Proskin v. County Court of Albany County

• Decision Date: 09 September 1971
• Citation: 324 N.Y.S.2d 426,37 A.D.2d 279
• Parties: Arnold W. PROSKIN, as District Attorney of Albany County, Petitioner, v. COUNTY COURT OF ALBANY COUNTY et al., Respondents and Richard Leto et al., Intervenors-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 426

324 N.Y.S.2d 426

37 A.D.2d 279

Arnold W. PROSKIN, as District Attorney of Albany County, Petitioner, v. COUNTY COURT OF ALBANY COUNTY et al., Respondents and Richard Leto et al., Intervenors-Respondents.

Supreme Court, Appellate Division, Third Department.

Sept. 9, 1971.

Arnold W. Proskin, Dist. Atty. of Albany County, Albany, in pro. per. (Daniel G. Moriarty, of counsel).

Kohn, Bookstein & Karp, Albany (Richard A. Kohn, Albany, of counsel), in pro. per. and for respondent Leo Demeris.

Rico & Spada, Albany (Eugene R. Spada, Albany, of counsel), in pro. per. and for intervenors-respondents Leto et al.

Before HERLIHY, P.J., and REYNOLDS, GREENBLOTT, SWEENEY, and SIMONS, JJ.

PER CURIAM.

This is a proceeding under CPLR article 78 instituted in the Appellate Division of the Supreme Court in the Third Judicial Department, to prohibit respondents from taking any further proceedings in connection with orders made by the County Court (Schenck, J.), which granted motions for inspection of Grand Jury minutes.

Leo Demeris was indicted by the extended April, 1970 term of the Grand Jury of Albany County for the crimes of grand larceny in the second degree and offering a false instrument for filing in the first degree, both indictments resulting from the snow removal probe in the City of Albany following the heavy storms in the winter of 1969--1970.

Shortly after these indictments were returned against him, Demeris, through his attorneys Kohn, Bookstein & Karp, Esqs., moved for among other things, inspection of the Grand Jury minutes upon which the indictments had been found. Demeris' avowed purpose for seeking inspection of the Grand Jury minutes was to enable him to move for a dismissal of the indictments on the grounds that (1) there was not presented to the Grand Jury sufficient legal evidence to warrant the finding of the indictments; (2) impermissible and prejudicial suggestions, innuendos, misrepresentations and expressions of personal belief in the wrong doing of prospective defendants on the part of the District Attorney unduly and unfairly influenced the Grand Jury to return the indictments; (3) grossly improper contacts and communications with Grand Jurors on the part of the District Attorney were reasonably calculated to and did impair the integrity of the Grand Jury and unduly and unfairly influenced that body to return the indictments; and (4) unauthorized and defective Grand Jury proceedings were conducted in the private home of the District Attorney.

The District Attorney opposed the motion contending, Inter alia, that the allegations with respect to improper conduct on his part were totally without merit.

By order entered May 7, 1971 the County Court, Albany County (Schenck, J.) granted the motion for inspection of the Grand Jury minutes and directed the District Attorney to deliver to the attorneys for Demeris a copy of the entire transcript of the testimony taken before the Grand Jury and to make available for examination, inspection, copying or reproducing all of the exhibits offered or introduced before the Grand Jury. In its decision the court, after reading the transcript of the Grand Jury minutes In camera, stated in pertinent part:

'Any defendant charged with a crime under the Penal Law is entitled to know the basis and the theory of the charge against him. None of the indictments herein sufficiently advise the respective defendants as to the nature and basis of the various charges. Furthermore, as has been found in the case of Joseph S. Leto, Jr., it is extremely difficult for a bill of particulars to be drawn so as to provide the defendant with the information to which he is entitled in order to prepare his defense without going into considerable detail involving the Grand Jury testimony. For these and other reasons involving the interest of justice the Court is constrained to grant each defendant seeking such relief a complete examination of the Grand Jury minutes, including all exhibits that were received in evidence before the Grand Jury.

The granting of this relief is, of course, within the discretion of the court. Over the years, in the majority of cases involving motions for inspection of Grand Jury minutes, this Court has held that the cloak of secrecy covering Grand Jury proceedings should be preserved unless there would be prejudice to a defendant. There clearly would be such prejudice here because, without an inspection of the Grand Jury minutes (Demeris) * * * would not be sufficiently apprised of the nature and basis of the charge against him. * * *

The defendant Demeris has set forth four purposes for which he contends inspection of the Grand Jury minutes should be granted. It is not necessary to go into these specific items. Following examination of the Grand Jury minutes there is reserved to this * * * (defendant) the right to make appropriate motions. It is sufficient at this point to merely grant the inspection of the entire Grand Jury record.

The present motion for inspection of the Grand Jury minutes is, therefore, granted without reference to the 4 specified purposes stated in the moving papers.'

