District Attroney v. Angelo G.

346 N.E.2d 819, 38 N.Y.2d 923, 382 N.Y.S.2d 980, 1976 N.Y. LEXIS 2364

• Court: New York Court of Appeals
• Decided: February 26, 1976
• Status: Published

Opinion

Per Curiam.

In Alphonso C, on application of the District Attorney of New York County, Supreme Court directed the respondent to appear in a lineup to be held at the New York County District Attorney’s office. In Angelo G., on similar application by the District Attorney of Kings County, Supreme Court directed each of the appellants to provide a handwriting exemplar at the office of the Kings County District Attorney. No criminal action had been commenced against any of the individuals to whom the Supreme Court orders were addressed nor in either case was it claimed that the discovery was incident to any other pending criminal action or to proceedings before any Grand Jury. The relief was sought as an aid in investigation of an alleged attempted homicide in one case and of alleged forgery, grand larceny and falsifying business records in the other. On appeals the Appellate Division, First Department, reversed the New York County order and the Appellate Division, Second Department, affirmed the Kings County orders.

Each of the orders obtained at nisi prius was granted on a novel theory involving a criminal investigation and the proceeding in which the order was issued was therefore a criminal proceeding (CPL 1.20, subd 18, par [b]; Matter of Santangello v People, 38 NY2d 536). There being no statutory authorization for direct appellate review, the orders of Supreme Court are not appealable and the appeals taken therefrom should have been dismissed (CPL 1.10; Matter of Santangello v People, supra).

Accordingly, the appeals to this court should be dismissed and the cases remitted to the Appellate Divisions with directions to dismiss the appeals taken to those courts.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur in Per Curiam opinion.

In Matter of Alphonso C. (Morgenthau): Appeal dismissed, without costs, and case remitted to. the Appellate Division, First Department, with directions to dismiss the appeal taken to that court.

In Matter of District Attorney of Kings County v Angelo G.: Appeal dismissed, without costs, and case remitted to the Appellate Division, Second Department, with directions to dismiss the appeal taken to that court.