Report of 1985-1986 Special Grand Jury, Nassau County, N.Y., Term IX, Matter of

• Decision Date: 15 May 1989
• Citation: Report of 1985-1986 Special Grand Jury, Nassau County, N.Y., Term IX, Matter of, 541 N.Y.S.2d 842, 150 A.D.2d 580 (N.Y. App. Div. 1989)
• Parties: In the Matter of the REPORT OF THE 1985-1986 SPECIAL GRAND JURY, NASSAU COUNTY, NEW YORK, TERM IX. Massapequa Fire District, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 842

541 N.Y.S.2d 842

150 A.D.2d 580

In the Matter of the REPORT OF THE 1985-1986 SPECIAL GRAND JURY, NASSAU COUNTY, NEW YORK, TERM IX Massapequa Fire District, Appellant.

Supreme Court, Appellate Division Second Department.

May 15, 1989.

Roach & Bergman, Garden City (Kenneth J. Weinstein and Paula Schwartz Frome, of counsel), for appellant.

Denis Dillon, Dist. Atty., Mineola (Anthony J. Girese and Peter Shapiro, of counsel), for respondent.

Before MANGANO, J.P., and BROWN, EIBER and SULLIVAN, JJ.

MEMORANDUM BY THE COURT.

Appeal from an order of the County Court, Nassau County (Boklan, J.), entered May 13, 1987, which, inter alia, granted an application to accept and file a Grand Jury Report as a public record.

ORDERED that the order is modified by adding a provision striking from the Grand Jury report and answer (a) the name of a public servant, and the name and position of a Fire District employee, both of whom resigned after the report was prepared, (b) the names of Fire Department officials against whom no disciplinary action was recommended, and (c) the finding that a Fire District employee had commingled district and personal funds; as so modified, the order is affirmed, without costs or disbursements.

The Grand Jury issued a report pursuant to CPL 190.85(1)(a) which recommended the removal from office or other disciplinary action against certain commissioners of the Massapequa Fire District and a district employee in connection with the use of public funds to finance a convention trip. In order to accept the Grand Jury's report for filing as a public record, there must be a judicial determination that the factual findings in the report are supported by a preponderance of credible and legally admissible evidence (see, Matter of Report of the August-September 1983, Grand Jury, Suffolk County, 103 A.D.2d 176, 479 N.Y.S.2d 226; Matter of June 1982, Grand Jury of Supreme Ct. of Rensselaer County, 98 A.D.2d 284, 471 N.Y.S.2d 378).

The finding in the report that a district employee "violated his fiduciary duty by commingling public funds in a private account from which he paid personal and Fire District expenses" does not meet this test and should be stricken from the report. The District Attorney, in his brief, conceded that the Fire Commissioners' decision to accumulate funds advanced to them for the convention trip into a private account to be dispensed by the designated district employee was not inherently improper. The remainder of the factual findings in the report are supported by a preponderance of the evidence, and...