Defendants seek the release of all Grand Jury testimony pursuant to CPL §190.25 and Judiciary Law §325 with regard to the investigation into the death of Karl Taylor, an inmate at the Sullivan Correctional Facility, which culminated in several No True Bills on November 23, 2015. Said transcripts are to be used in a federal civil action against the Defendants1 by the Administratrix of Mr. Taylor’s Estate. The Defendants submitted a Notice of Motion dated June 8, 2018 with an Affirmation in Support and related exhibits. The People submitted an Affirmation in Opposition dated June 19, 2018. This Court granted oral argument at the request of Defendants’ counsel. Both Defendants’ counsel and the People were heard on June 18, 2018, wherein the Defendants asked for the immediate release of only the Defendants’ Grand Jury testimony in anticipation of Court-ordered Examinations Before Trial. The Defendants’ sought to in effect bifurcate their demand from the Grand Jury testimony of several inmate witnesses and others that testified before the Grand Jury in order to accommodate the Court-ordered discovery schedule of the federal civil action.2The Defendants herein, correctional officers employed by the Department of Corrections and Community Supervision who were working at Sullivan Correctional Facility at the time of Mr. Taylor’s death, were subpoenaed to testify before the Grand Jury in November of 2015 as part of the investigation into the death of Mr. Taylor. Several inmates who were housed on Mr. Taylor’s cell block (also known as “E-North”) at Sullivan Correctional Facility and other employees of the Department of Corrections and Community Supervision and Sullivan Correctional Facility also testified before the Grand Jury under subpoena. The Grand Jury did not find sufficient evidence to indict any of the Defendants, resulting in the submission of No True Bills and no criminal charges being filed against the Defendants.On or about March 22, 2018, Julia Ramsay-Nobles, Mr. Taylor’s sister and as Administratrix of Mr. Taylor’s estate, commenced a civil action in the United States District Court, Southern District of New York. The Federal Civil Complaint alleged several civil rights and constitutional rights violations perpetrated by the Defendants herein. Defendants thereafter made the underlying application seeking disclosure of their Grand Jury testimony, as well as the testimony of all witnesses who testified before the Grand Jury, with regard to the investigation into Mr. Taylor’s death at the Sullivan Correctional Facility.In support of their application, the Defendants’ counsel submits that the Grand Jury minutes are needed “to properly represent the named COs…[and] to prepare their clients’ defense” in the pending civil action. Defendants claim that there is a strong public policy in ensuring that they, and the Department of Corrections and Community Supervision, are not held civilly or financially liable for lawful acts committed while they were acting as New York State correctional officers. Defendants argue that they are entitled to the Grand Jury transcripts of their own testimony under CPLR §190.25(4).Defendants further argue that because the inmate witnesses were housed on E-North, a special unit that housed inmates who were part of the facility’s Assisted Daily Living program and allegedly had “various mental health issues,” they have perception and memory issues and “it is more likely than not that their perception of events will differ from what actually occurred.” Defendants also allege that because these witnesses are prison inmates who were convicted of serious felony crimes, they naturally have a negative relationship with correction officers and their credibility and veracity “is highly suspect.” Defendants claim these inmate witnesses “are motivated to spite correction officers” and therefore they may provide untruthful “revenge” testimony. As such, Defendants contend that the release of the Grand Jury minutes is necessary in order to prepare themselves for their Examinations Before Trial, for trial, and to defend against the potentially untruthful testimony of the inmate witnesses. Defendants argue that such need outweighs the presumption of Grand Jury secrecy.In opposing the Defendants’ application, the People argue that Defendants have failed to establish a compelling and particularized need for the disclosure of the Grand Jury testimony. The People claim that the secrecy surrounding the Grand Jury proceedings is paramount to the very function of the Grand Jury. As such, disclosure of Grand Jury proceedings has a chilling effect on the ability of future grand juries to obtain witnesses. The People contend that Defendants have failed to set forth facts sufficient to overcome the presumption of confidentiality of Grand Jury proceedings.The People further argue that there is nothing in the record