People v. Fentress

• Decision Date: 13 February 1980
• Citation: 103 Misc.2d 179,425 N.Y.S.2d 485
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Albert FENTRESS, Defendant.
• Court: New York County Court

Page 485

425 N.Y.S.2d 485

103 Misc.2d 179

The PEOPLE of the State of New York, Plaintiff, v. Albert FENTRESS, Defendant.

Dutchess County Court.

Feb. 13, 1980.

John R. King, Dutchess County Dist. Atty., Thomas J. Dolan, Poughkeepsie, of Counsel, for plaintiff.

Peter L. Maroulis, Poughkeepsie, for defendant.

ALBERT M. ROSENBLATT, Judge.

What are the statutory and ethical obligations of an attorney who receives a telephone call from a friend who states that he has just killed someone and is about to take his own life? May the divulgence, under any circumstances, be disclosed, and if so, to whom, and with what consequences? The defendant argues that attorney-client confidentiality in this instance is absolute, and that any disclosure which, directly or indirectly, leads to a discovery of the body and evidence, mandates dismissal of an indictment.

The defendant stands indicted for intentional murder (Penal Law 125.25(1) ). While the facts adduced before the grand jury are sufficient to establish the crime, the defendant avers that the indictment must be dismissed because it is the product of tainted and inadmissible evidence, presented in violation of the attorney-client privilege, as codified in CPLR 4503.

The attorneys for both sides have asserted that the case is unprecedented in American legal annals. This Court's research has not uncovered any opinion involving the confluence of an alleged breach of confidence by one's own attorney and the applicability of an exclusionary statute as a proposed remedy.

The defendant asserts that he contacted Wallace Schwartz, and in quest of legal advice, confided to him the facts regarding the event, and that the attorney called his own mother, who, in turn, called the defendant and then the police, as a result of which the defendant was arrested, and the body of the victim discovered in his home. He maintains that the disclosures were unauthorized, that the evidence presented to the grand jury flowed from the breach of confidentiality which he never waived, and that CPLR 4503 precludes the use, directly of derivatively, of any evidence obtained in violation of the attorney-client privilege. In short, he contends that the alleged breach of confidentiality immunizes him from criminal responsibility.

The case presents issues at the root of the attorney-client relationship, the professional duty of confidentiality, the concept of waiver, the statutory prohibitions, and the vexing ethical and moral dilemmas which marked the episode itself.

CPLR Section 4503 reads as follows:

§ 4503. Attorney

(a) Confidential communication privileged; non-judicial proceedings. Unless the client waives the privilege, an attorney or his employee, or any person who obtains without the knowledge of the client evidence of a confidential communication made between the attorney or his employee and the client in the course of professional employment, shall not disclose, or be allowed to disclose such communication, nor shall the client be compelled to disclose such communication, in any action, disciplinary trial or hearing, or administrative action, proceeding or hearing conducted by or on behalf of any state, municipal or local governmental agency or by the legislature or any committee or body thereof. Evidence of any such communication obtained by any such person, and evidence resulting therefrom, shall not be disclosed by any state, municipal or local governmental agency or by the legislature or any committee or body thereof. . . .

Upon the underscored language, the defendant bases his contention that the indictment rests on proof "resulting" from the breach, but for which there would have been no arrest, discovery of evidence, or indictment. CPLR Section 4503, by virtue of CPL Section 60.10, is made applicable to criminal actions (People v. Hitchman, 70 A.D.2d 695, 416 N.Y.S.2d 374).

Because the motion is addressed to the sufficiency of legal proof before the grand jury, it has been necessary to hear witnesses (CPL 210.45(6)), in order to factually determine whether an attorney-client relationship was born, whether the utterances were made within its lifetime and parameters, and if so, whether a seal of contemplated secrecy was broken by Wallace Schwartz, or by the defendant's own acts, thereby constituting a waiver.

I THE HEARING

The defendant is correctly cognizant of his burden of proof to demonstrate the insufficiency of the grand jury proof upon a motion to dismiss (CPL 210.45(7); People v. Scroggins, 56 A.D.2d 856, 392 N.Y.S.2d 235), as well as his task of establishing the existence of a privileged relationship (Rosseau v. Bleau, 131 N.Y. 177, 183, 30 N.E. 52, 53; Bankers' Money Order Assoc. v. Nachod, 120 App.Div. 732, 733, 105 N.Y.S. 773, 774), the facts to justify its recognition by the Court (Bloodgood v. Lynch, 293 N.Y. 308, 314, 56 N.E.2d 718, 720; Randy International Ltd. v. Automatic Compactor Corp., 97 Misc.2d 977, 981, 412 N.Y.S.2d 995, 997), and the existence of the pre-requisites for its operability (Fisch on New York Evidence, Sec. 22, 418; People v. Doe, 99 Misc.2d 411, 416 N.Y.S.2d 466).

