Opinion
Index No. 781000/2016 Motion Seq. No. 003
08-29-2023
IN RE: 121 SECOND AVENUE GAS EXPLOSION LITIGATION THIS DOCUMENT RELATES TO: ALL CASES
Wilkofsky, Friedman, Karel & Cummins (Mark Friedman, of counsel), for plaintiffs Alvin Bragg, Jr., District Attorney (Christina Ante, of counsel), for intervenor New York County District Attorney's Office
Unpublished Opinion
MOTION DATE 06/23/2023
Appearances:
Wilkofsky, Friedman, Karel & Cummins (Mark Friedman, of counsel), for plaintiffs
Alvin Bragg, Jr., District Attorney (Christina Ante, of counsel), for intervenor New York County District Attorney's Office
Present: Hon. James E. d'Auguste Justice
DECISION + ORDER ON MOTION
James E. d'Auguste, Judge
The following e-filed documents, listed by NYSCEF document number (Motion 003) 183, 184, 185, 186, 187, 188, 189, 190, 191 were read on this motion to/for DISCLOSURE.
In this action, plaintiffs move for the issuance of a subpoena duces tecum seeking the entire evidentiary file maintained by the New York County District Attorney's Office ("DANY" or the "People"), an intervenor in this litigation, in connection with the matter of The People of the State of New York v. Dilber Kukic, Michael Hrynenko, and Maria Hrynenko, New York County Indictment No. 74/16. DANY opposes the motion. The motion is resolved as set forth below.
Background
This action arises from a gas explosion that occurred at 121 Second Avenue on March 26, 2015, destroying three buildings, killing two people, and seriously injuring many other individuals. Following an investigation coordinated by DANY and others, the Grand Jury of New York County indicted Maria Hrynenko, Dilber Kukic, and Athanasios loannidis (the "Subject Defendants") for their alleged roles in using an unauthorized system to siphon natural gas from a neighboring building, and thereby causing a catastrophic gas explosion. The Subject Defendants were convicted of manslaughter, assault, and reckless endangerment. loannidis was also convicted of offering of a false instrument for filing and falsifying business records. The Appellate Division, First Department subsequently affirmed Dilber Kukic and Maria Hrynenko's convictions, and the Court of Appeals denied leave to appeal. People v. Kukic, 196 A.D.3d 169 (1st Dept.), Iv. denied, 37 N.Y.3d 1097, Iv. denied, sub nom. People v. Hrynenko, 37 N.Y.3d 1096 (2021).
Pursuant to CPLR 2307, plaintiffs request that the Court issue a subpoena duces tecum directing DANY to produce copies of its "entire evidentiary file" maintained in connection with People v. Kukic. The materials plaintiffs seek include: "video footage, audio tapes, photographs, investigation reports, recorded interviews, witness statements, transcripts, and all other evidence collected and/or introduced at trial and for such other and further relief as this Court deems just and proper." (Aff. of Mark Friedman in Supp., ¶ 2). Plaintiffs contend that the overlapping facts and issues make this evidence "material and necessary" to the ongoing civil litigation. (Friedman Aff. in Supp., ¶ 11). Further, plaintiffs assert that the DANY file likely contains "evidence [of defendants'] individual dishonesty and untrustworthiness" which would be "probative on material questions at issue in this case." (Friedman Aff. in Supp., ¶ 11).
DANY opposes. Although the First Department affirmed the convictions at issue, and the Court of Appeals denied leave to appeal, federal habeas corpus proceedings challenging those convictions remain pending in the Southern District of New York under docket number 22-cv-9075. (Aff. of Christina Ante in Opp., ¶ 7). In addition to expressing concerns regarding the impact discovery may have on the pending federal habeas proceedings, DANY suggests that plaintiffs should secure copies of publicly available trial transcripts and ascertain whether relevant information can be obtained from other sources. (Mem. of Law in Opp., at 3-4). DANY also objects to the requested subpoena on the grounds that much of the information sought by plaintiffs is privileged. (Mem. of Law in Opp., at 4-8). Specifically, DANY asserts "particular concern" regarding privileges based upon the "Grand Jury, attorney work product, public interest and personal privacy exemptions, interagency and law enforcement techniques." (Mem. of Law in Opp., at 8). DANY offers to produce a privilege log, if so-ordered. (Mem. of Law in Opp., at 8).
