# Petition — McGinley v. Hynes > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0982%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1981 - **Citation:** 450 U.S. 918 ## Text 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