McGinley v. Hynes

• Decision Date: 14 October 1980
• Citation: 432 N.Y.S.2d 689,51 N.Y.2d 116,412 N.E.2d 376
• Parties: , 412 N.E.2d 376, 16 A.L.R.4th 102 In the Matter of Barbara McGINLEY, Respondent, v. Charles J. HYNES, as Deputy Attorney-General, Appellant, et al., Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 689

432 N.Y.S.2d 689

51 N.Y.2d 116, 412 N.E.2d 376, 16

A.L.R.4th 102

In the Matter of Barbara McGINLEY, Respondent, v. Charles J. HYNES, as Deputy Attorney-General, Appellant, et al., Respondent.

Court of Appeals of New York.

Oct. 14, 1980.

Charles J. Hynes, Deputy Atty. Gen. (Arthur Weinstein, New York City, Richard D. Carruthers, Brooklyn, and Terrence P. Buckley, Hauppauge, of counsel), for appellant.

Stephen R. Taub for respondent.

OPINION OF THE COURT

GABRIELLI, Judge.

In this article 78 proceeding, the Special Nursing Home Prosecutor appeals from an order of the Appellate Division, which granted petitioner's request for relief in the nature of prohibition and directed the Special Prosecutor to refrain from presenting additional evidence to the Grand Jury in connection with his investigation of a particular hospital without first seeking and obtaining judicial approval to "resubmit" pursuant to CPL 190.75 (subd. 3). The present appeal requires us to consider novel questions concerning the availability of the prohibition remedy to prevent a prosecutor from carrying out his investigative functions when there is no claim that the subject matter of his investigation is beyond the scope of his prosecutorial authority. Because we conclude that prohibition does not lie under the circumstances presented in this case, we now reverse the order of the Appellate Division, 75 A.D.2d 897, 428 N.Y.S.2d 57 and direct that the petition for a writ of prohibition be dismissed.

The investigation in question was initially commenced before a Suffolk County Grand Jury on September 5, 1978. Assistant Special Prosecutor Richard Miller informed the Grand Jury at that time that it would be looking into possible rebate and kickback schemes in the various hospitals, adult homes, health-related facilities and nursing homes in Suffolk County with a view toward determining, among other things, whether the State's Medicaid system had been defrauded. Of particular interest, the Grand Jury was told, were the financial activities of the Brunswick Nursing Center, a general hospital in Suffolk County. Suspicion had focused upon the Brunswick facility because, as the Grand Jury was later advised, an audit of that hospital's books by the Special Prosecutor's office had revealed some rather unusual business transactions between Brunswick and two of its regular suppliers.

From the outset, the Grand Jury's investigation of these matters was plagued with delays. Subpoenas had been issued commanding Brunswick and several of its suppliers to produce their records for the Grand Jury on September 5, but each of the vendors made immediate motions to quash and Brunswick requested a postponement to October 6 so that it would have an adequate opportunity to assemble the required material. The vendors' motions to quash were not finally resolved in favor of the Special Prosecutor until the middle of October, when the Appellate Division vacated its stays. By that time, however, Brunswick had made its own motion to quash, despite its earlier promise to produce records by October 6. This motion delayed the production of Brunswick's records through the end of December, 1978.

Additional delays were occasioned by the recalcitrance of various witnesses. One of the vendors involved in the investigation failed to appear as scheduled because his attorney was "very busy". When he finally did appear two months later, he impeded the investigation by refusing to answer a number of crucial questions. His subsequent appearances before the Grand Jury were equally fruitless, and, as a consequence, a contempt proceeding was eventually commenced against him. The efforts to bring this witness before the Grand Jury dragged on through a chain of late appearances and outright failures to appear until the last month of the investigation. On several occasions during this period, the witness' appearance had to be postponed because his attorney either appeared late or did not show up at all. Indeed, even the efforts of the Trial Judge to conduct contempt proceedings were confounded by the refusal of this witness and his attorney to appear when commanded to do so.

The performance of this witness was not atypical. Several witnesses represented by the same attorney caused repeated delays as a result of their own or their attorney's failure to appear as scheduled. One of the other principals in the investigation also characteristically failed to be present on the dates he was scheduled to appear. A new series of motions to quash made in early 1979 by various witnesses produced additional delays and frustrations for the Grand Jurors. These difficulties were further compounded by the fact that many of the records subpoenaed by the Grand Jury either had been destroyed or simply could not be found.

