Kinsella, Application of

• Decision Date: 24 August 1978
• Citation: 408 N.Y.S.2d 717,95 Misc.2d 915
• Parties: Application of John D. KINSELLA, for an Order directing Peter D. Andreoli, Deputy Attorney General to turn over Certain Transcripts and Statements. The PEOPLE of the State of New York v. Richard G. SHEERAN.
• Court: New York Supreme Court

Page 717

408 N.Y.S.2d 717

95 Misc.2d 915

Application of John D. KINSELLA, for an Order directing Peter D. Andreoli, Deputy Attorney General to turn over Certain Transcripts and Statements The PEOPLE of the State of New York v. Richard G. SHEERAN.

Supreme Court, Extraordinary Special Trial Term, Onondaga County.

Aug. 24, 1978.

John D. Kinsella, pro se

Peter D. Andreoli, Sp. Deputy Atty. Gen., Syracuse, for the People.

MEMORANDUM DECISION

LYMAN H. SMITH, Justice.

Subpoenaed (pre-trial) to appear and testify on behalf of the People in the trial of People v. Richard G. Sheeran (Indictment No. S1/1977), ¹ petitioner (Kinsella) makes application, prior to his scheduled trial appearance, for an order directing the Onondaga County Special Prosecutor to furnish him with (1) a full and complete transcript of his previous grand jury testimony, ² including any and all legal instructions given to the grand jury (before which he appeared) together with the results of the grand jury's vote, (2) any statements previously given by petitioner and currently in the possession of the Special Prosecutor, (3) any tapes or transcripts of petitioner's conversations obtained by electronic or telephonic surveillance, and (4) any of petitioner's statements previously obtained by subpoena duces tecum directed to him or to others.

The basis for petitioner's instant application is two-fold: First, he asserts that any witness appearing and giving testimony before a grand jury has a proprietary right to a transcribed copy of such testimony. Secondly, he urges that it is "necessary" for him to review his grand jury testimony before appearing at the Sheeran trial.

At the conclusion of oral arguments presented to this court on August 1, 1978, petitioner's initial claim of a proprietary right in and to a copy of his grand jury testimony was rejected. Noting that this contention was, indeed, unique and unusual, without statutorial or decisional authority to support it, this Court referred in its bench decision to the long-standing and time-honored tradition of secrecy and confidentiality that cloaks all grand jury proceedings (CPL § 190.25; Jud.L. § 325). Further, attention was drawn to the several cogent reasons for the continuation of this tradition which were enunciated by the Court of Appeals in People v. DiNapoli, 27 N.Y.2d 229, 316 N.Y.S.2d 622, 265 N.E.2d 449. Leave was granted to petitioner, however, to file further sworn affidavits in support of his second contention, i. e., that it is "necessary" for him to review his grand jury testimony prior to appearing in the Sheeran trial.

Petitioner is currently a senior assistant district attorney in Onondaga County. His testimony before the January, 1977 Extraordinary Special Grand Jury of Onondaga County was part of the on-going investigation (mandated by Executive Order No. 42 (9 NYCRR 3.42, dated November 24, 1976)) into purported illegal solicitations of political contributions in Onondaga County. His grand jury testimony apparently relates to the purported existence of a conspiracy, among several high-ranking Onondaga County public officials, to benefit the Onondaga County Republican Committee through alleged illegal solicitation of political contributions from county employees, including the District Attorney's office. ³

The Special Prosecutor suggests that petitioner's testimony in the Sheeran trial will be offered as a portion of the proof of the alleged conspiracy. Counts 1 and 2 of the Sheeran indictment (S1/1977) charge just such a conspiracy. Additionally, it is undisputed that petitioner's prior grand jury testimony relates to other public officials who stand accused under indictments charging an identical and on-going conspiracy as well as a broad spectrum of inter-related overt acts, purportedly committed in furtherance of the objectives of such conspiracy. Thus, it follows that petitioner will be subpoenaed as a witness upon the trial of all other indictments charging such conspiracy.

Although the Special Prosecutor has agreed to review the prospective trial testimony of the petitioner, prior to his scheduled appearance in the present trial of the defendant Sheeran, nevertheless, the Special Prosecutor resists any order directing him to furnish petitioner a copy of petitioner's prior testimony or permitting petitioner a wholesale review, at this juncture, of all transcripts of petitioner's total grand jury testimony, especially as to those parts thereof pertaining to other indictments and defendants that have not yet gone to trial. ⁴ In this regard, the Special Prosecutor urges that petitioner has failed to reveal "compelling reasons" which would presently warrant disclosure of petitioner's total grand jury testimony.

