Dave v. Cnty. of Suffolk, 15-CV-3864 (JMA)(GRB)

• Decision Date: 02 June 2017
• Docket Number: 15-CV-3864 (JMA)(GRB)
• Parties: RITA DAVE, Plaintiff, v. THE COUNTY OF SUFFOLK, DETECTIVE INVESTIGATOR LAWRENCE SHEWARK, Shield No. 308, P.O. "JANE DOE", Individually and in her Official Capacity, and P.O.s "JOHN DOE" #1-10, Individually and in their Official Capacities, (the name "John Doe" being fictitious, as the true names are presently unknown), Defendants.
• Court: U.S. District Court — Eastern District of New York

RITA DAVE, Plaintiff, v. THE COUNTY OF SUFFOLK, DETECTIVE INVESTIGATOR LAWRENCE SHEWARK,Shield No. 308, P.O. "JANE DOE", Individually and in her Official Capacity,and P.O.s "JOHN DOE" #1-10, Individually and in their Official Capacities,(the name "John Doe" being fictitious, as the true names are presently unknown), Defendants.

15-CV-3864 (JMA)(GRB)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

June 2, 2017

MEMORANDUM OF DECISION & ORDER

GARY R. BROWN, United States Magistrate Judge:

Before the undersigned is an application by plaintiff seeking the unsealing of grand jury minutes relating to the prosecution underlying this civil action, which criminal prosecution was dismissed based upon a finding by a state court judge that the County failed to present sufficient evidence to the grand jury.After plaintiff raised this issue, the undersigned directed plaintiff to seek relief in the state court that had custody of the relevant grand jury minutes.Upon consideration, the state judge returned the matter to the undersigned, suggesting that, following an in camera review of the subject transcripts, this Court would be in the best position to make a determination as to the propriety of releasing such minutes in the context of this action.

In making this application, plaintiff faces a substantial burden of demonstrating a particularized need for the record of the grand jury proceedings.For the reasons set forth herein, she has failed to meet this burden, and the application is DENIED.

PROCEDURAL HISTORY

This matter was commenced on July 1, 2015 by the filing of a complaint alleging, inter alia, claims of malicious prosecution.DE 1.Defendants filed an answer on August 10, 2015.DE 9.On October 7, 2015, the undersigned held an initial conference at which the plaintiff was directed to file an application with the state court for release of the relevant records.See Minute Entry dated October 7, 2015.On August 4, 2016, the Honorable Martin I. Efman of the Suffolk County Supreme Court issued a decision and order stating, in relevant part, as follows:

Under IndictmentNo. 01029B-2013, defendantRita Dave was charged with eleven felonies, the most serious charges being seven counts of Grand Larceny in the Second Degree, PL§ 155.40(1).On September 9, 2013, the Court issued an Order denying defendant's motion to reduce or dismiss based upon a review of the Grand Jury minutes.Defendant subsequently filed an omnibus motion.On December 9, 2014, the Court rescinded its previous Order.Pursuant to CPL §210.20(l)(b)and§210.20(4), all counts of this indictment pertaining to this defendant were dismissed with leave to the People to submit the matter to another Grand Jury.The basis for the Court' s 2014 decision was that the minutes of the Grand Jury presentation were not legally sufficient to support the indictment.

* * *

With respect to defendant's application for release of the Grand Jury Minutes, the People are opposed to the general unsealing and release of the Grand Jury transcripts but consent to the alternative relief of unsealing for the limited purpose of transferring the transcripts to the presiding Justice in the Federal civil action.The Court determines that defendant has not demonstrated a compelling and particularized need for general access to the Grand Jury transcripts and defendant has shown no public interest, In the Matter of District Attorney of Suffolk County, 58 N.Y.2d 436(1983);People v. DiNapoli, 27 N.Y.2d 229, 238(1970);Albert v. Zahner's Sales Co., 51 A.D.2d 541(2nd Dept.1976).Although this Court has discretion to disclose the Grand Jury minutes, it determines that the extent to which disclosure of the Grand Jury minutes should be allowed, and the timing of that disclosure, is best determined by the Federal District Court following in camera inspection.That Court is in the best position to identify which evidence should be disclosed in the context of the Federal action.

DE 15-1.Following further efforts to resolve this matter without resort to costly motion practice, see Minute Order dated Sept. 20, 2016, DE 17; Electronic Order dated October 11,2016, DE 18, those efforts failed to come to fruition.DE 19.On January 5, 2017, plaintiff filed the instant motion, which was fully briefed on January 27, 2017.DE 28.This opinion follows.

