Additional January 1979 Grand Jury of Albany Supreme Court v. Doe

CourtNew York Court of Appeals
Citation427 N.Y.S.2d 950,405 N.E.2d 194,50 N.Y.2d 14
Parties, 405 N.E.2d 194 . Jane DOE, Appellant. Court of Appeals of New York
Decision Date01 April 1980
Arthur H. Grae and James M. Rose, White Plains, for appellant

JASEN, Judge.

On this appeal, we are asked to review an order directing a Grand Jury witness to answer questions propounded by a Special Assistant Attorney-General in proceedings being conducted by him pursuant to an executive order of superseder which defines the subject matter of the Attorney-General's authority only by reference to a numbered file of a pending investigation in the office of the Special State Prosecutor for Nursing Homes.

On December 20, 1978, the Governor, in response to calls of concern expressing the possibility that various crimes may have been committed by public officials in Albany County, issued Executive Order No. 78 (9 NYCRR 3.78) directing the Attorney-General to appear before a term of Supreme Court and a Grand Jury in Albany County for the purpose of managing and conducting proceedings "concerning or relating to any and all unlawful acts or omissions or alleged unlawful acts or omissions by any person arising out of, relating to, or in any way connected with the subject matter of an investigation presently pending in the Office of the Special State Prosecutor for Nursing Homes, Health and Social Services, entitled: People v. John Doe, Special Prosecutor's File Number N Y 9-41" and to supersede the District Attorney of Albany County in such proceedings. 1 The Governor's authority to issue this executive order has its genesis in his constitutional duty to "take care that the laws are faithfully executed" (N.Y.Const. art. IV, § 3) and is specifically provided in an express statutory grant (Executive Law, § 63, subd. 2).

Thereafter, a subpoena was issued commanding appellant Jane Doe to attend as a witness before the Grand Jury on January 18, 1979. The record reveals that her testimony would be vital to the successful execution of the Grand Jury's function, inasmuch as appellant's prior testimony before a Westchester County Grand Jury indicated her familiarity with the facts and circumstances underlying the Albany County investigation.

Appellant did appear before the Grand Jury on January 18 and was granted full transactional immunity. (See CPL 190.40, subd. 2.) Although she answered some of the inquiries addressed to her, numerous lines of questioning were rebuffed with an unequivocal refusal to respond. 2 Faced with this recalcitrance, the special prosecutor applied for an order directing appellant to reappear before the Grand Jury and to answer the questions put to her, or, in the alternative, for an order holding appellant in contempt. By cross motion, appellant sought various relief, including an order quashing the subpoena or directing disclosure to her of documents and papers held by the special prosecutor. Special Term granted an order directing appellant to answer the questions asked of her before the Grand Jury under pain of contempt, and denied appellant's cross motion.

After remitting this matter twice for further development of the record and additional findings by Special Term, the Appellate Division unanimously affirmed the order of Special Term. 3 That court rejected appellant's contention that Executive Order No. 78 is so vague and obscure to be deficient on its face, reasoning that "the statute (Executive Law, § 63, subd. 2) does not mandate the form such a specification must take." (69 A.D.2d 955, 419 N.Y.S.2d 337.) Further, the Appellate Division held that the original subpoena and a subsequent subpoena directing appellant's appearance before the Grand Jury were properly issued in accordance with the executive order. (71 A.D.2d 1038, 420 N.Y.S.2d 272.)

Leave to appeal was granted by this court to examine the novel issues raised herein. We conclude that there should be an affirmance.

Although appellant urges reversal by raising numerous contentions on this appeal, we believe only two such arguments have sufficient merit to require discussion. Appellant first challenges the validity of Executive Order No. 78 by claiming that it fails to comply with the specificity requirement embodied in subdivision 2 of section 63 of the Executive Law. That section provides, in pertinent part, that the Attorney-General shall "(w)henever required by the governor, attend in person, or by one of his deputies, any term of the supreme court or appear before the grand jury thereof for the purpose of managing and conducting in such court or before such jury criminal actions or proceedings as shall be specified in such requirement; in which case the attorney-general or his deputy so attending shall exercise all the powers and perform all the duties in respect of such actions or proceedings, which the district attorney would otherwise be authorized or required to exercise or perform; and in any of such actions or proceedings the district attorney shall only exercise such powers and perform such duties as are required of him by the attorney-general or the deputy attorney-general so attending."

