Democratic County Committee of Bronx County v. Nadjari

• Decision Date: 29 April 1976
• Citation: 52 A.D.2d 70,383 N.Y.S.2d 311
• Parties: 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.
• Court: New York Supreme Court — Appellate Division

Page 311

383 N.Y.S.2d 311

52 A.D.2d 70

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, Appellate Division, First Department.

April 29, 1976.

As Amended May 25, 1976.

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 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 App.Div. 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) (Douglas, J., concurring)' (United States v. Miller, supra, 425 U.S. 435, 442--444, 96 S.Ct. 1619, 1623--1624, 48 L.Ed.2d 71, 79--80, 44 L.W. 4528, 4530. Thus, it is clear that the appellants have no standing to challenge the production of such bank records now in possession of a bank because in such records there is no reasonable expectation of privacy.

It is also asserted in the Cunninghams' proceeding that electronic surveillance is the basis of the investigation and that as a consequence, the subpoena Duces tecum must be quashed because of the provisions of 18 U.S.C. § 2518. It is urged that pursuant to § 2518 before any evidence representing the contents or fruits of electronic surveillance can be submitted at a hearing, each party must be furnished with the order and application for such electronic surveillance. United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561, held that a witness summoned to appear and testify before a Grand Jury may not refuse to answer questions on the ground that they are based on evidence obtained from an unlawful search and seizure, since this issue could be raised at the trial. In similar fashion, Criminal Procdure Law § 700.70 provides, Inter alia, that '(t)he contents of any intercepted communication, or evidence derived therefrom, may not be received in evidence or otherwise disclosed Upon a trial of a defendant unless the people, not less than ten days before the commencement of the trial, furnish the defendant with a copy of the eavesdropping warrant, and accompanying application, under which interception was authorized or approved' (Emphasis supplied). In People v. Einhorn, the State Court of Appeals outlined a procedure whereby a Grand Jury witness who raises an objection to questioning on the basis that the information was obtained as the result of Illegal wiretapping, may request to be brought before the court and seek the advice or instruction of the court. The Presiding Justice in his inquiry, may 'interrogate the prosecutor under oath, either In camera, or in open court, whether or not the basis for the questioning of the witness was founded on the illegally obtained wiretap evidence' (People v. Einhorn, 35 N.Y.2d 948, 950, 365 N.Y.S.2d 171, 172, 324 N.E.2d 551, 552 (1974)). Thus, absent invocation of the Einhorn procedure, there is no right on the part of a Grand Jury witness to demand producting by the prosecutor of eavesdropping warrants and accompanying applications in response to a motion to quash a Grand Jury subpoena.

Appellants' argument that the use--assuming there was such use--of...