Opinion
Argued February 12, 1980
Decided April 1, 1980
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, NORMAN L. HARVEY, J.
Arthur H. Grae and James M. Rose for appellant.
Charles J. Hynes, Deputy Attorney-General (Arthur Weinstein of counsel), for respondent.
On this appeal, we are asked to review an order directing a Grand Jury witness to answer questions propounded by a Special Assistant Attorney-General in proceedings being conducted by him pursuant to an executive order of superseder which defines the subject matter of the Attorney-General's authority only by reference to a numbered file of a pending investigation in the office of the Special State Prosecutor for Nursing Homes.
On December 20, 1978, the Governor, in response to calls of concern expressing the possibility that various crimes may have been committed by public officials in Albany County, issued Executive Order No. 78 (9 N.Y.CRR 3.78) directing the Attorney-General to appear before a term of Supreme Court and a Grand Jury in Albany County for the purpose of managing and conducting proceedings "concerning or relating to any and all unlawful acts or omissions or alleged unlawful acts or omissions by any person arising out of, relating to, or in any way connected with the subject matter of an investigation presently pending in the Office of the Special State Prosecutor for Nursing Homes, Health and Social Services, entitled: People v John Doe, Special Prosecutor's File Number N Y 9-41" and to supersede the District Attorney of Albany County in such proceedings. The Governor's authority to issue this executive order has its genesis in his constitutional duty to "take care that the laws are faithfully executed" (NY Const, art IV, § 3) and is specifically provided in an express statutory grant (Executive Law, § 63, subd 2).
The record reveals that the District Attorney of Albany County was informed of the contents of Special Prosecutor's File No. N Y 9-41, and, in fact, joined in the request for a superseder.
Thereafter, a subpoena was issued commanding appellant Jane Doe to attend as a witness before the Grand Jury on January 18, 1979. The record reveals that her testimony would be vital to the successful execution of the Grand Jury's function, inasmuch as appellant's prior testimony before a Westchester County Grand Jury indicated her familiarity with the facts and circumstances underlying the Albany County investigation.
Appellant did appear before the Grand Jury on January 18 and was granted full transactional immunity. (See CPL 190.40, subd 2.) Although she answered some of the inquiries addressed to her, numerous lines of questioning were rebuffed with an unequivocal refusal to respond. Faced with this recalcitrance, the special prosecutor applied for an order directing appellant to reappear before the Grand Jury and to answer the questions put to her, or, in the alternative, for an order holding appellant in contempt. By cross motion, appellant sought various relief, including an order quashing the subpoena or directing disclosure to her of documents and papers held by the special prosecutor. Special Term granted an order directing appellant to answer the questions asked of her before the Grand Jury under pain of contempt, and denied appellant's cross motion.
A review of the transcript of appellant's testimony before the Grand Jury indicates that she refused to answer some of the questions posed to her on the advice of counsel. We would note that contrary to appellant's claim, she was afforded ample opportunity to consult with counsel, and, indeed, the record reveals that the special prosecutor was co-operative in this regard.
After remitting this matter twice for further development of the record and additional findings by Special Term, the Appellate Division unanimously affirmed the order of Special Term. That court rejected appellant's contention that Executive Order No. 78 is so vague and obscure to be deficient on its face, reasoning that "the statute [Executive Law, § 63, subd 2] does not mandate the form such a specification must take." ( 69 A.D.2d 955. ) Further, the Appellate Division held that the original subpoena and a subsequent subpoena directing appellant's appearance before the Grand Jury were properly issued in accordance with the executive order. ( 71 A.D.2d 1038.)
Appellant's motion for a stay of enforcement of Special Term's order was granted by the Appellate Division pending the determination of the appeal in that court. This court, upon granting appellant leave to appeal from the unanimous disposition below, also granted appellant's motion to stay all steps and/or proceedings pursuant to the order of the Appellate Division.
Leave to appeal was granted by this court to examine the novel issues raised herein. We conclude that there should be an affirmance.
