Thе above-named defendant, a bookkeeper for the Mill Basin Asphalt Company and two other domestic corporations, was indicted by the November grand jury of Bangs county on two counts, each chаrging forgery in the third degree, in that he willfully made false entries in certain books of account belonging to the said corporations in order to defraud the New York State Insurance Fund. The forged books and other papers which were in evidence before the grand jury were received by the district attorney from Bernard Botein, as general counsel for the Industrial Commissioner, and are now in possession of the said district attorney.
It seems that some time in August, 1939, Bernard Botein, as general counsel to the Industrial Commissioner, in the course of his official duties, obtained possession by a subpoena duces tecum, as it is claimed, of many of the books оf account, papers, canceled vouchers and other documents belonging to the aforesaid corporations and that an examination of some of these various documents by his accountants disclosed what is alleged to constitute the two
It is not claimed that the books and papers herein sought by the district attorney are those which constitutе the corpus of the crime charged in the indictment now in his possession. His retention thereof will not be disturbed. The documents claimed have not been physically in the possession of the district attorney, were nоt submitted to the grand jury for their deliberation when indicting the defendant, were never before this court, and are in the possession of the general counsel to the Insurance Fund, The district attorney wants these documents because, he opines, they contain evidence of the crime charged against the defendant.
Whether the documents in question originally came into Mr. Botein’s possession by due process of law оr whether they were obtained by him from the corporations in violation of law so as to vitiate now his further retention thereof and to entitle the corporations to their immediate return, is not within the purview of this mоtion. As between Mr. Botein, as general counsel to the State Insurance Fund, and the corporations herein involved, the right of possession to the books and other documents in question was adjudicated by Mr. Justicе Steuer, and we are, therefore, bound by his order. The Supreme Court, having directed that the corporations be immediately repossessed of said documents, any further retention thereof by the general сounsel must be deemed illegal.
Be that as it may, the fact still remains that this issue of comity was strongly though unsuccessfully urged by thе general counsel in his opposition to the motion of the corporations decided in the Supreme Court. The decision of Mr. Justice Stetter so indicates. If the general counsel is a duly accredited agent of the district attorney, as claimed, it would seem to be an idle gesture for this court to direct a willing agent to do something which he is anxious to perform. But, if the agent is estopped or restrained in its performance because of an order of the Supreme Court, what relief can this court afford either of them while that order is extant?
The district attorney, in his memorandum of law submitted on this motion, reminds us that we should not be concerned with the niceties of distinction but rather with the fundamental problem which entails law enforcement. “ The courts are loathe,” he adds, “ to interfere with the power of the prosecutor and lend а helping and co-operative hand whenever that power is threatened.”
We are not unmindful of the duty imposed by public policy to co-operate with all public officials intrusted with the administration of thе criminal law rather than to deter these agencies in the exercise of their official functions whenever the use of our discretion alone is the determining factor involved. But we also recall what Judge Cardozo stated in the case of People ex rel. Lemon v. Supreme Court (
A seizure of propеrty to be used by the district attorney as evidence in a criminal prosecution is justifiable if effected from the person of the accused at the time of his arrest or if such seizure is incidental to a legal arrest. (People v. Defore,
But documentary evidence of crime held by parties other than a defendant and whose seizure is nоt incidental to lawful arrest or authorized by section 792 of the Code of Criminal Procedure, is obtainable by the district attorney through the agency of the subpoena duces tecum. (Code Crim. Proc. § 607 et seq.) The statute accentuates the efficаcy of this agency by providing that disobedience to its mandate may be punished as a criminal contempt. True the courts have inherent power, not infrequently exercised, to order the return of propеrty illegally seized or illegally retained by prosecuting officials, but we know of no authority,
Motion denied. Submit order accordingly on two days’ notice of settlement.