State v. Harvey , 10 A.D.2d 691 ( 1960 )

Appeal from an order of the Court of General Sessions, New York County, entered February 26, 1960, which granted a motion by respondent for an order directing appellant to appear before a Grand Jury of Grant County, State of Washington, with certain records, on March 21, 1960.

Memorandum by the Court.

Order directing the witness appellant to appear before a Grand Jury of Grant County, State of Washington, affirmed. Because this is a proceeding in the nature of a criminal proceeding*, the appeal-ability of the order is gravely doubtful (People v. Doe [Bernoff], 261 App. Div. 504; People v. Doe [Rubenstein], 259 App. Div. 921; Matter of Wainwright, 273 App. Div. 1059; see, also, Matter of Ryan [Hogan], 306 N. Y. 11, 16 et seq.). However, this court on two prior occasions has entertained appeals under section 618-a of the Code of Criminal Procedure, as distinguished from proceedings under section 618-b, without the present question of appealability having been raised (Matter of Stamler, 279 App. Div. 908; Commonwealth of Massachusetts v. Klaus, 145 App. Div. 798), On this state of the law, and because of the urgency stemming from the running of the Statutes of Limitation in the State of Washington, in which State there is being investigated alleged briberies of public officials, the court has entertained jurisdiction of the appeal rather than consider the difficult question of appealability and whether the appeal should be dismissed. On the record it is found that the witness is a material and necessary one, at least for purposes of a Grand Jury inquiry. The assertion by him that he has no personal knowledge of the facts, even if true, does not, on this record, form a basis for avoiding the inquiry. The Grand Jury, as an inquisitorial body, is not so easily frustrated in its inquiry. Assuming that there were some deficiency in the form of the order, this court could and would correct it. It is found, however, that the order is just sufficient, since the statute requires no more than the issuance of a subpoena once the Judge has determined at a hearing, among other things, that the witness is material and necessary. Similarly, there is no problem as to the production of books as the statute authorizes such production (see Matter of Saperstein, 30 N. J. Super. 373; Code Crim. Pro., § 618-a, subd. 5). Whether the witness has the power or authority to produce the books and records as well as any questions of privilege are matters to be raised and determined in the State of Washington.