City of Buffalo, Application of

• Decision Date: 07 April 1977
• Citation: 57 A.D.2d 47,394 N.Y.S.2d 919
• Parties: Application of the CITY OF BUFFALO in re Minutes of the December, 1972 Grand Jury of the County of Erie.
• Court: New York Supreme Court — Appellate Division

Page 919

394 N.Y.S.2d 919

57 A.D.2d 47

Application of the CITY OF BUFFALO in re Minutes of the December, 1972 Grand Jury of the County of Erie.

Supreme Court, Appellate Division, Fourth Department.

April 7, 1977.

Leslie G. Foschio, Corp. Counsel, Buffalo (Harvey Mandelkern, Buffalo, of counsel), for appellant.

Edward C. Cosgrove, Dist. Atty., Buffalo (Judith Blake Manzella, Buffalo, of counsel), for respondent.

Before CARDAMONE, J. P., and SIMONS, WITMER and GOLDMAN, JJ.

GOLDMAN, Justice.

Petitioner, the City of Buffalo, appeals from County Court's denial of its application to inspect the minutes of the December, 1972 Erie County Grand Jury. The inspection motion was opposed by the District Attorney of Erie County.

The present dispute had its genesis when the Grand Jury, following an extensive investigation of a so-called "no-show" job scandal involving Buffalo municipal employees, successfully petitioned the Erie County Court for an order permitting disclosure to the Mayor of Buffalo of the names of 41 Grand Jury witnesses who had, in the Grand Jury's opinion, been paid by the City for work which was never performed. According to the City's affidavit in support of the instant inspection application, the list of names was disclosed to the Mayor in December, 1974, by which time the City had already commenced actions against several individuals named in the list, as well as an action against the Fidelity & Deposit Company of Maryland to recover on a fidelity bond issued by that company to the City. The City's affidavit further alleges: that although the City's Assistant Corporation Counsel knew of admissions made by some persons named in the list, he was "unaware of any wrongdoing of the majority of persons * * * named (in the list) even after numerous inquiries into this matter with personnel from the District Attorney's office and the Department of Street Sanitation of the City of Buffalo"; that in May, 1975 he obtained orders of Erie Special Term permitting the taking of depositions of 22 individuals named in the list prior to bringing actions against them; that some of the parties submitted to depositions and others appealed; that the submitting parties "for the most part, admitted no wrongdoing with the exception of an occasional day's absence, which, at the most, would be interpreted as de minimis "; and that this court reversed Special Term's orders (Matter of City of Buffalo (Orlando), 52 A.D.2d 1061, 384 N.Y.S.2d 321), ruling in effect that the City must first commence its actions and then proceed by the normal post-complaint discovery methods, but could not have pre-action discovery for the purpose of enabling it to state the amount of its damages. The affidavit further states that the City and the bonding company were close to a settlement which, however, was "only based on the admissions which the City presently has in its possession." The affidavit concludes that inspection of the Grand Jury testimony of some 30 witnesses named in the list is important for purposes of determining whether the sums wrongfully received were substantial, to aid not only in settling with the bonding company but also in deciding whether to bring civil actions against persons named in the list.

Six of the witnesses whose Grand Jury testimony is sought have filed an amicus curiae brief in which they argue that the City should be enjoined from any use of the Grand Jury minutes because County Court's order permitting the initial disclosure of the list of names to the Mayor was unlawful. However, the amici are alone in challenging the legality of that order (which was never appealed) and in seeking injunctive relief. Because the amici have no standing to present new issues in the case (Matter of Lezette v. Board of Educ. Hudson City School Dist., 35 N.Y.2d 272, 282, 360 N.Y.S.2d 869, 876, 319 N.E.2d 189, 195), we do not consider their argument on this point.

As all parties agree, the determination of a motion for disclosure of Grand Jury minutes rests in the sound discretion of the court (People v. Di Napoli, 27 N.Y.2d 229, 234-235, 316 N.Y.S.2d 622, 624-626, 265 N.E.2d 449, 451-452; Matter of Scotti, 53 A.D.2d 282, 286-287, 385 N.Y.S.2d 659, 662-663; see, CPL 190.25, subd. (4); Judiciary Law, § 325) and should be based upon a balancing of "the public interest in disclosure against that in secrecy" (People v. Di Napoli, supra, 27 N.Y.2d p. 234, 316 N.Y.S.2d p. 625, 265 N.E.2d p. 451). As the reasons "most frequently mentioned" in support of Grand Jury secrecy, the Di Napoli court recited these:

"(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."

(27 N.Y.2d, p. 235, 316 N.Y.S.2d, p. 625, 265 N.E.2d p. 452; see also, United States v. Proctor & Gamble Co., 356 U.S. 677, 681, n. 6, 78 S.Ct. 983, 2 L.Ed.2d 1077, quoting United States v. Rose, 3 Cir., 215 P.2d 617, 628-629.)

Disclosure of Grand Jury minutes is not limited to public bodies concerned with the administration of the criminal law (People v. Di Napoli, supra, p. 236, 316 N.Y.S.2d p. 626, 265 N.E.2d p. 452), and has frequently been granted to other public officers and agencies which require the minutes in furtherance of some official duty to protect an important public interest (see, e. g., People v. Di Napoli, supra ; Matter of Scotti, 53 A.D.2d 282, 385 N.Y.S.2d 659, supra ; People v. Werfel, 82 Misc.2d 1029, 372 N.Y.S.2d 510; Matter of Temporary State Comm. of Investigation, 47 Misc.2d 11, 261 N.Y.S.2d 916; People v. Behan, 37 Misc.2d 911, 235 N.Y.S.2d 225; Matter of Scro, 200 Misc. 688, 108 N.Y.S.2d 305; People ex...