It cannot be disputed that this statutory language contemplates a degree of specificity for it is stated expressly that the criminal actions sought to be investigated "shall be specified in such requirement". Indeed, this mandate of specificity serves a vital purpose. The grant of authority to the Attorney-General pursuant to subdivision 2 of section 63 of the Executive Law is neither self-executing nor boundless. Rather, the Attorney-General's authority and that of the special prosecutor designated by him extend only to those matters set forth in the Governor's order. (Matter of Dondi v. Jones, 40 N.Y.2d 8, 19, 386 N.Y.S.2d 4, 351 N.E.2d 650; see Matter of Turecamo Contr. Co., 260 App.Div. 253, 259, 21 N.Y.S.2d 270.)

In our opinion, this requirement of specificity is satisfied by the Governor's reference to a numbered file of a pending investigation in the office of the special State prosecutor. The underlying purpose of such requirement to inform the Attorney-General of the range of his anticipated duties is fully satisfied inasmuch as the Attorney-General is made aware of the scope of his authority in superseding the local District Attorney. The scope of his authority is limited to those matters relating to, or in any way connected with, the subject matter contained in the investigatory file referred to in the executive order.

Nor can it be said that the Governor's order of superseder is rendered less specific because the contents of such file are subject to almost inevitable flux. Investigatory or prosecutorial files are, without doubt, everchanging. While the Attorney-General or his designated special prosecutor should never be permitted to expand unilaterally the scope of his authority by increasing the file to encompass matters not included therein at the time the executive order was issued, this is not to say that the file must remain static. Rather, subdivision 2 of section 63 of the Executive Law should be interpreted as limiting the Attorney-General's authority to those matters relating to, or in any way connected with, the subject matter contained in the special prosecutor's investigatory file at the time the executive order was issued. A mere change in the contents of the file by adding additional information concerning the matter under investigation does not trigger automatically an increase in authority when so limited.

Further, it should be stressed that the authority exercised by the Attorney-General or his designee is not immune from scrutiny. Such authority can be challenged in the courts and it is within the constant control of the Governor. As Chief Judge Breitel stated when characterizing the nature of an executive order: "An Executive Order is ambulatory, and is alterable or revocable at the pleasure of the Governor. Indeed, on numerous occasions, three Governors have seen fit to reaffirm, amend, or limit the scope of the original Executive Order for various purposes". (Matter of Dondi v. Jones, 40 N.Y.2d 8, 29, 386 N.Y.S.2d 4, 18, 351 N.E.2d 650, 665, supra (dissenting opn.).)

In short, we find no impropriety in defining the scope of the Attorney-General's authority only by reference to a fictitious name and the number of a confidential file. Such reference is not lacking in specificity and serves the demand of subdivision 2 of section 63 of the Executive Law where the subject matter ordered to be investigated is contained in the numbered confidential file.

Underlying appellant's attack is the more fundamental question whether the executive order must be phrased in such language so as to inform both a prospective witness and his attorney as to the scope of the investigation. Appellant argues, in essence, that given the enigmatic description of the scope of the Attorney-General's authority embodied in Executive Order No. 78 subject matter of the investigation entitled "People v. John Doe, Special Prosecutor's File Number N Y 9-41" no witness summoned before the Grand Jury would be able even to guess at the propriety of the questions asked of him.

Analysis of this issue must commence with the recognition of the function of a Grand Jury. Obviously, the Grand Jury is not charged with the responsibility of determining the guilt or innocence of the accused, but, rather, its primary function "is to investigate crimes and determine whether sufficient evidence exists to accuse a citizen of a crime and subject him or her to criminal prosecution". (People v. Calbud, Inc., 49 N.Y.2d 389, 394, 426 N.Y.S.2d 238, 240.) In this sense, the Grand Jury serves a dual responsibility. As we have only recently observed: "(The Grand Jury) functions to protect the community...

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