Hynes v. Moskowitz
| Decision Date | 04 May 1978 |
| Citation | 377 N.E.2d 446,44 N.Y.2d 383,406 N.Y.S.2d 1 |
| Parties | , 377 N.E.2d 446 In the Matter of Charles J. HYNES, as Deputy Attorney-General of the State of New York, Respondent, v. Laurence MOSKOWITZ et al., Appellants. In the Matter of QUEENS NASSAU NURSING HOME et al., Appellants, v. Charles J. HYNES, as Deputy Attorney-General of the State of New York, Respondent. In the Matter of FAR ROCKAWAY NURSING HOME et al., Appellants, v. Charles J. HYNES, as Deputy Attorney-General of the State of New York, Respondent. |
| Court | New York Court of Appeals Court of Appeals |
In these three cases involving Mountain View Home for Adults, Queens Nassau Nursing Home and Far Rockaway Nursing Home, all of which present substantially the same issues, direct appeals are taken on constitutional grounds from three separate orders of the Supreme Court.
The Mountain View Home appeal is taken from an order directing compliance with a subpoena duces tecum issued by respondent, the Special Prosecutor for Nursing Homes (Deputy Attorney-General), on October 7, 1977. The subpoena required the production of various books and records of the home at the office of the Special Prosecutor. The schedule attached to the subpoena, detailing the specific items sought, included 24 general categories of books and records encompassing essentially all appellant's business records.
When it became apparent that appellant nursing home would not comply with the subpoena, the Special Prosecutor moved for an order to compel compliance pursuant to CPLR 2308 (subd. (b)). In addition to seeking production of the documents, the Special Prosecutor also sought "possession * * * (of the subpoenaed materials) for the inspection, examination or audit" as authorized by subdivision 8 of section 63 of the Executive Law and CPLR 2305 (subd. (c)). Appellants 1 opposed the motion alleging that subdivision 8 of section 63 of the Executive Law and CPLR 2305 (subd. (c)) violate the Fourth Amendment proscription against unreasonable searches and seizures. The statutes were also challenged as being unconstitutionally vague, and it was further argued that compulsion to produce potentially incriminating evidence contravenes the constitutional right against self incrimination.
In support of the motion to compel compliance, the Special Prosecutor argued that several allegedly illicit activities conducted at the home justified both the investigation and the subpoena. The Special Prosecutor informed the court that a sexual abuse complaint had been lodged against a resident of the home, that a number of residents had been improperly transferred to the home, and that a civil action was pending against the home for improperly withholding funds.
After a hearing, Supreme Court directed that the subpoenaed books and records be delivered to the Special Prosecutor no later than 5 p. m. on December 20, 1977. Because of the pending appeal, a motion to stay enforcement of the subpoena has been granted, and the subpoenaed materials have been placed in the custody of the Clerk for the County of Rockland.
In the Queens Nassau Nursing Home case, direct appeal is taken on constitutional grounds from an order of Supreme Court Queens County, denying appellant's motion to quash a Grand Jury subpoena duces tecum issued on August 1, 1977. Appellant contends that the statute authorizing the Grand Jury and the Special Prosecutor to retain the subpoenaed materials is unconstitutionally vague, violative of the Fourth Amendment proscription against unreasonable searches and seizures, and contrary to the purpose of the Grand Jury as a body immune to governmental interference and control.
Review of the history of this case is necessary to understand fully its posture. On November 1, 1976, a Queens County Grand Jury subpoena duces tecum was served on appellant Herman Greenbaum, a partner of Queens Nassau Nursing Home, commanding production of the books and records of the nursing home for 1973 to 1976. Greenbaum moved to quash the subpoena on the grounds that it violated his constitutional right against self incrimination, that the subpoena was overbroad and that it had been served improperly. On November 5, 1976, the motion was denied.
Subsequently indicted on one count of conspiracy in the fourth degree and 22 counts of willful violation of the health laws, Greenbaum was arraigned on November 16, 1976. The indictment charged that Greenbaum had engaged in a scheme to obtain kickbacks from a vendor of the nursing home.
On December 2, 1976, Greenbaum appeared before the Grand Jury, and produced only some of the subpoenaed materials. An oral motion seeking return of the records was denied. This motion was renewed in writing. In denying the renewed motion, Supreme Court permitted Greenbaum to be present during examination of the records if he so desired, but on reargument the order was modified to disallow Greenbaum's presence during inspection.
Faced with Greenbaum's persistent refusal to comply with the subpoena, the Special Prosecutor moved to have Greenbaum held in contempt. Supreme Court, Queens County, withheld decision pending our determination of Matter of Heisler v. Hynes, 42 N.Y.2d 250, 397 N.Y.S.2d 727, 366 N.E.2d 817 and Matter of Windsor Park Nursing Home v. Hynes, 42 N.Y.2d 243, 397 N.Y.S.2d 723, 366 N.E.2d 813. The holding in those cases, forbidding the Special Prosecutor from retaining custody of the documents sought by a Grand Jury or officer subpoena duces tecum, absent statutory authority, prompted the Special Prosecutor to withdraw the contempt motion.
