52 A.D.2d 70, Democratic County Committee of Bronx County v. Nadjari

Citation:52 A.D.2d 70, 383 N.Y.S.2d 311
Party Name:Democratic County Committee of Bronx County v. Nadjari
Case Date:April 29, 1976
Court:New York Supreme Court Appelate Division, First Department

Page 70

52 A.D.2d 70

383 N.Y.S.2d 311

Application of the DEMOCRATIC COUNTY COMMITTEE OF BRONX

COUNTY, Petitioner-Appellant,

v.

Maurice H. NADJARI, 'Deputy Attorney General, State of New

York', Respondent-Respondent, for an Order

Pursuant to Articles 5, 23 and 78 of the

Civil Practice Law and Rules.

Stanley SIMON and Alexander Stein described as Simon and

Stein, Petitioners-Appellants,

v.

Maurice H. NADJARI, Deputy Attorney General of the State of

New York, Respondent-Respondent.

Application of Patrick J. CUNNINGHAM and Mary T. Cunningham,

Petitioners-Appellants, for a Judgment under

Articles 5, 23, 45 and 78 of the Civil

Practice Law and Rules, in the

Nature of Prohibition

v.

Maurice H. NADJARI, 'Deputy Attorney General', State of New

York and Manufacturers Hanover Trust Co.,

Respondents-Respondents.

Supreme Court of New York, First Department

April 29, 1976.

As Amended May 25, 1976.

[383 N.Y.S.2d 312] Irving Anolik, New York City, for petitioners-appellants.

Bennett L. Gershman and Thomas G. Roth, Brooklyn, of counsel (Louis Perez and Christopher P. Sullivan, New York City, with them on the brief; Maurice H. Nadjari, Deputy Atty. Gen. pro se), for respondent.

Before MARKEWICH, J.P., and KUPFERMAN, LUPIANO, BIRNS and CAPOZZOLI, JJ.

MEMORANDUM DECISION.

The above three appeals to which respondent Maurice H. Nadjari, 'Deputy Attorney General, State of New York,' is a party and which involve some common legal [383 N.Y.S.2d 313] issues, are consolidated for purposes of disposition. At the outset we observe that where there is 'no claim that the Grand Jury lacks De facto organization and existence, the petitioners lack standing to challenge its jurisdiction. Blair v. United States, 250 U.S. 273, 39 S.Ct. 468, 63 L.Ed. 979; People v. Doe (Byk), 247 A.D. 324, 286 N.Y.S. 343 (2nd Dept., 1936), aff'd without op., 272 N.Y. 473, 13 N.E.2d 875' (L&S Hosp. & Inst. Supplies v. Hynes, 51 A.D.2d 515, 378 N.Y.S.2d 78.) Petitioners' claim that the Grand Jury lacks a De facto existence and organization has been examined and found to be without merit.

With respect to the appeal by Patrick J. Cunningham and Mary T. Cunningham from the denial of their motion to quash a subpoena Duces tecum served on the Manufacturers Hanover Trust Co. directing the production of various records of that institution relating to the Cunninghams' accounts for the period of January 1, 1974 to date, the recent holding of the Supreme Court in United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976) is dispositive. The Supreme Court concluded that an individual has no reasonable expectation of privacy with respect to records such as are subject to the subpoena at issue herein and thus has no cognizable Fourth Amendment interest. The Court declared: 'Even if we direct our attention to the original checks and deposit slips, rather than to the microfilm copies actually viewed and obtained by means of the subpoena, we perceive no legitimate 'expectation of privacy' in their contents. The checks are not confidential communications but negotiable instruments to be used in commercial transactions. All of the documents obtained, including financial statements and deposit slips, contain only information voluntarily conveyed to the banks and exposed to their employe in the ordinary course of business. The lack of any legitimate expectation of privacy concerning the information kept in bank records was assumed by Congress in enacting the Bank Secrecy Act, the expressed purpose of which is to require records to be maintained because they 'have a high degree of usefulness in criminal, tax, and regulatory investigations and proceedings.' 12 U.S.C. § 1829b(a)(1). Cf. Couch v. United States (409 U.S. 322, 335, 93 S.Ct. 611, 34 L.Ed.2d 548 (1973)). The depositor takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the government. United States v. White, 401 U.S. 745, 751--752, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971). This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed. Id., at 752, 91 S.Ct. 1122, 28 L.Ed.2d 453; Hoffa v. United States, 385 U.S. (293) at 302, 87 S.Ct. 408, 17 L.Ed.2d 374; Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963). . . . Since no Fourth Amendment interests of the depositor are implicated here, this case is governed by the general rule that the issuance of a subpoena to a third party to obtain the records of that party does not violate the rights of a defendant, even if a criminal prosecution is contemplated at the time the subpoena is issued. California Bankers Assn. v. Shultz, 416 U.S. (21) at 53, 94 S.Ct. 1494, 39 L.Ed.2d 812; Donaldson v. United States, 400 U.S. 517, 537, 91 S.Ct. 534, 27 L.Ed.2d 580 (1971)...

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