PRE\,IE COIJRT OF THE STATE OF NEW YORKCOUNTY OF'CLIN]'ON ----------------*--xCHRISTOPHER PORCO,P.ainti.ff, AMENDEDMEMORANDUM OFLAW INSUPPORT OF A MOTIONFOR A PRELIMINARYINJUNCTION WITHTEMPORARYRESTRAINING ORDERhrdcx No.20l3-190

-against-LIFETIME ENTERTAINMENT SERVICES, LLC.Defbndant.

New York state does not recognize a common law right of privacy. Instead, an individual's riglrt toprivacyinNewYorkiscodifieclinSections50and5loftheCivilRightsLaw. Scction5lprovidesthal"la]nyperson r,vhose name, portrail piclure or voice is used within this state for advertsing pruposes or for thepurposes of tracle without... written consent" rnay scek darnages or injunctive relief.

To state a claim under sectiorr 51, a plantiff rnust prove three elements:(l) Defendants used his name,'portrait, picturo, or voice within the stte.(2) For purposes oftrade or advertising.(3) Without his corrsetrt.

Tn the present action, thee can be no question that the frrst ancl third elements arc satisficd. Defendanttlrough its subsidiary the Lifetrme Television Nctwork is produciug a movie based on plaintiff entitled:"Romeo Killer: The Christopher Porco Story." (Tie "MOVIE"); and plarntiff has not given his conscnt forsuch use of his name or likeness therein.

The facral questions to be resolved herein arc thus: (1) Is the use of plaintifFs name or likeness in the"MQVIE" ald related material for tradc, commercial, or advertising purposes; and (2) Is the "MOVIE"'irewsworthy" or in the "public interest," thereby exenrpt from the provisio.ns of the Civjl Rights Lar,v'?An analysis ofthe facts herein unavoidably leads to the conclusion that deferrdant's exploitation ofplaintiff s pcrsona is clearly for cornmercial purposcs, and is a substantially fictionalizcd troatmcnt of actualevents that is designed to entertain an audierrce, not inf'onn the public.

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ARGUMENTTHE "MOVIE" [S A COMMERCIAL APPROPRIA'I'ION OFPI,AINTIFF'S NAME AND LIKENESS, AND IS KNOWINGLYFTCTIONALIZED TO THE EXTDNT THAT TT CANNOT BECONSIDERED "NEWSWORTHY"

In his lctter to plairrtiff, defendant's counsel claims that the "MOVIE" is exempt from the privacyrestrictions founcl in Civil Rights Law $5 I because plaintifT"s uame and likeness are not used for "comntercial"purposes. (Exhibit "G"). It should be askcd thelr, if defendant's use of plaintiff s name and likeuess is not forpurposes of trade, than what is its purpose'/

The tenl'urposes of trade" is "not susceptible to ready definitiorr." Marcinkus v. NAI' Pub' Inc.,522 N.Y,S.2d 1009, 101I (N.Y. Supp. 1987), However, "it is clear that 'for purposes of trade' does notcontemplate the publication of a newspaper, magazitre, or book which imports truthful ne\TS or other factualinformation to the pblic. Though a publisher sells a comrnodity, and expects a profit from the sale of hisproduct, he is imnrune fromthe interdict of secs. 50 and 5 I so long as he confines himselltotbeunembroideredclis,seminatirn offacls. Publishers and motion pichres have occasionally been held to transgress the statutein New York, bnt in each case the factual presentation w as embell.i,shed by ,some degree offctional.ization' "

Siclis v. h--RPub. Corp.,113 F.zd 806,810 (CA2 1990) (emphasis added). Thus, "[w]lretheranitem isnewsworthy clepends solely on 'the colrtent ofthe article' - notthe publisher's 'motiveto iucrease circttlation. "'Messenger ex rel. Messenger v. Gruner & Jahr Prin{ing and Pub.,706 NYS2d 52, OIY 2000).

This principle dates back almost 100 years. InBinns v. Vitagraph Co,,2I0 N.Y. 5l (N Y l9l3), theCogrt of Appeals held that tho use of the name and likeness of a person in a rnoving picture drarnatization ofan actual event in which thc person parlicipated was held to violate the stattrte. The Binns Court reasoned thatthe picturcs portrayed were not "true pictutes of a current event but mainly a product of theimagination," and the use of the lrar-re ald persona of the plaintiff was held to be oue for business and profit,and contrary to the statutory prohibition. (id trt 56).

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Fnrther, "[t.lhc rnedium of exprcssion employed in an alleged lreach of privacy should not and doesnot affect the principle of law to be applied. The Court of Appcals ofthis State, in tbc case of Gautier v. ]'ro-l'oc.tbqll.,304 N.Y. 354, held that tclevision enjoys the satne privileges accordecl to other media wltere thestatutory riglrt to privacy is in issue, The court notes that the privilege enjoyed by television is tlrc same, notgreaternorl.s,thrthatenjoyedbyothermediaofcotnmurrication." Youssottpuffv.CohtmbiaBraodcastingSy,rtem \nc.,265 N.Y.S.2d at758-'759 (N.Y, Supp. 1965) (emphasis in original).

Youssoupuff is interesting in its parallels to the instant actiott. lnYoussoupuff,. CBS broadcst aplay that dramatically recounted the plaintifPs participation in fhe assassination of Rasputin. The producershired an actor to portray the plaintiff, and utilized fictionalized dialogue and actions in its recreation of anactual event. The play was telecast over CBS stations in New York, and was done so in the regular course ofthe defendant's busincss and/or trade. On these facts, the trial court forurd that there was sufcient widencefor submission of the case to the jury.

