39 A.D.2d 869 | N.Y. App. Div. | 1972
By the subpoena duces tecum the District Attorney of New York County sought “ All Tape Recordings, Program Logs and all Material Broadcast with relation to the Riots at the Manhattan House of Detention for Men (Tombs) during the period between October 2, 1970 to October 5, 1970.” On appeal, the District Attorney conceded that the subpoena was too broad, and that all that was actually sought were the tapes of voices of prisoners presently under indictment for crimes allegedly committed during the riots, which were recorded during simultaneous live broadcasts. The District Attorney maintained nevertheless, that while the subpoena duces tecum was overbroad, such was’ not a fatal defect, and it was urged that the court may order an appropriate modification. With relation to the order holding petitioner in contempt, it was argued that the record contained sufficient evidence showing that petitioners well knew what was actually sought, and would not have complied with the subpoena in any event. But, with commendable candor it was acknowledged that other portions of the record indicated a broader construction of the subpoena. Before we consider the facts which were developed upon the oral argument, we note, that in view of the concession (with which we agree), that the subpoena was overbroad, and in view of the fact that the record is unclear as to whether appellants were aware of the limited scope of the subpoena, an adjudication of contempt was improper.
In the first-entitled action: Order, Supreme Court, Hew York County, entered on March 2, 1972, denying appellants’ motion to quash a subpoena duces tecum, unanimously reversed, on the law, the facts, and in the exercise of discretion, and the motion is granted, without costs and without disbursements to either party.
In the second-entitled action: Order, Supreme Court, Hew York County, entered on March 3, 1972, adjudging Edwin A. Goodman and WBAI-FM in contempt, and committing petitioner Goodman to a jail term of 30 days, and directing that petitioner WBAI-FM pay a fine of $250, unanimously reversed, on the law, the facts, and in the exercise of discretion, and the mandate is annulled, without costs and without disbursements to either party.
In the third-entitled action: Petition, pursuant to CPLR article 78, unanimously dismissed as academic, without costs and without disbursements, the matter having been determined on appeals decided simultaneously herewith. Concur—Stevens, P. J., Markewich, Murphy and Tilzer, JJ.