Petition — McGinley v. Hynes

Supreme Court, U.S,

FILED

8 0 -996 DEC 18 1980

2 a 3 | RODAK, JR., CLERK:

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

BARBARA McGINLEY,

Petitioner,

-against-

CHARLES J. HYNES, Deputy Attorney General,

of tne State of New York,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF THE STATE OF NEW

YORK

STEPHEN R. TAUB

Counsel for Petitioner

8 Freer Street

Lynbrook, N.Y. 11563

(516) 599-8848

DICK BAILEY PRINTERS, 290 RICHMOND AVE., S.1., N.Y. 10302

TEL.: (212) 447-5358 — (516) 222-2470 — (914) 682-0848

ee

A

QUESTIONS PRESENTED

Whether this Court should reexamine its sixty year

old holding in United States v. Thompson, 251 U.S. 407

(1920), and reconsider whether due process of law is

violated by multiple submissions of the same case to suc-

cessive grard juries, without judicial scrutiny or approval,

where a prior grand jury has failed to indict?

TABLE OF CONTENTS

Page

(pucstions Presemied... oo os cs secsneseseeeenee A

Ceinions BOW i. ss ii 3a. 5 2 ook eee eee ]

Constitutional Provision Involved in the Case..... 2

Peapsinet OF (he Cake... i oi 5 5 eee a5 one 2

Reasons for Granting the Writ.................. 9

LAIRGINIOR oe dcedesd od eee i2

CASES CITED

Page

Ashe v. heii 397 U.S. 496 CIGD ccc ie ceeneues 11

Branzberg v. Hayes, 408 U.S. 65 (1972) .........0e ee: 9

Harris v. Oklahoma, 433 U.S. 682 (1977) ........445. 1]

Menna v. New York, 423 U.S. 61 (1975) .........645. 12

United States v. Bryan, 339 U.S. 323, 331 (1950)....... 9

United States v. Calandra, 414 U.S. 338 (1974)....... 1]

United States v. Gross, 416 F.2d 1205 (8th Cir., 1969) .. 9

United States v. Thompson, 251 U.S. 407 (1920)....... 9

Waller v. Florida, 397 U.S. 387 (1970) .............. 11

Wood v. Georgia, 370 U.S. 375, 390 (1962) ........... 9

OTHER AUTHORITIES

Me Wars MG, DEPEND o 6064 k4 gba en ea Kes reNed Oe es ]

Section 63(8) of the Executive Law of the State of

SE EE cc's & eke ach a A eed 3 4 bk 5k eo eirhheaeekes 2

INDEX TO APPENDIX

Page

A—Decision of Court of Appeals.................- la

B—Opinion of New York State Court of Appeals..... 2a

C—Order Dated May 27, 1980..............00c0es 13a

ED ns Peace no ve eR Aa ee ese re ee. 1Sa

II oo ous oy kbc sw kw AOA eee 19a

F—Exhibits: Various Letters .........cccccccccees 22a

G—Order Extending The Term Of The 1978

September Grand Jury Number III ................ 26a

H—Affidavit of Terrence P. Buckley

PR IE oN SR Gie kee skkekiienes b05) cache’ 28a

I—Petition and Affidavit of Roger Kendall......... 3la

J—Order Authorizing Empanelling Of

AMO GORE FONE 6 ic cciccscccercsossvvvese 33a

K—Order Authorizing Empanelling

OF RGR CORE FATE ico cs cccccasevssioccees 37a

L—Order Extending The Term Of The 1978

September Grand Jury Number II] ................ 4la

M—Affidavit Of Richard A. Miller

pe | PPP PPT Tee TIT eT Teer CREEL 43a

N--Petition ad ATHGAVE 2... cccccccccvccccecces 46a

O—Order Dated October 27, 1978 .............06. 48a

P—Order Extending The Term Of The 1979

October Grand Jury Number 1C...............5.. 50a

Q—Affidavit of Terrence P. Buckley

BE FN 6a on cose cccntcescseventsercoss 52a

R—Petition and Affidavit ...........ceseeescvees 55a

S—Judgment Dated February 19, 1980......... re 57a

1

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

No.

BARBARA McGINLEY,

Petitioner,

against

CHARLES J. HYNES, Deputy Attorney General,

of the State of New York,

Respor.dent.

PETITIONER’S BRIEF

OPINIONS BELOW

The opinion of the New York Court of Appeals, of-

ficially cited as 51 NY2d 116 (1980) appears in the Appen-

dix at page 2a. The opinion of the Appellate Division, Se-

cond Department, officially cited as 75 A.D.2d 897 (2nd

Dept., 1980) appears in the appendix at page 15a.

JURISDICTION

The judgment of the New York Court of Appeals was

entered on the 14th day of October, 1980. A timely motion

for reargument or for a stay and an amendment of the

remittur was denied on the 13th day of November, 1980

and this petition was filed within ninety days of that date.

This Court’s jurisdiction is invoked under 28 U.S.C. Sec.

1257(3).

CONSTITUTIONAL PROVISION

INVOLVED IN THE CASE

The Fourteenth Amendment to the United States

Constitution states as follows:

*. . . nor shall any State deprive any person of life, liberty

99

or property without due process of law...

STATEMENT OF THE CASE

Section 63 (8) of the Executive Law of the State of

New York authorizes the Governor of the State of New

York to appoint a Special Prosecutor to carry out a

designated investigation. It provides as follows:

8. Whenever in his judgment the public interest requires

it, the attorney-general may, with the approval of the

governor, and when directed by the governor, shall, in-

quire into matters concerning the public peace, public

safety and public justice. For such purpose he may, in his

discretion, and without civil service examination, appoint

and employ, and at pleasure remove, such deputies, of-

ficers and other persons as he deems necessary, determine

their duties and, with the approval of the governor, fix

their compensation. All appointments made pursuant to

this subdivision shall be immediately reported to the gover-

nor, and shall not be reported to any other state officer or

department. Payments of salaries and compensation of of-

ficers and employees and of the expenses of the inquiry

shall be made out of funds provided by the legislature for

such purposes, which shall be deposited in a bank or trust

company in the names of the governor and the attorney-

general, payable only on the draft or check of the attorney-

general, countersigned by the governor, and such

disbursements shall be subject to no audit except by the

governor and the attorney-generai. The attorney-general,

his deputy, or other officer, designated by him, is em-

powered to subpoena witnesses, compel their attendance,

examine them under oath before himself or a magistrate

and require that any books, records, documents or papers

relevant or material to the inquiry be turned over to him

for inspection, examination or audit, pursuant to the civil

practice law and rules. If a person subpoenaed to attend

upon such inquiry fails to obey the command of a sub-

poena without reasonable cause, or if a person in atten-

dance upon such inquiry shall, without reasonable cause,

refuse to be sworn or to be examined or to answer a ques-

tion or to produce a book or paper, when ordered so to do

by the officer conducting such inquiry, he shall be guilty of

a misdemeanor. It shall be the duty of all public officers,

their deputies, assistants and subordinaies, clerks and

employees, and all other persons, to render and furnish to

the attorney-general, his deputy or other designated of-

ficer, when requested, all information and assistance in

their possession and within their power. Each deputy or

other officer appointed or designated to conduct such in-

quiry shall make a weekly report in detail to the attorney-

general, in form to be approved by the governor and the

attorney-general, which report shall be in duplicate, one

copy of which shall be forthwith, upon its receipt by the

attorney-general, transmitted by him to the governor. Any

officer participating in such inquiry and any person ex-

amined as a witness upon such inquiry who shall disclose

to any person other than the governor or the attorney-

general the name of any witness examined or any informa-

tion obtained upon such inquiry, except as directed by the

governor or the attorney-general, shall be guilty of a

misdemeanor.

Pursuant to Executive Order, respondent CHARLES J.

HYNES was appointed by the Governor of the State of

New York to inquire into ‘‘possible criminal violations

committed in connection with or in any way related to the

management, control, operation or funding of any nurs-

ing home, care center, health facility or related entity

located in the State of New York... ”’ (22a).

Section 63 (3) of the Executive Law of the State of

New York authorizes the Attorney General to conduct

designated investigations, upon request of State agency

heads. It provides as follows:

3. Upon request of the governor, comptroller, secretary

of state, commissioner of transportation, superintendent

of insurance, superintendent of banks, commissioner of

taxation and finance or commissioner of motor vehicles,

or the head of any other department, authority, division or

agency of the state, investigate the alleged commission of

any indictable offense or offenses in violation of the law

which the officer making the request is especially required

to execute or in relation to any matters connected with

such department, and to prosecute the person or persons

believed to have committed the same and any crime or of-

fense arising out of such investigation or prosecution or

both, including but not limited to appearing before and

presenting all such matters to a grand jury.

By letfers dated September 30, 1977, the Commis-

sioner of Social Services and the Commissioner of Health

of the State of New York requested the Attorney General

of the State of New York to investigate indictable offenses

by hospitals, their principles, agents suppliers or other per-

sons connected therewith. (23-4). The Attorney General,

in turn, by letter dated October 6th, 1977, authorized

respondent to conduct the imvestigation as requested by

the Commissioners of Social Services and Health (24-5).

It is in this respect that respondent, as Special Pro-

secutor, undertook an _ investigation of Brunswick

Hospital Center, Inc., the largest such facility on Long

Island.

Early in 1978, Brunswick Hospital voluntarily

delivered its books and records to the Special Prosecutor,

at the latter’s request, and financed the expenses for two

motel rooms to afford investigators in the empioy of the

Special Prosecutor an opportunity to make their examina-

tion.

By order dated July 27th, 1978, the September 1978

Grand Jury III was convened by order of Suffolk County

Supreme Court, on the affidavit of local Assistant District

Attorney, who recited in his affidavit as follows:

**CHARLES J. HYNES, Deputy Attorney General for the

State of New York, (Special Prosecutor for Nursing

Homes, Health and Social Services), requests a separate

grand jury for the September 1978 term of the County

Court. This grand jury will hear evidence concerning possi-

ble violations in the operation of nursing homes, private

proprietary homes for adults, and hospitals in Suffolk

County. A separate grand jury is requested because of the

anticipated length of the investigation, the number of

witnesses and the quantity of testimony involved.’’ (39)

The books and records of Brunswick Hospitai were

produced before the September 1978 Grand Jury III by

January of 1979, pursuant to subpoena duces tecum.

Various witnesses were granted immunity by the grand

jury, an automatic procedure in the state of New York

which results from the appearance and testimony of a

witness, pursuant to Section 190.40 of the Criminal Pro-

cedure Law of the State of New York. Thus, Leo Albert,

the Comptroller of Brunswick Hospital appeared and

testified. Various suppliers and numerous employees of

Brunswick Hospital were afforded immunity and testified.

Both the New York Court of Appeals and the Ap-

pellate Division, Second Department agreed that insuffi-

cient evidence was produced before the first grand jury to

justify any indictment or any charge of perjury or con-

tempt against any witness, despite the fact that said grand

jury had been extended on numerous occasions pursuant to

court order. Thus, the September 1978 Grand Jury III was

permitted to expire in June 1979, without any indictments

being handed down.

