Jaffe v. Scheinman
| Decision Date | 15 February 1979 |
| Citation | 413 N.Y.S.2d 502,66 A.D.2d 321 |
| Parties | In the Matter of Joseph JAFFE, as District Attorney of Sullivan County, Petitioner, v. Louis B. SCHEINMAN, as County Court Judge of Sullivan County, et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Joseph Jaffe, Dist. Atty., Sullivan County, Monticello, pro se.
Louis J. Lefkowitz, Atty. Gen., Albany (John J. Warner, Jr., Albany, of counsel), for Louis B. Scheinman, respondent.
K. C. Garn and Carl J. Silverstein, Monticello, for Legal Aid Society of Sullivan County, Inc., respondent.
Before MAHONEY, P. J., and SWEENEY, KANE, STALEY and HERLIHY, JJ.
Michael John Kazmarick was indicted by a Grand Jury of Sullivan County on April 24, 1978 and charged with five counts of murder in the second degree (Penal Law, § 125.25, subd. 2) for causing the death of five persons in a fire on April 9, 1978 at Monticello, New York. In the course of a pretrial omnibus motion on his behalf, respondent Legal Aid Society sought an order granting inspection of the minutes of the Grand Jury and dismissal of the indictment (CPL 210.30). The court examined the minutes and then issued an order directing petitioner to furnish a copy of those minutes to respondent Legal Aid Society "in order that defendant can better conclude the preparation of memoranda for use by this court on the pending motion." Implementation of this order was stayed to allow petitioner to reargue the propriety of such an order, following which the court reaffirmed its prior decision and this proceeding ensued. In its decision and order, the trial court relied heavily on Matter of Proskin v. County Ct. of Albany, 30 N.Y.2d 15, 330 N.Y.S.2d 44, 280 N.E.2d 875 and subdivision 4 of section 190.25 of the Criminal Procedure Law as authority for its determination. Respondent Legal Aid Society also adopts this argument. Thus we are called upon to determine (1) whether the trial court exceeded its authority in directing disclosure of the grand jury minutes to defense counsel, and (2) whether prohibition is an available remedy under these circumstances.
A review of the history of the motion to inspect minutes of a grand jury teaches us that since its earliest days the only grounds upon which such a motion can be made is to enable the defendant to obtain a dismissal of the indictment. It was never intended to be a vehicle to help a defendant prepare for trial. There being no statutory grounds for such a motion prior to the effective date of the Criminal Procedure Law, the procedure that had developed was based upon the inherent powers of the court to dismiss indictments founded upon insufficient, illegal or incompetent testimony (People v. Teetsel, 12 Misc. 2d 835, 177 N.Y.S.2d 612; People v. Kresel, 141 Misc. 593, 253 N.Y.S. 372; People v. Dunbar Contracting Co., 82 Misc. 174, 143 N.Y.S. 337). Since during this time the motion was addressed to the discretion of the court, substantive determinations as well as procedures were varied and flexible. Ultimately, the Court of Appeals in People v. Howell, 3 N.Y.2d 672, 171 N.Y.S.2d 801, 148 N.E.2d 867 clearly defined the purpose and limits of the court's discretion upon such a motion and put to rest any confusion or disagreement as to the purpose of the motion and the procedure to be followed. The Criminal Procedure Law has followed the Howell ruling and statutorily defined and limited the court's power upon a motion to dismiss and inspect minutes of the grand jury (CPL 210.30). The right to examine the minutes of the grand jury is vested solely in the court in its determination of the motion to dismiss the indictment. It is vested with the discretion to examine those minutes or not, but that is the limit of its discretion and it has no authority to provide those minutes to the defendant prior to trial (CPL 210.30, subds. 3, 4; Practice Commentary by Richard G. Denzer, McKinney's Cons.Laws of N.Y., Book 11A, CPL 210.30, p. 357; People v. Utley, 77 Misc.2d 86, 353 N.Y.S.2d 301; People v. Hvizd, 70 Misc.2d 654, 334 N.Y.S.2d 534; People v. Buckman, 70 Misc.2d 220, 333 N.Y.S.2d 452). The other statutory provision relied upon by respondents herein is wholly inapplicable to the issue under consideration. It is addressed to the testimony of "a grand juror" or "evidence" before a grand jury, such as books and records made available pursuant to court order for the purpose of a prosecution for perjury, misconduct or such related matters (CPL 190.25, subd. 4; see People v. Di Napoli, 27 N.Y.2d 229, 316 N.Y.S.2d 622, 265 N.E.2d 449).
