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In re Third Report of Seneca County Special Grand Jury of January 2007

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


February 11, 2009

IN THE MATTER OF THE THIRD REPORT OF THE SENECA COUNTY SPECIAL GRAND JURY OF JANUARY 2007.
SOLE NAMED PUBLIC OFFICIAL, APPELLANT;
v.
R. MICHAEL TANTILLO, SPECIAL DISTRICT ATTORNEY OF SENECA COUNTY, RESPONDENT.

Appeal from an order of the Seneca County Court (Dennis F. Bender, J.), dated March 6, 2008. The order accepted Report Number 3 of the January 2007 Seneca County Special Grand Jury and directed the filing of the report as a public record.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

PRESENT: SMITH, J.P., CENTRA, FAHEY, PERADOTTO, AND PINE, JJ.

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law and the report is sealed.

Memorandum

This is an appeal by a public official of Seneca County from an order directing that a grand jury report be filed as a public record. As we determined in our decision in Matter of Second Report of Seneca County Special Grand Jury of January 2007 (___ AD3d ___ [Feb. 6, 2009]), County Court erred in ordering the filing because the instructions of the special prosecutor concerning the public official's duties were vague and inadequate, and thus the grand jury was improperly "permitted to substitute its judgment for that of the public official[]" without any indication that the public official failed to act in accordance with the prescribed duties of the position (Matter of Reports of Grand Jury of County of Montgomery Impaneled on Apr. 30, 1979, 100 AD2d 692, 692; see Matter of June 1982 Grand Jury of Supreme Ct. of Rensselaer County, 98 AD2d 284, 285).

20090211

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