Blasini v. The City of New York et al

Filing 26

MEMORANDUM OPINION AND ORDER: The Grand Jury minutes from People v. Rafael Blasini, Supreme Court, New York County, Indictment No. 4848-2010, are ordered unsealed pursuant to Criminal Procedure Law §190.25. Blasini's request for the names o f the undercover officers is denied with leave to renew at a later date. If the names of the undercover officers appear in the minutes, defendants may redact and replace them with their undercover numbers. The City is ordered to provide Blasini with a service address where the undercover officers can be served by March 28, 2012 or accept service on their behalf. (Signed by Judge Shira A. Scheindlin on 3/22/2012) (js)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

._--------------------------------------------------

)(

RAFAEL BLASINI,
MEMORANDUM OPINION
AND ORDER

Plaintiff,
- against-

11 Civ. 3022 (SAS)

THE CITY OF NEW YORK,
DETECTIVE JEREMIAH
BREEN, UC 0006, UC 0003, and JOHN
DOE POLICE OFFICERS AND/OR
DETECTIVES #s 1-10,
Defendants .
._-------------------------------------------------- )(

SHIRA A. SCHEINDLIN, U.S.D.J.:
Rafael Blasini has brought this lawsuit alleging false arrest and
malicious prosecution. Blasini claims that two undercover officers for the New
York City Police Department gave malicious and perjurious testimony to a grand
jury and that Blasini was subsequently indicted on the basis of that testimony. 1
Blasini was incarcerated for two months before he was able to post bail; the
charges against him were eventually dismissed for lack of sufficient evidence. 2

See Amended Complaint ,-r~. 14-25.
2

See id.

,-r~

30-32.

1

Defendants have moved to dismiss Blasini's claims for failure to state
a claim. Blasini's ability to draft a proper pleading is hindered, however, because
he does not have access to the grand jury minutes. He has therefore moved to
unseal them. Although defendants do not oppose Blasini 's motion, the New York
County District Attorney has filed an opposition.
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."3 If such need exists, it must be balanced against the "venerable and
important policy" of grand jury secrecy.4 The reasons for grand jury secrecy
include "(1) prevention of flight by a defendant who is about to be indicted; (2)
protection of the grand jurors from interference from those under investigation; (3)
prevention of subornation of perjury and tampering with prospective witnesses at
the trial to be held as a result of any indictment the grand jury returns; (4)
protection of an innocent accused from unfounded accusations if in fact no
indictment is returned; and (5) assurance to prospective witnesses that their

3

People v. Fetcho, 91 N.Y.2d 765, 769 (1998) (quotaion and citation

omitted).
4

ld.
2

testimony will be kept secret so that they will be willing to testify freely."s
Although federal courts are not bound by state law protecting the
secrecy of state grand jury proceedings, "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.,,6 And "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.,,7
The District Attorney argues that Blasini cannot show a compelling
and particularized need for the minutes here:
[I]fBlasini needs police testimony to prove his civil claims, he is
free to seek it now. Blasini will have an opportunity under the
Federal Rules of Civil Procedure to obtain sworn testimony from
the police officers who were involved in his arrest, both in pretrial
depositions and at trial. There is no reason to believe that
deposition and trial testimony concerning the arrest would be
inadequate.... [Furthermore,] the use of Grand Jury testimony to
impeach or to refresh recollection has not ripened into a reality.
Indeed, in the event the instant civil action was to be settled prior
to trial, there would be no need at all for the Grand Jury materials

S

6

People v. DiNapoli, 27 N.Y.2d 229,235 (1970).
Lora v. Board a/Ed. a/City a/New York, 74 F.R.D. 565, 576

(E.D.N.Y. 1977).

