180 Misc. 844 | N.Y. Sup. Ct. | 1943
Upon the return of orders to show cause the applicants, Frank C. Moore, Comptroller of the State of New York, Eollin Browne, Commissioner of Taxation and Finance of the State of New York, and Ulysses H. Boyden, recently retired Secretary to the Clerk of the Assembly of the State of New York, have moved this court for an order vacating and quashing certain subpoenas duces tecum issúed and served on
The petitioners not only attack the subpoenas involved, but they also question the composition of the grand jury before which they are returnable.
The allegations contained in petitioners’ aEdavits with relation to the composition of the grand jury contain statements of serious import, and which under other circumstances might impel the court to further investigate this phase of the proceedings.
However, the attack upon the composition of the grand jury cannot be the subject of legitimate inquiry on the part of this court because of the following reasons: First, such an attack upon the legality of the grand jury should be made to the court before which it was impaneled, second, it is wholly collateral, and, third, the petitioners are merely proposed witnesses, and a witness is not entitled to challenge the authority of a grand jury provided it has a de facto organization and existence. (People v. “ John Doe ” [Byk], 247 App. Div. 324, affd. 272 N. Y. 473.)
I think it must be held that the grand jury in question has at least a de facto organization and existence.
The attack made directly as to the form and contents of the subpoenas duces tecum issued to the Comptroller and Commissioner of Taxation and Finance presents a different question. The great latitude attempted to be covered may be better seen tha.n described in the following copy of the subpoena duces tecum served upon the Comptroller:
“• Subpoena Duces Tecum — Grand Jury.
“ In the Name oe the People of the State of New York: “ To Hon. Frank C. Moore, Comptroller, State of New York.
“ You are commanded to appear before the Grand Jury of the County of Albany, at the Court House, in the City of Albany, in the County of Albany, on the 19th day of October, 1.943, at ten o’clock in the forenoon, as a witness in a criminal action prosecuted by the People of the - State of New York against John Doe and Others, charged with the crimes of larceny, bribery and corruption. And you are required also to bring with you the following:
“ All books or records or a transcript thereof showing the following:
“ Appropriations available for the expenses of the Legislative Branch of the Government of the State of New York, on
“ Dated at the City of Albany, the 13th day of October, 1943.
John T. Delaney
District Attorney Albany County.”
It is said that the documents thus called for Avould number at least 75,000 separate items and cover a period of eight years. The SAveeping trend of such a subpoena tends to indicate more of an investigation of the fiscal affairs of the Legislature for the period mentioned rather than a criminal inquiry into the unlawful expenditure of public moneys.
An investigation into the acts of the Legislature as a body cannot be sustained by any judicial precedent. The Legislature, as a branch of the government, cannot commit a crime. It is only the Avillful misconduct of a member of the Legislature, as a public official, that is subject to a criminal inquiry. The Legislature, as a body, is a distinct branch of the government, as Avell as the executive and judicial branches, and it cannot be held to answer in any criminal proceeding for the discharge of its duties as a branch of the government. (People ex rel. Burby v. Howland, 155 N. Y. 270, 282; People v. Perretta, 253 N. Y. 305, 313; Matter of LaGuardia v. Smith, 288 N. Y. 1, dissenting opinion by Lehman, Ch. J., p. 15.)
When the validity of a subpoena duces tecum is challenged it is incumbent upon a district attorney to convince the court that the evidence required to be produced thereunder is relevant to the inquiry. (Matter of Spector v. Allen, 281 N. Y. 251, 257, 258.)
The difficulty with the subpoenas duces tecum under attack is that they are so broad and comprehensive and cover such a period of time that it is impossible for the court to tell whether all the matters required to be produced by them have any relevancy to the alleged crimes which the grand jury proposes to investigate.
A general investigation of the Legislature cannot be conducted under the guise of such subpoenas duces tecum. The information, which the District Attorney says that he possesses, must be sufficient for him to specify with more particularity to the alleged crimes, and in default of any valid reason to the contrary he should be compelled to do so.
The subpoenas duces tecum issued to the Comptroller and Commissioner of Taxation and Finance should be quashed as being too broad and oppressive, and as including matters not subject to the inquiry proposed. The motion to quash the subpoena issued to Boyden is denied, on the ground that it is a simple subpoena, regular in form, and no valid reason has been shown why it should be quashed. It cannot be anticipated that he will be required to give testimony not relevant to the proposed inquiry.
Submit order in accordance with this memorandum.