6

It is in this posture that the Special Prosecutor made

application for the convening of a new grand jury, the Oc-

tober 1979 Grand Jury III, without revealing to the Court

that a prior grand jury had tracked the identical investiga-

tion of Brunswick Hospital and its employees and sup-

pliers (33-6).

A subpoena duces tecum was issued in the name of

this second jury, the October 1979 Grand Jury III and

served upon the Chemical Bank to produce the bank

records of petitioner, an employee of Brunswick Hospital.

Petitioner then commenced a civil proceeding in Suf-

folk County Supreme Court pursuant to Article 78 of the

Civil Practice Law & Rules of the State of New York, in

the nature of prohibition, to permanently stay the October

1979 Grand Jury III from conducting the identical in-

vestigation of Brunswick Hospital as did the September

1978 Grand Jury without Court authorization based upon

a showing of probable cause justifying such a resubmis-

sion.

By judgment entered the 19th day of February, 1980,

Suffolk County Supreme Court (McCarthy, J.) dismissed

the petition (21-2).

On the 27th day of May, 1980, the Appellate Divi-

sion, Second Department unanimously reversed the judg-

ment of Suffolk County Supreme Court and granted the

petition of petitioner, and thereby prohibited the grand

jury investigation of Brunswick Hospital by the October

1979 Grand Jury III, ‘‘without prejudice to the Special

Prosecutor to seek an order of resubmission.’’ (18) The

Appellate Division wrote as follows:

**Special Term erred in holding that the petitioner, who is

the Director of Nursing, Psychiatric Division, at

Brunswick Hospital does not have standing to bring this

proceeding. The Grand Jury is investigating Brunswick

Hospital, its employees and suppliers. The petitioner, who

has not been immunized or yet offered immunity, is thus a

7

potential target of the investigation. Moreover, the Special

Prosecutor should have applied to the court for an order of

resubmission. Our review of the minutes of the September,

1978 Grand Jury proceedings reveals that the Grand Jury

sat on 28 separate occasions, heard testimony from 43

witnesses (some of whom were recalled on more than one

occasion), and received numerous documents into

evidence . . . Nevertheless, in spite of the Special Pro-

secutor’s admission that he would not have too much more

testimony for the entire case, he decided to withdraw the

investigation from the Grand Jury on June 22, 1979,

without a vote being taken. Our view of the record as of

that date indicates that virtually no incriminating evidence

had been adduced against Brunswick Hospital, its agents

or suppliers. In other words, there was no concrete

evidence on which a true bill could have been voted. It thus

appears that withdrawal of the case from the September

1978 Grand Jury took place because of the possibility chat

the Grand Jury would vote against indictment. Under

these circumstances, the Special Prosecutor should have

obtained court approval for resubmission to the October

1979 Grand Jury...’’ In re McGinley v. Hynes, 75

A.D.2d 897 (2nd Dept., 1980) (16-17)

The Special Prosecutor chose not to obtain an order

of resubmission and instead took an appeal to the New

York Court of Appeals. That Court reversed the Appellate

Division, and directed that the petition for a writ of pro-.

hibition be dismissed, holding that a target of a grand jury

investigation is without any pre-indictment remedy to

challenge prosecutorial misconduct by misuse of the grand

jury, irrespective of violation of Constitutional

perogative. The New York Court of Appeals recognized

that the issue raised by the appeal was novel, writing as

follows:

‘* . . ¢T)he role of a public prosecutor in our system of

criminal justice has two fundamentally distinct and

8

separate aspects. On the one hand, the public prosecutor

has the obligation of representing the State in its efforts to

bring individuals accused of crimes to justice. When he is

fulfilling this responsibility, the public prosecutor may

readily be viewed as an officer performing a ‘quasi-

judicial’ act and his conduct may therefore become the

subject of an article 78 proceeding in the nature of prohibi-

tion . . . On the other hand, public prosecutors also per-

form a role ‘analogous to that of a police officer,’’ which

entails the investigation of suspicious circumstances with a

view toward determining whether a crime has been com-

mitted . . . . Manifestly, when this purely investigative

function is involved, the acts of the public prosecutor are

to be regarded as ‘executive’ in nature and, in conse-

quence, cannot legitimately be the object of a writ of pro-

hibition, except, perhaps, in a most unusual and at present

unforeseeable circumstance . . . . In the instant situation,

in contrast, none of the traditional characteristics of a

judicial proceeding are present. No one has been accused

of committing a crime, and, indeed, there is yet no con-

crete indication of any criminal wrongdoing. At this point,

the role of the Special Prosecutor is limited to investigating

the circums.unces surrounding Brunswick’s financial tran-

sactions and gathering testimony for the purposes of ascer-

taining whether a crime has been committed. Inasmuch as

the activities of the Special Prosecutor in this role are

related only to his ‘executive’ functions and are in no way

connected with the ‘quasi judicial’ functions he may per-

form in other contexts, this cannot be considered a proper

case for prohibition.’’ In re McGinley y. Hynes, 51 N.Y.2d

116 (1980) (8-16)

A motion for reargument or for a stay and an amendment

of the remittitur was denied by the New York Court of

Appeals on November 13th, 1980 (1a).

REASONS FOR GRANTING THE WRIT

It is respectfully submitted that this Court should

reexamine the principle enunciated sixty years ago in

United States v. Thompson, 251 U.S. 407 (1920), that the

Government need not get court permission to resubmit to

a second Grand Jury, where a prior Grand Jury has failed

to act. This ruling has been followed, without question.

‘‘A prior submission not acted upon, is not a bar to a later

indictment.’’ United States v. Gross, 416 F.2d 1205 (8th

Cir., 1969).

It is conceded that ‘‘indictment by grand jury is not

part of the due process of law guaranteed to state criminal

defendants by the Fourteenth Amendment.” See, foot-

note 25, Branzberg v. Hayes, 408 U.S. 65 (1972).

However, this does not mean that where a State does use a

Grand Jury system, the procedures carried out are free

from Constitutional scrutiny. ‘‘Historically (the grand

jury) has been regarded as a primary security to the inno-

cent against hasty, malicious and oppressive prosecution;

it serves the invaluable function in our society of standing

between the accuser and the accused... to determine

whether a charge is founded upon reason or was dictated

by an intimidating power or by malice and personal ill

will.’’ Wood v. Georgia, 370 U.S. 375, 390 (1962). Given

this fundamental role of the Grand Jury, where it is

employed, it cannot seriously be urged that a prosewutor

presenting his case before such body is free of all judicial

supervision and may boundlessly carry out hic role in any

manner he elects, to achieve any objective, proper or not.

This Court has long recognized that a witness sub-

poenaed before a Grand Jury enjoys standing to protect

his interests secured by the Constitution. In United States

v. Bryan, 339 U.S. 323, 331 (1950) this Court wrote:

10

“‘Certain exemptions from attending or, having attended,

giving testimony are cognized by all courts. But every such

exemption is grounded in a substantial individual interest

which has been found, through centuries of experience, to

outweigh the public interest in the search for truth.’’

Thus, the issue crystalizes, whether due process of law is

violated, by repeated presentations of a case to successive

‘grand juries, without court supervision, where a prior

grand jury has declined to act. It would clearly seem that

such multitudinous search for a receptive or submissive

grand jury by a prosecutor, spells out forum shopping in

violation of due process of law, and harassment of the

targets and witnesses of the investigation, whose privacy

and business may well be jeopardized by repeated sub-

poenas issued to his employees, business contacts, friends

and associates.

To take the position that no harm arises from suc-

cessive, unsupervised grand jury presentments unless and

until indictments are returned, fails to recognize the

realities of the situation. In fact, one suffers serious harm

in a very real sense, when his customers, suppliers, col-

leagues, employees, friends and/or family members are

caused to appear and reappear at successive grand juries at

the whim of an overzealous prosecutor. He is harmed

when the investigation is reported in the media, whetier

such knowledge is obtained by the media as a result of im-

proper leakage, or as a result of the filing of motions to

quash oppressive, repetitive or otherwise improper sub-

poenas. He is harmed socially and in the business com-

munity when those who were compelled to testify are ques-

tioned about, and later discuss, the target’s integrity, per-

sonal habits, finances, and other such matters. The in-

ference drawn by the public is that the target must have

committed some serious crime, or the prosecutor would

not continue to inquire. The longer the prosecutor con-

tinues (or renews) the investigation, the stronger the in-

11

ference of guilt. A motivation by a prosecutor to destroy a

target who may or may not be guilty of any crime, on the

theory of ‘‘guilt by accusation’’ has no place in modern

American jurisprudence.

In United States v. Calandra, 414 U.S. 338 (1974),

this Court properly alerted the prosecutorial branch that

the courts are not powerless to prohibit abuse of the grand

jury system, where it surfaces:

**. .. The grand jury is also without power to invade a

legitimate privacy interest protected by the Fourth Amend-

ment. A grand jury’s subpoena duces tecum will be

disallowed if it is far too sweeping in its terms to be regard-

ed as reasonable under the Fourth

Amendment . . . Judicial supervision is properly exercised

in such cases to prevent the wrong before it occurs.’’ (at p.

346)

It would be difficult to distinguish the resulting wrongs

arising out of a ‘‘far too sweeping’’ subpoena, as opposed

to numerous, unbridled, repetitive presentations of a case

to a first grand jury, then to a second, third or more.

This Court has warned that the guarantee against

double jeopardy is clearly applicable to State criminal pro-

secutions. Waller v. Florida, 397 U.S. 387 (1979); Harris

v. Oklahoma, 433 U.S. 682 (1977). The Court did not

content itself with enunciating the broad Constitutional

principle, but alerted the States that nuances derived

therefrom were applicable. Thus, the doctrine of collateral

estoppel is encompassed within the double jeopardy

safeguard and so, the same transaction may not be severed

for multiple prosecutions. The Court wrote that the dou-

ble jeopardy safeguard ‘‘surely protects a man who has

been acquitted from having to run the gauntlet a second

time.’’ Ashe v. Swenson, 397 U.S. 436 (1970). It is this

very type of ‘‘gauntlet,’’ although not necessarily covered

by the double jeopardy provision, that petitioner urges,

12

constituted an unconstitutional abuse of the grand jury

system, by multiple, judicially unsupervised presentations

to successive grand juries.

This Court is not prone to excuse Constitution infr-

ingement on the basis of adequate state grounds. Thus, in

Menna v. New York, 423 U.S. 61 (1975), this Court reach-

ed the Constitutional issue, over the State’s attempted

refuge in its own procedures:

“‘Where the State is precluded by the United States Con-

stitution from haling a defendant into court on a charge, a

federal court requires that a conviction on that charge be

set aside even if the conviction was entered pursuant to a

counseled plea of guilty.’’

It is therefore submitted that this Court should reex-

amine its sixty year old ruling which seems to allow multi-

ple, unsupervised submissions of cases to successive grand

juries, where the prior body failed to act. The issue

presents a Constitutional problem that in light of modern

day Constitutional thinking and the evolution of in-

dividual rights, calls for an updated reevaluation.

CONCLUSION

For the reasons set forth above, a writ of certiorari

should issue to review the judgment of the New York

Court of Appeals.

Respectfully submitted,

STEPHEN R. TAUB

Counsel for Petitioner

8 Freer Street

Lynbrook, New York 11563

516-599-8848

la

APPENDIX A—DECISION OF COURT OF APPEALS

2 Mo. No. 1190

In the Matter of Barbara McGinley,

Respondent,

Vs.

