This case is not published in a printed volume and its disposition appears in a table in the reporter.
Hon. R. Michael
Tantillo, Special Seneca County District Attorney, Counsel for the People.
Napier Napier, Esqs. (Robert A. Napier, Esq., of Counsel), Counsel for the Defendant.
W. Patrick Falvey, J.
A Special Grand Jury was empaneled on January 3, 2007 in order to investigate allegations of criminal conduct and/or other misconduct, non-feasance, or neglect in public office in Seneca County. The Grand Jury met on various dates beginning January 3, 2007 and ending August 22, 2007, resulting in various Indictments and grand jury reports.
Defendant at bar, Leo T. Connolly, Seneca County Sheriff at the time of the Indictment, was charged by the Special Grand Jury with one Count of Offering a False Instrument for Filing in the First Degree, a class E Felony, in violation of 175.35 of the Penal Law; one Count of Falsifying Business Records in the Second Degree, a class A misdemeanor, in violation of 175.05(1); three Counts of Official Misconduct, a class A misdemeanor, in violation of 195.00(1); one Count of Rewarding Official Misconduct in the Second Degree, a class E Felony, in violation of 200.20 of the Penal Law; and one Count of Perjury in the First Degree, a class D Felony, in violation of 210.15 of the Penal Law.
Defendant, now moves for assorted forms of relief as requested in the defendant's Notice of Omnibus Motion dated November 19, 2007, accompanying affidavit and other supporting documents.
Upon argument of his Omnibus Motions on November 29, 2007, certain branches and elements therein were decided and determined upon said argument and incorporated into an order.
The Court also reserved decision, at the conclusion of oral arguments on the following issues:
1. The Grand Jury proceedings failed to conform to the requirements of CPL Article 190 pursuant to CPL sections 210.20(1)(c) and 210.35;
2. Inspection of the Grand Jury minutes and, upon such inspection, for a dismissal of the indictment on the grounds that it was defective and/or the evidence before the Grand Jury was not legally sufficient to establish the offense(s) or any lesser offenses as well as other stated grounds. CPL sections 210.20(1)(a) and (b) and 210.30; or in the alternative reduction pursuant to CPL section 210.20(1-a); and
3. Dismissal of Counts six and seven of the Indictment.
Based on the defendant's motion papers, the District Attorney's responding affirmation dated December 10, 2007 ; the Grand Jury Minutes; vote/payroll/attendance records; grand jury booklets; the Court's instruction to the Grand Jury, the arguments had; all subsequent submissions by counsel and the proceedings herein the Court decides as follows:
THE GRAND JURY PROCEEDINGS AS FAILING TO CONFORM TO CPL ARTICLE 190; MOTION TO INSPECT AND DISMISS
The defendant requests that the Court disclose the minutes of the Grand Jury proceedings. However, maintaining the secrecy or confidentiality of grand jury minutes is a matter of paramount public interest. Ruggiero v. Fahey, 103 A.D.2d 65. The secrecy is jealously guarded because confidentiality of its proceedings is necessary to ensure its continued effectiveness. Matter of Grand Jury, New York County, 125 Misc.2d 918.
However, in the discretion of the Trial Court, disclosure may be directed, when after balancing of the public interest in disclosure against one favoring secrecy, the former outweighs the latter. Matter of District Attorney of Suffolk County, 58 N.Y.2d 436; Application of Fojp Service Corp., 119 Misc.2d 287.
In order for the Court to release the grand jury minutes to defense counsel, counsel must "first establish a compelling and particularized need for them". People v. Shakiya Robinson and Bruce Jamsen, 98 N.Y.2d 755. "Only then must the court assess in its discretion, whether disclosure is appropriate under the circumstances". People v. Fetcher, 91 N.Y.2d 765. It is a two-step process that conforms to the due process requirements of the Constitution. People v. Ramos, 85 N.Y.2d 678.
Based on a review of the Grand Jury Proceedings the Court determines that it does not need counsel's assistance by turning over said minutes in order to properly rule on this issue. The Court finds no compelling and particularized need for disclosure, persuasive enough to overcome the strong presumption in favor of secrecy. Fojp, supra . Furthermore, the defendant was not able to meet his burden to establish a compelling need for the minutes.
The defendant also moves pursuant to CPL section 210.20 (1)(c) that the grand jury proceeding was defective within the meaning of CPL section 210.35.
An Indictment regular on its face must be presumed to have been properly returned by the Grand Jury. People v. Smith, 128 N.Y.S.2d 90, aff'd 283 A.D. 775. Furthermore, Grand Jury proceedings carry a presumption of regularity and to overcome that presumption there must be a showing by the defendant of a particularized need or gross and prejudicial irregularity in the proceedings or some other similarly compelling reason. People v. Lewis, 98 A.D.2d 853.
The Court finds no evidence to indicate that the Grand Jury was illegally constituted as contemplated by CPL section 210.35(1).
An Indictment imparts absolute verity until properly impeached, and until there is satisfactory proof to the contrary, it is presumptively regular, not only in its basis upon sufficient legal evidence, but also in its foundation upon lawful proceedings by the grand jury, including due concurrence in indictment by the requisite number of grand jurors. People vs. Brinkman, 309 N.Y. 974, 975.
The presumption is in favor of the validity of an indictment, which was presented by a grand jury, 22 of whose members were present when the case was presented. People v. Blair,17 Misc.2d 265. And the Grand Jury is privileged to return an indictment so long as at least 12 of the Grand Jurors who voted to indict heard all the ...