FACTUAL BACKGROUND

The complaint in this action alleges, in relevant part, as follows:

Plaintiff, Rita Dave, began the practice of law in 1992, ran her own practice as a general practitioner, and received various awards for her pro bono efforts.Compl.¶¶ 13-15, DE 1.As part of her practice, she represented clients in hundreds of real estate transactions.Id.at ¶ 18.One such client, Dr. Kamal Zafar, purportedly without Dave's knowledge or involvement, became entangled in a massive mortgage fraud scheme.Id.at ¶¶19-53.An investigation into Zafar's activities led to plaintiff's arrest and indictment on eleven criminal counts.Id.at ¶¶ 54-57.

Plaintiff further alleges that the relevant investigators, including defendant Shewark, though aware of her purported ignorance of the scheme, misled the District Attorney's Office through false statements and reports and the suppression of exculpatory evidence, into believing that Dave bore culpability in the scheme.Id.at ¶¶ 58-63.As part of that recitation, the complaint catalogs matters about which defendants purportedly made misrepresentations to the District Attorney's Office.Id.While the complaint makes no specific allegations concerning misstatements before the grand jury, plaintiff alleges more generally that defendants"misrepresented and falsified evidence throughout all phases of the criminal proceedings."Id.at ¶ 93;cf.id.at ¶ 94(referencing "the perjurious and fraudulent conduct of defendants").The complaint further describes the December 9, 2014 dismissal of the indictment on the grounds that the evidence presented to the grand jury was not legally sufficient to support the counts of the indictment charged as against her.Id.at ¶¶ 65-70, Attachment A.The state court's order is discussed in further detail below.

Based on these facts, the complaint purports to set forth claims, as relevant herein, for malicious prosecution under 42 U.S.C. §1983 and pursuant to state law.

The Dismissal Decision

Justice Efman's decision dismissing the indictment is highly probative to the matters before the Court on this motion.See generally DE 25-2.In that decision, Justice Efman described findings predicated upon his in camera review of the subject grand jury minutes:

The Court has examined the minutes of the Grand Jury presentation in camera and determines that, with respect to all seven counts against defendantRita Dave, the evidence is legally insufficient.An indictment may only he obtained if the evidence submitted is legally sufficient to sustain the conviction.CPL §210.20(1)(b);People v. Mayo, 36 N.Y.2d 1002(1975).'"Legally sufficient evidence' means competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant's commission thereof . . .", CPL §70.10(1).In this case, the combined testimonial and documentary evidence submitted to the Grand Jury was not legally sufficient to support the counts of the indictment as against this particular defendant.Although defendant was present at the time of the transactions at issue, such evidence is insufficient to establish guilt, PL§20.00.The related contracts of sale bear typed information identifying defendant as "attorney for sellers."The Court's examination of all of these contracts shows that none of them bear defendant's signature and there was no proof presented that she prepared them, vouched for the veracity of contents or conveyed the fraudulent documents to third parties.

Similarly, the HUD-1 Settlement Statements, the subjects of Counts 30 and 34, are not signed by defendant.Noticeably absent from the Grand Jury presentation is any additional documentary evidence establishing that defendant knowingly acted in concert in the scheme with her co-defendants or that she received any benefit, monetary or otherwise, above and beyond a reasonable closing fee.The remaining testimonial evidence is insufficient to establish the requisite legally sufficient evidence for the charged crimes.

DE 25-2at 2-3.

Thus, in sum and substance, the state court's decision is predicated upon an absence of evidence in the grand jury record, rather than false or misleadinginformation.Notably, the state court specifically rejected an argument based upon purported Brady violations, and expressly dismissed the indictment "with leave to the People to submit the matter to another Grand Jury."Id. at 3.In dismissing the charges, the state court did so pursuant to N.Y.C.P.L. § 210.20(1)(b) which provides for dismissal where the "evidence before the grand jury was not legally sufficient to establish the offense charged or any lesser included offense," and exercised its discretion to permit the state to refile pursuant to subsection (4) of that section.

DISCUSSION

The Need for Grand Jury Secrecy

"Since the 17th century, grand jury proceedings have been closed to the public, and records of such proceedings have been kept from the public eye."Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 218 n. 9(1979)."This time-honored policy of secrecy has been the most essential, indeed indispensable, characteristic of grand jury proceedings."In re Grand Jury Investigation of Cuisinarts, Inc., 665 F.2d 24, 28(2d Cir.1981);see alsoUnited States v. Procter & Gamble Co., 356 U.S. 677, 681(1958)."The grand jury as a public institution serving the community might suffer if those testifying today knew that the secrecy of their testimony would be lifted tomorrow."Proctor & Gamble, 356 U.S. at 682.

The Supreme Court has articulated the principles underlying grand jury secrecy:

"(1) To prevent the escape of those

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