People v. DiNapoli
| Decision Date | 07 July 1970 |
| Citation | 312 N.Y.S.2d 547,35 A.D.2d 28 |
| Parties | The PEOPLE of the State of New York, Plaintiff-Respondent, v. Vincent Peter DiNAPOLI et al., Defendants-Appellants. In re NEW YORK STATE PUBLIC SERVICE COMMISSION, Petitioner-Respondent, Hon.Frank S. Hogan, District Attorney, etc., Respondent, Vincent Peter DiNapoli, etal., Respondents-Appellants. |
| Court | New York Supreme Court — Appellate Division |
Robert M. Callagy, New York City, of counsel (Satterlee, Warfield & Stephens, and Paul, Weiss, Goldberg, Rifkind, Wharton & Garrison, New York City, attorneys) for appellants.
Robert A. Jablon, Albany, of counsel, (Arthur D. Rheingold, Albany, with him on the brief; Kent H. Brown, Albany, attorney) for respondent Public Service Commission.
J. Lee Rankin, New York City (John R. Thompson, Francis I. Howley, New York City, and Martin S. Snitow, Flushing, with him on the brief) for the City of New York as amicus curiae.
Before CAPOZZOLI, J.P., and McGIVERN, MARKEWICH, NUNEZ and McNALLY, JJ.
This appeal is from an order directing the delivery to the New York State Public Service Commission of a transcript of the minutes of the Grand Jury of the County of New York which found the indictment herein. Respondents-appellants also appeal from an order denying their motion to vacate the aforesaid order.
In August 1968, defendants-appellants were indicted for violation of Sections 340 and 341 of the General Business Law by the submission of rigged bids to Consolidated Edison Company of New York, Inc. for construction work. Each of said defendants pleaded guilty and fines were imposed. As a result of the indictment herein, petitioner-respondent, New York Public Service Commission, instituted a proceeding relative to costs incurred by Consolidated Edison Company pursuant to contracts with the individuals and corporations involved in the rigged bids. Petitioner-respondent seeks to ascertain whether the excess charges resulting from the rigged bids shall be borne by the rate payers of the City or the shareholders of Consolidated Edison. The affidavit in support of the request for the Grand Jury minutes alleges a former Vice President of Consolidated Edison testified before the Grand Jury and there was other testimony before it relative to knowledge and participation in the conspiracy underlying the indictment by officers, employees and agents of Consolidated Edison. The District Attorney, New York County, did not oppose the application of the petitioner-respondent.
The respondents-appellants, who had no notice of the application of the petitioner-respondent, moved to vacate the order directing delivery of the Grand Jury minutes. Respondents-appellants' motion to vacate alleges that (1) the use of the Grand Jury testimony is beyond the scope of the investigation of the petitioner-respondent, (2) that the order is without precedent because the petitioner is not an official body charged with the duty for criminal investigation, and (3) the effect of the order will be to make available the Grand Jury testimony to the Consolidated Edison Company which is prosecuting actions against the respondents-appellants to recover treble damages for alleged violations of the Sherman Act and the Donnelly Act.
The order denying vacatur directs petitioner-respondent not to make public disclosure of the information contained in the Grand Jury minutes during the pendency of litigation. Thereby is mitigated the alleged detriment to the respondents-appellants relative to the pending suits.
The order directing delivery of the Grand Jury minutes is grounded on Section 952--t of the Code of Criminal Procedure which in its pertinent portion provides with respect to the stenographer attending the Grand Jury that:
'* * * it shall be his duty to take in shorthand or upon a typewriting machine the testimony introduced before such grand juries, * * * to furnish to the district attorney of such county a full copy of such testimony as such district attorney shall require, but he shall not permit any other person to take a copy of the same, * * * except upon the written order of the court duly made after hearing the said district attorney * * *'.
In People v. Sweeney, 213 N.Y. 37, 42, 106 N.E. 913, 915, the court held the refusal to grant a copy of the Grand Jury minutes grounded on the exercise of discretion is not reviewable by the Court of Appeals. The touchstone of judicial discretion to grant or deny Grand Jury minutes is the preservation of the historic secrecy surrounding Grand Jury proceedings to the end that the Grand Jurors and witnesses appearing before them shall not be molested or inhibited in investigations which serve to protect the innocent and accuse the guilty. However, in People ex rel. Hirschberg v. Board of Supervisors of Orange County, 251 N.Y. 156, 167 N.E. 204, the court, at page 170, 167 N.E. at page 210 quoting State v. Campbell, 73 Kan. 688, 85 P. 784, said:
'The tendency of modern authorities has been to hold that, when the reasons for secrecy no longer exist, the ancient rules with reference thereto do not apply, and, in all cases where justice or the rights of the public require it, the facts should be disclosed.'
