Hynes v. Doe
| Decision Date | 27 September 1979 |
| Citation | 101 Misc.2d 350,420 N.Y.S.2d 978 |
| Parties | In the Matter of the Application of Charles J. HYNES, As Deputy Attorney General of the State of New York, Petitioner, v. for an Order Adjudging John DOE, Respondent, Guilty of Contempt of Court. |
| Court | New York Supreme Court |
The special prosecutor moves to punish respondent for contempt of court in that he failed to comply with a subpoena duces tecum. Respondent cross moves to quash the subject subpoena duces tecum and seeks his own order of contempt.
The facts are as follows:
A subpoena duces tecum, dated June 26, 1979, was served on respondent and required that he produce all of his income tax records from 1966 through 1978 along with supporting documents before a Queens Grand Jury on July 13, 1979. Respondent failed to produce his tax records before the Grand Jury on that date and petitioner now seeks to punish for wilful disobedience to a lawful mandate pursuant to Judiciary Law, section 750(A)(3).
The respondent alleges that he attempted to comply with the subpoena but was denied his right to explain his position to the Grand Jury or raise a claim of privilege.
In addition, respondent maintains that since he has already been served with approximately five other subpoenas and delivered several thousand items of documentation to the Grand Jury, the present request is cumulative in nature and constitutes legal harassment. Respondent now seeks to quash the present subpoena and terminate his appearances before the Grand Jury.
As regards the special prosecutor's contempt motion, this court must take judicial note of the fact that the order to show cause to punish respondent for failing to deliver documents on July 13, was verified on July 12, 1979. In other words, the special prosecutor's motion was premature in that the alleged contempt had not yet been committed. While foresight has its values, it cannot be deemed a legal substitute for the completed, wilful act which is clearly required by statute. "For a contempt citation to be warranted, all elements, including * * * willful disobedience thereof, must be demonstrated beyond a reasonable doubt" (Matter of Davis, 88 Misc.2d 938, 940, 389 N.Y.S.2d 1015, 1017; Yorktown Cent. School Dist. v. Yorktown Congress of Teachers, 42 A.D.2d 422, 348 N.Y.S.2d 367). Since it is legally impossible to punish a party for anticipated contempt, the special prosecutor's application must be denied on a technical ground.
Turning to respondent's cross motion, it is clear that a Grand Jury is entitled to every man's evidence. Once a subpoena duces tecum is issued and a witness feels that all of the documents sought are validly privileged, he is, in effect, challenging the validity of the subpoena itself. The proper remedy is a motion to quash since such a motion "is limited in scope, challenging only the validity of the subpoena or the jurisdiction of the issuing authority" (Matter of Santangello v. People, 38 N.Y.2d 536, 539, 381 N.Y.S.2d 472, 473, 344 N.E.2d 404, 405-406). Further, such a motion should be made promptly and, in any case, prior to the return date (Matter of Santangello v. People, supra, 539, 381 N.Y.S.2d 473, 344 N.E.2d 405).
In the case at bar, this court will consider the cross motion on its merits in order to prevent further delay in the Grand Jury's deliberations.
Respondent first challenges the subpoena on the grounds of prosecutorial misconduct. He maintains that he appeared before the Grand Jury on the designated day and believed, on the advice of his counsel, that he was not legally obliged to turn over the required tax documents. He desired to make a statement to the Grand Jury explaining why he failed to comply with the subpoena. He maintains that the special assistant attorney general immediately curtailed questioning and thus denied him the right to place his objections on record.
The issue before this court deals with the proper method of raising objections under a subpoena duces tecum once a witness appears before a Grand Jury.
In considering this question, it is obvious that the representative of the state, as the legal advisor of the Grand Jury, has the obligation of conducting an investigation and drawing forth relevant facts from a witness. The standard method of permitting a witness to raise objections to a particular question was set forth in People v. De Salvo, 32 N.Y.2d 12, 343 N.Y.S.2d 65, 295 N.E.2d 750. In that case, the court held: (p. 16, 343 N.Y.S.2d pp. 68-69, 295 N.E.2d p. 752.
