John Doe Corp. I v. Blumenkopf
| Decision Date | 17 July 1986 |
| Parties | In the Matter of JOHN DOE CORPORATION I et al., Appellants, v. Alan BLUMENKOPF, as Assistant Deputy Attorney-General in Charge of the New York State Organized Crime Task Force, et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Obermaier, Morvillo & Abramowitz, P.C. (Robert G. Morvillo, of counsel), New York City, for appellants.
Alan Blumenkopf, Asst. Deputy Atty. Gen., Organized Crime Task Force, Albany, respondent in person.
Before MAHONEY, P.J., and KANE, CASEY, MIKOLL and LEVINE, JJ.
Petitioners are two Schenectady-based corporations against whom respondent Organized Crime Task Force (Task Force) is now presenting evidence to a Schenectady County Grand Jury, apparently regarding alleged misappropriation of trade secrets from the General Electric Company and commercial bribery. In May 1985, the Task Force applied for and was granted search warrants by a County Judge for various specifically identified articles at petitioners' premises, which were seized upon execution of the warrants. In August and September 1985, the Task Force obtained records of petitioners' bank accounts through the issuance of office subpoenas duces tecum (see, Executive Law § 70-a[4] ), directed to a local office of Manufacturers Hanover, N.A. In this proceeding, petitioners seek a writ of prohibition to prevent the Task Force from submitting to the Grand Jury all or any part of the foregoing evidence in its possession on the ground that the evidence was obtained by means beyond the legal authority of the Task Force under the statute that created it and defines its powers (see, Executive Law § 70-a). They appeal from Special Term's dismissal of their petition.
Petitioners concede that respondent Assistant Deputy Attorney-General of the Task Force in charge of this matter may validly appear before and present evidence to the Grand Jury under Executive Law § 70-a(7), since both the Governor and the District Attorney have approved such action, and the alleged offenses concern multicounty or interstate conduct (see, People v. Rallo, 39 N.Y.2d 217, 222, 383 N.Y.S.2d 217, 347 N.E.2d 633). Petitioners contend, however, that such legal authority does not extend to the evidence-gathering activities involved here. Relying on the Court of Appeals' decision in Matter of Sussman v. New York State Organized Crime Task Force, 39 N.Y.2d 227, 383 N.Y.S.2d 276, 347 N.E.2d 638), they argue that in obtaining that evidence, the Task Force was exercising its statutory investigative powers under Executive Law § 70-a(4), rather than its prosecutorial powers under Executive Law § 70-a(7), in which case the Task Force was required to show that the object of the investigation involved "multicounty 'organized crime activities' " (Matter of Sussman v. New York State Organized Crime Task Force, supra, p. 229, 383 N.Y.S.2d 276, 347 N.E.2d 638; see, Executive Law § 70-a[4] ). Since the Task Force made no showing whatsoever that the misappropriation of trade secrets or commercial bribery under investigation constituted organized crime activities in the common meaning of that phrase, petitioners urge that the Task Force's acquisition of the evidence was illegal and that it should therefore be prohibited from using the evidence before the Grand Jury.
The judgment should be affirmed. In reaching this conclusion, we need not determine (1) whether dismissal could properly have been based on the sufficiency of the showing by the Task Force that its investigation concerned organized crime activities, or (2) that Special Term's finding, that petitioners' alleged offenses could "easily reach the level of organized crime", was either adequate or supported by the record without recourse to in camera inspection of the letters of authorization from the Governor and the District Attorney in this matter or of the search warrant applications, all as offered by the Task Force in its answer to the petition.
Regarding the bank records obtained through the office subpoenas duces tecum, unquestionably, the only authority for the issuance of the subpoenas by the Task Force is to be found in Executive Law § 70-a(4). The case of Matter of Sussman v. New York State Organized Crime Task Force (supra) expressly ruled that the exercise of the office subpoena power is conditional upon a showing of the relationship of an investigation to organized crime activities (id., at 229-230, 383 N.Y.S.2d 276, 347 N.E.2d 638). The case law is equally clear, however, that petitioners have no legally cognizable interest in the records of a third-party bank and, hence, they lack standing to complain of any illegality in subpoenaing them (see, United States v. Miller, 425 U.S. 435, 444, 96 S.Ct. 1619, 48 L.Ed.2d 71; Matter of Capetta, 42 N.Y.2d 1066, 1067, 399 N.Y.S.2d 638, 369 N.E.2d 1172; Matter of Laborers I.U.N.A. Local No. 333 v. New York State Organized Crime Task Force, 81 A.D.2d 1037, 1038, 440 N.Y.S.2d 119; Matter of Democratic County Committee of Bronx County v. Nadjari, 52 A.D.2d 70, 72, 383 N.Y.S.2d 311).
As to the seizure of evidence under the search warrants, we are of the view that the Task Force was validly acting within its powers under Executive Law § 70-a(7). The applications for the warrants were made after the Task Force received approval to proceed in this matter from the Governor and the District Attorney. The petition alleges that the evidence thereby obtained is being submitted to the Grand Jury. It is thus readily inferable, and petitioners have not submitted proof to the contrary, that the purpose of the seizure was to assemble the necessary proof and otherwise to prepare for presentation of the case against petitioners to the Grand Jury. Pointing to the distinction made in Sussman between the Task Force's investigative powers under Executive Law § 70-a(4) and its prosecutorial power under Executive Law § 70-a(7) to "attend in person any term of the county court or supreme court * * * or appear...
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