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The Court of Appeals in Di Napoli


This motion for the discovery of grand jury minutes was originally brought in the Criminal Term of this court but transferred to Special Term. The motion by plaintiff is made within the framework of a civil action for false arrest, false imprisonment and malicious prosecution and although the motion was originally captioned in the criminal action, the court will nonetheless deem this application to have been so brought and thus will consider the merits.

Plaintiff was indicted for grand larceny in the second degree. On October 9, 1973, on motion by defense counsel at the end of the People’s case, the indictment was dismissed. The instant action was commenced in March 1974 against the complainants in the criminal case. An order of the court, made after hearing the District Attorney, is required for the disclosure of grand jury testimony.

The issue precisely framed is whether a plaintiff in a civil action for malicious prosecution can discover the grand jury testimony of the complaining witnesses in the criminal case which forms the basis of the action. In evolving rules governing the use of grand jury testimony, courts have generally refused to permit disclosure unless the moving party was connected with law enforcement.

However, the first time the Court of Appeals had the question before it, it affirmed, without opinion, the lower court’s exercise of discretion in granting the disclosure of grand jury minutes to residents of the Town of Mt. Pleasant to aid them in proceedings to remove the Receiver of Taxes. The Court of Appeals clarified its position and stated that the proposition that secrecy of grand jury minutes is not absolute. Disclosure rests in the discretion of the trial judge who must balance public interest in disclosure against that in secrecy.

Citing Matter of Quinn (293 N.Y. 787), the Court found no merit in the contention that permission to inspect grand jury minutes should be given only to officials or agencies concerned with the enforcement or administration of criminal law. Thus the court perceives the Di Napoli rule, involving the Public Service Commission’s investigation of Consolidated Edison and Brooklyn Union Gas Company in the public interest, to be authority for general disclosure where the issues relate to either law enforcement or to the public interest.

There appears to be only one case (People vs. Carignan) which has permitted a civil private litigant to discover grand jury testimony. That case extended the Di Napoli rule to a defendant in a false arrest suit which was premised on the grand jury’s finding of no bill against the defendant (plaintiff therein). It is not clear from the Carignan case, however, whether reliance was not really placed on the use of grand jury testimony for the limited purpose of impeachment.

In any event, this court will not extend the rule further to permit discovery by the plaintiff in a false arrest or malicious prosecution suit. The Court of Appeals in Di Napoli indicated that disclosure, under the circumstances there, would not have a chilling effect on the ability of future grand juries to obtain witnesses. Thus, public interest in secrecy here outweighs the private interest in disclosure. Further, if the instant defendants took the stand on the people’s case, plaintiff had an opportunity to utilize their grand jury testimony to impeach their credibility. Such should appear in the trial record to which plaintiff is entitled. In any event, the trial judge, upon the trial of this action, may permit the use of grand jury testimony for impeachment purposes should the defendants take the stand, and this determination is without prejudice to such an application. Hence, the motion is denied.

The Stephen Bilkis & Associates can help you file a claim against malicious prosecution. If a criminal case against you is anchored on a false accusation our Queens County Criminal Attorneys will assist you in obtaining damages.

In addition, if you are accused for grand larceny or any other related offense, call our Queens County Grand Larceny Lawyers and let our experts handle your defense.

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