Charles J. Hynes, Deputy Attorney General,

Appellant,

and Chemical Bank,

Respondent.

Motion for reargument or for a stay and an amendment of

the remittitur denied.

DECISION COURT OF APPEALS NOV. 13, 1980

2a

APPENDIX B—OPINION OF NEW YORK STATE

COURT OF APPEALS

STATE OF NEW YORK

COURT OF APPEALS

2 No. 428

In the Matter of Barbara McGinley,

Respondent,

v.

Charles J. Hynes, Deputy Attorney General,

Appellant,

& ano.,

Respondent.

(428) Charles J. Hynes, Deputy Attorney-General (Arthur

Weinstein, Richard D. Carruthers, & Terrence P. Buckley

of counsel) for respondent.

This opinion is uncorrected and subject to revision before

publication in the New York Reports.

GARIELLI, J.:

In this article 78 proceeding, the Special Nursing

Home Prosecutor appeals from an order of the Appellate

Division, which granted petitioner’s request for relief in

the nature of prohibition and directed the Special Pro-

secutor to refrain from presenting additional evidence to

the Grand Jury in connection with his investigation of a

particular hospital without first seeking and obtaining

judicial approval to ‘‘resubmit”’ pursuant to CPL 190.75

(subd. 3). The present appeal requires us to consider novel

3a

questions concerning the availability of the prohibition

remedy to prevent a prosecutor from Carrying out his in-

vestigative functions when there is no claim that the sub-

ject matter of his investigation is beyond the scope of his

prosecutorial authority. Because we conclude that prohibi-

tion does not lie under the circumstances presented in this

case, we now reverse the order of the Appellate Division

and direct that the petition for a writ of prohibition be

dismissed.

The investigation in question was initially commenced

before a Suffolk County Grand Jury on September 5,

1978. Assistant Special Prosecutor Richard Miller inform-

ed the Grand Jury at that time that it would be looking in-

to possible rebate and kickback schemes in the various

hospitals, adult homes, health-related facilities and nurs-

ing homes in Suffolk County with a view toward determin-

ing, among other things, whether the State’s medicaid

. System had been defrauded. Of particular interest, the

Grand Jury was told, were the financial activities of the

Brunswick Nursing Center, a general hospital in Suffolk

County. Suspicion had focused upon the Brunswick facili-

_ ty because, as the Grand Jury was later advised, an audit

of that huspital’s books by the Special Prosecutor’s office

had revealed some rather unusual business transactions

between Brunswick and two of its regular suppliers.

From the outset, the Grand Jury’s investigation of

these matters was plagued with delays. Subpoenas had

been issued commanding Brunswick and several of its sup-

pliers to produce their records for the Grand Jury on

September 5, but each of the vendors made immediate mo-

tions to quash and Brunswick requested a postponement

to October 6, so that it would have an adequate opportuni-

ty to assemble the required material. The vendors’ mo-

tions to quash were not finally resolved in favor of the

Special Prosecutor until the middle of October, when the

Appellate Division vacated its stays. By that time,

4a

however, Brunswick had made its own motion to quash,

despite its earlier promise to produce records by October

6. This motion delayed the production of Brunswick’s

records through the end of December, 1978.

Additional delays were occasioned by the

recalcitrance of various witnesses. One of the vendors in-

volved in the investigation failed to appear as scheduled

because his attorney was ‘‘very busy.”’ When he finally did

appear two months later, he impeded the investigation by

refusing to answer a number of crucial questions. His

subsequent appearances before the Grand J ury were

equally fruitless, and, as a consequence, a contempt pro-

ceeding was eventually commenced against him. The ef-

forts to bring this witness before the Grand Jury dragged

on through a chain of late appearances and outright

failures to appear until the last month of the investigation.

On several occasions during this period, the witness’ ap-

pearance had to be postponed because his attorney either

appeared late or did not show up at all. Indeed, even the

efforts of the Trial Judge to conduct contempt pro-

ceedings were confounded by the refusal of this witness

and his attorney to appear when commanded to do so.

The performance of this witness was not atypical.

Several witnesses represented by the same attorney caused

repeated delays as a result of their own or their attorney’s

failure to appear as scheduled. One of the other principals

in the investigation also characteristically failed to be pre-

sent on the dates he was scheduled to appear. A new series

of motions to quash made in early 1979 by various

witnesses produced additional delays and frustrations for

the Grand Jurors. These difficulties were further com-

pounded by the fact that many of the records subpoenaed

by the Grand Jury either had been destroyed or simply

could not be found.

Throughout the nine-month period of the Grand J ury

session, representatives of the Special Prosecutor’s office

5a

were repeatedly compelled to ask for extensions of the

Grand Jury’s term so that all of the evidence could be

heard. On each occasion, the Grand Jurors were told that

every effort was being made to obtain the cooperation of

witnesses and put an end to the delays and collateral pro-

ceedings. Although the Grand Jurors initially were recep-

tive to the Special Prosecutor’s requests for extensions,

they began to express impatience as the months dragged

on and the witnesses persisted in their dilatory tactics. At

several points in the proceedings, individual members of

the Grand Jury asked whether additional measures could

be taken to hold the resistanm’ witnesses and their attorneys

accountable for their conduct. Additionally, a few of the

Grand Jurors indicated that the repeated extensions of the

investigation were beginning to disrupt their personal

lives. Finally, at the May 25, 1979 session, the Grand

Jurors took a vote among themselves and determined not

to continue beyond the next scheduled termination date,

June 22, 1979. Thus, although the Special Prosecutor had

not had an opportunity fully to explore the evidence, the

Grand Jury was disbanded without having taken any ac-

tion in the Brunswick Nursing Center matter. It was ap-

parent from the minutes of the Grand Jury sessions,

however, that the decision of the Grand Jury to disband

was based not upon its belief that no crime had been com-

mitted but, rather, upon the Grand Jurors’ impatience

with the repeated delays occasioned by the witnesses’

recalcitrance. |

A new Grand Jury was convened on October 1, 1979.

Once again, a representative of the Special Prosecutor’s

office appeared and informed the Grand Jurors that they

would be looking into the financial activities of the

Brunswick Nursing Center with a view toward the

possibility of medicaid fraud. Several witnesses were call-

ed to testify regarding the Brunswick matter, but the pro-

gress of the investigation was once again halted when a

6a

Brunswick employee whose bank record had been sub-

poenaed commenced the instant article 78 proceeding in

an effort to restrain the Special Prosecutor from pursuing

the matter further.

The petition was based upon CPL 190.75 (subd 3),

which provides that when a charge presented to a Grand

Jury has been dismissed, ‘‘it may not again be submitted

to a grand jury unless the court in its discretion authorizes

or directs the people to resubmit such charge to the same

or another grand jury’’. Although the first Grand Jury in

the Brunswick Nursing Center case had been discharged

before it had had an opportunity to consider and act upon

any charges, petitioner argued that, under the cir-

cumstances, the Grand Jury’s nonaction should have been

treated as the equivalent of a dismissal for purposes of

CPL 190.75 (subd 3) and the Special Prosecutor should

therefore have been prohibited from proceeding before a

second Grand Jury unless and until court approval was

obtained.

Special Term did not directly address the merits of

petitioner’s contentions, but instead dismissed the petition

upon the ground that the extraordinary remedy of prohibi-

tion was simply not justified under the facts of the case.

The Appellate Division, however, disagreed, concluding

that prohibition was available to prevent the prosecutor

from acting ‘‘in excess of [his] powers’? (La Rocca vy.

Lane, 37 NY2d 575, 579) in violation of CPL 190.75 (subd

3). The court then went on to hold that petitioner was a

person with ‘‘standing’’ to bring the proceeding, since, as

an employee of Brunswick, she was a potential target of

the Special Prosecutor’s investigation. Finally, reaching

the merits of the dispute, the Appellate Division found

that the Special Prosecutor had indeed exceeded the

bounds of his authority by reviving the Brunswick in-

vestigation before a second Grand Jury without first ob-

taining judicial approval. Consequently, the Appellate

Division held, petitioner was entitled to the requested

relief.

7a

We do not reach the merits of petitioner’s conten-

tions, however, because we conclude that prohibition does

not lie under circumstances such as these.' The ‘‘ancient

and just’’ writ of prohibition is available ‘‘only where

there is a clear legal right and only when the body or of-

ficer ‘acts or threatens to act without jurisdiction in a mat-

ter over which it has no power over the subject matter or

where it exceeds its authorized powers in a proceeding over

which it has jurisdiction’ ’’ (Matter of Dondi v. Jones, 40

NY2d 8, 13, quoting Matter of State of New York v. King,

36 NY2d 59, 62; Matter of Nigrone v. Murtagh, 36 NY2d

421, 423-424; see Matter of Vega v. Bell, 47 NY2d 543,

546-547). The writ ‘‘must be directed to some inferior

judicial tribunal or officer and lies to prevent or control

judicial or quasi-judicial action only, as distinguished

from legislative, executive or ministerial action’’ (Matter

of Forte v. Supreme Court of the State of New York, 48

NY2d 179, 183; accord, Matter of Nicholson v. State

Comm on Judicial Conduct, 50 NY2d 597, 606; Matter of

B T Prods v. Barr, 44 NY2d 226, 231-232; Matter of Ste-

ingut v. Gold, 42 NY2d 311, 315; see Matter of Kaney v.

New York State Civ Serv Comm, 190 Misc 944, 951, affd

273 App Div 1054, affd 297 NY 707; Note, The Writ of

Prohibition in New York—Attempt to Circumscribe an

Elusive Concept, 50 St. John’s L Rev 76, 84). It is the lat-

ter aspect fo this oft-repeated formulation that causes the

difficulty here.

We have recently had occasion to observe that “Tal

public prosecutor is a quasi-judicial officer, who performs

important duties within our judicial system, and is subject

to prohibition under proper circumstances not alone con-

fined to double jeopardy situations’ (Matter of Dondi v.

Jones, 40 NY2d 8, 13, supra; accord, Matter of B T Prods

v. Barr, 44 NY2d 226, 232, supra). We have not yet had an

Opportunity, however, to articulate an analytical

framework for determining precisely what circumstances

8a

justify the issuance of a writ of prohibition against a

public prosecutor, although we have found such a remedy

to be appropriate in pariicular cases (Matter of B T Prods

v. Barr, supra; Matter of Dondi v. Jones, supra; cf Matter

of Nicholson v. State Comm. on Judicial Conduct, 50

NY2d 597, supra).

Essential to the development of such an analytical

framework is a recognition that the role of a public pro-

secutor in our system of criminal justice has two fun-

damentally distinct and separate aspects. On the one hand,

the public prosecutor has the obligation of representing

the State in its efforts to bring individuals accused of

crimes to justice. When he is fulfilling this responsibility,

the public prosecutor may readily be viewed as an officer

performing a ‘‘quasi-judicial’’ act, and his conduct may

therefore become the subject of an article 78 proceeding in

the nature of prohibition (see, eg, Matter of Simonson vy.

Cahn, 27 NY2d 1; People v. Fielding, 158 NY 542, 547;

Matter of Nolan v. Court of Gen Sessions of County of N

Y, 15 AD2d 78, affd 11 NY2d 114; People ex rel Luetje v.

