People v. Juarez

Decision Date27 June 2018
Docket NumberNo. 58,58
Citation31 N.Y.3d 1186,82 N.Y.S.3d 336,107 N.E.3d 556
Parties In the Matter of the PEOPLE of the State of New York, Appellant, v. Conrado JUAREZ, Defendant. Frances Robles, Nonparty Respondent.
CourtNew York Court of Appeals Court of Appeals

Cyrus R. Vance, Jr., District Attorney, New York City (Diane N. Princ, Hilary Hassler and Melissa Mourges of counsel), for appellant.

Levine Sullivan Koch & Schulz, LLP, New York City (Katherine M. Bolger, David A. Schulz and Thomas B. Sullivan of counsel), and Davis Wright Tremaine LLP, New York City (Katherine M. Bolger of counsel), for nonparty respondent.

Cahill Gordon & Reindel, LLP, New York City (Joel Kurtzberg, Nicole Ligon and Ivan Torres of counsel), for Asian American Journalists Association and others, amici curiae.

Baker & Hostetler, LLP, Washington, D.C. (Mark I. Bailen of counsel) and New York City (Peter B. Shapiro of counsel), and Reporters Committee for Freedom of the Press, Washington, D.C. (Bruce D. Brown, Gregg P. Leslie and Caitlin V. Vogus of counsel), for Reporters Committee for Freedom of the Press and others, amici curiae.

Scott D. McNamara, District Attorneys Association of the State of New York (Jordan K. Hummel and Nancy D. Killian of counsel), for District Attorneys Association of the State of New York, amicus curiae.

OPINION OF THE COURTMEMORANDUM.

The order of the Appellate Division should be reversed, without costs, and the case remitted to the Appellate Division with directions to dismiss the appeal taken to that Court. Supreme Court's order denying nonparty Frances Robles's motions to quash certain subpoenas served on her was issued in a criminal action. Inasmuch as no direct appellate review of such orders is authorized under CPL article 450, no appeal lies.

It is well-established that "no appeal lies from an order arising out of a criminal proceeding absent specific statutory authorization" ( People v. Santos, 64 N.Y.2d 702, 704, 485 N.Y.S.2d 524, 474 N.E.2d 1192 [1984] ; see Matter of 381 Search Warrants Directed to Facebook, Inc. (New York County Dist. Attorney's Off. ), 29 N.Y.3d 231, 242, 78 N.E.3d 141 [2017] [collecting cases] ). We have explained that

"[t]his has always been so and the underlying policy is to limit appellate proliferation in criminal matters, sometimes to the seeming detriment of the defendant and sometimes to the detriment of the People. Litigation may be compounded unduly by protracted and multifarious appeals and collateral proceedings frustrating the speedy determination of disputes. Moreover, the frustration may be accomplished by skillful manipulation of appeals and collateral proceedings by those interested in delay" ( Matter of State of New York v. King, 36 N.Y.2d 59, 63, 364 N.Y.S.2d 879, 324 N.E.2d 351 [1975] ; see People v. Laing, 79 N.Y.2d 166, 170, 581 N.Y.S.2d 149, 589 N.E.2d 372 [1992] ).

This Court has held that an order resolving a motion to quash a subpoena issued prior to the commencement of a criminal action is a final and appealable order inasmuch as it "is civil by nature and [thus] not subject to the rule restricting direct appellate review of orders in criminal proceedings" ( Matter of Abrams [John Anonymous], 62 N.Y.2d 183, 192, 476 N.Y.S.2d 494, 465 N.E.2d 1 [1984] ; see Facebook, 29 NY3d at 243, 78 N.E.3d 141 ; Santos, 64 N.Y.2d at 704, 485 N.Y.S.2d 524, 474 N.E.2d 1192 ] ). By contrast, "an order determining a motion to quash a subpoena ... issued in the course of prosecution of a criminal action, arises out of a criminal proceeding for which no direct appellate review is authorized" ( Santos, 64 N.Y.2d at 704, 485 N.Y.S.2d 524, 474 N.E.2d 1192 [citations omitted] ).1

The critical distinction between orders addressing subpoenas that precede, as opposed to follow, the commencement of a criminal action is grounded in the plain language of the CPL, which governs "[a]ll criminal actions and proceedings" ( CPL 1.10[1][a] ). Specifically, a "criminal action ... commences with the filing of an accusatory instrument against a defendant in a criminal court" ( CPL 1.20[16] ), and a "criminal proceeding" includes "any proceeding which (a) constitutes a part of a criminal action or (b) occurs in a criminal court and is related to a ... criminal action ... or involves a criminal investigation" ( CPL 1.20[18] ). Definitionally, an order resolving a motion to quash a subpoena that is issued prior to the filing of an accusatory instrument does not arise within the context of a "criminal action." Moreover, while such an order may relate to a criminal investigation, when issued in a court of general jurisdiction prior to the commencement of a criminal action, it "arises ... on the civil side of the court" ( Santos, 64 N.Y.2d at 704, 485 N.Y.S.2d 524, 474 N.E.2d 1192 ). Therefore, an order resolving a motion to quash a subpoena falls outside of the ambit of the CPL—and its concomitant limitations upon appellate review—when the order is issued before a criminal action begins. Review of an order issued in the investigatory stage does not undermine the legislative aim of "limit[ing] appellate proliferation in criminal matters" ( King, 36 N.Y.2d at 63, 364 N.Y.S.2d 879, 324 N.E.2d 351 ) insofar as appellate practice at this stage cannot be said to intrude significantly upon a criminal action that may never be commenced. The order here, however, issued after the accusatory instrument was filed, plainly arose in a "criminal action" within the meaning of that term as prescribed by the CPL.2

