Supreme Court, Richmond County, March 4, 2019

New York City Civilian Complaint Review Board, New York City (Kerry Jamieson of counsel), for petitioner.

Michael E. McMahon, District Attorney, Staten Island (Ann Grady of counsel), for respondent.

Worth, Longworth & London, LLP, New York City (Howard Sterinbach of counsel), for intervenor.

The petitioner moves to renew its motion to release the grand jury minutes of the investigation into the death of Eric Garner.^[FN1]

The original motion was denied in a memorandum decision dated August 20, 2015.^[FN2] The petitioner did not appeal.

In denying the petition, the court primarily relied on the Appellate Division, Second Department's decision in Matter of James v Donovan (130 AD3d 1032 [2d Dept 2015]), in which the Court ruled that the Public Advocate of the City of New York did not have the capacity to sue. Specifically, the Appellate Division found that the Charter of the City of New York did not give the Public Advocate authority to commence litigation. (Id. at 1034.) Similarly, this court ruled that the Charter did not give the Civilian Complaint Review Board (hereinafter CCRB) the capacity to sue. (Matter of New York City Civilian Complaint Review Bd. v Office of the Dist. Attorney for the County of Richmond, 53 Misc 3d 912 [Sup Ct, Richmond County 2015].)

The petitioner contends that this court's order of August 20, 2015, was erroneous in light of a subsequent appellate ruling in the Fourth Department. (Matter of Citizen Review Bd. of the City of Syracuse v Syracuse Police Dept., 150 AD3d 121 [4th Dept 2017].) This decision does not change this court's earlier ruling.

Unlike in this case, the Citizen Review Board of Syracuse sought a writ of mandamus pursuant to CPLR article 78 to compel the Police Chief to perform a duty mandated by the city's fundamental law—its Charter. The petitioner in this matter is attempting to sue outside the parameters of the Charter of the City of New York. In fact, the CCRB has moved beyond its Charter role and has assumed the role of prosecutor by dint of a memorandum of understanding entered into with the Police Department. That prosecutorial designation does not cloak the CCRB with a status which strengthens its argument{**63 Misc 3d at 532} for its capacity to sue for disclosure of the grand jury minutes. The grand jury does not owe a duty to the CCRB or the Police Department to provide its minutes to satisfy any statutory or Charter provision. The facts of the Fourth Department case limit its precedential value and the ruling certainly does not undermine the reasoning of the Second Department in Matter of James v Donovan. (Id.)

Even, for the sake of argument, if the Fourth Department's ruling directly conflicts with the Second Department's ruling, this court would be constrained to follow the direction of the Second Department. (Mountain View Coach Lines v Storms, 102 AD2d 663 [2d Dept 1984].) Thus, this court adheres to its original decision regarding the Board's capacity to sue for the disclosure of the grand jury minutes.

Even if the court were to reach the merits of the Board's application to unseal the grand jury minutes, the Board has failed to show a compelling and particularized reason for disclosure. In fact, the current argument for disclosure pales in comparison to the contentions made in the initial motion. It is of no significance that the CCRB prosecutor is now in the position of a Police Department Advocate as the Police Department is held to the same standard of demonstrating a "compelling and particularized need" for the disclosure of the grand jury minutes. (Matter of Police Commr. of City of N.Y. v Victor W., 37 AD3d 722, 722 [2d Dept 2007].)

The first motion requested the minutes as evidence for the Board to consider in the absence of its own investigation. The Board has now completed its investigation and has preferred charges against the subject officer. Thus, as predicted by this court, the Board was able to soldier on and obtain evidence gleaned from other sources.

The Board now contends that the minutes are required for the Medical Examiner to confirm her opinion and for one witness, Mr. Felipe Velez, to refresh his recollection.

The Medical Examiner has a myriad of sources to confirm her opinion. The doctor will have the official autopsy report, photographs of the body, notes taken during the autopsy, toxicological reports, videotapes of the incident, etc. Thus, the Medical Examiner is not wanting in ways to confirm her opinion of the cause of death.

The press has reported that thousands of pages of documents have been exchanged between the prosecuting attorneys and{**63 Misc 3d at 533} the lawyers for the subject officer. (Anthony M. DeStefano, NYPD Officer to Face a May Departmental Trial in Eric Garner's Death, Newsday, Dec. 6, 2018, https://www.newsday.com/news/new-york/eric-garner-chokehold-daniel-pantaleo-1.24286639.)^[FN3] In fact, the medical experts have engaged in a public debate about the significance of critical facts revealed by the autopsy. Statements concerning the condition of the deceased's trachea and hyoid bone have been [*3]published. (Richard Khavkine, City Medical Examiner Rebuts PBA Contention About Garner's Death, The Chief, Dec. 10, 2018, http://thechiefleader.com/news/news_of_the_week/city-medical-examiner-rebuts-pba-contention-about-garner-s-death/article_51d36d86-fa34-11e8-baae-eb6888c5f56e.html.)^[FN4] The Chief Medical Examiner has publicly discussed the absence of a tracheal fracture and a breach of the hyoid bone. It therefore appears that the Medical Examiner is already well prepared to testify at the administrative trial. Disclosure of the grand jury minutes is not compelling under these circumstances.

Finally, the Board argues that there should be disclosure because one witness's recollection has failed. This motion is not accompanied by an affidavit from the witness stating what fact or facts are the subject of his failed recollection. As in the case of the Medical Examiner, there are other materials to refresh the witness's recollection. Did he give a statement to the police? Did he testify before the Board? Most significantly, this incident was videotaped. He thus has many sources to refresh his recollection. Moreover, the court does not know whether his alleged memory failure was as to a critical fact. Did his memory fail while giving testimony? The mere averment that a witness's recollection has failed regarding an undisclosed fact is not compelling.{**63 Misc 3d at 534}

Again, the claims are unsupported by affidavits from the two witnesses identified in this application. The court is presumably asked to conclude that all of the prosecution's witnesses are suffering from similar failed or impaired recollections. Such an inductive conclusion is mere speculation. "Convenience alone will not justify an unsealing." (Matter of Dondi, 63 NY2d 331, 339 [1984].)

Moreover, the least compelling reason for a release of the grand jury minutes is their use as a means to refresh a witness's memory. The CCRB has failed to specify precisely why it needs the grand jury minutes to confirm or refresh the recollection of any witness by failing to provide affidavits from any witnesses and by failing to demonstrate that it has exhausted all other means by which witnesses could prepare their testimonies for the administrative trial. Any document or videotape may be used to refresh a witness's recollection.

As the petitioner has not established a capacity to sue or a "compelling and particularized" reason for the disclosure of the grand jury minutes, the court need not move to the next analytical step which would be the "balancing test." (Matter of District Attorney of Suffolk County, 58 NY2d 436, 444 [1983].)

Thus, based on the foregoing analysis and discussion, the petitioner's motion to renew its application to release the grand jury minutes of the investigation into the death of Eric Garner is denied.