Myers v. Phillips, No. 04 Civ. 4365,2007 WL 2276388, at *2
(E.D.N.Y. Aug. 7,2007).
7

3

in question. 8
The District Attorney's motion fails to recognize that in this case, Blasini
needs the grand jury minutes in order to craft a proper pleading and obtain discovery.
Although portions of the minutes were summarized by the court in his state
proceeding, that summary does not permit Blasini to point to the specific portions of
the testimony that he believes constituted perjury. Blasini's request is particularized
because he seeks the minutes relating to his indictment; he is not fishing for
information from other grand jury matters. And his need is compelling because he
alleges that what was said in the minutes constituted malicious perjury that led to his
unlawful arrest and prosecution. Many years ago, facing a dispute similar to the one
here (albeit involving federal grand jury minutes), Judge Charles Brieant analyzed the
issue perfectly, and I need not add much to his discussion:
Reasons supporting secrecy where a private citizen testifies to the
grand jury and thereafter there is no indictment, or the civilian
witness does not testify at trial of a resulting indictment, do not in
logic apply to a Government agent. A Government agent is not
likely to be inhibited by subsequent disclosure in the sense that a
businessman, victim of extortion or racketeering who testifies to
the grand jury might be.... [T]he public interest and the judicial
interest in the just resolution ofthis lawsuit would seem to present
a "particularized need" which would require [production of the
minutes] ... This is not a case where the ultimate facts testified to
before the grand jury, although relevant to a lawsuit, can also be
8

Response to Plaintiffs Motion to Unseal the Grand Jury Minutes,-r,-r

11,15.
4

obtained by a litigant from the same original sources, i.e.,
witnesses having knowledge. That is the sort of situation present
in most reported civil cases where disclosure of grand jury
minutes has been denied. In such cases, essentially the grand jury
testimony is being sought merely as a shortcut to get evidence
otherwise obtainable from primary sources by pre·trial discovery
or trial subpoena. In such cases, there is usually no "particularized
need" ... because the information sought may be obtained by
other means which do not intrude upon the secrecy of the grand
jury. In this case ... the grand jury testimony is the res itself, the
subject matter of this part of the lawsuit. What is relevant here is
not the underlying facts testified to, but the content of the
testimony itself. The grand jury testimony itself is what this case
(in this aspect) is all about. It would be highly unreasonable to
assume that a deposition of [the agent] taken at this remote time
would elicit the entire substance ofwhat [the agent] told the grand
jury ... and ifhe did possess such total recall, plaintiff would be
unable to test the veracity of the deposition testimony.9
None of the first four reasons for secrecy articulated by the Court of
Appeals in DiNapoli are relevant here. The fifth reason the assurance to prospective
witnesses that their testimony will be kept secret so that they will be willing to testify
freely - is overcome by Blasini's needs for the reasons explained by Judge Brieant.
Blasini also seeks to obtain the true names of the two undercover officers who
testified. He has not, however, explained why he needs those names at this stage in
the proceeding.

Dale v. Bartels, 532 F. Supp. 973, 976·77 (S.D.N.Y. 1982). Aa:ord
Myers, 2007 WL 2276388; Hewitt v. City o/New York, No. 09 Civ. 214, 2009 WL
2957924 (E.D.N.Y. Sept. 11, 2009).
9

5

The Grand Jury minutes from People v. Rafael Blasini, Supreme
Court, New York County, Indictment No. 4848-2010, are ordered unsealed
pursuant to Criminal Procedure Law § 190.25. Blasini's request for the names of
the undercover officers is denied with leave to renew at a later date. If the names
of the undercover officers appear in the minutes, defendants may redact and
replace them with their undercover numbers. The City is ordered to provide
Blasini with a service address where the undercover officers can be served by
March 28, 2012 or accept service on their behalf.

SO ORDERED:

Dated:

New York, New York
March 22, 2011

6

- Appearances ­
For Plaintiff:
Eric Edward Rothstein, Esq.
Rothstein Law PLLC
11 Park Place, Ste. 1801
New York, NY 10007
[phone]
For Defendants:
Sumit Sud
Assistant Corporation Counsel
New York City Law Department
100 Church Street
New York, NY 10007
[phone]
For New York County District Attorney:
Cynthia M. Sittnick
Assistant District Attorney
1 Hogan Place
New York, NY 10013
[phone]

7