We reject Robles's reliance on a line of Appellate Division authority that distinguishes between parties and nonparties to a criminal action, and permits an appeal by a nonparty from an order resolving the nonparty's motion to quash a subpoena issued even after the commencement of a criminal action (see e.g. People v. Laughing, 113 A.D.3d 956, 957 n 2, 979 N.Y.S.2d 416 [3d Dept. 2014] ; People v. Bagley, 279 A.D.2d 426, 426, 720 N.Y.S.2d 454 [1st Dept. 2001] ; People v. Johnson, 103 A.D.2d 754, 755, 477 N.Y.S.2d 225 [2d Dept. 1984] ; People v. Marin, 86 A.D.2d 40, 42–43, 448 N.Y.S.2d 748 [2d Dept. 1982] ). These decisions are grounded in the rationale that, whereas a defendant can challenge the order on appeal from a judgment of conviction, an aggrieved nonparty "would irrevocably [be] preclude[d] ... from any opportunity to vindicate its position before an appellate body, regarding the serious issues raised in its moving papers" ( Marin, 86 A.D.2d at 42, 448 N.Y.S.2d 748 ). We do not discount this concern. However, despite repeated recommendations from the Advisory Committee on Criminal Law and Procedure that the CPL be amended to allow for an expedited appellate process for non-parties aggrieved by the denial of a motion to quash a subpoena in a criminal action, the legislature has not adopted that approach (see Reports of the Advisory Committee, January 20032008).3 Unless the legislature acts, CPL article 450 does not authorize a nonparty's appeal under these circumstances. In the absence of statutory authorization, an order resolving a nonparty's motion to quash a subpoena issued after the filing of the accusatory instrument in a criminal proceeding—contrasted with an order issued before the criminal action begins—is simply not appealable (see Santos, 64 N.Y.2d at 704, 485 N.Y.S.2d 524, 474 N.E.2d 1192 ).4

We are not unsympathetic to Robles's policy-driven arguments, echoed by our dissenting colleagues, concerning how best to balance the interests of the expedient resolution of criminal actions against the right of a nonparty in a pending criminal action to seek appellate review of an order denying a motion to quash a subpoena when the State's longstanding interests in protecting the newsgathering role of reporters (see O'Neill v. Oakgrove Constr., 71 N.Y.2d 521, 528 N.Y.S.2d 1, 523 N.E.2d 277 [1988] ), or other weighty third-party concerns, are implicated. Nor do we minimize the significance of the rights provided by article I, § 8 of the New York State Constitution. However, the right to appeal is not premised on the nature of the challenge waged, and this Court cannot "create a right to appeal out of thin air" ( Laing, 79 N.Y.2d at 172, 581 N.Y.S.2d 149, 589 N.E.2d 372 ).5 "That the [l]egislature has not authorized an appeal from an order in a criminal proceeding is conclusive; and any arguments for a change in the practice ... must be addressed to [that forum]" ( Facebook, 29 N.Y.3d at 251, 78 N.E.3d 141 [internal quotation omitted] ).6

RIVERA, J. (dissenting):

The threshold question presented is whether an order granting or denying a nonparty's motion to quash a subpoena issued in the course of a criminal proceeding is directly appealable. The Appellate Division has uniformly exercised jurisdiction in these cases for decades, treating these orders as final and appealable. Our Court has similarly held that an order denying a motion to quash a subpoena issued in furtherance of a criminal investigation by a grand jury is final and appealable "as an order in a special proceeding on the civil side of a court vested with civil jurisdiction" ( Matter of Abrams [John Anonymous], 62 N.Y.2d 183, 192, 476 N.Y.S.2d 494, 465 N.E.2d 1 [1984] ). That same reasoning applies here—first, because the order is final as to the nonparty who cannot seek redress in a post-trial criminal appeal, and, second, because the order does not implicate the underlying policy to avoid delay associated with interlocutory criminal appeals any more than does an appeal from the denial of a motion to quash a grand jury subpoena. Here, the argument in support of direct appealability carries even greater force because the nonparty is a journalist who has invoked a strong countervailing policy in her favor, one applicable regardless of the civil or criminal nature of the action and manifested in the New York Civil Rights Law's protection against disclosure of news sources.

On the merits, the People have failed to establish that the unpublished materials obtained by the reporter in...

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