Application to Quash A Grand Jury Subpoena Duces Tecum, Dated Dec. 28, 1992, Matter of

• Decision Date: 28 December 1992
• Citation: Application to Quash A Grand Jury Subpoena Duces Tecum, Dated Dec. 28, 1992, Matter of, 597 N.Y.S.2d 557, 157 Misc.2d 432 (N.Y. Sup. Ct. 1992)
• Parties: In The Matter of an APPLICATION TO QUASH A GRAND JURY SUBPOENA DUCES TECUM, DATED
• Court: New York Supreme Court

Page 557

597 N.Y.S.2d 557

157 Misc.2d 432

In The Matter of an APPLICATION TO QUASH A GRAND JURYSUBPOENA DUCES TECUM, DATED DECEMBER 28, 1992.

Supreme Court, New York County Criminal Term, Part 56.

March 5, 1993.

James LaRossa, LaRossa, Mitchell & Ross, New York City, for William Capparelli.

Robert Morgenthau, Dist. Atty. (Perry Carbone, New York City, of counsel), for People.

HAROLD J. ROTHWAX, Justice.

The movant herein is a law firm retained by a defendant[William Capparelli] in a pending criminal case.The firm received a grand jury subpoena calling for the production of "[a]ny and all audio tape recordings concerning the Tudor Hotel, containing the voices of William Capparelli, Sean McCormack, Eardley Liesching, Peter McCormack or their agents or representatives."¹It appears that the defendant may have tape recorded conversations with these men, who subsequently became grand jury witnesses, concerning the subject matter of the grand jury's investigation into alleged extortion by the defendant in connection with the renovation of a building known as the Tudor Hotel.This apparently was done at the direction of his former attorney prior to indictment, since the men were also plaintiffs against him in a civil action ², for the purpose of generating impeaching statements in the context of that litigation and of any potential subsequent criminal action.The former attorney disclosed the existence of tape recordings at a bail proceeding following the defendant's arraignment on the indictment.In that proceeding, the attorney represented that a tape recording pertaining to the subject matter of the indictment, the specific contents of which he did not disclose, incriminated the witnesses.

The defendant subsequently retained, and the former attorney surrendered tape recordings to ³, the firm that is the subject of the subpoena.The firm moved to quash the subpoena on several grounds, including that the subpoena was an abuse of the grand jury's process, called for privileged matter and violated the defendant's privilege against self-incrimination.This court previously denied the motion to quash, finding that the People had asserted a proper purpose for the grand jury's subpoena and rejecting the defendant's claims of privilege.For reasons discussed herein, the court allowed the firm to reargue this motion to quash on the grounds of the client's privilege against self-incrimination.

The People contend that the firm has failed to establish that the tape recordings were disclosed to the firm as confidential communications within the scope of attorney-client privilege, and that in any event, neither the contents of the tapes nor the act of producing them is entitled to Fifth Amendment protection.

ATTORNEY-CLIENT PRIVILEGE

The issue of the applicability of the attorney-client privilege does not require extensive discussion.The purpose of the attorney-client privilege is to promote full disclosure by the client to the attorney in order to obtain legal assistance.The attorney-client privilege accordingly operates to ensure that the client will not have less protection from compelled disclosure of privileged matters simply by revealing such matters in confidence to an attorney for the purpose of receiving legal advice.Therefore, if preexisting documents would be privileged from compelled disclosure while in the client's possession, they continue to be privileged from disclosure after transfer to the attorney by the client in order to obtain legal advice.[Fisher v. United States, 425 U.S. 391, 403-405, 96 S.Ct. 1569, 1577-1578, 48 L.Ed.2d 39[1976].]The relevant inquiry is twofold: what was the purpose of the revelation of the preexisting tapes by the client to the attorney; and whether the tapes would have been privileged from compelled production had they remained in the client's possession.[Matter of Grand Jury [Vanderbilt], 57 N.Y.2d 66, 76, 453 N.Y.S.2d 662, 439 N.E.2d 378[1982].]

This court previously found, in discussing the attorney work product privilege, that the tapes at issue here "were prepared by the defendant at the direction of his former attorney", for use by the attorney in devising trial strategy in an impending civil suit, and potentially in the context of a criminal case.Therefore, as this court previously ruled, "the tapes were conveyed to counsel[by the defendant] for the purpose of receiving legal advice".[In the Matter of an Application to Quash, [Sup.Ct.N.Y.Co. January 26, 1993][NOR]p. 5.]The tapes need not have been prepared by an attorney in order to fall within the privilege.The issue is whether they were conveyed to the attorney for the purpose of obtaining legal counsel.[SeeFisher v. United States, supra[where the records sought from the respondent's attorney were accountant's work papers obtained by the respondent and disclosed to the attorney for the purpose of obtaining legal assistance in an impending tax investigation].]Moreover, neither the fact that other participants to the recorded conversation may be aware of the contents of the tapes, nor that the defendant may have contemplated future disclosure of the contents [seeMatter of Grand Jury [Vanderbilt], supra57 N.Y.2d at p. 77, 453 N.Y.S.2d 662, 439 N.E.2d 378], destroys the attorney-client privilege.

