Opinion
12294N Index No. 23308/17 Case No. 2020-02104
11-05-2020
Ivan CRESPO, Plaintiff, v. The NEW YORK CITY HOUSING AUTHORITY, Defendant–Appellant. Bronx County District Attorney, Nonparty-Respondent.
Herzfeld & Rubin, P.C., New York (Linda M. Brown of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Daniel J. Young of counsel), for respondent.
Herzfeld & Rubin, P.C., New York (Linda M. Brown of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Daniel J. Young of counsel), for respondent.
Acosta, P.J., Singh, Kennedy, Shulman, JJ.
Order, Supreme Court, Bronx County (Llinet M. Rosado, J.), entered June 28, 2019, which denied defendant New York City Housing Authority's (N.Y.CHA) motion to unseal the grand jury testimony of plaintiff in a prior criminal matter, unanimously affirmed, without costs.
In this action where plaintiff alleges that he was shot by intruders inside of a NYCHA building, NYCHA moved to unseal the record of plaintiff's prior grand jury testimony related to the shooting. The motion court properly denied NYCHA's motion since NYCHA failed to demonstrate "a compelling and particularized need" for this testimony strong enough to overcome the presumption of confidentiality in grand jury proceedings ( Matter of District Attorney of Suffolk County, 58 N.Y.2d 436, 444, 461 N.Y.S.2d 773, 448 N.E.2d 440 [1983] ; see Melendez v. New York, 109 A.D.2d 13, 18–20, 489 N.Y.S.2d 741 [1st Dept. 1985] ). NYCHA did not establish that sources other than plaintiff's prior grand jury testimony were inadequate to provide the information necessary to prove that the shooter was not an intruder, or to ascertain the other relevant facts and circumstances surrounding the shooting (see District Attorney of Suffolk County, 58 N.Y.2d at 445–446, 461 N.Y.S.2d 773, 448 N.E.2d 440 ; Williams v. City of Rochester, 151 A.D.3d 1698, 1699, 55 N.Y.S.3d 843 [4th Dept. 2017] lv denied 30 N.Y.3d 904, 2017 WL 4782559 [2017] ; Matter of Lustberg v. Curry, 235 A.D.2d 615, 616, 652 N.Y.S.2d 130 [3d Dept. 1997] ). While NYCHA seeks this testimony for impeachment purposes during cross-examination, it requested that plaintiff's entire grand jury testimony be disclosed directly to it, and prior to trial (cf. Matter of Nelson v. Mollen, 175 A.D.2d 518, 520, 573 N.Y.S.2d 99 [3d Dept. 1991] ; Martinez v. CPC Intl., 88 A.D.2d 656, 450 N.Y.S.2d 528 [2d Dept. 1982] ). NYCHA's bare claim that the testimony is needed for impeaching the witness on cross-examination is insufficient to establish a compelling need (see Richburg v. Morgenthau, 184 A.D.2d 316, 584 N.Y.S.2d 830 [1st Dept. 1992] ).
Since NYCHA failed to establish a compelling and particularized need for this testimony, the court was not required to make a discretionary determination whether the public interest in the secrecy of grand jury proceedings outweighed the public interest in disclosure in this case (see Matter of James v. Donovan, 130 A.D.3d 1032, 1037, 14 N.Y.S.3d 435 [2d Dept. 2015], lv denied 26 N.Y.3d 1048, 22 N.Y.S.3d 410, 43 N.E.3d 767 [2015] ; Melendez at 18–19, 489 N.Y.S.2d 741 ).