Keenan v. Gigante
| Decision Date | 08 May 1979 |
| Citation | 390 N.E.2d 1151,417 N.Y.S.2d 226,47 N.Y.2d 160 |
| Parties | , 390 N.E.2d 1151 In the Matter of John F. KEENAN, Deputy Attorney-General, as Special State Prosecutor, Respondent, v. Louis R. GIGANTE, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
We are called upon in this case to balance the weighty considerations of society's right to expose criminal improprieties within the New York City Department of Correction and a priest's solemn obligation to assist those who beckon for his guidance and help in the utmost confidence.
These are the pertinent facts. At the direction of the Extraordinary Special and Trial Term Grand Jury of New York County, appellant Reverend Louis Gigante, an ordained priest of the Roman Catholic faith and, at the time, a New York City Councilman, was subpoenaed to appear and testify before the Grand Jury, impaneled to investigate abuses and improprieties within the New York City Department of Correction, with respect to preferential treatment accorded certain members of organized crime incarcerated in New York City correctional facilities. On August 29, 1977, appellant, after receiving immunity (CPL 190.40), was questioned concerning both his relationship with various employees of the Department of Correction and his efforts to secure for one James Napoli, a prisoner incarcerated from October, 1974 to March, 1975 in institutions under the jurisdiction of the New York City Department of Correction, a Christmas furlough and entrance into a work-release program. Although appellant responded to these questions, when asked if he had any conversations with Napoli concerning the conditions of Napoli's incarceration, appellant refused to answer asserting the priest-penitent privilege. On August 30, 1977, the Presiding Justice ruled that "the privilege was appropriately invoked" with respect to these conversations.
On September 7, appellant reappeared before the Grand Jury and was asked about a conversation he had with an officer of the New York City Department of Correction which was allegedly prompted by an earlier discussion with Napoli. Appellant did not respond, stating: "I really refuse to answer basically, not only as a priest, but that the questions attempt to infringe upon my practicing my ministry, which is protected by the First Amendment of the Constitution."
Again, on September 9, appellant refused to answer several inquiries upon the ground that the priest-penitent privilege and his First Amendment right to practice his ministry precluded him from replying. A sampling of the questions are as follows:
The parties sought the assistance of the court to determine whether appellant was justified in refusing to answer. On September 29, the Judge, although observing that nothing in the minutes before the Grand Jury intimated that appellant engaged in any criminal activity, found that the "Grand Jury might reasonabl(y) wish to inquire into the apparent use in part of (appellant's) position as a public official on behalf of a prisoner * * * and there is at least a possibility in the absence of any answers from the Father that he might have information of some criminality attending Napoli's treatment." The court denied appellant's claim of a First Amendment privilege "except as to his conversations with Mr. Napoli", and directed appellant to answer questions "relating to either his efforts to secure a furlough or work release program for Mr. Napoli or as to any knowledge that he may have of preferential treatment that Mr. Napoli received in terms of visitors, food, assignments (and), work assignments".
Thereafter, on both November 2 and 16, 1977, appellant again testified before the Grand Jury. On November 16, appellant refused to reply to many of the inquiries which the court had previously determined to be proper. Appellant reiterated his position that he would not respond because to do so would jeopardize the free exercise of his ministry. Further, appellant asserted that the prosecutor had already obtained the requested responses insofar as appellant had fully answered such inquiries at prior proceedings and the prosecutor had in his possession a transcript of the conversations between appellant and Mr. Ford, a Correction Department official, which had been recorded by the latter.
On December 16 and 21, 1977, appellant, pursuant to an order to show cause, appeared before the court to explain why he should not be adjudged in criminal contempt (Judiciary Law, § 750) for his refusal to respond to those questions which the court had directed him to answer. Appellant, remaining steadfast in his prior position that he would not respond, was held in contempt and committed to prison for 10 days. On appeal, the Appellate Division affirmed the judgment of contempt. 1 There should be an affirmance.
On this appeal, appellant justifies his recalcitrance before the Grand Jury on two grounds: First, the existence of a priest-penitent privilege which forbids disclosure of the requested information; and, second, the right to practice his ministry unhampered by the "chilling effect" which compelled disclosure might breed. We now conclude that neither asserted justification can serve to shield appellant from his obligation to respond to the Grand Jury's inquiries.
It has been recognized, without serious disagreement, that there existed no common-law priest-penitent privilege. (See, generally, 8 Wigmore, Evidence (McNaughton rev, 1961), § 2394; Richardson, Evidence (10th ed), § 424.) By statute, however, "a confession or confidence made to (a clergyman) in his professional character as spiritual advisor" shall not be disclosed "(u)nless the person confessing or confiding waives the privilege". (CPLR 4505.) It is clear that the Legislature by enacting CPLR 4505 and its predecessors responded to the urgent need of people to confide in, without fear of reprisal, those entrusted with the pressing task of offering spiritual guidance so that harmony with one's self and others can be realized.
The priest-penitent privilege arises not because statements are made to a clergyman. Rather, something more is needed. There must be "reason to believe that the information sought required the disclosure of information under the cloak of the confessional or was in any way confidential" for it is only confidential communications made to a clergyman in his spiritual capacity which the law endeavors to protect. (Matter of Puglisi v. Pignato, 26 A.D.2d 817, 274 N.Y.S.2d 213; CPLR 4505; see People v. Gates, 13 Wend 311, 323-324; Kruglikov v. Kruglikov, 29 Misc.2d 17, 217 N.Y.S.2d 845, app. dsmd. 16 A.D.2d 735, 226 N.Y.S.2d 931; United...
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