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ANONYMOUS v. BUFFALO COURIER EXPRESS (10/02/69)

SUPREME COURT OF NEW YORK, ERIE COUNTY 1969.NY.42964 <http://www.versuslaw.com>; 304 N.Y.S.2d 112; 60 Misc. 2d 880 October 2, 1969 ANONYMOUS, PLAINTIFF,v.BUFFALO COURIER EXPRESS, INC., ET AL., DEFENDANTS Cunningham, Cole, Sorrentino & Cavanaugh (William J. Cunningham, Jr., of counsel), for plaintiff. Raichle, Banning, Weiss & Halpern (Frank G. Raichle of counsel), for Buffalo Evening News, Inc., defendant. Falk, Siemer, Glick, Tuppen & Maloney (Richard C. Marcus of counsel), for Buffalo Courier Express, Inc., defendant. Joseph P. Kuszynski, J. Author: Kuszynski


Joseph P. Kuszynski, J.

Author: Kuszynski

 The above-entitled matter came on to be heard as the result of an order to show cause secured by the attorney for a plaintiff whose identity is not known to this court. This unknown party requests an order enjoining the defendants from publishing, disseminating and distributing in any form any information concerning the second report of the November, 1968 Grand Jury of Erie County, until the argument of an appeal by the plaintiff now pending in the Appellate Division, Fourth Department from the order of Erie County Court accepting the said report. The argument in support of plaintiff's application is based upon the provisions of section 253-a (subd. 1, par. [a]; subd. [3], par. [a]) and section 517-a of the New York Code of Criminal Procedure. The pertinent provisions of section 253-a are (subd. 1, par. [a]; subd. [3], par. [a]) which read as follows:

"1. The grand jury, upon concurrence of twelve or more of its members, may submit to the court for which it was impanelled, a report:

"(a) concerning non-criminal misconduct, nonfeasance or neglect in office by a public officer or employee as the basis for a recommendation of removal or disciplinary action; * * *

"3. (a) An order accepting a report pursuant to paragraph (a) of subdivision one of this section and the report shall be sealed by the court and shall not be filed as a public record, subject to subpoena or otherwise made public (i) until at least thirty-one days after a copy of the order and report are served upon each public officer or employee named therein or (ii) if an appeal is taken pursuant to section five hundred seventeen-a of this code, until the affirmance of the order accepting the report, reversal of the order sealing the report or dismissal of the appeal of the named public officer or employee by the appellate division of the supreme court, whichever occurs later."

The pertinent provisions of section 517-a are subdivisions 1, 2 and 6 which read as follows:

"1. When a court makes an order accepting a report of a grand jury pursuant to paragraph (a) of subdivision one of section two hundred fifty-three-a of this code, any public officer or employee named therein may, within ten days after service upon him of a copy of the order and report, appeal the order to the appellate division of the supreme court of the department in which the order was made, by filing in duplicate a notice of appeal from the order with the clerk of the court in which the order was made and by serving a copy of such notice of appeal upon the district attorney or other attorney designated by the grand jury.

"2. When a court makes an order sealing a report of a grand jury pursuant to subdivision five of section two hundred fifty-three-a of this code, the district attorney or other attorney designated by the grand jury may, within ten days after service of a copy of the order and report upon each public officer or employee named in the report, appeal the order to the appellate division of the supreme court of the department in which the order was made, by filing in duplicate a notice of appeal from the order with the clerk of the court in which the order was made and by serving a copy of such notice of appeal upon each such public officer or employee. Notwithstanding any contrary provision of section two hundred fifty-three-a of this code, a true copy of the report of the grand jury shall be served, together with such notice of appeal, upon each such public officer or employee.

"6. The record and all other presentations on such an appeal shall remain sealed, except that upon affirmance of the order accepting the report, reversal of the order sealing the report or dismissal of the appeal of the named public officer or employee by the appellate division, the report of the grand jury, with the appendix, if any, shall be filed as a public record as provided in subdivision three of section two hundred fifty-three-a of this code."

A perusal of these sections makes it clear that the Legislature intended that the contents of the Grand Jury report should remain sealed and not become a public record until after action of the Appellate Division upon the appeal. The attorney for the plaintiff argues that the defendants herein have published certain articles which in fact contain some of the contents of the Grand Jury report in question. Plaintiff, through his attorney, alleges that irreparable harm will be inflicted upon him should the report of the Grand Jury be released prior to the action of the Appellate Division and thereafter the plaintiff is successful in his argument that he has a good and meritorious defense which would result in the sealing forever of the Grand Jury report.

The plaintiff alleges further that the only relief available to prevent harm to himself is an injunction preventing publication by the defendants of the contents of the Grand Jury report until the Appellate Division has acted on the pending appeal.

The defendants oppose the granting of the injunction on various grounds, including the following: that this court has no jurisdiction because the plaintiff is unnamed; and that the affidavit in support of the application is made by counsel for plaintiff rather than the plaintiff personally and does not state why the affidavit is made by counsel rather than by the plaintiff himself nor does such affidavit state the sources of counsel's information nor the grounds of his belief.

Counsel for one of the defendants argues that the sections of the Code of Criminal Procedure on which the plaintiff relies contain no sanctions against publication of the Grand Jury report and that his client, namely the Buffalo Evening News, has not published any of the contents of the Grand Jury report but has merely editorialized to the effect that the report of the Grand Jury should be made public as soon as possible. Finally, counsel for the same defendant argues that the freedom of the press to publish could not be enjoined prior to publication. In support of this contention, the New York State case of Stuart v. Press Pub. Co. (83 App. Div. 467) and the United States Supreme Court case of Near v. Minnesota (283 U.S. 697) are cited.

The defendant, Buffalo Courier Express, argues that there are no legislative proscriptions against fair and true reporting by a newspaper concerning newspaper disclosure of Grand Jury proceedings and relies on the case of Keogh v. New York Herald Tribune (51 Misc. 2d 888, affd. 28 A.D.2d 1209). This defendant also argues that there can be no prior restraint upon the right of the press to publish, citing also the Near case referred to above, with respect to its argument based on the United States Constitution and the case of ...


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