Opinion
02-08-2017
In the Matter of Earnest PERRYMAN, appellant, v. DeStefano GENNARO, et al., respondents.
Law Offices of K.C. Okoli, P.C., New York, NY, for appellant. Carnell T. Foskey, County Attorney, Mineola, NY (Andrew R. Scott of counsel), for respondents.
Law Offices of K.C. Okoli, P.C., New York, NY, for appellant.
Carnell T. Foskey, County Attorney, Mineola, NY (Andrew R. Scott of counsel), for respondents.
MARK C. DILLON, J.P., ROBERT J. MILLER, SYLVIA O. HINDS–RADIX, and FRANCESCA E. CONNOLLY, JJ.
In a proceeding to unseal grand jury minutes based on CPL 190.25(4)(a), the petitioner appeals from an order of the Supreme Court, Nassau County (Peck, J.), entered August 14, 2015, which, in effect, denied the petition.
ORDERED that the order is affirmed, with costs.
During the evening of January 1, 2010, two teenagers allegedly were robbed at gunpoint in Lynbrook. An investigation was conducted by the Nassau County Police Department and on March 24, 2010, the petitioner was indicted on several counts of robbery and grand larceny. On September 13, 2010, all of the charges against the petitioner were dismissed. In 2012, the petitioner commenced a civil action in the Supreme Court, Queens County, against, among others, two Nassau County Police Department detectives and the County of Nassau, alleging, inter alia, false arrest and malicious prosecution. In 2015, the petitioner commenced this proceeding in the Supreme Court, Nassau County, to unseal the grand jury minutes relating to his indictment.
Pursuant to CPL 190.25(4)(a), grand jury proceedings are secret. As such, "[a] ‘strong presumption of confidentiality’ applies to Grand Jury proceedings" (Roberson v. City of New York, 163 A.D.2d 291, 291, 557 N.Y.S.2d 431, quoting Ruggiero v. Fahey, 103 A.D.2d 65, 70, 478 N.Y.S.2d 337 ; see People v. Fetcho, 91 N.Y.2d 765, 769, 676 N.Y.S.2d 106, 698 N.E.2d 935 ). However, the rule of secrecy is not absolute (see People v. Fetcho, 91 N.Y.2d at 769, 676 N.Y.S.2d 106, 698 N.E.2d 935 ; Matter of James v. Donovan, 130 A.D.3d 1032, 1036, 14 N.Y.S.3d 435 ) and the presumption can be overcome only by a demonstration of " ‘a compelling and particularized need for access' to the Grand Jury material" (People v. Fetcho, 91 N.Y.2d at 769, 676 N.Y.S.2d 106, 698 N.E.2d 935, quoting Matter of District Attorney of Suffolk County, 58 N.Y.2d 436, 444, 461 N.Y.S.2d 773, 448 N.E.2d 440 ). "Only if the compelling and particularized need threshold is met must the court then balance various factors to determine whether the public interest in the secrecy of the grand jury is outweighed by the public interest in disclosure" (Matter of James v. Donovan, 130 A.D.3d at 1037, 14 N.Y.S.3d 435 ; see
People v. Robinson, 98 N.Y.2d 755, 751 N.Y.S.2d 843, 781 N.E.2d 908 ; People v. Fetcho, 91 N.Y.2d at 769, 676 N.Y.S.2d 106, 698 N.E.2d 935 ). Here, the petitioner's speculative assertions in support of the petition failed to set forth the compelling and particularized need necessary to overcome the presumption of confidentiality (see People v. Fetcho, 91 N.Y.2d 765, 676 N.Y.S.2d 106, 698 N.E.2d 935 ; Matter of District Attorney of Suffolk County, 58 N.Y.2d 436, 461 N.Y.S.2d 773, 448 N.E.2d 440 ; Matter of James v. Donovan, 130 A.D.3d 1032, 14 N.Y.S.3d 435 ; Yushavayev v. City of New York, 234 A.D.2d 289, 651 N.Y.S.2d 309 ; Matter of Hynes [Patrolmen's Benevolent Assn.], 179 A.D.2d 760, 579 N.Y.S.2d 117 ; Roberson v. City of New York, 163 A.D.2d 291, 557 N.Y.S.2d 431 ).
The parties' remaining contentions either are without merit or have been rendered academic by our determination that the Supreme Court properly, in effect, denied the petition after finding that the petitioner failed to meet his threshold burden.