Carey, Application of
| Decision Date | 13 September 1971 |
| Citation | 402 N.Y.S.2d 100,92 Misc.2d 316 |
| Parties | Application of Hugh L. CAREY, Governor of the State of New York and Louis J. Lefkowitz, Attorney General of the State of New York for a judicial determination as to the publication of Volumes 2 and 3 of the Final Report of Bernard S. Meyer, Special Deputy Attorney General, evaluating the conduct of the investigation by the Special Prosecutor into the retaking of the Attica Correctional Facility on |
| Court | New York Supreme Court |
The petitioners, Hugh L. Carey, Governor of the State of New York, and Louis J. Lefkowitz, Attorney General of the State of New York, seek a judicial determination as to the propriety of the publication of Volumes 2 and 3 of the Final Report of the Special Deputy Attorney General, Bernard S. Meyer, (Meyer Report) which evaluated the conduct of the investigation by the Special Prosecutor into the retaking of the Attica Correction Facility on September 13, 1971 and related events subsequent thereto, which Report contains excerpts from the minutes of the Wyoming County Grand Jury and further seeks a determination under what conditions and to what extent the Court deemed just and proper to release all or any parts thereof.
Elizabeth M. Hardie and Lynda Jones, claimants in an action against the State of New York pending before the Court of Claims move:
1. for an order directing the State of New York to produce for investigation and copying by the claimants or their attorneys, Volumes 2 and 3 of the Final Report of Special Deputy Attorney General Bernard S. Meyer;
2. for an order allowing their attorneys to inspect the minutes of the Second Wyoming County Grand Jury investigating the conduct of the New York State Personnel and Correction Officers during the retaking of the Attica Prison on September 13, 1971; and 3. for an order of the Court directing that the defendant State of New York turn over to the claimants' attorneys copies of all the debriefing statements and shooter statements taken from the State Police Personnel and Correction Officers after the assault and retake of the Attica Prison on September 13, 1971, as ordered by Justice Quigley of the New York State Court of Claims, July 1, 1977.
On the recommendation of Governor Carey, Bernard S. Meyer was appointed pursuant to Section 63 of the Executive Law by the Attorney General on April 17, 1975 as a Special Deputy Attorney General to evaluate the conduct of the investigation by the Special Prosecutor into the retaking of the Attica Correction Facility on September 13, 1971 and related subsequent events.
Thereafter, on October 27, 1975, Special Deputy Attorney General Meyer rendered a report to Governor Carey and the Attorney General consisting of three volumes containing his findings and the evidence in support thereof, together with his recommendations.
On December 22, 1975, pursuant to Section 63, Subd. 8, of the Executive Law, Volume 1 of the Special Deputy Attorney General's Report containing findings and recommendations was released to the public by the Governor and the Attorney General.
Subsequent to the appointment of Special Deputy Attorney General Bernard S. Meyer, Alfred J. Scotti was appointed as a Special Deputy Attorney General on December 16, 1975 to oversee the conduct of the Attica investigation and, among other assignments, to "review evidence to determine whether indictments should be sought against law enforcement personnel and others, and to conclude all aspects of the Attica probe 'justly.' "
In January and February 1976, upon Mr. Scotti's recommendation, indictments against twenty-four inmates and one State Trooper were dismissed. The two grand juries hearing the Attica Prison riot evidence have been discharged.
On December 31, 1976, Governor Carey announced that he would pardon seven inmates and commute the sentence of an eighth "to close the book" on the Attica riot and further declared that based on recommendations of Superintendent of the State Police, William G. Connelie, and Corrections Commissioner, Benjamin Ward, no disciplinary action would be taken against twenty law enforcement personnel.
Release of the entire Report had been recommended by both Special Deputy Attorneys General, Bernard S. Meyer and Alfred J. Scotti, allowing time to individuals named in the Report for recourse to the courts. The Governor and the Attorney General publicly stated that Volumes 2 and 3 of the Meyer Report be made public because it is in the public interest for the public to know what transpired to the end that confidence in our system of justice be restored.
The Governor requested the Attorney General to take whatever legal action necessary to effect the prompt release of Volumes 2 and 3 of the Meyer Report which quotes grand jury testimony and draws conclusions based upon grand jury evidence.
Section 190.25(4) of the Criminal Procedure Law prohibits disclosure of grant jury testimony except by court order.
Petitioner, Louis J. Lefkowitz, Attorney General, asserts that the First Volume of the Meyer Report did not contain grand jury minutes and was given a public release. Since individuals are named in Volumes 2 and 3 which contain grand jury minutes, the Court should determine whether and under what conditions access to Volumes 2 and 3 should be allowed; and if allowed, who may examine such volumes so that they may have an opportunity to take appropriate legal action prior to the determination of this motion.
The petitioner asserts that there are 83 pending cases which arose out of the Attica uprising in the Court of Claims of the State of New York and in the Federal Courts against the State of New York, individual defendants, State officials and employees.
That Volumes 2 and 3 contain information which may be prejudicial to the defendants whom he represents in the civil actions.
Petitioner asserts that he has a divided responsibility between a duty to the public as a public official to seek the release at the request of the Governor, and his responsibility to assume control of the representation of State officers and employees against whom actions have been brought for acts in the performance of the discharge of their duties.
Motions were made by the claimants Hardy and Jones to disclose the grand jury minutes before the Honorable Robert M. Quigley who held that he lacked jurisdiction and dismissed the motions in the Court of Claims.
The Attorney General contends that in a motion before Judge Quigley, the claimants Jones and Hardy sought production of the Meyer Report and minutes of the Special Grand Jury and the records of the McKay Commission. That Judge Quigley granted the inspection of the records of the McKay Commisson but made no statement with regard to either the Meyer Report or the Special Grand Jury minutes and contends that he impliedly denied that part of the request.
The decision was appealed to the Appellate Division, 4th Department, which ruled that the McKay material was protected from disclosure by the public interest privilege. That the claimants had an opportunity to test the denial by Judge Quigley and they...
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In re Carey
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Carey, Matter of
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Kinsella, Application of
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Jones v. State
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