District Attorney of Kings County v. Angelo G.

• Decision Date: 11 July 1975
• Citation: 371 N.Y.S.2d 127,48 A.D.2d 576
• Parties: In the Matter of the DISTRICT ATTORNEY OF KINGS COUNTY, Respondent, v. ANGELO G. (anonymous) et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 127

371 N.Y.S.2d 127

48 A.D.2d 576

In the Matter of the DISTRICT ATTORNEY OF KINGS COUNTY, Respondent,

v.

ANGELO G. (anonymous) et al., Appellants.

Supreme Court, Appellate Division, Second Department.

July 11, 1975.

Michael S. Washor, Brooklyn (Arnold E. Wallach, New York City, on the brief), for appellants.

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

Before HOPKINS, Acting P.J., and MARTUSCELLO, LATHAM, BRENNAN and MUNDER, JJ.

HOPKINS, Acting Presiding Justice.

The District Attorney of Kings County applied to the Supreme Court, Kings County, for orders directing the appellants to furnish exemplars of their handwriting. Service of the motion and supporting papers was made on the appellants and, upon the return day, they appeared in opposition. The application of the District Attorney was granted, and orders were entered which require the appellants to appear at the office of the District Attorney to provide handwriting exemplars; the orders further provide that counsel to the appellants be invited to attend at the time of such disclosure. The appellants appeal, urging that the court was powerless to grant such an order, and that, in any event, the grounds alleged by the District Attorney were insufficient to justify the granting of such relief. The District Attorney, in return, urges that the orders are not appealable. We hold that the orders are appealable and should be affirmed.

The District Attorney alleged in his applications to the court that the appellant Jacqueline G. (Anonymous), acting in concert with the other appellants, had reported seven motor vehicle accidents involving property damage to the Consolidated Mutual Insurance Company and that such accidents had in fact not occurred; and that, in addition, the appellants Angelo G. (Anonymous) and Anthony R. (Anonymous) were employed by the insurance company. The moving papers further alleged, based upon information supplied by the Insurance Crime Prevention Institute, that records of six of the seven 'accidents' were missing from the insurance company's files, and that, through the procurement of the appellants, the insurance company had issued 12 drafts to various individuals, amounting to approximately $25,000, on which drafts the names of the appellants had appeared as endorsees. The District Attorney further alleged that one draft bearing the signature 'James Gordon', and another draft bearing the signature of 'Jacqueline G.' (Anonymous) were signed by the same person, relying upon a handwriting analysis performed for the Insurance Crime Prevention Institute; moreover, the analysis indicated that two other signatures attributed to Jacqueline G. (Anonymous) as endorser were not signed by the same individual.

Upon the strength of these allegations, and after an appearance before the court by the District Attorney and counsel for the appellants, the court granted the application. Upon this appeal by the appellants, they contend that the orders requiring them to appear in the District Attorney's office and to supply handwriting exemplars violated their constitutional rights under the Fourth and Fourteenth Amendments to the Federal Constitution, and section 12 of article I of the State Constitution. The District Attorney contends preliminarily that no appeal lies from such orders. We treat first the question whether this court has jurisdiction to entertain the appeal.

The District Attorney claims correctly that the right to appeal in criminal proceedings is narrowly limited by statute, and that, in general, intermediate appeals are precluded, except upon the review of the final judgment (cf. CPL 450.10, 450.15). However, it is undisputed that there is no criminal action or criminal proceeding extant. The appellants have neither been arrested nor indicted; an accusatory instrument has not been filed against them. By definition, then, no criminal action or proceeding has been commenced (CPL 1.20, subds. 16, 17, 18; General Construction Law, § 18--a). Nor does the title of this proceeding include the name of the People of the State of New York--an element to be considered in determining the nature of the proceeding (City of Buffalo v. Murphy, 228 App.Div. 279, 285, 239 N.Y.S. 206, 213). ¹ We therefore conclude that this proceeding is essentially civil in character. 'A 'civil judicial proceeding' is a prosecution, other than a criminal action, of an independent application to a court for relief' (CPLR 105, subd. (d); see, also, CPLR 105, subd. (b), 103, subd. (b)). As a final order or judgment in a special proceeding, the orders are appealable (CPLR 5701, subd. (a), par. 1). Orders in other proceedings having quasi-criminal effects, but not truly criminal actions, have been reviewed on appeal (see, e.g., Carlisle v. Bennett, 268 N.Y. 212, 218, 197 N.E. 220, 222; Matter of A'Hearn v. Committee on Unlawful Practice of Law, 30 A.D.2d 47, 55--56, 287 N.Y.S.2d 994, 1001--1002, affd., 23 N.Y.2d 916, 918, 298 N.Y.S.2d 315, 316, 246 N.E.2d 166, cert. den., 395 U.S. 959, 89 S.Ct. 2099, 23 L.Ed.2d 745; Matter of Weintraub v. Fraiman, 30 A.D.2d 784, 291 N.Y.S.2d 438, affd., 24 N.Y.2d 918, 301 N.Y.S.2d 983, 249 N.E.2d 762; Matter of Narcotic Addiction Control Comm. v. Couloufacos, 29 A.D.2d 199, 202, 287 N.Y.S.2d 238, 241).

Accordingly, we treat on the merits the claim of the appellants that their constitutional rights have been invaded under compulsion of the orders. The appellants contend first that to force them to give handwriting exemplars violates the Fourth Amendment to the Federal Constitution. That contention cannot be sustained under the recent decisions of the Supreme Court (see, United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67; United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99; Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676; Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908). The Fourth Amendment does not prohibit the taking of handwriting exemplars, for no search or seizure of the person is involved. Identifying physical characteristics may be obtained when neither unlawful detention nor unlawful intrusion into the body is the means employed to secure disclosure. No doubt, the requirement that a person repair on a date certain to the office of the district attorney for the purpose of giving handwriting samples is a species of detention, since the liberty of the movement of the person, to that extent, is limited. However, if the detention is based on probable cause, evinced by a factual showing to the court for the relief sought, and that relief is determined to be necessary by the court after notice, the detention of the person to the extent indicated is not unlawful in the constitutional sense. Of course, no unlawful intrusion into the body is entailed in the procedure of obtaining handwriting specimens specified in the orders under review.

Nor is the Fifth Amendment violated by the compulsory exhibition of physical characteristics. In Schmerber v. California, (supra, p. 764, 86 S.Ct. p. 1832) it was said:

'both federal and state courts have usually held that * * * (the privilege) offers no protection against compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture. The distinction which has emerged, often expressed in different wasys, is that the privilege is a bar against compelling 'communications' or 'testimony but that compulsion which makes a suspect or accused the source of 'real or physical evidence' does not violate it.'

Whether the appellants' rights under the Fourteenth Amendment have been violated depends on testing the means used here under the dictates of due process. As was said recently by Chief Judge Breitel in Matter of Pannell v. Jones, 36 N.Y.2d 339, 342, 368 N.Y.S.2d 467, 469, 329 N.E.2d 159, 160, due process governs any State action, whether civil or criminal in character, which deprives a person of liberty; the procedural safeguards required will vary according to the circumstances of the case in relation to the governmental function involved and the sebstance of the individual interest affected. We see no violation of due process under the proceedings initiated by the District Attorney. The appellants were served with the notice of the...