Dondi, Matter of

• Decision Date: 25 October 1984
• Citation: 482 N.Y.S.2d 431,472 N.E.2d 281,63 N.Y.2d 331
• Parties: , 472 N.E.2d 281 In the Matter of Philip P. DONDI, an Attorney, Appellant. Grievance Committee for the Second and Eleventh Judicial Districts, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 431

482 N.Y.S.2d 431

63 N.Y.2d 331, 472 N.E.2d 281

In the Matter of Philip P. DONDI, an Attorney, Appellant Grievance Committee for the Second and Eleventh Judicial Districts, Respondent.

Court of Appeals of New York.

Oct. 25, 1984.

Oren Root, Jr., and Patrick M. Wall, New York City, for appellant.

Robert H. Straus, Brooklyn, for respondent.

OPINION OF THE COURT

PER CURIAM.

During the course of an investigation in an attorney disciplinary matter, the Grievance Committee may, upon an affirmation demonstrating necessity, gain an order from the Appellate Division, 95 A.D.2d 349, 466 N.Y.S.2d 708, permitting the unsealing of the records of a criminal action previously sealed pursuant to CPL 160.50. The order must indicate the papers on which the Appellate Division exercised its discretion so that it will be subject to meaningful review by this court. In the instant matter, on the record before us, there was neither a proper request by the Grievance Committee, nor was there a legally cognizable order of the Appellate Division permitting the unsealing. Under the peculiar facts of this case, disclosure of the record to the Grievance Committee requires dismissal of the complaint against appellant.

In 1974, appellant was charged with bribing a police officer, who was a potential witness in a civil matter. It was alleged that, while representing a client who had suffered personal injuries in an automobile accident, respondent approached the police officer who had prepared the accident report and offered him $80 in exchange for testimony that would be favorable to the client. The indictment was originally prosecuted by a Special State Prosecutor but, due to the nature of the crime, this court held that the prosecutor was without jurisdiction to proceed (see Matter of Dondi v. Jones, 40 N.Y.2d 8, 386 N.Y.S.2d 4, 351 N.E.2d 650).

A superseding indictment issued and the case was transferred to the Queens County District Attorney. As no civil action had ever been commenced, the count for bribing a witness was dismissed. After a lengthy trial in 1977, respondent was acquitted of the other charge. Following appellant's acquittal, the records of the case were sealed pursuant to an order issued under CPL 160.50. ^*

During the pendency of the criminal proceedings, in 1975, the Grievance Committee for the Second and Eleventh Judicial Districts sua sponte filed a complaint against appellant on a charge of improper payment to a police officer. Soon after appellant was acquitted of the underlying crime, counsel for the Grievance Committee made an ex parte application to Supreme Court, Queens County, for an order permitting the unsealing of both the court's and District Attorney's files. The application asserted that the "entire court and prosecutor's file is essential to a proper and fair investigation." An order, declaring that the Grievance Committee was a "law enforcement agency" entitled to the records under CPL 160.50, issued, but was immediately recalled by the Judge. He reconsidered his designation of the Grievance Committee as a "law enforcement agency" and denied the application, subject to renewal if the Committee "establishproper authority" for the unsealing.

Failing at gaining the records in this manner, counsel made a new ex parte application, to the Appellate Division, Second Department, in August 1977. This was done informally through a letter addressed to the court clerk. The clerk responded the same week with a letter stating simply: "Please be advised that your request to have the entire file of the Court and the Queens County District Attorney, in the above matter, be unsealed and turned over to your Committee, has been approved by the Court."

Armed with this letter, counsel obtained the court files from Supreme Court and the files of the Queens County District Attorney. The Grievance Committee also received a tape recording of a conversation between respondent and the police officer, which had been surreptitiously recorded.

Although the original complaint against appellant was filed by the Grievance Committee in 1975, appellant was not notified of its pendency until January 1980. At a hearing held before a Grievance Committee Panel in May 1980, two police officers, appellant, and one other witness testified. Five months later, the Committee filed a formal charge with the Appellate Division against appellant. The charge read: "On or about September 11, 1974, respondent offered and paid $80.00 to Police Officer James Edward Gaughan to influence his testimony in a civil action in which respondent represented a client, Oscar Evans."

A special referee was appointed to hear the matter. It was stipulated that in lieu of a full hearing the referee would review the transcripts of the hearing before the Grievance Committee Panel, but would not consider any material contained in the sealed records or the tape recording. The referee filed a report finding that the charge of professional misconduct had been established. The Appellate Division confirmed this report and suspended appellant from the practice of law for a period of one year and until the further order of the court. This court granted appellant's motion for leave to appeal.

Appellant argues that the Grievance Committee wrongly acquired the sealed records and their use in the investigation, preparation, and prosecution of the disciplinary charges irreparably tainted the entire proceeding, requiring that the complaint be dismissed. In essence, appellant contends that it was improper for the Grievance Committee to have applied ex parte to the Appellate Division for an order unsealing the records and that, in any event, the Appellate Division was without authority to grant such an application.

The Grievance Committee counters that it acted properly in seeking an order unsealing the records from the Appellate Division. It posits that the Appellate Division, by virtue of either its authority to oversee and discipline attorneys or an "inherent" power to control court records, has the power to order the unsealing of these records notwithstanding the provisions of the Criminal Procedure Law (cf. Matter of Hynes v. Karassik, 47 N.Y.2d 659, 664, and p. 665, 419 N.Y.S.2d 942, 393 N.E.2d 1015 ). In addition, the Committee notes that, even if the records were improperly unsealed and delivered to the Committee, appellant suffered no prejudice. It asserts that the sealed files were unnecessary to its investigation inasmuch as the pertinent information had already been publicized; that the tape recording contained the pertinent information and was not an "official record" subject to the sealing order; and that, in any event, neither the court's nor the prosecutor's files were considered by the referee hearing the formal charges.

The Grievance Committee's contention that appellant could have suffered no prejudice because the relevant information was available to the Committee in any event is belied by its original application to Supreme Court, in which counsel for the Grievance Committee stated in a sworn affidavit that receipt of the records was "essential" to the Committee's investigation. In light of that sworn statement, the current assertion that the records were not really necessary is troublesome. Having elected to proceed on the basis that the files were essential, the Committee should be held to that characterization. And because it is presumed that the files were "essential" for the investigation that led to the formal charge, it is irrelevant that they were not received by the referee at the Appellate Division as the prejudice to appellant would already have occurred.

Next is the Committee's contention that the tape recordings, which purportedly contain appellant's attempt to bribe the officer, are not an "official record" subject to the sealing order. The Committee argues that the tapes were made during the course of the investigation of the underlying crime and do not fall within the statutory terms "all official records and papers". Although there exists some authority supporting this contention (see Matter of Anonymous, 95 A.D.2d 763, 764, 464 N.Y.S.2d 194; Matter of Hynes v. Karassik, 63 A.D.2d 597, 598, 405 N.Y.S.2d 242, affd. 47 N.Y.2d 659, 419 N.Y.S.2d 942, 393 N.E.2d 1015, supra ), on the facts of this case, it is clear that the tapes were subject to the sealing...