Jones v. State
| Decision Date | 07 April 1978 |
| Docket Number | Nos. 3,No. 1,No. 2,4 and 5,1,2,s. 3 |
| Citation | 62 A.D.2d 44,403 N.Y.S.2d 935 |
| Parties | Lynda JONES, Individually and as Administratrix of the Estate of Herbert W. Jones, Jr., Respondent, v. The STATE of New York, Vincent Mancusi, Russell G. Oswald, and Henry F. Williams, Appellants. AppealElizabeth M. HARDIE, Individually and as Administratrix of the Estate of Elmer S. Hardie, Respondent, v. The STATE of New York, Vincent Mancusi, Russell G. Oswald and Henry F. Williams, Appellants. AppealLynda JONES, Individually and as Administratrix of the Estate of Herbert W. Jones, Jr., Respondent, v. The STATE of New York, Appellant (two cases). Elizabeth M. HARDIE, Individually and as Administratrix of the Estate of Elmer S. Hardie, Respondent, v. The STATE of New York, Appellant (three cases). Appeal |
| Court | New York Supreme Court — Appellate Division |
Ruth Kessler Toch, Sol. Gen., Louis J. Lefkowitz, Atty. Gen., Albany (Jeremiah Jochnowitz, Albany, of counsel), for appellants.
Cunningham & Pares, Buffalo (William J. Cunningham, Jr., Buffalo, of counsel), for respondent Jones.
Tenney, Smith & Scott, Buffalo, for respondent Hardie.
Before MARSH, P. J., and CARDAMONE, SIMONS, DILLON and MOULE, JJ.
The State appeals from five orders of the Court of Claims entered in these actions arising from events which took place during the recapture of the Attica Correctional Facility on September 13, 1971. The principal questions raised on these appeals are whether it was proper for the court to order the State to produce statements made by State Police and Correctional Officers to the State Police Bureau of Criminal Investigation following the Attica incident and whether a subpoena duces tecum requiring the presence at trial of approximately 600 State Police Officers should be quashed.
At an examination before trial held on February 7, 1977 New York State Police Captain Henry F. Williams testified that the State Police possessed certain debriefing statements given by the State Police and Correctional Officers who participated in the retaking of the Attica Correctional Facility. Thereafter, claimants Jones and Hardie moved for production and inspection of a number of items, including these debriefing statements and a report allegedly prepared for former Governor Nelson Rockefeller referred to as the Albright-Vestner Report. Claimants' motion was granted insofar as it related to the statements and report and on July 1, 1977 the State was ordered to provide such information concerning these items as it had available.
Several months later on September 22, 1977, the State made two motions, one in the Jones action and another in the Hardie action, for orders of protection relieving it from compliance with the provisions of the July 1, 1977 order relating to production of the debriefing statements on the ground that these statements had been presented before the First and Second Special Wyoming County Grand Juries investigating the Attica incident and that, therefore, an order of Justice Carman F. Ball, the Supreme Court Justice who had empaneled the Grand Juries, was necessary to permit disclosure of this material. The State asserted that it was unaware at the time of the July 1, 1977 order that these statements were part of the Grand Jury papers. On the date that these two motions were argued, October 3, 1977, the court also heard a motion by claimants for an order directing the Attorney General to show cause why the State should not be held in contempt of court for its failure to comply with the July 1, 1977 order requiring production of the debriefing statements and Albright-Vestner Report. On October 4, 1977, the court denied the State's motions for orders of protection and issued the show cause order requested by claimants. By a subsequent order dated October 12, 1977, the State was held to be in contempt of court for its refusal to obey the July 1, 1977 order; provided, however, that the State could purge itself of the contempt order by producing the debriefing statements and Albright-Vestner Report by the following day. The State filed its notice of appeal from this order of contempt on October 13, 1977, at which time enforcement of the order was automatically stayed (CPLR 5519(a)(1)).
A fourth motion heard by the court on October 3, 1977 concerned an application by the State to quash a subpoena duces tecum requiring the presence at trial of approximately 600 State Police Officers along with their notes and memoranda. The subpoena was served pursuant to a stipulation by the State that one subpoena served upon the Superintendent of State Police would constitute sufficient service upon all of these officers. The State sought to quash the subpoena on several grounds, among them the fact that necessary witness and mileage fees had not been tendered and that to compel all of the requested officers to appear at one time would seriously impair police protection. This motion was denied.
A joint trial of these actions and others arising from the Attica incident commenced on October 17, 1977, at which time the State moved to quash two subpoenas duces tecum which required, among other things, the production of the State Police and Correctional Officers' debriefing statements. One subpoena had been served upon Major Daniel A. Daken, custodian of the records for the State Police, and was returnable October 17, 1977; another had been served upon State Police Lieutenant Gerald O'Grady, the State Police photographer, and was returnable the following day. The State claimed, inter alia, that the necessary witness and mileage fees had not been tendered, and that production of the debriefing statements at trial was prevented by the automatic stays effected by the appeals taken by the State from the prior orders of the court. The court denied the State's motion to quash these two subpoenas but, in so doing, held that tender of witness and mileage fees was required in advance of the witnesses' testimony. Inasmuch as Major Daken was present, the court allowed claimants to cure the deficiency by paying him the fees before calling him to the stand. Lieutenant O'Grady has not yet been called as a witness. 1
The State first contends that the court erred in ordering production of the debriefing statements of the State Police and Correctional Officers and the Albright-Vestner Report, inasmuch as these items were exhibits before the Special Wyoming County Grand Juries. We disagree.
Despite the fact that as early as July 20, 1977, the State had been put on notice of the possibility that the debriefing statements and report had been presented in evidence before the Wyoming County Grand Juries, the State neither took a timely appeal from the July 1, 1977 order requiring their production nor did it move for a rehearing of the motion which culminated in that order. Nevertheless, even if the State had taken a timely appeal from this order, or if we were to treat the State's motions for protection orders as motions to renew based upon facts discovered after the granting of the July 1, 1977 order (see Soffair v. Koffler, 29 A.D.2d 659, 286 N.Y.S.2d 593, app. dsmd., 23 N.Y.2d 897, 298 N.Y.S.2d 93, 245 N.E.2d 820), we would hold that production of the statements and report was properly ordered.
In People v. DiNapoli, 27 N.Y.2d 229, 316 N.Y.S.2d 622, 265 N.E.2d 449, the Court of Appeals set forth five general purposes to be served by maintaining Grand Jury secrecy which are to be considered in determining whether disclosure of Grand...
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