Fuhrer v. Hynes

Appeal from an order of the Supreme Court, Richmond County, entered October 18, 1979, which adjudged appellant to be in criminal contempt based upon his refusal to answer questions before the Grand Jury and imposed sentence. Order affirmed, without costs or disbursements, on the opinion of Mr. Justice Barlow at Criminal Term. We further note that for the defense of justification to apply, the impending injury (here the alleged loss of appellant’s ministry) must clearly outweigh the injury sought to be prevented by statute (here the loss of Grand Jury testimony) (see Penal Law, § 35.05). The balance between similar First Amendment claims and the compelling State interest in criminal investigation has been resolved in favor of the latter (Matter of Keenan v Gigante, 47 NY2d 160; Smilow v United States, 465 F2d 802, vacated on other grounds 409 US 944). This provides further reason to reject the defense of justification. Damiani, J. P., Gulotta, Margett and Gibbons, JJ., concur. [100 Misc 2d 315.]