Opinion
02-23-2017
The PEOPLE of the State of New York, Respondent, v. Robert DePALO, et al., Defendants–Appellants, Pangaea Trading Partners, LLC, Defendant.
Peter R. Ginsberg Law, LLC, New York (Peter R. Ginsberg of counsel) and Moskowitz & Book, LLP, New York (Avraham C. Moskowitz of counsel), for appellants. Cyrus R. Vance, Jr., District Attorney, New York (Garrett Lynch of counsel), for respondent.
Peter R. Ginsberg Law, LLC, New York (Peter R. Ginsberg of counsel) and Moskowitz & Book, LLP, New York (Avraham C. Moskowitz of counsel), for appellants.
Cyrus R. Vance, Jr., District Attorney, New York (Garrett Lynch of counsel), for respondent.
Appeal from order, Supreme Court, New York County (Ronald A. Zweibel, J.), entered on or about August 16, 2016, which denied defendants' motion for issuance of letters rogatory seeking the assistance of judicial authorities in the United Kingdom in the conduct of discovery there, unanimously dismissed, as taken from a nonappealable order.
In this matter where an indictment has been filed, a criminal trial is pending, and defendants seek information via letters rogatory for use at their criminal trial, the denial of the application for such letters is part of the criminal proceeding, notwithstanding that the application was brought under CPLR 3108 (see People v. Santos, 64 N.Y.2d 702, 704, 485 N.Y.S.2d 524, 474 N.E.2d 1192 [1984] ; People v. Christopher B., 102 A.D.3d 115, 117–120, 957 N.Y.S.2d 4 [1st Dept.2012], lv. denied 20 N.Y.3d 860, 2013 WL 599566 [2013] ; People v. Johnson, 103 A.D.2d 754, 755, 477 N.Y.S.2d 225 [2d Dept.1984] ; compare Matter of Abrams [John Anonymous], 62 N.Y.2d 183, 192, 476 N.Y.S.2d 494, 465 N.E.2d 1 [1984] [denial of motion to quash preindictment subpoena "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"] ).
"It is well established that no appeal lies from a determination made in a criminal proceeding unless specifically provided for by statute" (People v. Pagan, 19 N.Y.3d 368, 370, 948 N.Y.S.2d 217, 971 N.E.2d 347 [2012] [internal quotation marks omitted] ). The order appealed from is not a disposition listed in CPL 450.10 or 450.15, and is therefore not an appealable paper (see People v. Hurley, 47 A.D.3d 488, 848 N.Y.S.2d 879 [1st Dept.2008] ). A "defendant may only appeal after conviction" (People v. Coppa, 45 N.Y.2d 244, 249, 408 N.Y.S.2d 365, 380 N.E.2d 195 [1978] ), and may not obtain an interlocutory appeal by claiming to invoke the court's civil jurisdiction.
FRIEDMAN, J.P., ANDRIAS, MOSKOWITZ, KAPNICK, KAHN, JJ., concur.