Virag v. Hynes

CourtNew York Court of Appeals
Citation54 N.Y.2d 437,446 N.Y.S.2d 196,430 N.E.2d 1249
Parties, 430 N.E.2d 1249 Bertram VIRAG et al., Doing Business as Echo Adult Home, Respondents, v. Charles J. HYNES, as Deputy Attorney-General of the State of New York, Appellant.
Decision Date17 December 1981

Page 196

446 N.Y.S.2d 196
54 N.Y.2d 437, 430 N.E.2d 1249
Bertram VIRAG et al., Doing Business as Echo Adult Home, Respondents,
Charles J. HYNES, as Deputy Attorney-General of the State of
New York, Appellant.
Court of Appeals of New York.
Dec. 17, 1981.

Page 197

Edward J. Kuriansky, Deputy Atty. Gen. (Arthur G. Weinstein and Jonathan B. Rosenbloom, Sp. Asst. Attys. Gen., of counsel), for appellant.

Charles T. Matthews, Huntington, for respondents.


JASEN, Judge.

The question presented by this appeal is whether, in response to a motion to quash a Grand Jury subpoena duces tecum on relevancy grounds, a prosecutor is obligated to come forth with a factual demonstration that the items sought by the subpoena have some relation to the subject matter of the Grand Jury's investigation.

On July 10, 1980, petitioners were served with separate subpoenas duces tecum requiring them to appear before a Nassau County Grand Jury and produce certain books, records and documents pertaining to the Echo Adult Home of Laurel Hollow, New York. The Echo Adult Home is a private proprietary home for adults owned and operated by petitioners. According to the riders attached to these subpoenas, petitioners, in effect, were required to produce all the business records of the home for the period January 1, 1975 through June 30, 1980. 1

On August 18, 1980, petitioners moved by order to show cause to quash the subpoenas on the ground that the materials sought were not relevant to the matter being investigated by the Grand Jury. Specifically, petitioners alleged that the Deputy Attorney-General had been investigating a complaint arising out of the death of a 92-year-old former resident of the home and that this incident did not justify a "sweeping investigation of the financial and operating conditions at the Echo Adult Home." In addition, petitioners alleged that production of all the records requested by the subpoenas would make it impossible to operate the home.

In response to petitioners' motion to quash the Grand Jury subpoenas duces tecum, a Special Assistant Attorney-General submitted a sworn statement in which she affirmed that the investigation of the Echo Adult Home was not precipitated by the death of the elderly resident. The Special Assistant, however, did not disclose the exact nature of the Grand Jury's investigation. Rather, she alluded to a broader inquest into determining whether "crimes had been committed in the operation of the Echo Adult Home" and stated that the business records of the home were "clearly related to the subject of inquiry." Relying on the presumption of validity accorded to Grand Jury subpoenas, the Special Assistant asserted that it was petitioners' burden to establish that the records were not relevant to the Grand Jury's investigation, and that petitioners had failed to meet this burden. Finally, in answering petitioners' contention that delivery of all the subpoenaed evidence would impair the operation of the home, the Special Assistant stated that the Deputy Attorney-General's office was willing to abide by whatever conditions the court would set in terms of retention of the business records of the home.

County Court granted petitioners' application to quash the subpoenas, stating that "the Deputy Attorney General did not deem it necessary to inform the court of the nature of his investigation, the question of relevancy must be determined in favor of petitioners." While noting that there need not be probable cause in order for a Grand Jury to conduct an investigation, County Court was of the view that "there must be some factual showing that the subpoenaed

Page 198

documents relate to some criminal activity" and that the "Special Prosecutor has totally failed to establish any such factual showing."

On appeal, a unanimous Appellate Division, 80 A.D.2d 912, 437 N.Y.S.2d 396 affirmed. Although agreeing with the Deputy Attorney-General that he need not make public disclosure of the Grand Jury's investigation, the court below held that he is "required, when challenged, to demonstrate relevancy to the court". According to the Appellate Division, the Deputy Attorney-General "could have made an in camera disclosure of the subpoena's relevancy to the investigation, and upon his failure to do so, the subpoena was properly quashed."

This court granted leave to appeal in order to review the propriety of imposing an affirmative burden on a prosecutor to establish the relevancy of the materials sought by a Grand Jury subpoena when confronted by a motion to quash. We conclude that there should be a reversal.

At the outset, it should be noted that there is a fundamental distinction between a nonjudicial, "office" subpoena and a Grand Jury subpoena. An office subpoena is executed and the witness examined pursuant to it without direct judicial supervision. Furthermore, unlike a witness called before the Grand Jury, a party served with an office subpoena does not have the right to request to be taken immediately before a Judge for prompt resolution of any dispute concerning the scope and propriety of the examination being conducted. Indeed, in the absence of the more flexible contempt procedure available to a Grand Jury witness, a party served with an office subpoena, by seeking judicial resolution of the issues which may arise during questioning by the Deputy Attorney-General, runs the risk of criminal prosecution. (See Matter of Sussman v. New York State Organized Crime Task Force, 39 N.Y.2d 227, 231-232, 383 N.Y.S.2d 276, 347 N.E.2d 638.)

Thus, an office subpoena is subject to challenge by a motion to quash on the grounds that the materials sought are irrelevant, and, when so challenged, it is incumbent upon the issuer to come forward with a "factual basis" which establishes the relevancy of the items sought to the subject matter of the investigation before a witness will be compelled to comply with the subpoena's mandate. (Myerson v. Lentini Bros. Moving & Stor. Co., 33 N.Y.2d 250, 351 N.Y.S.2d 687, 306 N.E.2d 804; Matter of A'Hearn v. Committee on Unlawful Practice of Law of N. Y. County Lawyers' Assn., 23 N.Y.2d 916, 298 N.Y.S.2d 315, 246 N.E.2d 166, cert. den. 395 U.S. 959, 89 S.Ct. 2099,...

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