to show that the Defendants cannot prepare for their depositions or defend the federal civil action against them unless the Grand Jury minutes are disclosed, and that Defendants failed to show that other discovery devices were insufficient to provide the needed information. The People submit that other discovery devices, including depositions of the Defendants and inmate witnesses, are available under the Federal Rules of Civil Procedure and there is no showing that these discovery devices are inadequate. The People claim that Defendants’ application is premature and if such discovery devices are found to be insufficient, then the Federal Court District Judge may order the disclosure of the Grand Jury minutes for impeachment purposes.The secrecy of grand jury proceedings in Common Law is sacrosanct. Secrecy has been an integral feature of grand jury proceedings since well before the founding of our Nation. The historical justifications for secrecy place their roots in the writings of legal scholars dating from the late Seventeenth Century. One of the most prominent of these scholars, John Somers, described how grand jurors were sworn not to disclose the subjects of the inquiry, the witnesses, any evidence, personal knowledge, knowledge of fellow jurors, investigative plans, or their deliberations. Sommers cited five (5) reasons for secrecy: to prevent the flight of criminals, to determine if a witness was biased, to be free from judicial oversight, to catch lying witnesses, and to permit the full development of evidence for a possible indictment. As to the last factor, the case at bar has not been precluded from other prosecution, for example a §1983 civil rights violation for causing the death of Mr. Taylor.Thus, the secrecy of the Grand Jury is well-respected under the Common Law and is also governed by New York State statute:Grand Jury proceedings are secret, and no grand juror, or other person specified in subdivision three of this section or section 215.70 of the penal law, may, except in the lawful discharge of his duties or upon written order of the court, disclose the nature or substance of any grand jury testimony, evidence, or any decision, result or other matter attending a grand jury proceeding. For the purpose of assisting the grand jury in conducting its investigation, evidence obtained by a grand jury may be independently examined by the district attorney, members of his staff, police officers specifically assigned to the investigation, and such other persons as the court may specifically authorize. Such evidence may not be disclosed to other persons without a court order. Nothing contained herein shall prohibit a witness from disclosing his own testimony. CPL §190.25(4)(a).In the case of In re District Attorney of Suffolk County, 58 NY2d 436, 442 (Ct App 1983), the Trial Court denied a motion to vacate an ex-parte order that disclosed Grand Jury transcripts to the District Attorney for use in a civil proceeding by the county against those who were sought to be indicted as part of the Grand Jury investigation. The District Attorney sought release of the Grand Jury minutes “‘in the interests of justice’ to take ‘the profit out of kickbacks and payoffs and bribery.’” The Court of Appeals, affirming the Appellate Division’s reversal of the Trial Court’s decision, stated, “it is at once clear that the rule of secrecy applies to either one who gives evidence or to one concerning whom evidence is given…. Secrecy has been an integral feature of Grand Jury proceedings since well before the founding of our Nation” Id., at 443, (citations omitted).While the secrecy of Grand Jury proceedings and minutes is not absolute (See People v. DiNapoli, 27 NY2d 229 [Ct App 1970]), there is a presumption of confidentiality. Matter of James v. Donovan, 130 AD3d 1032 (2d Dept. 2015). A party seeking disclosure of Grand Jury minutes, whether the full transcript or a portion thereof, must demonstrate a compelling and particularized need for them. In re District Attorney, supra, at 444. Confidentiality of Grand Jury proceedings serves the important objectives, as relevant here, of ensuring the independence of Grand Juries and encouraging unfettered disclosure of information by witnesses summoned to testify, so disclosure of same is the exception and not the rule. Id.If, and only if, such a compelling and particularized need is shown, the Court must then balance various factors and determine whether, in its discretion, disclosure is appropriate. People v. Fetcho, 91 NY2d 765 (Ct App 1998). See also, DiNapoli, supra; Nelson v. Mollen, 175 AD2d 518 (3d Dept 1991); Zinna v. Rensselaer County Grand Jury, 63 AD2d 800 (3d Dept 1978); Ruggiero v. Fahey, 103 AD2d 65 (2d Dept 1984). In other words, “without the initial showing of a compelling and particularized need, the question of discretion need not be reached, for then there simply would be no policies to balance….” In re District Attorney, supra, at 444.