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In re Grand Jury Subpoena No. 2573/85

111 A.D.2d 891 Court N.Y. App. Div. Decision date 1985-06-21 English

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p. 891
(June 21, 1985)
In the Matter of Grand Jury Subpoena No. 2573/85. Summers G., by William Lupo, Guardian ad Litem, Appellant; Elizabeth Holtzman, Respondent.

Appeal from an order of the Supreme Court, Kings County (Meyerson, J.), dated May 20, 1985, which denied an application to quash a Grand Jury subpoena.

Order affirmed, without costs or disbursements.

At the outset, we note that while an order determining an application to quash a subpoena relating to a criminal proceeding which was issued after the commencement of the criminal action (CPL 1.20 [17]) is not directly appealable by the immediate parties to that criminal action (People v Santos, 64 NY2d 702 ; cf. Matter of Morgenthau v Hopes, 55 AD2d 255 , lv dismissed 41 NY2d 1007 ), where, as here, the individual seeking appellate review of the order is not a party to the underlying criminal action, the order is final and appealable as to that individual (People v Johnson, 103 AD2d 754 ; People v Marin, 86 AD2d 40 ).

p. 892
We conclude that the appellant’s application to quash the Grand Jury subpoena based on the existence of an alleged parent/child privilege is premature. A witness cannot raise the issue of privilege until he or she actually appears and is questioned (Matter of Cunningham v Nadjari, 39 NY2d 314 ; Matter of A. & M., 61 AD2d 425 ). Accordingly, the application to quash the Grand Jury subpoena was properly denied. We note that a guardian ad litem should be appointed to represent the child in any further proceedings. Brown, J. P., Rubin, Lawrence and Kunzeman, JJ., concur.

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