People v. Slochowsky

• Decision Date: 09 December 1982
• Citation: 456 N.Y.S.2d 1018,116 Misc.2d 1069
• Parties: The PEOPLE of the State of New York, Plaintiffs, v. Abraham SLOCHOWSKY and Bruce Elliot, Defendants. Kings County, Part 24
• Court: New York Supreme Court

Page 1018

456 N.Y.S.2d 1018

116 Misc.2d 1069

The PEOPLE of the State of New York, Plaintiffs, v. Abraham SLOCHOWSKY and Bruce Elliot, Defendants.

Supreme Court, Trial Term,

Kings County, Part 24.

Dec. 9, 1982.

Jacob Evseroff, Brooklyn, for defendant Slochowsky.

Edward Rappaport, for defendant Elliot.

Asst. Dist. Attys., Jane S. Meyers and Larry Hartstein, for the people.

MEMORANDUM

GERALD ADLER, Justice.

The District Attorney of Kings County, Honorable Elizabeth Holtzman, moves this court to quash a subpoena served upon her by the attorneys for the defendants, on the grounds that "the testimony sought is wholly irrelevant to the inquiry before this court and is privileged."

A motion to quash a subpoena even though made in a criminal proceeding is a "special proceeding on the civil side of a court vested with civil jurisdiction" (Matter of Cunningham v. Nadjari, 39 N.Y.2d 314, 317, 383 N.Y.S.2d 590, 347 N.E.2d 915).

Initially this court must determine whether relevancy and privilege are proper issues raised on a motion to quash a subpoena ad testificandum.

With regard to privilege, the court finds that, "Privilege may not be asserted in advance of questions actually propounded." (2A Weinstein, Korn and Miller, New York Civil Practice § 2304.06 pg. 23-71). Privilege may only be asserted at the examination of the witness, and not in advance (Matter of Berkliff Undergarment Corp. v. Weissman, 277 App.Div. 964, 99 N.Y.S.2d 846; Matter of Village of Lawrence v. Hicks Development Corp., 285 App.Div. 823, 137 N.Y.S.2d 106). In Matter of Homeowners Organization, 87 Misc.2d 67, 385 N.Y.S.2d 449, the court was faced with a motion to quash a subpoena ad testificandum. The movant claimed that since he was an attorney and the attorney/client privilege applied to his testimony he should not be required to testify. The court denied the motion stating "... he may, upon his examination, raise the question of privilege if it appears that he is being asked to disclose confidential communications between himself and his client..." (pg. 68, 385 N.Y.S.2d 449) A motion to quash was ruled not to be proper on a claim of attorney/client privilege.

The reliance of the District Attorney on cases dealing with subpoena duces tecum is inappropriate. We are here dealing with a subpoena ad testificandum. ^*

The court finds that the proper method of asserting privilege is upon the witness taking the witness stand and being asked questions regarding any privileged matter. (Matter of Pennock v. Lane, 18 A.D.2d 1043, 1044, 238 N.Y.S.2d 588; Matter of Bonanno v. Ryan, 18 Misc.2d 711, 190 N.Y.S.2d 508, affd. 9 A.D.2d 605, 191 N.Y.S.2d 356)

In this regard the court notes that there is on this record testimony by an Assistant District Attorney which has not been objected to regarding the claimed matter of privilege. (Testimony of Ulrich 11/10/82 pp. 753-754) Indeed the claim of privilege was first asserted well into the testimony of the witness. To the degree that the Assistant has without objection testified to this material, the present claim may well have been waived by such testimony.

The court has previously stated on the record that it is well aware of the various cases involving privilege and the defendant's rights. In particular, the court has set forth on the record the following cases: People v. Gissendanner, 48 N.Y.2d 543, 423 N.Y.S.2d 893, 399 N.E.2d 924, People v. Poole, 48 N.Y.2d 144, 422 N.Y.S.2d 5, 397 N.E.2d 697; People v. Andre W., 44 N.Y.2d 179, 404 N.Y.S.2d 578, 375 N.E.2d 758; People v. Malinsky, 15 N.Y.2d 86, 262 N.Y.S.2d 65, 209 N.E.2d 694; People v. Darden, 34 N.Y.2d 177, 356 N.Y.S.2d 582, 313 N.E.2d 49; People v. Baker, 75 A.D.2d 966, 428 N.Y.S.2d 353; People v. Renner, 80 A.D.2d 705, 437 N.Y.S.2d 749; People v. Clayton B, 110 Misc.2d 567, 442 N.Y.S.2d 724.

The court is well aware of the recommendations of the Court of Appeals in People v. Andre W., 44 N.Y.2d 179 at pages 185-186, 404 N.Y.S.2d 578, 375 N.E.2d 758, and has applied these principles previously. This court can well apply the same principles to the claim of privilege herein asserted.

To the degree that the motion to quash is based upon a claim of privilege the motion must be denied.

With regard to relevancy the court in Santangello v. People, 38 N.Y.2d 536 stated at page 539, 381 N.Y.S.2d 472, 344 N.E.2d 404, "A motion to quash is limited in scope, challenging only the validity of the subpoena or the jurisdiction of the issuing authority..." (emphasis supplied) It would appear that a motion to quash can only raise the validity of the subpoena or the jurisdiction of the issuing authority. Neither of these grounds is being challenged by the applicant herein. Indeed, the District Attorney concedes the validity of the subpoena and the jurisdiction of the issuing authority.