At the outset, he expressed grave concern about negotiating the mine field through which he could present proof of an alleged breach by the former attorney, Wallace Schwartz, without waiving the very confidentiality of the communications themselves. The paradox involves the proposed introduction of proof of an allegedly confidential consultation, in order to establish its ensuing and allegedly unauthorized disclosure by Wallace Schwartz, as against the risk that its presentation in Court would, by waiver, pave the way for its use at a trial of the indictment in the event the dismissal motion fails.

As a general rule, a defendant in the exercise of one right, may not be compelled to forego another (Simmons v. United States, 390 U.S. 377, 394, 88 S.Ct. 967, 976, 19 L.Ed.2d 1247). The waiver doctrine has been invoked when the defendant directly or through his witness exposes the confidences (People v. Bloom, 193 N.Y. 1, 85 N.E. 824; Richardson on Evidence, 10th Ed., Sec. 438). To resolve the quandary, both sides expressly consented to a prohibition against any use by the prosecution, on its case-in-chief at trial, of any allegedly confidential statements adduced at the hearing. In that manner, the defendant would surrender nothing in the exercise of his right (and burden) to attempt to prove the violation of CPLR 4503, while the People would be permitted, at the trial, to use testimony adduced at the hearing, for impeachment or rebuttal purposes only, analogous to the rule in Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1. The format is comparable to the security afforded a defendant who may testify at a Huntley hearing without risking cross examination on the merits and the introduction of that testimony offered against him at the trial (People v. Lacy, 25 A.D.2d 788, 270 N.Y.S.2d 1014).

FINDINGS OF FACT

Albert Fentress was a schoolteacher in the City of Poughkeepsie School System.

Among his colleagues there for more than a decade was Enid Schwartz, a fellow teacher and personal friend, whom Fentress visited at her home once or twice yearly. Her friendship with Fentress was substantial, and was based on his having taught two of her children, as well as on the independent basis of their relationships as colleagues over the years.

One of these sons, Wallace, had been taught by Fentress in the ninth grade, and through the years had developed an independent personal friendship with him. After graduating, Wallace Schwartz and Fentress visited at each others homes and had engaged in sports together.

After Wallace graduated from law school, and joined a civil firm in New York City, he gave Fentress his card and told him that he could call him at any time. On August 20, 1979, the Court finds the following to have occurred:

2:12 a. m.

Fentress, from his home at 216 Grand Avenue in Poughkeepsie, called Wallace Schwartz at the latter's home in Hartsdale, Westchester County. The first thing that Fentress said was that he was about to kill himself. Fentress spoke in a low monotone, and was distraught, but coherent. He told Schwartz that he had just killed someone, that a terrible thing had happened, which he could not square with God, and that he was going to kill himself.

Incredulous, Wallace Schwartz said it must have been an accident, but was told it was not, and that there had been a sexual mutilation as well.

In continuing attempts to dissuade his valued friend from suicide, Wallace Schwartz told Fentress that suicide would not square anything with God, and that whatever had happened, Fentress could get help. Wallace Schwartz invited Fentress to his house, and offered to go to Fentress's house, but Fentress refused.

Wallace Schwartz then suggested various persons who might be able to call and stay with Fentress, all of whom were rejected. However, later in the conversation Fentress said he would like the local rabbi, Rabbi Zimet, to come to his house and asked Wallace Schwartz to call the rabbi for him, which Wallace Schwartz agreed to do immediately. Fentress said he would leave the door open, and wait for the rabbi. It was also agreed that the police be summoned. (See Point IV, infra)

Schwartz testified that it was his "legal" advice to Fentress that the police be called. Fentress agreed, and stated that he would like to have both Wallace Schwartz and the rabbi present when the police arrived. (See Point IV, infra)

At this point, of course, Schwartz did not have firsthand knowledge of the facts, but, recognizing the urgent need for immediate action (he could not fully conclude that any victim was actually dead) and because he was some fifty miles away, he immediately attempted to arrange to contact the rabbi. ¹

2:40 a. m.

Wallace Schwartz called his mother, Enid Schwartz, who lived in Poughkeepsie, to enlist her aid in calling the rabbi and arranging for...