James v. Donovan

• Decision Date: 29 July 2015
• Docket Number: 2015-02774
• Citation: 14 N.Y.S.3d 435,2015 N.Y. Slip Op. 06348,130 A.D.3d 1032
• Parties: In the Matter of Letitia JAMES, etc., appellant, v. Daniel DONOVAN, etc., respondent-respondent. In the Matter of Legal Aid Society, appellant, v. Daniel Donovan, etc., respondent-respondent. In the Matter of New York Civil Liberties Union, appellant, v. Daniel Donovan, etc., respondent-respondent. In the Matter of NYP Holdings, Inc., etc., petitioner, v. Daniel Donovan, etc., respondent. In the Matter of Staten Island Branch of National Association for Advancement of Colored People, etc., et al., appellants, v. Daniel Donovan, etc., respondent-respondent.
• Court: New York Supreme Court — Appellate Division

130 A.D.3d 1032
14 N.Y.S.3d 435
2015 N.Y. Slip Op. 06348

In the Matter of Letitia JAMES, etc., appellant
v.
Daniel DONOVAN, etc., respondent-respondent.

In the Matter of Legal Aid Society, appellant
v.
Daniel Donovan, etc., respondent-respondent.

In the Matter of New York Civil Liberties Union, appellant
v.
Daniel Donovan, etc., respondent-respondent.

In the Matter of NYP Holdings, Inc., etc., petitioner
v.
Daniel Donovan, etc., respondent.

In the Matter of Staten Island Branch of National Association for Advancement of Colored People, etc., et al., appellants
v.
Daniel Donovan, etc., respondent-respondent.

2015-02774

Supreme Court, Appellate Division, Second Department, New York.

July 29, 2015.

14 N.Y.S.3d 437

Jennifer Levy, New York, N.Y., and Emery Celli Brinckerhoff & Abady, LLP, New York, N.Y. (Matthew D. Brinckerhoff and Orion Danjuma of counsel), for appellant Letitia James, as Public Advocate for the City of New York (one brief filed).

Seymour W. James, Jr., New York, N.Y. (Natalie Rea of counsel), for appellant Legal Aid Society.

Arthur Eisenberg and Corey Stoughton, New York, N.Y., for appellant New York Civil Liberties Union.

James I. Myerson and Laura D. Blackburne, New York, N.Y., for appellants Staten Island Branch of National Association for Advancement of Colored People and New York State Conference of Branches of National Association for Advancement of Colored People.

Daniel L. Master, Jr., Acting District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart and Anne Grady of counsel), for respondent-respondent.

Stoll, Glickman & Bellina, LLP, Brooklyn, N.Y. (Andrew B. Stoll of counsel), for The Black, Puerto Rican, Hispanic, and Asian Legislative Caucus of the New York State Legislature, amicus curiae.

Sylvia Gail Kinard and Tobias Pinckney, Brooklyn, N.Y. (Elizabeth Roberts and Kevin Ferere on the brief), for Medgar Evers College Legal Pathways Program, amicus curiae.

Frank A. Sedita III, District Attorney, Buffalo, N.Y., for District Attorneys Association of State of New York, amicus curiae.

Bruce D. Brown, Gregg P. Leslie, and Tom Isler, Washington, D.C., for Reporters Committee for Freedom of the Press, amicus curiae, and Davis Wright Tremaine, LLP, New York, N.Y. (

14 N.Y.S.3d 438

Laura R. Handman of counsel), for Advance Publications, Inc., American Society of News Editors, Association of Alternative Newsmedia, Bloomberg, L.P., BuzzFeed, Cable News Network, Inc., Center for Investigative Reporting, Courthouse News Service, Daily News, L.P., Dow Jones & Company, Inc., First Amendment Coalition, First Look Media, Inc., Investigative Reporting Workshop at American University, The McClatchy Company, MediaNews Group, Inc., The National Press Club, National Press Photographers Association, The New York Times Company, News 12, Newsday, LLC, North Jersey Media Group, Inc., NYP Holdings, Inc., Online News Association, Radio Television Digital News Association, Reuters America, LLC, The Seattle Times Company, Society of Professional Journalists, Tully Center for Free Speech, and The Washington Post, amici curiae (one brief filed).

MARK C. DILLON, J.P., JOHN M. LEVENTHAL, LEONARD B. AUSTIN, and SANDRA L. SGROI, JJ.

Opinion

130 A.D.3d 1032

In separate proceedings to unseal and release grand jury minutes and evidence based on CPL 190.25(4)(a), Letitia James, as Public Advocate for the City of New York, the Legal Aid Society, the New York Civil Liberties Union, and the Staten Island Branch of the National Association for the Advancement of Colored People and the New York State Conference of Branches of the National Association for the Advancement of Colored People separately appeal, as limited by their respective briefs, from so much of an order of the Supreme Court, Richmond County (Garnett, J.), dated March 19, 2015, as denied each of their respective petitions.

ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.

These appeals arise out of the death of Eric Garner on July 17, 2014, and a grand jury's decision not to return an indictment against the target or targets of its investigation. After impaneling a grand jury to hear evidence concerning the circumstances of Garner's death, the District Attorney of Richmond

130 A.D.3d 1033

County (hereinafter the District Attorney), based on CPL 190.25(4)(a), petitioned the Supreme Court, and was granted permission, to disclose to the public limited information regarding the nature and scope of the grand jury proceedings. The District Attorney did not seek, at that time, the disclosure of any grand jury testimony or exhibits. The Supreme Court permitted disclosure regarding the period of time during which the grand jury sat, the number and types of witnesses who testified, and the number and types of exhibits admitted into evidence. The Supreme Court also disclosed the relevant principles of law on which the grand jurors were instructed, and that the grand jury, in conformity with CPL 190.60 and 190.75, voted to file its findings of dismissal. Rather than quelling public debate about the grand jury proceedings, the limited disclosure instead engendered a call for full disclosure of the minutes of the grand jury's proceedings, and the exhibits and instructions provided to the grand jury.

These appeals involve the subsequent petitions filed by Letitia James, as Public Advocate for the City of New York (hereinafter the Public Advocate), the Legal Aid Society, the New York Civil Liberties Union, and the Staten Island Branch of the National Association for the Advancement of Colored People and the New York State Conference of Branches of the National Association for the Advancement of Colored People (hereinafter together the N.A.A.C.P. petitioners), based upon CPL 190.25(4)(a), to unseal and release the grand jury minutes to themselves and to

14 N.Y.S.3d 439

the general public, including transcripts of testimony, exhibits, information about certain grand jurors, and legal instructions. Each of these petitioners seeks disclosure for the purpose of understanding the grand jury's decision to not return an indictment, promoting transparency in the grand jury process, restoring confidence in the criminal justice system, and engaging in meaningful discussions about reform of the grand jury process and police practices. Certain petitioners proposed limiting the scope of the materials disclosed to the public and redacting any names of, and identifying information about, the witnesses and grand jurors. In the order appealed from dated March 19, 2015, the Supreme Court denied the petitions on the grounds that each of the petitioners failed to establish a “compelling and particularized” need for disclosure and, in any event, the public interest in preserving grand jury secrecy outweighed the public interest in disclosure.

Preliminarily, we note that the disclosure issues raised by the District Attorney in the initial proceeding were different

130 A.D.3d 1034

than the issues presented by the current petitions. Accordingly, the determination made in the District Attorney's initial proceeding does not control the instant proceedings (see Ryan v. New York Tel. Co., 62 N.Y.2d 494, 500–501, 478 N.Y.S.2d 823, 467 N.E.2d 487 ). Moreover, the partial disclosure ordered by Justice Rooney in that proceeding does not, in and of itself, open the door to the disclosure of additional grand jury testimony, exhibits, and information (see Matter of Carey, 45 Misc.3d 187, 988 N.Y.S.2d 852 [Sup.Ct., Wyoming County], affd. 68 A.D.2d 220, 416 N.Y.S.2d 904 ).

We reject the District Attorney's contention that the subject order is nonappealable. The order appealed from is civil, rather than criminal, in nature, “for although it relates to a criminal [investigation], it does not affect the criminal [investigation] itself, but only a collateral aspect of it,” namely, the unsealing and release of the grand jury minutes (Matter of Hynes v. Karassik, 47 N.Y.2d 659, 661 n. 1, 419 N.Y.S.2d 942, 393 N.E.2d 1015 ; see People v. M.E., 121 A.D.3d 157, 159, 991 N.Y.S.2d 232 ; People v. Anonymous, 7 A.D.3d 309, 310, 776 N.Y.S.2d 282 ; People v. Purley, 297 A.D.2d 499, 501, 747 N.Y.S.2d 10 ).

However, the Public Advocate lacks capacity to maintain a proceeding based on CPL 190.25(4)(a). The issue of legal capacity “requires an inquiry into the litigant's status, i.e. its ‘power to appear and bring its grievance before the court’ ” (Wells Fargo Bank Minn., N.A. v. Mastropaolo, 42 A.D.3d 239, 242, 837 N.Y.S.2d 247, quoting Community Bd. 7 of Borough of Manhattan v. Schaffer, 84 N.Y.2d 148, 155, 615 N.Y.S.2d 644, 639 N.E.2d 1 ). The authority of the Public Advocate is expressly limited to that set forth in the New York City Charter. Section 24(f)(4) of the New York City Charter, which enables the Public Advocate, in essence, to oversee city agencies, perform related investigations, and attempt to resolve individual complaints concerning city services, does not extend to allegations of conduct that may constitute a crime. In fact, the Public Advocate is...