
    In the Matter of Joseph Jaffe, as District Attorney of Sullivan County, Respondent, v Louis B. Scheinman, as County Court Judge of Sullivan County, et al., Appellants.
    Argued April 26, 1979;
    decided May 31, 1979
    
      POINTS OF COUNSEL
    
      Robert Abrams, Attorney-General (John J. Warner, Jr., and Shirley Adelson Siegel of counsel), for Louis B. Scheinman, appellant.
    I. Prohibition will not lie to review a court’s discretionary act in a criminal proceeding. (Matter of State of New York v King, 36 NY2d 59; Matter of Roberts v County Ct. of Wyoming County, 34 NY2d 246; Matter of Proskin v County 
      
      Ct. of Albany County, 30 NY2d 15; Matter of Lee v County Ct. of Erie County, 27 NY2d 432, 404 US 823; People ex rel. Lemon v Supreme Ct. of State of N. Y., 245 NY 24.) II. The trial court properly exercised its discretion in compelling the District Attorney to turn over Grand Jury minutes to defendant, or his counsel, for the limited purpose of preparing a memorandum to dismiss the underlying indictment for legal insufficiency. (People v Howell, 3 NY2d 672; People ex rel. Chadbourne v Voorhis, 236 NY 437; Matter of City of Buffalo [Cosgrove], 57 AD2d 47, 42 NY2d 802; Matter of Scotti, 53 AD2d 282; People v Di Napoli, 27 NY2d 229; Matter of Proskin v County Ct. of Albany County, 30 NY2d 15.)
    
      Carl J. Silverstein for The Legal Aid Society of Sullivan County, Inc., appellant.
    The trial court had the power to allow defendant’s counsel examination of the Grand Jury minutes. (Matter of Proskin v County Ct. of Albany County, 30 NY2d 15; People ex rel. Hirschberg v Supreme Ct. of State of N. Y., 269 NY 392.)
    
      Joseph Jaffe, District Attorney of Sullivan County (John Michael Hayes and Karen McGee of counsel), respondent pro se.
    
    I. The trial court plainly exceeded its authority in directing disclosure of Grand Jury minutes to defense counsel by the District Attorney. (People v Howell, 3 NY2d 672; Matter of Proskin v County Ct. of Albany County, 37 AD2d 279, 30 NY2d 15; People v Butor, 75 Misc 2d 558; People v Di Napoli, 27 NY2d 229; Matter of City of Buffalo [Cosgrove], 57 AD2d 47, 42 NY2d 802; Matter of Scotti, 53 AD2d 282; People v Glenn, 173 NY 395.) II. Prohibition lies where the trial court violates specific provisions of the controlling statute and unlawfully orders disclosure of a Grand Jury proceeding. (People ex rel. Hirschberg v Supreme Ct. of State of N. Y., 269 NY 392; Matter of Roberts v County Ct. of Wyoming County, 34 NY2d 246; Matter of Big Black v Ball, 51 AD2d 684; La Rocca v Lane, 37 NY2d 575; Matter of Steingut v Gold, 42 NY2d 311.)
    
      Robert M. Morgenthau, District Attorney of New York County (Robert M. Pitler and Brian Rosner of counsel), for the New York State District Attorney’s Association, amicus curiae.
    
    The trial court’s order permitting the defense to inspect the Grand Jury minutes prior to trial was an exercise of judicial authority explicitly forbidden by a statute. By prohibiting the pretrial disclosure of minutes, the Legislature recognized that the dangers of disclosure, and unreviewable judicial abuses in granting such disclosure, outweigh the benefits of disclosure. Since the court, in an otherwise unreviewable abuse of authority, ignored the Legislature’s explicit limitations of its power, the extraordinary writ of prohibition was properly granted. (People v Molineux, 27 Misc 60; Eighmy v People, 79 NY 546; People v Percy, 36 NY2d 756; People v Longo, 39 AD2d 633; People ex rel. Davidson v Gilon, 126 NY 147; Hoey v Gilroy, 129 NY 132; Matter of Taylor, 567 F2d 1183; People v Clarkson, 50 AD2d 903; People v King, 48 AD2d 457; People v Nitzberg, 289 NY 523.)
    
      Charles J. Hynes, Deputy Attorney-General (Arthur G. Weinstein of counsel), amicus curiae.
    
    
      A Trial Judge is not authorized to disclose Grand Jury minutes to defendant to facilitate a motion to dismiss the resulting indictment on grounds of legal insufficiency. (Matter of Proskin v County Ct. of Albany County, 30 NY2d 15; People v Howell, 3 NY2d 672; People v Di Napoli, 27 NY2d 229; Matter of Hynes v Moskowitz, 44 NY2d 383; Matter of State of New York v King, 36 NY2d 59.)
    