Ketcham, 45 Misc. 2d 802, 804). On the other hand, public

prosecutors also perform a role ‘‘analogous to that of a

police officer’, which entails the investigation of

suspicious circumstances with a view toward determining

whether a crime has been committed (Toker v. Pollak, 44

NY2d 211, 220; see, also, Executive Law, §63). Manifest-

ly, when this purely investigative function is involved, the

acts of the public prosecutor are to be regarded as ‘‘ex-

ecutive’? in nature and, in consequence, cannot legitimate-

ly be the object of a writ of prohibition, except, perhaps,

in a most unusual and at present unforeseeable cir-

cumstance.

Of course, just as ‘‘there is no sharp line between a

court acting in error * * * and a court acting in excess of its

powers’’ (La Rocca v. Lane, 37 NY2d 575, 580, supra),

there can be no bright, clear line separating the in-

9a

vestigative activities of a public prosecutor from his

‘“quasi-judicial’’ activities. Each case must be considered

individually in accordance with its peculiar facts and

without regard to mechanistic verbal formulations that

serve no purpose other than to becloud the issues and con-

found reasoned analysis. Such a case-by-case approach is

not unusual in our system of jurisprudence. ‘‘The law

generally and the extraordinary remedy of prohibition has

not developed as a linguistic exercise but as a response in

language and concept to the recognized needs and accom-

modations in a society governed by the rule of law”’ (La

Rocca v. Lane, supra, at p 581). Accordingly, although we

have delineated in broad terms the outer limits of the ‘‘an-

cient and just writ’’, we have carefully avoided imposing a

straitjacket of rigid rules and verbal formulae upon the

prohibition remedy (see generally, Note, The Writ of Pro-

hibition in New York—Attempt to Circumscribe an

Elusive Concept, 50 St. John’s L Rev 76, 101, supra). The

distinction we draw today between those prosecutorial acts

to which a writ may properly be directed and those which

are not subject to prohibition is thoroughly consistent with

this tradition.

While we decline on principle to define the precise

boundaries of the ‘‘quasi-judicial”’ as distinguished from

the ‘‘investigative’’ activities of a public prosecutor, we

would nevertheless find no need to do so here, since the ac-

tivities which petitioner seeks to enjoin fall clearly and

unambiguously within the latter category. Pursuant to an

Executive Order issued on February 7, 1975 (Executive

Order No. 4, 9 NYCRR 3.4; see Executive Law, §63 [subd

8]) and to the specific requests of the Commissioner of

Health and the Acting Commissioner of the Department

of Social Services (see Executive Law, §63 [subd 3]), the

Special Nursing Home Prosecutor was Carrying out his

mandate by looking into the possibility of corruption and

medicaid fraud on the part of certain health care facilities

10a

in Suffolk County. Although his investigation had focused

upon Brunswick Nursing Center and some of. that

facility’s suppliers, it had not yet progressed to a stage

where individual wrongdoers had been identified or

discrete chares of criminality raised. That the matter had

been brought to the attention of a Grand Jury does not

detract from our conclusion that no ‘‘quasi-judicial’”’ ac-

tivity was involved, since Grand Juries no less than public

prosecutors have investigative as well as accusatory func-

tions to perform in our system of criminal justice (see Mat-

ter of Additional January 1979 Grand Jury v. Jane Doe,

50 NY2d 14, 19; People v. Calbud, Inc., 49 NY2d 389,

394). When a Grand Jury, aided by a public prosecutor, is

Carrying Out its purely investigative role, it is no more sub-

ject to prohibition than is the prosecutor.’

We note that our holding today does not in any way

conflict with prior cases in which we have recognized the

availability of prohibition as a means to prevent a public

prosecutor from acting in excess of his authority. In Mat-

ter of B T Prods v. Barr, (44 NY2d 226, supra), for exam-

ple, we held that prohibition would lie to prevent the New

York State Organized Crime Task Force from retaining

property seized pursuant to a judicially issued warrant.

Although we did not analyze in detail the nature of the

acts sought to be enjoined there, it is evident from our

discussion that we considered the acts of the prosecutor in

that case to be “‘quasi-judicial’’ because they were logical-

ly inseparable from the acts of the court which had im-

properly issued the search warrant. In Matter of Dondi v.

Jones (40 NY2d 8, 13, supra), we recognized that prohibi-

tion would be an appropriate remedy if it were found that

a Special Prosecutor was exceeding the authority confer-

red upon him through Executive Order by prosecuting a

particular criminal defendant under an existing indict-

ment. Unlike the activities of the Special Prosecutor in the

present situation, however, the prosecutorial acts at issue

lla

in Dondi may readily be classified as ‘‘quasi-judicial’’,

since in that case the matter had progressed well past the

investigative, fact-finding stage and the function of the

prosecutor had become purely that of an accuser (cf Mat-

ter of Nicholson v. State Comm on Judicial Conduct, 50

NY2d 597, supra [prohibition would lie to enjoin im-

proper judicial conduct investigation which has a ‘‘chilling

effect’’ upon protected First Amendment rights]). In the

instant situation, in contrast, none of the traditional

characteristics of a judicial proceeding are present. No one

has been accused of committing a crime, and, indeed,

there is yet no concrete indication of any criminal wrong-

doing. At this point, the role of the Special Prosecutor is

limited to investigating the circumstances surrounding

Brunswick’s financial transactions and gathering

testimony for the purposes of ascertaining whether a crime

has been committed. Inasmuch as the activities of the

Special Prosecutor in this role are related only to his ‘‘ex-

ecutive’ functions and are in no way connected with the

*‘quasi-judicial’’ functions he may perform in other con-

texts, this cannot be considered a proper case for prohibi-

tion. Petitioner’s remedy, if indeed she is entitled to

remedy at all, lies solely in a traditional motion to quash

the subpoena issued against her bank.’

12a

1. In view of our conclusion that prohibition would not, in any

event, lie, we find it unnecessary to comment upon the determination

of the Appellate Division that petitioner had ‘‘standing’’ by reason oi

her status as a ‘‘potential target’’ for Grand Jury action.

2. The circumstances of the present case do not require us to con-

sider whether prohibition would lie to enjoin a public prosecutor, whu

has not obtained judicial approval, from resubmitting specific charges

against a particular, named defendant to a second Grand Jury after a

prior Grand Jury has voted to dismiss or has been discharged without

taking any action on the charge.

3. Petitioner has not contended that the investigation in question

was not within the scope of the Special Prosecutor’s executive authori-

ty as outlined in Executive Order No. 4 (9 NYCRR 3.4, supra). We

note, however, that the traditional remedy of a motion to quash pro-

vides adequate protection to those who feel themselves aggrieved by

the conduct of a public prosecutor who pursues an investigation in ex-

cess of his legitimate authority (see, e.g., Matter of Additional

January 1979 Grand Jury v. Jane Doe, 50 NY2d 14, supra; Matter of

Mann Judd Landau v. Haynes, 49 NY2d 128).

13a

APPENDIX ‘‘C’’

ORDER DATED MAY 27, 1980

At a Term of the Appellate Division of the Supreme

Court of the State of New York, Second Judicial

Department held in Kings County on May 27, 1980.

HON. JAMES D. HOPKINS, Justice Presiding

HON. LEON D. LAZER,

HON. JOHN P. COHALAN, JR.,

HON. FRANK D. O’CONNOR, Associate Justices

In the Matter of Barbara McGinley,

Appellant,

Vv.

CHARLES J. HYNES, Deputy Attorney General,

Respondent-respondent,

et al.,

Respondent.

In the above entitled cause pursuant to article 78, in-

ter alia, to prohibit the Special Nursing Home Prosecutor

from pursuing a Grand Jury investigation of Brunswick

Hospital, its employees and suppliers, the above named

Barbara McGinley, petitioner, having appealed to this

court from a judgment of the Supreme Court, Suffolk

County, entered February 25, 1980, which dismissed the

petition; and the said appeal having been argued by

14a

Stephen R. Taub, Esq., of counsel for the appellant and

argued by Terrence P. Buckley, Esq., of counsel for

Charles J. Hynes, Deputy Attorney-General, respondent

pro se, due deliberation having been had thereon; and

upon this court’s opinion and decision slip heretofore filed

and made a part hereof, it is

ORDERED that the judgment appealed from is

hereby unanimously reversed, on the law, without costs or

disbursements, and the petition granted, without prejudice

to the Special Prosecutor to seek an order of resubmission.

Enter:

IRVING N. SELKIN

Clerk of the Appellate Division

15a

APPENDIX D

OPINION

JAMES D. HOPKINS, J.P.

LEON D. LAZER

JOHN P. COHALAN, JR.

FRANK D. O’CONNOR, JJ.

April 2, 1980

In the Matter of Barbara McGinley,

Appellant,

v.

Charles J. Hynes, Deputy Attorney General,

Respondent-Respondent,

et al.

Respondent.

Stephen R. Taub, Lynbrook, N.Y. for appellant.

Charles J. Hynes, Deputy Attorney General, Haup-

pauge, N.Y. (Terrence P. Buckley Special Assistant At-

torney General of counsel), respondent pro se.

In a proceeding pursuant to CPLR article 78 to, inter

alia, prohibit the Special Nursing Home Prosecutor from

pursuing a Grand Jury investigation of Brunswick

Hospital, its employees and suppliers, the appeal is from a

judgment of the Supreme Court, Suffolk County (MC-

16a

Carthy, J.), entered February 25, 1980, which dismissed

the petition.

. Judgment reversed, on the law, without costs or

disbursements, and petition granted, without prejudice to

the Special Prosecutor to seek an order of resubmission.

Special Term erred in holding that the petitioner, who

is the Director of Nursing, Psychiatric Division, at

Brunswick Hospital does not have standing to bring this

proceeding. The Grand Jury is investigating Brunswick

Hospital, its employees and suppliers. The petitioner, who

has not been immunized or yet offered immunity, is thus a

potential target of the investigation. Moreover, the Special

Prosecutor should have applied to the court for an order

of resubmission. Our review of the minutes of the

September, 1978 Grand Jury proceedings reveals that the

Grand Jury sat on 28 separate occasions, heard testimony

from 43 witnesses (some of whom were recalled on more

than one occasion), and received numerous documents in-

to evidence. At the conclusion of the May 25, 1979 ses-

sion, the following colloquy transpired between the

Special Prosecutor (Mr. Puckley) and two of the Grand

Jurors:

/ *“*MR. BUCKLEY: Yes. My plan right now is to br-

‘~ ing Mr. Director in first and do some questioning un-

til a certain hour. I don’t expect too much longer with

Mr. King, but I would like to get Mr. Director in at

the beginning as soon as they are here, and finish off

Mr. King before we adjourn for the day.

**A JUROR: Do you feel once you get Mr. Director

out of the way and Mr. King, that you wouldn’t have

much more testimony in this entire case.”’

*“‘MR. BUCKLEY: I think not, as far as I am con-

cerned.

**THE PREVIOUS JUROR: So would it be possi-

ble to extend say to the end of June and recess for the

17a

summer and come back in September?

**MR. BUCKLEY: Sure.

*“‘THE PREVIOUS JUROR: We’d like to think

about something like that.

