Unique News Co. v. Broderick

112 A.D.2d 33, 490 N.Y.S.2d 409, 1985 N.Y. App. Div. LEXIS 50670

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 4, 1985
• Status: Published

Opinion

Order unanimously affirmed, with costs. Memorandum: In this long-delayed appeal, respondent Broderick, as District Attorney of Niagara County, seeks review of an order quashing subpoenae duces tecum issued by him for the production of a large number and variety of books, magazines and other publications in connection with an action brought under CPLR 6330 to enjoin the sale and distribution of said material as obscene. We affirm.

CPLR 6330 does not authorize issuance of a subpoena duces tecum to bring allegedly obscene material before the court. The District Attorney issued the subpoenae pursuant to the broad authority granted to attorneys of record by CPLR 2302 (a). That section obviously may not be employed to compel the in-court production of publications which are the subject of an underlying CPLR 6330 injunction action. The section makes no provision for those constitutional safeguards agáinst prior restraint which are required in an action to enjoin the sale or distribution of publications (see, Vance v Universal Amusement Co., 445 US 308, reh denied 446 US 947; Spokane Arcades v Brockett, 631 F2d 135, affd 454 US 1022).

Additionally, it is now well settled that publications are also entitled to the protection of the 4th Amendment (Lo-Ji Sales v New York, 442 US 319). To compel compliance with the subpoenae duces tecum issued by the District Attorney would impermissibly effect a seizure without a warrant. (Appeal from order of Supreme Court, Niagara County, Doyle, J. — quash subpoena duces tecum.) Present — Dillon, P. J., Doerr, Denman, Boomer and Schnepp, JJ.