Special Rensselaer County Grand Jury Reports for 1983 Term I, Matter of

• Decision Date: 23 February 1984
• Citation: Special Rensselaer County Grand Jury Reports for 1983 Term I, Matter of, 473 N.Y.S.2d 37, 99 A.D.2d 927 (N.Y. App. Div. 1984)
• Parties: In the Matter of the SPECIAL RENSSELAER COUNTY GRAND JURY REPORTS FOR 1983 TERM I. Special District Attorney of Rensselaer County, Appellant; Public Servant Named in First Report, Designated "A", Respondent.
• Court: New York Supreme Court — Appellate Division

Page 37

473 N.Y.S.2d 37

99 A.D.2d 927

In the Matter of the SPECIAL RENSSELAER COUNTY GRAND JURY REPORTS FOR 1983 TERM I Special District Attorney of Rensselaer County, Appellant Public Servant Named in First Report, Designated "A", Respondent.

Supreme Court, Appellate Division Third Department.

Feb. 23, 1984.

Donald J. Shanley, Troy, for appellant.

At his request, counsel for respondent will not be identified on furtherance of the confidentiality provisions of sections 190.85 and 190.90 of the Criminal Procedure Law.

Before KANE, J.P., and MAIN, YESAWICH, WEISS and HARVEY, JJ.

MEMORANDUM DECISION.

Appeal from an order of the County Court of Rensselaer County, entered June 3, 1983, which sealed a report of the Special Rensselaer County Grand Jury, dated May 26, 1983.

A Special Rensselaer County Grand Jury empaneled to inquire into the disclosure of a prior Grand Jury sealed report filed a report, pursuant to CPL 190.85 (subd. 1, par. [a] ), recommending removal from office of, or disciplinary action be taken against, a public servant for misconduct, nonfeasance or neglect in public office. On this appeal, the special district attorney appointed to act as district attorney for all purposes in this matter seeks to have the report accepted and filed as a public record.

We agree with County Court that the report must remain forever sealed. Elaborating on the alleged acts of misconduct, nonfeasance or neglect described in the report would simply render the act of sealing a futility. Suffice it to say that the report criticizes a public servant for errors in judgment respecting the transmittal of documents (see Matter of Reports of Grand Jury No. 1 of County of Monroe, 71 A.D.2d 1060, 420 N.Y.S.2d 946; Matter of South Mall Financing, 69 Misc.2d 460, 463, 330 N.Y.S.2d 170), and with regard to the events of February 25, 1983, also holds the public official to a standard of conduct not established by statute or precedent (see Matter of Report of Special Grand Jury of County of Monroe Empanelled February 14, 1978, 77 A.D.2d 199, 204, 433 N.Y.S.2d 300). As a consequence, though the report accurately details the conduct of the public servant, that conduct does not constitute misconduct, nonfeasance or neglect and, hence, the recommendation reached is an insupportable one.

Furthermore, even viewing the actions described as misconduct, nonfeasance or neglect, such findings are not borne out by a preponderance of credible and legally admissible...