Opinion
Decided December 18, 1984
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, Joseph Cohen, J.
Mario Merola, District Attorney ( Peter D. Coddington of counsel), for appellant.
Michele Maxian and Caesar D. Cirigliano for respondent.
MEMORANDUM.
The appeal should be dismissed.
In May 1982, defendant was indicted for the criminal sale and possession of controlled substances. Thereafter, on application by defendant, the Supreme Court issued a subpoena duces tecum seeking routine police department reports concerning the crime with which he was charged. The District Attorney moved to quash the subpoena on the ground that the reports were not discoverable. The court denied the motion to quash but held that the names and addresses of witnesses are not discoverable as a matter of right and are discoverable only upon a clear showing of special circumstances. The People appealed to the Appellate Division from so much of the Supreme Court's order as denied the motion to quash the subpoena duces tecum.
Defendant cross-appealed from that portion of the court's order which redacted the name of witnesses from the police reports. The Appellate Division dismissed the cross appeals as nonappealable and cited Matter of Morgenthau v Hopes ( 41 N.Y.2d 1007, rearg den 42 N.Y.2d 825).
As a rule, no appeal lies from an order arising out of a criminal proceeding absent specific statutory authorization (CPL 1.10; Matter of State of New York v King, 36 N.Y.2d 59; Matter of Ryan [ Hogan], 306 N.Y. 11). An order denying or granting a motion to quash a subpoena issued in the course of a criminal investigation, prior to the commencement of a criminal action, may be appealable when issued by a court vested with civil jurisdiction ( Matter of Abrams [ John Anonymous], 62 N.Y.2d 183). Such an order arises out of a special proceeding on the civil side of the court (see, e.g., Matter of Cunningham v Nadjari, 39 N.Y.2d 314). But an order determining a motion to quash a subpoena for the production of police reports, issued in the course of prosecution of a criminal action (CPL 1.20, subd 16), arises out of a criminal proceeding (CPL 1.20, subd 18; see Matter of Morgenthau v Hopes, 41 N.Y.2d 1007, rearg den 42 N.Y.2d 825, supra) for which no direct appellate review is authorized (CPL 450.10, 450.20, 450.90). An appeal from an Appellate Division order dismissing a criminal appeal on the law may be taken only by permission of a Judge of the Court of Appeals, acting pursuant to CPL 470.60 (subd 3). There having been no such permission, this appeal must be dismissed.
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 N.Y.CRR 500.4), appeal dismissed in a memorandum.