DANY makes reference to a February 28,2023, magistrate's report and recommendation in the federal proceedings, but states that the report has not been published. (Ante Aff. in Opp., ¶ 7). Plaintiffs urge that the federal proceedings are active and pending in name only (calling those proceedings "a sham of an excuse," that "should be summarily rejected"), but neither side has provided the Court with a copy of the report despite explicitly (the People) or implicitly (plaintiffs) relying upon it. (Aff. of Mark Friedman in Reply, ¶¶ 4-5). Counsel are reminded that Local Rule 14(a) requires that copies of unpublished decisions relied upon in papers must accompany those papers. See, New York City Civilian Complaint Rev. Bd. v. New York City Office of Comptroller, Index No. 452927/2015, 2015 N.Y. Mise. LEXIS 5030 (Sup. Ct., New York Co. Nov. 12, 2015) (modifying prior order to provide copies of unpublished decisions relied upon in papers to permit limited redactions in public filings). In the interim, court staff contacted Magistrate Aaron's chambers, who graciously provided the Court with a copy of the report.
Having considered the parties' respective positions, the instant motion is granted in part and denied in part for reasons the Court addresses in turn.
Plaintiffs' Motion Seeking the 'Evidentiary File' is Governed by CPL § 190.25, Not CPL $ 160.50
Although plaintiffs assert that they are not seeking grand jury materials, their position is belied by the scope of their request and the practical application of New York law. Prosecutors in New York, while vested with broad powers, do not have independent plenary investigatory powers to obtain evidence, particularly concerning felonies. See, Rodrigues v. City of New York, 193 A.D.2d 79, 86 (1st Dept. 1988); and compare, County Law §§ 700 (it is "the duty of every district attorney to conduct all prosecutions for crimes and offenses cognizable by the courts of the county") and 927 with, County Law §§ 650 and 901; and N.Y.C. Charter §§ 435(a) (City Police Department "to preserve the public peace, prevent crime, detect and arrest offenders") and 488(2) (City Fire Department shall conduct the "investigation of the cause, circumstances and origin of fires") (emphasis added). Rather, DANY and its counterparts conduct investigations largely through the grand jury process. See, e.g, People v. Neptune, 161 Mise. 2d 781, 782 (quoting Rodrigues and finding prosecutor's non-grand jury investigatory subpoena invalid); and People v. Hall, 179 Mise. 2d 488, 492 (Sup. Ct., Monroe Co. 1998) (discussing prosecutor's limited subpoena power and finding that subpoena in support of determination to seek death penalty unauthorized). The People state as much in their opposition, noting that DANY conducted "a lengthy Grand Jury investigation which lasted almost an entire year," of the explosion at issue. (Ante Aff., at ¶ 4).
Whether a grand jury proceeding subsequently results in a criminal conviction or not, CPL Art. 190, not CPL Art. 160, controls access to grand jury materials. See, Matter of James v. Donovan, 130 A.D.3d 1032, 1035-1036 (2d Dept.), Iv. denied, 26 N.Y.3d 1048 (2015) (finding that CPL § 160.50 is inapplicable to an application to unseal grand jury minutes); and Matter of Apotheker (Archibald), 68 Mise. 3d 312, 314 (Sup. Ct., New York Co. 2020) (finding that grand jury minutes were sealed by both CPL §§ 160.50 and 190.25 in denying motion to unseal for use in civil discovery of alleged child sexual abuse). Accordingly, the Court considers plaintiffs' application seeking the People's "evidentiary file" pursuant to CPL 190.25(4) as it pertains to grand jury materials.