      John F. Keenan, Deputy Attorney-General and Special State Prosecutor (Mark M. Baker and Carl M. Bornstein of counsel), amicus curiae.
    
    The common-law power of a motion court to authorize, in its discretion, the disclosure to defendant of the minutes of Grand Jury proceedings in support of a motion to dismiss an indictment for insufficiency of the evidence, did not survive the advent of the Criminal Procedure Law. (Matter of Proskin v County Ct. of Albany County, 30 NY2d 15; People v Sweeney, 213 NY 37; People ex rel. Lemon v Supreme Ct. of State of N. Y., 245 NY 24; People ex rel. Martin v Brady, 168 App Div 108; Matter of Montgomery, 126 App Div 72; People ex rel. Cohn v County Ct. of Schenectady County, 11 AD2d 438; People v Howell, 3 NY2d 672; People v Glenn, 173 NY 395; People v Sexton, 187 NY 495; People v Butor, 75 Misc 2d 558.)
   OPINION OF THE COURT

Chief Judge Cooke.

On April 9, 1978, a tragic fire claimed the lives of five persons in Monticello. Within a few weeks, Michael Kazmarick was indicted by a Sullivan County Grand Jury for five counts of murder in the second degree, accused of causing the deaths "Under circumstances evincing a depraved indifference to human life” (Penal Law, § 125.25, subd 2). Counsel for Kazmarick quickly moved to dismiss the indictment, and for other alternative relief, citing an alleged insufficiency of evidence before the Grand Jury. Serious questions were raised by the defense as to whether the indictment was grounded upon "legally sufficient evidence” (CPL 190.65, subd 1; 70.10, subd 1). To assist the defense in the preparation of a memorandum of law on the relevant issues, respondent Sullivan County Judge ordered petitioner, the Sullivan County District Attorney, to furnish defense counsel a transcript of the Grand Jury proceedings. Strenuously objecting, petitioner unsuccessfully urged the County Court, upon reargument, to set aside its prior decision. Petitioner then initiated this article 78 proceeding to prohibit release of the Grand Jury minutes. The Appellate Division, by a divided vote, granted the petition and directed respondents to desist from further proceedings to enforce the County Court order.

The judgment of the Appellate Division should be affirmed. CPL 210.30, which establishes the procedural steps to be followed with respect to a motion to dismiss an indictment and to inspect Grand Jury minutes, confers no authority upon a Trial Judge to permit inspection of the minutes by a defendant or his attorney. Absent an alternative source of authority or circumstances not present on this record, a Trial Judge is without power to order disclosure of the Grand Jury proceedings on a motion seeking inspection and dismissal of the indictment. When a court threatens to act in violation of this principle, a writ of prohibition may issue as an appropriate remedy.

At the threshold, it is held that prohibition is a proper vehicle for review of the County Court order (see, generally, Matter of Dondi v Jones, 40 NY2d 8, 12-15; Matter of Proskin v County Ct. of Albany County, 30 NY2d 15, 18). An extraordinary remedy available in only certain narrowly defined situations, prohibition may issue, in the discretion of the court, " 'to restrain an inferior court from exceeding its authorized powers in a proceeding over which it has jurisdiction’ ” (Matter of Lee v County Ct. of Erie County, 27 NY2d 432, 437; see La Rocca v Lane, 37 NY2d 575, 578-579; Matter of Nigrone v Murtagh, 36 NY2d 421, 423-424; Matter of State of New York v King, 36 NY2d 59, 62). While a mere error of law in a pending criminal action, even if otherwise unreviewable, may not be redressed in a prohibition proceeding, the writ may be invoked to prevent an unwarranted abuse of the secrecy of the Grand Jury (compare Matter of State of New York v King, 36 NY2d 59, 62, supra, with Matter of Proskin v County Ct. of Albany County, 30 NY2d 15, 18, 21, supra; see, also, Note, The Writ of Prohibition in New York — Attempt to Circumscribe An Elusive Concept, 50 St John’s L Rev 76, 91-94). Inasmuch as the threatened harm in the present case consists of an allegedly unauthorized disclosure of Grand Jury proceedings, prohibition will lie in the discretion of the court (see Matter of Dondi v Jones, 40 NY2d 8, 13, supra).

