Carey, Matter of

• Decision Date: 22 May 1979
• Citation: 68 A.D.2d 220,416 N.Y.S.2d 904
• Parties: , 5 Media L. Rep. 1158 In the Matter of the Application of Hugh L. CAREY, Governor of the State of New York, and 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.
• Court: New York Supreme Court — Appellate Division

Page 904

416 N.Y.S.2d 904

68 A.D.2d 220, 5 Media L. Rep. 1158

In the Matter of the Application of Hugh L. CAREY, Governor of the State of New York, and 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.

Supreme Court, Appellate Division, Fourth Department.

May 22, 1979.

Bernard S. Meyer, Mineola, Sp. Counsel to Gov. Carey.

Robert Abrams, Atty. Gen., Albany (Jeremiah Jochnowitz, Albany, of counsel), for State of New York.

Mark K. Benenson, New York City, for Council 82, Security & Law Enforcement Employees Correction Officers.

Robert E. Fischer, Binghamton, pro se.

Malcolm H. Bell, Norwalk, Conn., pro se.

Hinman, Straub, Pigors & Manning, Albany (Peter L. Rupert, Albany, of counsel), for Police Benevolent Association of N.Y.S. Police, Inc.

Before SIMONS, J. P., and SCHNEPP, CALLAHAN and DOERR, JJ.

SIMONS, Justice Presiding.

The Governor and the Attorney General seek permission to publish excerpts of evidence before the Wyoming County Grand Juries. The evidence is contained in Volumes II and III of the Final Report of the Special Attica Investigation, known as the Meyer Report. They appeal from an order of Special Term which held them bound by the statutory provisions requiring that Grand Jury proceedings be secret (see CPL 190.25(3), (4); Penal Law, § 215.70), ¹ and which, as a discretionary matter, denied permission to disclose the evidence. There are also various cross-appeals seeking other or different relief. We affirm the order of Special Term.

The genesis of the Attica investigations is well known. On September 9, 1971 inmates at the Attica Correctional Facility took over a portion of the prison and held control of it until it was retaken by law enforcement personnel on September 13. After the retaking, then Governor Rockefeller directed the Attorney General to supersede the Wyoming County District Attorney to investigate the events surrounding Attica and to prosecute those charged with Attica-related crimes. Robert E. Fischer, a respondent in this proceeding, was designated a Special Deputy Attorney General for that purpose. He later resigned to assume judicial office and Anthony Simonetti succeeded him. The Meyer Report was an investigation of the Attica prosecution during the period that Judge Fischer and Special Deputy Simonetti headed it. The investigation was precipitated by the resignation of respondent, Malcolm H. Bell, a Special Assistant Attorney General and a member of the Attica prosecutorial staff, who publicly criticized the handling of the prosecution, specifically the investigation and prosecution of crimes allegedly committed by law enforcement personnel. He charged that the prosecution "lacked integrity" and he amplified his charges in a written report submitted to the Governor. Appellants responded by appointing former State Supreme Court Justice Bernard S. Meyer as a Special Assistant Attorney General on April 17, 1975 and directed him to "evaluate the conduct of the investigation into the retaking of the Attica Correctional Facility on September 13, 1971, and related events subsequent thereto." When Judge Meyer finished his investigation in October, 1975, he reported the results in a three-volume 570-page report. The first volume contained his Findings and Recommendations and was published on December 22, 1975. It did not contain quotations from the minutes of the Wyoming County Grand Juries. The second and third volumes, which appellants now propose to release, provide the factual basis for Judge Meyer's conclusions in Volume I and contain quotations of Grand Jury testimony and references to Grand Jury testimony.

On December 16, 1975 Alfred J. Scotti was appointed Special Deputy Attorney General to carry out the recommendation of the Meyer Report that Attica convictions, pending indictments and possible future indictments be reviewed to determine what steps should be taken to assure evenhanded prosecution of crimes committed at Attica. At that time Governor Carey and Attorney General Lefkowitz made clear, as they had when they received the Meyer Report, that the entire Report was to be made public upon the conclusion of the investigation.

Subsequently, Mr. Scotti recommended dismissal of all but one of the pending indictments, stating that the investigation by the State Police immediately after the retaking was too deficient to permit the successful prosecution of crimes committed by law enforcement personnel during the retaking. He also recommended executive clemency for eight inmates convicted of Attica-related crimes and he recommended disciplinary action against eight State Troopers, two State Police Officers, eight Correction Officers and two correction employees. On December 31, 1976 Governor Carey pardoned seven inmates and granted executive clemency to an eighth. He requested the Attorney General to take whatever legal action was necessary to effect prompt release of Volumes II and III of the Meyer Report and this application followed.