The Branch of the Instant Motion Seeking Grand Jury Materials is Denied Without Prejudice to Seeking Those Materials in the Criminal Term
Records of the grand jury's proceedings are strictly regulated by the CPL and the Penal Law, and are secret by operation of law. CPL § 190.25(4); and Penal Law § 215.70. The seal of secrecy includes materials gathered in support of the grand jury's work, even if they were not obtained by grand jury subpoenas or even entered into evidence before the grand jury. See, Matter of Aiani v. Donovan, 98 A.D.3d 972, 973 (2d Dept. 2012). The scope of grand jury secrecy in New York is such that even the type of information that might ordinarily be provided in a privilege log is itself confidential without a court order. See, e.g., Matter of District Attorney of Richmond County, 48 Mise. 3d 207, 210 (Sup. Ct., Richmond Co. 2014) (discussing standard to disclose grand jury information and authorizing limited disclosure). Courts have restricted or denied access to grand jury materials even when they have been publicly disclosed through other means or to grand jury witnesses themselves. See, e.g., Matter of Office of Attorney General, 72 Mise. 3d 723, 728 (Monroe County Ct. 2021) ("Although the identities of some individuals are publicly known in this case, there is still a duty to protect them through the grand jury process."); and New York City Civilian Complaint Rev. Bd. v. Office of the District Attorney, 63 Mise. 3d 530,534 (Sup. Ct., Richmond Co. 2019) (denying motion to unseal grand jury testimony for use by witness to refresh their recollection at administrative trial). Unlike most other sealed proceedings, where the parties are those with an interest in confidentiality (and are thus capable of waiving it), courts have found that the grand jury itself and the community it represents has an interest in confidentiality over and above the interest of the parties themselves. Compare, e.g, Brian Krist, Sealing the Bawdy House Door Open, 48 NYRPLJ 27, 27 n. 53 (2020) (collecting cases and discussing waiver of CPL Art. 160 sealing through litigation); and In re Motion for Consent to Disclosure of Court Records, Dkt. No. Mise. 13-01,2013 U.S. Dist. LEXIS 147001, *8 (For. Intell. Surv. Ct. Jun. 12, 2013) (although national security regulations applied, court rules did not themselves bar disclosure pursuant to Freedom of Information Act); with, In re District Attorney of Suffolk County, 58 N.Y.2d 436,445-446 (1983) (denying application by district attorney to unseal grand jury materials for use in civil litigation by the district attorney).
In District Attorney of Richmond County, a court order was necessary merely to disclose the length of the grand jury's sitting, the number of witnesses who testified before the grand jury, and a general breakdown of how many of those witnesses were public employees, to say nothing of the substance of the evidence and testimony considered. Id.
Although grand jury records may be unsealed for use in civil or other non-criminal proceedings pursuant to CPL § 190.25(4), an application to unseal grand jury material must be made to the court that empaneled the grand jury or presided over any resulting criminal prosecution. See, e.g, Matter of District Attorney of Richmond County, supra., citing, People v. Quigley, 59 A.D.2d 825 826 (4th Dept. 1977); Matter of Office of Attorney General, supra, (partial unsealing ordered by empaneling court); People v. Isaacs, NYLJ, Mar. 10, 2023 at p.17, col.2, 2023 NYLJ LEXIS 568 (Sup. Ct., Kings Co. Mar. 10, 2023) (unsealing granted by court that presided over criminal trial); and In re Police Commr. of New York, Ind. No. 499/2016, 2017 N.Y. Mise. LEXIS 13648 (Sup. Ct., Queens Co. Jun. 28, 2017) (same). Accordingly, the Court expresses no opinion as to the merits of plaintiffs' application to obtain grand jury materials, and denies that branch of plaintiffs motion without prejudice to seeking the same or similar relief in the Criminal Term. See, e.g., City of New York v. Airbnb. Inc., 2019 NY Slip Op 31377(U) (Sup. Ct., New York Co. 2019).