Although appellant urges reversal by raising numerous contentions on this appeal, we believe only two such arguments have sufficient merit to require discussion. Appellant first challenges the validity of Executive Order No. 78 by claiming that it fails to comply with the specificity requirement embodied in subdivision 2 of section 63 of the Executive Law. That section provides, in pertinent part, that the Attorney-General shall "[w]henever required by the governor, attend in person, or by one of his deputies, any term of the supreme court or appear before the grand jury thereof for the purpose of managing and conducting in such court or before such jury criminal actions or proceedings as shall be specified in such requirement; in which case the attorney-general or his deputy so attending shall exercise all the powers and perform all the duties in respect of such actions or proceedings, which the district attorney would otherwise be authorized or required to exercise or perform; and in any of such actions or proceedings the district attorney shall only exercise such powers and perform such duties as are required of him by the attorney-general or the deputy attorney-general so attending."
It cannot be disputed that this statutory language contemplates a degree of specificity for it is stated expressly that the criminal actions sought to be investigated "shall be specified in such requirement". Indeed, this mandate of specificity serves a vital purpose. The grant of authority to the Attorney-General pursuant to subdivision 2 of section 63 of the Executive Law is neither self-executing nor boundless. Rather, the Attorney-General's authority and that of the special prosecutor designated by him extend only to those matters set forth in the Governor's order. (Matter of Dondi v Jones, 40 N.Y.2d 8, 19; see Matter of Turecamo Contr. Co., 260 App. Div. 253, 259.)
In our opinion, this requirement of specificity is satisfied by the Governor's reference to a numbered file of a pending investigation in the office of the special State prosecutor. The underlying purpose of such requirement — to inform the Attorney-General of the range of his anticipated duties — is fully satisfied inasmuch as the Attorney-General is made aware of the scope of his authority in superseding the local District Attorney. The scope of his authority is limited to those matters relating to, or in any way connected with, the subject matter contained in the investigatory file referred to in the executive order.
Nor can it be said that the Governor's order of superseder is rendered less specific because the contents of such file are subject to almost inevitable flux. Investigatory or prosecutorial files are, without doubt, everchanging. While the Attorney-General or his designated special prosecutor should never be permitted to expand unilaterally the scope of his authority by increasing the file to encompass matters not included therein at the time the executive order was issued, this is not to say that the file must remain static. Rather, subdivision 2 of section 63 of the Executive Law should be interpreted as limiting the Attorney-General's authority to those matters relating to, or in any way connected with, the subject matter contained in the special prosecutor's investigatory file at the time the executive order was issued. A mere change in the contents of the file by adding additional information concerning the matter under investigation does not trigger automatically an increase in authority when so limited.
Further, it should be stressed that the authority exercised by the Attorney-General or his designee is not immune from scrutiny. Such authority can be challenged in the courts and it is within the constant control of the Governor. As Chief Judge BREITEL stated when characterizing the nature of an executive order: "An Executive Order is ambulatory, and is alterable or revocable at the pleasure of the Governor. Indeed, on numerous occasions, three Governors have seen fit to reaffirm, amend, or limit the scope of the original Executive Order for various purposes". (Matter of Dondi v Jones, 40 N.Y.2d 8, 29, supra [dissenting opn].)
In short, we find no impropriety in defining the scope of the Attorney-General's authority only by reference to a fictitious name and the number of a confidential file. Such reference is not lacking in specificity and serves the demand of subdivision 2 of section 63 of the Executive Law where the subject matter ordered to be investigated is contained in the numbered confidential file.
Underlying appellant's attack is the more fundamental question whether the executive order must be phrased in such language so as to inform both a prospective witness and his attorney as to the scope of the investigation. Appellant argues, in essence, that given the enigmatic description of the scope of the Attorney-General's authority embodied in Executive Order No. 78 — subject matter of the investigation entitled " People v John Doe, Special Prosecutor's File Number N Y 9-41" — no witness summoned before the Grand Jury would be able even to guess at the propriety of the questions asked of him.
Analysis of this issue must commence with the recognition of the function of a Grand Jury. Obviously, the Grand Jury is not charged with the responsibility of determining the guilt or innocence of the accused, but, rather, its primary function "is to investigate crimes and determine whether sufficient evidence exists to accuse a citizen of a crime and subject him or her to criminal prosecution". (People v Calbud, Inc., 49 N.Y.2d 389, 394.) In this sense, the Grand Jury serves a dual responsibility. As we have only recently observed: "[The Grand Jury] functions to protect the community from disruption by those who elevate and obtain their purely personal desires in ways not sanctioned by society-at-large, while, at the same time, protecting persons from unfounded accusations." (Matter of Keenan v Gigante, 47 N.Y.2d 160, 167-168; see People v Calbud, Inc., 49 N.Y.2d 389, 396, supra; People v Woodruff, 26 A.D.2d 236, 238-239, affd 21 N.Y.2d 848; Branzburg v Hayes, 408 U.S. 665, 686-688.)
