Grand jury; grand jury reports

§ 190.85 Grand jury; grand jury reports.

1. The grand jury may submit to the court by which it was impaneled, a
report:

(a) Concerning misconduct, non-feasance or neglect in public office
by a public servant as the basis for a recommendation of removal or
disciplinary action; or

(b) Stating that after investigation of a public servant it finds no
misconduct, non-feasance or neglect in office by him provided that such
public servant has requested the submission of such report; or

(c) Proposing recommendations for legislative, executive or
administrative action in the public interest based upon stated findings.

2. The court to which such report is submitted shall examine it and
the minutes of the grand jury and, except as otherwise provided in
subdivision four, shall make an order accepting and filing such report
as a public record only if the court is satisfied that it complies with
the provisions of subdivision one and that:

(a) The report is based upon facts revealed in the course of an
investigation authorized by section 190.55 and is supported by the
preponderance of the credible and legally admissible evidence; and

(b) When the report is submitted pursuant to paragraph (a) of
subdivision one, that each person named therein was afforded an
opportunity to testify before the grand jury prior to the filing of such
report, and when the report is submitted pursuant to paragraph (b) or
(c) of subdivision one, it is not critical of an identified or
identifiable person.

3. The order accepting a report pursuant to paragraph (a) of
subdivision one, and the report itself, must be sealed by the court and
may not be filed as a public record, or be subject to subpoena or
otherwise be made public until at least thirty-one days after a copy of
the order and the report are served upon each public servant named
therein, or if an appeal is taken pursuant to section 190.90, until the
affirmance of the order accepting the report, or until reversal of the
order sealing the report, or until dismissal of the appeal of the named
public servant by the appellate division, whichever occurs later. Such
public servant may file with the clerk of the court an answer to such
report, not later than twenty days after service of the order and report
upon him. Such an answer shall plainly and concisely state the facts
and law constituting the defense of the public servant to the charges in
said report, and, except for those parts of the answer which the court
may determine to be scandalously or prejudicially and unnecessarily
inserted therein, shall become an appendix to the report. Upon the
expiration of the time set forth in this subdivision, the district
attorney shall deliver a true copy of such report, and the appendix if
any, for appropriate action, to each public servant or body having
removal or disciplinary authority over each public servant named
therein.

4. Upon the submission of a report pursuant to subdivision one, if
the court finds that the filing of such report as a public record, may
prejudice fair consideration of a pending criminal matter, it must order
such report sealed and such report may not be subject to subpoena or
public inspection during the pendency of such criminal matter, except
upon order of the court.

5. Whenever the court to which a report is submitted pursuant to
paragraph (a) of subdivision one is not satisfied that the report
complies with the provisions of subdivision two, it may direct that
additional testimony be taken before the same grand jury, or it must
make an order sealing such report, and the report may not be filed as a
public record, or be subject to subpoena or otherwise be made public.