People v. Di Napoli

McGivern, J. (dissenting).

Although cases .on this subject are myriad, I am unable to find one reported precedent which has gone the length of permitting an inspection of Grand Jury minutes in a noncriminal inquiry by an agency not per se involved in the administration of criminal laws. To my knowledge, this is the first time in this State when the privacy of the Grand Jury has been suffered to be invaded by an agency other than one charged with a law enforcement function of a criminal nature, or to aid in the investigation of a public officer false to his trust.

The cases cited by the majority wonderfully illustrate this conclusion: People ex rel. Hirschberg v. Board of Supervisors (251 N. Y. 156) involved charges of “ serious derelictions ” against the District Attorney of Orange County. People v. Ewald (144 Misc. 657) involved the Chief Clerk of the Court of the City of New York; even then, a request to inspect by the Association of the Bar of the City of New York was turned away as “not in the public interest.” Matter of Quinn (293 N. Y. 787) dealt with official corruption and the removal of a town Receiver of Taxes for misappropriation of funds. Matter of People ex rel. Sawpit Gymnasium (60 N. Y. S. 2d 593, 594) involved collusion by a Police Department with gambling activities ; therein it was said:11 Such an inspection is permitted when the application is made by a law enforcement agency and in the public interest.” (Emphasis supplied.) Similarly, Matter of City of New Rochelle (35 Misc 2d 254) involved police misconduct. And the court well said (p. 256): “The principle enunciated, .and upon which those decisions were based, is one *33of public policy requiring the courts to co-operate with public officials entrusted with the administration of our criminal laws in the exercise of their official public duties. (Cf. Matter of Martin, 170 Misc. 919.) ” (Emphasis supplied.) Matter of Scero (200 Misc. 688) also dealt with gambling and police corruption. Matter of Attorney-General of the U. S. (160 Misc. 533) involved a request by the Attorney General to further the proper prosecution of Federal indictments for mail fraud. In fact, this latter case has been cited for the view I espouse. Cf. Matter of Grand Jury of Erie County (192 Misc. 857). Therein, the court well said (pp. 858-859): “ The decisions of the courts have held that ‘ other persons ’ include law enforcement bodies and officers thereof. (Matter of Attorney-General of United States, 160 Misc. 533; Matter of Crain, 139 Misc. 799.) It always has been and still is the policy of the law that Grand Jury proceedings be held secret and that the minutes thereof be not revealed excepting as above stated and the primary purpose of permitting an inspection of Grand Jury minutes is to enable defendant to move for a dismissal of an indictment if found against him in violation of the law. The exceptions permitting the invasion of the secrecy of the Grand Jury proceedings therefore appear to be permissible only when a defendant’s legal rights appear to have been violated by the Grand Jury action, or where a public officer or an official body charged with the duty of criminal law enforcement or the alleged investigation of alleged violation of criminal law, properly presents to the court facts showing that the necessity is in the public interest for the examination.” (Emphasis supplied.) And in this latter case [Matter of Grand Jury of Erie Co.] the court went so far as to hold (p. 860): “ The Commissioner of Motor Vehicles is not an officer charged with the duty of enforcing the criminal laiv of the State of New York, and the Bureau of Motor Vehicles is not considered as such an enforcement body.” (Emphasis supplied.) And the petition was refused, even though the Commissioner of Motor Vehicles does perform many quasi-criminal functions.

The rule thus far has been inviolate: A cloak of secrecy surrounds the proceedings before a Grand Jury. It is upheld "by statute and embraces even the grand jurors themselves. It is an ancient policy founded on the recognition that the quest for information is best favored by voluntary witnesses unburdening themselves without fear of revelation—or answerability. The defendants in this case (now long since concluded) are entitled to these historic assurances of secrecy, under which they testified. If they, or the other witnesses, had ever envisaged that *34their testimony would at a future date be handed over to a bureaucracy they may very well have hesitated and had second thoughts about full disclosure.

True, the courts have in the past co-operated with governmental bodies bent upon the enforcement of our criminal laws, but never with a regulatory body (PS'C) merely interested in knowing more about the placement of large contracts by a private corporation. Unabashedly, the sought-after inquiry is civil in nature. And it may prove to be prejudicial to the defendants, presently engulfed in other collateral litigation involving both Consolidated Edison and the defendants.

Nor do I fathom the manner in which the present petition was lodged, under a criminal indictment to which the petitioner was a stranger, nearly a year after the conclusion of the case, and without notice to the defendants. I am further nonplussed by the casual character of the short application on which the ex parte order is based. It is asserted “ That such information is relevant to the Commission to determine whether the shareholders of Consolidated Edison or the ratepayers of this city shall bear the burden of the overcharges paid to various contractors by Consolidated Edison, and to determine necessary corrective actions which should be taken to insure that this problem does not recur ”.

No necessity for the revelation is demonstrated. Indeed, ‘ the soft underbelly” of the petitioner’s position is visible when, in its supporting memorandum, it frankly admits that had it the proper staff it could acquire the information on its own efforts. But, mere convenience and the avoidance of expense has never been accepted as a .reason for violating the historic secrecy of the Grand Jury and of the conditions under which the witnesses testified therein.

Nor should the mere incantation of “ public interest ” be the “ Open Sesame ” for a noncriminal agency to sunder the veil from the Grand Jury. Give the privilege to the Bublic Service Commission: Why not to the Bort of New York Authority, the State Bower Authority? Why not to the Bure Water Authority? The Genesee Valley. Regional Market Authority? Agencies and authorities we have aplenty—all dedicated to the ‘ ‘ public interest ”, presumably, and no less consecrate than the Bublic Service Commission.

Thus, since I find no precedent to justify the majority’s discretionary decision to open up this particular “Bandora’s Box ”, in my view, the action taken is an unjustified derogation . of the rule of secrecy hitherto honored. I would reverse the *35order granting leave to inspect the minutes as one not in furtherance of the -public interest.

Mabkewioh and Nunez, JJ., concur with McNally, J.; McGtvebn, J., dissents in opinion in which Capozzoli, J. P., concurs.

Orders entered on May 12, 1970 and May 19, 1970, affirmed, without costs and without disbursements.