Plaintiffs are Required to Show Special Circumstances Pursuant to CPLR 2307
Plaintiffs assert that they are not required to establish special circumstances, commonly known to include, among other criteria, that evidence or information could not be readily obtained from other sources. (Friedman Aff. in Reply, ¶¶ 15-17). Plaintiffs are wrong. Although plaintiffs correctly note that the Court of Appeals resolved a prior department split in favor of the First Department's interpretation of 1984 amendments to the CPLR that rejected the special circumstances standard in ordinary third-party civil discovery, the standard remains in seeking records from the government as a non-party, which have been subject to unique and different rules for well over a century through what is now codified as CPLR 2307. See, Kapon v. Koch, 23 N.Y.3d 32, 38 (2014) (abolishing special circumstances generally); Friedeberg v. Haffen, 162 A.D. 79, 80 (1st Dept. 1914) (discussing origins of what is now CPLR 2307 to "remedy abuses that have for a long time prevailed" in subpoenaing government records); and In re Terry D., 182 A.D.2d 406, 410 (1st Dept. 1992) (Carro, J. dissenting), revd., 81 N.Y.2d 1042 (1993) (citation omitted) (noting that application to subpoena government records had not established special circumstances).
While the First Department did not require special circumstances for ordinary third-party discovery after 1984, and the Court of Appeals adopted that rule in Kapon, the First Department did require special circumstances in seeking a CPLR 2307 subpoena in that a party needed to make (while not needing to for non-government witnesses) "a showing...of the efforts, if any, made to obtain the information by other means, and the alternative unavailability of such information." In re Terry D, supra., citing, Leef v. Evers, 88 Mise. 2d 178 (App. Term, 1st Dept. 1976). The Court of Appeals has not opined on CPLR 2307 post-Xapon and, while coordinate courts have disagreed, the difficulties the First Department recognized long ago in Friedeberg have, if anything, come into sharper focus in seeking prosecution records now. See, e.g, Jonah Bromwich, Why Hundreds of New York City Prosecutors are Leaving Their Jobs, New York Times, § A, p. 13 (Apr. 4,2022); Anne Barnard, The Prosecutors Who are Heading for the Door, New York Times, (Apr. 5, 2022); and Rose Barkan, Working for the City When Everyone Else is Leaving, New York Magazine, (Jan. 23, 2023) (discussing present strains upon government legal resources). Given the public's interest in the effective and efficient operation of its government, more should be required, and the Legislature's repeated choice to leave CPLR 2307 intact should be respected.
Respectively available at https://www.nytimes.com/2022/04/03/nyregion/nyc-prosecutors-iobs.html#:~:text=New%20York%20City's%20prosecutors%20are%201eaving%20in%20droves%2C,that%20fundamentally %20changed%20the%20nature%20of%20their%20jobs (last accessed Aug. 24, 2023), https://www.nvtimes.coin/2022/04/04/nyregion/the-prosecutors-who-are-heading-for-the-door.html (last accessed Aug. 24, 2023), and https://www.curbed.com/2023/01/vacancy-crisis-new-york-city-agencies-eric-adams.html (last accessed Aug 25 2023).
Evidence Introduced at the Criminal Trial Must be Disclosed
The Court agrees that, in certain cases, elements of a criminal evidentiary file may fall within the purview of a subpoena duces tecum requesting criminal documents for use in a civil matter. See, e.g, In re Investigation into the Shooting of Kimani Gray, Index No. 450151/2015,2016 N.Y. Mise. LEXIS 4586 (Sup. Ct., Kings Co. 2016) (confidentiality order regulating terms of production of district attorney's investigative file concerning an officer-involved shooting). As to evidence introduced at the criminal trial, DANY's objections are misplaced. Any potential harm that disclosure may have caused has presumably occurred during the Subject Defendants' prosecution. Court proceedings, including the Subject Defendants' trial, are open to the public. Judiciary Law § 4. Trial transcripts are available to be ordered from the court reporters' office.
That said, to the extent that the instant application is an effort to save the time and expense of ordering transcripts and the like, that is not an appropriate basis for a so-ordered subpoena, and the Court will not order the production of transcript copies that can be obtained in the regular course from the court reporters. See, Cruz v. Kennedy, Dkt. No. 97-cv-4001,1998 U.S. Dist. LEXIS 15599, *21 (S.D.N.Y. Sept. 30, 1998) (denying request when the "sole basis for [the] subpoena to the DANY appears to be a desire to save the time and expense that subpoenas to the original sources would require").
