Scotti, Application of
| Decision Date | 12 July 1976 |
| Docket Number | AFL-CIO |
| Citation | 385 N.Y.S.2d 659,53 A.D.2d 282 |
| Parties | Application of Alfred J. SCOTTI, Special Deputy Attorney General, for an Order authorizing the transmission of the minutes of certain Grand Jury testimony to the Superintendent of State Police for use in departmental disciplinary hearings (two cases). Application of Clayton DeFAYETTE, Individually and as President of Security and Law Enforcement Employees' Council 82, American Federation of State, County and Municipal Employees,, et al., Petitioners, v. Hon. Carman F. BALL, as Justice of the Supreme Court of the State of New York and Alfred J. Scotti, a Special Deputy Attorney General of the State of New York, Respondents. Application of the POLICE BENEVOLENT ASSOCIATION OF the NEW YORK STATE POLICE, INC., et al., Petitioners, v. Hon. Carman F. BALL, Justice of the Supreme Court of the State of New York and Alfred J. Scotti, Special Deputy Attorney General of the State of New York, Respondents. |
| Court | New York Supreme Court — Appellate Division |
Hinman, Straub, Pigors & Manning, Albany, F. Steven Berg, Buffalo, for appellant 'John Doe' in Nos. 488 and 488--A and for petitioners in No. 490; Bernard Malone, Buffalo, for petitioners in No. 490 (Berg & Cornell, Buffalo, of counsel).
Alfred J. Scotti, pro se; Lewis Friedman, New York City, for Scotti in Nos. 488, 488--A, 489 and 490.
Mark K. Benenson, F. Steven Berg, New York City, for petitioner in No. 489 (Berg & Cornell, Buffalo, of counsel).
Louis J. Lefkowitz, Atty. Gen., Albany, Michael Wolfgang, Buffalo, for respondent Ball in Nos. 489 and 490.
Before CARDAMONE, J.P., and MAHONEY, GOLDMAN and WITMER, JJ.
The appeals and Article 78 proceedings herein grow out of two applications made by respondent Alfred J. Scotti, Special Deputy Attorney General, to the Hon. Carman F. Ball, Justice of the Supreme Court, who has been duly designated to supervise the Grand Jury investigations and the prosecutions which followed the Attica prison uprising of September, 1971. After successfully moving for the dismissal of most of the outstanding indictments returned by the two Grand Juries which have investigated the Attica revolt and its subjugation, and after successfully moving for the discharge of said two Grand Juries, respondent Scotti on April 15, 1976 made two Ex parte applications for release of specified Grand Jury minutes of testimony relating respectively to the conduct of certain officers of the New York State Police and certain employees of the New York State Department of Correctional Services, to the Superintendent of the New York State Police and to the New York State Commissioner of the Department of Correctional Services for consideration of disciplinary action. On May 5, 1976 Mr. Justice Ball granted an order on each such application, each order containing the limitation that the minutes released thereunder shall be used 'solely for the purposes of departmental disciplinary action and for no other purpose.'
On learning informally that these orders had been granted under seal and without entry, petitioners, representing respectively the members of the New York State Police and the New York State employees of the Department of Correctional Services, and acting without firsthand knowledge of the orders, filed notice of appeal which we recognize as a sufficient notice of appeal from each of the two orders of May 5, 1976, and they also duly initiated two Article 78 proceedings to prohibit the Hon. Carman F. Ball, Justice of the Supreme Court and Alfred J. Scotti, Special Deputy Attorney General, respondents, from proceeding under the orders of May 5, 1976, and for a review and annulment thereof.
We shall first consider the two appeals. Admittedly, the orders were made Ex parte. No appeal lies from an Ex parte order (James v. Powell, 30 A.D.2d 340, 341, 292 N.Y.S.2d 135, 136 (First Dept.), affd., 23 N.Y.2d 691, 296 N.Y.S.2d 139, 243 N.E.2d 746; Matter of Bean v. Stoddard, 207 App.Div. 276, 281, 201 N.Y.S. 827, 831 (Fourth Dept.), affd., 238 N.Y. 618, 144 N.E. 916; Matter of State of New York v. Fuller, 31 A.D.2d 71, 73, 296 N.Y.S.2d 37, 40 (Second Dept.); Haner v. Van Buren, 240 App.Div. 800, 266 N.Y.S. 513 (Third Dept); 10 Carmody-Wait 2d, § 70:27; CPLR 5701(a)(2); cf. CPLR 5704(a)). The proper procedure for a person aggrieved by an Ex parte order is to move to vacate it, and if the motion be denied, to appeal from the order of denial (Kogan v. Fair Waist & Dress Co., Inc., 233 App.Div. 735, 250 N.Y.S. 346; Belfer v. Ludlow, 144 App.Div. 746, 750, 129 N.Y.S. 626, 628; 10 Carmody-Wait 2d, § 70:27). These appeals, therefore, should be dismissed.