THE FIFTH AMENDMENT PRIVILEGE

A subpoena duces tecum is a form of compulsion.Therefore, if the person compelled is able to show that the subpoena calls for testimony which would tend to incriminate the respondent, the subpoena should be quashed, absent a grant of immunity co-extensive with the privilege against self-incrimination.

In their original papers, the defendant's attorneys stated that the tapes at issue were made by the defendant, would reveal his subjective knowledge and thought processes, and therefore, were testimonial.This court denied the defendant's motion to quash the subpoena, considering the defendant's failure specifically to allege the manner in which compliance with the subpoena would incriminate him, particularly in light of the defendant's former attorney's assertion in the bail proceeding that a tape recording in his possession would exculpate the defendant.[Cf., e.g., United States v. Doe, 465 U.S. 605, 614 n. 13, 104 S.Ct. 1237, 1243 n. 13, 79 L.Ed.2d 552[1984][where the respondent did not concede that records sought by the subpoena existed or were in his possession, but argued that production would tacitly admit their existence and his possession, and would serve to authenticate the records, such assertions sufficed to raise the issue of self-incrimination].]Based upon this representation, the People assert that the tapes exist and that their contents may assist the grand jury investigating crimes committed by persons other than the defendant.

While the defendant's burden might not be great under the circumstances ⁴, a proponent of a Fifth Amendment privilege against production of relevant evidence must make some showing of potential incrimination.[See, e.g., Matter of Grand Jury Subpoena [Bekins Storage], 62 N.Y.2d 324, 328, 476 N.Y.S.2d 806, 465 N.E.2d 345[1984];United States v. Fox, 721 F.2d 32, 40[2d Cir.1983];United States v. Schlansky, 709 F.2d 1079, 1084[6th Cir.1983];Matter of Grand Jury Empanelled [Feb. 14, 1978], 603 F.2d 469, 477[3d Cir.1979].]Considering the importance of the constitutional claim, the court allowed the defendant to make a further submission in support of his assertion of the privilege.

The privilege against self-incrimination does not attach automatically because the items sought are tape recordings, even though the recordings contain incriminating statements of the person compelled to produce them.[See, e.g., In re Proceedings Before the August 6, 1984Grand Jury, 767 F.2d 39[2d Cir.1985].]Although a tape recording is "clearly testimonial in that it is an aural record of the accused's communication"[Matter of Grand Jury [Vanderbilt], supra57 N.Y.2d at p. 79, 453 N.Y.S.2d 662, 439 N.E.2d 378]⁵, this does not end the inquiry.The defendant cannot avoid compliance with a subpoena for an item in his possession "merely by asserting that the item of evidence which he is required to produce contains incriminating [statements], whether his own or that of someone else."[Fisher v. United States, supra425 U.S. at p. 410, 96 S.Ct. at 1581.]Nor is the fact alone that the defendant may be heard to incriminate himself with his own voice, grounds for invoking the privilege where as here there is no claim that the government compelled the defendant to speak.[Fisher v. United States, supra at p. 410 n. 11, 96 S.Ct. at 1581 n. 11; In re Proceedings Before the August 6, 1984Grand Jury, supra767 F.2d at p. 41.]This is true even though the defendant was the author of the tape sought.[In re Proceedings Before the August 6, 1984Grand Jury, supra;United States v. Doe, supra465 U.S. at pp. 610-612, 104 S.Ct. at 1241-1242.]

While there may be certain personal documents, such as diaries, which because of their private nature remain protected from compelled disclosure to the government [Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 532, 29 L.Ed. 746[1886];In re Grand Jury Subpoena Duces Tecum [May 9, 1990], 741 F.Supp. 1059[S.D.N.Y.1990];and seeIn re Steinberg, 837 F.2d 527, 529-530[1st Cir.1988];Butcher v. Bailey, 753 F.2d 465, 469[6th Cir.1985];but see, e.g., In re Grand Jury Subpoenas Duces Tecum, 722 F.2d 981, 983-985[2d Cir.1983]], this subpoena is limited to tape recorded statements "concerning the Tudor Hotel".Whether the recordings are characterized as business records or otherwise, the subpoena does not call for the production of recordings that touch upon the intimate aspects of the defendant's life.[In re Steinberg, supra, 837 F.2d at p. 530;Butcher v. Bailey, supra, 753 F.2d at p. 469; In re Proceedings Before the August 6, 1984Grand Jury, supra;and seeUnited States v. Doe, supra465 U.S....