Saratoga County Grand Jury Reports for March, 1979 Term, Matter of, R-

• Decision Date: 11 December 1980
• Docket Number: R,R-
• Citation: 77 A.D.2d 399,434 N.Y.S.2d 768
• Parties: In the Matter of the SARATOGA COUNTY GRAND JURY REPORTS FOR THE MARCH, 1979 TERM. DISTRICT ATTORNEY OF SARATOGA COUNTY, Appellant, v. PUBLIC SERVANT NAMED IN REPORTespondent. In the Matter of the SARATOGA COUNTY GRAND JURY REPORTS FOR THE MARCH, 1979 TERM. DISTRICT ATTORNEY OF SARATOGA COUNTY, Appellant, v. PUBLIC SERVANT NAMED IN REPORTespondent.
• Court: New York Supreme Court — Appellate Division

Page 768

434 N.Y.S.2d 768

77 A.D.2d 399

In the Matter of the SARATOGA COUNTY GRAND JURY REPORTS FOR

THE MARCH, 1979 TERM.

DISTRICT ATTORNEY OF SARATOGA COUNTY, Appellant, v. PUBLIC SERVANT NAMED IN REPORT R-A, Respondent.

In the Matter of the SARATOGA COUNTY GRAND JURY REPORTS FOR

THE MARCH, 1979 TERM.

DISTRICT ATTORNEY OF SARATOGA COUNTY, Appellant, v. PUBLIC SERVANT NAMED IN REPORT R-B, Respondent.

Supreme Court, Appellate Division, Third Department.

Dec. 11, 1980.

David A. Wait, Dist. Atty., Balston Spa, for appellant

Joseph A. Martino, Clifton Park, for Public Servant Named in Report R-A, respondent.

Paul E. Cheeseman, Albany, for Public Servant Named in Report R-B, respondent.

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

OPINION FOR AFFIRMANCE

PER CURIAM.

In March of 1979, the Grand Jury of Saratoga County commenced an investigation into a suspected bribe-taking scheme allegedly in operation in one of its towns. At the conclusion of this inquiry, it issued Report R-A and Report R-B and presented them to the Supreme Court for filing and acceptance as a public record pursuant to subdivision 2 of CPL 190.85. The Supreme Court disagreed with the findings of the Grand Jury and by its order and decision, entered September 28, 1979, refused to accept the reports and ordered that they be forever sealed. The District Attorney of Saratoga County has appealed. Though similar, the reports require separate treatment and the officials concerned will be referred to by the capital letter which identifies the respective Report so as not to reveal the identity of the individuals involved.

Report R-A

This report charged that Mr. A had refused to provide the Grand Jury with a valid and effective waiver and prevented it from obtaining any meaningful or useful accounting by him of his performance as a public officer as it concerned the subject matter of the investigation and found that this "conduct constituted misconduct, non-feasance and neglect in his public office". The report recommended that Mr. A be removed from office or that other disciplinary action be taken. The Grand Jury minutes of June 19, 1979 indicate that Mr. A had signed a waiver of immunity prior to his appearance that day. They also indicate that after inquiry as to his name and address he was asked to identify the waiver he had executed and acknowledged before an assistant District Attorney, which he did. He was then asked if he swore "to the contents of that waiver of immunity before this Grand Jury" (CPL 190.45, subd. 2). Thereupon, Mr. A embarked on a rather lengthy dissertation in which he made reference to several prior conferences with the District Attorney, coercion of public officials and their constitutional rights as well as to his desire to testify and to cooperate. Extended questioning by the District Attorney brought, for the most part, unresponsive or evasive answers. However, though Mr. A had originally indicated that he would not waive any constitutional rights, subsequently, as the District Attorney pressed on, he did swear to the waiver, while attempting to invoke inconsequential limitations. Further pursuance of the issue was interrupted by the foreman of the Grand Jury who requested that they take a "coffee break" during which he could confer with the District Attorney and after which they would resume. However, the proceeding was terminated, and Mr. A was never questioned regarding the manner in which he conducted the affairs of his office or any related matter, the Grand Jury having apparently concluded that Mr. A had refused to validly and effectively waive immunity. Thereafter the Grand Jury rendered its Report R-A. The Supreme Court agreed that Mr. A had not effectively waived immunity but found the procedure impermissible largely upon the authority of Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082, wherein the United States Supreme Court held that "the mandate of the great privilege against self-incrimination does not tolerate the attempt, regardless of its ultimate effectiveness, to coerce a waiver of the immunity it confers on penalty of loss of employment" id., at 279, 88 S.Ct. at 1916. Since there was ample evidence in the record to support its finding that Mr. A had justification to believe that he would be removed from office if he did not properly waive immunity, we agree with the Supreme Court on that issue.

However, we are not ready to conclude, under the unusual and peculiar circumstances presented here, that Mr. A failed to effectively waive his immunity. True it is that initially Mr. A indicated that he would waive no constitutional rights. Nevertheless, as the District Attorney labored on with his questioning of Mr. A, he received the following responses: "I swear to this paper (waiver) within the perspective of what it says here and I hope that you would explain that to the Grand Jury"; "I waive them (constitutional rights) within the limitation of the waiver". Moreover when asked whether he swore to the fact that he would not be entitled to any immunity or privilege on account of his testimony, he replied "as it is stated and limited to that paper (waiver), yes".

Subdivision 2 of CPL 190.45 provides that: "(a) waiver of immunity is not effective unless and until it is sworn to before the grand jury conducting the proceeding in which the subscriber is...