The two Article 78 proceedings are properly before us. Petitioners contend that only the two Grand Juries had the power to make recommendations with respect to the evidence which they considered; that Special Deputy Attorney General Scotti exceeded his authority in requesting the court to transmit the Grand Jury minutes to the Commissioner of Corrections and Superintendent of State Police; that it is against the public interest for the court to make such orders and that Justice Ball abused his discretion in signing the orders.
By statute the court has jurisdiction over grand jury minutes and has discretionary power to release them (Judiciary Law, § 325; CPL § 190.25(4)). The extraordinary remedy of prohibition 'lies only where there is a clear legal right' in petitioners for such relief and 'even if there has been an excess of jurisdiction or power, the extraordinary remedy will not lie if there is available an adequate remedy at law * * *' (Matter of State of New York v. King, 36 N.Y.2d 59, 62, 364 N.Y.S.2d 879, 881, 324 N.E.2d 351, 353). Since Special Term has jurisdiction of these Grand Jury minutes, prohibition will not lie in the absence of a showing that it is acting in excess of its powers and in violation of law and petitioners' rights. No such showing has been made herein.
Petitioners contend that because section 190.85 of the Criminal Procedure Law empowers grand juries to return a report recommending disciplinary action against public employees, neither a district attorney nor a special deputy attorney general acting in his stead may independently initiate such a recommendation. Although the statute authorizes the grand jury to recommend disciplinary action against a public employee despite the jury's failure to indict him, there is no reason to conclude that therefore only a grand jury may make such recommendation. Historically, the district attorney (or the Attorney General or his Special Deputy acting under appropriate authority) has represented the public interest. When in his judgment there is evidence which bears upon the propriety of the conduct of a public employee, which information may not otherwise come to the attention of the employer agency, it is only right and proper for him to act in the public interest and to ask the court to consider his request that the information be transmitted to the agency.
In designating respondent Scotti as Special Deputy Attorney General in charge of the Attica proceedings on December 16, 1975 Attorney General Lefkowitz, among other things, expressly authorized him to seek indictments against law enforcement personnel involving serious offenses in which there is a reasonable probability of conviction; to review pending indictments with a view to recommending dismissal thereof and to 'make available to State agencies evidence against law enforcement personnel which may be sufficient to result in departmental disciplinary action.' Clearly, therefore, respondent Scotti was acting within his express authorization from the Attorney General in seeking the release of specific minutes of the Grand Jury proceedings for transmittal to the Superintendent of State Police and the Commissioner of the Department of Correctional Services. The statute expressly authorized the court in its discretion, 'after hearing the said district attorney' (Judiciary Law, § 325; and see CPL § 190.25(4)), to release grand jury minutes, and many court decisions confirm the proper exercise of that discretion. Hence, petitioners' contention in this respect must fail.
In People v. Di Napoli, 27 N.Y.2d 229, 234, 316 N.Y.S.2d 622, 625, 265 N.E.2d 449, 451, the Court of Appeals wrote,
'We start with the proposition that secrecy of grand jury minutes is not absolute.
Under section 952--t of the Code of Criminal Procedure, a copy of the minutes may be furnished to
On page 235, 316 N.Y.S.2d on page 625, 265 N.E.2d on page 452, the court continued,
...
To continue reading
Request your trial
-
In re Carey
...N.Y.S.2d 489 [4th Dept.1981] ); the facilitation of possible disciplinary action against public employees ( Matter of Scotti, 53 A.D.2d 282, 287–289, 385 N.Y.S.2d 659 [4th Dept.1976] [upholding limited release of grand jury minutes to Attica special prosecutor for transmittal to prison auth......
-
James v. Donovan
...; Matter of Quinn, 293 N.Y. 787, 58 N.E.2d 730 ; Matter of Aiani v. Donovan, 98 A.D.3d at 973–974, 950 N.Y.S.2d 745 ; Matter of Scotti, 53 A.D.2d 282, 385 N.Y.S.2d 659 ; People v. Werfel, 82 Misc.2d 1029, 372 N.Y.S.2d 510 [Sup.Ct., Queens County] ; cf. People v. Cipolla, 184 Misc.2d 880, 71......
-
Chiapperini v. Gander Mountain Co.
...of Quinn, 293 N.Y. 787, 788, 58 N.E.2d 730 (1944) (town residents were entitled to grand jury minutes); Application of Scotti, 53 A.D.2d 282, 288, 385 N.Y.S.2d 659 (4th Dept.1976) (approving release of grand jury minutes).CONCLUSIONBased upon all of the foregoing, it is the Decision and Ord......
-
Carey, Matter of
...disclosure, specifying that the minutes were to be used for departmental discipline and no other purpose (Matter of Scotti, supra, 53 A.D.2d 282, 285, 289, 385 N.Y.S.2d 659, 661, 664; cf. Matter of City of Buffalo, 57 A.D.2d 47, 394 N.Y.S.2d 919). No case is cited, however, in which a court......