The People contend that the procedure set forth in De Salvo applies only to a subpoena ad testificandum; that case involved a contempt proceeding in which a witness raised a defense that was never mentioned during the actual Grand Jury proceeding. The prosecutor distinguishes the De Salvo case from the present one by stating that in the instant case the witness appears merely in a custodial role as a bearer of documents and the fact that he does not present the documentation to the Grand Jury clearly places on the record that he objects to same. The People contend that, at such point, the matter should be brought before the court for a legal hearing as to the reasons for his failure to present the required records and a prompt resolution thereof in order to permit the Grand Jury to continue on its legitimate business.
The state cites Curcio v. United States, 354 U.S. 118, 77 S.Ct. 1145, 1 L.Ed.2d 45 to support its position. In that case, the witness was a union treasurer, served with a personal subpoena ad...
To continue reading
Request your trial
-
Odimgbe v. Dockery
... ... N.A. Development Co., Ltd. v. Jones, at 243-245, 472 N.Y.S.2d 363 (Sandler, J., dissenting). 3 ... The standard of proof necessary to find someone in civil contempt is "reasonable certainty." Matter of McCormick v. Axelrod, supra; Matter of Hynes v. Hartman, 63 A.D.2d 1, 406 N.Y.S.2d 818 (1st Dept.1978). While the Courts have generally required a standard of proof beyond a reasonable doubt in criminal contempt cases under the Judiciary Law, Yorktown Central School District No. 2 v. Yorktown Congress of Teachers, 42 A.D.2d 422, 348 ... ...
-
Larisa F. v. Michael S.
... ... State of N.Y. v. Unique Ideas, 44 N.Y.2d 345, 405 N.Y.S.2d 656, 376 N.E.2d 1301. A civil contempt is a quasi-criminal proceeding and, therefore, the evidence must indicate with a reasonable certainty that the contemnor is guilty of contempt. Hynes v. Hartman, 63 A.D.2d 1, 406 N.Y.S.2d 818; Panza v. Nelson, 54 A.D.2d 928, 388 N.Y.S.2d 130, 131; State ex rel. Porter v. Porter, 33 A.D.2d 876, 307 N.Y.S.2d 682 ... A criminal contempt is an offense against the court's authority. King v. Barnes, 113 N.Y. 476, 21 N.E. 182 ... ...
-
People v. Desmond
... ... When a privilege is claimed with respect to the production, pursuant to such a subpoena, of taped documents, the witness is, essentially, challenging the validity of the subpoena itself and a motion to quash made prior to the witness's appearance is an appropriate procedure (see Matter of Hynes v. Doe, 101 Misc.2d 350, 352, 420 N.Y.S.2d 978; see Matter of Grand Jury Proceedings [Doe], 56 N.Y.2d 348, 351, 452 N.Y.S.2d 361, 437 N.E.2d 1118; Matter of Santangello v. People, 38 N.Y.2d 536, 539, 381 N.Y.S.2d 472, 344 N.E.2d 404; cf. Matter of A. & M., 61 A.D.2d 426, 435, 403 N.Y.S.2d 375) ... ...
-
N. A. Development Co., Ltd. v. Jones
... ... People ex rel. Golden v. Golden, 57 A.D.2d 807, 394 N.Y.S.2d 699 (1st Dept. 1977) ... 2 To hold a person in criminal contempt, the court must find the necessary elements beyond a reasonable doubt, see, e.g. Hynes v. Doe, 101 Misc.2d 350, 420 N.Y.S.2d 978 (S.Ct., Queens Co., 1979). Civil contempt requires a finding of "reasonable certainty", see, e.g. Panza v. Nelson, 54 A.D.2d 928, 388 N.Y.S.2d 130 (2d Dept. 1976); State ex rel. Porter v. Porter, 33 A.D.2d 876, 896, 307 N.Y.S.2d 682 (4th Dept., 1969) ... ...