Cabasso v. Holtzman

122 A.D.2d 944, 506 N.Y.S.2d 95, 1986 N.Y. App. Div. LEXIS 59436

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 25, 1986
• Status: Published

Opinions

— In a proceeding pursuant to CPLR 2304, to quash a subpoena duces tecum, the petitioners appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Meyerson, J.), dated January 15, 1986, as, upon reargument, adhered to an original determination dated October 7, 1985, denying the application.

Order affirmed insofar as appealed from, without costs or disbursements.

The petitioners seek to quash a Grand Jury subpoena duces tecum on the basis that compliance with the subpoena would violate the petitioner Artie Cabasso’s privilege against self-incrimination (US Const 5th Amend; NY Const, art I, § 6). This contention is without merit. The subpoena, as originally drafted, commanded both Artie Cabasso and Gemini Speaker Systems, Inc., to produce certain specified documents. However, the court has granted the People leave to amend the subpoena to designate Artie Cabasso "as custodian of records of Gemini Speaker System, Inc.” Thus, it is conceded on this appeal that the subpoena is not directed to the petitioner Artie Cabasso personally, but, rather is directed to Mr. Ca-basso only in his capacity as an employee of the petitioner corporation. In this capacity, Mr. Cabasso had no privilege against self-incrimination (see, United States v White, 322 US 694, 699-700). Corporate documents cannot be shielded from production merely because they may possibly incriminate an officer of the corporation (Wilson v United States, 221 US 361; Dreier v United States, 221 US 394; Matter of Bleakley v Schlesinger, 294 NY 312; Big Apple Concrete Corp. v Abrams, 103 AD2d 609). The petitioners’ claim that the very act of producing the documents — as opposed to the actual contents of the documents themselves — would force Mr. Cabasso to incriminate himself in violation of his State and Federal constitutional rights, is also without merit. The courts have, it is true, noted that the act of production might have an incriminatory effect where individuals are compelled to produce their own personal documents (see, e.g., United States v Doe, 465 US 605, 613-614; Fisher v United States, 425 US 391; Matter of Grand Jury Subpoena [Bekins Record Stor. Co.], 62 NY2d 324, 328-329). However, the Supreme Court has not applied the "act of production” exception to subpoenaed corporate officers or agents, even though by producing documents pursuant to a subpoena, those officers or agents tacitly admit to the existence and the location of such documents (Fisher v United States, supra, at pp 412-413). The courts perceive no violation of a corporate officer’s privilege against self-incrimination in such cases even though "[t]he custodian’s act of producing books or records in response to a subpoena duces tecum is itself a representation that the documents produced are those demanded by the subpoena” (Curcio v United States, 354 US 118, 125). Thus, the petitioner Cabasso cannot claim that the very act of producing the corporate records amounts to a deprivation of his privilege against self-incrimination (see also, In re Grand Jury Proceedings, 727 F2d 941, 943-944, cert denied sub nom. Vargas v United States, 469 US 819; Note, Fifth Amendment Privilege and Compelled Production of Corporate Papers after Fisher and Doe, 54 Fordham L Rev 935). While there is some authority to the effect that the subpoenaed corporation should be allowed to designate the specific agent to produce the subpoenaed documents (see, In re Two Grand Jury Subpoenae Duces Tecum, 769 F2d 52), the petitioners, in their brief on this appeal, specifically reject such a resolution to this matter, and urge, instead, that the subpoena be quashed in its entirety. The petitioners are not entitled to this relief. The petitioners also argue that the subpoena is overbroad. This argument is also without merit (see, Virag v Hynes, 54 NY2d 437; Matter of Eco’s Food Co. v Kuriansky, 100 AD2d 878). Lazer, J. P., Weinstein and Niehoff, JJ., concur.