Bonelli v. City of New York et al

Filing 30

ORDER denying 29 Motion to Unseal Document -- For the reasons set forth in the attached document, I deny the motion without prejudice to plaintiff Bonelli's right to renew his request upon a showing that the grand jury minutes he seeks are ne eded for some purpose other than to establish a defendant's liability for testimony before a grand jury and that the need to use the minutes for such a purpose outweighs the otherwise compelling need to maintain the secrecy of grand jury proceedings. Ordered by Magistrate Judge James Orenstein on 5/4/2012.(Orenstein, James)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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ANTHONY BONELLI,
Plaintiff,
- against CITY OF NEW YORK, et al.,
Defendants.
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MEMORANDUM
AND ORDER
11-CV-0395 (KAM) (JO)

JAMES ORENSTEIN, Magistrate Judge:
Plaintiff Anthony Bonelli ("Bonelli"), a former employee of the New York City Police
Pension Fund ("Fund"), has asserted a variety of claims under state and federal law against the
Fund, the City of New York, and several of his former co-workers and supervisors. Among those
claims is Bonelli's assertion that his former colleagues subjected him to malicious prosecution – on
charges of which he was ultimately acquitted – by lying about him in testimony before a grand
jury. See generally Docket Entry ("DE") 1 (Complaint). In the pursuit of evidence to support that
claim, Bonelli now requests an order to unseal the relevant minutes of the proceedings before a
state grand jury sitting in Staten Island, New York. DE 29 (motion) at 1-3. All defendants, as well
as the Staten Island District Attorney's Office, consent to the application. Id. at 1. Although I might
otherwise grant the motion on consent, I now deny the motion in light of the Supreme Court's
recent decision that "a grand jury witness has absolute immunity from any § 1983 claim based on
the witness' testimony[.]" Rehberg v. Paulk, --- U.S. ---, 132 S. Ct. 1497, 1506 (2012). The ruling
is without prejudice to Bonelli's right to renew his request upon a showing that the grand jury
minutes he seeks are needed for some purpose other than to establish a defendant's liability for
testimony before a grand jury and that the need to use the minutes for such a purpose outweighs the
otherwise compelling need to maintain the secrecy of grand jury proceedings.