‘*MR. BUCKLEY: Something like that would be

possible.”’

Nevertheless, in spite of the Special Prosecutor’s ad-

mission that he would not have too much more testimony

for the entire case, he decided to withdraw the investiga-

tion from the Grand Jury on June 22, 1979, without a vote

being taken. Our view of the record as of that date in-

dicates that virtually no incriminating evidence had been

adduced against Brunswick Hospital, its agents or sup-

pliers. In other words, there was no concrete evidence on

which a true bill could have been voted. It thus «ppears

that withdrawal of the case from the September, 1978

Grand Jury took place because of the possibility that the

Grand Jury would vote against indictment. Under these

circumstances, the Special Prosecutor should have obtain-

ed court approval for resubmission to the October, 1979

Grand Jury (see People v. Rodriguez, 11 NY2d 279; see,

also, People v. Nicholas, 35 AD2d 18).

The Special Prosecutor argues before this court that

he never actually finished his investigation and thus an

order of resubmission was not necessary. We disagree

because the record reveals otherwise. As noted earlier, on

May 25, 1979, the Special Prosecutor informed the prior

Grand Jury that he had only a few witnesses remaining un-

til the end of the case. Nevertheless, after hearing all or

most of these remaining few witnesses, he withdrew the in-

vestigation. However, a review of the minutes of the pro-

ceedings before the October, 1979 Grand Jury shows that,

before this court stayed all further proceedings, testimony

had been heard from 12 witnesses, only one of whom ap-

peared before the prior Grand Jury. In addition, the

18a

Special Prosecutor informs us that there are 11 remaining

prospective witnesses, 9 of whom did not testify before the

previous Grand Jury. It would seem, then, that the Specia!

Prosecutor’s admission to the September, 1978 Grand

Jury that he only had a few remaining witnesses was either

erroneous or misleading. In either event, the nature of the

new investigation, based upon the testimony of almost en-

tirely different witnesses, indicates that it is not merely a

more complete presentation of that which was attempted

before the prior Grand Jury. Our conclusion is that the

Special Prosecutor must seek an order of resubmission if

he is to continue his investigation of this matter (See CPL

190.75).

HOPKINS, J.P., LAZER, COHALAN and O’CON-

NOR, JJ., Concur.

19a

APPENDIX E

MEMORANDUM

BY MC CARTHY, J.S.C.

DATED January 29, 1980

SUPREME COURT, SUFFOLK COUNTY

In the Matter of the Application of

BARBARA MC GINLEY,

Petitioner,

VS.

HON. CHARLES J. HYNES, Deputy Attorney

General and CHEMICAL BANK,

Respondents.

STEPHEN R. TAUB

Attorney for Petitioner

8 Freer Street, Suite 205

Lynbrook, New York 11563

CHARLES J. HYNES, Deputy Attorney General

Attorney for Respondents

New York State Office Bldg., Room 4A10

Veterans Memorial Highway

Hauppauge, New York 11787

In this Article 78 proceeding, petitioner, Barbara Mc

Ginley, seeks to prohibit respondent, Charles J. Hynes,

from pursuing an investigation of Brunswick Hospital

20a

Centre, Inc., its agents and employees, before the ‘‘Oc-

tober Grand Jury III’’ and to prohibit production by

respondent, Chemical Bank, of any and all bank records

designated in a subpoena duces tecum served on the said

bank.

It appears from the petition that petitioner is an

employee of the Brunswick Hospital Centre, Inc., being

currently Director of Brunswick House, Inc., a facility of

the centre. Petitioner has not been subpoenaed to testify

before this Grand Jury nor have any of her records been

subpoenaed, though the subpoena served upon the bank

requires the production of bank records which, inter alia,

includes the records of an account of the petitioner.

The extraordinaryr emedy of prohibition lies only

where there is a clear legal right and only when the body or

officer ‘‘acts or threatens to act without jurisdiction in a

matter over which it has no power over the subject matter

or where it exceeds its authorized powers in the proceeding

over which it has jurisdiction’ (B. T. Productions v. Barr,

44 NY2d 226, 231, 405 NYS2d 9, 11). Public prosecutors

are quasi-judicial officers for the purposes of a writ of

prohibition in a proper case (See Matter of Dondi Jones,

40 NY2d 13, 386 NYS2d 8). Is this a proper case? The

Court thinks not.

Petitioner is a mere employee of the Brunswick

Hospital Centre and, in the opinion of the Court, not

possessed of the right to prohibit the Special Prosecutor

from proceeding with his investigation. Even if the Special

Prosecutor is exceeding his jurisdiction or power, the ex-

traordinary remedy of prohibition will not lie if there is an

adaequate remedy at law (Matter of State of New York v.

King, 36 NY2d 59, 62, 364 NYS2d 879, 881; Application

of Scotti, 53 AD2d 282, 385 NYS2d 659, 662).

Further, the papers in support of the application are

based upon hearsay, conjecture and surmise and the Court

is not convinced that the facts are as alleged by petitioner,

2la

that the Special Prosecutor is proceeding in excess of his

jurisdiction. On familiar principles, even a witness is not

entitled to challenge the authority of the Court or the

Grand Jury provided they have a de facto existence and

organization (Blair v. United States, 250 US 273, 39 S Ct.

468, 63 L. Ed. 979) and even petitioner admits that this

Grand Jury has de facto existence. From an examination

of the submissions in the proceeding it would appear that

the ‘‘October Grand Jury III’’ has authority and organiza-

tion to investigate the facts in order to determine the ques-

tion whether the facts show a case within their jurisdiction

(L & S. Hosp. & Inst. Supplies v. Hynes, 51 AD2d 515,

378 NYS2d 78).

By way of alternate relief, petitioner’s attorney re-

quests that the application be viewed as a motion to quash

the subpoena should the Court conclude such a motion

would be more appropriate. If the application is so view-

ed, it is untimely as it should have been made prior to the

return date of the subpoena (Santangelo v. People, 38

NY2d 536, 381 NYS2d 472). Even if such procedural ob-

jection be overlooked, the case is governed by the general

rule that the issuance of a subpoena to a third party to ob-

tain the records of such third party does not violate the

rights of a defendant, even if a criminal prosecution is

contemplated at the time the subpoena is issued. (United

States v. Miller, 425 US 435, 96 S. Ct. 1619, 48 L. Ed.2d

71; Shapiro v. Chase Manhattan Bank, 53 AD2d 542, 384

NYS2d 795). Petitioner can assert neither ownership nor

possession of the bank records. She has ‘‘no reasonable

expectation of privacy’? (Democratic County Committee

of Bronx Co. v. Nadjari, 52 AD2d 70, 383 NYS2d 311;

People v. Santucci, 89 Misc. 2d 943, 392 NYS2d 996).

The petition has no merit and must be dismissed.

Settle judgment.

s/John G. McCarthy

5.S.C.

22a

APPENDIX F

EXHIBITS: VARIOUS LETTERS

EXECUTIVE ORDER

The Honorable Louis J. Lefkowitz

Attorney General of the State of New York

State Capitol

Albany, New York

WHEREAS, On January 10, 1975 Charles J. Hynes

was appointed by you as Deputy Attorney General to act

as Special Prosecutor to inquire into possible criminal

violations in the nursing home industry and related mat-

ters; and

WHEREAS, on February 4, 1975 you requested, on

behalf of Deputy Attorney General Charles J. Hynes,

authorization to exercise the powers provided for by Ex-

ecutive Law section 63, subdivision 8, in order that Deputy

Attorney General Hynes might fully exercise his respon-

sibilities in connection with the investigation of the nurs-

ing home industry;

NOW, THEREFORE, pursuant to subdivision 8 of

section 63 of the Executive Law, and in accordance with

the statute and law in such case *** and provided, I find it

to be in the public interest to require that you inquire into

matters concerning the public peace, public safety and

public justice with respect to possible criminal violations

committed in connection with or in any way related to the

management, control, operation, funding of any nursing

home, care center, health facility or related entity located

in the State of New York, or any principal, agent, supplier

or other person involved therewith, and I so direct you to

do so in person by your assistant or deputies and to have

the powers and duties specified in such subdivision 8 for

the purpose of this requirement.

23a

GIVEN under my hand and the Privy Sea) oj

the State at the Capito] in the City of

Albany this seventh day of February in

the year of our Lord one thousand nine

hundred seventy five.

s/Hugh L. Carey

THE GOVERNOR

NEW YORK STATE

DEPARTMENT OF SOCIAL SERVICES

September 30, 1977

Hon. Louis J. Lefkowitz

Attorey General

. State of New York

Two World Trade Center

New York, New York

Dear General Lefkowitz:

Pursuant to Section 63(3) of the Executive Law, I

hereby request that your office investigate the alleged

commission of any indictable offense or offenses in viola-

tion of the Social Services Law or in relation to any mat-

ters connected with the New York State Department of

Social Services by hospitals subject to the provisions of the

Social Services Law, their principals, agents, suppliers or

other persons connected or involved therewith, and that

you prosecute the person or persons believed to have com-

mitted the same or any crime or offense arising out of your

investigation or prosecution or both.

Very truly yours,

s/Carmen Shang

24a

STATE OF NEW YORK

DEPARTMENT OF HEALTH

September 30, 1977

Dear General Lefkowitz:

Pursuant to Section 63(3) of the Executive Law, |

hereby request that your office investigate the alleged

commission of any indictable offense or offenses in viola-

tion of the Public Health Law or in relation to any matters

connected with the New York State Department of Health

by hospitals subject to the provisions of Article 28 of the

Public Health Law, their principals, agents, suppliers or

other persons connected or involved therewith; and that

you prosecute the person or persons believed to have com-

mitted the same or any crime or offense arising out of your

investigation or prosecution or both.

Sincerely yours,

s/Robert P. Whalen

Robert P. Whalen, M.D.

Commissioner of Health

Honorable Louis J. Lefkowitz

Attorney General

State of New York

Two World Trade Center

New York, N.Y. 10047

OCTOBER 6, 1977

Dear Deputy Attorney General Hynes:

I have received the attached requests from the Com-

missioner of Health and the Acting Commissioner of

Social Services that I conduct an investigation and, if in-

dicated, prosecutions, pursuant to Section 63(3) of the Ex-

ecutive Law. I hereby designate you as my Deputy to exer-

cise all the powers conferred upon me by this Section in

such investigations and prosecutions.

25a

I enclose the original written requests referred to

above received from Commissioner Robert P. Whalen and

Acting Commissioner Carmen Shang, both dated

September 10, 1977.

This assignment shall supplement the authority you

received upon your appointment as my Deputy on January

10, 1975 to perform all the functions and to exercise all the

powers conferred upon the Attorney General. Please be

advised that similar designations are required for each of

these special assistants or other attorneys employed

hereafter that you notify me will be handling such matters.

