Reports of Grand Jury No. 1 of Monroe County Empaneled on Jan. 30, 1978 for the Feb., 1978 Term of County Court, Matter of

• Decision Date: 30 January 1978
• Citation: Reports of Grand Jury No. 1 of Monroe County Empaneled on Jan. 30, 1978 for the Feb., 1978 Term of County Court, Matter of, 420 N.Y.S.2d 946, 71 A.D.2d 1060 (N.Y. App. Div. 1978)
• Parties: In the Matter of the REPORTS OF GRAND JURY NO. 1 OF THE COUNTY OF MONROE EMPANELED ON
• Court: New York Supreme Court — Appellate Division

Page 946

420 N.Y.S.2d 946

71 A.D.2d 1060

In the Matter of the REPORTS OF GRAND JURY NO. 1 OF THECOUNTY OF MONROE EMPANELED ON JANUARY 30, 1978 FOR THE FEBRUARY, 1978 TERM OF THE COUNTY COURT.

Supreme Court, Appellate Division, Fourth Department.

Sept. 28, 1979.

Lawrence T. Kurlander, Dist. Atty., Rochester by Melvin Bressler, Rochester, for appellant.

Theodore N. Pucher, Rochester, for Subject C.

John M. Owens, Rochester, for Subject A.

Christopher J. Enos, Rochester, for Subject D.

Before SIMONS, J. P., and HANCOCK, CALLAHAN, DOERR, and MOULE, JJ.

MEMORANDUM:

This is an appeal pursuant to CPL 190.90 from an Order of the Monroe County Court, entered August 31, 1979, which accepted and sealed two reports of the February, 1978Monroe County Grand Jury.The February, 1978Monroe County Grand Jury investigated, inter alia, allegations concerning improprieties in the issuance of licenses to carry firearms as well as allegations of misconduct in the Monroe County Sheriff's Department.The Grand Jury heard testimony in the two matters, captioned "John DoeNo. 3"and"John DoeNo. 7" and after concluding its investigation issued two separate reports pursuant to CPL 190.85, subd. 1, par. (a) in which it recommended that disciplinary action be taken against six named individuals.Pursuant to CPL 190.85, subd. 2, par. (a), the Monroe County Court examined the minutes of the Grand Jury and determined that both reports should remain sealed and not be published as a public record since the Grand Jury's findings of wrongdoing were not supported by a preponderance of the credible and legally admissible evidence.

The record of the Grand Jury in "John DoeNo. 7" discloses evidence of serious misconduct in the Monroe County Sheriff's Department.Nevertheless, the statute permits publication only of Grand Jury reports which recommend disciplinary action against public servants guilty of misconduct, non-feasance or neglect in public office and which reports are supported by the preponderance of the "credible and legally admissible evidence."(CPL 190.85, subd. 2, par. (a);Matter of Talerico, 34 A.D.2d 553, 309 N.Y.S.2d 511.)Our review of the Grand Jury minutes concerning "John DoeNo. 7" compels the conclusion that some of the abuses alleged relate to former public servants and some involve errors in judgment.Inasmuch as the charges either do not pertain to persons presently employed by the department or are not supported by the evidence required by statute,...