Cunningham v. Nadjari — 39 N.Y.2d 314

Majority

p. 314

In the Matter of Patrick J. Cunningham, Appellant, v Maurice H. Nadjari, as Deputy Attorney-General of the State of New York, Respondent. In the Matter of Jerry L. Crispino, Appellant, v Maurice H. Nadjari, as Deputy Attorney-General of the State of New York, Respondent.

p. 315

In the Matter of Gerald V. Esposito, Appellant, v Maurice H. Nadjari, as Deputy Attorney-General of the State of New York, Respondent. In the Matter of Paul Victor, Appellant, v Maurice H. Nadjari, as Deputy Attorney-General of the State of New York, Respondent.

Argued March 30, 1976;

Decided April 1, 1976

Gregory J. Perrin for Patrick J. Cunningham, Hal Meyerson for Jerry L. Crispino and Max Wild for Gerald V. Esposito, appellants.

The issues raised by petitioners were not premature. (De Veau v Braisted, 5 AD2d 603 , 5 NY2d 236 , 363 US 144 ; Dombrowski v Pfister, 380 US 479 ; Bunis v Conway, 17 AD2d 207 ; Zwickler v Koota, 389 US 241 .)

p. 316

Charles Haydon for Paul Victor, appellant.

I. The immunity enjoyed by a county prosecutor should be granted by the People. II. The matter should be remitted to the court below for consideration. (Herzfeld v Laventhol, Krekstein, Horwath & Horwath, 378 F Supp 112 ; Matter of Rosenbluth v Finklestein, 300 NY 402 ; Public Administrator of County of N. Y. v Royal Bank of Canada, 19 NY2d 127 .)

Maurice H. Nadjari, Deputy Attorney-General, Special State Prosecutor, pro se (Bennett L. Gershman, Allen G. Swan and Walter F. Bottger of counsel), for Maurice H. Nadjari, respondent.

I. The orders denying the motions to vacate Grand Jury subpoenas issued during a criminal investigation are not appealable. (Matter of State of New York v King, 36 NY2d 59 ; People v Marra, 13 NY2d 18 ; Matter of Ryan [Hogan], 306 NY 11 ; People v Gersewitz, 294 NY 163 , 326 US 687 ; People v Reed, 276 NY 5 ; People v Zerillo, 200 NY 443 ; Matter of Turecamo Contr. Co., 260 App Div 253 ; People v Doe [Kunstler] 40 AD2d 627 , 31 NY2d 643 ; Matter of Le Fever v Lefkowitz, 6 AD2d 998 ; Matter of Ross & Suchoff v Nadjari, 48 AD2d 712 .) II. The subpoenas are valid and were properly issued. (People v Leonti, 18 NY2d 384 , 389 US 1007 ; People v Paulin, 25 NY2d 445 ; United States v Calandra, 414 US 338 ; United States v Dionisio, 410 US 1 ; Bransburg v Hayes, 408 US 665 ; Matter of Edge Ho Holding Corp., 256 NY 374 ; People v Doe, 247 App Div 324 , 272 NY 473 ; Matter of Koota v Columbo, 17 NY2d 147 ; Matter of Queens Republican County Committee, 49 AD2d 956 ; Matter of Ross & Suchoff v Nadjari, 48 AD2d 712 .) III. The executive order is constitutional. (Matter of Cranford Material Corp., 174 Misc 154 ; Matter of Di Brizzi [Proskauer] 303 NY 206 ; People v Tru-Sport Pub. Co., 160 Misc 628 ; People v Kramer, 33 Misc 209 ; Ward Baking Co. v Western Union Tel. Co., 205 App Div 723 ; Matter of Bennett v Merritt, 173 Misc 355 , 261 App Div 824 , affd sub nom. People ex rel. Bennett v Merritt, 286 NY 647 ; People v Brennan, 69 Misc 548 ; People v Dorsey, 176 Misc 932 .) IV. The submission by the Special Prosecutor of the in camera affidavit was proper. (People v Einhorn, 35 NY2d 948 ; People v Goggins, 34 NY2d 163 ; Matter of Persico, 491 F2d 1156 , cert den sub nom. Persico v United States, 419 US 924 ; People v Rosario, 9 NY2d 286 .) V. The court was not required to consolidate the instant proceeding with any other actions.

