Jaffe v. Scheinman , 413 N.Y.S.2d 502 ( 1979 )

OPINION OF THE COURT

Kane, J.

Michael John Kazmarick was indicted by a Grand Jury of Sullivan County on April 24, 1978 and charged with five counts of murder in the second degree (Penal Law, § 125.25, subd 2) for causing the death of five persons in a fire on April 9, 1978 at Monticello, New York. In the course of a pretrial omnibus motion on his behalf, respondent Legal Aid Society sought an order granting inspection of the minutes of the Grand Jury and dismissal of the indictment (CPL 210.30). The court examined the minutes and then issued an order directing petitioner to furnish a copy of those minutes to respondent Legal Aid Society "in order that defendant can better conclude the preparation of memoranda for use by this court on the pending motion.” Implementation of this order was stayed to allow petitioner to reargue the propriety of such an order, following which the court reaffirmed its prior decision and this proceeding ensued. In its decision and order, the trial court relied heavily on Matter of Proskin v County Ct. of Albany (30 NY2d 15) and CPL 190.25 (subd 4) as authority for its determination. Respondent Legal Aid Society also adopts this argument. Thus we are called upon to determine (1) whether the trial court exceeded its authority in directing disclosure of the Grand Jury minutes to defense counsel, and (2) whether prohibition is an available remedy under these circumstances.

A review of the history of the motion to inspect minutes of a Grand Jury teaches us that since its earliest days the only grounds upon which such a motion can be made is to enable the defendant to obtain a dismissal of the indictment. It was never intended to be a vehicle to help a defendant prepare for trial. There being no statutory grounds for such a motion prior to the effective date of the CPL, the procedure that had developed was based upon the inherent powers of the court to dismiss indictments founded upon insufficient, illegal or incompetent testimony (People v Teetsel, 12 Misc 2d 835; People v Kresel, 141 Misc 593; People v Dunbar Contr. Co., 82 Misc 174). Since during this time the motion was addressed to the discretion of the court, substantive determinations as well as procedures were varied and flexible. Ultimately, the Court of Appeals in People v Howell (3 NY2d 672) clearly defined the purpose and limits of the court’s discretion upon such a motion and put to rest any confusion or disagreement as to the purpose of the motion and the procedure to be followed. The CPL has followed the Howell ruling and statutorily defined and limited the court’s power upon a motion to dismiss and inspect minutes of the Grand Jury (CPL 210.30). The right to examine the minutes of the Grand Jury is vested solely in the court in its determination of the motion to dismiss the indictment. It is vested with the discretion to examine those minutes or not, but that is the limit of its discretion and it has no authority to provide those minutes to the defendant prior to trial (CPL 210.30, subds 3, 4; Denzer, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11 A, CPL 210.30, p 357; People v Utley, 77 Misc 2d 86; People v Hvizd, 70 Misc 2d 654; People v Buckman, 70 Misc 2d 220). The other statutory provision relied upon by respondents herein is wholly inapplicable to the issue under consideration. It is addressed to the testimony of "a grand juror” or "evidence” before a Grand Jury, such as books and records made available pursuant to court order for the purpose of a prosecution for perjury, misconduct or such related matters (CPL 190.25, subd 4; see People v Di Napoli, 27 NY2d 229).

Respondents’ reliance upon Matter of Proskin v County Ct. of Albany County (30 NY2d 15, supra) is equally misplaced. While Proskin may have held out the possibility that a defendant might receive a copy of Grand Jury minutes for a proper purpose (supra, p 21), it must be remembered that the facts of that case arose prior to September 1, 1971, the effective date of the CPL. Since the enactment of that law and the codification of the motion procedure, it is readily apparent that there is no longer any authority for a defendant to receive Grand Jury minutes; he may only request that the court examine those minutes in advance of trial (CPL 210.30, subd 2).

It is, therefore, abundantly clear that the trial court was not only without authority in acting as it did but was, in fact, statutorily prohibited from so doing. Under such circumstances, prohibition will lie (Matter of Proskin v County Ct. of Albany County, supra; Matter of Lee v County Ct. of Erie County, 27 NY2d 432, cert den 404 US 823; People ex rel. Lemon v Supreme Ct. of State of N. Y., 245 NY 24).

The petition should be granted, without costs, and the respondents are directed to desist from further proceedings designed to enforce the order of the County Court of the County of Sullivan compelling the People to furnish a copy of the minutes of the Grand Jury to defendant or to his counsel.