Also well settled is the rule of law that every person owes a duty to give evidence before the Grand Jury when requested to do so. (Matter of Keenan v Gigante, 47 N.Y.2d, at p 168, supra; People v Woodruff, 26 A.D.2d 236, 238-239, supra; Matter of Manning v Valente, 272 App. Div. 358, 364, affd 297 N.Y. 681; see CPL 190.40, subd 1.) The Grand Jury, as an arm of society and the court, can only fulfill its essential function when members of the community are willing to co-operate fully with its requests. As has been observed, "[t]he community is entitled to the assistance and information of its members in seeking out and controlling the commission of crime." (People v Woodruff, 26 A.D.2d, at p 238, supra.)
This obligation to come forth with evidence before the Grand Jury is not dependent upon a prospective witness or his attorney being informed of the scope of the investigation. (See, generally, 38 CJS, Grand Juries, § 41, p 1051, n 99.) Certainly, the Governor is not required to broadcast publicly the purpose of the investigation in his executive order, nor is the special prosecutor required to inform a witness of the Grand Jury's underlying purpose. As explained by then Judge LEHMAN when writing for this court in Matter of Spector v Allen ( 281 N.Y. 251, 257): "The grand jury must often conduct investigations to determine whether a crime has been committed, before it is possible for the District Attorney to formulate a charge or to point to any particular person. The successful prosecution of crime would be intolerably impeded if a District Attorney could be compelled to divulge, before he is ready, the nature of an investigation by the grand jury or the name of the person or persons suspected." Stated another way, "[t]he grand jury is an arm of the court. Its subpoenas are presumptively valid and can only be challenged by an affirmative showing of impropriety. The People are not required to make public disclosure of the purpose of the inquiry in order to obtain compliance with its mandates. No witness may avoid obedience to the directions of the court without establishing by concrete evidence that the subpoena was issued in bad faith or that it is for some other reason invalid. These rules inhere in the very nature of the grand jury's functions and of its authority." (Matter of Manning v Valente, 272 App. Div. 358, 361, supra; see People v Doe, 247 App. Div. 324, 326, affd 272 N.Y. 473.)
The reason for not requiring public disclosure of the purpose of a Grand Jury's investigation is both simple and direct, and is indeed analogous to the reasons cited for maintaining the secrecy of Grand Jury minutes, to wit: "(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 testimony will be kept secret so that they will be willing to testify freely." (People v Di Napoli, 27 N.Y.2d 229, 235.) It should be abundantly clear that if public disclosure of the nature of an investigation by the Grand Jury or the identity of the persons under investigation were mandated, the very function of the Grand Jury would be undermined.
This is not to say, or even imply, that a witness is required to answer questions having no bearing on the subject matter of the investigation, for it has been consistently recognized that a witness has a right to refuse to answer irrelevant inquiries. (People v Ianniello, 21 N.Y.2d 418, 425; see Matter of Koota v Colombo, 17 N.Y.2d 147, 150.) In a situation where a witness or his attorney harbors a reasonable suspicion that a line of questioning has no bearing on the subject of the investigation, the witness can invoke the assistance of the court to insure the questions' relevancy. At that point, it is incumbent upon the special prosecutor to demonstrate relevancy. Of course, "the relevancy of the questions need not be conclusively established. It is enough if the `bearing [of the questions] on the subject of the investigation was susceptible of intelligent estimate' (Matter of Spector v. Allen, 281 N.Y. 251, 258, supra) or if there was a `justifiable suspicion that the former is related to the latter' (People v. Doe [Byk], 247 App. Div. 324, 326, affd. 272 N.Y. 473, supra)." (Matter of Koota v Colombo, 17 N.Y.2d 147, 150, supra.)
