Opinion
December 12, 1980
Appeal from the Chautauqua Supreme Court.
Present — Dillon, P.J., Simons, Hancock, Jr., Callahan and Moule, JJ.
Order unanimously reversed, and report sealed. Memorandum: This is an appeal from an order which approved the report of the March 1979 Chautauqua County Grand Jury. It was convened to investigate allegations of illegal eavesdropping by Chautauqua County police officers during drug investigations conducted in 1970 and 1971. The Grand Jury heard testimony and, at the conclusion of its investigation, issued a report which found two named individuals guilty of misconduct and nonfeasance, and named another individual guilty of nonfeasance and neglect, and recommended disciplinary action be taken against the two. The court found the report to be in full compliance with CPL 190.85 and ordered it approved. A review of the Grand Jury minutes reveals that the report is the result of improper instructions given by the District Attorney. After explaining that there must be both legally sufficient evidence and probable cause to support an indictment, the District Attorney stated that the evidence required for a report does not have to meet the higher standards of proof as that required for an indictment. Further references were made to a report, which implied that it was an inferior alternative which could be issued where the evidence failed to rise to the level sufficient to support an indictment. Such erroneous instructions on the burden of proof failed to provide the Grand Jury with sufficient information to enable it to determine intelligently the issues before it (People v. Calbud, Inc., 49 N.Y.2d 389). The responsibility of the court in regard to reports is the same as in regard to indictments: to assure that improper instructions do not impair the Grand Jury's integrity or create a possibility of prejudice to the persons involved (see People v. Smith, 72 A.D.2d 940; People v. Banner, 59 A.D.2d 621; CPL 210.35, subd 5).