In re the Report of The 1966 October Monroe County Grand Jury

27 A.D.2d 980, 278 N.Y.S.2d 991, 1967 N.Y. App. Div. LEXIS 4484

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 6, 1967
• Status: Published

Opinion

Order of Monroe County Court accepting report dated January 17, 1967 of the October 1966 Monroe County Grand Jury unanimously modified to provide that said report shall be filed as a public record after paragraphs thirteen, fourteen and fifteen have been deleted therefrom and the report as to said paragraphs shall forever be sealed and shall not be filed as a public record, subject to subpoena or otherwise made public.— Memorandum: This is an appeal by a public officer pursuant to section 517-a of the Code of Criminal Procedure to review an order accepting a Grand Jury report purportedly made in accordance with section 253-a of the same code. Paragraph (a) of subdivision 1 of the latter section authorizes a Grand Jury to report “ concerning non-criminal misconduct, nonfeasance or neglect in office by a public officer or employee as the basis for a recommendation of removal or disciplinary action ”. Paragraphs 13, 14 and 15 of the report before us while finding “no criminal responsibility” on the part of appellant charge the official with many specified acts of neglect of duty and other acts of commission and omission that could be characterized as misconduct and nonfeasance. The report, however, fails to state, as required by the statute, that these allegations were set forth as the basis for a further recommendation by the Grand Jury that appellant be removed from office or otherwise disciplined. These statutory provisions were enacted (L. 1964, ch. 350) to permit, with appropriate safeguards, Grand Juries to make presentments as to noncriminal misconduct or neglect by public officers and employees, which right “in the absence of a clear grant of legislative authority ” had been earlier denied such bodies (Matter of Wood v. Hughes, 9 N Y 2d 144, 156). The contention of the District Attorney that he had no power of removal is beside the point. The statute requires allegations of noneriminai misconduct and a recommendation hy the Grand Jury of removal or disciplinary action by the proper authority. In the absence of the latter the stated paragraphs of the report must be suppressed in perpetuity. (Appeal from order of Monroe County Court accepting report of Grand Jury.) Present — Williams, P. J., Bastow, Goldman, Henry and Del Vecchio, JJ.