Special Grand Jury, Matter of

• Decision Date: 14 August 1985
• Citation: 494 N.Y.S.2d 263,129 Misc.2d 770
• Parties: In the Matter of the SPECIAL GRAND JURY of the County of Nassau, State of New York Panel 3, Second Term, 1982.
• Court: New York County Court

Page 263

494 N.Y.S.2d 263

129 Misc.2d 770

In the Matter of the SPECIAL GRAND JURY of the County of Nassau, State of New York Panel 3, Second Term, 1982.

Nassau County Court, Trial Term Part V.

Aug. 14, 1985.

Denis Dillon, Dist. Atty., by Ada Burton T. Ryan, Jr., Mineola, for state.

MARIE G. SANTAGATA, Judge.

By this ex parte motion, the District Attorney seeks leave to represent the evidence that was the subject of a sealed Grand Jury report, together with new and additional evidence, to another Grand Jury for whatever action that body deems appropriate.

The prior orders of this Court addressed to various aspects of this issue, dated February 4, 1985 and April 30, 1985, are hereby vacated. This application is deemed a new motion which the Court will address de novo.

BACKGROUND

On January 27, 1982, the Nassau County Court impaneled Grand Jury Panel 3 for the Second Term of 1982. It was created to investigate allegations concerning corrupt acts and criminal conduct involving governmental operations, public officials, and government employees and their associates. The Panel was discharged on October 29, 1983.

After hearing and examining the evidence concerning the misconduct, nonfeasance and neglect in public office by a particular public servant (CPL §§ 190.05, 190.55[2][c] ), the Grand Jury took action by voting to submit to this Court a report (CPL § 190.60[5] ). The report recommended removal or disciplinary action against the identified public servant, as provided in Criminal Procedure Law § 190.85(1)(a). The Grand Jury did not indict the public servant named in the report (CPL §§ 190.60[1], 190.65), nor did it dismiss a charge before it (CPL §§ 190.60[4], 190.75). At the conclusion of his presentation, the Assistant District Attorney concluded the evidence was insufficient to ask the Grand Jury to consider criminal charges. None were therefore considered.

This Court ordered that the report submitted be filed as a public record. (CPL § 190.85[2] ). Pursuant to Criminal Procedure Law § 190.90[1], the public servant named in the report appealed to the Appellate Division, Second Department. By order dated June 21, 1984, the Appellate Division ordered the Grand Jury report sealed. The Court stated that, although the report was supported by "a preponderance of the credible and legally admissible evidence presented to the Grand Jury," the legal instructions given by the Assistant District Attorney were inadequate, and the Assistant District Attorney failed to follow proper procedure with respect to the issuance of a report by the Grand Jury. ( Matter of the Report of the Special Grand Jury of the County of Nassau, New York, Panel 3, Second Term, 1982, 102 A.D.2d 871, 477 N.Y.S.2d 34.) Specifically, the Court held that,

"Providing the Grand Jury with copies of CPL article 190 pursuant to CPL 190.20 (subd 5) is not sufficient (legal instruction) where, as here, they (the Grand Jurors) were never given any instruction on the standard of proof to be applied in weighing the evidence (see Matter of Special Grand Jury of County of Monroe Empanelled Feb. 14, 1978, 77 AD2d 199 ; Matter of Special Grand Jury Investigation in Alleged Wire Tapping Activities in Chautauqua County, 79 Ad2d 847 ). Further, an Assistant District Attorney recommended to the Grand Jury that they vote to have his office prepare a report pursuant to CPL 190.85 (subd 1, par [a] ), without explaining to them their options under the statute. The proper procedure, not followed here, requires that before any report is prepared, the Grand Jury vote upon whether or not a report should be issued at all, and if so, what type of report should be prepared (se Matter of September, 1976 Grand Jury No. II, 75 AD2d 648, 649 )."

ARGUMENTS SUPPORTING APPLICATION

The District Attorney now seeks this Court's permission to resubmit the evidence which supported the sealed Grand Jury report, along with certain new and additional evidence, to another Grand Jury for whatever legal action that Grand Jury deems appropriate. (See CPL § 190.60). In support of his request, the Assistant District Attorney argues, in a Memorandum of Law dated April 9, 1985, that the relief is warranted:

(a) by analogy to indictments dismissed due to the improper instructing of the Grand Jury on the applicable law (CPL §§ 210.20[1][c], 210.20[4], 210.35[5] ), where the Court may "... in its discretion authorize the People to submit the charge or charges to the same or another Grand Jury ...;"

(b) again by analogy, where a Grand Jury has "refused to indict and filed a dismissal of the charges before it," the Court is empowered to authorize the People to resubmit the charges to the same or another Grand Jury upon a showing of "new or additional evidence." (CPL § 190.75[3]; People v. Dykes, 86 AD2d 191 [2d Dept., 1982] );