Order of the Appellate Division affirmed, without costs.

p. 317

Preliminary objection to the direct appealability of the orders is raised by respondents. It is true that the direct appealability of orders granting or denying motions to quash subpoenas in criminal investigations and actions has a peculiar analytical basis. However, since 1936 in a series of cases beginning with People v Doe ( 272 NY 473 , affg 247 App Div 324 ), this court has allowed the direct appealability of orders in such proceedings. It was reasoned that they were final orders in special proceedings on the civil side of a court vested with civil jurisdiction. The court did so as recently as in Matter of Boikess v Aspland ( 24 NY2d 136 , 138-139; see Matter of Santangello v People, 38 NY2d 536 , 539, discussing the rule as extant). Since the jurisdiction of an Extraordinary Term is coextensive with that of an ordinary term of Supreme Court possessing both criminal and civil jurisdiction, the same rule obtains in the instant case (see Matter of Reynolds v Cropsey, 241 NY 389 , 395-396; Executive Order No. 56, 9 NYCRR 1.56). Consequently, on a basis of stare decisis these precedents represent a formidable line of authority, however asymmetrical may appear to be the support for the rule they express and apply. Moreover, there is no suggestion in the legislative history of the Criminal Procedure Law that there was any intention to override these precedents. The arguments based on CPL depend exclusively on the definitional arrangement in that statute, a definitional arrangement more precise, although not significantly different from that in the predecessor statute, the Code of Criminal Procedure, for the purpose of this issue (compare, e.g., CPL 1.20, subd 18 with Code Crim Pro, §§ 5, 515, 962). Consequently, despite respondent’s persuasive practical arguments addressed to the dilatory purpose that the rule of the Doe case (supra) serves those reluctant to testify in legitimate criminal investigations, the court is not now ready to overrule precedents resting upon a history of 40 years.

Turning to the merits of the appeal, the several issues raised by appellants are largely premature, as the Appellate Division concluded, so long as there is a valid Grand Jury in existence and valid subpoenas issued pursuant to orders of the Governor creating the Extraordinary Term of the Supreme Court and making requisitions on the Attorney-General (see Executive Order Nos. 56, 62, 9 NYCRR 1.56, 1.62). Such validity, the court concludes, is present because of the executive findings and acts which are largely beyond review in the

p. 318

courts, insofar as any of the multiple grounds urged by appellants are concerned (see People ex rel. Saranac Land & Timber Co. v Extraordinary Special & Trial Term, Supreme Ct., 220 NY 487 , 491 [Cardozo, J.]; People v Kramer, 33 Misc 209 , 219).

With respect to the particular subpoenas and the persons to whom they are addressed, the record, conclusory as it may be, described a relevant scope of inquiry and some basis for inquisition of and through the witnesses subpoenaed. That appellants make a plausible argument that the purposes of the subpoenas are to harass, embarrass, and manipulate related public events and media publicity does not justify suppression of the subpoenas as a matter of law at this time. Otherwise, legitimate investigations could be easily frustrated by a counterattack of like manipulation with like purposes but directed at the investigators.

Nor is it, as a matter of law on this record, cognizable infirmity in the procedure followed that the sole purpose of the subpoenas, other than the one addressed to Mr. Victor, may be to exact an anticipated and wished-for refusal to waive immunity and then seek to cause removal from office in a political party or in a government position. The privilege against self incrimination does not embrace a privilege against being required to claim the privilege. Moreover, no one, not even the principal actors can know, whatever they may now intend, what they indeed will do when the occasion for action presents itself.

