39 N.Y.2d 227 | NY | 1976
Lead Opinion
We hold that under subdivision 4 of section 70-a of the Executive Law there must be a showing that the matters under investigation involve multicounty "organized crime activities” to authorize the issuance of office subpoenas by the Deputy Attorney-General in charge of the Organized
The State-wide Organized Crime Task Force (OCTF) was established by the enactment of section 70-a of the Executive Law. The authority and powers of the Deputy Attorney-General in charge of OCTF are delineated in the various subdivisions of the section. We have expressed our views with reference to certain aspects of his prosecutorial authority under subdivision 7 in People v Rallo (supra). We now address issues raised on this appeal with respect to his investigatory authority under subdivision 4. Analytically, subdivision 7 relates to the discharge of the responsibilities of the Deputy Attorney-General in an area of judicial cognizance, i.e., Grand Jury proceedings. Subdivision 4, on the other hand, relates to the discharge of his responsibilities in an area of executive cognizance—criminal investigation.
It is under subdivision 4 that the Deputy Attorney-General in charge of OCTF derives his authority to conduct hearings, to administer oaths, to subpoena and examine witnesses, and to compel the production of other evidence. These powers are conferred in furtherance and implementation of his fundamental authority and responsibility "to conduct investigations * * * of organized crime activities carried on either between two or more counties of this state or between this state and another jurisdiction” (subd 1). Unlike subdivision 7, subdivision 4 does not contain independently described conditions precedent to the exercise of the powers enumerated therein: "4. The deputy attorney general in charge of the organized crime task force is empowered to conduct hearings at any place within the state, to administer oaths or affirmations, subpoena witnesses, compel their attendance, examine them under oath or affirmation, and require the production of any books, records, documents or other evidence he may deem relevant or material to an investigation. He may designate an assistant to exercise any such powers. Every witness attending before such deputy attorney general or his assistant shall be examined privately and the particulars of such examination shall not be made public. If a person subpoenaed to attend upon such inquiry fails to obey the command of a subpoena without reasonable cause, or if a person in attendance upon
At the threshold we observe that, aside from explicit statutory mandate, under general principles of law our court has traditionally required a subject matter identification, though not very demanding, as a precondition to the issuance of office subpoenas by the Attorney-General in the exercise of investigatory authority granted to his office by statute. Thus we have held that the Legislature may "not confer upon an executive an arbitrary and unbridled discretion as to the scope of his investigation. However broad the statutory language may be, the discretion must be exercised within bounds circumscribed by a reasonable relation to the subject-matter under investigation and to the public purpose to be achieved.” (Carlisle v Bennett; 268 NY 212, 217 [investigation of alleged security frauds under General Business Law, § 352]; also Myerson v Lentini Bros. Moving & Stor. Co., 33 NY2d 250, 256-260 [investigation under the Consumer Protection Law of New York City]; Matter of A’Hearn v Committee on Unlawful Practice of Law of N. Y. County Lawyers’ Assn., 23 NY2d 916, 918, cert den 395 US 959 [investigation as to unauthorized practice of law].) Thus, we do not attach the same significance to the absence in subdivision 4 of section 70-a of any explicit reference to the necessity for a showing of "organized crime activities” that we do to the corresponding absence in subdivision 7 authorizing appearance before the Grand Jury, with respect to which latter subject matter the underlying applicable law is quite different.
Nor is this historical distinction between office and Grand Jury investigations accidental. Consideration of the character of the powers to be exercised under subdivision 4 and the circumstances under which such powers will be exercised reveals the substantive differences. The authority to subpoena witnesses, the issue presented on this appeal, is illustrative. The subpoenas issued under subdivision 4 were nonjudicial, office subpoenas. The execution of such subpoenas and the examination of witnesses thereunder will not be under direct judicial supervision as, of course, would be the case with respect to subpoenas and testimony before the Grand Jury. The witnesses will not have the right to request promptly to
Thus, balancing the interests of the Deputy Attorney-General to have sufficiently broad authority to enable him effectively to conduct investigations into organized crime activities, on the one hand, and, on the other, the interests of witnesses in their legitimate protection, it is entirely understandable that the Deputy Attorney-General should be required to make a preliminary showing that the purpose of his investigation is indeed inquiry into "organized crime activities”, and more particularly organized crime activities which are "carried on either between two or more counties of this state or between this state and another jurisdiction”.
