People v. Bagley

279 A.D.2d 426, 720 N.Y.S.2d 454, 2001 N.Y. App. Div. LEXIS 915

Opinion

Order, Supreme Court, New York County (James Yates, J.), entered on or about December 21,1999, which denied nonparty appellant New York City Police Department’s motion to quash a subpoena duces tecum, unanimously reversed, on the law, without costs, and the motion granted.

Since the Police Department was not a party to the underlying criminal action, it may properly appeal from the order denying the motion to quash the subpoena duces tecum (Matter of Cunningham v Nadjari, 39 NY2d 314; Matter of Grand Jury Subpoena No. 2573/85, 111 AD2d 891, lv denied 65 NY2d 606).

The motion court erroneously denied the Police Department’s motion to quash the subpoena duces tecum since defendant failed to put forth a factual predicate to support the contention that the documents sought in the subpoena will bear relevant and exculpatory evidence (Matter of Constantine v Leto, 157 AD2d 376, affd for reasons stated below 77 NY2d 975; People v Gissendanner, 48 NY2d 543). Without the factual predicate, defendant’s subpoena merely constitutes a discovery demand directed to a nonparty, which is in contravention to the discovery provisions of CPL article 240. Concur — Nardelli, J. P., Mazzarelli, Lerner, Buckley and Friedman, JJ.