For all of these reasons the order appealed from should be affirmed. As a caveat, none of this is to say that the proceedings which may ensue will not be entitled to a re-evaluation by the court or courts of jurisdiction for abuse of process if that should turn out to be the case, for unfairness in the handling of the witnesses either by way of harassment, interference with the right to counsel, or abuse of confidentiality of Grand Jury proceedings in violation of the Code of Professional Responsibility and the Penal Law, or for abuse of the Grand Jury’s power to investigate and indict for criminal acts on competent evidence, as required by law. These subpoenas are valid inceptions to a genuine investigation and not a warrant for official oppression.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones,

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Wachtler, Fuchsberg and Cooke concur in Per Curiam opinion.

Order affirmed.

Cases cited

De Veau v. Braisted 5 AD2d 603 N.Y. App. Div. 1958-05-12 p. 315
De Veau v. Braisted 5 NY2d 236 N.Y. 1959-02-26 p. 315
De Veau v. Braisted 363 US 144 SCOTUS 1960-06-06 p. 315
Dombrowski v. Pfister 380 US 479 SCOTUS 1965-04-26 p. 315
Bunis v. Conway 17 AD2d 207 N.Y. App. Div. 1962-11-13 p. 315
Zwickler v. Koota 389 US 241 SCOTUS 1967-12-05 p. 315
Rosenbluth v. Finkelstein 300 NY 402 N.Y. 1950-03-03 p. 316
Public Administrator v. Royal Bank of Canada 19 NY2d 127 N.Y. 1967-02-16 p. 316
State v. King 36 NY2d 59 N.Y. 1975-01-17 p. 316
People v. Marra 13 NY2d 18 N.Y. 1963-06-06 p. 316
In re Ryan 306 NY 11 N.Y. 1953-07-14 p. 316
People v. Gersewitz 294 NY 163 N.Y. 1945-04-12 p. 316
Feldman v. United States 326 US 687 SCOTUS 1945-10-15 p. 316
People v. Reed 276 NY 5 N.Y. 1937-11-23 p. 316
People v. Leonti 18 NY2d 384 N.Y. 1966-11-22 p. 316
People v. Paulin 25 NY2d 445 N.Y. 1969-12-04 p. 316
United States v. Calandra 414 US 338 SCOTUS 1974-01-08 p. 316
United States v. Dionisio 410 US 1 SCOTUS 1973-01-22 p. 316
Branzburg v. Hayes 408 US 665 SCOTUS 1972-06-29 p. 316
In re Edge Ho Holding Corp. 256 NY 374 N.Y. 1931-06-02 p. 316
People v. Doe 272 NY 473 N.Y. 1936-07-08 p. 316, p. 317
Koota v. Colombo 17 NY2d 147 N.Y. 1966-03-24 p. 316
People v. Doe 49 AD2d 956 N.Y. App. Div. 1975-10-28 p. 316
In re Cranford Material Corp. 174 Misc 154 N.Y. Sup. Ct. 1940-04-29 p. 316
In re Di Brizzi 303 NY 206 N.Y. 1951-07-11 p. 316
People v. Tru-Sport Publishing Co. 160 Misc 628 N.Y. Sup. Ct. 1936-01-03 p. 316
Bennett v. Merritt 173 Misc 355 N.Y. Sup. Ct. 1940-03-05 p. 316
People ex rel. Bennett v. Merritt 286 NY 647 N.Y. 1941-07-29 p. 316
People v. Dorsey 176 Misc 932 Queens Cty. Ct. 1941-08-04 p. 316
People v. Einhorn 35 NY2d 948 N.Y. 1974-12-20 p. 316
People v. Goggins 34 NY2d 163 N.Y. 1974-05-15 p. 316
Johnson v. Ohio 419 US 924 SCOTUS 1974-10-21 p. 316
People v. Rosario 9 NY2d 286 N.Y. 1961-03-23 p. 316
Boikess v. Aspland 24 NY2d 136 N.Y. 1969-02-27 at 138-139 p. 317
Santangello v. People 38 NY2d 536 N.Y. 1976-02-12 at 539 p. 317
Reynolds v. Cropsey 241 NY 389 N.Y. 1925-12-18 at 395-396 p. 317
People ex rel. Saranac Land & Timber Co. v. Extraordinary Special & Trial Term of the Supreme Court 220 NY 487 N.Y. 1917-04-25 at 491 p. 318