Shortly after the Heisler and Windsor Park decisions, the Legislature enacted CPL 610.25, which authorized limited possession and retention by the Special Prosecutor of materials subpoenaed by the Grand Jury. The Grand Jury subpoena duces tecum now challenged was issued on August 1, 1977, pursuant to the newly enacted CPL 610.25. It required production of 17 categories of books and records of the home from 1973 to 1976. A motion to quash the subpoena on the ground that CPL 610.25 is unconstitutional was denied. Pending resolution of this appeal, the subpoenaed records have been impounded by the Supreme Court, Queens County.
In the Far Rockaway Nursing Home case, Laszlo Szanto, a partner in the nursing home, was served with a Grand Jury subpoena duces tecum on August 1, 1977, commanding production of books and records of the home for 1970 to 1976. A motion to quash the subpoena on grounds of unconstitutionality was denied by Supreme Court, Queens County.
This history of this case is similar to that of the Queens Nassau Nursing Home case. In October of 1976, a Grand Jury subpoena duces tecum was issued to Szanto commanding production of the home's books and records. Szanto moved to quash the subpoena, asserting his constitutional right against self incrimination. He also alleged that the subpoena was overbroad, and was served improperly. On November 5, 1976, the motion was denied.
On November 12, 1976, Szanto was indicted on one count of conspiracy in the fourth degree and 14 counts of willful violation of the health laws. As was the case with Greenbaum, Zanto was charged with involvement in a kickback scheme.
Because Szanto refused to comply with the subpoena, the Special Prosecutor moved to hold him in contempt. Supreme Court, Queens County, ordered that Szanto would be held in contempt if he failed to comply with the subpoena by June 7, 1977. The Heisler and Windsor Park decisions, however, prompted the withdrawal of the contempt motion.
Passage of CPL 610.25 led to the issuance of the presently challenged Grand Jury subpoena duces tecum. Denying appellants' motion to quash, Supreme Court, Queens County, held the statute constitutional, and ordered that the subpoenaed documents be placed in the custody of the Supreme Court, Queens County. However, most of the documents have not been delivered to the court due to an alleged burglary at Far Rockaway Nursing Home which allegedly occurred on June 6, 1977.
Before proceeding to the various constitutional arguments raised against the three challenged statutes, a general overview of these provisions will be instructive. CPL 610.25 2 provides that where a subpoena duces tecum is issued upon reasonable notice to the subpoenaed party, "Such evidence may be retained by the court, grand jury or district attorney on behalf of the grand jury." The reasonableness, duration and conditions of such possession shall be determined by the court with consideration for, among other things, the "good cause" shown by the issuing party, the rights and legitimate needs of the subpoenaed person, and the feasibility and appropriateness of copying the subpoenaed material.
Subdivision 8 of section 63 of the Executive Law 3 empowers the Attorney-General to issue office subpoenas duces tecum and to possess and retain subpoenaed materials in accordance with the provisions of the CPLR. In language nearly identical to that of CPL 610.25, CPLR 2305 (subd. (c)) 4 provides the bounds of reasonable possession and retention of subpoenaed documents.
On the present appeal, in Queens Nassau and Far Rockaway, CPL 610.25 is challenged as being unconstitutionally vague in violation of the constitutional right to due process of law in that the statute fails to define what is meant by the phrase, "good cause shown by the party issuing the subpoena", and that the...
To continue reading
Request your trial
-
People v. Doe
...broad investigative powers to determine whether a crime has been committed and who has committed it" (Matter of Hynes v. Moskowitz, 44 N.Y.2d 383, 394, 406 N.Y.S.2d 1, 377 N.E.2d 446). However, the powers of the Grand Jury to gather evidence are not unlimited. For one thing, they must "be e......
-
Glenwood TV, Inc. v. Ratner
...Commerce Comm. v. Gould, 629 F.2d 847, 858, cert. den. 449 U.S. 1077, 101 S.Ct. 856, 66 L.Ed.2d 800; cf. Matter of Hynes v. Moskowitz, 44 N.Y.2d 383, 395, 406 N.Y.S.2d 1, 377 N.E.2d 446, app. dsmd. 439 U.S. 921, 99 S.Ct. 302, 58 L.Ed.2d 315). Numerous authorities demonstrate this principle ......
-
Patchogue-Medford Congress of Teachers v. Board of Educ. of Patchogue-Medford Union Free School Dist.
...474, 384 N.Y.S.2d 416, 348 N.E.2d 891; People v. Farenga, 42 N.Y.2d 1092, 369 N.Y.S.2d 651, 369 N.E.2d 1184; Hynes v. Moskowitz, 44 N.Y.2d 383, 406 N.Y.S.2d 1, 377 N.E.2d 446; People v. Boodle, 47 N.Y.2d 398, 418 N.Y.S.2d 352, 391 N.E.2d 1329; People ex rel. Piccarillo v. State Bd. of Parol......
-
Harlem Teams for Self-Help, Inc. v. Department of Investigation of City of New York
...Sec. 63(8), CPL Sec. 190.25 and CPL Sec. 610.25. 11 The Court of Appeals reviewed these new statutes in Matter of Hynes v. Moskowitz, 44 N.Y.2d 383, 406 N.Y.S.2d 1, 377 N.E.2d 446 (1978) where it considered claims, inter that the challenged statutes are violative of the Fourth Amendment pro......