IN THE MATTER OF NEWSDAY, INC.

• Decision Date: 01 July 2004
• Citation: 816 N.E.2d 561,3 N.Y.3d 651,782 N.Y.S.2d 689
• Parties: In the Matter of NEWSDAY, INC., Appellant. ROBERT D. MORGENTHAU, as District Attorney of New York County, Intervenor-Respondent.
• Court: New York Court of Appeals Court of Appeals

3 N.Y.3d 651

816 N.E.2d 561

782 N.Y.S.2d 689

In the Matter of NEWSDAY, INC., Appellant.

ROBERT D. MORGENTHAU, as District Attorney of New York County, Intervenor-Respondent.

Court of Appeals of the State of New York.

Decided July 1, 2004.

Levine Sullivan Koch & Schulz LLP, New York City (David A. Schulz, Gayle C. Sproul and Alia L. Smith of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York City (Michael Morgan of counsel), for intervenor-respondent.

Chief Judge KAYE and Judges G.B. SMITH, CIPARICK, ROSENBLATT, GRAFFEO, READ and R.S. SMITH concur.

OPINION OF THE COURT Memorandum.

The appeal should be dismissed, without costs, on the ground that no statutory authority exists for our review of Supreme Court's order in this criminal proceeding (see Matter of Manners [Christopher L.], 74 NY2d 734 [1989]

).

Newsday's application to intervene and obtain access to records supporting issuance of a search warrant was an application "involving a criminal investigation and the proceeding in which the order was issued was therefore a criminal proceeding" (Matter of Alphonso C. [Morgenthau], 38 NY2d 923, 924-925 [1976], citing CPL 1.20 [18] [b]; Matter of Santangello v People, 38 NY2d 536 [1976]

).¹ As it was issued in a criminal proceeding, Supreme Court's order was not appealable to the Appellate Division under CPL article 450, nor is the Appellate Division order appealable to this Court by permission pursuant to CPL 460.20 because it is not an appealable order as defined by CPL 450.90. Remedies available to Newsday could have been via a Freedom of Information Law request (Public Officers Law § 87) or a civil proceeding pursuant to CPLR article 78 at the trial court level (see e.g. Matter of Gannett Co. v De Pasquale, 43 NY2d 370 [1977]; Matter of Associated Press v Bell, 70 NY2d 32 [1987]), from which an appeal to this Court might ultimately have been taken.

Appeal dismissed, without costs, by the Court of Appeals sua sponte, in a memorandum.

1. By contrast, we note that "the direct appealability of orders granting or denying motions to quash subpoenas in criminal investigations and actions has a peculiar analytical basis" (Matter of Cunningham v Nadjari, 39 NY2d 314, 317 [1976]

). Indeed, since 1936, in a line of cases originating with People v Doe (272 NY 473 [1936]), this Court has permitted direct appeal of those orders on the ground that "they were final orders in special proceedings on the civil side of a court vested with civil jurisdiction" (Cunningham, 39 NY2d at 317, citing Matter of Boikess v Aspland, 24 NY2d 136, 138-139 [1969]). In Cunningham, however, we recognized that "on a basis of stare decisis these precedents represent a formidable line of authority, however asymmetrical may appear to be the support for the rule they express and apply" (39 NY2d at 317; see also Matter of Abrams [John Anonymous], 62 NY2d...