In re Grand Jury Subpoena No. 2573/85

Appellate Division of the Supreme Court of New York

In re Grand Jury Subpoena No. 2573/85

111 A.D.2d 891, 491 N.Y.S.2d 29, 1985 N.Y. App. Div. LEXIS 50163

Appellate Division of the Supreme Court of the State of New York·Decided June 21, 1985·Published·Cited by 1 cases

Opinion

Appeal from an order of the Supreme Court, Kings County (Meyerson, J.), dated May 20, 1985, which denied an application to quash a Grand Jury subpoena.

Order affirmed, without costs or disbursements.

At the outset, we note that while an order determining an application to quash a subpoena relating to a criminal proceeding which was issued after the commencement of the criminal action (CPL 1.20 [17]) is not directly appealable by the immediate parties to that criminal action (People v Santos, 64 NY2d 702; cf. Matter of Morgenthau v Hopes, 55 AD2d 255, lv dismissed 41 NY2d 1007), where, as here, the individual seeking appellate review of the order is not a party to the underlying criminal action, the order is final and appealable as to that individual (People v Johnson, 103 AD2d 754; People v Marin, 86 AD2d 40).

[892]*892We conclude that the appellant’s application to quash the Grand Jury subpoena based on the existence of an alleged parent/child privilege is premature. A witness cannot raise the issue of privilege until he or she actually appears and is questioned (Matter of Cunningham v Nadjari, 39 NY2d 314; Matter of A. & M., 61 AD2d 425). Accordingly, the application to quash the Grand Jury subpoena was properly denied. We note that a guardian ad litem should be appointed to represent the child in any further proceedings. Brown, J. P., Rubin, Lawrence and Kunzeman, JJ., concur.

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Appeal from an order of the Supreme Court, Kings County (Meyerson, J.), dated May 20, 1985, which denied an application to quash a Grand Jury subpoena.

Order affirmed, without costs or disbursements.

At the outset, we note that while an order determining an application to quash a subpoena relating to a criminal proceeding which was issued after the commencement of the criminal action (CPL 1.20 [17]) is not directly appealable by the immediate parties to that criminal action (People v Santos, 64 NY2d 702; cf. Matter of Morgenthau v Hopes, 55 AD2d 255, lv dismissed 41 NY2d 1007), where, as here, the individual seeking appellate review of the order is not a party to the underlying criminal action, the order is final and appealable as to that individual (People v Johnson, 103 AD2d 754; People v Marin, 86 AD2d 40).

[892]*892We conclude that the appellant’s application to quash the Grand Jury subpoena based on the existence of an alleged parent/child privilege is premature. A witness cannot raise the issue of privilege until he or she actually appears and is questioned (Matter of Cunningham v Nadjari, 39 NY2d 314; Matter of A. & M., 61 AD2d 425). Accordingly, the application to quash the Grand Jury subpoena was properly denied. We note that a guardian ad litem should be appointed to represent the child in any further proceedings. Brown, J. P., Rubin, Lawrence and Kunzeman, JJ., concur.

In re Grand Jury Subpoena No. 2573/85, 111 A.D.2d 891, 491 N.Y.S.2d 29, 1985 N.Y. App. Div. LEXIS 50163 (N.Y. Ct. App. 1985).

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111 A.D.2d 891 (In re Grand Jury Subpoena No. 2573/85) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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