Special Term's order insofar as we are concerned with it on this appeal ordered redaction of all references to Grand Jury testimony from the Meyer Report, directed that Volumes II and III as redacted then be submitted to all persons criticized in the Report 30 days prior to publication, and that the Report not be released until further order of the court. The obvious purpose of these directions was to assist the court and assure that redaction was complete before publication was permitted.

Appellants challenge Special Term's order on two grounds. First, they submit that inasmuch as the Governor now has possession ² of portions of the Grand Jury minutes and nothing in the statutes prohibits him from publishing them, he may do so without the necessity of a court order. Further than that, they assert that even if it can be said that the court may monitor the use of Grand Jury evidence in the Governor's hands, the sole standard by which the court may judge his action is reasonableness (see Matter of Pell v. Board of Education, 34 N.Y.2d 222, 231, 356 N.Y.S.2d 833, 839, 313 N.E.2d 321, 325), and the proposed publication is reasonable because the public interest requires the release of the entire Meyer Report, including Grand Jury evidence. Appellants have volunteered to redact individual names appearing in the report, as necessary, to avoid injury to reputations. We deem that action to be a matter solely for appellants' determination, not the court's.

I

We conclude that the Governor is bound by the statutory requirement that Grand Jury proceedings are secret. Pertinent to our decision are two discrete subdivisions of section 63 of the Executive Law, subdivisions (8) and (2).

Subdivision (8) of section 63 provides that the Attorney General may, and when directed by the Governor he shall, inquire into matters "concerning the public peace, public safety and public justice" when the public interest requires it. The subdivision was originally enacted as a war measure to enable the executive to cope with sabotage and subversion at the time of World War I. It has remained in effect continuously since then and the Court of Appeals has construed it as having general application (Matter of Sigety v. Hynes, 38 N.Y.2d 260, 379 N.Y.S.2d 724, 342 N.E.2d 518, cert. den. 425 U.S. 974, 96 S.Ct. 2174, 48 L.Ed.2d 798; Matter of DiBrizzi (Proskauer), 303 N.Y. 206, 101 N.E.2d 464; but see Matter of Friedman v. Hi-Li Manor Home for Adults, 42 N.Y.2d 408, 397 N.Y.S.2d 967, 366 N.E.2d 1322). The subdivision confers general investigative powers and provides a means whereby the Governor and the Attorney General may acquire information to guide them in the performance of their executive duties.

Subdivision (2) of section 63 serves quite another purpose. It authorizes the Governor to direct the Attorney General to supersede local District Attorneys. That subdivision is based upon the Governor's historic duty to see that the laws are enforced (N.Y.Const., art. IV, § 3; and see Mulroy v. Carey, 58 A.D.2d 207, 212, 396 N.Y.S.2d 929, 932, affd. 43 N.Y.2d 819, 402 N.Y.S.2d 570, 373 N.E.2d 369; Pitler, Superseding District Attorneys in New York City The Constitutionality and Legality of Executive Order No. 55, 41 Fordham Law Review 517, 520-521). An Attorney General who supersedes a local District Attorney is empowered to manage and conduct specified criminal actions and proceedings and for that purpose he, or his Deputy, steps into the shoes of the local District Attorney and exercises all powers and performs all duties with respect thereto that the local District Attorney would otherwise perform. The Special Deputy Attorney General's access to Grand Jury evidence and his disposition of it in the matters in which he is authorized to act is the same as that possessed by the superseded District Attorney (CPL 1.20(32)). A designee of the Attorney General acting under subdivision 8, however, does not step into the shoes of a District Attorney, for subdivision 8 is not intended to be used to initiate the criminal indictment or prosecution of any individual (see Matter of DiBrizzi (Proskauer), 303 N.Y. 206, 216-217, 101 N.E.2d 464, 468-469, supra; Matter of Sigety v. Hynes, 38 N.Y.2d 260, 266, 379 N.Y.S.2d 724, 729, 342 N.E.2d 518, 521, supra; Ward Baking Company v. Western Union Telegraph Co., 205 App.Div. 723, 728-729, 200 N.Y.S. 865, 869-870).

Special Deputy Attorney General Meyer did not supersede the District Attorney of Wyoming County (or respondent Fischer or Simonetti). His appointment was made "in connection with" the prior Gubernatorial Executive Orders appointing respondent Fischer, but he was not directed to prosecute crimes committed during the Attica uprising and retaking and he did not undertake to do so. His function was to investigate respondent Bell's charges pursuant to section 63, subd. 8 and when he...