United States District Court, E.D. New York
MEMORANDUM OF DECISION & ORDER
R. BROWN, United States Magistrate Judge
the undersigned is an application by plaintiff seeking the
unsealing of grand jury minutes relating to the prosecution
underlying this civil action, which criminal prosecution was
dismissed based upon a finding by a state court judge that
the County failed to present sufficient evidence to the grand
jury. After plaintiff raised this issue, the undersigned
directed plaintiff to seek relief in the state court that had
custody of the relevant grand jury minutes. Upon
consideration, the state judge returned the matter to the
undersigned, suggesting that, following an in camera
review of the subject transcripts, this Court would be in the
best position to make a determination as to the propriety of
releasing such minutes in the context of this action.
making this application, plaintiff faces a substantial burden
of demonstrating a particularized need for the record of the
grand jury proceedings. For the reasons set forth herein, she
has failed to meet this burden, and the application is
matter was commenced on July 1, 2015 by the filing of a
complaint alleging, inter alia, claims of
malicious prosecution. DE 1. Defendants filed an answer on
August 10, 2015. DE 9. On October 7, 2015, the undersigned
held an initial conference at which the plaintiff was
directed to file an application with the state court for
release of the relevant records. See Minute Entry
dated October 7, 2015. On August 4, 2016, the Honorable
Martin I. Efman of the Suffolk County Supreme Court issued a
decision and order stating, in relevant part, as follows:
Under Indictment No. 01029B-2013, defendant Rita Dave was
charged with eleven felonies, the most serious charges being
seven counts of Grand Larceny in the Second Degree, PL§
155.40(1). On September 9, 2013, the Court issued an Order
denying defendant's motion to reduce or dismiss based
upon a review of the Grand Jury minutes. Defendant
subsequently filed an omnibus motion. On December 9, 2014,
the Court rescinded its previous Order. Pursuant to CPL
§210.20(1)(b) and §210.20(4), all counts of this
indictment pertaining to this defendant were dismissed with
leave to the People to submit the matter to another Grand
Jury. The basis for the Court's 2014 decision was that
the minutes of the Grand Jury presentation were not legally
sufficient to support the indictment.
* * *
With respect to defendant's application for release of
the Grand Jury Minutes, the People are opposed to the general
unsealing and release of the Grand Jury transcripts but
consent to the alternative relief of unsealing for the
limited purpose of transferring the transcripts to the
presiding Justice in the Federal civil action. The Court
determines that defendant has not demonstrated a compelling
and particularized need for general access to the Grand Jury
transcripts and defendant has shown no public interest,
In the Matter of District Attorney of Suffolk
County, 58 N.Y.2d 436 (1983); People v.
DiNapoli, 27 N.Y.2d 229, 238 (1970); Albert v.
Zahner's Sales Co., 51 A.D.2d 541 (2nd Dept. 1976).
Although this Court has discretion to disclose the Grand Jury
minutes, it determines that the extent to which disclosure of
the Grand Jury minutes should be allowed, and the timing of
that disclosure, is best determined by the Federal District
Court following in camera inspection. That Court is
in the best position to identify which evidence should be
disclosed in the context of the Federal action.
DE 15-1. Following further efforts to resolve this matter
without resort to costly motion practice, see Minute
Order dated Sept. 20, 2016, DE 17; Electronic Order dated
October 11, 2016, DE 18, those efforts failed to come to
fruition. DE 19. On January 5, 2017, plaintiff filed the
instant motion, which was fully briefed on January 27, 2017.
DE 28. This opinion follows.
complaint in this action alleges, in relevant part, as
Rita Dave, began the practice of law in 1992, ran her own
practice as a general practitioner, and received various
awards for her pro bono efforts. Compl. ¶¶
13-15, DE 1. As part of her practice, she represented clients
in hundreds of real estate transactions. Id. at
¶ 18. One such client, Dr. Kamal Zafar, purportedly
without Dave's knowledge or involvement, became entangled
in a massive mortgage fraud scheme. Id. at
¶¶19-53. An investigation into Zafar's
activities led to plaintiff's arrest and indictment on
eleven criminal counts. Id. at ¶¶ 54-57.
further alleges that the relevant investigators, including
defendant Shewark, though aware of her purported ignorance of
the scheme, misled the District Attorney's Office through
false statements and reports and the suppression of
exculpatory evidence, into believing that Dave bore
culpability in the scheme. Id. at ¶¶
58-63. As part of that recitation, the complaint catalogs
matters about which defendants purportedly made
misrepresentations to the District Attorney's Office.
Id. While the complaint makes no specific
allegations concerning misstatements before the grand jury,
plaintiff alleges more generally that defendants
“misrepresented and falsified evidence throughout all
phases of the criminal proceedings.” Id. at
¶ 93; cf. id. at ¶ 94
(referencing “the perjurious and fraudulent conduct of
defendants”). The complaint further describes the
December 9, 2014 dismissal of the indictment on the grounds
that the evidence presented to the grand jury was not legally
sufficient to support the counts of the indictment charged as
against her. Id. at ¶¶ 65-70, Attachment
A. The state court's order is discussed in further detail
on these facts, the complaint purports to set forth claims,
as relevant herein, for malicious prosecution under 42 U.S.C.
§1983 and pursuant to state law.
Efman's decision dismissing the indictment is highly
probative to the matters before the Court on this motion.
See generally DE 25-2. In that decision, Justice
Efman described findings ...