SUPREME COURT OF THE STATE OF NEW YORKQUEENS COUNTY CRIMINAL TERM PART K-12------------------------~--------------XTHE PEOPLE OF THE STATE OF NEW YORK

-against- Indictment. No.: 1888/11

DECISION & ORDER

ADENIRAN AYODELE,

Defendant(s).

---------------------------------------------------------------XHON. IRA H. MARGULIS, Justice

Defendant is charged under Indictment 1888/11 with several counts of Grand Larceny and

related charges.

On March 20,2012 the Court commenced a jury trial, conducted preliminary hearings,

and impaneled a jury.

On, March 23, 2012 defendant, upon learning for the first time that evidence used in the

investigation by a police officer was obtained from Citibank via an administrative subpoena,

moved to dismiss the indictment arguing that the detective improperly used an administrative

subpoena instead of relying on the District Attorney to secure process through a Grand Jury.

(The lengthy discussion of the matter is contained in the stenographic record)

For the reasons stated on the record, defendant's application to have the Grand Jury

minutes re-submitted to the reviewing Justice (Justice Paynter) is denied. (Transcript at page 17)

Defendant's application to have the defendant's bank records suppressed is granted to the

extent that the defendant's Citibank records are deemed inadmissable for the reasons set forth

below and contained in the record. (Transcript at pages 38 - 41)

The principal issue here is whether the New York City Police Department had the

authority to issue the subpoena pursuant to the New York City Administrative Code section 14-

137 as part of a criminal investigation where the Queens County District Attorney was ultimately

going to prosecute the matter.

There is no question that the District Attorney may have properly issued a Grand Jury

subpoena to Citibank pursuant to CPL 610.20 as part of an ongoing investigation (seey.,

People v Crispino. 298 AD2d 220, 221 [1st Dept 2002]; see generally Stern v Morgenthau. 62

NY2d 331 [1984] ), or, may have even issued a subpoena before a Grand Jury had been

impaneled, provided the return date of the subpoena had fallen after it had been impaneled. (See,

Hirschfeld v City of New York,253 AD2d 53 [15\ Dept 1999] Iv denied 93 NY2d 814 [1999])

Notwithstanding, the Court of Appeals has stated that

Subpoenas, of course, are process of the courts, not the parties. While by statute it isthe District Attorney who issues a subpoena duces tecum, the subpoena isnevertheless a mandate of the court issued for the court.

The Court continued:

It has long been recognized that District Attorneys may not issue subpoenas exceptthrough the process of the court, and they exercise the power to compel witnesses toproduce physical evidence only before a Grand Jury or a court where a proceedingis pending makes clear that where the District Attorney seeks trial evidence thesubpoena should be made returnable to the court, which has "the right to possessionof the subpoenaed evidence." It is for the court, not the prosecutor, to determinewhere subpoenaed materials should be deposited, as well as any disputes regardingproduction (People v Natal, 75 NY2d 379, 384-385 [1990])

Likewise, CPLR 2302 (a) specifically gives subpoena powers (without leave of court) to

"an attorney of record for a party to an action, an administrative proceeding or an arbitration,

an arbitrator, a referee, or any member of a board, commission or committee authorized by law to

hear, try or determine a matter or to do any other act, in an official capacity, in relation to which

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proof may be taken or the attendance of a person as a witness may be require" [emphasis added];

"the clerk of the court, a judge [where there is no clerk]"; and "the attorney general".

An office subpoena therefore may only be issued by an attorney without leave of court

where an action is pending, or, by the Attorney General, as specifically set forth in the statute, as

part of a criminal investigation. Notwithstanding. by its clear language CPLR 2302 does not give

this power to district attorneys.

Here, the evidence was first obtained by the Detective's use of a subpoena issued by the

New York City Police Department as part of an ongoing investigation. There was no pending

action, nor was the subpoena issued by the prosecutor by the authority of a Grand Jury.

It is well established that "no agency of government may conduct an unlimited and

general inquisition into the affairs of persons within its jurisdiction solely on the prospect of

possible violations of law being discovered, especially with respect to subpoenas duces tecum.