It suffices for the disposition of the present appeal to note that here there was no preliminary showing whatsoever, either of multicounty crime or of organized crime. On the applications to quash the office subpoenas the Deputy Attorney-General was offered an opportunity and invited to submit proof on these issues. He chose rather, for the purpose we assume of obtaining an adjudication as to the scope of his subdivision 4 powers, to stand on his legal assertion that he was not required under the statute to make any showing that he was in fact proceeding with respect to multicounty organized crime activities.
Under the terms of the order of Supreme Court, affirmed at
It is unquestioned that constitutional due process requires that a statute which defines a substantive crime must "give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden” (Papachristou v City of Jacksonville, 405 US 156, 162; Lanzetta v New Jersey, 306 US 451, 458; People v Berck, 32 NY2d 567, 569). Section 70-a, however, does not fall within the category of statutes to which this constitutional principle is applicable. It is not the argument advanced here that to the extent that subdivision 4 proscribes conduct or contains a definition of a substantive criminal offense (i.e., that it makes [a] failure "to obey the command of a subpoena without reasonable cause”, or [b] refusal "to be sworn or to be examined or to answer a question or to produce a book or paper, when ordered to do so by the officer conducting such inquiry”, a class A misdemeanor), there is any constitutionally impermissible vagueness. Nor is any misdemeanor issue before our court on the present appeal. The argument focuses rather on an asserted vagueness as to the authority for the issuance of the subpoena. That issue can be tested, as here, by an appropriate proceeding to quash the subpoena, or in resisting a proceeding under CPLR 2308 (subd [b]) to compel compliance with the subpoena. Thus, a target or a witness may avoid being placed in jeopardy and obliged to dishonor an OCTF office subpoena at his peril.
If after investigation by OCTF a presentment is made to a Grand Jury such presentment and any subsequent charges will be concerned with specified substantive crimes each of which may be tested under the constitutional void-for-vagueness test. The concept of "organized crime activities” will then be irrelevant.
The order of the Appellate Division should be affirmed.
Prior to the issuance of the office subpoenas here, at the request of the District Attorney and with the approval of the Governor, a Grand Jury had been impanelled to investigate alleged fixing of horse races at the Monticello Raceway. It was incidental to the presentment of testimony before that Grand Jury that there came private disclosure to OCTF of purported instances of larceny, coercion, extortion and other crimes involving persons at Monticello Raceway. Such disclosure in turn led to
Dissenting Opinion
In my view, the five nonjudicial subpoenas duces tecum issued by the Organized Crime Task Force should be sustained.
The State-wide Organized Crime Task Force was created by the Legislature in 1970. (Executive Law, § 70-a.) The Legislature found that organized criminal activity conducted by efficient, disciplined and complex illegal organizations is a corrusive and corruptive influence on legitimate businesses and poses a significant threat to the welfare of the people of our State. (L 1970, ch 1003, § 1.) Moreover, these well-resourced conspiracies have spread throughout the State and Nation, thereby outreaching the efforts of local law enforcement officials who are confined by geographic jurisdiction and limited resources. (L 1970, ch 1003, §§ 2, 3.) To counter the danger to the peace and security of law-abiding citizens throughout the State, the Legislature established a task force, within the Office of the Attorney-General, whose sole purpose would be to investigate and prosecute those involved in organized criminal activity, in an effort to break the structure of organized crime and eliminate the power of the underworld.
In carrying out its statutory responsibilities, the Task Force, in January, 1974, commenced an investigation into the alleged "fixing” of horse races at Monticello Raceway in Sullivan County and at other New York State tracks. At the request of
The Legislature has specifically authorized the Deputy At
On the other hand, since the Legislature has conferred a broad subpoena power upon the officer in charge of the Task Force, the office subpoenas issued here should be sustained if the information sought is relevant to a legitimate inquiry and if there is some basis for inquisitorial action. (Matter of A’Hearn v Committee on Unlawful Practice of Law of N. Y. County Lawyers’ Assn., 23 NY2d 916, 918, cert den 395 US 959.) At a preliminary stage of an investigation, such as is involved here, it is only necessary to establish that the records and books sought bear "a reasonable relation to the subject matter under investigation and the public purpose to be served.” (Myerson v Lentini Bros. Moving & Stor. Co., 33 NY2d 250, 256; accord Matter of La Belle Creole Int., S. A. v Attorney-General of State of N. Y.0, 10 NY2d 192, 196; Carlisle v Bennett, 268 NY 212, 217, supra.) Investigations would be paralyzed, if not aborted, if arguments into materiality and relevancy are transferred to a preliminary stage. "Only where the futility of the process to uncover anything legitimate is inevitable or obvious must there be a halt upon the threshold.” (Matter of Edge Ho Holding Corp., 256 NY 374, 382.)
