Albert v. Zahner's Sales Co., Inc.

• Decision Date: 13 February 1975
• Citation: 81 Misc.2d 103,364 N.Y.S.2d 410
• Parties: Arthur ALBERT and Mona Albert, Plaintiffs, v. ZAHNER'S SALES COMPANY, INC., et al., Defendants.
• Court: New York Supreme Court

Page 410

364 N.Y.S.2d 410

81 Misc.2d 103

Arthur ALBERT and Mona Albert, Plaintiffs, v. ZAHNER'S SALES COMPANY, INC., et al., Defendants.

Supreme Court, Special Term, Queens County, Part 1.

Feb. 13, 1975.

Ira J. Raab, Lynbrook, for plaintiffs.

Nicholas Ferrara, Dist. Atty.

ALBERT H. BUSCHMANN, Justice.

This motion for the discovery of grand jury minutes was originally brought in the Criminal Term of this court but transferred to Special Term, Part 1, by decision dated January 13, 1975. The motion by plaintiff is made within the framework of a civil action for false arrest, false imprisonment and malicious prosecution and although the motion was originally captioned in the criminal action, the court will nonetheless deem this application to have been so brought and thus will consider the merits.

Plaintiff was indicted for grand larceny in the second degree. On October 9, 1973, on motion by defense counsel at the end of the People's case, the indictment was dismissed. The instant action was commenced in March 1974 against the complainants in the criminal case. An order of the court, made after hearing the District Attorney, is required for the disclosure of grand jury testimony. (Judiciary Law, § 325; CPL 190.25(4).)

The issue precisely framed is whether a plaintiff in a civil action for malicious prosecution can discover the grand jury testimony of the complaining witnesses in the criminal case which forms the basis of the action. Historically, the custom of secrecy became fixed as a legal principle in the Earl of Shaftesbury's trial in 1681, and by the end of the Nineteenth Century the use of grand jury minutes became an effective weapon in the preparation of the State's case. (See 40 Fordham L.Rev. 175.) In evolving rules governing the use of grand jury testimony, courts have generally refused to permit disclosure unless the moving party was connected with law enforcement. Thus, in People v. Ewald, 144 Misc. 657, 259 N.Y.S. 314, a subcommittee of the New York City Bar Association investigating the activities of the Chief Clerk of the City Court was denied access to the clerk's grand jury testimony. The court stated, '* * * no reported decision has gone the length of permitting over objection an inspection of the minutes of the grand jury in a non-criminal investigation * * *'. (People v. Ewald, Supra at p. 660, 259 N.Y.S. at p. 317; see also People v. Doe, 47 Misc.2d 975, 263 N.Y.S.2d 607, affd. 24 A.D.2d 843, 263 N.Y.S.2d 688; Dworetzky v. Monticello Smoked Fish Co., 256 App.Div. 772, 12 N.Y.S.2d 270; Matter of Grand Jury of Erie County, 192 Misc. 857, 77 N.Y.S.2d 438; In re People ex rel. Sawpit Gymnasium Sup., 60 N.Y.S.2d 593.)

However, the first time the Court of Appeals had the question before it, it affirmed, without opinion, the lower court's exercise of discretion in granting the disclosure of grand jury minutes to residents of the Town of Mt. Pleasant to aid them in proceedings to remove the Receiver of Taxes. (In re Quinn, 293 N.Y. 787, 58 N.E.2d 730.) In People v. Di Napoli, 27 N.Y.2d 229, 316 N.Y.S.2d 622, 265 N.E.2d 449, the Court of Appeals clarified its position: 'We start with the proposition that secrecy of grand jury minutes is not absolute * * *.' Disclosure rests in the discretion of the trial judge who must balance public interest in disclosure against that in secrecy. Ascribing as reasons for the maintenance of secrecy, the Court listed: '(1) prevention of flight by a defendant who is about to be indicted; (2) protection of the grand jurors from interference from those under investigation; (3) prevention of subornation of perjury and tampering with prospective witnesses at the trial to be held as a result of any indictment the grand jury returns; (4) protection of an innocent accused from unfounded accusations if in fact no indictment is returned; and (5) assurance to prospective witnesses that their testimony will be kept secret so that they will be willing to testify freely.' (People v. Di Napoli, Supra at p. 235, 316 N.Y.S.2d at p. 625, 265 N.E.2d at p. 452.)

Thus in Di Napoli the interest of the public in disclosure prevailed, especially in view of the fact that the grand jury proceeding was concluded two years before, which neutralized the effect of the first four factors, and further that the witnesses before the grand jury could have reasonably anticipated an inquiry by a governmental body. Citing Matter of Quinn, Supra, the Court found no merit in the contention that permission to inspect grand jury minutes should be given only to officials or agencies concerned with the enforcement or administration of criminal law. There is one caveat: 'Quite obviously, our affirmance will not sanction any general disclosure or...