Matter of Report of the May 31 2006 Grand Jury of the County of Franklin
Annotate this CaseDecided on November 13, 2006
County Court, Franklin County
In the Matter of a Report of the May 31, 2006 Grand Jury of the County of Franklin.
236-2006
Robert G. Main, J.
The May 2006 Grand Jury has submitted a report to this Court concerning an investigation into a single car automobile accident on October 5, 2005, in the Town of St. Armand.[FN1] The investigation took place over the course of two days.[FN2] The report was submitted pursuant to Criminal Procedure Law § 190.85 (1) (a) and recommends disciplinary action against a public servant. Upon the filing of such a report, this Court is required to determine whether the report should be accepted and filed as a public record or should be sealed (Criminal Procedure Law § 190.85 [2]).
In making this decision, the Court must determine whether the Grand Jury proceeding was conducted in accordance with the mandates of article 190 of the Criminal Procedure Law, whether appropriate instructions were given, and whether the report of the Grand Jury is, in fact, the work product of the Grand Jury. Unless the Court is satisfied that each of these requirements has been met, the report must be sealed.
Article 190 of the Criminal Procedure Law governs Grand Jury [*2]proceedings in New York State and authorizes the Grand Jury to "hear and examine evidence concerning the alleged commission of any offense prosecutable in the courts of the county, and concerning any misconduct, nonfeasance or neglect in public office by a public servant, whether criminal or otherwise" (Criminal Procedure Law § 190.55 [1]). "After hearing and examining evidence ... a grand jury may ... [s]ubmit a grand jury report, as provided in section 190.85" (Criminal Procedure Law
§ 190.60[5]).
Criminal Procedure Law § 190.85 (1) sets forth the three types of reports which a Grand Jury may submit to the Court. The first, which is the type of report submitted in this instance, is one "[c]oncerning misconduct, non-feasance or neglect in public office by a public servant as the basis for a recommendation of removal or disciplinary action". The second is a report "[s]tating 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". The last report is one "[p]roposing recommendations for legislative, executive or administrative action in the public interest based upon stated findings" (Criminal Procedure Law § 190.85 [1] [a], [b], [c]).
Any report submitted by the Grand Jury must be based upon facts revealed in an authorized investigation and must be supported by the preponderance of the credible and legally admissible evidence (Criminal Procedure Law § 190.85 [2] [a]). Additionally, in reports such as the one here, concerning a public servant, each person named must have been afforded an opportunity to testify before the Grand Jury (Criminal Procedure Law § 190.85 [2] [b]).
A careful review of the report in the instant matter reveals a procedural irregularity which constrains this Court to conclude that the report must be sealed.
Proper procedure 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" (Matter of the Report of the Special Grand Jury of the County of Nassau, New York, Panel 3, Second Term, 1982, 102 AD2d 871, citing Matter of September 1976 Grand Jury No. II, 75 AD2d 648, 649). It appears that this procedure was followed.
Proper procedure also requires that "it is the responsibility of the Grand Jury, not the District Attorney, to formulate reports" (Matter of the June 1982 Grand Jury of the [*3]Supreme Court of Rensselaer County, 98 AD2d 284, 285, citing CPL § 190.85, Matter of Report of September 1976 Grand Jury No. II, 75 AD2d 648, 649). This requirement does not appear to have been followed in this matter.
The minutes indicate that, upon conclusion of the presentation of evidence, the Assistant District Attorney advised the Grand Jury of the following,
"If you decide to vote on this, a report will be prepared, the general [sic] tenure, the general facts of the report would have to be prepared after the Grand Jury minutes are prepared in full and then filed with a court which would then review the minutes for the report. But the report, the essential nature of the report would be . . ."
The Assistant District Attorney then went on to give a very brief synopsis of what the report would encompass. After the prosecutor fielded a few questions from the Grand Jurors, the panel met and voted. The Grand Jury voted to submit a report recommending disciplinary action against the person named in the instant report, voted against recommending removal of that person, and voted against recommending the submission of any report against a different public servant. After reading the vote the Assistant District Attorney stated, "I will be preparing a report, Mr. Foreman. I think you'll have to sign it as well."
The report of the Grand Jury was signed by both the Assistant District Attorney and the Grand Jury foreperson on September 8, 2006. This is all of the information before the Court with regard to the origin of the instant report. It appears that this report is not the work product of the Grand Jury. The People clearly prepared this report which was never ratified by the Grand Jurors. There is no indication that the foreperson even reviewed the report prior to signing it.
In the Matter of First Report of the June 1993 Grand Jury of the County of Clinton, 209 AD2d 900, 902, the Third Department held,
"it is unclear whether County Court itself was provided with any documentation from which it could determine that the report was indeed actually reviewed by at least 16 jurors and its issuance approved by 12 (see, CPL 190.25 [1]). If such is not the case, the report must be sealed" (citations omitted).
As this Court must direct the sealing of the report of the Grand Jury in this matter, it is not necessary to address any [*4]other issues.
For the reasons set forth herein, it is
ORDERED that the report, dated September 8, 2006, of the May 2006 Grand Jury be, and it hereby is, forever sealed and not filed as a public record, without prejudice to the People presenting the matter to a subsequent Grand Jury.
ENTER
______________________________
Franklin County Judge
Dated at Malone, New York, the 13th day of November, 2006.
Footnotes
Footnote 1: The Court's reference to the facts of the incident investigated has been curtailed in order to preserve the secrecy of the Grand Jury process and so as not to call undue attention to the content of the report.
Footnote 2: Witnesses testified on August 17, 2006, and August 29, 2006.
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