Prior to the enactment of the Criminal Procedure Law, existing decisional law left little doubt as to the trial court’s power to grant a motion for inspection of the Grand Jury minutes underlying an indictment (see, e.g., People ex rel. Hirschberg v Supreme Ct. of State of N. Y., 269 NY 392, 394-396 [dismissing petition for writ of prohibition]; People v Sweeney, 213 NY 37, 42; see, also, People ex rel. Lemon v Supreme Ct. of State of N. Y., 245 NY 24, 31; Shapiro, A New York Criminal Law Refresher, 37 Brooklyn L Rev 35, 37). A trial court faced with a motion seeking inspection of the minutes possessed all but unfettered discretion to grant or withhold the requested relief, and its ruling was effectively insulated from appellate review by this court (compare People v Sweeney, supra, at p 42, with Matter of Schneider v Aulisi, 307 NY 376, 382). As a result, a patchwork of procedural and substantive rules developed in the area, often varying from trial court to trial court (see Matter of Proskin v County Ct. of Albany County, 30 NY2d 15, 23, supra [dissenting opn]). Indeed, confusion was so pervasive that no uniform definition of a motion to inspect ever evolved. In certain cases the motion was characterized as a request to the court for an in camera inspection of the transcript of the Grand Jury proceedings (see, e.g., People v Howell, 3 NY2d 672, 675), while in others it was viewed as an application for disclosure of the minutes to defendant (see, e.g., People ex rel. Hirschberg v Supreme Ct., 269 NY 392, 395, supra; People v Molineux, 27 Misc 60, 64; see, also, People v Schifter, 34 AD2d 561). In short, there was no certainty as to whether a grant of the motion would lead to an inspection of the minutes by the court, or physical release of a transcript of the Grand Jury proceeding to the defendant.

Against this historic backdrop, CPL 210,30 was enacted. That section carefully delineates the procedural path to be followed on a motion to inspect the Grand Jury minutes and to dismiss the indictment for insufficient evidence. Subdivision 1 requires that a motion to dismiss for insufficient Grand Jury evidence be accompanied by a motion to inspect the minutes. As defined in subdivision 2, "A motion to inspect grand jury minutes is a motion by a defendant requesting the court to examine the stenographic minutes of a grand jury proceeding resulting in an indictment for the purpose of determining whether the evidence before the grand jury was legally sufficient to support the charges”. (Emphasis added.) Disposition of the motion is governed in part by subdivision 3: "If the court determines that there is reasonable cause to believe that the grand jury evidence may not have been legally sufficient, it must grant the motion to inspect the grand jury minutes. It must then proceed to examine the minutes(Emphasis added.)

By adopting section 210.30, the Legislature has unraveled the morass which had plagued these critical pretrial proceedings. More important, that body has indicated, in unmuted strains, that the court and not the defendant is to inspect the transcript of the Grand Jury proceedings when the legal sufficency of the evidence is brought into question. Read as an integrated whole, the language of CPL 210.30 admits of no other interpretation. Indeed, a draftsman of the legislation, Judge Richard Denzer, bears witness to the Legislature’s conscious choice of the in camera inspection method: "It may be noted that some judges, in granting the motion to inspect, have occasionally ordered the minutes given to the defendant and allowed adversarial argument on the sufficiency issue for purposes of determining the dismissal motion. No such authorization is provided in the CPL section” (Denzer, Practice Commentary, McKinney’s Cons Laws of NY, Book 11 A, CPL 210.30, p 357). The inescapable conclusion is that defendant Kazmarick and his counsel are not entitled to view a transcript of the Grand Jury proceedings.

Of course, the procedure ordained by CPL 210.30 highlights the role of the court in evaluating the legal sufficiency of the Grand Jury evidence. A defendant’s procedural right to move for dismissal of an indictment founded upon inadequate or improper evidence is of constitutional dimension (People ex rel. Hirschberg v Supreme Ct., 269 NY 392, 395, supra; People v Glenn, 173 NY 395, 400). Were this not so, the door would be opened to grave abuses and the safeguards against arbitrary and unwarranted exercise of the State prosecutorial power would be seriously jeopardized. "It is a serious matter for any individual to be charged with crime whether the charge be true or false” and it is as important " 'that he be fairly and justly accused * * * as that he be fairly and impartially tried’ ” (People v Minet, 296 NY 315, 322, 323, quoting Matter of Gardiner, 31 Misc 364, 375). On the trial court rests the weighty burden of protecting against these abuses by ensuring the sufficiency of the evidence before the Grand Jury. To that end, CPL 210.30 (subd 4) authorizes the court to conduct an in camera inspection of the Grand Jury minutes even where the defendant fails to demonstrate reasonable cause to believe the evidence was insufficient. If there is any doubt as to the adequacy of the evidence in a given case, the court should not hesitate to conduct an examination of the minutes under this provision (cf. Matter of Miranda v Isseks, 41 AD2d 176, 178-179).

In sum, respondents were properly restrained from taking any further steps to disclose the secret Grand Jury minutes to defendant. A Trial Judge is without power, in these circumstances, to make an order allowing defendant or his counsel to inspect the minutes of the Grand Jury proceeding.

Accordingly, the judgment of the Appellate Division should be affirmed, without costs.

Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur with Chief Judge Cooke.

Judgment affirmed.  