PEOPLE v. SCHOETZ (2020)

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).¹

Under the recently enacted discovery scheme in criminal cases (CPL § 245.10 et seq.), within fifteen 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 of substance of any grand jury testimony, evidence, or any decision, result or other matter attending a grand jury proceeding.”(italics 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 three 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(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[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 preceding demand or court order. Thus, disclosure of the transcripts of grand jury testimony falls within the “lawful discharge of his [her] duties” exception 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(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)(a) since such disclosure is made in the lawful discharge of their duties. The motion for such an authorizing order is denied as unnecessary.

It is so ordered.

FOOTNOTES

1.   The Court has considered the following papers on the motion: notice of motion herein dated January 29, 2020 and affirmation of Kenneth P. Borden, Jr., Esq. dated January 29, 2020, all in support of the motion. No papers were submitted in opposition or response to the motion.

Richard B. Meyer, J.