District Attorney of Suffolk County, Matter of

• Decision Date: 31 March 1983
• Citation: 461 N.Y.S.2d 773,448 N.E. 2d 440,58 N.Y.2d 436
• Parties: , 448 N.E.2d 440 In the Matter of DISTRICT ATTORNEY OF SUFFOLK COUNTY, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 773

461 N.Y.S.2d 773

58 N.Y.2d 436, 448 N.E.2d 440

In the Matter of DISTRICT ATTORNEY OF SUFFOLK COUNTY, Appellant.

Court of Appeals of New York.

March 31, 1983.

Patrick Henry, Dist. Atty. (James J. O'Rourke, Syosset, and Mark D. Cohen, Asst. Dist. Atty., Riverhead, of counsel), for appellant pro se.

Paul F. Corcoran, Robert W. Corcoran, Mineola, Gerald L. Shargel, New York City, and Emanuel Sfaelos, Huntington, for certain respondents.

Norman S. Ostrow, Paul R. Grand, Diana Parker, Lawrence S. Bader and William A. Zeck, New York City, for certain respondents.

Thomas B. Treacy, Norman Alvy and George F. Mackey, New York City, for certain respondents.

OPINION OF THE COURT

FUCHSBERG, Judge.

At issue is the appropriateness of the exercise of a court's discretion to allow the appellant, the District Attorney of Suffolk County, to utilize Grand Jury minutes in aid of a civil suit his county's legislature authorized. The discretion was exercised under the umbrella of CPL 190.25 (subd. 4), which, while articulating the secrecy which is to gove Grand Jury proceedings, does permit disclosure "upon written order of the court". ¹

The minutes are those of Suffolk County's February 1980 Grand Jury III. It was one of several successive and overlapping Grand Juries impaneled to investigate possible fraud and political corruption in the ongoing construction of the county's Southwest Sewer District No. 3, a major public work.

The respondents include businessmen and political figures who, along with certain construction and engineering firms, played significant roles in the planning and execution of the project. Three individual respondents testified before Grand Jury III. Others, though subpoenaed, were excused after refusing to waive immunity. Still others supplied records to one or more of the Grand Juries. Unquestioned is it that all were subjects of the inquiry conducted by Grand Jury III. Most pertinent to this case, though, as authorized by CPL 190.85, that body issued a critical report deploring relationships between public officials and private interests, and though the three respondents who testified were indicted for perjury because of the nature of their testimony, ² in the end no substantive indictments on the subject matter of the inquiry were returned.

Against this background, on January 27, 1981 Suffolk's County Legislature, at the District Attorney's urgent request that it do so posthaste, adopted emergency legislation authorizing him to commence a civil suit against the respondents for damages allegedly resulting from the conduct explored within the confines of the Grand Jury. ³ Lodged that very day in the United States District Court for the Eastern District of New York, its legal theory was premised on the so-called "RICO" statute (Racketeer Influenced and Corrupt Organizations Act, U.S.Code, tit. 18, § 1961 et seq.). ⁴

Also before the day was out, the District Attorney secured an ex parte order granting him blanket approval to employ the Grand Jury III minutes in the contemplated civil litigation. Supporting this application in essence was no more than his assistant's conclusorily worded statement that the "transcripts are required and necessary in the interests of justice" to take "the profit out of kickbacks and payoffs and bribery". No attempt was made to describe, much less to detail, any of the conduct so labeled or to isolate the pertinent portions of the transcripts "required". This nonspecificity was matched by the order which, issued by a Suffolk County Court Judge, broadly and unqualifiedly provided that "the District Attorney of Suffolk County, his appointed staff, special counsel, experts and consultants be authorized and permitted to utilize, the Grand Jury transcripts * * * in the * * * civil proceeding".

When, in due course, the respondents moved to vacate this order, the issuing Judge, taking cognizance of the District Attorney's challenge to the movants' standing, refused to recognize that any one other than those who actually had testified before Grand Jury III had a right to attack the order. He thereupon modified his earlier ruling so as to stay disclosure pending the outcome of the perjury trials. On review, the Appellate Division, 86 A.D.2d 294, 449 N.Y.S.2d 1004, in its turn, rul that all the respondents, so long as they were targets of, or witnesses at, the inquiry, had standing. Thus reaching the merits, it went on to find that the District Attorney had failed to make a sufficient showing to warrant lifting the veil of secrecy.

