Matter of Scro

• Decision Date: 10 November 1951
• Parties: In the Matter of Edward Scro and Others.
• Court: New York District Court

200 Misc. 688

In the Matter of Edward Scro and Others.

November 10, 1951.

Sidney Rosenthal for Edward Scro and others.

Denis M. Hurley, Corporation Counsel (Victor J. Herwitz of counsel), for Police Commissioner of the City of New York.

Miles F. McDonald, District Attorney (Julius Helfand and Aaron E. Koota of counsel).

LEIBOWITZ, J.

This is an application by three police officers, presently defendants in police department disciplinary proceedings, for an order vacating an order of this court heretofore entered, which directed the District Attorney of the County of Kings to transmit to the police commissioner of the City of New York a transcript of the testimony of one Harry Gross adduced before the grand jury, or, in the alternative, for an order to limit the police commissioner's use of said minutes in a manner to be designated by this court.

The parties to this application are the aforesaid police officers, the District Attorney and the police commissioner, the latter being represented by the corporation counsel of the City of New York.

A proper appraisal of the merits of this application requires a brief summary of the antecedent events.

In May, 1951, an indictment was filed in this court charging twenty-one former and present members of the police department with the crime of conspiracy to obstruct justice. It was alleged in said indictment that there was a corrupt agreement among the defendants to provide one Harry Gross, a notorious book-maker, with immunity from police interference in his widespread illegal book-making business. Also named in said indictment, but only as coconspirators, were some fifty other present and former members of the force.

Upon the trial, on September 19th, when called as a witness for the People, Gross refused to testify. Since the very basis for the prosecution was the testimony of Gross, the case collapsed and the District Attorney was constrained to move for dismissal of the indictment, which motion the court granted.

In May, 1951, shortly after the filing of said indictment, the police commissioner had preferred charges and had instituted disciplinary proceedings against the officers named in the indictment both as defendants and as coconspirators.

On September 20, 1951, the District Attorney applied to this court for an order, pursuant to section 952-t of the Code of Criminal Procedure, permitting him to release the grand jury testimony of Gross to the police commissioner for disciplinary action against the officers. The application was granted. The movants now contend that the grand jury minutes should not have been released for such purpose.

In the opinion of the court such contention is without merit.

It is clear that proceedings before a grand jury generally are, and should be, kept a secret. However, where the purpose of the secrecy fails and public interest requires it, the grand jury testimony may be divulged. The power of the court to release such minutes, if not inherent in its jurisdiction, is at least authorized and sanctioned by section 952-t of the Code of Criminal Procedure.

This court is of the firm opinion that the interests of justice demanded that Gross's refusal to testify should not grant absolution to alleged miscreant police officers. If they were guilty of the reprehensible conduct attributed to them, namely, of accepting graft in return for protecting Gross in his illegal business, their continued retention on the police force would have made law enforcement a mockery. Public interest, therefore, required that this testimony be made available to the police commissioner, to be used by him within limits prescribed by law. (People ex rel. Hirschberg v. Board of Supervisors, Orange Co., 251 N.Y. 156, 170; Dworetzky v. Monticello Smoked Fish Co., 256 App. Div. 772, 774; Matter of Quinn [Guion], 267 App. Div. 913, affd. 293 N.Y. 787.)

The court now considers the alternative prayer for relief, that it modify the order of September 24th by prohibiting the use of Gross's grand jury testimony upon the trial of the disciplinary proceedings.

The movants base their application on the following grounds:

One: That the disciplinary proceedings are quasi-criminal in nature and that upon a departmental trial the basic rules of evidence that prevail in criminal cases must be substantially followed.

Two: That the testimony of Gross before the Grand Jury, if offered upon the disciplinary proceedings, would be clearly hearsay; and if received as evidence in chief in behalf of the prosecution, the movants would be deprived of the opportunity for cross-examination, thereby denying to them their fundamental rights to a fair trial.

In People ex rel. Miller v. Elmendorf (a police removal case, 42 App. Div. 306, 309) the court said: "as the proceedings are quasi criminal in their nature and valuable rights of the accused official are at stake, as well as his good name, the same safeguards that are used to protect good name, fame, property or person in courts of justice should in substance be observed in these proceedings."

In People ex rel. Schauwecker v. Greene (a police removal case, 96 App. Div. 249, 254) the court said: "We think a distinction is to be made between the position occupied by a commissioner generally and when he is presiding as a judge at a trial. At such times the accused has been suspended from the force, and the commissioner is acting not as his superior officer but as his judge upon the charges preferred. The rules governing judicial tribunals, therefore, and not the rules of the police department would seemingly apply." (Emphasis supplied.) See, also, Martin v. O'Keefe (a police removal case, 195 App. Div. 814, 819, 820).

As to whether hearsay testimony is admissible in chief in a police removal case, the movants cite the case of Matter of Greenebaum v. Bingham (a police removal case, 201 N.Y. 343). At page 347 the Court of Appeals said: "While the hearing may be more or less informal, the trial must be fair in all substantial respects. Some latitude is allowed as to rules of evidence, methods of examination and the like, but no essential element of a fair trial can be dispensed with unless waived, and no vital safeguard violated without rendering the judgment of conviction subject to reversal upon review. A fair trial, according to existing practice, requires that the accused shall be confronted by the witnesses against him and given an opportunity to hear their statements under oath, and to cross-examine them to a reasonable extent. Hearsay evidence cannot be received: evidence cannot be taken in the absence of the accused and the trier of the fact can find the fact only on the evidence and not on his own knowledge." (Emphasis supplied.)

It is significant that the police department itself recognizes this fundamental right to confrontation and cross-examination. Its Manual of Procedure relative to disciplinary proceedings provides: "Before testifying, the witness shall be sworn by the Trial Commissioner; the Department shall conduct a...