Alphonso C. v. Morgenthau

Decision Date26 February 1976
Citation38 N.Y.2d 923,382 N.Y.S.2d 980
Parties, 346 N.E.2d 819 In the Matter of ALPHONSO C., Respondent, v. Robert M. MORGENTHAU, as District Attorney of New York County, Appellant. In the Matter of the DISTRICT ATTORNEY OF KINGS COUNTY, Respondent, v. ANGELO G. et al., Appellants.
CourtNew York Court of Appeals Court of Appeals

Robert M. Morgenthau, Dist. Atty., New York County, pro se (Robert M. Pitler and Peter L. Zimroth, New York City, of counsel).

Herman Kaufman and Lewis R. Friedman, New York City, for respondent Alphonso C.

Arnold E. Wallach, Michael Washor and Aaron Schacher, Brooklyn, for appellants Angelo G. et al.

Eugene Gold, Dist. Atty., Kings County, pro se (Elliott Schulder, Brooklyn, of counsel).

PER CURIAM.

In Alphonso C., on application of the District Attorney of New York County, Supreme Court directed the respondent to appear in a lineup to be held at the New York County District Attorney's office. In Angelo G., on similar application by the District Attorney of Kings County, Supreme Court directed each of the appellants to provide a handwriting exemplar at the office of the Kings County District Attorney. No criminal action had been commenced against any of the individuals to whom the Supreme Court orders were addressed nor in either case was it claimed that the discovery was incident to any other pending criminal action or to proceedings before any Grand Jury. The relief was sought as an aid in investigation of an alleged attempted homicide in one case and of alleged forgery, grand larceny and falsifying business records in the other. On appeals the Appellate Division, First Department, reversed the New York County order and the Appellate Division, Second Department, affirmed the Kings County orders.

Each of the orders obtained at nisi prius was granted on a novel theory involving a criminal investigation and the proceeding in which the order was issued was therefore a crimin proceeding (CPL 1.20, subd. 18, par. (b); Matter of Santangello v. People, 38 N.Y.2d 536, 381 N.Y.S.2d 472, 344 N.E.2d 404). There being no statutory authorization for direct appellate review, the orders of Supreme Court are not appealable and the appeals taken therefrom should have been dismissed (CPL 1.10; Matter of Santangello v. People, supra).

Accordingly, the appeals to this court should be dismissed and the cases remitted to the Appellate Divisions with directions to dismiss the appeals taken to those courts.

BREITEL, C.J., and JASEN, GABRIELLI, JO...

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    • April 4, 2017
    ...Assn. of N.Y. State Police, 9 N.Y.2d at 803–804, 215 N.Y.S.2d 513, 175 N.E.2d 170 ; see also Matter of Alphonso C., 38 N.Y.2d 923, 924–925, 382 N.Y.S.2d 980, 346 N.E.2d 819 [1976] ). Indeed, to hold otherwise would be to impermissibly and judicially create a right to appeal in a criminal ma......
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    ...Assn. of N.Y. State Police, 9 N.Y.2d at 803–804, 215 N.Y.S.2d 513, 175 N.E.2d 170 ; see also Matter of Alphonso C., 38 N.Y.2d 923, 924–925, 382 N.Y.S.2d 980, 346 N.E.2d 819 [1976] ). Indeed, to hold otherwise would be to impermissibly and judicially create a right to appeal in a criminal ma......
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