69 Misc. 2d 460 | New York County Courts | 1972
The September Term, 1971, of the Albany County Court Grand Jury conducted an investigation
“ 1. The grand jury may submit to the court by which it was impaneled, a report:
“ (a) Concerning misconduct, non-feasance or neglect in public office by a public servant as the basis for a recommendation of removal or disciplinary action; or
“(b) Stating that after investigation of a public servant it finds no misconduct, non-feasance or neglect in office by him provided that such public servant has requested the submission of such report; or
“ (c) Proposing recommendations for legislative, executive or administrative action in the public interest based upon stated findings.
Upon the receipt of the reports, the court has a duty to perform, all as set forth in subdivision 2 of the law which reads as follows:
‘ ‘ 2. The court to which such report is submitted shall examine it and the minutes of the grand jury and, except as other wise provided in subdivision four, shall make an order accepting and filing such report as a public record only if the court is satisfied that it complies with the provisions of subdivision one and that:
“ (a) The report is based upon facts revealed in the course of an investigation authorized by section 190.55 and is supported by the preponderance of the credible and legally admissible evidence; and
“ (b) When the report is submitted pursuant to paragraph (a) of subdivision one, that each person named therein was afforded an opportunity to testify before the grand jury prior to the filing of such report, and when the report is submitted pursuant to paragraph (b) or (c) of subdivision one, it is not critical of an identified or unidentifiable person.”
As this court proceeds here, it has in mind a statement of the Appellate Division, Second Department, in Matter of Talerico (34 A D 2d 553) as appropriate “We point out that there is a duty by statute upon the court to which a grand jury
To neglect, in its ordinary and first meaning is to “ omit ’ \ For the judgment to be made that a failure to make a particular judgment or to do a certain thing in a particular way is such an omission, the party must be under a duty to make that judgment or do that thing and no other. The party to be charged must be in the position that he is bound to make a decision today that in all circumstances be the right one, else he is neglectful. Rare indeed would be the instances where public officials are so obligated by their oaths of office and the record demonstrates we certainly do not have one in hand here. There was no neglect here in accordance with legal connotation to be accorded that word in CPL 190.85 (subd. 1, par. [a]).
The material specifications under the charges are not supported by a preponderance of the required evidence. Some of the support that could be claimed for it is hindsight judgment which is not an acceptable way in the law to judge foresight.
At this point the court wishes to point out there is very little detail associated with the legal conclusions and also there is no broad evidentiary analysis revealed although the same was made. Inasmuch as sealing is going to be the ultimate result here, any detailing here would make such sealing a futile act. Even in the case of releasing a report the court is mandated to withhold until all appeal procedures have been followed and the final determination made (CPL 190.85, subd. 3). The appeal itself is a sealed procedure until final determination (CPL 190.90, subd. 3). The court must be even more cautious when sealing.
The charges here in the first report do not comply with the provisions of CPL 190.85 (subd. 1) and are not supported by a preponderance of the credible and legally admissible evidence. The statutory requirements then are not met and this report is ordered sealed.
The report submitted under subdivision (c) of subdivision 1, containing recommendations for action to be taken in the public
Even though the court has a specific responsibility here to see that there is compliance with the statute involved, it is never relieved of the duty of always being alert for any violations of due process of law that may be attendant on a proceeding under evaluation. Such a violation is here present and is sufficient to vitiate the entire procedure and constrain to the court to seal the reports. The reason would indeed remain even if all the hereinbefore set forth were to fall. The minutes show that at the outset prior to the calling of a witness or the presentation of testimony, the following colloquy occurred between the prosecutor and a juror, “ By a Juror, why wasn’t this initiated before, why did this take so long? ” “ Mr. Proskin, why wasn’t it initiated by my office? ”, “ By a Juror, yes, with six million dollars down the drain why wasn’t it initiated before? ”. At this point it was quite apparent that a juror had a prejudgment affecting the matter materially. He was of a mind that there was a loss and from his words “ down the drain ” a loss arising out of fault. The fact concerning which he had already made his decision was a sharply disputed one in the record and one that by its nature was quite germane to any ultimate decision. The court cannot say with any confidence that this juror examined with open, impartial mind the conduct of the parties who might be associated with a loss the existence of which he had predetermined to exist. The court can well say here that a state of mind existed on the part of this juror in reference to the case that prevented him from acting impartially and without prejudice to the substantial rights of parties who might be subject to the Grand Jury’s judgment. His presence became known at the outset, yet for all this record shows he was allowed to remain. No direction was given to the remaining jurors to disregard his statement, thus avoiding the possibility of his gratuitous statement having the force of evidence. Where there is contamination there must be sterilization and none is found here. The most this record shows as to the vote is that there were the required 12 and nothing appears here to exclude the disqualified one from the 12. A prejudiced charge can well be a false one. The muffling of the echo of a false accusation is an extremely difficult task; the only acceptable remedy in many
In view of all of the foregoing, the reports are sealed permanently.