“Although possession of the Grand Jury minutes may be another tool for cross-examination, such a purpose does not indicate a compelling or particularized need sufficient to dispose of the secrecy that attaches to proceedings before the Grand Jury…Moreover, the chilling effect upon the Grand Jury’s ability to investigate matters based upon complete and accurate testimony cannot be overstated if it becomes commonplace for a witness’s testimony to be divulged without a compelling or particularized reason.” Baynes v. Ruderfer, 234 F Supp 3d 574 (SDNY 2017), citing In re Application of Harold Baynes, No. 3224/2016 (NY Sup Sept. 14, 2016).“Prior Grand Jury testimony may properly be used in a subsequent civil trial for impeachment, as well as for refreshing a witness’s recollection or leading a hostile witness…the foregoing purposes are insufficient to support a request for wholesale pretrial disclosure of Grand Jury Minutes.” Nelson, supra (citations omitted). In Rechtschaffer v. City of New York, 2009 WL 773351 (SDNY 2009), the Court opined “[i]n this case, the plaintiffs have failed to specify precisely why they need the prior testimony for impeachment or refreshing recollection. They have not shown that any officer’s memory is faulty. Nor have they demonstrated that any witnesses’ current statements are in conflict with his grand jury testimony.”In the case at bar, Defendants make speculative and conclusory allegations that the inmate witnesses have mental illnesses that make their testimony “highly suspect” and that because of the tenuous nature of a correctional officer/inmate relationship, the inmate witnesses are likely to seek revenge against the Defendants in this case by falsely testifying against them. No evidence, however, is presented to show either how or why the inmate witnesses’ memories or testimony should be cautiously considered, or that the witness inmates have already made statements that are not aligned with their prior statements or testimony, or that they are hostile witnesses or mentally ill. This mere speculation is not sufficient to show a compelling or particularized need for disclosure of the Grand Jury minutes in this case. If such possibly false testimony becomes an issue, there is nothing barring the Defendants from requesting release of the Grand Jury testimony of that particular witness at that time or, at a minimum, when a trial in the Federal civil action is scheduled.Defendants fail to allege why the information sought from the Grand Jury testimony is not available through discovery and deposing the Defendants and inmate witnesses. See, Lustberg v. Curry, 235 AD2d 615 (3d Dept 1997). New York CPLR Article 31 and the Federal Rules of Civil Procedure provide for discovery in civil matters in federal court. As noted by the People, Defendants may engage in discovery — and in fact Defense Counsel has stated that depositions of the Defendants are Court-ordered and already underway — or serve specific discovery demands in an attempt to obtain the reports and documents, reports, recordings, or other materials in connection with the criminal case. It appears that Defendants have many avenues of discovery and examination — some of which have yet to be implemented — without having to intrude on the sanctity of the secrecy of the Grand Jury proceedings in the criminal matter involving the death of Mr. Taylor at this time.While the Court appreciates Defendants’ contentions that they do not object to the release of their own testimony, and the testimony of the Correction Officers is from sworn peace officers and not private citizens, Defendants have nevertheless “failed to satisfy the threshold requirement of showing a compelling and particularized need for the grand Jury testimony requested.” Ruggiero, supra. As set forth in Rechtschaffer, supra, “even though the Co-Defendant has consented to the release of his own testimony, thus reducing concerns about shielding his identity, the privacy interests of anyone else mentioned in his testimony remain at stake.” Thus, under both Ruggiero, supra, and Rechtscaffer, supra, consent is not determinative of the issue at bar.After a thorough review of the submissions and record, this Court finds that Defendants have failed to meet the threshold requirement as set forth in Fetcho, supra, Ruggiero, supra, and its progeny of demonstrating that there is a compelling or particularized need for the disclosure of the Grand Jury minutes they seek.The Court has considered the remainder of the Defendants’ arguments and finds them to be without merit.Based on the foregoing, it isORDERED that the within motion by Defendants for release of Grand Jury minutes is denied, without prejudice.This shall constitute the Decision and Order of this Court.DATED: June 22, 2018Monticello, New York