In my view, the Task Force is not required to make a preliminary factual showing that the matter to which the office subpoenas are addressed involves either organized crime
The broad language of the statute would indicate that the Legislature had intended to give wide procedural latitude to the Task Force to bring to fruition the investigations conducted. A broad grant of subpoena and investigatory power is consistent with the legislative findings. The Legislature found that local county prosecutors were severely hampered in their efforts to investigate organized crime by their limited resources and by their restricted geographic jurisdictions. (L 1970, ch 1003, § 3.) It was recognized that evidence of criminal activity, particularly activity conducted by organized criminal associations, does not suddenly appear in the hands of investigators as a neatly wrapped package, with all the bows tied. Rather, a successful investigation requires weeks, months, and perhaps years, of painstaking research and ceaseless effort. The services of accountants, financial analysts, and other specialists may be required. Not until a substantial number of pieces are collected and put in place will the shape and dimensions of the total mosiac become clear. Organized crime goes to great pains and lengths, for rather obvious reasons, to conceal its presence. A criminal act that, on the surface, appears to be of an entirely local and unorganized nature gathers greater significance as further facts are unearthened and analyzed. The Legislature recognized that overworked, under-resourced local prosecutors cannot devote the time and money required to pursue this kind of intensive investigation. Even if they could, once the trail led out of their county, their efforts would be hampered by jurisdictional limitations. A State-wide unit, with broad investigatory powers, was needed in order to prosecute well-financed criminal associations who do not measure their activity by nice boundary lines.
In order that the valid and important public purpose of
This is not to say that individual citizens are at the mercy of the Task Force. In accordance with the case law that has developed over the years, the Task Force must establish, upon a motion to quash, that the materials sought relate to the subject matter investigated and to the public purpose to be achieved. However, that is all the Task Force need do. To require definitive proof of jurisdictional elements is to require an impossibility.
The majority reaches its conclusion that a preliminary factual showing of the jurisdictional elements must be made only by "balancing the interests of the Deputy Attorney-General * * * and * * * the interests of witnesses in their legitimate protection” (p 232). I believe that authority for a judicial weighing of interests is sorely lacking. The statute certainly does not confer it. Our case law, designed to guard against fishing expeditions conducted by roving commissions, does not require it.
The majority also contends that the sole recourse of the witness, absent its holding, would be to invite and risk a criminal prosecution for failure to obey a subpoena (p 232). However, it is well established that the recipient of an office subpoena can go into court and challenge it "on the ground it calls for irrelevant or immaterial documents or subjects the witness to harassment”. (Myerson v Lentini Bros. Moving & Stor. Co., 33 NY2d 250, 256, supra; accord Matter of A’Hearn v Committee on Unlawful Practice of Law of N. Y. County Lawyers’ Assn., 23 NY2d 916, 918, supra.) "If through ignorance or intention”, the Deputy Attorney-General abuses his subpoena power, "the victim of his illegitimate and oppressive
I believe that the subpoenas issued in this case were relevant to a legitimate purpose. I also conclude that there was a fair basis for the inquisitorial action. The Task Force, with the approval of the Governor and the local District Attorney, had been investigating possible organized crime involvement in the alleged fixing of horse races at the Monticello Raceway. The legitimacy of this investigation is not challenged. In the course of the investigation, the Task Force learned of wrongful acts allegedly committed by officials involved in track management. The acts complained of included the siphoning off of corporate money for private gain and the giving of illegal corporate political contributions. Given the asserted presence or organized crime in other areas of track operation and the nature of acts allegedly committed by the track management, it was reasonable for the Assistant Attorney-General to conclude that organized crime may very well be playing a role in the management of the track.
I would also note that the presence of intercounty activity is indicated by the fact that the allegedly illegal political contributions were made to one State-wide political organization, as well as to political associations located in several other counties. Thus, there was sufficient cause to believe that criminal activity of a possibly organized nature was not confined to Sullivan County and was not purely of a local character. The financial records sought bear a reasonable relation to the matters' under investigation and to the public purpose to be served. It is relevant that the local District Attorney gave his approval of the collateral investigation, even though such approval is not necessary for the issuance of a nonjudicial office subpoena by the Deputy Attorney-General. (Compare Executive Law, § 70-a, subd 4 with Executive Law, § 70-a, subd 7.)
Chief Judge Breitel and Judges Wachtler and Fuchsberg concur with Judge Jones; Judge Jasen dissents and votes to reverse in a separate opinion; Judges Gabrielli and Cooke taking no part.
Order affirmed, without costs.