Onondaga County District Attorney's Office to File a Sealed Grand Jury Report as a Public Record, Matter of

• Decision Date: 28 February 1983
• Citation: Onondaga County District Attorney's Office to File a Sealed Grand Jury Report as a Public Record, Matter of, 459 N.Y.S.2d 507, 92 A.D.2d 32 (N.Y. App. Div. 1983)
• Parties: In the Matter of the Application of the ONONDAGA COUNTY DISTRICT ATTORNEY'S OFFICE TO FILE A SEALED GRAND JURY REPORT AS A PUBLIC RECORD.
• Court: New York Supreme Court — Appellate Division

Page 507

459 N.Y.S.2d 507

92 A.D.2d 32

In the Matter of the Application of the ONONDAGA COUNTYDISTRICT ATTORNEY'S OFFICE TO FILE A SEALED GRAND JURY REPORT AS A PUBLIC RECORD.

Supreme Court, Appellate Division Fourth Department.

Feb. 28, 1983.

Richard A. Hennessy, Jr., Dist. Atty., Syracuse (John Cirando, Sr. Asst. Dist. Atty., Syracuse, of counsel), for appellant.

James E. Sparkes, Syracuse, for respondent.

Before DILLON, P.J., and CALLAHAN, DENMAN, BOOMER and SCHNEPP, JJ.

CALLAHAN, Justice.

The October, November, December 1980 Supplemental Grand Jury of Onondaga County conducted an investigation into allegations of improper and abusive practices in connection with the computer processing of seven hundred thirty-one City of Syracuse traffic tickets over a five year period.On December 15, 1981, the Grand Jury submitted a report to the Onondaga County Court recommending that disciplinary action be taken against respondent, a public servant, who was then employed by the City of Syracuse.The court examined the Grand Jury Minutes and found that the report was supported by a preponderance of the credible and legally admissible evidence, whereupon it issued an order pursuant to CPL 190.85(subd. 2, par. [a] ) accepting the report for filing as a public record.In accepting the report, the court, in accordance with CPL 190.85(subd. 3), ordered it sealed and not filed as a public record until at least 31-days after a copy of the order and report had been served upon the public servant named therein.On January 6, 1982, respondent filed an answer to the Grand Jury report refuting the conclusions drawn by the Grand Jury.However, on January 14, 1982, prior to the expiration of the thirty-one day period, respondent resigned his position with the City of Syracuse effective January 15, 1982.Since respondent voluntarily terminated his employment, the court found that, "the report of the Grand Jury no longer maintains legal force or effect" and ordered that the report, together with the answer submitted by the respondent, "be and the same hereby is sealed and shall not be filed as a public record or be subject to subpoena or otherwise made public from this day forward."

Less than one month later, on February 8, 1982, respondent and the City of Syracuse entered into a written contract wherein it was agreed that respondent would provide enumerated services as a consultant, payable monthly at an hourly rate of $30.00 per hour "until the maximum authorization ($30,000.00) has been paid".It further provided that "for the purpose of this contract, the consultant shall be considered an independent contractor".The agreement acknowledged that "the services hereunder have already commenced" and the respondent has submitted vouchers for payment of services rendered.

On August 20, 1982 the District Attorney of Onondaga County brought on a motion seeking an order mandating the filing of the previously sealed Grand Jury report as a public record, on the basis that respondent had been in effect rehired by the City to perform his former duties.The District Attorney contended that the fact that respondent was being held out to be an "independent contractor" did not preclude him from falling within the definition of "public servant" contained in subdivision 15 of section 10.00 of the Penal Law and that rehiring respondent as a "consultant" was only an attempt to circumvent the disciplinary sanctions recommended by the Grand Jury.Responde submitted three affidavits in opposition including one from the Budget Director for the City of Syracuse, all claiming that the services respondent was rendering as a consultant were not the same as the duties he performed as a public servant prior to his resignation.Further, respondent asserted that he was an "independent contractor" and not a "public servant" within the meaning of the Penal Law and that, accordingly, the Grand Jury report should remain sealed.

In reaffirming its prior decision ("by virtue of the resignation of the public servant from his public office, the report of the Grand Jury no longer maintains legal force or effect"), the court concluded that it was without authority to review a sealing order inasmuch as the statute vests the Appellate Division as the sole court having jurisdiction to review (seeCPL 190.90, subd. 5).The People appeal.

When a court makes an order sealing a report of a Grand Jury pursuant to subdivision 5 of section 190.85 of the Criminal Procedure Law, the district attorney may, within ten days after service of a copy of the order and report upon each public servant named in the report, appeal the order to the Appellate Division(CPL 190.90, subd. 2).Since the People did not file an appeal, County Court felt that it was without authority to review its prior order sealing the Grand Jury report.Actually there was no reason for the People to appeal.When a public servant has voluntarily resigned, a Grand Jury report no longer contains a viable recommendation of either removal or disciplinary action and is, therefore, no longer acceptable under the terms of CPL 190.85(Matter of Report of April 1979 Grand Jury of Montgomery County, 80 A.D.2d 654, 655, 436 N.Y.S.2d 414;Matter of Reports of Saratoga County Grand Jury for March 1979 Term [R-A], 77 A.D.2d 399, 404, 434 N.Y.S.2d 768;see, also, Matter of Reports of Grand Jury No. 1 of County of Monroe, 71 A.D.2d 1060, 420 N.Y.S.2d 946).It was not until the People's time to appeal had expired that respondent entered into the retainer agreement as a consultant.Thus, the People's appeal rights were rendered futile.The court was not without a remedy, however.

County Court had the inherent power to review its own order when presented with new facts.CPLR 2221 permits a motion to renew based on new or additional proof (seeSiegel, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book7B, CPLR 2221:9, p. 160;see, also, Siegel, New York Practice, § 254, pp. 313-314).Although the People's motion was not denominated a motion to renew, this is in essence what it was and the court could have so treated it (seeJones v. State of New York, 62 A.D.2d 44, 48-49, 403 N.Y.S.2d 935;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).In our view, County Court's consideration of a motion to renew would not have been in contravention of the exclusive review proviso accorded the Appellate Division pursuant to subdivision 5 of section 190.90 of the Criminal Procedure Law.Furthermore, a court has authority to reconsider its decision to accept a Grand Jury report for filing based upon new information (Matter of Second Report of November, 1968 Grand Jury of County of Erie, 26 N.Y.2d...