IN RE: The SECOND REPORT OF the SENECA COUNTY SPECIAL GRAND JURY OF JANUARY 2007. (2009)

We agree with appellant, a public official of Seneca County, that County Court erred in directing that a grand jury report be filed as a public record.   It is “incumbent upon the prosecutor to instruct the Grand Jury regarding the duties and responsibilities of the public servant who is the target of the probe” (Morgenthau v. Cuttita, 233 A.D.2d 111, 113, 649 N.Y.S.2d 420, lv. denied 89 N.Y.2d 1042, 659 N.Y.S.2d 873, 681 N.E.2d 1320;  see Matter of Grand Jury of Onondaga County [Appeal No. 1], 101 A.D.2d 1023, 476 N.Y.S.2d 492).   Here, we agree with appellant that the special prosecutor's instructions concerning appellant's duties were vague and inadequate. “Without a [clear and adequate charge] as to ․ [appellant's] duties, it was not only impossible for the Grand Jury to determine that [appellant] was guilty of misconduct, nonfeasance or neglect, but impermissible as well, for it allowed the Grand Jury to simply substitute its judgment for that of [appellant]” (Matter of June 1982 Grand Jury of Supreme Ct. of Rensselaer County, 98 A.D.2d 284, 285, 471 N.Y.S.2d 378;  see Matter of Reports of Grand Jury of County of Montgomery Impaneled on Apr. 30, 1979, 100 A.D.2d 692, 474 N.Y.S.2d 627).   Indeed, we agree with appellant that the conclusions of the grand jury with respect to the alleged violation of those duties were in fact contradictory to the special prosecutor's instructions concerning appellant's duties.

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law and the report is sealed.

MEMORANDUM: