Henry v. New York State Com'n of Investigation

• Decision Date: 20 June 1988
• Citation: 141 Misc.2d 849,535 N.Y.S.2d 859
• Parties: Matter of Application of Patrick HENRY, District Attorney, Suffolk County and Raymond G. Perini, Assistant District Attorney, Suffolk County, Petitioners-Plaintiffs, For a Judgment under Article 78 CPLR, in the Nature of Prohibition and Certiorari and For a Declaratory Judgment under Article 30 CPLR, and Preliminary and Permanent Injunction v. The NEW YORK STATE COMMISSION OF INVESTIGATION, David G. Trager, Esq., Individually and as Chairman, Earl W. Bridges, Esq., et al., Individually and as Commissioners, Respondents-Defendants.
• Court: New York Supreme Court

Page 859

535 N.Y.S.2d 859

141 Misc.2d 849

Matter of Application of Patrick HENRY, District Attorney,

Suffolk County and Raymond G. Perini, Assistant

District Attorney, Suffolk County,

Petitioners-Plaintiffs,

For a Judgment under Article 78 CPLR, in the Nature of

Prohibition and Certiorari

and

For a Declaratory Judgment under Article 30 CPLR, and Preliminary and Permanent Injunction v. The NEW YORK STATE COMMISSION OF INVESTIGATION, David G.

Trager, Esq., Individually and as Chairman, Earl

W. Bridges, Esq., et al., Individually

and as Commissioners,

Respondents-Defendants.

Supreme Court, Suffolk County.

June 20, 1988.

Patrick Henry, Dist. Atty., Maureen S. Hoerger, Raymond G. Perini, Asst. Dist. Attys. (Jeremiah Gutman, of counsel), Riverhead, for petitioners-plaintiffs.

David W. Clayton, Hauppauge, for proposed intervenor.

Richard C. Daddario, New York City (John J. Kennedy, of counsel), for respondents-defendants.

MICHAEL F. MULLEN, Justice.

As the caption suggests, the petitioners, the Honorable Patrick Henry, who is the District Attorney of Suffolk County (hereinafter referred to as "Henry"), and Raymond G. Perini, who is one of his assistants and who is in charge of the Narcotics Bureau (hereinafter referred to as "Perini") have brought on a proceeding seeking multi-faceted relief. They allege that the respondent, New York State Commission of Investigation (hereinafter referred to as the "S.I.C."), through its Chairman, the Honorable David G. Trager, (hereinafter referred to as "Trager"), and its individual Commissioners, in the course of their two-year probe of the Suffolk County Police Department and District Attorney's office, have committed specific acts and engaged in a course of conduct which, inter alia, have exceeded the S.I.C.'s jurisdiction, impinged upon the jurisdiction of the District Attorney, and violated the constitutional and statutory rights of Perini and others. For the most part, the petitioners seek declaratory and injunctive relief, but they also ask the Court to review the report being prepared by respondents prior to its release. Briefly, they seek a judgment pursuant to CPLR Article 30 declaring:

(1) sections 7501 through 7507 of McKinney's Unconsolidated Laws of New York unconstitutional on their face as applied to public officials;

(2) sections 7501 through 7507 unconstitutional as applied to petitioners;

(3) the S.I.C. violated the petitioners' due process rights as public officials under CPL 190.50;

(4) the S.I.C. acted in excess of its statutory authority by intervening in specific criminal actions;

(5) the S.I.C. acted in excess of its statutory authority by unlawfully intervening in the appointment of a special district attorney;

(6) the S.I.C. violated sections 7502(4) and 7502(7) of McKinney's Unconsolidated Laws of N.Y. by refusing to assist in a criminal investigation being conducted by a duly appointed special district attorney;

(7) the S.I.C. violated section 7502(7) by not turning over evidence of criminal acts or official misconduct to the appropriate agency;

(8) the S.I.C. initiated a quasi-criminal investigation after having fulfilled its limited advisory role under section 7502(7);

(9) the S.I.C. violated section 7507 by purporting to grant immunity without notice to the Suffolk County District Attorney;

(10) the S.I.C. acted in excess of its statutory authority by attempting to grant testimonial immunity;

(11) the S.I.C. acted in excess of its statutory authority by violating section 52 of the New York State Civil Rights Law;

(12) the S.I.C. exceeded its own enabling resolution by violating section 73 of the Civil Rights Law and sections 7502(1)(a) and (b) of McKinney's Unconsolidated Laws of N.Y. in the course of its investigation;

(13) the S.I.C. violated petitioners' federal and state due process rights by denying them a fair hearing;

(14) the S.I.C. violated petitioners' right to counsel; and

(15) the individual respondents violated one or more provisions of the Code of Professional Responsibility.