In te same vein, defendant in the present action has already conceded that the "MOVIE" is based oua screenplay, (Exhibit "4"), and is a fictionalized porfayal of actual cvents. Defendarrt has hired actors toportray plaintiffand others, and "when asked aboutthe filmpossiblytaking liberties, Lifetime spokeswomanGina Noceo replied, 'Well, we say inspired by a true story. "' (Exhibits "C" and "D")

In fact, upon plaintiffl s information and belief, dcfcndant has not interview ed anyone connected to theevents portrayed in the "MOVIE," and will thus have uo choice but to resort to 'the literary teclmires ofinvented clialogue, inraginaryircidents, and attributedthouglrts and feelings." Spahnv. JulianMessner, Inc',286 N.y.S.2d at 834 (N.Y. 1967). Because it is substantially fictionalized, the "MOVIE" is nranfestlydissimilar to a news or documentary broadcast onc rniglrt find on "Cl\N" or "FOX NEWS," ald as a result

is not afforded exemption undcr the "newsworthy" or 'ublic interest" exceptions to Civil Rights Lawsections 50 urd 51.

Similarly, inSpahn,suprq,thedefendantpublishedafictionalizedbiographyoftheplaintiff,apublicfigure, Te author had "virtually no association with the subject. He admitted tliat he never interviewed lvlr.

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Spaln, any menber of his farnily, or any baseball player who kner,v Spahn. 'r'i+'|'< The extent of [the Author's]'vast amount of research' il.r the ca^se at bar anr.onntecl, pritnarily, to nothing lnore thatr ncwspaPer anclrnagazine clippings, the authenticity of whicli the author rarely, if ever, attempted to chcck ottl." (Id a1 835-83 6).

-lfts in Spahlz, as in the pre sent action, the defendant dramatized cetain evcnts in the life of a publicperson, using a fictjonalized portruyalto ma^kc his biography more appealing to ris audience. WhlleJdctualreporhng of plaintiff's life hsreh would be protected from liabil under Civil Rights Law Section 51 as'1rewswortlry," "[t]he fictictious is not." (id,32S) (see also Marcinkus, supra, at 1013),

Defendanl's counscl attempts to compare the facts herein, (which cojncidc wth Binns-Spahn"fr,ctionalizaliol" cases), to such cases as Finger v. Omni Publications, 564 N'Y.S.2d l0l4; Arrington v'NewYorkTimesCo.,449N.Y.S.2d94l; and Murrayv.NewYorkMagazineCo,,3ltlN.Y.S.2|4T4; alltlrree of which irrvolved unauthorized and allegedly false and damagirg use of plaintiff s photographs toillustyate newswortry articles. Becatrse the photographs illustratcd newsworthy articles, because there wasa real rclatiortship between the photographs. and tlre articlcs, and because the articles 'were not advelisementsi disguise, the courts all concluded that none ofthosc plaintiffs stated a Civil Riglrts Law clainr (see,Messenger, supra).

"By contras! Binns andSpahnconcerned a strikingly differeirtscenario fromthe linger-Arrington-Murraycases]. Inthose oases, defurdantiuventodbiographies ofplaintiff s lives. The Courts concludcdthatthe substantially fi ctionalizcd works at issuc were nothing more than attempts to trade ou the pcrson ofWarrenSpahrr or Johl Bils. Tus ,tnder Binns and Spahn, an article rrray be so infccted with fction, clramatization,or entbellishmet that it camrot be said to flllfill the purpose of the newsworthy cxception'"I4essenger, supla, aI 129.

One neecl look no furthe than the title ofthe "MOVIE" hercin: "The Romeo Killer," to determine thefilrns ainr is "dramatization, ratherthan informatiott," Lqhiri v, DaityMinor Inc',162 Misc. 776,78 (1937).Arrd bccause televisio, "like othcr lnedia **'l' may have eiilrcr a trade aspect or infomative or nelvs

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aspect," (]qutier, supra,359 (cmphasis adcled); simply because a public hgnre or a lresetly ttelvswortlt'person is the proper subject of a uelvs or informalivc presentation, the newsworthy "privilcge doe.s not extclldto conrmercialization of his personality tluough a form of treatrnent distinct from the dissemination of ncwsor infonnatiott i d, 3 59.

The testion is whetherthe story, "as prcsented to the [consumer]," was so enibellished in thc tellingthat it was no longer a factual reporl." i(l 360. If so, its 'hewsrvorthiness" irmnunity frotn the opcration of thestatute is forfeited and lost, Messenger, aI133,(BELLACOSA in DISSENT).

If defendant herein wishes to arguethattlte "MOVIE" is strctly factual or "cditorial," (Exhibit "G"),and was produccd with a "news aspect" rather than to entertain its audience for profit, it is welcome to do so'Tlrisdisputehotvovcr,isafactualdeternnatiotrforajury. See,Nieve'sv.HomeBoxOffce'815NYS2d495(NY Sup, 2006); "The defendant's central argument is thattheii use of plaintiffs likeness was hot foradvertising or trade purposes utder the statute. The Court notes that in this case the detennination catnot bemade as a maer of law because there is a dispute a[s] to the purpose for which plaintiffls likeness lvasen'rployed."

Based ontlreforegoirrg, as plaintiffhas no otherremedy atlaw otherthanaternporary restraining order

ad a preliminary injrurction to prevent violation of his riglrt to privacy pending the outcome of this case, andwill be irreparably injured if defendant airs thc "MOVIE" as planned, plaintiff prays that this Court soes fitto gralt the rnotion fbr a tenrporary restraining order and a prelimirary injunction contained herewith.Dated: February 12,2013

PocoPlaintiff pto-se

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Lifetime's Legal Argument

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