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Grand Jury report was sealed


On January 27, 1982, the County Court impaneled Grand Jury Panel 3 for the Second Term of 1982. It was created to investigate allegations concerning corrupt acts and criminal conduct involving governmental operations, public officials, and government employees and their associates. The Panel was discharged on October 29, 1983.

After hearing and examining the evidence concerning the misconduct, nonfeasance and neglect in public office by a particular public servant, the Grand Jury took action by voting to submit to the Court a report. The report recommended removal or disciplinary action against the identified public servant, as provided in Criminal Procedure Law. The Grand Jury did not indict the public servant named in the report, nor did it dismiss a charge before it. At the conclusion of his presentation, the Assistant District Attorney concluded the evidence was insufficient to ask the Grand Jury to consider criminal charges. None were therefore considered.

The Court ordered that the report submitted be filed as a public record. Pursuant to Criminal Procedure Law, the public servant named in the report appealed to the Appellate Division, Second Department. By order, the Appellate Division ordered the Grand Jury report sealed. The Court stated that, although the report was supported by a preponderance of the credible and legally admissible evidence presented to the Grand Jury, the legal instructions given by the Assistant District Attorney were inadequate, and the Assistant District Attorney failed to follow proper procedure with respect to the issuance of a report by the Grand Jury. Specifically, the Court held that, providing the Grand Jury with copies of the CPL (Criminal Procedure Law) article 190 pursuant to CPL is not sufficient where, as here, they (the Grand Jurors) were never given any instruction on the standard of proof to be applied in weighing the evidence. Further, an Assistant District Attorney recommended to the Grand Jury that they vote to have his office prepare a report without explaining to them their options under the statute. The proper procedure, not followed here, requires that before any report is prepared, the Grand Jury vote upon whether or not a report should be issued at all, and if so, what type of report should be prepared. Neither a weapon or sex was involved.

The District Attorney seeks the Court’s permission to resubmit the evidence which supported the sealed Grand Jury report, along with certain new and additional evidence, to another Grand Jury for whatever legal action that Grand Jury deems appropriate. Robbery was not charged.

In support of his request, the Assistant District Attorney argues, in a Memorandum of Law that the relief is warranted by analogy to indictments dismissed due to the improper instructing of the Grand Jury on the applicable law, where the Court may in its discretion authorize the State to submit the charge or charges to the same or another Grand Jury. The relief can also be warranted again by analogy, where a Grand Jury has refused to indict and filed a dismissal of the charges before it, the Court is empowered to authorize the State to resubmit the charges to the same or another Grand Jury upon a showing of new or additional evidence.

A relief may also be warranted because no statutory apparatus exists to prevent the representing of the evidence which had provided the basis for a Grand Jury report subsequently ordered sealed, while the power of the Grand Jury to investigate allegations of misconduct in office by public servants is specifically guaranteed both by the New York State Constitution, as well as by statute. Furthermore, relief can be justified because the so-called common law right of the District Attorney to re-present cases to the Grand Jury has only been limited in certain specific situations and those limitations do not specifically include Grand Jury reports. It is therefore urged that the court should concede to the District Attorney that judicial permission is not necessary to re-present the evidence to a new Grand Jury. The instant application has been submitted because the District Attorney deems it to be the better practice of law to seek the Court’s permission in view of the confusion created by the appellate courts with respect to the circumstances under which a re-presentation of evidence to a Grand Jury requires judicial permission; and since the Appellate Division found that the report was supported by a preponderance of evidence, that Court’s action in sealing the product of the Grand Jury’s inquiry should have no effect on the ability of the District Attorney to re-present the underlying evidence to a new Grand Jury.

Whether the District Attorney may resubmit to another Grand Jury the subject matter of a previously sealed report, together with new and additional evidence, presents a new and novel question of law for the courts of the second judicial department. It appears to the Court that the answer to that question is found in the nature of, and purpose to be served by, Grand Jury reports when considered in the overall context of the powers and functions of the Grand Jury. The motion is denied as unnecessary.

In keeping a country safe for its people, law enforcers make sure that everyone is accountable for their actions, no matter what their social status in life is. If you want to pursue a criminal case, consult the Nassau County Criminal Lawyer. Stephen Bilkis and Associates can also provide you with a Nassau County Assault Attorney to help you in your legal battle.

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