Alphonso C. v. Morgenthau

Decision Date04 December 1975
Citation50 A.D.2d 97,376 N.Y.S.2d 126
PartiesIn the Matter of Alphonso C. ALPHONSO C., Respondent-Appellant, v. Robert W. MORGENTHAU, District Attorney of New York County, Petitioner-Respondent.
CourtNew York Supreme Court — Appellate Division

Herman Kaufman, New York City, of counsel (Lewis R. Friedman with him on the brief, Litman, Friedman & Kaufman, New York City, attorneys), for respondent-appellant.

Robert M. Pitler, New York City, of counsel (Peter L. Zimroth and Henry J. Steinglass, Asst. Dist. Atty., New York County, New York City, with him on the brief, Robert M. Morgenthau, Dist. Atty.), for petitioner-respondent.

Before MARKEWICH, J.P., and LUPIANO, TILZER, CAPOZZOLI and LANE, JJ.

LANE, Justice:

On May 12, 1975, two Chinese males entered a restaurant and shot three men. The two were observed fleeing in a gold-colored Chevrolet with a specified license number. The appellant, Alphonso C., it was discovered, was the owner of the automobile, which automobile he never reported as being stolen.

The District Attorney made application for an order directing C. to appear at a lineup and be viewed by witnesses. The application was made although C. was neither arrested nor charged with the commission of any crime.

Special Term granted the motion '(a)lthough the People may not have established reasonable cause for an arrest . . ..'

The respondent-appellant filed a notice of appeal and all proceedings have been stayed by this Court pending determination of the appeal.

There are two facets of this matter, both procedural in nature, which must be explored in order to determine this appeal.

We note at the threshold that the proceeding presently on appeal is in the nature of a civil rather than a criminal suit. The statutory definition of commencement of a criminal 'action' requires the filing of an accusatory instrument (CPL, § 1.20(16), (17)). The instant proceeding cannot come within the ambit of a criminal 'proceeding' since that, too, is interwined by definition with a criminal 'action' requiring therefore at least the pendency of the filing of an accusatory instrument (CPL, § 1.20(18)).

The proceeding must therefore be characterized as civil in nature, consisting of an independent application to a court for relief (CPLR 105(d)). This independent application or special proceeding (CPLR, Art. 4) culminated in a final order or judgment and is therefore appealable (CPLR 5701(a)(1)). We accordingly must deny the separate motion of the District Attorney to dismiss on the grounds of nonappealability (Matter of District Attorney v. Angelo G., 48 A.D.2d 576, 371 N.Y.S.2d 127).

The second procedural facet involves an inquiry into the authority of the Supreme Court to direct the appellant to participate in a lineup.

Court-ordered detention in a criminal proceeding may not be effectuated absent an arrest warrant (CPL, § 120.10(1)). An arrest warrant in turn cannot issue absent the existence of an accusatory instrument filed with the court and requiring a person to be produced in connection with that instrument (CPL, § 120.20).

The warrant in turn may not issue unless there is 'reasonable cause to believe' that the person to be arrested committed the offense charged (CPL, § 120.20(2)).

Alphonso C. was not named in an accusatory instrument and the District Attorney has conceded that there is no probable cause to believe that Alphonso C. committed a crime. However, it must be noted that the Trial Court characterized the facts as available as providing 'a substantial basis' to believe that Alphonso C. committed the crime while the District Attorney in his appellate brief asserts a 'strong factual basis' for the order being granted.

We parenthetically note that no grounds for civil arrest are articulated in the record presently before the Court (see CPLR, §§ 6101, 6111).

However, it is recognized that, even absent statutory authority, the Supreme Court may grant relief if it has general jurisdiction of the subject matter. Judiciary Law, § 2--b provides, in pertinent part, that a court of record has the power 'to devise and make new process and forms of proceedings, necessary to carry into effect the powers and jurisdiction possessed by it.'

The jurisdiction of the Supreme Court of the State of New York includes:

'(A)ll the jurisdiction which was possessed and exercised by the supreme court of the colony of New York at any time, and by the court of chancery in England on the fourth day of July, seventeen hundred seventy-six, with the exceptions, additions and limitations created and imposed by the constitution and laws of the state. Subject to those exceptions and limitations the supreme Court of the state has all the powers and authority of each of those courts and may exercise them in like manner' (Judiciary Law, § 140--b).

(Also see generally New York State Constitution, Arts. 6 and 7.)

We must therefore examine whether the courts of England or our own State courts had the authority to issue an order such as in the case at bar.

In the famous treatise of Sir Matthew Hale, there is a clear and unequivocal statement that a warrant of arrest may be issued by various justices. The distinctions among the types of justices and the circumstances under which they may exercise their authority are not relevant to this discussion. Noteworth however, is the fact that probable cause must be evidenced.

A specific example is given as follows:

'Therefore I think,...

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