57 A.D.2d 47 | N.Y. App. Div. | 1977
Petitioner, the City of Buffalo, appeals from County Court’s denial of its application to inspect the minutes of the December, 1972 Erie County Grand Jury. The inspection motion was opposed by the District Attorney of Erie County.
The present dispute had its genesis when the Grand Jury,
Six of the witnesses whose Grand Jury testimony is sought have filed an amicus curiae brief in which they argue that the
As all parties agree, the determination of a motion for disclosure of Grand Jury minutes rests in the sound discretion of the court (People v Di Napoli, 27 NY2d 229, 234-235; Matter of Scotti, 53 AD2d 282, 286-287; see CPL 190.25, subd 4; Judiciary Law, § 325) and should be based upon a balancing of "the public interest in disclosure against that in secrecy” (People v Di Napoli, supra, p 234). As the reasons "most frequently mentioned” in support of Grand Jury secrecy, the Di Napoli court recited these (p 235): "(1) prevention of flight by a defendant who is about to be indicted; (2) protection of the grand jurors from interference from those under investigation; (3) prevention of subornation of perjury and tampering with prospective witnesses at the trial to be held as a result of any indictment the Grand Jury returns; (4) protection of an innocent accused from unfounded accusations if in fact no indictment is returned; and (5) assurance to prospective witnesses that their testimony will be kept secret so that they will be willing to testify freely.” (See, also, United States v Procter & Gamble Co., 356 US 677, 681, n6, quoting United States v Rose, 215 F2d 617, 628-629.) Disclosure of Grand Jury minutes is not limited to public bodies concerned with the administration of the criminal law (People v Di Napoli, supra, p 236), and has frequently been granted to other public officers and agencies which require the minutes in furtherance of some official duty to protect an important public interest (see, e.g., People v Di Napoli, supra; Matter of Scotti, 53 AD2d 282, supra; People v Werfel, 82 Misc 2d 1029; Matter of Temporary State Comm. of Investigation, 47 Misc 2d 11; People v Behan, 37 Misc 2d 911; Matter of Scro, 200 Misc 688; People ex rel. Sawpit Gymnasium, 60 NYS2d 593; Matter of Crain, 139 Misc 799; cf., People ex rel. Hirschberg v Board of Supervisors, 251 NY 156, revg 215 App Div 776). Moreover, in Matter of Quinn [Guion] (267 App Div 913, affd without opn 293 NY 787), an unofficial group of town residents which had instituted pro
At the opposite pole are cases in which purely private civil litigants have sought inspection of Grand Jury minutes for the purpose of preparing suits. Although courts have recognized a limited right in civil litigants to use a trial witness’ Grand Jury testimony to impeach, to refresh recollection or to lead a hostile witness (Herring v City of Syracuse, 81 Misc 2d 1060, 1062; Foley v City of New York, 75 Misc 2d 664; Marinelli v State of New York, 71 Misc 2d 62), wholesale disclosure of Grand Jury testimony for purposes of trial preparation has been almost uniformly denied to private litigants (Albert v Zahner’s Sales Co., 51 AD2d 541, affg 81 Misc 2d 103; Vartanesian v Purcell, 57 Misc 2d 217; Kruger v County of Nassau, 53 Misc 2d 166; contra, People v Carignan, 76 Misc 2d 515). In the last-cited case, the court was moved by the argument that the public policy of encouraging crime victims to complain would be advanced by allowing inspection of Grand Jury minutes to a complainant to aid in preparation of her defense in a false arrest action which was brought against her by the accused.
Applying the principles gleaned from the foregoing authorities, we conclude that the denial of inspection of the Grand Jury minutes was proper. It is true that the city does stand in a better position than a purely private civil litigant, because the money it seeks to recoup is public money, and recoupment by civil suit might have a deterrent effect on dishonest employees. Still, the public interest in recouping an undetermined amount of money seems far less compelling than the public interest at stake in Di Napoli (supra) where avoidance of future episodes of public contract bid rigging and potentially huge savings to utility rate payers were in the offing (see 27 NY2d, at p 235), or in Quinn (supra) where the disclosure was sought to aid in the ouster of an unfit public official who might have posed a continuing threat to the town’s fiscal integrity. Also significant is that the District Attorneys in Di Napoli and Quinn did not resist disclosure, whereas here the District Attorney is actively opposed. The December, 1972 Grand Jury has long since concluded its work and it is not claimed that any pending investigation would be jeopardized by disclosure, but we think it plain that where, as
Cardamone, J. P., Simons and Witmer, JJ., concur.
Order unanimously affirmed, without costs.