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People v. Keating

Supreme Court of New York, Appellate Division

June 7, 1955

People
v.
Keating

Page 151

[141 N.Y.S.2d 563] Richard G. Denzer, New York City, of counsel (Charles W. Manning and Leonard E. Reisman, New York City, with him on the brief, Frank S. Hogan, Dist. Atty., New York County, New York City, Attorney), for complainant-respondent.

James D. C. Murray, New York City, of counsel (Irving Greenberg and Joseph Halpern, New York City, with him on the brief, James D. C. Murray, New York City, Attorney), for appellant.

Before COHN, J. P., and CALLAHAN, BREITEL, BOTEIN and RABIN, JJ.

BREITEL, Justice.

William J. Keating, counsel to the New York City Anti-Crime Committee, Inc., at the time of his alleged offense, appeals from an order adjudging him of contempt, and sentencing him to 5 days in the City Prison, for his refusal to divulge sources of criminal information about others, before a grand jury drawn for the Court of General Sessions. He asserts that the identity of his informers was confidentially acquired while he was engaged by his employer, a voluntary private agency, in aiding in the enforcement of the criminal laws. Consequently, he argues, the source of his information was privileged as confidential, and its disclosure could not be compelled.

[141 N.Y.S.2d 564] There is no such privilege in the administration of public justice, and the confidential character of the communications or the identity of his informers may be disclosed, by compulsion, if necessary, in a court or grand jury having jurisdiction. Accordingly, the order should be affirmed.

Mr. Keating is a member of the Bar and a former Assistant District Attorney in the County of New York. The Anti-Crime Committee, Inc., although a private and voluntary organization, was created at the suggestion of a grand jury drawn for the County Court in the County of Kings. The Committee is supported and directed by public-spirited citizens concerned with the enforcement of the criminal laws. It has engaged in the promotion of remedial legislation, the spurring into activity of public officials charged with law enforcement, and in investigations designed to implement its other activities. Nevertheless, its status is private and there is no legal, professional or governmental control over its membership, activities, or the selection of its staff, except to the very slight degree that all private organizations may be subject to such control.

The record reveals that the grand jury and the District Attorney sought the disclosures from Mr. Keating only after the publicly and privately uttered statements of Mr. Keating were found unsupportable in its investigation, and indeed, were flatly contradicted in material particulars by witnesses in a position to know the facts. The official investigation was further confronted with Mr. Keating's assertion with respect to some of the

Page 152

police witnesses, that their views should be accepted rather than those of his undisclosed informers. Involved were not only serious charges, made by Mr. Keating, of illegal telephone wire-tapping, which charges had excited the interest of both the United States Congress and the State Legislature, but of corruption by ranking police officers and conspiracy with ranking, but unnamed or misnamed, officers of the New York Telephone Company.

The 1949 Report of the Law Revision Commission stated the principle which has now obtained for many decades, as follows:

'The person subpoenaed before a court, an administrative officer or a legislature must ordinarily tell all he knows about the matter at issue, or risk fine or imprisonment for contempt. The circumstances under which a witness may keep silent with impunity, or under which he is forbidden to speak even if he wishes to, are necessarily infrequent and extraordinary. Not every story told to the witness 'in confidence' may, without risk to the witness who withholds it, be concealed in court. The conception of a gentleman's honor which requires him not to break a pledge of silence, is not a defense on a citation for contempt.' (1949 Report of N. Y. Law Revision Commission, at p. 33.)

[141 N.Y.S.2d 565] There is a limited number of statutory privileges. They are absolute in the sense that, even in matters involving public justice, a court may not compel disclosure of confidential communications thus made privileged. They relate to confidential communications between husband and wife, between attorney and client, between physicians, dentists, nurses and their patients, and between clergymen and communicants, Civil Practice Act, §§ 349-354, People v. Shapiro, 308 N.Y. 453, 126 N.E.2d 559. When it was sought to persuade the court to extend a similar privilege to newspapermen, the Court of Appeals said that it was against the general policy of the law to extend the classes to whom the privilege from disclosure now applies. The court said further that, if anything was to be done about it, it should be done by the legislature, which had thus far refused to enact such legislation. People ex rel. Mooney v. Sheriff of New York County, 269 N.Y. 291, 199 N.E. 415, 102 A.L.R. 769.

It is clear, therefore, that (1) Mr. Keating does not come within any of the statutory privileges; and (2) the courts, in the absence of any legislation, are ...


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