Within thirty (30) days after the service of the order determining Demeris' motion for inspection of the Grand Jury minutes upon him, the District Attorney served and filed a notice of appeal therefrom. The appeal was dismissed by this court upon motion of the defendant upon the ground that no appeal lies from an order granting an inspection of Grand Jury minutes.

Thereafter the Albany County District Attorney, by order to show cause containing an interim stay, commenced a proceeding pursuant to CPLR article 78 in the nature of prohibition seeking a judgment restraining the Albany County Court and the other parties from executing and enforcing the order granting the inspection of the Grand Jury minutes. Subsequently, upon application, the intervenors were permitted to become parties to the proceeding.

The court entertains the remedy of prohibition sparingly and only under unusual or extraordinary circumstances. Two decisions have been cited to support the contention that the said remedy is not applicable to the present proceeding, both of which together with other cited cases, we find not controlling. (Matter of Schneider v. Aulisi, 307 N.Y. 376, 121 N.E.2d 375; People ex rel. Cohn v. County Court of Schenectady County, 11 A.D.2d 438, 207 N.Y.S.2d 840).

In Matter of Schneider v. Aulisi (supra) a writ was sought to restrain a Justice of the Supreme Court from exercising jurisdiction aside from the district in which he had been elected. The writ was dismissed, the court observing that the Supreme Court is a single tribunal of general state-wide jurisdiction, rather than an aggregation of separate courts sitting in judicial districts. 'There is but one supreme court in the state, and the jurisdiction of its justices is coextensive with the state.' (People ex rel. New York Central & H.R.R.R. Co. v. Priest, 169 N.Y. 432, 435, 62 N.E. 567.) The order in Schneider denying the writ of prohibition was affirmed.

In People ex rel. Cohn v. County Court of Schenectady County (Supra, 11 A.D.2d p. 441, 207 N.Y.S.2d p. 842) the proceeding seeking an order of prohibition was dismissed. While this court discussed various aspects of prohibition tangential to the present contention, the proposition respecting an arbitrary or capricious determination of a motion properly entertained was not passed upon as the court found 'in any event, no arbitrary or illegal action on the part of the County Court'.

As noted hereinabove it does not appear that either the Cohn or the Schneider cases are controlling.

A more recent case, Lee v. County Ct. of Erie County, 27 N.Y.2d 432, 318 N.Y.S.2d 705, 267 N.E.2d 452, constitutes the latest authority by the Court of Appeals on the subject of prohibition. At pages 436--437, 318 N.Y.S.2d at page 708, 267 N.E.2d at page 454, the court stated: 'Although the use of the writ of prohibition has usually been limited to cases where a court acts without jurisdiction (see, e.g. Matter of Hogan v. Culkin, 18 N.Y.2d 330, 335--336, 274 N.Y.S.2d 881, 885--886, 221 N.E.2d 546, 549--550; People ex rel. Lemon v. Supreme Ct., 245 N.Y. 24, 156 N.E. 84; People ex rel. Safford v. Surrogate's Ct., 229 N.Y. 495, 128 N.E. 890), it is equally true that 'function of the writ * * * (is) not merely to restrain an unwarranted assumption of jurisdiction, but also to restrain an inferior court from exceeding its authorized powers in a proceeding over which it has jurisdiction' (Matter of Hogan v. Court of Gen. Sessions, 296 N.Y. 1, 8, 68 N.E.2d 849, 852; see, also, People ex rel. Jerome v. Court of Gen. Sessions, 185 N.Y. 504, 78 N.E. 149; Appo v. People, 20 N.Y. 531; CPLR 7802, subd. (a).)' In People ex rel. Lemon v. Supreme Court (supra), while factually different, the result to be obtained is the same. The late Chief Judge Cardozo at page 35 of 245 N.Y., at page 87 of 156 N.E. stated: 'We think a proper case is made for an order of prohibition. The order for an inspection of the documents is not the subject of appeal Code Crim.Proc., § 518. The People are without a remedy unless its enforcement can be checked.' (See also Matter of Hogan v. Court of General Sessions, Supra, 296 N.Y. p. 8, 68 N.E.2d p. 852; Matter of Kraemer v. County Court, 6 N.Y.2d 363, 189 N.Y.S.2d 878, 160 N.E.2d 633.)

The jurisdiction of the County Court was properly invoked, but the question remains as to whether the court exceeded its authorized powers after obtaining jurisdiction. (Cf. Lee v. County Ct. of Erie County, Supra; People ex rel. Lemon v. Supreme Court, Supra.)

From the record we conclude that a denial of the inspection of the Grand Jury minutes would have resulted in no prejudice to Demeris and the intervenors and there is no showing upon the present record that a failure of justice would result from such denial. We find that the court, upon the moving papers, improvidently...