Respondents' reliance upon Matter of Proskin v. County Ct. of Albany County, 30 N.Y.2d 15, 330 N.Y.S.2d 44, 280 N.E.2d 875, Supra is equally misplaced. While Proskin may have held out the possibility that a Defendant might receive a copy of grand jury minutes for a proper purpose (Id. at 21, 330 N.Y.S.2d at 47, 280 N.E.2d at 877), it must be remembered that the facts of that case arose prior to September 1, 1971, the effective date of the Criminal Procedure Law. Since the enactment of that law and the codification of the motion procedure, it is readily apparent that there is no longer any authority for a Defendant to receive grand jury minutes; he may only request that the Court examine those minutes in advance of trial (CPL 210.30, subd. 2).
It is, therefore, abundantly clear that the trial court was not only without authority in acting as it did but was, in fact, statutorily prohibited from so doing. Under such circumstances, prohibition will lie (Matter of Proskin v. County Ct. of Albany County, supra; Matter of Lee v. County Ct. of Erie County, 27 N.Y.2d 432, 318 N.Y.S.2d 705, 267 N.E.2d 452, cert. den. 404, U.S. 823, 92 S.Ct. 46, 30 L.Ed.2d 50; People ex rel. Lemon v. Supreme Ct., 245 N.Y. 24, 156 N.E. 84).
The petition should be granted, without costs, and the respondents are directed to desist from further proceedings designed to enforce the order of the County Court of the County of Sullivan compelling the People to furnish a copy of the minutes of the Grand Jury to defendant or to his counsel.
Petition granted, without costs, and respondents are directed to desist from further proceedings designed to enforce the order of the County Court of the County of Sullivan compelling the People to furnish a copy of the minutes of the Grand Jury to defendant or to his counsel.
MAHONEY, P. J., dissents and votes to dismiss in an opinion.
Subdivision 1 of section 210.30 of the CPL requires that a motion to dismiss an indictment based upon the legal insufficiency of the evidence before the Grand Jury be preceded or accompanied by a motion to inspect the Grand Jury minutes, and the remainder of the statute sets forth the procedure to be followed by the court when presented with such motions. Subdivision 3 requires that the motion to inspect be granted if there is reasonable cause to believe that the Grand Jury evidence may have been legally insufficient, and the court "must then proceed to examine the minutes and to determine the motion to dismiss the indictment" (CPL 210.30, subd. 3). The majority concludes that since there is no express provision in CPL 210.30 for release of the Grand Jury minutes before a determination is made on the motion to dismiss the indictment, the court lacks authority to direct petitioner to furnish a copy of the minutes to respondent Legal Aid Society. There is, however, other statutory authority for the release of grand jury minutes (see Judiciary Law, § 325; CPL 190.25, subd. 4) which the courts have recognized in context different from that presented here as resting in the sound discretion of the court. (See, e. g., Matter of City of Buffalo (Cosgrove), 57 A.D.2d 47, 49, 394 N.Y.S.2d 919, 921, mot. for lv. to app. den. 42 N.Y.2d 802, 397 N.Y.S.2d 1026, 366 N.E.2d 292; Matter of Scotti, 53 A.D.2d 282, 286, 385 N.Y.S.2d 659, 662). More importantly, however, Matter of Proskin v. County Court of Albany County, 30 N.Y.2d 15, 330 N.Y.S.2d 44, 280 N.E.2d 875, Supra, relied upon by the majority, is not only distinguishable on its facts because it involved complete disclosure of an extensive Grand Jury investigation of municipal corruption in which the issues related to the pending criminal action were a small part, but its language admits of no other conclusion than that limited disclosure of grand jury minutes upon a motion to dismiss an indictment for legal insufficiency...
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