Opinion
752 KA 18–02008
08-22-2019
In the MATTER OF MAY/JUNE 2018 ONEIDA COUNTY GRAND JURY REPORT. John Doe #1, A Public Servant, John Doe #2, A Public Servant, and John Doe #3, A Public Servant, Appellants; v. The People of the State of New York, Respondent. (Appeal No. 1.)
DAVID A. LONGERETTA, UTICA, FOR APPELLANT JOHN DOE #1, A PUBLIC SERVANT. JOHN G. LEONARD, ROME, FOR APPELLANT JOHN DOE #2, A PUBLIC SERVANT. REBECCA L. WITTMAN, UTICA, FOR APPELLANT JOHN DOE #3, A PUBLIC SERVANT. SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF COUNSEL), FOR RESPONDENT.
DAVID A. LONGERETTA, UTICA, FOR APPELLANT JOHN DOE #1, A PUBLIC SERVANT.
JOHN G. LEONARD, ROME, FOR APPELLANT JOHN DOE #2, A PUBLIC SERVANT.
REBECCA L. WITTMAN, UTICA, FOR APPELLANT JOHN DOE #3, A PUBLIC SERVANT.
SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, CARNI, NEMOYER, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order insofar as appealed from is unanimously reversed on the law and the three grand jury reports that accused each appellant respectively of misconduct, nonfeasance, or neglect are sealed.
Memorandum: We agree with appellants, three public officials in Oneida County, that County Court erred in directing the public filing of three grand jury reports that accused each appellant respectively of misconduct, nonfeasance, or neglect in office (see generally CPL 190.85[1][a] ). We note that the court also accepted a fourth report that is not challenged on appeal.
"It is ‘incumbent upon the prosecutor to instruct the [g]rand [j]ury regarding the duties and responsibilities of the public servant ... target[ed by] the probe’ "( Matter of Second Report of Seneca County Special Grand Jury of Jan. 2007 , 59 A.D.3d 1079, 1080, 872 N.Y.S.2d 809 [4th Dept. 2009] ; see Morgenthau v. Cuttita , 233 A.D.2d 111, 113, 649 N.Y.S.2d 420 [1st Dept. 1996], lv denied 89 N.Y.2d 1042, 659 N.Y.S.2d 873, 681 N.E.2d 1320 [1997] ; Matter of October 1989 Grand Jury of Supreme Ct. of Ulster County , 168 A.D.2d 737, 738, 563 N.Y.S.2d 889 [3d Dept. 1990] ). "Without a charge as to the substantive aspects of the official's duties, it [is] not only impossible for the [g]rand [j]ury to determine that the public servant was guilty of misconduct, nonfeasance or neglect, but impermissible as well, for it allow[s] the [g]rand [j]ury to simply substitute its judgment for that of the public servant" ( Matter of June 1982 Grand Jury of Supreme Ct. of Rensselaer County , 98 A.D.2d 284, 285, 471 N.Y.S.2d 378 [3d Dept. 1983] ; see Second Report of Seneca County Special Grand Jury of Jan. 2007 , 59 A.D.3d at 1080, 872 N.Y.S.2d 809 ). Here, the prosecutor failed to provide the grand jury with any instructions regarding appellants' substantive duties in office. We therefore reverse the order insofar as appealed from and seal the three reports at issue on appeal (see Second Report of Seneca County Special Grand Jury of Jan. 2007 , 59 A.D.3d at 1079–1080, 872 N.Y.S.2d 809 ; June 1982 Grand Jury of Supreme Ct. of Rensselaer County , 98 A.D.2d at 285–286, 471 N.Y.S.2d 378 ). Appellants' remaining contentions are academic in light of our determination.