In passing, it should be noted that petitioner has refused, "at this time", the Special Prosecutor's invitation to review the petitioner's prospective trial testimony.

Upon this Court's invitation, petitioner has now submitted (in writing) variant reasons in support of his contention that it is "necessary" for him to review his grand jury testimony before his appearance in the Sheeran trial. None carry compelling force.

For example, petitioner contends that his personal review of his grand jury testimony, prior to his trial appearance, would expedite the Sheeran trial. No explanation is offered for this contention. If, perchance, petitioner is concerned that a lapse of memory, as to those events to which he will be asked to testify, would necessitate delays in the trial, in order to permit refreshment of his recollection by referral to his grand jury testimony, such concern will not suffice to trigger the relief requested. Such concern is speculative. The spectre of trial delay, to permit a witness to refresh his recollection, is always present (prior to a witness's appearance) and, as a practical matter, is seldom time-consuming.

Additionally, petitioner speculates that the Special Prosecutor is attempting to "embarrass him" at the Sheeran trial. Again, no foundation for this conclusion is set forth. Nor is any explanation offered as to the method or circumstances by which he might be embarrassed. Again, his opportunity to refresh his recollection by reading portions of his grand jury testimony, at trial, should absolve his fears in this regard.

Petitioner avers that the Special Prosecutor is setting a "perjury trap" for him, alleging, Upon information and belief, that the transcript of his grand jury testimony is not accurate, that the Special Prosecutor may have edited his grand jury testimony and that he is a target of the Special Prosecutor's investigation by reason of his political affiliation and his employment as an assistant district attorney. ⁵ As noted, these allegations are made "upon information and belief". Neither the sources of petitioner's information, nor the grounds for his belief, are revealed in petitioner's pleadings. Nor are any additional foundational facts established for these assertions. Accordingly, such allegations are insufficient to support the relief requested. See, Buell v. Van Camp, 119 N.Y. 160, 23 N.E. 538; Ingram v. Robbins, 33 N.Y. 409; In Re Huff, 136 App.Div. 297, 120 N.Y.S. 1070.

An expression of fear of a "perjury trap" is unconvincing for several additional reasons.

So long as petitioner's concept of a "perjury trap" remains undefined, this Court conceives that it has no obligation to protect the prospective witness from a "perjury trap", whatever that may be. At best, petitioner's contention pre-supposes a prior faulty memory. At worst, it alludes to either perjurious prior grand jury testimony or to prospective perjurious testimony in the instant trial. Refreshment of recollection (CPL § 60.35) may legitimately cure a faulty memory. But, from prior perjury this Court cannot save the witness. From prospective perjury this Court will not save the witness. It must be assumed that petitioner, like every other witness subpoenaed to testify at the Sheeran trial, will tell the truth. Until and unless the feared "perjury trap" rests on something more than speculation, the witness's conscience must be his only accuser.

Finally, it must be emphasized that, in the event petitioner were to be charged with perjury or criminal contempt, arising either from his grand jury testimony or from his prospective trial testimony, he would, in such event, be afforded the full panoply of rights to all accused of criminal conduct. This would, of course, include the right to receive a copy of his grand jury testimony (CPL § 240.20(1)(a)). At such time, errors in transcription of testimony, editing of testimony, improper instructions on the law, resulting in confusion, and unsworn stenographers ⁶ could all be raised in petitioner's defense. Where it becomes manifest that the primary purpose for the questioning of a witness was the solicitation of perjurious testimony, such person, when later charged with perjury or criminal contempt, is not without relief. See, People v. Tyler, 62 A.D.2d 136, 405 N.Y.S.2d 270. At this point in time, petitioner's speculative allegations are not only premature, but also insufficient to invade the secrecy of the grand jury proceedings, presumed to be proper (People v. Howell, 3 N.Y.2d 672, 171 N.Y.S.2d 801, 148 N.E.2d 867; People v. King, 48 A.D.2d 457, 370 N.Y.S.2d 52).

Section 190.25(4) of the Criminal Procedure Law mirrors the ancient principle that grand jury proceedings are to be maintained secret. Such principle is not absolute, however, and exceptions thereto exist, subject to the sole discretion of the trial court. See, CPL § 190.25(4); Jud.Law § 325. In exercising such discretion, care must be taken to properly balance the public interest to be served by disclosure of grand jury proceedings against the well-recognized public interest in preserving and maintaining grand jury secrecy. See, People v. DiNapoli, supra; Zinna v. Rensselaer County Grand Jury, App.Div., 404 N.Y.S.2d 1015; ...