Sincerely,

LOUIS J. LEFKOWITZ

Attorney General

Hon. Charles J. Hynes

270 Broadway

New York, N.Y. 10007

26a

APPENDIX G

ORDER EXTENDING THE TERM OF THE 1978

: SEPTEMBER GRAND JURY NUMBER III

At a Term, Part V of the County Court of Suffolk

County, held at the Criminal Courts Building, Center

Drive South, Riverhead, New York on the Ist day of

June, 1979,

PRESENT:

HON. HARRY E. SEIDELL

County Court Judge

In the Matter of the Application of

CHARLES J. HYNES, Special Deputy Attorney

General, for an Order Extending the September 1978

Term of the County Court and the Term of the

September GRAND JURY NUMBER III to June 22, 1979

It appearing from the attached affidavits and applica-

tions of Terrence P. Buckley, Special Assistant Attorney

General of the State of New York (Special Prosecutor),

and Roger Kendall, Foreman of the September 1978

GRAND JURY NUMBER III, that the Grand Jury is cur-

rently investigating criminal activities in Suffolk County

involving a hospital and a nursing home; that it is

necessary that additional testimony be heard by said

Grand Jury for the proper and complete presentation and

consideration of the aforesaid matters now pending before

it; that the Grand Jury has not completed, nor will be able

to complete its business currently pending as described

above before the <xpiration of its Term on June 1, 1979;

that the necessary additional testimony cannot be com-

pleted by June 1, 1979, and that the application made

27a

herein was authorized by the affirmative vote of a majori-

ty of the above-captioned Grand Jury; therefore it is

ORDERED, that the September 1978 Term of the

County Court of Suffolk County and the Term of the

September 1978 GRAND JURY NUMBER III be and the

same is hereby extended to and including June 22, 1979.

ENTER,

s/Harry E. Seidell

HARRY E. SEIDELL

COUNTY COURT JUDGE,

COUNTY OF SUFFOLK

Granted

June 1, 1979

i 4

28a

APPENDIX H—AFFIDAVIT OF TERRENCE P.

BUCKLEY AND APPLICATION

COUNTY COURT

COUNTY OF SUFFOLK

In the Matter of the Application of

CHARLES J. HYNES, Special Deputy Attorney General,

for an Order Extending the September 1978 Term of the

County Court and the Term of the September GRAND

JURY NUMBER III to

STATE OF NEW YORK )

SS:

COUNTY OF SUFFOLK)

TERRENCE P. BUCKLEY, being duly sworn

deposes and says:

I am a Special Assistant Attorney General of the Stte

of New York (Special Prosecutor) in the Long Island Of-

fice of Charles J. Hynes, Deputy Attorney General, ap-

pointed by Attorney General Louis Lefkowitz on January

10, 1975. That appointment was made in connection with

the requests of the Honorable Abe Levine, Commissioner

of the New York State Department of Social Services, and

the Honorable Hollis Ingraham, Commissioner of the

New York State Department of Health, made pursuant to

the provisions of Section 63, subdivision 3 of the Ex-

ecutive Law. In October of 1977, Deputy Attorney

General Hynes’ authority was supplemented to include in-

vestigation, and if need be, prosecution of hospitals in

New York State.

The Office of the Deputy Attorney General is re-

quired to investigate the alleged commission of any indic-

29a

table offense or offenses in violation of the Public Health

Law or the Social Service Law, or in relation to any mat-

ters connected with the New York State Department of

Health or the New York State Department of Social Ser-

vices, by hospitals, adult homes, nursing entities, and en-

tities subject to the provisions of Article 28 of the Public

Health Law, located in the State of New York, and prin-

cipals, agents, suppliers, and other persons connected or

involved therewith; and it is furthermore the duty of the

Office of the Deputy Attorney General to prosecute the

person or persons believed to have committed the same or

any crimes or offenses arising out of the described in-

vestigations or prosecutions or both.

In connection with the described investigative and

prosecutorial responsibilities, the Office of the Deputy At-

torney General (Special Prosecutor) has presented, and is

currently presenting, evidence concerning the above-

described investigations to the September 1978 Suffolk

County GRAND JURY NUMBER III. This Grand Jury

was empanelled on September 5, 1978 by the Honorable

Harry E. Seidell, County Court Judge.

At the present time, there is pending before the Grand

Jury, investigations concerning a hospital and a nursing

home.

Each of the investigations referred to above involves a

complicated financial fraud. In order to properly in-

vestigate such a case it is necessary to scrutinize the books

and records of the institution as well as various businesses

dealing with the institution. One of the reasons that this

Grand Jury has been unable to complete its business is that

several of its subpoenas have not yet been complied with.

Until such compliance takes place the Grand Jury will be

unable to complete its currently pending investigations.

The Office of the Deputy Attorney General plans to

call several additional witnesses before, the Grand Jury

will be in a position to conclude these investigations. It is

30a

Clear to me that this Grand Jury will require an extension

of their term for at least 3 weeks to properly conclude each

investigation.

‘Based upon.all of the above, it is my declaration that

‘the September GRAND ‘JURY NUMBER III for the

County of Suffolk has not completed, nor will be able to

complete its stated business before the expiration of its

present term on June 1, 1979.

“WHEREFORE, it is requested that this Honorable

Court extend the term of the County Court of the County

of Suffolk, arid the term of the September 1978 GRAND

JURY NUMBER III to.and including.

Dated: Hauppauge, New York

May 31, 1978

s/Terrence P. Buckley

TERRENCE P. BUCKLEY

Special Assistant

Attorney General

Sworn to

May 3lst, 1979

3la

APPENDIX I

PETITION AND AFFIDAVIT OF ROGER KENDALL

COUNTY COURT

COUNTY OF SUFFOLK

In the Matter of the Application of

CHARLES J. HYNES, Special Deputy Attorney

General, for an Order Extending the September 1978

Term of the County Court and the Term of the

September GRAND JURY NUMBER III to

TO THE COUNTY COURT OF SUFFOLK COUNTY:

The petition of Roger Kendall, respectfully shows to

the Court as follows:

I am the Foreman of the September GRAND JURY

NUMBER III and make this application pursuant to the

affirmative vote of the Grand Jury.

I have read the attached affidavit and application of

Terrence P. Buckley, and reaffirm those statements made

with respect to the investigations being conducted by the

Grand Jury.

It is the declaration of the September GRAND JURY

NUMBER III, through myself as its Foreman, after a vote

duly taken, that the Grand Jury has not yet completed

those matters before June 1, 1979, the date on which the

September 1978 Term of the Court and the Term of the

above-captioned Grand Jury expires.

THEREFORE, the Grand Jury, through myself,

after a vote duly taken, joins in the application of the

Deputy Attorney General for an Order extending the

September 1978 Term of the Court, and the Term of the

September GRAND JURY NUMBER III to and including

June 27, 1977.

32a

s/Roger Kendall

ROGER KENDALL, Foreman

September Grand Jury Number III

Sworn to

June Ist, 1979

33a

APPENDIX J

ORDER AUTHORIZING EMPANELLING

OF ADDITIONAL GRAND JURIES

At a Special Term of the Supreme Court of the State

of New York, held in and for the County of Suffolk,

at Chambers, Broadway, Amityville, New York, on

the 23rd day of August, 1979.

PRESENT:

HON. ARTHUR M. CROMARTY

Justice of the Supreme Court

In the Matter of the Application of

PATRICK HENRY, District Attorney of Suffolk County

for an Order Authorizing the Empanelling of Two

Additional Grand Juries for the OCTOBER Term

of the County Court of Suffolk County.

An application having been made by PATRICK

HENRY, District Attorney of Suffolk County, by petition

of IRA H. SIMON, Assistant District Attorney, verified

August 21, 1979, for the empanelling of two additional

grand juries for the OCTOBER term of the County Court

of Suffolk County.

Now, upon reading said petition, and due delibera-

tion having been had thereon, the undersigned, Ad-

ministrative Judge having jurisdiction of the County

Court of Suffolk County, pursuant to Criminal Procedure

Law Section 190.10 and 22 NYCRR 693.3, does hereby

ORDER and DIRECT that in addition to the regular

County Court grand jury, two additional grand juries be

empanelled for the OCTOBER term of the County Court,

said grand juries to be referred to as OCTOBER GRAND

34a

JURY NUMBER I and OCTOBER GRAND JURY

NUMBER II and OCTOBER GRAND JURY NUMBER

III respectively, and it is

ORDERED AND DIRECTED that the Commis-

sioner of Jurors summon such additional jurors as are

necessary to empanel OCTOBER GRAND JURY

NUMBER II and OCTOBER GRAND JURY NUMBER

ITI.

ENTER,

s/Arthur M. Cromarty

Justice of the Supreme Court

Granted

August 23, 1979

PETITION FOR ORDER AUTHORIZING

EMPANELLING OF ADDITIONAL GRAND JURIES

SUPREME COURT OF THE STATE OF NEW YORK

In the Matter of the Application of

PATRICK HENRY, District Attorney of Suffolk

County, for an Order Authorizing the Empanelling

of Two Additional Grand Juries for the OCTOBER

Term of the County Court of Suffolk County.

TO THE SUPREME COURT OF SUFFOLK COUNTY:

The petition of IRA H. SIMON, respectfully shows

to the Court as follows:

I am an Assistant District Attorney of Suffolk Coun-

ty in charge of the Grand Jury Bureau, authorized by

PATRICK HENRY, the District Attorney of Suffolk

County, to make this application.

35a

This application is made to the Court for an order

authorizing the empanelling of two additional grand juries

for the OCTOBER term of the County Court, and is made

pursuant to Section 190.10 of the Criminal Procedure

Law, and 22 NYCRR 693.3.

The volume of cases received by the District At-

torney’s office for prosecution from the various police

agencies of Suffolk County has increased substantially in

the last few years. The number of cases received from the

investigative units of the District Attorney’s office has

likewise increased substantially in the last few years.

CHARLES J. HYNES, Deputy Attorney General for

the State of New York, (Special Prosecutor for Nursing

Homes, Health and Social Services), requests a separate

grand jury for the OCTOBER 1979 term of the County

Court. This grand jury will hear evidence concerning

possible criminal violations in the operation of nursing

homes, private proprietary homes for adults, hospitals,

and the Medicaid system in Suffolk County. A separate

grand jury is requested because of the anticipated length

of the investigation, the number of witnesses, and the

quantity of testimony involved.

The District Attorney now occupies a portion of the

Criminal Courts Building, Center Drive South, Riverhead,

New York, and a portion of the H. Lee Dennison

Building, Veterans Memorial Highway, Hauppauge, New

York. These facilities both contain grand Jury rooms,

making possible the use of two grand juries simultaneous-

ly.

The use of two grand juries simultaneously will allow

greater flexibility in the scheduling of the ever increasing

number of felony cases.

In addition to the greater number of cases, recent

changes in the law governing the prosecution of crimes re-

quire ever increasing amounts of time in preparing and

presenting cases to the grand jury.

36a

The presentation of cases based upon felony com-

plaints filed in the lower criminal courts will be greatly

speeded up, thus reducing the number of persons in-

carcerated or on bail pending grand jury action.

There will be additional time available for the in-

vestigative functions of the grand jury and less need to ex-

tend the term of grand juries.

No previous application has been made for the relief

requested herein.

