Beach v. Shanley

• Decision Date: 21 July 1983
• Citation: 466 N.Y.S.2d 725,94 A.D.2d 542
• Parties: , 9 Media L. Rep. 1991 In the Matter of Richard BEACH, Respondent, v. Donald J. SHANLEY, as Special District Attorney of Rensselaer County, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 725

466 N.Y.S.2d 725

94 A.D.2d 542, 9 Media L. Rep. 1991

In the Matter of Richard BEACH, Respondent, v. Donald J. SHANLEY, as Special District Attorney of Rensselaer County, Appellant.

Supreme Court, Appellate Division Third Department.

July 21, 1983.

Donald J. Shanley, pro se.

O'Connell & Aronowitz, Albany (Peter L. Danziger, Albany, of counsel), for respondent.

Before SWEENEY, J.P., and KANE, CASEY, YESAWICH and WEISS, JJ.

YESAWICH, Justice.

At issue is whether a news reporter possesses an absolute constitutional or statutory privilege against divulging the identity of a news source to an investigating Grand Jury. On September 1, 1982, a Rensselaer County Grand Jury issued three reports concerning its examination of alleged criminal conduct by two employees of the county's Sheriff's department. One of these reports recommended that administrative action be taken to improve the quality of department performance and was immediately released to the public. The other two reports were sealed pursuant to CPL 190.85 (subd. 3) which mandates that a report shall not be made public until at least 31 days after it has been served upon any public servant named therein.

On October 26, 1982, in accordance with the statute, one of the sealed reports was served upon Sheriff Eugene Eaton. The next day, petitioner Richard Beach, a television newscaster, was notified by a source, whose identity he promised not to disclose, that the sealed report contained allegations against Eaton and recommended his removal from office. On both October 27 and October 28, Beach's employer aired a filmed news report in which Beach recounted the information he had received from his source regarding the Grand Jury's sealed report.

Under section 215.70 of the Penal Law, unlawful Grand Jury disclosure, a class E felony, consists of the following:

A person is guilty of unlawful grand jury disclosure when, being a grand juror, a public prosecutor, a grand jury stenographer, a grand jury interpreter, a police officer or a peace officer guarding a witness in a grand jury proceeding, or a clerk, attendant, warden or other public servant having official duties in or about a grand jury room or proceeding, or a public officer or public employee, he intentionally discloses to another the nature or substance of any grand jury testimony, or any decision, result or other matter attending a grand jury proceeding which is required by law to be kept secret, except in the proper discharge of his official duties or upon written order of the court. Nothing contained herein shall prohibit a witness from disclosing his own testimony.

After considerable procedural activity, which is not germane to the legal issues presented on appeal, a special prosecutor was appointed and a Special Grand Jury empanelled to investigate possible criminal conduct regarding the disclosure of the contents of the sealed report, and Beach was served with a subpoena requiring him to testify before the Grand Jury. He moved to quash the subpoena on the grounds that the Federal and State Constitutions and the State Shield Law (Civil Rights Law, § 79-h) accorded him an absolute privilege not to testify and not to reveal the identity of his informant. The County Court agreed and quashed the subpoena. We reverse.

Constitutional arguments virtually identical to those advanced by petitioner were found unavailing in Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626, where it was held that the First Amendment does not protect news reporters from making their news sources known to a Grand Jury (see, also, New York Times Co. v. Jascalevich, 439 U.S. 1317, 99 S.Ct. 6, 58 L.Ed.2d 25). A majority of the Supreme Court observed that a reporter, as any other subpoenaed citizen, has the duty to appear before and to furnish the Grand Jury with information relevant to its investigation into an activity perceived by it to be potentially criminal in nature (Branzburg v. Hayes, supra, 408 U.S. p. 697, 92 S.Ct. at 2664-2665). If the likelihood exists that the reporter can supply information to aid in determining "whether illegal conduct had occurred", then the reporter is obliged to disclose the identity of his source (id. at 701, 92 S.Ct. at 2666; see Rosato v. Superior Court of Fresno County, 51 Cal.App.3d 190, 213, 124 Cal.Rptr. 427, cert. den. 427 U.S. 912, 96 S.Ct. 3000, 49 L.Ed.2d 1204, Lightman v. State, 15 Md.App. 713, 294 A.2d 149, affd. 266 Md. 550, 295 A.2d 212, cert. den. 411 U.S. 951, 93 S.Ct. 1922, 36 L.Ed.2d 414).

Petitioner maintains that the test enunciated in Branzburg is not so straightforward. He interprets Justice Powell's concurring opinion (Branzburg v. Hayes, 408 U.S. 665, 709, 92 S.Ct. 2646, 2671, 33 L.Ed.2d 626 supra) as adopting a test akin to that preferred by Justice Stewart in his dissent, namely, that the prosecution must demonstrate that the intelligence to be gathered from the reporter is absolutely necessary to the investigation, that there is a compelling and overriding governmental interest in obtaining the testimony, and that the information sought cannot be obtained by other means less destructive of First Amendment rights (id. at 743, 92 S.Ct. at 2681). We disagree, for we read Justice Powell's concurrence not as sanctioning this type of balancing test, but as criticizing it for unfairly subordinating "the essential societal interest in the detection and prosecution of crime * * * " (id. at 710, n., 92 S.Ct. at 2671, n.; see Matter of Farber, 78 N.J. 259, 394 A.2d 330, cert. den. 439 U.S. 997, 99 S.Ct. 598, 58 L.Ed.2d 670).

On the facts before us, we are unable to find any refuge for petitioner Beach in the Constitution. Here, the very act of disclosure itself could well have been a felony, provided that the source was a person covered by the statute. Furthermore, the probability that the originator was indeed such a person is heightened by the immediacy of the revelation, suggesting ready access to the Grand Jury's proceedings. While it is true, as petitioner contends, that the source may have been someone not subject to criminal liability, there is no requirement that the prosecutor first establish that a crime has been carried out before Grand Jury testimony can be exacted. Such logic overlooks the fact that the Grand Jury is an investigating body whose raison d'etre is to determine whether a crime has been committed. Calling witnesses to ascertain if illegality has been practiced is part and parcel of its important function (Branzburg v. Hayes, 408 U.S. 665, 701, 92 S.Ct. 2646, 2666-67, 33 L.Ed.2d 626 supra ) and is a reason why it is a formidable instrument of justice. Certainly, the disclosure of a sealed Grand Jury report, an act strongly suggestive of a felony, justifies having the person who made that revelation to the public at large testify concerning the source of his information. Branzburg v. Hayes (supra ) does not demand that the reporter have witnessed or have been an accomplice to a crime before his testimony can be coerced; only the possibility of a crime need be shown (id. at 748, 92 S.Ct. at 2684). The ineradicable reality is that Beach's information had more than a remote or tenuous relationship with the investigation; it may have been dispositive of whether a crime had been perpetrated or at the very least may have yielded evidence leading to who may have disclosed the report's contents. Finally, we find it noteworthy that there is no allegation of bad faith or harassment on the part of this Grand Jury. Clearly then, the subpoena comports with Federal constitutional guarantees.

Another of petitioner's claims is that he should be cloaked with a State constitutional privilege against testifying. However, no authority for extending the constitutional...