A few concluding remarks are necessary. It must be stressed that appellant was granted complete transactional immunity upon testifying before the Grand Jury. She could not be criminally prosecuted as a result of any illegal transaction to which she testified, nor could any of appellant's responses be used against her in a criminal proceeding, except in a prosecution for perjury or criminal contempt. Further, appellant's contentions are, as a practical matter, without merit for a review of the transcript of the Grand Jury minutes reveals that appellant was informed as to the nature of the Grand Jury's inquiry before testifying.
In sum, we hold that the subpoenas were properly issued in accordance with Executive Order No. 78 and that the questions asked of appellant by the special prosecutor would indeed be relevant to the subject matter of the inquiry.
In response to the dissent, only limited observations are required. Referring to a special prosecutor as a power-ladened official whose investigatory and prosecutorial powers are unchecked and whose success "may be measured in the public eye in terms of whether the inquiry results in the filing of criminal charges" is totally inappropriate, and any general characterization in this regard is not accepted by this court. As noted, the authority exercised by the Attorney-General or his appointed prosecutor can be challenged in the courts and is within the constant control of the Governor. Of course, the Governor is directly accountable to the general public for his actions when ordering that a local District Attorney be superseded.
Nor is the single legal authority (People ex rel. Osborne v Board of Supervisors of County of Westchester, 168 App. Div. 765) cited by the dissent, persuasive or applicable. That case dealt with the limited issue whether an attorney appointed orally by the Governor as a Special Deputy Attorney-General to investigate improprieties relating to the conduct of a State prison could compel the board of supervisors of a local county to pay him for services rendered. In short, we will not read into subdivision 2 of section 63 of the Executive Law a requirement of public disclosure of the purpose of a Grand Jury's investigation which neither the statute nor any recognized principle of law requires.
Further, dictates of common sense require that we not now depart from the time-tested rule that a special prosecutor need not divulge publicly the purpose of a Grand Jury's inquiry. To bootstrap the right of a witness not to answer irrelevant inquiries to justify public disclosure of the purpose of an inquiry would unduly hamper investigations and ignores the responsibility of the courts to check the power of the special prosecutor when such authority is, in fact, abused. Relief lies in the courts, and the existence of this independent forum to air claimed wrongs renders any change in the law unnecessary. (See, e.g., Mann Judd Landau v Hynes, 49 N.Y.2d 128; People v Rosenberg, 45 N.Y.2d 251; Matter of Friedman v Hi-Li Manor Home for Adults, 42 N.Y.2d 408; Matter of Dondi v Jones, 40 N.Y.2d 8, supra; Matter of Sigety v Hynes, 38 N.Y.2d 260.)
A concluding remark is necessary in response to both the concurrence and dissent. We refuse to engage ourselves in an academic debate concerning the relative merits of the Grand Jury system in this State. Suffice it to say that such discussion is irrelevant to the issues before us, and any reservations or suspicions individual Judges of this court may harbor with respect to the Grand Jury's vitality are of no moment, for the Grand Jury is expressly mandated by our Constitution. (NY Const, art I, § 6.)
For the above-stated reasons, the order of the Appellate Division should be affirmed, without costs.
Compelling a witness to appear blind and unaided before a secret tribunal is difficult to reconcile with a judicial system which prides itself on having long rejected the methods of the inquisition. Even more disturbing is the fact that the Grand Jury which was originally created to protect the presumably innocent citizen from unfair prosecution has, in modern practice, almost invariably served as an investigative agent for the prosecutor.
The witness in this case has been directed to appear, without counsel, at a Grand Jury proceeding, not open to the public, in order to be questioned about certain unspecified events by a special prosecutor whose authority is cryptically described as extending to matters contained in "File Number N Y 9-41". This intentionally mystifying procedure is said to be justified by the need for maintaining secrecy in a pending criminal investigation. The witness argues, however, that the degree of secrecy observed in this case undermines her rights to such an extent that the subpoena should be quashed.
There is, of course, no risk that the witness will be compelled to incriminate herself in view of the fact that she has been granted full transactional immunity (CPL 190.40, subd 2). The primary question is whether concealing the scope of the special prosecutor's authority by reference to a secret file, supplemented only by vague generalization, effectively deprives her of the right to refuse to answer questions which are irrelevant to the matter under investigation (see, e.g., People v Ianniello, 21 N.Y.2d 418, 425; Matter of Koota v Columbo, 17 N.Y.2d 147, 150).
