M.B. v. F.T.

• Decision Date: 08 April 2013
• Docket Number: No. XX/2103.,XX/2103.
• Citation: M.B. v. F.T., 39 Misc.3d 1208, 971 N.Y.S.2d 72, 2013 N.Y. Slip Op. 50540 (N.Y. Sup. Ct. 2013)
• Parties: In the Matter of an Application by M.B. To Quash a Grand Jury Subpoena Duces Tecum Issued by the District Attorney of Bronx County in the Matter of The People of the State of New York, v. F.T., Defendant.
• Court: New York Supreme Court

39 Misc.3d 1208

971 N.Y.S.2d 72

2013 N.Y. Slip Op. 50540

In the Matter of an Application by M.B. To Quash a Grand Jury Subpoena Duces Tecum Issued by the District Attorney of Bronx County in the Matter of The People of the State of New York,

v.F.T., Defendant.

No. XX/2103.

Supreme Court, Bronx County, New York.

April 8, 2013.

David McCune, Esq., Assistant District Attorney, Office of Robert T. Johnson, District Attorney, Bronx County, Bronx.

Marika Meis, Esq., Legal Director, Criminal Defense Practice, The Bronx Defenders, Bronx.

COLLEEN DUFFY, J.

On March 27, 2013, this matter came before the Court on oral application by V. Marika Meis, Esq, of The Bronx Defenders (“Movant”), seeking to quash a subpoena duces tecum(the “subpoena”) issued by Assistant District Attorney of Bronx County David McCune, Esq., that had been served the previous day on M.B., Esq., an attorney who represents the Defendant F.T.¹ in a matter currently pending before the Grand Jury.

In sum and substance, the subpoena directs M.B. to appear before the Grand Jury on March 27, 2013, to bring before that body any and all video recordings in his possession pertaining to the alleged incident which is the subject of the pending docket against Defendant.²

Counsel for M.B. notified ADA McCune that she was seeking to quash the subpoena and both parties appeared before the Court on March 27, 2013, to address the matter orally before the Court.Counsel for M.B. notified the Court that service of the subpoena had only been effected at or around 12:30 p.m. the previous day.Accordingly, the Court heard the oral application, stayed enforcement of the subpoena and thereafter directed the parties to submit any additional information, if they chose, to the Court on or before April 2, 2013.

On April 2, 2013, the Court received a written notice of motion and affirmation by V. Marika Meis, Esq., seeking to quash the subpoena, and, on the same date, received a memorandum of law in opposition to the motion to quash, and exhibits thereto, from ADA McCune, as well as copies of cases.

The Court thereafter adjourned the matter to April 5, 2013, for decision.

For the reasons set forth below, the Court directs M.B. to comply with the subpoena to the extent that the requisite videotape recording be turned over to the District Attorney's office forthwith; M.B. shall not personally appear before the Grand Jury.Further, if such evidence is presented to the Grand Jury, no reference to this special proceeding or the possession of the evidence by M.B. or any other person employed by the Bronx Defenders shall be made to or before the Grand Jury.

FACTUAL BACKGROUND OF UNDERLYING MATTER

On August 25, 2012,³Defendant was arrested and, on August 26, 2012, brought before the Court and informed of charges set forth in a Supreme Court complaint alleging Attempted Robbery in the Third Degree, PL 110/160.05, Resisting Arrest, PL 205.30, Attempted Assault, 110/120.00(1), two counts of Attempted Criminal Possession of a Weapon, PL 110/265.01(1) and (3), and Harassment, PL 240.26(1).The allegations contend that, on August 25, 2012, Defendant resisted arrest and attempted to take a police officer's gun from his holster.The matter was adjourned to October 22, 2012.

On October 22, 2012, Assistant District AttorneyDon Nguyen, Esq., appeared on behalf of the People and Mandy Odier–Fink, Esq., of The Bronx Defenders, appeared on behalf of Defendant.No Grand Jury action yet had occurred in the matter.The parties then consented to an adjournment to November 5, 2012.Defendant, through his counsel, agreed to waive speedy trial time pursuant to CPL § 30.30.

On November 5, 2012, no Grand Jury action yet had occurred in the matter and the parties again consented to an adjournment.Defendant, through his counsel, again waived speedy trial time.The matter was adjourned to November 20, 2012 for a possible disposition.

On November 20, 2012, no Grand Jury action yet had occurred in the matter and there was no disposition of the matter.On that date, Defendant, through his counsel, again waived speedy trial time and represented to the Court that the adjournments had occurred because the People were waiting for defense to provide it with certain documentation and that she now had such documentation.⁴The matter was adjourned to December 14, 2012, Part FB, for possible disposition.

On December 14, 2012, no Grand Jury action yet had occurred in the matter and there was no disposition.Defendant, through his counsel, again waived speedy trial time, and the matter was adjourned to January 25, 2013, for possible disposition.

