National Committee of National Caucus of Labor Committees v. People

Appellate Division of the Supreme Court of New York

National Committee of National Caucus of Labor Committees v. People

95 A.D.2d 714, 464 N.Y.S.2d 466, 1983 N.Y. App. Div. LEXIS 18613

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 23, 1983

StatusPublished

This text of 95 A.D.2d 714 (National Committee of National Caucus of Labor Committees v. People) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

National Committee of National Caucus of Labor Committees v. People, 95 A.D.2d 714, 464 N.Y.S.2d 466, 1983 N.Y. App. Div. LEXIS 18613 (N.Y. Ct. App. 1983).

Pincite

Opinions

— Orders of the Supreme Court, New York County (Jeffrey Atlas, J.), entered, respectively, February 16, 1983, nunc pro tune as of December 9, 1982, denying the witnesses’ motions to quash Grand Jury subpoenas ad testificandum, and December 9, 1982, denying the motion of National Caucus of Labor Committees to intervene and for related relief, are affirmed, without costs. On Saturday, October 23, 1982, unidentified persons distributed a 12-page tabloid entitled Profiles of the Times, for insertion into the next day’s Sunday New York Times. The tabloid was printed on paper and used typefaces similar to those of the New York Times Book Review. It contained fraudulent articles of a scurrilous nature about public officials, candidates for political office and other persons, as well as photographs of those same individuals and fraudulent advertisements. Some 7,000 copies of this publication were allegedly distributed in Manhattan and Queens. A New York County Grand Jury commenced an investigation into possible criminal offenses related to its printing and distribution. On November 16, 1982, Sergeant Mervin Woike, an officer assigned to the New York County District [715]*715Attorney’s office squad, applied to the Supreme Court, New York County, for a warrant to search the premises occupied by PMR Printing Co., Inc. (PMR), at 207 West 25th Street in Manhattan. Justice Atlas issued the warrant the same day. As noted by the dissent, we have read the affidavits submitted by the police in camera and have unanimously concluded that, based upon the information contained in these affidavits, the hearing court had probable cause to issue the search warrant. Before the warrant was executed, an Assistant District Attorney assigned to the investigation gave Sergeant Woike a set of blank subpoenas and instructed Woike to serve a subpoena on anyone found on the premises of PMR who appeared or was determined to be an employee of PMR. In accordance with these instructions, the police officers who executed the warrant obtained the names of 23 employees or officers of PMR who were found on the premises and served them with subpoenas. The officers entered the witness’ name and address on each subpoena, as well as a return date. The officers also served a twenty-fourth person on the premises, Barbara Boyd. Ms. Boyd took possession of the search warrant, and the officers observed her conversing by telephone with unidentified persons during the search, in a manner which made it reasonable to believe that she was an employee or officer of PMR. One unidentified person on the premises was determined not to be an employee of PMR and was not served with a subpoena. Nine of the witnesses are allegedly members of the National Caucus of Labor Committees. On November 29, 1982, the witnesses moved to quash the subpoenas. On December 2, 1982, the National Committee and the National Executive Committee of the National Caucus of Labor Committees (NCLC) moved to intervene. Both motions were denied by Justice Atlas on December 9, 1982. On appeal, the witnesses argue that the subpoenas should be quashed because they were improperly issued and because the police officers who served them violated the Fourth Amendment in obtaining the witnesses’ names. The NCLC argues that it is entitled to intervene in the Grand Jury investigation on its own behalf and on behalf of its members, since the investigation has been undertaken in bad faith, as a means of harassing the NCLC and its members for improper political purposes. The NCLC also argues that the court below improperly failed to determine whether the Grand Jury investigation can be sustained in the face of the NCLC’s claim that the investigation infringes upon its members’ First Amendment associational rights. These contentions by appellants are without merit. The witnesses’ contention that the subpoenas were issued in violation of CPL 190.50 is based on their assertion that the police officers who served the subpoenas decided which persons to call to testify before the Grand Jury, and thus improperly exercised a power the statute reserves to the District Attorney or the Grand Jury itself. CPL 190.50 (subd 2) provides that: “The people may call as a witness in a grand jury proceeding any person believed by the district attorney to possess relevant information or knowledge.” The assertion in the dissent that the subpoena power was unlawfully delegated to the police officers attached to the District Attorney’s office is not borne out by the facts. The Assistant District Attorney represented to Justice Atlas that before the police went to PMR to execute the warrant, they were instructed to serve subpoenas only on employees of PMR who were found on the premises, and that the police complied with these instructions. According to the Assistant District Attorney, the police did not serve everyone at PMR; one person found on the premises was determined not to be an employee, and that person was not served. These representations were undisputed below, except solely for the allegation that Barbara Boyd was not associated with PMR. It was undisputed that Ms. Boyd accepted the search warrant and then discussed it on the telephone. This [716]*716conduct justified a belief by the police that she was employed by PMR. The Judge credited these representations and found the facts accordingly. On these facts, plainly, it was the Assistant District Attorney and not the police who called the witnesses, precisely as required by CPL 190.50 (subd 2). The officers were attached to the New York County District Attorney’s office squad and were no more than an administrative arm of that office. It makes no difference that the police obtained the witnesses’ names and entered them on the subpoenas before the subpoenas were served. That act imported no exercise of discretion by the police. It was a merely ministerial act, made necessary by the fact that, although the assistant had determined whom he wished to call and described those individuals to the police in categorical terms, he did not know the witnesses’ names when he sent the police to serve the subpoenas. The witnesses’ second contention, that the police violated the Fourth Amendment in obtaining their names, is based on their claim that the police misrepresented to the witnesses that the search warrant authorized them to obtain the witnesses’ names. The witnesses maintain that they identified themselves not voluntarily but only in submission to this alleged improper show of authority, and they, as does the dissent, characterize the alleged procedure as an “unlawful seizure” which violated the Fourth Amendment and should be remedied by quashing the subpoenas. It is settled, however, that a witness may not refuse to testify before the Grand Jury on the ground that the questions put to him are based on evidence obtained in an unlawful search and seizure. (United States v Calandra, 414 US 338, 349-355; Matter of Grand Jury Proceedings [People v Doe], 89 AD2d 605; People v McGrath, 46 NY2d 12, 22, cert den 440 US 972.) It follows that an unlawful search and seizure may not serve as a basis for quashing, a subpoena of this sort. The motion by the National Caucus of Labor Committees (NCLC) to intervene was also properly denied. The NCLC has demonstrated no “real and substantial interest” in the Grand Jury investigation to justify a proposed intervention (see Matter of Grand Jury, 619 F2d 1022, 1026-1027). The allegations by NCLC that the Grand Jury is investigating in bad faith, that it (the NCLC) is the target and that the investigation infringes on its members’ associational rights, are wholly conclusory.