Although the exercise of that right has obviously been made more difficult in this case, I am impelled to concur with the result reached by the majority because there is no showing that the witness has been denied access to the court to be heard on questions to which she objects, or that the prosecutor has in fact exceeded his authority by posing those questions. Should the witness refuse to answer questions held to be relevant, the fact that she was not aware of the scope of the prosecutor's authority, and thus could not fully argue the relevance issue, would weigh heavily against the prosecutor if he seeks to charge her with contempt. At this stage, however, there is no indication that the refusal to disclose the prosecutor's authority, although inconvenient, has actually prejudiced the witness' rights.
That is not to say that the procedure adopted in this case contributes to the public image of a fair and impartial judicial system. This procedural unfairness, however, is a problem best addressed to the Legislature which has prescribed the existing practices. The Legislature should also give serious consideration, as have many of our sister States, toward the eventual elimination of the Grand Jury as a prosecutorial tool to fashion felony indictments.
Right from the outset I would stress the compelling fact that the Grand Jury proceedings with which we are concerned here were properly denominated "extraordinary". They were not undertaken under the auspices of a District Attorney acting within the mainstream of the system on which we rely for enforcement of our criminal law — as were those in all the cases in the majority opinion — but rather by a special prosecutor designated by the Attorney-General at the behest of the Governor pursuant to subdivision 2 of section 63 of the Executive Law. Given that the nature of the special prosecutor's office subjects him, as hereinafter indicated, to less restraint than a District Attorney, it is especially important in relation to citizens' rights that his authority be spelled out with clarity.
The distinction is of paramount importance. For, in contrast to a District Attorney, a constitutional officer who must be chosen by the electors of a county (NY Const, art XIII, § 13), the appointed special prosecutor, on statutory authority only, carries out an ad hoc assignment for the conduct of which he is not subject to popular review. The lines of accountability, of course, run, in fact if not always in form, to the Governor, a purely executive and by no means judicial officeholder. So, in other than a Panglossian world, there will generally be perceived a risk that the supersedure will carry in its train no guarantee that politics may not intrude on the prosecutory function (see Note, The Common Law Power of State Attorneys General to Supersede Local Prosecutors, 60 Yale LJ 559, 563).
Relevant also to the nature of the power wielded in this case is the difference between the office of District Attorney, pregnant with quasi-judicial obligations, including the wide latitude to determine whom whether and how to prosecute (see People v Fielding, 158 N.Y. 542, 547; Matter of Hassan v Magistrates' Ct. of City of N.Y., 20 Misc.2d 509, 511-512 [SHAPIRO, J.]), and that of the special prosecutor, charged as he is with a particular mission. Indeed, typically, the appointment of the special prosecutor occurs only under extraordinary circumstances which point to some identifiable subject that the appointing authority decides to make the object of probing investigation. In such a targeted inquiry, human experience teaches that, since the success of the appointed prosecutor in some instances may be measured in the public eye in terms of whether the inquiry results in the filing of criminal charges (cf. Matter of Cunningham v Nadjari, 39 N.Y.2d 314, 318; People v Mackell, 47 A.D.2d 209, affd 40 N.Y.2d 59), he may be tempted, perhaps subconsciously, not to exercise, on sense-of-justice considerations, that degree of discretion to decline to prosecute which is the normal prerogative of any District Attorney. (See Frampton, Some Practical and Ethical Problems of Prosecuting Public Officials, 36 Md. L Rev 5, 15.)
So, although the appointment of a special prosecutor has many real advantages — for example, when accusations of corruption taint the investigatory ability of the District Attorney or when the manpower or other resources of individual District Attorneys are inadequate to deal with multicounty criminal activity — his position is simply not subject to the same restraints that act on the District Attorney. Coupled with this are the aggregate of State resources which the special prosecutor will have at his disposal and the everpresent potential that the tremendous investigatory power of the Grand Jury may be employed in derogation of that body's co-ordinate function as a shield for individual rights (see Abuse of Power, Staff Report of the Codes Committee of the N Y State Assembly [1976], pp 47-50, reprinted in 11 Trial Lawyers Q 99-110). In short, it must always be borne in mind, as the majority seems to forget, that, because of these differences, the substitution of supersedure for the regular channels of prosecution may at times provide occasion for what Justice BRANDEIS labeled "[t]he greatest dangers to liberty", namely, the "insidious encroachment by men of zeal, well-meaning but without understanding" (Olmstead v United States, 277 U.S. 438, 479 [dissenting opn]).