On January 25, 2013, new counsel(the subpoenaed party) appeared on behalf of F.T.At that time no Grand Jury action had occurred and there was no disposition.Defendant did not waive speedy trial time and the matter was adjourned to April 11, 2013, for Grand Jury action.

This matter arose prior to that next court date.

RELEVANT LAW

It is axiomatic that the role of the Grand Jury is investigative.CPL 190.05;Kuriansky v. Seewald,148 A.D.2d 238, 242(1st Dept.)(Grand Jury is an investigatory body with broad exploratory powers), app. denied,74 N.Y.2d 616(1989).Its function is two-fold—to determine if a crime has been committed and to protect citizens against unfounded criminal charges.Branzburg v. Hayes,405 U.S. 665, 686–87(1972);Matter of Grand Jury Subpoenae DatedJune 30, 2001,1 Misc.3d 510, 513(Sup.Ct., Suffolk Co.2003);CPL §§ 190.05,190.55and190.65(Grand Jury investigates crimes and determines if there is sufficient evidence to charge a person with a crime);New York Constitution, Art. I, § 6;CPL 190.05.

In order to perform its investigatory function, the Grand Jury has broad investigative powers.Branzburg v. Hayes,405 U.S. at 686–87;People v. Huston,88 N.Y.2d 400, 405–06(1996).The United States Supreme Court has held that, “the public has a right to every man's evidence,” a right limited only by a constitutional, statutory, or common law privilege.United States v. Bryan,339 U.S. 323, 331(1950);Blackmer v. U.S,284 U.S. 421, 438(1932).

Moreover, Grand Jury subpoenas are presumed valid and a party moving to quash a subpoena must show bad faith or some other ground for invalidity.In the Matter of Grand Jury Subpoena of Stewart,144 Misc.2d 1012, 1015(Sup.Ct., New York Co.1989)(Grand Jury subpoenas presumptively valid and can only be challenged by an affirmative showing of some impropriety), modified,156 A.D.2d 294(1989).

Here, Defendant's counsel has not asserted that the subpoena should be quashed because it seeks attorney work product or information subject to the attorney client privilege.However, as the subpoena at issue has been served upon counsel currently representing Defendant in a criminal matter, Defendant's Sixth Amendment rights under the United States Constitution are implicated.This Court must be mindful that requiring Defendant's counsel to testify or to turn over information may impact Defendant's Sixth Amendment rights under the United States Constitution(as well as the Constitution of New York) to be represented by an attorney of his/her choice.In the Matter of Stolar to Quash a Subpoena,196 Misc.2d 175, 177–78(Sup.Ct., New York Co.2003);In the Matter of Grand Jury Subpoena of Stewart,144 Misc.2d at 1022–23.Careful scrutiny of a subpoena of a defendant's current counsel is required to weigh the relevance of the evidence, the good faith of the People in seeking it, the lack of alternative sources and necessity of the evidence with the potential chilling effect upon the attorney-client relationship, which in some cases might require recusal of counsel.Stolarat 177–78;Stewartat 1023.

Thus, to protect a defendant's Sixth Amendment right to counsel, before a court will require a defendant's attorney to comply with a subpoena issued to such current counsel to appear and produce evidence to a grand jury, the People must demonstrate good faith, the relevancy of the evidence sought, a lack of alternative sources for the evidence, and the necessity of the evidence.Stolar,196 Misc.2d at 177;Stewart,144 Misc.2d at 1023–24.

With respect to the issue of the District Attorney's authority to issue a subpoena, the District Attorney is authorized to issue subpoenas to obtain relevant evidence to present to a Grand Jury investigating a matter.CPL § 190.50(2).Indeed, the District Attorney is authorized to review such evidence to determine whether it should be submitted to the Grand Jury.SeePeople v. Huston,88 N.Y.2d at 406(District Attorney determines what evidence to present and what to exclude);Hynes v. Moskowitz,44 N.Y.2d 383, 387(1978);CPL § 190.25(4)(a)(to assist Grand Jury in conducting its investigation, evidence obtained by a Grand Jury may be independently examined by the district attorney).

In addition, one of the functions of the District Attorney is to present evidence before the Grand Jury.CPL § 190.55(2)(duties and authority of district attorney mandate submission of evidence to Grand Jury under enumerated circumstances).

CONCLUSIONS OF LAW

For the reasons set forth below, the motion to quash is denied except to the extent that M.B. shall not appear before the Grand Jury; the item sought shall be turned over to the District Attorney's office forthwith.

As an initial matter, the underlying matter to which the subpoena pertains has not been indicted.The Court notes that Movant's contention that the District Attorney is attempting to subvert the discovery process prescribed by the CPL is without merit as such provisions are inapplicable at this investigatory phase of the process.The underlying proceeding is pre-indictment; not post-indictment.Movant's contention that the investigation phase has concluded stands the Grand Jury process on its head.Indeed, the very subject of the item sought by the District Attorney is a videotape that purports to depict the August 25, 2012 incident which the...