There is nothing in the record indicating that any of the trial evidence was sealed and, accordingly, there is no basis presently before the Court to shield that evidence now. The federal habeas proceedings, while ongoing, do not justify shielding materials from production that have already seen the light of day.That said, this decision is without prejudice to DANY utilizing the confidentiality procedures already available in this action, and any objections the parties may raise pursuant to those procedures. (NYSCEF Doc. No. 140). Accordingly, to the extent trial evidence that remains within DANY's care, custody, or control remains, it should be produced.
Nothing in this decision should be read to agree with plaintiffs' characterization of the habeas proceedings' merits or that defendants' resort to the ancient writ is "unworthy of even consideration," merely because plaintiffs have a different view of the case. (Friedman Aff. in Reply, ¶¶ 5-6). The Court leaves the merits of the habeas proceedings to the good judgment of the Southern District of New York and notes only that, as any advertising counsel knows, past results do not guarantee future outcomes.
Non-Grand Jury Investigative Materials that Were Not Disclosed at Trial are Potentially Privileged
Although materials gathered beyond the scope of the grand jury's work would be outside the confines of CPL § 190.25, that itself does not end the inquiry. Beyond grand jury secrecy concerns, DANY also asserts that the materials plaintiffs seek are covered by the work product privilege, public interest privilege, and that disclosure would constitute an unwarranted invasion of personal privacy. (Mem. of Law in Opp., at 5-8). The Court sustains DANY's objections in part, denies them in part, and directs DANY to produce a privilege log regarding non-grand jury investigative materials that were not disclosed at trial.
As to the question of personal privacy, plaintiffs correctly note the broad language of CPLR 3101 and its import. (Friedman Aff. in Supp., ¶ 11). "Expansive discovery is central to American litigation," even though commentators have noted that discovery common in litigation in New York could be "regarded as excessive and has been approached with skepticism and animosity" elsewhere. Yanbai Andrea Wang, Exporting American Discovery, U. Chi. L. Rev. 2089, 2093-2094 (2020). See also, James H. Carter, Existing Rules and Procedures, 13 Inti. Law 5, 5 (1979) (noting that the "virtually boundless sweep of the pre-trial procedures presently permitted by many American courts is so completely alien to the procedure in most other jurisdictions that an attitude of suspicion and hostility is created"). What might be a valid assertion of privacy as against a freedom of information request might not be valid defense to a discovery demand however, as civil discovery "proceeds under a different premise, and serves quite different concerns." M. Farbman &Sons, Inc. v. New York City Health & Hosps. Corp., 62 N.Y.2d 75, 80 (1984). Moreover, as discussed supra., the existing confidentiality order in place in this action appears to address any personal privacy concerns at this time. Accordingly, the People's personal privacy exemption assertion is declined.
DANY's objection regarding DNA testing can be addressed in the privilege log ordered as part of this decision to determine whether any DNA materials that were not introduced at trial (and thus producible now) would be subject to production pursuant to Executive Law § 995-d(1). (Mem. of Law in Opp., at 7).
The People's privilege assertions are, on the other hand, another matter. The government is vested with the work product privilege (an essential offshoot of the attorney-client relationship and privilege) like any other individual or entity. See, Mecca v. Shang, 55 A.D.3d 570, 571 (2d Dept. 2008) (State Department of Health may assert attorney-client and work product privileges); and New York City Civilian Complaint Rev. Bd. v. Office of the Comptroller, 2016 NY Slip Op 30512(U), *3-4 (Sup. Ct., New York Co. 2016) (declining to enforce subpoena seeking investigative file). The government is also vested with, as appropriate, the deliberative process (sometimes also known as public interest) and law enforcement privileges. See, People v. Alvo, 2010 NY Slip Op 33983(U), *4-6 (Sup. Ct., New York Co. 2010) (collecting cases, denying request to subpoena City Department of Investigation materials concerning 2007 Deutsche Bank Fire, and granting protective order); Demski v. City of New York, NYLJ, Jul. 28, 2022 at p.17, col.2,2022 NYLJ LEXIS 1056, *5-8 (Sup. Ct., New York Co. Jul. 6, 2022) (collecting cases and directing in camera inspection of records in light of public interest and law enforcement privilege assertions); and Comptroller of the City of New York v. City of New York, 2020 NY Slip Op 34303(U) (Sup. Ct., New York Co. 2020), affd., 197 A.D.3d 424 (1st Dept. 2021) (partially quashing subpoena of Mayoral communications regarding Covid-19 pandemic due to public interest privilege). Courts have long recognized that "[i]t is just about universally true that an investigator is able to encourage such free communication only if he can give assurance that the communication and the identity of its maker will be kept confidential." Application of Langert, 5 A.D.2d 586, 589 (1st Dept. 1958). DANY expressly states that "witnesses spoke with law enforcement under the expectation of confidentiality." (Mem. of Law in Opp., at 6). The interest in promoting that flow of information, particularly in a case concerning an explosion and the loss of life, is compelling and the circumstances establish an expectation of confidentiality. See, Freidman v. Rice, 30 N.Y.3d 461,466 (2017).
