Abrams, Matter of

• Decision Date: 15 May 1984
• Citation: 62 N.Y.2d 183,476 N.Y.S.2d 494,465 N.E.2d 1
• Parties: , 465 N.E.2d 1 In the Matter of Robert ABRAMS, as Attorney-General of the State of New York, Respondent. John Anonymous et al., Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 494

476 N.Y.S.2d 494

62 N.Y.2d 183, 465 N.E.2d 1

In the Matter of Robert ABRAMS, as Attorney-General of the

State of New York, Respondent.

John Anonymous et al., Appellants.

Court of Appeals of New York.

May 15, 1984.

Roy R. Kulcsar, New York City, for appellants

Robert Abrams, Atty. Gen. (Howard W. Newman and Peter H. Schiff, Asst. Attys. Gen., of counsel), for respondent.

OPINION OF THE COURT

JASEN, Judge.

The issues raised on this appeal concern the power of the Attorney-General to investigate the allegedly illegal sale and distribution of tickets to events held at a large sports arena (arena). ¹ More specifically, we are asked to decide whether the Attorney-General is statutorily authorized to conduct such an investigation and to issue subpoenas pursuant thereto. We are also called upon to decide whether the respondent-attorney was properly disqualified from representing any of the individual respondents-employees in connection with the subject investigation.

Pursuant to article 26-A of the General Business Law, the Attorney-General commenced an investigation into allegedly unlawful practices of arena box office personnel. The thrust of the investigation appears to be focused upon the manner in which tickets to certain rock concerts and a hit stage production were distributed.

In connection with the concerts, the arena announced that tickets would be available to fill mail order requests postmarked on or after October 1, 1980. However, due to the enormous volume of ticket requests, the arena's box office allegedly honored only those requests postmarked October 1, 1980. Even then, only a fraction of those requests could be filled. Records of the names and addresses of persons who received tickets were kept by the box office.

The Attorney-General alleges that many of the names and addresses of ticket recipients listed in the box office records are of nonexistent people or people who never requested or received tickets to the concerts. It is further alleged that several of the money orders cashed by the arena as proceeds of the ticket sale were purchased weeks after the October 1 deadline. As a result, the Attorney-General proceeded to gather additional evidence which he claims reveals that certain of the arena's box office employees personally received "ice" (money in excess of regular ticket prices) from ticket brokers in return for accepting their falsely completed money orders and furnishing them with quantities of tickets which these brokers later "scalped" (sold for a price in excess of the allowable surcharge above the face value of the ticket), all in violation of sections 399-n, 399-l and 169-k of the General Business Law. The money orders allegedly provided by the brokers to the ticket vendors contained names and addresses of fictitious people or people who neither requested nor received tickets.

Furthermore, it is alleged by the Attorney-General that additional evidence indicates that members of the arena's box office staff provided large quantities of Ticketron tickets to a successful stage production to ticket brokers in return for the payment of "ice".

In furtherance of his efforts to identify the individual members of the arena staff responsible for these illegal activities, the Attorney-General subpoenaed 14 box office employees (respondents herein) to appear and testify at an inquiry concerning ticket distribution practices preceding the afore-mentioned events. All 14 witnesses are now represented by respondent-attorney and were so at the time they appeared before the Attorney-General.

When called, seven of the witnesses invoked their Fifth Amendment privilege. Five of those seven were excused subject to recall and the other two were subsequently granted immunity pursuant to section 399-i of the General Business Law and testified. Their testimony, however, failed to inculpate any arena employees. Because the Attorney-General believes that the substance of their testimony is contradicted by other evidence, he is expanding his investigation for possible development of perjury cases against both witnesses. The remaining seven witnesses appeared at the Attorney-General's office, but were excused subject to recall pending the outcome of the Attorney-General's application to disqualify their attorney from continuing in his multiple representation. The latter seven witnesses were not questioned, did not invoke their Fifth Amendment privilege and were not offered immunity.

The Attorney-General's application to disqualify was brought in Criminal Term of the New York County Supreme Court by order to show cause dated November 17, 1981. Respondents opposed the application and requested that the Attorney-General's subpoenas be quashed pending a showing by the Attorney-General that he was authorized to issue them. Supreme Court granted the Attorney-General's application to disqualify and denied respondents' motion to quash. On appeal by respondents to the Appellate Division, the Attorney-General argued for dismissal of the appeal as brought without statutory authority. The Appellate Division refused to dismiss the appeal but, nevertheless, affirmed the order of Supreme Court, 92 A.D.2d 484, 459 N.Y.S.2d 342. This court granted respondents' motion for leave to appeal (59 N.Y.2d 603, 463 N.Y.S.2d 1028, 450 N.E.2d 252).

