County Court, Essex County, March 12, 2020

Kristy L. Sprague, District Attorney, Elizabethtown (Kenneth P. Borden, Jr. of counsel), for plaintiff.

Brian P. Barrett, Lake Placid, for defendant.

Motion by the People for authorization to release the transcripts of the grand jury testimony of persons who testified before the grand jury in order to comply with the discovery obligations imposed by CPL 245.20 (1) (b).^[FN*]

Under the recently enacted discovery scheme in criminal cases (CPL 245.10 et seq.), within 15 calendar days of arraignment on an indictment (CPL 245.10 [1] [a]) the People are automatically required to disclose to the defendant "[a]ll transcripts of the testimony of a person who has testified before a grand jury, including but not limited to the defendant or a co-defendant" (CPL 245.20 [1] [b]). The People are concerned that release of grand jury transcripts without a court order authorizing such release may violate the mandates for grand jury secrecy. Specifically, the People seek clarification as to whether the following language in CPL 190.25 (4) (a) requires that a court order be obtained authorizing disclosure of the transcripts before they can be turned over to the defendant:

"Grand jury proceedings are secret, and no grand juror, or other person specified in subdivision three of this section or section 215.70 of the penal law, may, except in the lawful discharge of his duties or upon written order of the court, disclose the nature or substance of any grand jury testimony, evidence, or any decision, result or other matter attending a grand jury proceeding." (Emphasis added.)

A "district attorney" and a "public prosecutor" are subject to the secrecy provisions of CPL 190.25 (4) (a) since the former is specified in subdivision (3) of that section and the latter is specified in Penal Law § 215.70. However, the automatic, compulsory disclosure commandments recently mandated by the legislature in CPL 245.10 (1) (a) and 245.20 (1) clearly impose lawful duties upon a district attorney or public prosecutor. Indeed, not only did the legislature choose to refer to the prosecution's discovery responsibilities as "obligations" (see CPL 245.10 [1] [a]) but it also directed that the disclosure of the items and information specified in CPL 245.20 (1), including grand jury transcripts, be "automatic" rather than by a {**68 Misc 3d at 196}preceding demand or court order. Thus, disclosure of the transcripts of grand jury testimony falls within the [*2]"lawful discharge of his [or her] duties" exception (CPL 190.25 [4] [a]) to the grand jury secrecy requirements and the People must disclose those transcripts automatically and without a court order within the time dictated by CPL 245.10 (1) (a).

For the foregoing reasons, a district attorney or public prosecutor is not required by CPL 190.25 (4) (a) to obtain a court order authorizing release of the transcripts of grand jury testimony before complying with the automatic discovery obligations imposed upon the prosecution by CPL 245.20 (1) (b) since such disclosure is made in the lawful discharge of their duties. The motion for such an authorizing order is denied as unnecessary.