People v. Russo

• Decision Date: 28 June 1985
• Parties: The PEOPLE of the State of New York v. Frank RUSSO and Stony Brook Systems, Inc., Defendants.
• Court: New York County Court

Page 951

491 N.Y.S.2d 951

128 Misc.2d 876

The PEOPLE of the State of New York v. Frank RUSSO and Stony Brook Systems, Inc., Defendants.

Suffolk County Court, Trial Term Part I.

June 28, 1985.

Edward J. Kuriansky, Deputy Atty. Gen., Terrence P. Buckley, State's Asst. Atty. Gen., Hauppauge, for the People.

Richard A. Miller, Clayton, Miller & Mayer, Hauppauge, for defendants.

JOHN COPERTINO, Judge.

"The recent past has witnessed an increasing amount of both litigation and counseling in which evidentiary and procedural considerations related to the computer have played a central role; the future promises much more of the same." (Bender, Computer Law: Evidence & Procedure, p. xv.) It is in this context that this court must now resolve defendants' motion to dismiss the indictment.

I. FACTS

On January 18, 1985, defendants, Frank Russo and Stony Brook Systems, Inc., were indicted for the crime of Unlawful Use of Secret Scientific Material under § 165.07 of the Penal Law. This section provides that:

A person is guilty of unlawful use of secret scientific material when, with intent to appropriate to himself or another the use of secret scientific material, and having no right to do so and no reasonable ground to believe that he has such right, he makes a tangible reproduction or representation of such secret scientific material by means of writing, photographing, drawing, mechanically or electronically reproducing or recording such secret scientific material.

Defendants were not previously charged by felony complaint.

Prior to the filing of this indictment by the Grand Jury, defendants requested and the Special Prosecutor granted the defendants and any witnesses they might choose to call, an opportunity to appear and testify before the Grand Jury. (Motion to dismiss, Exhibits B & C.) Defendants also requested that the Special Prosecutor supply them with, among other things, "a description of the computer system allegedly stolen with as great a degree of specificity as you can give us" and information "as to when the theft took place and the names of any other individuals whom you believe are accomplices or co-conspirators." (Motion to dismiss, Exhibit B, p. 2.) Initially, the Special Prosecutor refused to divulge any of this information. (Motion to dismiss, Exhibit C.)

Defendants then moved in County Court, by Order to Show Cause dated November 29, 1984, for an Order directing the Special Prosecutor to release to defendants "a descriptive statement ... as to exactly what computer software items were allegedly stolen from Stony Brook University Hospital." (Motion to dismiss, Exhibit D, p. 6 of affidavit.) On December 13, 1984, an oral decision was rendered by a Judge of this court (Hon. Stuart Namm, J.C.C.) directing the Special Prosecutor to make available to defendants' attorneys a memorandum defining the present scope of the Grand Jury investigation. On February 28, 1985, Judge Namm issued a formal written decision to the same effect. The Special Prosecutor responded to the court's decision by letter dated December 14, 1984 in which defendants were informed by the Special Prosecutor that "during the period of approximately June, 1981 through August, 1981, Frank Russo and Stony Brook Systems, Inc. were involved in the taking of computer code from the University Hospital at Stony Brook." (Motion to dismiss, Exhibit G, p. 1.)

On January 7, 1985, the corporate defendant's attorney orally requested the court to direct the Special Prosecutor to "reveal more information concerning the computer issue than was contained in the letter of December 14, 1984." (Affirmation in opposition, p. 3.) Judge Namm denied this application and stated that the Special Prosecutor's letter of December 14, 1984 complied with his decision. By letter dated February 1, 1985, defendant's attorney then notified the Special Prosecutor that Frank Russo was withdrawing his request to testify before the Grand Jury regarding the "software issue" and that he would not be asking the Grand Jury "to hear any other witnesses on that issue." (Motion to dismiss, Exhibit H.) Defendant's attorney also stated his reasons for taking this action:

Our ability to present a defense on the "software" issue in the Grand Jury was precluded by the refusal of your office to inform us as to the nature and scope of the investigation and in particular as to the specific computer code allegedly stolen or misused.

(Motion to dismiss, Exhibit H.)

Defendants were subsequently indicted.

II. ISSUES

Defendants now seek to dismiss this indictment on the grounds that they were denied their opportunity to testify and present witnesses before the Grand Jury in accordance with C.P.L. § 190.50. They contend that they were denied this opportunity because of the refusal of the Special Prosecutor to specifically identify the computer "software" which was allegedly stolen from Stony Brook University Hospital. Defendants argue that they were entitled to this "pre-indictment discovery" because the same information is available to a defendant charged with a felony complaint prior to indictment and because of the complex nature of the submission to the Grand Jury.

