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In re People

New York Court of Appeals

June 27, 2018

In the Matter of the People & c., Appellant,
v.
Conrado Juarez, Defendant. Frances Robles, Nonparty Respondent.

          Diane N. Princ, for appellant.

          Katherine M. Bolger, for nonparty-respondent.

          Asian American Journalists Association, et al.; Reporters Committee for Freedom of the Press, et al.; District Attorneys Association of the State of New York, amici curiae.

          MEMORANDUM

         The order of the Appellate Division should be reversed, without costs, and the case remitted to the Appellate Division with directions to dismiss the appeal taken to that Court. Supreme Court's order denying nonparty Frances Robles's motions to quash certain subpoenas served on her was issued in a criminal action. Inasmuch as no direct appellate review of such orders is authorized under CPL article 450, no appeal lies.

         It is well-established that "no appeal lies from an order arising out of a criminal proceeding absent specific statutory authorization" (People v Santos, 64 N.Y.2d 702, 704 [1984]; see Matter of 381 Search Warrants Directed to Facebook, Inc. (New York County Dist. Attorney's Off.), 29 N.Y.3d 231, 242 [2017] [collecting cases]). We have explained that

"[t]his has always been so and the underlying policy is to limit appellate proliferation in criminal matters, sometimes to the seeming detriment of the defendant and sometimes to the detriment of the People. Litigation may be compounded unduly by protracted and multifarious appeals and collateral proceedings frustrating the speedy determination of disputes. Moreover, the frustration may be accomplished by skillful manipulation of appeals and collateral proceedings by those interested in delay"

(Matter of State of New York v King, 36 N.Y.2d 59, 63 [1975]; see People v Laing, 79 N.Y.2d 166, 170 [1992]). This Court has held that an order resolving a motion to quash a subpoena issued prior to the commencement of a criminal action is a final and appealable order inasmuch as it "is civil by nature and [thus] not subject to the rule restricting direct appellate review of orders in criminal proceedings" (Matter of Abrams [John Anonymous], 62 N.Y.2d 183, 192 [1984]; see Facebook, 29 N.Y.3d at 243; Santos, 64 N.Y.2d at 704]). By contrast, "an order determining a motion to quash a subpoena... issued in the course of prosecution of a criminal action, arises out of a criminal proceeding for which no direct appellate review is authorized" (Santos, 64 N.Y.2d at 704 [citations omitted]) [1].

         The critical distinction between orders addressing subpoenas that precede, as opposed to follow, the commencement of a criminal action is grounded in the plain language of the CPL, which governs "[a]ll criminal actions and proceedings" (CPL 1.10 [1] [a]). Specifically, a "criminal action commences... with the filing of an accusatory instrument against a defendant in a criminal court" (CPL 1.20 [16]), and a "criminal proceeding" includes "any proceeding which (a) constitutes a part of a criminal action or (b) occurs in a criminal court and is related to a... criminal action... or involves a criminal investigation" (CPL 1.20 [18]). Definitionally, an order resolving a motion to quash a subpoena that is issued prior to the filing of an accusatory instrument does not arise within the context of a "criminal action." Moreover, while such an order may relate to a criminal investigation, when issued in a court of general jurisdiction prior to the commencement of a criminal action, it "arises... on the civil side of the court" (Santos, 64 N.Y.2d at 704). Therefore, an order resolving a motion to quash a subpoena falls outside of the ambit of the CPL-and its concomitant limitations upon appellate review-when the order is issued before a criminal action begins. Review of an order issued in the investigatory stage does not undermine the legislative aim of "limit[ing] appellate proliferation in criminal matters" (King, 36 N.Y.2d at 63) insofar as appellate practice at this stage cannot be said to intrude significantly upon a criminal action that may never be commenced. The order here, however, issued after the accusatory instrument was filed, plainly arose in a "criminal action" within the meaning of that term as prescribed by the CPL.[2]

         We reject Robles's reliance on a line of Appellate Division authority that distinguishes between parties and nonparties to a criminal action, and permits an appeal by a nonparty from an order resolving the nonparty's motion to quash a subpoena issued even after the commencement of a criminal action (see e.g. People v Laughing, 113 A.D.3d 956, 957 n 2 [3d Dept 2014]; People v Bagley, 279 A.D.2d 426, 426 [1st Dept 2001]; People v. Johnson, 103 A.D.2d 754, 755 [2d Dept 1984]; People v Marin, 86 A.D.2d 40, 42-43 [2d Dept 1982]). These decisions are grounded in the rationale that, whereas a defendant can challenge the order on appeal from a judgment of conviction, an aggrieved nonparty "would irrevocably [be] preclude[d]... from any opportunity to vindicate its position before an appellate body, regarding the serious issues raised in its moving papers" (Marin, 86 A.D.2d at 42). We do not discount this concern. However, despite repeated recommendations from the Advisory Committee on Criminal Law and Procedure that the CPL be amended to allow for an expedited appellate process for non-parties aggrieved by the denial of a motion to quash a subpoena in a criminal action, the legislature has not adopted that approach (see Reports of the Advisory Committee, January 2003-2008) [3]. Unless the legislature acts, CPL article 450 does not authorize a nonparty's appeal under these circumstances. In the absence of statutory authorization, an order resolving a nonparty's motion to quash a subpoena issued after the filing of the accusatory instrument in a criminal proceeding-contrasted with an order issued before the criminal action begins-is simply not appealable (see Santos, 64 N.Y.2d at 704). [4]

         We are not unsympathetic to Robles's policy-driven arguments, echoed by our dissenting colleagues, concerning how best to balance the interests of the expedient resolution of criminal actions against the right of a nonparty in a pending criminal action to seek appellate review of an order denying a motion to quash a subpoena when the State's longstanding interests in protecting the newsgathering role of reporters (see O'Neill v Oakgrove Constr., 71 N.Y.2d 521');">71 N.Y.2d 521 [1988]), or other weighty third-party concerns, are implicated. Nor do we minimize the significance of the rights provided by article I, § 8 of the New York State Constitution. However, the right to appeal is not premised on the nature of the challenge waged, and this Court cannot "create a right to appeal out of thin air" (Laing, 79 N.Y.2d at 172) [5]. "That the [l]egislature has not authorized an appeal from an order in a criminal proceeding is conclusive; and any arguments for a change in the practice... must be addressed to [that forum]" (Facebook, 29 N.Y.3d at 251 [internal quotation omitted]). [6]

          RIVERA, J. (dissenting):

         The threshold question presented is whether an order granting or denying a nonparty's motion to quash a subpoena issued in the course of a criminal proceeding is directly appealable. The Appellate Division has uniformly exercised jurisdiction in these cases for decades, treating these orders as final and appealable. Our Court has similarly held that an order denying a motion to quash a subpoena issued in furtherance of a criminal investigation by a grand jury is final and appealable "as an order in a special proceeding on the civil side of a court vested with civil jurisdiction" (Matter of Abrams [John Anonymous], 62 N.Y.2d 183, 192 [1984]). That same reasoning applies here-first, because the order is final as to the nonparty who cannot seek redress in a post-trial criminal appeal, and, second, because the order does not implicate the underlying policy to avoid delay associated with interlocutory criminal appeals any more than does an appeal from the denial of a motion to quash a grand jury subpoena. Here, the argument in support of direct appealability carries even greater force because the nonparty is a journalist who has invoked a strong countervailing policy in her favor, one applicable regardless of the civil or criminal nature of the action and manifested in the New York Civil Rights Law's protection against disclosure of news sources.

         On the merits, the People have failed to establish that the unpublished materials obtained by the reporter in the course of her newsgathering are "critical or necessary to the maintenance" of the People's case (Civil Rights Law § 79-h [c]). I would therefore affirm the Appellate Division.

         I.

         The People charged defendant Conrado Juarez with one count of second-degree murder for the killing of "Baby Hope." The underlying crime was tragic and gruesome. In 1991, the partially-decomposed body of a four-year-old girl was found stuffed into a cooler near the Henry Hudson Parkway. A medical examination of the child's body revealed that she had been sexually assaulted and suffocated, but the semen investigators found was too degraded to analyze. For the next two decades, police were unable to identify the deceased or her killer. Finally, in 2013, officers followed investigative leads to the child's mother, and from her to defendant. On October 11 and 12, 2013, defendant gave a videotaped confession to the police, in which he admitted that he had suffocated the victim during a sexual encounter. No forensic evidence connected defendant to the crime.

         Four days after his videotaped confession and subsequent arraignment, while he was held in pretrial detention, defendant gave an interview to nonparty Frances Robles, a New York Times investigative journalist. The interview covered, among other things, defendant's family life, arrest, and confession to the police, and lasted about an hour. Although Robles was not allowed to bring paper into the interview, she made notes about the interview soon afterwards. On October 17, 2013, the New York Times published her article about defendant and the murder of "Baby Hope," in which defendant offered an alternate account of the child's death. Robles wrote that defendant explicitly alleged that his confession to the police was not truthful, although defendant's statement to Robles conformed with his videotaped statement to the police in some respects.

         Prior to defendant's Huntley hearing, the People secured two subpoenas to compel Robles' participation in the criminal case. The first subpoena sought Robles' own testimony, and the second sought to compel Robles to surrender her interview notes. Robles moved in New York to quash both subpoenas.

         The trial court partly granted and partly denied Robles' requests. Initially, the court granted the motion to quash for the purposes of the Huntley hearing only, concluding the People failed to overcome the strong presumption against disclosure of unpublished news set forth in the Civil Rights Law to protect journalists and their sources (see Civil Rights Law § 79-h). Subsequently, however, the court denied quashal in connection with the underlying criminal trial, and instructed Robles to appear in court to testify and to turn over her notes beforehand for in camera inspection. With respect to the trial itself, the court concluded that the People had met their burden to overcome the statutory protections because the case would turn on circumstantial evidence and defendant's statements about the charges and his relationship to the victim were highly material. Given that defendant might challenge the voluntariness of his confession, it was critical for the People to present all evidence that corroborated his statements, including, in particular, the statements defendant made to Robles, and, moreover, Robles' information was not available from any other source. The court issued its ruling on the motion to quash the subpoenas with respect to the trial itself on August 4, 2016, but stayed its order pending appeal.

         The Appellate Division reversed, concluding that the People had not overcome the law's strong protections. The court concluded that, even in a circumstantial case, the People could only compel the disclosure of material protected by the Civil Rights Law's qualified privilege by making a" clear and specific showing' that the disclosure sought... is critical or necessary' to the People's proof of a material issue" (143 A.D.3d 589, 590, [1st Dept 2016] quoting Civil Rights Law § 79-h [c]). Here, the police were in possession of an admissible videotaped confession, which included all the same relevant information that they expected to obtain from Robles' notes and testimony. Consequently, "[u]nder the circumstances, and in keeping with the consistent tradition in this State of providing the broadest possible protection to the sensitive role of gathering and disseminating news of public events, '" the People had not made the necessary showing to compel disclosure (id., quoting O'Neil v Oakgrove Constr., 71 N.Y.2d 521');">71 N.Y.2d 521, 529 [1988] [some internal quotation marks omitted]). The People did not allege that the order was nonfinal and nonappealable, and the Appellate Division addressed the merits without any discussion as to jurisdiction. We subsequently granted the People leave to appeal (see 29 N.Y.3d 904');">29 N.Y.3d 904 [2017]).

         II.

         A.

