In re 121 Second Ave. Gas Explosion Litig.
| Docket Number | Index No. 781000/2016,Motion Seq. No. 003 |
| Decision Date | 29 August 2023 |
| Citation | 2023 NY Slip Op 32998 (U) |
| Parties | IN RE: 121 SECOND AVENUE GAS EXPLOSION LITIGATION THIS DOCUMENT RELATES TO: ALL CASES |
| Court | New York Supreme Court |
Unpublished Opinion
MOTION DATE 06/23/2023
Appearances:
Wilkofsky, Friedman, Karel & Cummins (Mark Friedman, of counsel), for plaintiffs
Alvin Bragg, Jr., District Attorney (Christina Ante, of counsel) for intervenor New York County District Attorney's Office
Present: Hon. James E. d'Auguste Justice
DECISION + ORDER ON MOTION
James E. d'Auguste, Judge
The following e-filed documents, listed by NYSCEF document number (Motion 003) 183, 184, 185, 186, 187, 188, 189, 190, 191 were read on this motion to/for DISCLOSURE.
In this action, plaintiffs move for the issuance of a subpoena duces tecum seeking the entire evidentiary file maintained by the New York County District Attorney's Office ("DANY" or the "People"), an intervenor in this litigation, in connection with the matter of The People of the State of New York v Dilber Kukic, Michael Hrynenko, and Maria Hrynenko, New York County Indictment No. 74/16. DANY opposes the motion. The motion is resolved as set forth below.
This action arises from a gas explosion that occurred at 121 Second Avenue on March 26, 2015, destroying three buildings, killing two people, and seriously injuring many other individuals. Following an investigation coordinated by DANY and others, the Grand Jury of New York County indicted Maria Hrynenko, Dilber Kukic, and Athanasios loannidis (the "Subject Defendants") for their alleged roles in using an unauthorized system to siphon natural gas from a neighboring building, and thereby causing a catastrophic gas explosion. The Subject Defendants were convicted of manslaughter, assault, and reckless endangerment. loannidis was also convicted of offering of a false instrument for filing and falsifying business records. The Appellate Division, First Department subsequently affirmed Dilber Kukic and Maria Hrynenko's convictions, and the Court of Appeals denied leave to appeal. People v. Kukic, 196 A.D.3d 169 (1st Dept.), Iv. denied, 37 N.Y.3d 1097, Iv. denied, sub nom. People v. Hrynenko, 37 N.Y.3d 1096 (2021).
Pursuant to CPLR 2307, plaintiffs request that the Court issue a subpoena duces tecum directing DANY to produce copies of its "entire evidentiary file" maintained in connection with People v. Kukic. The materials plaintiffs seek include: "video footage, audio tapes, photographs, investigation reports, recorded interviews, witness statements, transcripts, and all other evidence collected and/or introduced at trial and for such other and further relief as this Court deems just and proper." (Aff. of Mark Friedman in Supp., ¶ 2). Plaintiffs contend that the overlapping facts and issues make this evidence "material and necessary" to the ongoing civil litigation. (Friedman Aff. in Supp., ¶ 11). Further, plaintiffs assert that the DANY file likely contains "evidence [of defendants'] individual dishonesty and untrustworthiness" which would be "probative on material questions at issue in this case." (Friedman Aff. in Supp., ¶ 11).
DANY opposes. Although the First Department affirmed the convictions at issue, and the Court of Appeals denied leave to appeal, federal habeas corpus proceedings challenging those convictions remain pending in the Southern District of New York under docket number 22-cv-9075. (Aff. of Christina Ante in Opp., ¶ 7).[1] In addition to expressing concerns regarding the impact discovery may have on the pending federal habeas proceedings, DANY suggests that plaintiffs should secure copies of publicly available trial transcripts and ascertain whether relevant information can be obtained from other sources. (Mem. of Law in Opp., at 3-4). DANY also objects to the requested subpoena on the grounds that much of the information sought by plaintiffs is privileged. (Mem. of Law in Opp., at 4-8). Specifically, DANY asserts "particular concern" regarding privileges based upon the "Grand Jury, attorney work product, public interest and personal privacy exemptions, interagency and law enforcement techniques." (Mem. of Law in Opp., at 8). DANY offers to produce a privilege log, if so-ordered. (Mem. of Law in Opp., at 8).