Hence, given that concerns of this nature will attend every invocation by the executive of his supersedure power, and that perception may be nearly as important as reality, legislative recognition of the need for some meaningful circumscription on the scope of that authority comes as no surprise. This is reflected in the cautionary provision of subdivision 2 of section 63, which expressly requires that the special prosecutor's jurisdiction be limited to such "criminal actions and proceedings as shall be specified" in the Governor's executive order (emphasis mine).
It therefore is regrettable that the majority, while conceding that the statutory wording was aimed at delimiting the compass of the authority of the Attorney-General and his designee, the special prosecutor, simultaneously deprives the "specificity" requirement of all practical force by holding that it is satisfied as long as it "inform[s] the Attorney-General of the range of his anticipated duties" (p 18). Thus, goes the majority opinion, the executive order's reference merely to a confidential numbered file in the office of the Special Nursing Home Prosecutor suffices to make the Attorney-General aware of the scope of the supersedure. Quite clearly, however, this interpretation leaves the statute's language without meaning since the Governor would, perforce, convey at least this degree of information by the very act of transferring the authority. In other words, the Attorney-General (and the special prosecutor) will always know the range of their powers because at least the substance and, in almost every case, presumably the contents of the file will have been made available to them.
In my view the wording of the statute has a much more reasonable meaning and that is to apprise not only the special prosecutor, but the superseded District Attorney and Judges, Grand Jurors and witnesses of the transfer of authority as well as its boundaries (People ex rel. Osborne v Board of Supervisors of County of Westchester, 168 App. Div. 765, 767). Without at least some knowledge by the parties of the area of interest in which the special prosecutor has been authorized to act, the extent of his powers cannot be readily ascertained nor, concomitantly, can the invasion of rights be detected. Noteworthy in this regard is the authoritative recommendation of the American Bar Association Project on Standards for Criminal Justice that, to safeguard against arbitrariness, the grounds for a supersedure should be placed on the record by filing them with an official such as the Secretary of State (ABA Standards Relating To The Prosecution Function [Approved Draft], § 2.10, subd [a], Commentary, at p 75). However, we need only say that here it is all too clear that the enigmatic reference in Executive Order No. 78 to a confidential case file identified only by number is not a device calculated to set meaningful limits on the special prosecutor's power.
For one thing, as the majority candidly admits, the contents of such an investigative file are "subject to almost inevitable flux" (p 18). This makes well-nigh impossible any intelligent scrutiny — except by those acting at the behest of the special prosecutor himself — directed at distinguishing the contents of the file as of the time of the executive order from any post hoc additions or deletions that could conceivably expand the nature of the investigation, even as to persons who were in no way connected with the one against whom the investigation was originally authorized.
But, as most pertinent here, the specification requirement imposed by the statute serves another, albeit related, purpose: to inform the witness summoned before the Grand Jury of the nature of the investigation. To do so is also consonant with the long-standing principle that a Grand Jury witness has the right to refuse in good faith to answer inquiries that have no bearing on the subject matter of the investigation (People v Ianniello, 21 N.Y.2d 418, 425; see Matter of Koota v Colombo, 17 N.Y.2d 147, 150). It cannot be gainsaid that this right takes on added importance in the context of this extraordinary Grand Jury proceeding, conducted under a special prosecutor who purports to act pursuant to a supersedure order.
Yet, how is it that the mere citation to a confidential prosecutor's file can be thought to afford the witness the means of ascertaining the propriety of the questions asked? The obvious answer is that it cannot. For, how indeed will the witness, informed only in such arcane terms, as a practical matter ever possess what the majority apparently characterizes as the necessary precondition for invoking the assistance of the court to safeguard this right — "a reasonable suspicion" that the line of questioning is irrelevant (p 21)? Certainly, it is no answer to say that the witness at her peril must hazard a guess at the relevancy of a particular question or series of questions and, if she chooses to refuse to respond, be forced, under pain of contempt, to await judicial review after the court's in camera inspection of the authority-defining file. Moreover, to the extent that the witness must testify "in the dark", so to speak, her right to consult with counsel in the Grand Jury room (see CPL 190.52) is made nugatory, a result that can only be viewed as completely at odds with the thrust of our Legislature's recent efforts to enhance the Grand Jury's historic role as a bulwark against prosecutory abuse (see, generally, Abuse of Power, Staff Report of the Codes Committee of the N Y State Assembly [1976]).