That the materials at issue concern a prominent event involving the loss of life does not limit the application of the privileges. Indeed, many of the leading cases concerning the law enforcement and deliberative process privileges concern incidents of great tragedy, including the aftermath of the September 11th attacks and the Covid-19 pandemic. See, e.g, In re World Trade Ctr. Bombing Litig., 93 N.Y.2d 1 (1999); Comptroller of the City of New York v. City of New York, supra.', and Alvo, supra. If anything, that the incident at issue involved a multi-agency investigation involving public utilities or services, with the concomitant need to ensure a proper review and response to both address past conduct and prevent future harms, sharpens the application of the privileges. See, e.g, Cirale v. 80 Pine Street Corp., 35 N.Y.2d 113 (1974) (finding that information regarding steam pipe explosion was privileged in wrongful death action); and Alvo, supra, (information regarding investigation of City inspection and safety personnel's conduct prior to fire resulting in deaths of two firefighters privileged).
Courts have split on whether a privilege log or something similar is necessary to evaluate similar privilege assertions. Compare, e.g., Demski, supra, (requiring privilege log); and People v. Savage, Ind. No. 552/2014,2015 N.Y. Mise. LEXIS 5016, *1 (Sup. Ct, New York Co. Aug. 13,2015) (post-inspection log created with opportunity for objections) with, Alvo, at *6 (finding that description in papers was sufficient); and Comptroller of the City of New York v. City of New York, supra, (same). As DANY does not object to producing a privilege log, the Court will direct DANY to produce a privilege log of those non-grand jury investigative materials over which it asserts privilege. This submission should be sufficiently detailed to permit the parties (and, if necessary, the Court) to determine which items contained in DANY's evidentiary file are subject to various forms of privilege, while not itself divulging information that would vitiate the purposes of the various privileges.
Conclusion
While portions of what plaintiffs seek may be sought from DANY by subpoena, much of it cannot, and much more of it may not. Plaintiffs may obtain transcripts of the Subject Defendants' trial through the normal course, and exhibits offered at that trial by order, and address privilege assertions in more detail with the benefit of a privilege log.
Accordingly, it is hereby
ORDERED that DANY produce copies of all trial exhibits from The People of the State of New York v Dilber Kukic, Michael Hrynenko, Maria Hrynenko (Indictment No. 74/16) by October 29, 2023; and it is further
ORDERED that plaintiffs' motion for a subpoena duces tecum is granted to the extent that DANY shall produce a privilege log and supplemental brief more fully detailing any privilege assertions, regarding non-grand jury materials that may be privileged in DANY's evidentiary file with respect to the matter of The People of the State of New York v Dilber Kukic, Michael Hrynenko, Maria Hrynenko (Indictment No. 74/16) by October 29, 2023; and it is further, ORDERED that plaintiffs shall submit their supplemental brief, in response to DANY's brief and privilege log by December 22, 2023; and it is further, ORDERED that DANY may submit a reply by January 26, 2024; and it is further, ORDERED that a representative of plaintiffs liaison committee and DANY, as well as any other interested parties, shall appear for a conference on February 7,2024, with a 10:00 am check-in.
This constitutes the Decision and Order of the Court.