On his appeal to this court, the District Attorney, by way of threshold argument, repeats his contention that the respondents lacked standing to challenge the County Court's order. To this he adds that, in any event, because parts of the minutes had been revealed in the course of intervening litigation, ⁵ the matter is now moot. Substantively, he also insists that the Appellate Division applied erroneous standards in its evaluation of the application. Ignored in the process, he complains, was what he terms prosecutorial "intra-office disclosure rights" and the fact that the civil case in which the District Attorney here was planning to exploit the minutes was one brought on behalf of a public agency. For the reasons which follow, in our view all of these points are without merit.

Treating at the outset with the question of standing, the contemporary rule is that a party has standing to enforce a statutory right if its abuse will cause him injury and it may fall within the "zone of interest" protected by the legislation (Fritz v. Huntington Hosp., 39 N.Y.2d 339, 346, 384 N.Y.S.2d 92, 348 N.E.2d 547). As we have had occasion to observe in recent years, "[o]nly where there is a clear legislative intent negating review * * * or lack of injury in fact * * * will standing be denied" (Matter of Dairylea Coop. v. Walkley, 38 N.Y.2d 6, 11, 377 N.Y.S.2d 451, 339 N.E.2d 865).

In the present case, it is not open to question that one of the goals advanced by the time-honored Grand Jury secrecy principle is the "protection of an innocent accused from unfounded accusations if in fact no indictment is returned" (People v. Di Napoli, 27 N.Y.2d 229, 235, 316 N.Y.S.2d 622, 265 N.E.2d 449). T implementation of this principle renders it essential that one threatened with stigmatization by unwarranted disclosure be accorded an opportunity to enforce the confidentiality it is designed to secure (see Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 218, n. 8, 99 S.Ct. 1667, 1672, n. 8, 60 L.Ed.2d 156; cf. Matter of Hynes v. Karassik, 47 N.Y.2d 659, 419 N.Y.S.2d 942, 393 N.E.2d 1015).

These considerations in mind, it is at once clear that the rule of secrecy applies equally to either one who gives evidence or to one concerning whom evidence is given. Since all the respondents, as targets, were at least in the second category, the three who did not testify because they would not waive immunity do not lack standing on this account. Nor, the scope of the rule not being limited to a witness' own testimony, did those whose testimony allegedly was perjurious or, for that matter, has since been so found, thereby forfeit what otherwise was their legitimate interest in maintaining the confidentiality of any other accusations leveled against them.

Equally unpersuasive is appellant's suggestion that, because some Grand Jury testimony entered the public domain some time after the original disclosure order was issued, the appeal has become moot. The short answer, without more, is that, while we may not be able to restore such secrecy as has been lost, we can curb any further disclosure of unpublished parts or further dissemination of those already circulated. The availability of this remedy forecloses dismissal for mootness (Gilpin v. Mutual Life Ins. Co. of N.Y., 299 N.Y. 253, 261-262, 86 N.E.2d 737; see 10 Carmody-Wait 2d, N.Y.Prac., § 70:298).

Turning then to the substantive side of the case, we begin by noting that secrecy has been an integral feature of Grand Jury proceedings since well before the founding of our Nation (Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 399, 79 S.Ct. 1237, 1240, 3 L.Ed.2d 1323; see Calkins, Grand Jury Secrecy, 63 Mich.L.Rev. 455; Comment, Secrecy in Grand Jury Proceedings, 38 Ford L.Rev. 307). ⁶ The reasons it has survived go beyond our afore-mentioned concern that the reputations of tho investigated by or appearing before a Grand Jury be protected from unfounded accusations. Thus, in more recent times, we have observed that confidentiality also serves the important objectives of ensuring the independence of Grand Juries, preventing the flight of the accused and encouraging free disclosure of information by those summoned before it (People v. Di Napoli, supra, 27 N.Y.2d at p. 235, 316 N.Y.S.2d 622, 265 N.E.2d 449).

Nevertheless, the rule of secrecy is not absolute and, in the discretion of the trial court, disclosure may be directed when, after a balancing of a public interest in disclosure against the one favoring secrecy the former outweighs the latter (People v. Di Napoli, supra ). But since disclosure is "the exception rather than the rule", one seeking disclosure first must demonstrate a...