District Attorney of Erie County v. Corlett

• Decision Date: 10 June 1988
• Citation: 530 N.Y.S.2d 462,140 Misc.2d 162
• Parties: In the Matter of the DISTRICT ATTORNEY OF ERIE COUNTY v. Joanne S. CORLETT.
• Court: New York Supreme Court

Page 462

530 N.Y.S.2d 462

140 Misc.2d 162

In the Matter of the DISTRICT ATTORNEY OF ERIE COUNTY

v.

Joanne S. CORLETT.

Supreme Court, Erie County.

June 10, 1988.

Kevin M. Dillon, Dist. Atty. (Martha Beach Soltis, Buffalo, of counsel) for the People.

John D. Bridge, Buffalo, for defendant.

JULIAN F. KUBINIEC, Judge.

Pursuant to an Order to Show Cause, the People seek an order directing JOANNE S. CORLETT to appear before the prosecution's office and provide specimens of her handwriting.

In opposition, Defendant submits an affidavit of her attorney wherein he notes that no criminal proceeding has yet been instituted against his client and argues that this Court is without statutory authority or jurisdiction to force his client to submit handwriting exemplars thereby physically creating evidence which may be used against her.

In making its application, the People have submitted a copy of Ms. Corlett's November 25, 1987 statement to Amherst Police Detective Wik wherein she acknowledges, in sum, that she had been employed as a bookkeeper for M.J. Peterson Sales Corp., that she had a need for cash, that for almost a year she had been drafting checks to her name, forging Asst. Comptroller Arnold Wylke's name on each check and cashing these checks at Key Bank. The People also submit a copy of Mr. Wylke's December 2, 1987 statement which notes that an audit of an account for which Ms. Corlett was responsible disclosed many unauthorized checks made payable to her and that his signatures thereon appear to have been forged.

The People acknowledge that no criminal nor Grand Jury proceedings are currently pending against Ms. Corlett and that, therefore, CPL 240.40(2)(b)(vi) is inapplicable. However, as authority for the requested order the People rely upon the decisional law found in Matter of Special Prosecutor v. G.W., 95 Misc.2d 298, 407 N.Y.S.2d 112 and Matter of D.A. v. Angelo G., 48 A.D.2d 576, 371 N.Y.S.2d 127, rvd. on other grounds and app. dism., 38 N.Y.2d 923, 382 N.Y.S.2d 980, 346 N.E.2d 819 [1976].

Upon review we note that, although the Court of Appeals in Angelo G. found that the Appellate Court was without authority to review the order of Supreme Court and directed that the appeals taken be dismissed, in People v. Middleton, 54 N.Y.2d 42, 47, 444 N.Y.S.2d 581, 429 N.E.2d 100 the Court of Appeals nevertheless cited Angelo G. as authority for the proposition that "(T)he Supreme Court has the authority to issue an order in furtherance of a Grand Jury investigation even though no arrest or indictment has yet occurred." However, both this pronouncement and the supposed power of Section 2-b of the Judiciary Law relied upon by the Court in G.W. were set aside by the Court of Appeals in Matter of Abe A., 56 N.Y.2d 288, 293-294, 452 N.Y.S.2d 6, 437 N.E.2d 265 [1982]:

"... while in many States statutes or rules authorize their courts to compel a person whose status is no more than that of a suspect to supply nontestimonial evidence (citations omitted) our Criminal Procedure Law does not. And, absent express authorization, we have not favored importing such power by implication (citations omitted). Nor, therefore, are general enactments, such as section 2-b of the Judiciary Law to be construed to fill any supposed void (citations omitted). Rather, we are as one with the Michigan Court of Appeals, which, when confronted with a like issue, graphically put it that 'there is no such "animal" in this jurisdiction as a court order authorizing the detention of a suspect for the purpose of a search' " (citations omitted).

Adding in a footnote:

"Our decision in People v Middleton (54 NY2d 42 supra) is not to be read as authority for such orders. There the criminal proceeding already had been commenced, so the order was issued against one who already was a defendant. In this circumstance, CPL 240.40 (subd 2, par) would appear to authorize the issuance of such an order."

Nevertheless, the Court of Appeals did not leave the People without a remedy to obtain necessary, relevant nontestimonial evidence:

"As Marshall also observes, however, equivalent judicial authority may be exercised under a court's power to issue a search warrant ( 69 Mich App at p 300 ). Nomenclature notwithstanding, if the application and the relief comport with all the requisites of a search warrant, it may be taken for what it is (id., at pp 300-302 United States v Allen, 337 F Supp 1041 Mills v State, 28 Md App 300, 307 cf. Schmerber v California, 384 US 757, 770 ).

"So perceived, CPL 690.05 (subd 2) fits the search warrant bill." (at pg. 294, 452 N.Y.S.2d 6, 437 N.E.2d...