Under New York Criminal Procedure Law § 190.25(4), grand jury testimony is secret and
may not be disclosed without a court order. In order to obtain such an order, a movant must show a
"compelling and particularized need" for access. See Police Comm'r of City of New York v. Victor
W., 830 N.Y.S.2d 323, 324 (App. Div. 2007) (quoting Matter of Dist. Attorney of Suffolk Cnty., 58
N.Y.2d 436, 444 (1983)). Although federal courts "are not bound" by that law, "'a strong policy of
comity between state and federal sovereignties impels federal courts to recognize state privileges
where this can be accomplished at no substantial cost to substantive and procedural policy.'"
Blasini v. City of New York, 2012 WL 983547, at *1 (S.D.N.Y. Mar. 22, 2012) (quoting Lora v. Bd.
of Ed. of City of New York, 74 F.R.D. 565, 576 (E.D.N.Y. 1977)); see also State Farm Mut. Auto.
Ins. Co. v. Eastern Med., P.C., 2008 WL 3200256, at *2 (E.D.N.Y. Aug. 5, 2008). As a result, "'in
evaluating applications to unseal state grand jury minutes, federal courts have required the same
demonstrations of particularized need required for the unsealing of federal grand jury minutes.'"
Id. (quoting Myers v. Phillips, 2007 WL 2276388, at *2 (E.D.N.Y. Aug. 7, 2007)). Bonelli can
demonstrate such a need "by showing that the material sought 'is needed to avoid a possible
injustice in another judicial proceeding, that the need for disclosure is greater than the need for
continued secrecy, and that the request is structured to cover only material so needed.'" Zomber v.
Vill. of Garden City, 2011 WL 3511011, at *2 (E.D.N.Y. Aug. 10, 2011) (quoting Douglas Oil Co.
v. Petrol Stops Northwest, 411 U.S. 211, 222 (1979) (internal alteration omitted).
Bonelli's argument appears to be that his need for the grand jury minutes arises with respect
to his malicious prosecution claim. DE 29 at 3. Under New York law,
'Once a suspect has been indicted ... the law holds that the Grand Jury action creates
a presumption of probable cause.' 'The presumption may be overcome only by
evidence establishing that the police witnesses have not made a complete and full
statement of facts either to the Grand Jury or to the District Attorney, that they have
misrepresented or falsified evidence, that they have withheld evidence or otherwise
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acted in bad faith.' Thus, in order for a plaintiff to succeed in a malicious
prosecution claim after having been indicted, 'he must establish that the indictment
was produced by fraud, perjury, the suppression of evidence or other police
conduct undertaken in bad faith.'
Rothstein v. Carriere, 373 F.3d 275, 282-83 (2d Cir. 2004) (quoting Colon v. City of New York, 60
N.Y.2d 78, 82-83 (1983)). Bonelli argues that these legal standards supply him with a "compelling
and particularized need" for the grand jury minutes, which he presumably believes will allow him
to rebut the presumption of probable cause that attaches to his indictment. DE 29 at 3.
Prior to the Supreme Court's recent decision in Rehberg, I would likely have been inclined
to agree with Bonelli and to grant the motion. 1 However, the bright-line holding in that case that "a
grand jury witness has absolute immunity from any § 1983 claim based on the witness' testimony,"
132 S. Ct. at 1506, appears to undermine any claim that seeks to impose liability on a defendant on
the basis of a person's false testimony before a grand jury. The effect of Rehberg appears to
implicate not only Bonelli's substantive malicious prosecution claims, but also his related claims
of conspiracy. Indeed the Supreme Court explicitly stated that the rule it announced in Rehberg
may not be circumvented by claiming that a grand jury witness conspired to present
false testimony or by using evidence of the witness' testimony to support any other
§ 1983 claim concerning the initiation or maintenance of a prosecution. Were it
otherwise, "a criminal defendant turned civil plaintiff could simply reframe a claim
to attack the preparation instead of the absolutely immune actions themselves."
132 S. Ct. at 1506 (quoting Buckley v. Fitzsimmons, 509 U.S. 259, 283 (1993)); see also, e.g.,
Jones v. Dalton, 2012 WL 1134895, at *8 (D.N.J. Apr. 3, 2012) (dismissing malicious prosecution

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Consistent with the interest of comity, Bonelli first filed a motion in state court for the relief he
now seeks here, but his application was denied. DE 29 at 1; see also Ruther v. Boyle, 879 F. Supp.
247, 250-51 (E.D.N.Y. 1995) (citing, inter alia, Douglas Oil, 411 U.S. 211, 230-31 (1979)). In
suggesting that, prior to the decision in Rehberg, I would likely have granted the instant motion, I
do not endorse Bonelli's characterization of the disposition of the state court motion, see DE 29 at
1 n.1, primarily because the record in the instant action includes virtually no information about the
record before the court on that motion.
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claim on summary judgment and citing Rehberg in holding that "[a]bsolute immunity prohibits
[plaintiff] from rebutting th[e] presumption [of probable cause that attaches to his indictment] with
evidence that [defendant] made misrepresentations to the grand jury").
If the foregoing analysis of the effect of Rehberg on Bonelli's claims is correct, then there
does not appear to be any permissible use Bonelli can make of the state grand jury minutes as part
of the case-in-chief in support of his claims. Under such circumstances – where I can identify no
permissible use for the grand jury minutes in this litigation, let alone a compelling need for them –
I necessarily conclude that Bonelli has not demonstrated a sufficient basis for overcoming the need
for continued secrecy in grand jury proceedings. I recognize, however, that I may have either
misconstrued Rehberg – a recent decision that has thus far been cited in only a handful of cases,
none of which addressed the issue presented here – or misperceived the purpose for which Bonelli
seeks access to otherwise secret grand jury minutes. I therefore deny the motion without prejudice
to Bonelli's right to renew his request upon a showing that the grand jury minutes he seeks are
needed for some purpose other than to establish a defendant's liability for testimony before a grand
jury and that the need to use the minutes for such a purpose outweighs the otherwise compelling
need to maintain the secrecy of grand jury proceedings.
SO ORDERED.
Dated: Brooklyn, New York
May 4, 2012
_
/s/
JAMES ORENSTEIN
U.S. Magistrate Judge

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