Santangello v. People

Decision Date12 February 1976
Citation381 N.Y.S.2d 472,344 N.E.2d 404,38 N.Y.2d 536
Parties, 344 N.E.2d 404 In the Matter of Michael L. SANTANGELLO, Respondent, v. The PEOPLE of the State of New York, Appellant.
CourtNew York Court of Appeals Court of Appeals

Maurice H. Nadjari, Deputy Atty. Gen., Sp. State Prosecutor (Bennett L. Gershman, Allen G. Swan and Joel Cohen, New York City, of counsel), for appellant.

Barry Ivan Slotnick, New York City, for respondent.

GABRIELLI, Judge.

Petitioner, a witness before the Grand Jury, successfully appealed to the Appellate Division from an order of the Extraordinary Special and Trial Term of the Supreme Court denying his application, which was based on and made pursuant to the procedures outlined in People v. Einhorn, 35 N.Y.2d 948, 365 N.Y.S.2d 171, 324 N.E.2d 551, to compel the Special State Prosecutor to inquire of Federal authorities as to whether they had conducted electronic surveillance of him; and, of course, he also sought an order directing the prosecutor to state whether the questions asked him before the Grand Jury were the product of any such surveillance. The Appellate Division, two Justices dissenting, reversed and directed that the inquiry be made.

The threshold and critical issue posed is whether a right of review lies from an order relating to such an inquiry. The right to appeal in criminal cases is determined exclusively by statute, the underlying policy being to limit appellate proliferation (Matter of State of New York v. King, 36 N.Y.2d 59, 63, 364 N.Y.S.2d 879, 882, 324 N.E.2d 351, 354; People v. Zerillo, 200 N.Y. 443, 446, 93 N.E. 1108, 1109). Petitioner can point to no statute, for indeed there is none, authorizing his appeal to the Appellate Division and, hence, that court was wholly without authority to pass upon the merits of his application; and it follows perforce, that this court is likewise proscribed.

In answer to his argument that this proceeding is not governed by the Criminal Procedure Law, reference need only be made to two provisions thereof. CPL 1.10 provides that 'All criminal * * * proceedings * * * and all appeals' are exclusively governed by the Criminal Procedure Law; and CPL 1.20 (subd. 18) defines a 'Criminal proceeding' as 'any proceeding which * * * (b) occurs in a criminal court and is related to a * * * criminal action * * * or * * * involves a criminal investigation'. Certainly, it cannot be seriously contended that the Extraordinary Special and Trial Term of the Supreme Court is not a criminal court (see CPL 1.20, subd. 19; CPL 10.10, subds. 1, 2) 1 nor that the instant proceeding before the Grand Jury do not involve a criminal investigation (People v. Doe, 247 App.Div. 324, 326, 286 N.Y.S. 343, 345, affd. 272 N.Y. 473, 3 N.E.2d 875; cf. Blair v. United States, 250 U.S. 273, 282, 39 S.Ct. 468, 63 L.Ed. 979). Hence, in the absence of any such authority (see CPL art. 450), the order of the Extraordinary Term is unappealable and the appeal taken therefrom should have been dismissed.

Cases holding the denial of an application to quash a subpoena to be a final and appealable order (Matter of Boikess v. Aspland, 24 N.Y.2d 136, 138--139, 299 N.Y.S.2d 163, 165--166, 247 N.E.2d 135, 136--137; Matter of Inter-City Assoc. (People), 308 N.Y. 1044, 127 N.E.2d 872; cf. Matter of Ryan (Hogan), 306 N.Y. 11, 114 N.E.2d 183; People v. Doe, 247 App.Div. 324, 286 N.Y.S. 343, affd. 272 N.Y. 473, 3 N.E.2d 875, Supra) are distinguishable. A motion to quash is limited in scope, challenging only the validity of the subpoena or the jurisdiction of the issuing authority (Matter of Herlands v. Surpless, 282 N.Y. 647, 26 N.E.2d 800; see, e.g., Matter of La Belle Creole Int., S.A. v. Attorney-General of State of N. y., 10 N.Y.2d 192--196, 219 N.Y.S.2d 1--4, 176 N.E.2d 705--707; see Siegel, Practice Commentaries, McKinney's Cons. Law of N.Y., Book 7B, CPLR 2304:1, p. 219); and should be made prior to the return date, 2 thereby requiring such timeliness that substantial delay in the proceedings is unlikely (Siegel, Op. cit., CPLR 2304:3, p. 219; cf. Fed.Rules Civ.Pro. rule 45, subd. (b); 7 Carmody-Wait 2d, N.Y. Practice, § 54:40, p. 764). Moreover, where granted, it results in completely voiding the process (cf. Matter of Herlands v. Surpless, 282 N.Y. 647, 26 N.E.2d 800, Supra; see, also, Matter of Sun-Ray Cloak Co., 256 App.Div. 620, 11 N.Y.S.2d 202), thus saving the needless expenditure of litigation effort. By way of contrast, petitioner's application raises neither jurisdiction nor process objections, possesses immense potential for delaying the Grand Jury investigation, 3 and cannot in any way finally dispose of any portion of the investigation.

That the Legislature has not authorized an appeal from an order in a criminal proceeding is conclusive; and 'any arguments for a change in the practice, however persuasive, must be addressed to the legislature' (Cohen and Karger, Powers the New York Court of Appeals, § 188, p. 707; see People v. Gersewitz, 294 N.Y. 163, 61 N.E.2d 427).

Finally, appealability as of right is not the desirable norm in cases such as this (see Matter of Nigrone v. Murtagh, 36 N.Y.2d 421, 426, 369 N.Y.S.2d 75, 79, 330 N.E.2d 45, 47; Matter of State of New York v. King, 36 N.Y.2d 59, 63--64, 364 N.Y.S.2d 879, 882--883, 324 N.E.2d 351, 354--355; Supra) and, in any event, it appears that appellate review could be obtained of any contempt proceeding arising out of petitioner's refusal to answer...

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