WHEREFORE, it is respectfully requested that an

order authorizing that, in addition to the regular grand

jury, two additional grand juries be empanelled for the

OCTOBER term of the County Court of Suffolk County,

said grand juries to be referred to as OCTOBER GRAND

JURY NUMBER I, and OCTOBER GRAND JURY

NUMBER II, and OCTOBER GRAND JURY NUMBER

III, respectively.

s/Ira H. Simon

IRA H. SIMON

Verified by

Ira H. Simon

August 21st, 1979

37a

APPENDIX K

ORDER AUTHORIZING EMPANELLING

OF ADDITIONAL GRAND JURIES

At a Special Term of the Supreme Court of the State

of New York, held in and for the County of Suffolk,

at Chambers, Broadway, Amityville, New York, on

the 27th day of July, 1978

PRESENT:

HON. ARTHUR M. CROMARTY

Justice of the Supreme Court

In the Matter of the Application of

PATRICK HENRY, District Attorney of Suffolk County,

for an Order Authorizing the Empanelling of Two

Additional Grand Juries for the September Term

of the County Court of Suffolk County.

An application having been made by PATRICK

HENRY, District Attorney of Suffolk County, by petition

of IRA H. SIMON, Assistant District Attorney, verified

Suly 26, 1978, for the empanelling of two additional! grand

juries for the September term of the County Court of Suf-

folk County.

Now, upon reading said petition, and due delibera-

tion having been had thereon, the undersigned, Ad-

ministrative Judge having jurisdiction of the County

Court of Suffolk County, pursuant to Criminal Procedure

Law Section 190.10 and 22 NYCRR 693.3, does hereby

ORDER and DIRECT that in addition to the regular

County Court grand jury, two additional grand juries be

empanelled for the September term of the County Court,

38a

said grand juries to be referred to as SEPTEMBER

GRAND JURY NUMBER I, SEPTEMBER GRAND

JURY NUMBER II and SEPTEMBER GRAND JURY

NUMBER III respectively, and it is

ORDERED AND DIRECTED that the Commis-

sioner of Jurors sucamon such additional jurors as are

necessary to emparel SEPTEMBER GRAND JURY

NUMBER II and SEPTEMBER GRAND JURY

NUMBER III.

ENTER,

ARTHUR M. CROMARTY

J.S.C.

Granted

July 27, 1978

PETITION FOR ORDER AUTHORIZING

EMPANELLING OF ADDITIONAL GRAND JURIES

SUPREME COURT OF THE STATE OF NEW YORK

In the Matter of the Application of

PATRICK HENRY, District Attorney of Suffolk

County, for an Order Authorizing the

Empanelling of Two Additional Grand Juries

for the September Term of the County Court

of Suffolk County

TO THE SUPREME COURT OF SUFFOLK COUNTY:

The petition of IRA H. SIMON, respectfully shows

to the Court as follows:

I am an Assistant District Attorney of Suffolk Coun-

ty in charge of the Grand J ury Bureau, authorized by

es

39a

PATRICK HENRY, the District Attorney of Suffolk

County, to make this application.

This application is made to the Court for an order

authorizing the empaneliing of two additional grand juries

for the September term of the County Court, and is made

pursuant to Section 190.10 of the Criminal Procedure Law

and 22 NYCRR 693.3.

The volume of cases received by the District At-

torney’s office for prosecution from the various police

agencies of Suffolk County has increased substantially in

the last few years. The number of cases received from the

investigative units of the District Attorney’s office has

likewise increased substantially in the last few years.

CHARLES J. HYNES, Deputy Attorney General for

the State of New York, (Special Prosecutor for Nursing

Homes, Health and Social Services), requests a separate

grand jury for the September 1978 term of the County

Court. This grand jury will hear evidence concerning

possible criminal violations in the operation of nursing

homes, private proprietary homes for adults, and

hospitals in Suffolk County. A separate grand jury is re-

quested because of the anticipated length of the investiga-

tion, the number of witnesses, and the quantity of

testimony involved.

The District Attorney now occupies a portion of the

Criminal Courts Building, Center Drive South, Riverhead,

New York, and a portion of the H. Lee Dennison

Building, Veterans Memorial Highway, Hauppauge, New

York. These facilities both contain grand jury rooms,

making possible the use of three grand juries

simultaneousiy.

The use of three grand juries Simultaneously will

allow greater flexibility inthe scheduling of the ever in-

creasing number of felony cases.

In addition to the greater number of cases, recent

changes in the law governing the prosecution of crimes re-

40a

quire ever increasing amounts of time in preparing and

presenting cases to the grand jury.

The presentation of cases based upon felony com-

plaints filed in the lower criminal courts will be greatly

speeded up, thus reducing the number of persons in-

carcerated or on bail pending grand jury action.

There will be additional time available for

theinvestigative functions of the grand jury and less need

to extend the term of grand juries.

No previous application has been made for the relief

requested herein.

WHEREFORE, it is respectfully requested that an

order authorizing that, in addition to the regular grand

jury, two additional grand juries be empanelled for the

September term of the County Court of Suffolk County,

said grand juries to be referred to as SEPTEMBER

GRAND JURY NUMBER I, and SEPTEMBER GRAND

JURY NUMBER II, and SEPTEMBER GRAND JURY

NUMBER III, respectively.

s/

IRA H. SIMON

4la

Verified by

Ira H. Simon

July 26th, 1978

APPENDIX L

ORDER EXTENDING THE TERM OF THE

1978 SEPTEMBER GRAND JURY NUMBER III

At a Term, Part of the County Court of Suffolk

County, held at the Criminal Courts Building, Center

Drive South, Riverhead, New York on the 29th day of

September, 1978.

PRESENT:

HON. HARRY E. SEIDELL

County Court Judge

In the Matter of the Application of

CHARLES J. HYNES, Special Deputy Attorney

General, for an Order Extending the September 1978

Term of the County Court and the Term of the

September GRAND JURY NUMBER III to

January 2, 1979

It appearing from the attached affidavits and applica-

tions of Richard A. Mille, Special Assistant Attorney

General of the State of New York (Special Prosecutor),

and Roger Kendall, Foreman of the September 1978

GRAND JURY NUMBER III, that the Grand Jury is cur-

rently investigating criminal activities in Suffolk County

involving two hospitals, a nursing home and several adult

homes; that it is necessary that additional testimony be

42a

heard by said Grand Jury for the proper and complete

presentation and consideration of the aforesaid matters

now pending before it; that the Grand Jury has not com-

pleted, nor will be able to complete its business currently

pending as described above before the expiration of its

Term on October 2, 1978; that the necessary additional

testimony cannot be completed by October 2, 1978, and

that the application made herein was authorized by the af-

firmative vote of a majority of the above-captioned Grand

Jury; therefore it is

ORDERED, that the September 1978 Term of the

County Court of Suffolk County and the Term of the

September 1978 GRAND JURY NUMBER III be and the

same is hereby extended to and including January 2, 1979.

s/Harry E. Seidell

HARRY E. SEIDELL

County Court Judge, County of Suffolk

Granted

September 29, 1978

43a

APPENDIX M—AFFIDAVIT OF RICHARD A.

MILLER AND APPLICATION

COUNTY COURT

COUNTY OF SUFFOLK

In the Matter of the Application of

CHARLES J. HYNES, Special Deputy Attorney General,

for an Order Extending the September 1978 Term of the

County Court and the Term of the September GRAND

JURY NUMBER III to January 2, 1979

STATE OF NEW YORK )

Ss:

COUNTY OF SUFFOLK )

RICHARD A. MILLER, being duly sworn, deposes

and says:

I am a Special Assistant Attorney General of the State

of New York (Special Prosecutor) in charge of the Long

Island Office of Charles J. Hynes, Deputy Attorney

General, appointed by Attorney General Louis Lefkowitz

on January 10, 1975. That appointment was made in con-

nection with the requests of the Honorabale Abe Levine,

Commissioner of the New York State Department of

Social Services, and the Honorable Hollis Ingraham,

Commissioner of the New York State Department of

Health, made pursuant to the provisions of Section 63,

subdivision 3 of the Executive Law. In October of 1977,

Deputy Attorney General Hynes’ authority was sup-

plemented to include investigation, and if need be, pro-

secution of hospitals in New York State.

44a

The Office of the Deputy Attorney General is re-

quired to investigate the alleged commission of any indic-

table offense or offenses in violation of the Public Health

Law or the Social Service Law, or in relation to any mat-

ters connected with the New York State Department of

Health or the New York State Department of Social Ser-

vices, by hospitals, adult homes, nursing homes, health

related facilities, care centers and related entities, and en-

tities subject to the provisions of Article 28 of the Public

Health Law, located in the State of New York, and prin-

cipals, agents, suppliers, and other persons connected or

involved therewith; and it is furthermore the duty of the

Office of the Deputy Attorney General to prosecute the

person or persons believed to have committed the same or

any crimes or offenses arising out of the described in-

vestigations or prosecutions or both.

In connection with the described investigative and

prosecutorial responsibilities, the Office of the Deputy At-

torney General (Special Prosecutor) has presented, and is

currently presenting, evidence concerning the above-

described investigations to the September 1978 Suffolk

County GRAND JURY NUMBER III. This Grand Jury

was empanelled on September 5, 1978 by the Honorable

Harry E. Seidell, County Court Judge.

At the present time, there is pending before the Grand

Jury investigations concerning two hospitals, one nursing

home and several adult homes.

Each of the investigations referred to above involves a

complicated financial fraud. In order to properly in-

vestigte such a case it is necessary to scrutinize the books

and records of the institution as well as various businesses

dealing with the institution. One of the reasons that this

Grand Jury has been unable to complete its business is that

several of its subpoenas for books and records have not

yet been complied with. Until those records have been pro-

duced before the Grand Jury, it is senseless for the Grand

45a

Jury to proceed with an examination of the individuals

who operate those businesses.

The Office of the Deputy Attorney General plans to

call several dozen additional witnesses before the Grand

Jury will be in a position to conclude these investigations.

A substantial portion of those witnesses must testify about

complicated record keeping and accounting practices. It is

clear to me that this Grand Jury will require an extension

of their term for at least three months to properly con-

clude each investigation.

Based upon all of the above, it is my declaration that

the September GRAND JURY NUMBER III for the

County of Suffolk has not completed, nor will be able to

complete its stated business before the expiration of its

present term on October 2, 1978.

WHEREFORE, it is requested that this Honorable

Court extend the term of the County Court of the County

of Suffolk, and the term of the September 1978 GRAND

JURY NUMBER III to and including January 2, 1979.

Dated: Hauppauge, New York

September 28, 1978

s/Richard A. Miller

RICHARD A. MILLER

Sworn to

September 28, 1978

46a

APPENDIX N—PETITION AND AFFIDAVIT

COUNTY COURT

COUNTY OF SUFFOLK

In the Matter of the Application of

CHARLES J. HYNES, Special Deputy Attorney General,

for an Order Extending the September 1978 Term of the

County Court and the Term of the September GRAND

JURY NUMBER III to January 2, 1979.

TO THE COUNTY COURT OF SUFFOLK COUNTY:

The petition of Roger Kendall, respectfully shows to

the Court as follows:

I am the Foreman of the September GRAND JURY

NUMBER III and make this application pursuant to the

affirmative vote of the Grand Jury.

I have read the attached affidavit and application of

Richard A. Miller, and reaffirm those statements made

with respect to the investigations being conducted by the

Grand Jury.

It is the declaration of the September GRAND JURY

NUMBER III, through myself as its Foreman, after a vote

duly taken, that the Grand Jury has not yet completed the

matters before October 2, 1978, the date on which the

September 1978 Term of the Court and the term of the

above-captioned Grand Jury expires.

