Opinion
August 9, 1979
Appeal from an order of the Supreme Court at Special Term, entered February 6, 1979 in Albany County, which granted a motion directing respondent to appear and testify before the Additional January 1979 Grand Jury of the Albany County Supreme Court and denied respondent's cross motion to quash or modify the subpoenas directing her appearance before that body. We withheld decision of this appeal when it was before us on a prior occasion and remitted the matter to Special Term so that it could examine the contents of an investigatory file referred to in Executive Order No. 78 ( 9 NYCRR 3.78) for the purpose of determining whether certain subpoenas had been issued pursuant to the terms of that order (Matter of Additional January 1979 Grand Jury of Albany County Supreme Ct. v. Doe, 69 A.D.2d 955). Following an in camera inspection of the subject file, Special Term authored a report, dated June 5, 1979, in which it opined that they had been properly issued. However, Special Term made no detailed findings of fact concerning the status of that file when the Governor promulgated the disputed order and, more importantly, its report does not reflect that any effort was made to identify, segregate and preserve the various items contained in that file at the time the order was issued. As a result, we agree with respondent that it is still not possible to have meaningful appellate review of her contention that the subpoenas fall beyond the scope of the order. Accordingly, the matter should be remitted to Special Term once again with directions to assemble an adequate record and to make such findings as will permit us to reach a final disposition of this appeal. Decision withheld, and matter remitted to Special Term for further proceedings not inconsistent herewith. Mahoney, P.J., Sweeney, Kane, Main and Mikoll, JJ., concur.