         The general rule as articulated by this Court is that there is no right to appeal in a criminal matter absent specific statutory authorization (see In re 381 Search Warrants Directed to Facebook, Inc., 29 N.Y.3d 231, 242 (2017) [observing that "[n]o appeal lies from a determination made in a criminal proceeding unless specifically provided for by statute"], quoting People v Pagan 19 N.Y.3d 328, 370 [2012], citing People v Bautista, 7 N.Y.3d 838, 838-839 [2006]; People v Hernandez, 98 N.Y.2d 8, 10 [2002]; People v De Jesus, 54 N.Y.2d 447, 449 [1981]; People v Zerillo, 200 NY 443, 446 [1911]). Statutory authorization for criminal appeals usually flows from the Criminal Procedure Law, which governs all criminal proceedings, including criminal investigations (see CPL §§ 1.10 [1], 1.20 [18]).

         Contrary to the majority's conclusion, however, that general rule is inapplicable here. Since 1936, this Court has recognized that "orders granting or denying motions to quash subpoenas in criminal investigations and actions" are not governed by the CPL because "a motion to quash subpoenas, even those issued pursuant to a criminal investigation, is civil by nature and not subject to the rule restricting direct appellate review of orders in criminal proceedings" (Matter of Abrams, 62 N.Y.2d at 192). The legal fiction adopted to explain this conclusion is that denial of a motion to quash a subpoena is "a final and appealable order in a special proceeding on the civil side of a court vested with civil jurisdiction" (id.).

         The Appellate Division has consistently so held (see e.g. People v Bagley, 279 A.D.2d 426');">279 A.D.2d 426 [1st Dept 2011]; People v Marin, 86 A.D.2d 40');">86 A.D.2d 40 [2d Dept 1982]; People v Cruz, 86 A.D.3d 782, 782 n 2 [3d Dept 2011]). District Attorneys throughout the State have also taken this position, most recently as amici in Facebook (29 N.Y.3d 231). There the District Attorneys Association of the State of New York conceded that a nonparty has the right to appeal from the denial of a motion to quash a subpoena (Brief for District Attorneys Association as Amicus Curiae in Facebook, 29 N.Y.3d 231, at 10-12) [7]. Unsurprisingly, the People did not challenge the appealability of the order before the Appellate Division or in their initial briefing to us, and only took the position that the order is not appealable in response to a jurisdictional inquiry from this Court. That the People appealed from the Appellate Division order granting the motions to quash without arguing the dispositive challenge of the nonappealability of that order further confirms that the law on direct appeals of motions to quash has long been settled in this State. [8]

         As the Court explained in Matter of Cunningham v Nadjari over forty years ago,

"[O]n a basis of stare decisis these precedents represent a formidable line of authority, however asymmetrical may appear to be the support for the rule they express and apply. Moreover, there is no suggestion in the legislative history of the Criminal Procedure Law that there was any intention to override these precedents. The arguments based on CPL depend exclusively on the definitional arrangement in that statute, a definitional arrangement more precise, although not significantly different from that in the predecessor statute, the Code of Criminal Procedure, for the purpose of this issue (compare, e.g., CPL 1.20, subd 18 with Code Crim Pro, §§ 5, 515, 962). Consequently, despite respondent's persuasive practical arguments..., the court is not now ready to overrule precedents resting upon a history of 40 years" (39 N.Y.2d 314, 317 [1976]).

         Nevertheless, while acknowledging this long-established precedent, the majority concludes that the order denying Robles' motions to quash is subject to the jurisdictional rule of this Court that restricts direct appellate review of orders in criminal proceedings unless expressly authorized by the CPL (cf. Facebook, 29 N.Y.3d at 243 [observing that, despite the absence of statutory authorization, "a motion to quash a subpoena issued prior to the commencement of a criminal action, even if related to a criminal investigation, is civil by nature," and therefore "is not subject to the rule restricting direct appellate review of orders in criminal proceedings"], ...


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