Defendant is charged with Robbery in the First Degree, Robbery in the Second Degree (two counts) and Grand larceny in the Third Degree. Thereafter, he testified under a waiver of immunity before another grand jury concerning unrelated crime. The charges were dismissed and the minutes sealed.
A Bronx County Grand Larceny attorney said that the People allege that the events which were the subject of that proceeding occurred “within hours” of the incident that supports the current indictment. Accordingly, they move to unseal the minutes so that defendant’s testimony can be used to impeach him if he testifies in this case and offers an alibi which is inconsistent with “his testimony concerning his actions and whereabouts at approximately the same date and time”. The defendant opposes the motion. He argues that public policy in general protects an accused who is later exonerated of criminal charges from adverse consequences resulting merely from an accusation. The grand jury minutes were sealed pursuant to CPL Section 160.50, which provides that upon termination of a criminal action in one’s favor–including dismissal of the charges and acquittal, for example, –all official records and papers, including the grand jury minutes relating to the arrest or prosecution of that charge, be sealed. The sealing statute is intended to insure that “one who is charged but not convicted of an offense suffers no stigma as a result of his having once been the object of an unsustained accusation”, or, as in this case, to protect one from unfounded accusations, if, in fact, no indictment is returned.
That rule of secrecy, however, is not absolute. For example, the CPL provides for disclosure of sealed materials to prosecutors, and law enforcement agencies, and the purposes for which their applications will be granted. None of those narrowly defined exceptions support the People’s application herein.
Nevertheless, when circumstances arise “in which sealed records must be unsealed in order to serve fairness and justice”, courts may order unsealing. That authority, however, should be exercised rarely and “only upon a compelling demonstration that without an unsealing of criminal records, the ends of protecting the public cannot be accomplished”, and that the interests in disclosure outweigh considerations justifying secrecy. Finally, if the information sought in sealed court records is readily available from other sources then the petitioner will have failed to demonstrate that overriding need: “convenience alone will not justify unsealing”.
Traditionally, applications to unseal records of criminal proceedings have been made where the underlying incident may provide the basis for a civil action or proceeding or for related investigations by government agencies, such as professional disciplinary groups and legislative committees.
The People, on the other hand, request the grand jury minutes to impeach defendant in a subsequent, unrelated criminal proceeding. That distinguishing feature, however, does not forbid the People’s application. If minutes are unsealed, they may be used for the purpose of impeaching a witness in a subsequent trial pursuant to court order.
However, the People failed to demonstrate a current, compelling need for the minutes, since there is no evidence at this time that defendant will testify, and that he will interpose an alibi inconsistent with his prior grand jury testimony. Therefore, the motion to unseal is denied as premature, with leave to renew if, after having served a demand on defendant, the People receive a Notice of Alibi for the trial. In that event, the court will inspect the minutes in camera and determine whether they may assist the People in cross-examination and should be disclosed.
The last two paragraphs of the affirmation in opposition to the People’s motion ask the Court to “direct” the People to give defense counsel a transcript of defendant’s grand jury testimony; a letter from counsel to the court, which points out that the court failed to address that application, refers to this request as a “cross-motion”. The application is denied.
In the first place, CPLR Rule 2215, which applies to criminal proceedings by custom and practice, provides that cross-motions may be made by serving a notice of cross-motion upon the moving party three days before the principal motion is to be heard. That was not done in this case. Second, since the court denied the People’s motion to unseal defendant’s grand jury testimony, their access to the minutes continues to be barred, and the court cannot at this point direct them, pursuant to CPL 240.20(1)(b), to give that testimony to defense counsel.
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