(c) because no "statutory apparatus exists" to prevent the representing of the evidence which had provided the basis for a Grand Jury report subsequently ordered sealed, while the power of the Grand Jury "... to investigate allegations of misconduct in office by public servants is specifically guaranteed both by the New York State Constitution (McKinney's Const. Art. 1, Sec. 6), as well as by statute (CPL 190.05; CPL 190.55[1] ...;"

(d) because the so-called "common law right" of the District Attorney to re-present cases to the Grand Jury "... has only been limited in certain specific situations (citations omitted) ...," and those limitations do not specifically include Grand Jury reports. It is therefore urged that, "... this court should concede to the District Attorney that judicial permission is not necessary to re-present the evidence (in issue here) to a new Grand Jury ..." The instant application has been submitted because the District Attorney deems it to be the "better practice of law" to seek this Court's permission in view of the "confusion" created by the appellate courts with respect to the circumstances under which a re-presentation of evidence to a Grand Jury requires judicial permission; and

(e) since the Appellate Division found that the report "was supported by a preponderance of evidence," that Court's action in sealing "the product of the Grand Jury's inquiry ... should have no effect on the ability of the District Attorney to re-present the underlying evidence to a new Grand Jury."

ISSUE

Whether the District Attorney may resubmit to another Grand Jury the subject matter of a previously sealed report, together with new and additional evidence, presents a new and novel question of law for the courts of the second judicial department. It appears to this Court that the answer to that question is found in the nature of, and purpose to be served by, Grand Jury reports when considered in the overall context of the powers and functions of the Grand Jury.

DECISION

The motion is denied as unnecessary.

RESUBMISSION AND THE LAW

The basis for the Grand Jury's power to investigate and accuse is found in Article 1, Section 6 of the New York State Constitution. In pertinent part, it provides:

"The power of grand juries to inquire into the wilful misconduct in office of public officers and to find indictments or to direct the filings of informations in connection with such inquiries shall never be suspended or impaired by law."

It has long been recognized that the Grand Jury's power to inquire is very broad; the Courts have generally afforded to the Grand Jury the "... widest possible latitude in the exercise of their powers and insisted that in the absence of a clear constitutional or legislative expression they may not be curtailed ..." (People v. Stern 3 N.Y.2d 658, 661, 171 N.Y.S.2d 265, 148 N.E.2d 400. See, also, Virag v. Hynes, 54 N.Y.2d 437, 443-444, 446 N.Y.S.2d 196, 430 N.E.2d 1249; People v. Rodriguez, 97 Misc.2d 379, 381, 411 N.Y.S.2d 526.) But, although the Grand Jury's "traditional investigative powers" are extensive, they are not unlimited. (Matter of Stern v. Morgenthau, 62 N.Y.2d 331, 476 N.Y.S.2d 810, 465 N.E.2d 349.)

Article 190 of the Criminal Procedure Law comprises the statutory scheme through which the Grand Jury exercises its constitutional mandate. Section 190.55, subdivision (1) of the Criminal Procedure Law authorizes the Grand Jury to hear and examine evidence concerning:

(a) the alleged commission of any offense prosecutable in the courts of the county; and

(b) any misconduct, nonfeasance or neglect in public office by a public servant, "whether criminal or otherwise."

Section 190.60 of the Criminal Procedure Law sets forth the actions which may be taken by the Grand Jury after "hearing and examining" the evidence submitted to it. The Grand Jury may, inter alia:

(a) indict a person for an offense (CPL §§ 190.60[1]; 190.65);

(b) dismiss the charge before it (CPL §§ 190.60[4]; 190.75); or

(c) submit a Grand Jury report (CPL §§ 190.60[5]; 190.85).

At common law, there was no limit on the power of the prosecutor to submit the same matter to successive Grand Juries. (People ex rel. Flinn v. Barr, 259 N.Y. 104, 107-108, 181 N.E. 64; People v. Westbrook, 79 Misc.2d 902, 903, 361 N.Y.S.2d 584). The only protection then available to an individual was the constitutional prohibition against being twice placed in jeopardy for the same crime, and that protection could not be invoked until the time of trial. (People v. Rosenthal, 197 N.Y. 394, 90 N.E. 991, affd. 226 U.S. 260, 33 S.Ct. 27, 57 L.Ed. 212). Repetitive submissions, however, are no longer permitted. The Criminal Procedure Law limits prosecutors by requiring them, in certain instances, to seek and obtain Court approval before a matter may be resubmitted to the same or another Grand Jury. (People v. Westbrook, supra, 79 Misc.2d at p. 903, 361 N.Y.S.2d 584.)

The prosecutor must be granted leave in order to resubmit the same matter to the same or another Grand Jury (CPL §§ 210.20[4], 210.45[9] ) where an indictment is handed up by a Grand Jury (CPL §§ 190.60[1], 190.65)...