The reason for the rule that on a motion to quash a subpoena the relevancy of the proported testimony cannot be challenged was best stated by Mr. Justice Cardoza in Matter of Edge Ho Holding Corp., 256 N.Y. 374, 176 N.E. 537. The court in discussing the power to issue a subpoena ad testificandum stated, "They (the power to subpoena) will be rendered to a large extent abortive if his subpoenas are to be quashed in advance of any hearing at the instance of unwilling witnesses upon forecasts of the testimony and nicely balanced arguments as to its probable importance." (pg. 381, 176 N.E. 537) (emphasis supplied) The court thus felt that prophesying the probable importance of a witness would in effect destroy the very power to subpoena (See also Matter of Sheeler v. Buffalo Wire Works, 50 Misc.2d 158, 269 N.Y.S.2d 897)

In the Matter of Hirshfield v. Craig, 239 N.Y. 98, 145 N.E. 816, Mr. Justice Lehman stated as follows at pages 117-118, 145 N.E. 816, "The power to issue a subpoena requiring a person to attend as a witness is, under section 406 of the Code of Civil Procedure, absolute and unlimited. The power to require the witness to bring with him a book or paper is limited to a 'proper case'." Justice Lehman thus distinguished between subpoena duces tecum and subpoenas ad testificandum; he thus held that the right to subpoena a witness is absolute while the right with regard to the production of books is limited to a proper case. It is from this that the courts have ruled that in the area of subpoenas duces tecum, a motion to quash on the grounds that the books and records are irrelevant lie (See Myerson v. Lentini, 33 N.Y.2d 250, 256, 351 N.Y.S.2d 687, 306 N.E.2d 804, Matter of LaBelle Creole International v. Attorney General, 10 N.Y.2d, 192, 219 N.Y.S.2d 1, 176 N.E.2d 705; Virag v. Hynes, 54 N.Y.2d 437, 441-442, 446 N.Y.S.2d 196, 430 N.E.2d 1249). However, the right to subpoena witnesses seems to be absolute without any requirement of relevancy (See Matter of Pennock v. Lane, 18 A.D.2d, 1043, 238 N.Y.S.2d 588; Liebowitz v. The State of New York, 95 Misc.2d 183, 406 N.Y.S.2d 676 and Weinstein, Korn and Miller, supra at pages 23-71).

In this regard the court notes the cases of People v. McClinton, 75 A.D.2d 900, 428 N.Y.S.2d 61 leave to appeal denied, 51 N.Y.2d 882, and People v. Forbes, 87 A.D.2d 829, 449 N.Y.S.2d 9. In both those cases the Appellate Division stated that "The right to present evidence by witnesses of one's own choosing is a fundamental ingredient of due process (Jenkins v. McKeithan, 395 U.S. 411, 429, 89 S.Ct. 1843, 1852, 23 L.Ed.2d 404), and the testimony of a defendant's witness should not be prospectively excluded unless it is offered in palpably bad faith..." (People v. Forbes, 87 A.D.2d at page 829, 449 N.Y.S.2d 9 and People v. McClinton, 75 A.D.2d at page 900, 428 N.Y.S.2d 61). In effect what the District Attorney is attempting to accomplish is to have this court prospectively exclude testimony of a defendant's witness. This appears to be a violation of the right of a defendant to present evidence by witnesses of his own choosing. In both of the above cases the Appellate Court criticized the trial court for requiring a showing of relevance regarding a defendant's witness. In this case the District Attorney seeks to quash the subpoena on the grounds of relevance. This court does not see any distinction between what the District Attorney seeks to do and that which the Appellate Division, 2d Department has criticized and found to be unacceptable.

This court finds that a claim of irrelevancy cannot be used on a motion to quash a subpoena.

This court is aware of the case of People v. Fleschner, 69 A.D.2d 827, 415 N.Y.S.2d 66 in which the Appellate Division suppressed on the grounds of remoteness a subpoena ad testificandum for the District Attorney in Queens. The court has reviewed the record on appeal in that case and the record indicates that it was assumed by all parties that the issue of remoteness could be raised on a motion to quash. Neither party argued on appeal that a motion to quash was improper, and therefore the Appellate Court in sustaining the motion in that case did not reach the issue which has been presented herein.

In A,B,C, Etc. v. Curran, 61 Misc.2d 834, 306 N.Y.S.2d 753, the court said at pp. 836-837, 306 N.Y.S.2d 753, "Similarly, subpoenas have not been quashed as against the claim in advance of the hearing itself, of no personal knowledge of the facts about which the testimony was sought (citations omitted)."

This court holds that relevancy is not an issue which may be raised by a motion to quash a subpoena ad testificandum.

However, since there is apparently a legitimate reading of People v. Fleschner, supra and dicta in Cunningham v. Nadjari, 39 N.Y.2d, 314, 383 N.Y.S.2d 590, 347 N.E.2d 915, supra that may indicate that relevancy is a proper issue for a motion to quash, this court will address that issue.

In DelVecchio v. White Plains Unit, 64 A.D.2d 975, 408 N.Y.S.2d 802, the Mayor and Council Members were subpoenaed to appear in an Administrative proceeding. The Mayor and Council Members petitioned Special Term to quash...