There is dicta to the effect that an inspection of Grand Jury minutes will not be granted in aid of a non-criminal investigation. In People v. Ewald, 144 Misc. 657, 259 N.Y.S. 314, decided in 1932, the court, at page 660, 259 N.Y.S. at page 317, said:
'It is believed no reported decision has gone the length of permitting over objection an inspection of the minutes of the grand jury in a non-criminal investigation directed at the activities of some one other than the district attorney in charge of the grand jury.'
Ewald involved a disciplinary proceeding against the chief clerk of the City Court of the City of New York for failure to explain large deposits in excess of his salary during the years 1927--1931. Since Ewald, inspection of Grand Jury minutes has been allowed in aid of a removal proceeding against a town receiver of taxes (Matter of Quinn, 293 N.Y. 787, 58 N.E.2d 730, aff'g 267 A.D. 913, 47 N.Y.S.2d 66); in aid of the purpose to correct police conditions (In re People ex rel. Sawpit Gymnasium, Sup., 60 N.Y.S.2d 593); to further the prosecution of departmental charges against police personnel (Matter of City of New Rochelle, 35 Misc.2d 254, 229 N.Y.S.2d 350; Matter of Scro, 200 Misc. 688, 108 N.Y.S.2d 305).
Apropos is the principle stated in Matter of Attorney-General of United States, 160 Misc. 533, at page 537, 291 N.Y.S. 5, at page 10:
'Reasons which might well preclude an examination of such minutes by private individuals may well be abortive when raised against an inspection by public officials to enable them more efficiently to discharge the obligations of their office.'
Thereby the court emphasized the test articulated in Hirschberg v. Board of Supervisors, Supra:
'* * * in all cases where justice or the rights of the public require it, the facts should be disclosed.'
The instant criminal proceeding has been concluded. The defendants have been convicted on their pleas of guilt and fines have been imposed. Implicit in the absence of objection on the part of the District Attorney is the lack of detriment in respect of any prospective criminal proceeding.
In Matter of Quinn, Supra, respondents, residents of the Town of Mt. Pleasant, brought a proceeding in the Appellate Division to compel the removal of the receiver of taxes. In aid of said proceeding, the respondents applied to the County Court for an order permitting the inspection of the Grand Jury minutes containing the testimony of the receiver of taxes. The Grand Jury had reported that the said official, while not chargeable with any criminal act, had been negligent. The County Court held it was without jurisdiction to grant the application. The Appellate Division reversed, holding that the court had jurisdiction and that its discretion should have been exercised in favor of the respondents. The Court of Appeals affirmed, without opinion. Matter of Quinn, therefore, sustains jurisdiction to entertain an application for inspection of Grand Jury minutes in aid of proceedings other than criminal to protect the rights of the public. To the same effect are People ex rel. Sawpit Gymnasium, Supra, granting an application to inspect the minutes of the Grand Jury, which handed down a presentment, in aid of proceedings on the part of the village to correct police conditions; Matter of City of New Rochelle, Supra, granting the application of the corporation counsel of the City of New Rochelle for the Grand Jury minutes of the investigation of a detective on the City force, which did not result in an indictment, in aid of the prosecution of departmental charges; Matter of Scro, Supra, denying a motion to vacate an order releasing Grand Jury testimony of a bookmaker to the Police Commissioner in aid of pending disciplinary proceedings.
The petitioner-respondent is a public agency charged with supervision of all gas and electric corporations and the regulation of rates. It has authority to investigate and towards that end to confer immunity with respect to criminal conduct (Sections 20 and 66, Public Service Law). Involved is the application for Grand Jury minutes by a public authority for a public purpose.
The cases cited by respondents-appellants, wherein inspection of Grand Jury minutes was denied, represent the exercise of non-reviewable discretion on the facts therein (People v. Sweeney, Supra) and do not preclude the grant of an inspection grounded on the facts here presented.
The orders should be affirmed.
Orders entered on May 12, 1970 and May 19, 1970, affirmed, without costs and without disbursements.
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