Having considered the parties' respective positions, the instant motion is granted in part and denied in part for reasons the Court addresses in turn.
Although plaintiffs assert that they are not seeking grand jury materials, their position is belied by the scope of their request and the practical application of New York law. Prosecutors in New York, while vested with broad powers, do not have independent plenary investigatory powers to obtain evidence, particularly concerning felonies. See, Rodrigues v. City of New York, 193 A.D.2d 79, 86 (1st Dept. 1988); and compare, County Law §§ 700 () and 927 with, County Law §§ 650 and 901; and N.Y.C. Charter §§ 435(a) () and 488(2) (City Fire Department shall conduct the "investigation of the cause, circumstances and origin of fires") (emphasis added). Rather, DANY and its counterparts conduct investigations largely through the grand jury process. See, e.g, People v. Neptune, 161 Mise. 2d 781, 782 (); and People v. Hall, 179 Mise. 2d 488, 492 (Sup. Ct., Monroe Co. 1998) (discussing prosecutor's limited subpoena power and finding that subpoena in support of determination to seek death penalty unauthorized). The People state as much in their opposition, noting that DANY conducted "a lengthy Grand Jury investigation which lasted almost an entire year," of the explosion at issue. (Ante Aff., at ¶ 4).
Whether a grand jury proceeding subsequently results in a criminal conviction or not, CPL Art. 190, not CPL Art. 160, controls access to grand jury materials. See, Matter of James v. Donovan, 130 A.D.3d 1032, 1035-1036 (2d Dept.), Iv. denied, 26 N.Y.3d 1048 (2015) (); and Matter of Apotheker (Archibald), 68 Mise. 3d 312, 314 (Sup. Ct., New York Co. 2020) (). Accordingly, the Court considers plaintiffs' application seeking the People's "evidentiary file" pursuant to CPL 190.25(4) as it pertains to grand jury materials.
Records of the grand jury's proceedings are strictly regulated by the CPL and the Penal Law, and are secret by operation of law. CPL § 190.25(4); and Penal Law § 215.70. The seal of secrecy includes materials gathered in support of the grand jury's work, even if they were not obtained by grand jury subpoenas or even entered into evidence before the grand jury. See, Matter of Aiani v. Donovan, 98 A.D.3d 972, 973 (2d Dept. 2012). The scope of grand jury secrecy in New York is such that even the type of information that might ordinarily be provided in a privilege log is itself confidential without a court order. See, e.g. Matter of District Attorney of Richmond County, 48 Mise. 3d 207, 210 (Sup. Ct., Richmond Co. 2014) (discussing standard to disclose grand jury information and authorizing limited disclosure).[2] Courts have restricted or denied access to grand jury materials even when they have been publicly disclosed through other means or to grand jury witnesses themselves. See, e.g., Matter of Office of Attorney General, 72 Mise. 3d 723, 728 (Monroe County Ct. 2021) ("Although the identities of some individuals are publicly known in this case, there is still a duty to protect them through the grand jury process."); and New York City Civilian Complaint Rev. Bd. v. Office of the District Attorney, 63 Mise. 3d 530,534 (Sup. Ct., Richmond Co. 2019) (denying motion to unseal grand jury testimony for use by witness to refresh their recollection at administrative trial). Unlike most other sealed proceedings, where the parties are those with an interest in confidentiality (and are thus capable of waiving it), courts have found that the grand jury itself and the community it represents has an interest in confidentiality over and above the interest of the parties themselves. Compare, e.g, Brian Krist, Sealing the Bawdy House Door Open, 48 NYRPLJ 27, 27 n. 53 (2020) (collecting cases and discussing waiver of CPL Art. 160 sealing through litigation); and In re Motion for Consent to Disclosure of Court Records, Dkt. No. Mise. 13-01,2013 U.S. Dist. LEXIS 147001, *8 (For. Intell. Surv. Ct. Jun. 12, 2013) (although national security regulations applied, court rules did not themselves bar disclosure pursuant to Freedom of Information Act); with, In re District Attorney of Suffolk County, 58 N.Y.2d 436,445-446 (1983) ().
Although grand jury records may be unsealed for use in civil or other non-criminal proceedings pursuant to CPL § 190.25(4), an application to unseal grand jury material must be made to the court that empaneled the grand jury or presided over any resulting criminal prosecution. See, e.g, Matter of District Attorney of Richmond County, sup...
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