III. CONCLUSIONS

A. Pre-Indictment Discovery

Historically, a grand jury has broad powers of investigation and inquisition. Branzburg v. Hayes, 408 U.S. 665, 688, 92 S.Ct. 2646, 2660, 33 L.Ed.2d 626, 643. Such powers are available to the grand jury for the purpose of determining if a crime has been committed and if so, by whom. Branzburg v. Hayes, supra, 408 U.S. 665, 701, 92 S.Ct. 2646, 2667, 33 L.Ed.2d 626, 651; People v. Calbud, 49 N.Y.2d 389, 394, 426 N.Y.S.2d 238, 402 N.E.2d 1140; People v. Filis, 87 Misc.2d 1067, 1068, 386 N.Y.S.2d 988. A grand jury may not return an indictment unless it has legally sufficient evidence of defendants' guilt. People v. Torres, 63 A.D.2d 1033, 406 N.Y.S.2d 500 aff'd., 53 N.Y.2d 213, 440 N.Y.S.2d 889, 423 N.E.2d 366, cert. den. 454 U.S. 967, 102 S.Ct. 510, 70 L.Ed.2d 383; Jan. 1979 Grand Jury v. Doe, 50 N.Y.2d 14, 19, 427 N.Y.S.2d 950, 405 N.E.2d 194. The information required to be contained in a felony complaint need only establish that there is probable cause to believe a suspect has committed a crime. People v. Torres, supra.

During the course of its investigation, the nature of the charges and the identity of the grand jury's "target" may vary greatly. Matter Report of Grand Jury, 77 A.D.2d 199, 201, 433 N.Y.S.2d 300; People v. Webb, 105 Misc.2d 660, 432 N.Y.S.2d 826. As the court noted in People v. Webb, "the items initially requested by a demand [for discovery] on a felony complaint may no longer be relevant after indictment...." People v. Webb, supra, 661, 432 N.Y.S.2d 826. For this court to adopt a "per se" rule that defendants should be entitled to the same pre-indictment information as a defendant who has been charged with a felony complaint would not only impede the investigatory process of the Grand Jury, but also unreasonably interfere with its ability to make legitimate inquiry into potential criminal activity. Virag v. Hynes, 54 N.Y.2d 437, 443, 444, 446 N.Y.S.2d 196, 430 N.E.2d 1249; Jan. 1979 Grand Jury v. Doe, supra, 50 N.Y.2d 20, 427 N.Y.S.2d 950, 405 N.E.2d 194; cf. Matter Report of Grand Jury, supra, 77 A.D.2d 201, 433 N.Y.S.2d 300; Matter of Rodriguez v. Morgenthau, 121 Misc.2d 694, 468 N.Y.S.2d 833.

Assuming, arguendo, that defendants were permitted to have information usually contained in a felony complaint, it is doubtful a felony complaint would have revealed the specific description of the computer software sought by the defendants. People v. Natoli, 112 Misc.2d 1069, 448 N.Y.S.2d 124. Furthermore, there is no provision for discovery under Article 240 of the Criminal Procedure Law upon a felony complaint. Subdivision 1 of § 240.20 of the Criminal Procedure Law; Callaghan, Criminal Procedure in New York, Part I, Chap. 23, page 1.

It is defendants' second contention that presents a more troublesome and perplexing question. In a complicated case such as this, did the failure of the court to direct the Special Prosecutor to provide defendants with a specific description of the allegedly stolen property deprive defendants of an opportunity to give meaningful and relevant testimony before the Grand Jury?

Courts have a responsibility to prevent unfairness in grand jury submissions. This duty is based on the principle that the Grand Jury is an "arm of the court." People v. Ianniello, 21 N.Y.2d 418, 424, 288 N.Y.S.2d 462, 235 N.E.2d 439, cert. den. 393 U.S. 827, 89 S.Ct. 90, 21 L.Ed.2d 98 citing Matter of Spector v. Allen, 281 N.Y. 251, 260, 22 N.E.2d 360; People v. Monroe, 125 Misc.2d 550, 480 N.Y.S.2d 259; Matter of Rodriguez v. Morgenthau, 121 Misc.2d 694, 468 N.Y.S.2d 833. It is also incumbent on the District Attorney, as a public officer, to act fairly in presenting a case to the Grand Jury. People v. Martinez, 111 Misc.2d 67, 68, 443 N.Y.S.2d 576; People v. Lofton, 81 Misc.2d 572, 575, 366 N.Y.S.2d 769, affirmed 58 A.D.2d 610, 395 N.Y.S.2d 226; People v. Lazar, 51 Misc.2d 233, 237, 238, 272 N.Y.S.2d 898. There are numerous examples where the courts have acted in accordance with these principles to prevent abuse of the Grand Jury proceedings or "overreaching" by the District Attorney. People v. Pelchat, 62 N.Y.2d 97, 476 N.Y.S.2d 79, 464 N.E.2d 447; People v. Durante, 97 A.D.2d 851, 469 N.Y.S.2d 18; People v. Green, 80 A.D.2d 650, 436 N.Y.S.2d 420; People v. Hunter, 126 Misc.2d 13, 480 N.Y.S.2d 1006; People v. Davis, 119 Misc.2d 1013, 1016, 465 N.Y.S.2d 404; People v. Montalvo, 113 Misc.2d 471, 449 N.Y.S.2d 377, 378; People v. Martinez, 111 Misc.2d 67, 443 N.Y.S.2d 576; People v. Suarez, 103 Misc.2d 910, 427 N.Y.S.2d 187; People v. Dunbar, 100 Misc.2d 389, 390-391, 419 N.Y.S.2d 432; People v. Luna, 486 N.Y.S.2d 839, N.Y.L.J. 3/11/85, p. 15, Sup.Ct. Queens Co.; Morvillo, Grand Jury Issues, N.Y.L.J., April 13, 1984, at p. 1, column 1.

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