# DeFayette v. Ball > Appellate Division of the Supreme Court of the State of New York · July 12, 1976 · 53 A.D.2d 282 URL: https://www.frixlaw.com/law-library/cases/5807013 ## Case - **Full name:** In the Matter of Alfred J. Scotti, as Special Deputy Attorney-General, for an Order Authorizing the Transmission of the Minutes of Certain Grand Jury Testimony to the Superintendent of State Police for Use in Departmental Disciplinary Hearings. In the Matter of Alfred J. Scotti, as Special Deputy Attorney-General, for an Order Authorizing Transmission of the Minutes of Certain Grand Jury Testimony to the Commissioner of the Department of Correctional Services for Use in Departmental Disciplinary Hearings. In the Matter of Clayton DeFayette, Individually and as President of Security and Law Enforcement Employees' Council 82, American Federation of State, County and Municipal Employees, AFL-CIO v. Carman F. Ball, as Justice of the Supreme Court of the State of New York, Respondents In the Matter of the Police Benevolent Association of the New York State Police, Inc. v. Carman F. Ball, as Justice of the Supreme Court of the State of New York - **Court:** Appellate Division of the Supreme Court of the State of New York - **Decided:** July 12, 1976 - **Citations:** 53 A.D.2d 282; 385 N.Y.S.2d 659; 1976 N.Y. App. Div. LEXIS 13054 - **Precedential status:** Published - **Opinion:** Dissent by Mahoney - **Judges:** Mahoney, Witmer - **Cited by:** 26 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5807013 ## Opinion text Mahoney, J. (dissenting). I dissent. The majority hold that the action of Special Term was within its discretion and cannot be overruled on the record before us. Almost five years after the Attica riots, two Grand Juries made no finding of official misconduct, except for the indictment of one State trooper, which was dismissed. I cannot believe that we should continue these proceedings, now a cause célebre throughout the world, merely on the conclusory affidavit of the Special Deputy Attorney-General. He has recommended dismissal of all indictments, but one, against inmates convicted of serious crimes. He may well have been correct, but what a travesty on justice that the only reason he gives for the order signed by Special Term, at least as to a few of the officers, is improper supervision or alleged improper follow-up investigation. This alone is indicative of discrimination which should not be given *290 the imprimatur of this court. If the Special Deputy Attorney-General is correct, the heads of the departments involved should be the targets of "official misconduct,” not those presumably carrying out the orders of their superiors. Neither Grand Jury made findings of "official misconduct” except as above noted, nor was a request ever made for the Grand Jury minutes by the heads of the respective departments involved. What a diabolical conclusion to this unfortunate affair, after dismissing all but one of the indictments which were against convicted criminals, that the whole fabric of our law enforcement agencies should be further shattered by sensational charges only against enforcement personnel. Let us remember that the second Attica Grand Jury was constituted to investigate any wrongdoing by law enforcement officials. It was dismissed on motion of the same Special Deputy Attorney-General, having found no indictment but one and no recommendation for disciplinary action against any official. He now seeks the release of only portions of the voluntary testimony at a time when the officials involved must be at a disadvantage in preparing their defense to any misconduct charges, because of missing witnesses, faulty memory of others and because of the long delay and a general malaise relative to the whole Attica affair. While the Attica tragedy will haunt our society as long as mankind has a sense of decency and propriety, we should not now commence the final act of that drama by further demeaning any law enforcement official by the unnecessary prolongation of possible charges of official misconduct. The axiom "justice delayed is justice denied” should be equally appropriate to law enforcement officers as to the convicted criminals. A careful review of all the pleadings and exhibits compels the conclusion that the Special Term orders constituted an act in excess of its power and an abuse of its discretion (Matter of State of New York v King, 36 NY2d 59 ). Cardamone, J. P., and Goldman, J., concur with Wither, J.; Mahoney, J., dissents in two article 78 proceedings in opinion. Appeals in first and second proceedings, unanimously dismissed, without costs. Stay continued for 30 days. *291 Petitions in third and fourth proceedings denied and dismissed, without costs. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5807013. Public record. Not legal advice.