Free access — add to your briefcase to read the full text and ask questions with AI

— Orders of the Supreme Court, New York County (Jeffrey Atlas, J.), entered, respectively, February 16, 1983, nunc pro tune as of December 9, 1982, denying the witnesses’ motions to quash Grand Jury subpoenas ad testificandum, and December 9, 1982, denying the motion of National Caucus of Labor Committees to intervene and for related relief, are affirmed, without costs. On Saturday, October 23, 1982, unidentified persons distributed a 12-page tabloid entitled Profiles of the Times, for insertion into the next day’s Sunday New York Times. The tabloid was printed on paper and used typefaces similar to those of the New York Times Book Review. It contained fraudulent articles of a scurrilous nature about public officials, candidates for political office and other persons, as well as photographs of those same individuals and fraudulent advertisements. Some 7,000 copies of this publication were allegedly distributed in Manhattan and Queens. A New York County Grand Jury commenced an investigation into possible criminal offenses related to its printing and distribution. On November 16, 1982, Sergeant Mervin Woike, an officer assigned to the New York County District [715]*715Attorney’s office squad, applied to the Supreme Court, New York County, for a warrant to search the premises occupied by PMR Printing Co., Inc. (PMR), at 207 West 25th Street in Manhattan. Justice Atlas issued the warrant the same day. As noted by the dissent, we have read the affidavits submitted by the police in camera and have unanimously concluded that, based upon the information contained in these affidavits, the hearing court had probable cause to issue the search warrant. Before the warrant was executed, an Assistant District Attorney assigned to the investigation gave Sergeant Woike a set of blank subpoenas and instructed Woike to serve a subpoena on anyone found on the premises of PMR who appeared or was determined to be an employee of PMR. In accordance with these instructions, the police officers who executed the warrant obtained the names of 23 employees or officers of PMR who were found on the premises and served them with subpoenas. The officers entered the witness’ name and address on each subpoena, as well as a return date. The officers also served a twenty-fourth person on the premises, Barbara Boyd. Ms. Boyd took possession of the search warrant, and the officers observed her conversing by telephone with unidentified persons during the search, in a manner which made it reasonable to believe that she was an employee or officer of PMR. One unidentified person on the premises was determined not to be an employee of PMR and was not served with a subpoena. Nine of the witnesses are allegedly members of the National Caucus of Labor Committees. On November 29, 1982, the witnesses moved to quash the subpoenas. On December 2, 1982, the National Committee and the National Executive Committee of the National Caucus of Labor Committees (NCLC) moved to intervene. Both motions were denied by Justice Atlas on December 9, 1982. On appeal, the witnesses argue that the subpoenas should be quashed because they were improperly issued and because the police officers who served them violated the Fourth Amendment in obtaining the witnesses’ names. The NCLC argues that it is entitled to intervene in the Grand Jury investigation on its own behalf and on behalf of its members, since the investigation has been undertaken in bad faith, as a means of harassing the NCLC and its members for improper political purposes. The NCLC also argues that the court below improperly failed to determine whether the Grand Jury investigation can be sustained in the face of the NCLC’s claim that the investigation infringes upon its members’ First Amendment associational rights. These contentions by appellants are without merit. The witnesses’ contention that the subpoenas were issued in violation of CPL 190.50 is based on their assertion that the police officers who served the subpoenas decided which persons to call to testify before the Grand Jury, and thus improperly exercised a power the statute reserves to the District Attorney or the Grand Jury itself. CPL 190.50 (subd 2) provides that: “The people may call as a witness in a grand jury proceeding any person believed by the district attorney to possess relevant information or knowledge.” The assertion in the dissent that the subpoena power was unlawfully delegated to the police officers attached to the District Attorney’s office is not borne out by the facts. The Assistant District Attorney represented to Justice Atlas that before the police went to PMR to execute the warrant, they were instructed to serve subpoenas only on employees of PMR who were found on the premises, and that the police complied with these instructions. According to the Assistant District Attorney, the police did not serve everyone at PMR; one person found on the premises was determined not to be an employee, and that person was not served. These representations were undisputed below, except solely for the allegation that Barbara Boyd was not associated with PMR. It was undisputed that Ms. Boyd accepted the search warrant and then discussed it on the telephone. This [716]*716conduct justified a belief by the police that she was employed by PMR. The Judge credited these representations and found the facts accordingly. On these facts, plainly, it was the Assistant District Attorney and not the police who called the witnesses, precisely as required by CPL 190.50 (subd 2). The officers were attached to the New York County District Attorney’s office squad and were no more than an administrative arm of that office. It makes no difference that the police obtained the witnesses’ names and entered them on the subpoenas before the subpoenas were served. That act imported no exercise of discretion by the police. It was a merely ministerial act, made necessary by the fact that, although the assistant had determined whom he wished to call and described those individuals to the police in categorical terms, he did not know the witnesses’ names when he sent the police to serve the subpoenas. The witnesses’ second contention, that the police violated the Fourth Amendment in obtaining their names, is based on their claim that the police misrepresented to the witnesses that the search warrant authorized them to obtain the witnesses’ names. The witnesses maintain that they identified themselves not voluntarily but only in submission to this alleged improper show of authority, and they, as does the dissent, characterize the alleged procedure as an “unlawful seizure” which violated the Fourth Amendment and should be remedied by quashing the subpoenas. It is settled, however, that a witness may not refuse to testify before the Grand Jury on the ground that the questions put to him are based on evidence obtained in an unlawful search and seizure. (United States v Calandra, 414 US 338, 349-355; Matter of Grand Jury Proceedings [People v Doe], 89 AD2d 605; People v McGrath, 46 NY2d 12, 22, cert den 440 US 972.) It follows that an unlawful search and seizure may not serve as a basis for quashing, a subpoena of this sort. The motion by the National Caucus of Labor Committees (NCLC) to intervene was also properly denied. The NCLC has demonstrated no “real and substantial interest” in the Grand Jury investigation to justify a proposed intervention (see Matter of Grand Jury, 619 F2d 1022, 1026-1027). The allegations by NCLC that the Grand Jury is investigating in bad faith, that it (the NCLC) is the target and that the investigation infringes on its members’ associational rights, are wholly conclusory. They do not warrant even a hearing since they are not substantiated by credible, particularized allegations tending to show that they are true. The affidavit submitted in support of the motion contains hearsay, irrelevancies and conclusions. It states no specific facts which fairly support the NCLC’s assertion that the Grand Jury investigation was undertaken in bad faith, or that the investigation was designed to infringe on the associational rights of any member of the NCLC. The witnesses herein were called solely because they worked for PMR. As noted, the instructions given to the police by the District Attorney left the police no discretion as to who should be served. The fact that nine of the witnesses are members of NCLC was not an issue before the proposed intervenor itself disclosed it. The NCLC’s lack of standing to intervene also mandates rejection of its claim that it may move to quash the subpoenas, since both claims are based on its ability to establish an interest in this case and it has failed to do so. Concur — Ross, Asch and Milonas, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

95 A.D.2d 714, 464 N.Y.S.2d 466, 1983 N.Y. App. Div. LEXIS 18613, Counsel Stack Legal Research, https://law.counselstack.com/opinion/national-committee-of-national-caucus-of-labor-committees-v-people-nyappdiv-1983.

Opinions

Related

Cite This Page — Counsel Stack