Nor may the defective specification in the executive order be cured, as the majority seems to suggest, by the special prosecutor's recitation, in advance of the witness' testimony, of his construction of the nature and scope of his authority. While, admittedly, it may be good practice to so advise a witness before even an ordinary Grand Jury (see ABA Standards Relating To The Prosecution Function [Approved Draft], § 3.6, subd [d]; cf. People v Ianniello, 21 N.Y.2d 418, 426, supra), the supersedure statute's special requirement for "specificity" is telling in the command it exacts as to the contents of the order of appointment. And, even if the prosecutor could permissibly remedy the defect by some preliminary disclosure of the bounds of the inquiry before the Grand Jury, the statement he made to the witness in this case was so vague as to be utterly useless. While, in deference to the constraints imposed by the confidential character of an ongoing Grand Jury investigation, this dissent refrains from setting out the special prosecutor's statement either in substance or in haec verba, examination of its text reveals that, in generalities which could hardly be more sweeping, it was only incrementally more informative than the terse reference to the numbered case file. Suffice it to say that its statement of geographical location was so hedged with words of limitation as to be practically meaningless, that it specified no time frame and that it provided no particularization of the claimed area of criminal activity (compare People v Ianniello, 21 N.Y.2d 418, 426, supra [purpose of Grand Jury investigation described to witness as to "`determine if there was in existence a conspiracy to bribe or give unlawful fees to public officials of the City of New York, to wit, the Police Department'"]).
True, there is a need for secrecy in what at times may be politically sensitive investigatory proceedings, both to safeguard the reputations of as yet uncharged persons and to protect the integrity of the inquiry itself (see CPL 190.50, subd 7; and Supplementary Practice Commentary, McKinney's Cons Laws of NY, Book 11A; Frampton, Some Practical and Ethical Problems of Prosecuting Public Officials, 36 Md. L Rev 5, 10-15). Thus, the requirement of specificity imposed by subdivision 3 of section 63 should not be construed to compel the framing of the special prosecutor's authority in terms of evidentiary material, for instance. However, some reasonable accommodation may be arrived at that will at once preserve the confidentiality of the investigation yet define the confines of the special prosecutor's authority with sufficient clarity so that "the subject of the investigation [is] susceptible of intelligent estimate" by both the witness and the Judge (Matter of Spector v Allen, 281 N.Y. 251, 258). Notably, in the case before us, there was no claim of a need for secrecy so extraordinary as to justify (if, indeed, there could be justification for) the total absence of any specification of the nature of the inquiry. Nor was any urged to this court or the courts below.
Finally, a word about the concurrence. We cannot accept its concept that the witness is sufficiently protected because she has transactional immunity and will have an eventual right to be heard on the issue of relevance when she is charged with contempt. In view of the fact that the Legislature's requirement of specificity necessarily had as one of its purposes the protection of a witness against just such burdens, it is neither fair nor proper to impose the fiscal and mental, if not physical, expenditure of human and material resources that such a test of relevancy involves. And, in light of the fact that the concurring opinion takes note of widespread criticism of the Grand Jury system per se, in circumstances manifesting one of that system's greatest potentials for abuse it seems to me particularly appropriate that the statutory prescription for specificity be taken at its word.
I am also impelled to note that we could not agree if Judge JASEN'S opinion were to be read as expressing a blanket approval of the Grand Jury system.
In sum, because the use of the extraordinary supersedure mechanism carries very real risk, it is of the utmost importance that the procedural safeguards contemplated by subdivision 2 of section 63 of the Executive Law be respected in substance and not merely in form. Since the executive order here is inconsonant with the specificity requirement, in the absence of appropriate and timely definition of its prosecutory authority to the witness, vindication of the statutory safeguards mandates quashing the subpoena. The order of the Appellate Division therefore should be modified to accomplish that result.
Chief Judge COOKE and Judge GABRIELLI concur with Judge JASEN; Judge WACHTLER concurs in result in a separate opinion; Judge FUCHSBERG dissents and votes to reverse in another opinion in which Judges JONES and MEYER concur.
Order affirmed.