THEREFORE, the Grand Jury, through myself,

after a vote duly taken, joins in the application of the

Deputy Attorney General for an Order extending the

September 1978 Term of the Court, and the Term of the

September GRAND JURY NUMBER III to and including

January 2, 1979.

47a

s/Roger Kendall

ROGER KENDALL, Foreman

SEPTEMBER GRAND JURY

NUMBER III

Sworn to

September 29th, 1978

48a

APPENDIX O—ORDER DATED OCTOBER 27, 1978

At a Term of the Appellate Division of the Supreme

Court of the State of New York, Second Judicial

Department, held in Kings County on October 27,

1978.

HON. MILTON MOLLEN, Presiding Justice

HON. HENRY J. LATHAM

HON. VINCENT D. DAMIANI

HON. VITO J. TITONI, Associate Justices

In the Matter of Ben Cammarata & Son, etc.,

Appellant,

for an order Quashing a Subpoena Duces Tecum issued by

Deputy Attorney General Charles J. Hynes,

Respondent,

In the Matter of Direct Plumbing & Heating Corp.

et al.,

Appellants,

for an order Quashing Subpoenas Duces Tecum issued by

Deputy Attorney General Charles J. Hynes,

Respondent.

In the above entitled causes, the above named Ben

Cammarata & Son, etc. and Direct Plumbing & Heating

Corp., et al., petitioners, having appealed to this court

49a

from an order of the County Court, Suffolk County,

entered October 6 1978; and the appellants having moved

to stay the enforcement of said order, pending determina-

tion of the appeal therefrom;

Now, upon the papers filed in support of and in op-

position to the motion, and the motion having been duly

submitted and due deliberation having been had thereon,

it is

ORDERED that the motion is hereby denied. Tem-

porary stay contained in order to show cause dated Oc-

tober 19, 1978 vacated. The papers submitted by the

Deputy Attorney in opposition to this motion are ordered

sealed and the clerk of this court is directed to seal said

papers.

Enter:

IRVING N. SELKIN

Clerk of Appellate Division

50a

APPENDIX P—ORDER EXTENDING THE TERM

OF THE 1979 OCTOBER GRAND JURY NUMBER 1C

At a Term, Part IV of the County Court of Suffolk

County, held at the Criminal Courts Building, Center

Drive South, Riverhead, New York on the 26th day of

October, 1979.

PRESENT:

HON. JOHN COPERTINO

County Court Judge

In the Matter of the Application of

CHARLES J. HYNES, Special Deputy Attorney General,

for an Order Extending the October 1979 Term of the

County Court and the Term of the October GRAND

JURY NUMBER IC to February 1, 1980.

It appearing from the attached affidavits and applica-

tions of Terrence P. Buckley, Special Assistant Attorney

General of the State of New York, and George M. Nash,

Foreman of the October 1979 Grand J ury Number IC,

that the Grand Jury is c rently investigating criminal ac-

tivities in Suffolk Councy involving a hospital and a nurs-

ing home; that it is necessary that additional testimony be

heard by said Grand Jury for the proper and complete

presentation and consideration of the aforesaid matters

now pending before it; that the Grand Jury has not com-

pleted, nor will be able to complete its business currently

pending as described above before the expiration of its

Term on October 26, 1979; that the necessary additional

testimony cannot be completed by October 26, 1979, and

that the application made herein was authorized by the af-

5la

firmative vote of a majority of the above-captioned Grand

Jury; therefore it is

ORDERED, that the October 1979 Term of the

County Court of Suffolk County and the Term of the Oc-

tober 1979 GRAND JURY NUMBER IC be and the same

is hereby extended to and including February 1, 1980.

ENTER

s/ John Copertino

COUNTY COURT JUDGE

COUNTY OF SUFFOLK

Granted

October 26, 1979

52a

APPENDIX Q—AFFIDAVIT OF TERRENCE P.

BUCKLEY AND APPLICATION

COUNTY COURT

COUNTY OF SUFFOLK

In the Matter of the Application of

CHARLES J. HYNES, Special Deputy Attorney General,

for an Order Extending the October 1979 Term of the

County Court and the Term of the October GRAND

JURY NUMBER IC to February 1, 1980.

STATE OF NEW YORK )

SS.:

COUNTY OF SUFFOLK)

Terrence P. Buckley, being duly sworn, deposes and

says:

I am a Special Assistant Attorney General of the State

of New York, in the Long Island Office of Charles J.

Hynes, Deputy Attorney General, appointed by Attorney

General Louis Lefkowitz on January 10, 1975. That ap-

pointment was made in connection with the requests of the

Honorable Abe Levine, Commissioner of the New York

State Department of Social Services, and the Honorable

Hollis Ingraham, Commissioner of the New York State

Department of Health, made pursuant to the provisions of

Section 63, subdivision 3 of the Executive Law. In October

of 1977, Deputy Attorney General Hynes’ authority was

supplemented to include investigation, and if need be, pro-

secution of hospitals in New York State.

The Office of the Deputy Attorney General is re-

quired to investigate the alleged commission of any indic-

table offense or offenses in violation of the Public Health

Law or the Social Service Law, or in relation to any mat-

53a

ters connected with the New York State Department of

Health or the New York State Department of Social Ser-

vices, by hospitals, adult homes, nursing homes, health

related facilit'+s, care centers and related entities, and en-

tities subject to the provisions of Article 28 of the Public

Health Law, located in the State of New York, and prin-

cipals, agents, suppliers, and other persons connected or

involved therewith; and it is furthermore the duty of the

Office of the Deputy Attorney General to prosecute the

person or persons believed to have committed the same or

any crimes or offenses arising out of the described in-

vestigations or prosecutions or both.

In connection with the described investigative and

prosecutorial responsibilities, the Office of the Deputy At-

torney General has presented, and is currently presenting,

evidence concerning the above-described investigations to

the October 1979 Suffolk County GRAND JURY

NUMBER IC. This Grand Jury was empanelled on Oc-

tober 1, 1979 by the Honorable John Copertino County

Court Judge.

At the present time, there is pending before the Grand

Jury investigations concerning one hospital and one nurs-

ing home.

Each of the ivnestigations referred to above involves a

complicated financial fraud. In order to properly in-

vestigate such a case it is necessary to scrutinize the books

and records of the institution as well as various businesses

dealing with the institution.

The Office of the Deputy Attorney General plans to

call several dozen additional witnesses before the Grand

Jury will be in a position to conclude these investigations.

A substantial portion of those witnesses must testify about

complicated record keeping and accounting practices. It is

clear to me that this Grand Jury will require an extension

of their term for at least three months to properly con-

clude each investigation.

54a

Based upon all of the above, it is my declaration that

the October GRAND JURY NUMBER IC for the County

of Suffolk has not completed, nor will be able to complete

its stated business before the expiration of its present term

on October 26, 1979.

WHEREFORE, it is requested that this Honorable

Court extend the term of the County Court of the County

of Suffolk, and the term of the October 1979 GRAND

JURY NUMBER IC to and including February 1, 1980.

Dated: Hauppauge, New York

October 24, 1979

s/Terrence P. Buckley

TERRENCE P. BUCKLEY

Special Assistant Attorney General

Sworn to

October 24, 1979

55a

APPENDIX R—PETITION ANF AFFIDAVIT

COUNTY COURT

COUNTY OF SUFFOLK

In the Matter of the Application of

CHARLES J. HYNES, Special Deputy Attorney General,

for an Order Extending the October 1979 Term of the

County Court and the Term of the October GRAND

JURY NUMBER IC to February 1, 1980.

TO THE COUNTY COURT OF SUFFOLK COUNTY:

The petition of George M. Nash, respectfully shows

to the Court as follows:

I am the Foreman of the October 1979 GRAND

JURY NUMBER IC and make this application pursuant

to the affirmative vote of the Grand Jury.

I have read the attached affidavit and application of

Terrence P. Buckley, and reaffirm those statements made

with respect to the investigations being conducted by the

Grand Jury.

It is the declaration of the October 1979 GRAND

JURY NUMBER IC, through myself as its Foreman, after

a vote duly taken, that the Grand Jury has not yet com-

pleted the matters before it by October 26, 1979, the date

on which the October 1979 Term of the Court and the

term of the above-captioned Grand Jury expires.

THEREFORE, the Grand Jury, through myself,

after a vote duly taken, joins in the application of the

Deputy Attorney General for an Order extending the Oc-

tober 1979 Term of the Court, and the Term of the Oc-

tober 1979 GRAND JURY NUMBER IC to and including

February 1, 1980.

56a

s/George M. Nash

GEORGE M. NASH, Foreman

October 1979 Grand Jury Number IC

Sworn to

October 26, 1979

57a

APPENDIX S—JUDGMENT DATED FEB. 19, 1980

At a Special Term Part I of the Supreme Court of the

State of New York held in and for the County of Suf-

folk at the Courthouse at Riverhead, New York, on

the 19th day of February, 1980.

PRESENT:

HON. JOHN G. McCARTHY

Justice

In the Matter of the Application of

BARBARA MCGINLEY,

Petitioner,

for an Order pursuant to Article 78,

' Civil Practice Law and Rules,

-against-

HON. CHARLES J. HYNES,

Deputy Attorney General and CHEMICAL BANK,

Respondents.

Petitioner having brought on a Special Proceeding

pursuant to Article 78 of the Civil Practice Law & Rules to

stay Respondent HYNES from pursuing the investigation

of BRUNSWICK HOSPITAL CENTER, INC.., its agents

and employees, before the October, 1979 Grand Jury III,

and to prohibit production by CHEMICAL BANK of any

and all bank records designated in the subpoena duces

tecum dated October 30, 1979 before the said October,

1979 Grand Jury, and upon reading and filing the Order to

58a

Show Cause, dated November 30, 1979, and signed by

Hon. Lawrence J. Bracken, a Justice of the Supreme

Court of the State of New York for the County of Suffolk,

the Petition of BARBARA McGINLEY, verified on the

30th day of November, 1979, the Affidavit of BARBARA

McGINLEY, sworn to on the 30th day of November,

1979, and the exhibits annexed with proof of service

thereof, and the Reply Affirmation of STEPHEN R.

TAUB, affirmed the 17th day of December, 1979, with

proof of service thereof, all in support of the Special Pro-

ceeding, and the Affirmation of TERRENCE P.

BUCKLEY, Special Assistant Attorney General, dated

December 6, 1979, with proof of service thereof, in op-

position to said Special Proceeding, and said Special Pro-

ceeding having come on to be heard at a Special Term,

before Hon. John G. McCarthy, Part I, on the 10th day of

December, 1979, and STEPHEN R. TAUB, ESQ. having

appeared in support of said Special Proceeding, and TER-

RENCE P. BUCKLEY, ESQ., having submitted in op-

position thereto, and due deliberation having been had

thereon and the Court having made its decision in writing,

NOW, on motion of STEPHEN R. TAUB, ESQ.., at-

torney for Petitioner, it is hereby

ORDERED, DECREED AND ADJUDGED, that

the Petition herein be and the same is hereby dismissed.

ENTER:

JOHN G. McCARTHY

J.a&.

Filed

February 25, 1980

Granted

February 19, 1980