Report of April, 1979 Grand Jury of Montgomery County, Matter of

• Decision Date: 05 February 1981
• Docket Number: ABOVE-ENTITLED
• Citation: Report of April, 1979 Grand Jury of Montgomery County, Matter of, 436 N.Y.S.2d 414, 80 A.D.2d 654 (N.Y. App. Div. 1981)
• Parties: In the Matter of the REPORT OF the APRIL, 1979 GRAND JURY OF MONTGOMERY COUNTY. Howard M. AISON, as District Attorney of Montgomery County, Appellant, v. A PUBLIC OFFICIAL NAMED IN theREPORT, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 414

436 N.Y.S.2d 414

80 A.D.2d 654

In the Matter of the REPORT OF the APRIL, 1979 GRAND JURY OF MONTGOMERY COUNTY Howard M. AISON, as District Attorney of Montgomery County, Appellant, v. A PUBLIC OFFICIAL NAMED IN the ABOVE-ENTITLED REPORT, Respondent.

Supreme Court, Appellate Division, Third Department.

Feb. 5, 1981.

Howard M. Aison, Montgomery County Dist. Atty., Amsterdam (Mary Lynn Baum, Amsterdam, of counsel), for appellant.

Norberta F. Krupczak and Paul L. Wollman, Amsterdam, for respondent Public Official.

Before MAHONEY, P. J., and SWEENEY, MAIN, CASEY and KANE, JJ.

MEMORANDUM DECISION.

Appeal from an order of the Supreme Court, entered May 27, 1980 in Montgomery County, which forever sealed a report of the April, 1979 Grand Jury of Montgomery County unless all references to one of the three public servants named therein were deleted.

The April, 1979 Grand Jury of Montgomery County commenced an investigation into suspected illegal gambling activities allegedly taking place within the County. On December 7, 1979, it submitted to the Supreme Court of Montgomery County a report in which it recommended the removal of three public servants from office by reason of their misconduct, nonfeasance or neglect in public office. Prior to any determination by the court in accordance with subdivision 2 of CPL 190.85 and effective December 31, 1979, one of the aforementioned public servants resigned. Official notice of this occurrence was given to the Grand Jury on January 9, 1980 but it opted to make no deletions or changes of any kind in its report. Thereafter, upon the request of the court, the Grand Jury was reconvened on January 30, 1980 for the purpose of enabling the District Attorney to inform the Grand Jury that, pursuant to CPL 190.85, all references to the public servant who resigned should be deleted from its report. Despite this admonition, the Grand Jury declined to delete or redact the references to the official who resigned, choosing instead to seek a formal ruling from the court as to whether the deletions should be made. This it obtained when the court ruled that it would not accept the report unless all references to the public servant who resigned were expunged and that, if this were not done, the report would be forever sealed. This appeal by the District Attorney on behalf of the Grand Jury followed.

Even though it was made aware that one of those named in its report had resigned, the Grand Jury now contends that its report should be accepted and filed without change. We have recently had occasion to address this issue and held that where a public servant has voluntarily resigned "the report no longer contains a viable recommendation of either removal or disciplinary action and is * * * no longer acceptable under the terms of section 190.85 of the Criminal Procedure Law" (Matter of Saratoga County Grand Jury Reports for the March 1979 Term, App.Div., 434 N.Y.S.2d 768 (Dec. 11, 1980); 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). The Grand Jury's contention overlooks or disregards paragraph (a) of subdivision 1 of CPL 190.85 which limits the Grand Jury to reporting facts concerning misconduct, nonfeasance or neglect in public office as a basis for a recommendation of removal or disciplinary action. "Inasmuch as the charges * * * do not pertain to persons presently employed by the department * * * the report must be sealed" (Matter of Reports of Grand Jury No. 1 of County of Monroe, supra).

The Grand Jury further contends through the District Attorney that references to the public servant who resigned should not be deleted it there is proof that his possible removal from office after resignation might render him ineligible to hold another position in the public sector or might terminate previously earned benefits through public service for the reason that the latter consequences could satisfy the requirements of CPL 190.85 (subd. 1, par. (a)), and the District Attorney requests permission to submit further evidence on that issue. We choose not to join in such speculation. To begin with, no such evidence was adduced during the Grand Jury proceedings. Secondly, though all concerned were aware of the issue well in advance of the court's conditional...