At the outset, we reject the Attorney-General's claim that the order of Supreme Court is not appealable to either the Appellate Division or this court. His argument is premised on the rule that direct appellate review of orders issued in a criminal proceeding is not available absent statutory authority therefor. (See Matter of Santangello v. People, 38 N.Y.2d 536, 538, 381 N.Y.S.2d 472, 344 N.E.2d 404; Matter of Alphonso C. 38 N.Y.2d 923, 924-925, 382 N.Y.S.2d 980, 346 N.E.2d 819.) The flaw in the Attorney-General's position is that the instant proceedings cannot be properly characterized as criminal in nature.

CPL 1.20 (subd. 18) defines a "criminal proceeding" as "any proceeding which * * * (b) occurs in a criminal court and is related to a * * * criminal action * * * or * * * involves a criminal investigation". While the instant proceedings may appear at first glance to fit the statutory description, closer examination shows that they do not. Preliminarily, it must be noted that simply because the subject motions were assigned to be heard in a Criminal Term of Supreme Court, a court vested with both civil and criminal jurisdiction, does not require that the proceeding be characterized as criminal. (See Matter of Cunningham v. Nadjari, 39 N.Y.2d 314, 317, 383 N.Y.S.2d 590, 347 N.E.2d 915.) Indeed, there may be a variety of reasons why a particular matter is assigned to a Criminal Term of Supreme Court, not the least of which may be that the matter requires prompt attention, but because of a backlog of other civil matters no other parts are available. Certainly, the jurisdiction of this court or the Appellate Divisions cannot be defined by the fortuitous assignment of a matter in dispute to one part of Supreme Court rather than another, as the dissent suggests. That such is not the law in this State is aptly demonstrated by this court's decision in Matter of Cunningham v. Nadjari, supra, where we held that a proceeding involving a motion to quash subpoenas in a criminal investigation was civil by nature even though the matter was heard in an Extraordinary Term of Supreme Court which was created by the Governor solely to facilitate ongoing criminal investigations. What was dispositive in that case was the fact that the order to quash was issued by a term of Supreme Court which possesses both criminal and civil jurisdiction. Thus, the statement in the dissent that it is beside the point that Supreme Court also possesses civil jurisdiction is incorrect.

In cases with procedural postures similar to the one before us, rather than simply looking to the part of Supreme Court where the motion was originally heard, we have looked to the true nature of the proceeding and to the relief sought in order to determine whether the proceeding was criminal or civil. In Matter of Santangello v. People, supra, the petitioner sought to compel the Special State Prosecutor to inquire of Federal authorities as to whether they had conducted electronic surveillance of him and also requested the prosecutor to state whether any of the questions asked of him before the Grand Jury were the product of such surveillance. Recognizing that the relief sought was part and parcel of the ongoing criminal investigation and that the proceeding was clearly criminal in nature, this court dismissed the appeal to our court and remitted to the Appellate Division to dismiss the appeal taken to that court as lacking statutory authority therefor. Similarly, proceedings whereby the petitioners-District Attorneys requested the court to order the respondents to appear in a lineup and to provide handwriting exemplars were characterized as criminal and the appeals from the orders of nisi prius were dismissed in light of the fact that the proceedings were criminal in nature and the relief requested, if granted, would have become an integral part of the criminal investigation. Matter of Alphonso C. 38 N.Y.2d 923, 382 N.Y.S.2d 980, 346 N.E.2d 819, supra.

By sharp contrast, this court has held that the denial of an application to quash subpoenas issued in furtherance of a criminal investigation into drug abuse on the SUNY at Stony Brook campus was a final and appealable order in a special proceeding on the civil side of a court vested with civil jurisdiction. (Matter of Boikess v. Aspland, 24 N.Y.2d 136, 299 N.Y.S.2d 163, 247 N.E.2d 135; see, also, Matter of Cunningham v. Nadjari, supra, 39 N.Y.2d at p. 317, 383 N.Y.S.2d 590, 347 N.E.2d 915.) Implicit in Boikess and Cunningham is this court's view that a motion to quash subpoenas, even those issued pursuant to a criminal investigation, is civil by nature and not...