The petitioners not only request that the alleged conduct be declared unconstitutional or illegal, or improper, but they seek to enjoin such conduct in the future. In addition, they seek a judgment pursuant to CPLR Article 78, in the nature of prohibition, prohibiting and restraining respondents from:

(1) taking any further actions against petitioners pursuant to sections 7501 et seq. of the McKinney's Unconsolidated Laws of N.Y.;

(2) granting immunity to any present or former public officer for testimony regarding their conduct in office; and

(3) making any public comments or statements as to petitioners.

Finally, petitioners seek a judgment, in the nature of certiorari, permitting judicial review of the S.I.C.'s written report as it pertains to the petitioners.

This entire proceeding was brought on by order to show cause signed by Mr. Justice Cannavo on March 10, 1988. On the return date, this Court heard oral argument and then gave both sides additional time to submit memoranda of law and additional exhibits. Following review of same, and because of the number and seriousness of issues raised, the Court again permitted oral argument. The cooperation of all the attorneys is hereby acknowledged.

It should be noted at the outset that this matter is still in its preliminary stages. Issue has not yet been joined. The respondents have not served and filed an answer. There are some issues raised which must await a full hearing and/or trial. Despite this, there are legal questions which can and should be resolved now. The respondents have cross-moved to dismiss the proceeding, and for purposes of deciding that motion, all the allegations of the petition are taken as admitted (see, Jenkins v. McKeithen, et al., 395 U.S. 411, 421, 89 S.Ct. 1843, 1848, 23 L.Ed.2d 404; see also, Grand Realty Co. v. City of White Plains, 125 A.D.2d 639, 510 N.Y.S.2d 172).

Before looking at the various requests for relief, there are one or more preliminary issues which must be resolved. First, there is the issue of standing. The respondents contend the petitioners lack standing. The Court disagrees. In arriving at its conclusion, the Court is reminded of a passage from Judge Weinfeld's opinion in Application of United Electrical, Radio and Machine Workers of America, et al. 111 F.Supp. 858, 861:

"What greater interest can an individual have than to protect his name and defend himself against accusation of crime?"

True, in the United Electrical case, the petitioners, a labor union and various labor leaders, were seeking to prevent publication of a "presentment" issued by a federal grand jury, while here we are dealing with a report prepared by a commission. But the fact is the respondents have virtually "accused" petitioner Perini of certain crimes and have made those "accusations" in written press releases, which have been distributed to, and published by, the press. For example, in a press release issued on January 13, 1988, the respondent Trager charged, in part, as follows:

"These crimes (illegal wiretapping) were carried out with the knowledge, approval and encouragement of the Supervising Sergeant of the Interdiction Unit of the Police Department and, most likely, the Bureau Chief (Perini) of the Narcotics Bureau of the Suffolk County District Attorney's Office " (Emphasis added).

The respondents contend they are not a grand jury, and that they are an investigatory, rather than an accusatory, body. Such a distinction is, in this Court's view, lost on the general public. In Matter of Wood v. Hughes, 9 N.Y.2d 144, 212 N.Y.S.2d 33, 173 N.E.2d 21, the Court of Appeals observed as follows (supra at 154, 212 N.Y.S.2d 33, 173 N.E.2d 21):

"In the public mind, accusation by report is indistinguishable from accusation by indictment and subjects those against whom it is directed to the same public condemnation and approbrium as if they has been indicted."

In short, in the "public mind" the petitioners have been "accused" of wrongdoing and/or criminal conduct by a state commission. They, obviously, have an interest in protecting their names. (See, Matter of District Attorney, 58 N.Y.2d 436, 442-443, 461 N.Y.S.2d 773, 448 N.E.2d 440).

Second, an application has been made for permission to intervene on behalf of an individual named John Gallagher (CPLR 1013). The application is denied. It appears that Gallagher has been named in an indictment returned in February, 1988 in Supreme Court, Suffolk County (No. 139/88), and that matter is being prosecuted by a special district attorney, Stephen Scaring, Esq., appointed by the Honorable Thomas M. Stark, Supervising Judge of the Superior Criminal Courts in Suffolk County. It further appears that the Gallagher case is presently before the Honorable Kenneth Rohl and that an application has been made there to dismiss the indictment for the very same reasons urged in support of intervention here, e.g., that the S.I.C. wrongfully interfered in the Judiciary's role in the appointment of a special district attorney (County Law § 701), that Scaring's appointment was a nullity, and that therefore the indictment must be dismissed. Under the circumstances, intervention is unwarranted. It will not only complicate this proceeding, but possibly, prejudice the rights of the parties in the case before Judge Rohl. The arguments raised in support of intervention here will be adequately addressed there.

Finally, the petitioner Perini has made a motion, brought on by order to show cause, for extensive pre-trial discovery and inspection of documents (CPLR 3102). The motion is denied. First, it is apparent to the Court that Perini and/or the District Attorney's office already have in their possession minutes and records of virtually everything the S.I.C. has done in connection with its Suffolk investigation. Second, insofar as the demand is for all information "... exculpatory to petitioners or adversely affecting the credibility of any...