Interfaith Hospital v. People

• Decision Date: 02 October 1972
• Citation: 337 N.Y.S.2d 358,71 Misc.2d 910
• Parties: INTERFAITH HOSPITAL et al., Petitioners, v. The PEOPLE of the State of New York, Respondent.
• Court: New York Supreme Court

Page 358

337 N.Y.S.2d 358

71 Misc.2d 910

INTERFAITH HOSPITAL et al., Petitioners, v. The PEOPLE of the State of New York, Respondent.

Supreme Court, Criminal Term, Queens County, Part I.

Oct. 2, 1972.

[71 Misc.2d 911] Sidney Katz, New York City, for petitioners.

Thomas Mackell, Dist. Atty., Kew Gardens, N.Y. (Lawrence Finnegan, Asst. Dist. Atty., of counsel), for respondent.

MEMORANDUM

LEO BROWN, Justice.

This is a motion to quash a subpoena and for the return of all property taken from the offices of petitioner Panfel Merritt & Company.

On September 13, 1972, apparently in connection with a grand jury investigation of petitioners Interfaith Hospital, Coleman Capital Corporation and N.E.G.R.O. (National Economic Growth & Reconstruction Organization), the district attorney issued the subpoena in question directed to Panfel Merritt & Company, an accounting firm, requiring that all the records of their clients be 'turned over' to the detective of the Queens District Attorney's office 'forthwith'. The subpoena was returnable before the grand jury at 3:30 P.M. of the same day. Reconstructing the events of that day from the averments in petitioner's affidavit, and from the statements contained in a brief of the district attorney, that office not having submitted any opposing affidavit, it appears: that the subpoena was served at 11 A.M. at which time the 'forthwith' turnover was refused; that the district attorney then obtained the court's endorsement of the subpoena; that at approximately 3:30 P.M. a subpoena was again served; that even though the detective indicated that unless the documents were turned over persons refusing would be arrested the attorney for Panfel Merritt & Company nonetheless refused to obey the subpoena and 'It was at this point that the files were taken and brought to Queens County wherein the next morning they were brought before a grand jury * * *.'

The disposition of this motion requires a review of the applicable provisions of the Criminal Procedure Law as well as the Civil Practice Law and Rules and the Judiciary Law. The Criminal Procedure Law authorizes the district attorney to issue a subpoena subscribed by himself for the purpose of compelling the attendance of a witness before the grand jury. (CPL, § 610.20.) The term subpoena includes a 'subpoena duces tecum'. (CPL, § 610.10.) In Matter of Remy Sportswear, Inc., 16 Misc.2d 407 the court stated, at page 409, 183 N.Y.S.2d 125, at page 128:

'Although inquisitorial power is directly vested in the grand jury, yet when a subpoena is issued by the district attorney for one's appearance before the grand jury, it may be attacked as issued in bad faith or as invalid for some other reason, in spite of the direct inquisitorial power vested in the grand jury. Manning v. Valente, 272 App.Div. 358, 72 N.Y.S.2d 88, affirmed 297 N.Y. 681, 77 N.E.2d 3.'

Thus, CPLR, section 2304, provides:

'A motion to quash, fix conditions or modify a subpoena shall be made promptly in the court in which the subpoena is returnable. If the subpoena is not returnable in a court, a request to withdraw or modify the subpoena shall fisrst be made to the person who issued it and a motion to quash, fix conditions or modify may thereafter be made in the supreme court. Reasonable conditions may be imposed upon the granting or denial of a motion to quash or modify.'

The central issue presented by this motion is whether the district attorney when faced with a refusal to turn over records pursuant to a 'forthwith' subpoena may seize the records. That question must be answered in the negative. In Matter of Amalgamated Union, Local 224 v. Levine, 31 Misc.2d 416 Mr. Justice Meyer stated at page 417, 219 N.Y.S.2d 851 at page 853:

'* * * it has long been the law that property produced pursuant to subpoena duces tecum may not be retained by the person or body before whom produced, except by order of court, whether the matter be criminal (Atlas Lathing Corp. v. Bennett, 176 Misc. 959, 29 N.Y.S.2d 458; Application of Bendix Aviation Corporation, D.C., 58 F.Supp. 953; Application of Kelly, D.C., 19 F.R.D. 269; Hagan, Impounding and the Subpoena Duces Tecum, 26 Brooklyn Law Review 199) or civil (Matter of Randall, 87 App.Div. 245, 84 N.Y.S. 294; Matter of Williams, 153 Misc. 682, 275 N.Y.S. 799). A subpoena duces tecum confers no right to seize the property referred to in the subpoena (Atlas Lathing Corp. v. Bennett, Supra; Saratoga Harness Racing Association, Inc. v. Monaghan, 9 Misc.2d 868, 169 N.Y.S.2d 520), nor is the relinquishment of property in obedience to a 'forthwith' subpoena duces tecum, even though on advice of counsel, a voluntary surrender (Matter...