Throughout the nine-month period of the Grand Jury session, representatives of the Special Prosecutor's office were repeatedly compelled to ask for extensions of the Grand Jury's term so that all of the evidence could be heard. On each occasion, the Grand Jurors were told that every effort was being made to obtain the cooperation of witnesses and put an end to the delays and collateral proceedings. Although the Grand Jurors initially were receptive to the Special Prosecutor's requests for extensions, they began to express impatience as the months dragged on and the witnesses persisted in their dilatory tactics. At several points in the proceedings, individual members of the Grand Jury asked whether additional measures could be taken to hold the resistant witnesses and their attorneys accountable for their conduct. Additionally, a few of the Grand Jurors indicated that the repeated extensions of the investigation were beginning to disrupt their personal lives. Finally, at the May 25, 1979 session, the Grand Jurors took a vote among themselves and determined not to continue beyond the next scheduled termination date, June 22, 1979. Thus, although the Special Prosecutor had not had an opportunity fully to explore the evidence, the Grand Jury was disbanded without having taken any action in the Brunswick Nursing Center matter. It was apparent from the minutes of the Grand Jury sessions, however, that the decision of the Grand Jury to disband was based not upon its belief that no crime had been committed but, rather, upon the Grand Jurors' impatience with the repeated delays occasioned by the witnesses' recalcitrance.

A new Grand Jury was convened on October 1, 1979. Once again, a representative of the Special Prosecutor's office appeared and informed the Grand Jurors that they would be looking into the financial activities of the Brunswick Nursing Center with a view toward the possibility of Medicaid fraud. Several witnesses were called to testify regarding the Brunswick matter, but the progress of the investigation was once again halted when a Brunswick employee whose bank record had been subpoenaed commenced the instant article 78 proceeding in an effort to restrain the Special Prosecutor from pursuing the matter further.

The petition was based upon CPL 190.75 (subd. 3), which provides that when a charge presented to a Grand Jury has been dismissed, "it may not again be submitted to a grand jury unless the court in its discretion authorizes or directs the people to resubmit such charge to the same or another grand jury". Although the first Grand Jury in the Brunswick Nursing Center case had been discharged before it had had an opportunity to consider and act upon any charges, petitioner argued that, under the circumstances, the Grand Jury's nonaction should be considered the equivalent of a dismissal for purposes of CPL 190.75 (subd. 3) and the Special Prosecutor should therefore be prohibited from proceeding before a second Grand Jury unless and until court approval for resubmission is obtained.

Special Term did not directly address the merits of petitioner's contentions, but instead dismissed the petition upon the ground that the extraordinary remedy of prohibition was simply not justified under the facts of the case. The Appellate Division, however, reversed, concluding that prohibition was available to prevent the prosecutor from acting "in excess of (his) powers" (La Rocca v. Lane, 37 N.Y.2d 575, 579, 376 N.Y.S.2d 93, 388 N.E.2d 606, cert. den. 424 U.S. 968, 96 S.Ct. 1464, 47 L.Ed.2d 734) in violation of CPL 190.75 (subd. 3). The court then went on to hold that petitioner was a person with "standing" to bring the proceeding, since, as an employee of Brunswick, she was a potential target of the Special Prosecutor's investigation. Finally, reaching the merits of the dispute, the Appellate Division found that the Special Prosecutor had indeed exceeded the bounds of his authority by reviving the Brunswick investigation before a second Grand Jury without first obtaining judicial approval. Consequently, the Appellate Division held, petitioner was entitled to the requested relief.

We do not reach the merits of petitioner's contentions, however, because we conclude that prohibition does not lie under circumstances such as these. ¹ The "ancient and just" writ of prohibition is available "only where there is a clear legal right and only when the body or officer 'acts or threatens to act without jurisdiction in a matter over which it has no power over the subject matter or where it exceeds its authorized powers in a proceeding over which it has jurisdiction' " (Matter of Dondi v. Jones, 40 N.Y.2d 8, 13, 386 N.Y.S.2d 4, 351 N.E.2d 650 quoting Matter of State of New York v. King, 36 N.Y.2d 59, 62, 364 N.Y.S.2d 879, 324 N.E.2d 351; Matter of Nigrone v. Murtagh, 36 N.Y.2d 421, 423-424, 369 N.Y.S.2d 75, 330 N.E.2d 45; see Matter of Vega v. Bell, 47 N.Y.2d 543, 546-547, 419 N.Y.S.2d 454, 393 N.E.2d 450). The writ "must be directed to some inferior judicial tribunal or officer and lies to prevent or control judicial or quasi-judicial action only, as distinguished from legislative,...