There must be authority, relevancy, and some basis for inquisitorial action." (A'Hearn v

Committee on Unlawful Practice of Law, 213 NY2d 916,918 [1969J)

Consequently, while the state legislature and local legislatures have created entities with

investigative and prosecutoriaJ powers, the subpoena powers utilized by such entities are limited

by specific jurisdictional bases and exist only when expressly granted by the Legislature. (Matter

of Reckess v New York State Comro. On Quality Care for the Mentally Disabled, 7 NY3d 555,

559 [2006]; see, ~., People v Smith & Degroat. Inc., _Misc3d_; 2010 NY Slip Op 32736U

[Supreme Court Nassau County 2010][ "The requirements for an investigatory subpoena duces

tecum such as that at bar, are (1) that the issuing agency has authority to engage in the

investigation and issue the subpoena, (2) that there is an authentic factual basis to warrant the

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investigation, and (3) that the evidence sought is reasonably related to the subject of the inquiry."

[regardj[ng NYS Attorney General's Subpoena power]; ~ also, NYS Executive Law 51-54

[Inspector General]; Carl Andrews and Associates v Office of the Inspector General. 85 AD3d

633 [1" Dept 2011] [same]; People v Adams, 2 Misc3d 166 [Niagara County Court 2003] [NYS

Organized Crime Task Force];)

In the instant case Detective Carolyn Shabunia had the NYPD Legal Department issue a

subpoena as part of an investigation into an allegation of wrongdoing involving Citibank.

Although Citibank, as the Assistant District Attorney pointed out, was a "victim" in this case, it

did not release the defendant's banking records to the detective without first being served with a

subpoena pursuant to the Right to Financial Privacy Act. I

The Detective had the New York City Police Department's Legal Affairs Bureau issue a

subpoena, pursuant to the New York City Administrative Code section 14-137 (a).

NYC Admin Code section 14-137 (a) provides:

t The Rightto Financial Privacy Act (12 use 340 1-3422) governs the disclosure of certain bankingrecords, Section 3402 of the act provides:Except as provided by section 1103(c) or (d), 1113, or 1114, no Government authority may have access to or obtaincopies of, or the infonnation contained in the financial records of any customer from a financial institution unless thefinancial records are reasonably described and-(1) such customer has authorized such disclosure in accordance with section 1104;(2) such financial records are disclosed in response to an administrative subpena or summons which meets therequirements of section 1105; '"(4) such financial records are disclosed in response to ajudicial subpena which meets the requirements of sectionlI07;

Section 3407 provides:A Government authority may obtain financial records under section 1102 (4) pursuant to judicial subpena only if-(1) such subpena is authorized by law and there is reason to believe that the records sought are relevant to alegitimate law enforcement inquiry;(2) a copy of the subpena has been served upon the customer or mailed to his last known address on or before thedate on which the subpena was served on the financial institution

Section 3407 provides that notice may be delayed subject to the provisions of section 3409 which recognizes theneed for secrecy pending a criminal investigation.

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The commissioner, and his or her deputies shall have the power to issue subpoenas,attested in the name of the commissioner and to exact and compel obedience to anyorder, subpoena or mandate issued by them and to that end may institute andprosecute any proceedings or action authorized by law in such cases. Thecommissioner, and his or her deputies may in proper cases iss~e subpoena ducestecum. The commissioner may devise, make and issue pr 5S and forms ofproceedings to carry into effect any powers or jurisdiction posse sed by him or her,

While there is Iittle case law providing guidance to what consti tes a "proceeding or

Although the People argue the New York City Charter sectio 435 (ai provided the

action authorized by law", given a plain reading of the statute, in conj ction with the CPL and

CPLR, the commissioner's subpoena powers are limited to administra eve issues that directly

affect the Police Department (NYC Admin Code 14-137 [b]; 1m' ~tilN~e~wLY~oQJr:kkJ;CJ!ityJP~o!lili~ce

Department. 260 AD2d 269, 270 [1nDept 1999]) and can not extend 0 those given to the

District Attorney. (NY County Law 700 [1]; Schumer v Holtzman. 6 NY2d 46 [1983]; People v

Di Falco, 44 NY2d 482 [1978])

department with the power to issue the subpoena in this case the co does not read that section

so broadly. While section 435 sets forth the powers of the departme t in general terms it does

not supersede the :subpoena requirements set forth in either the CPL or CPLR.

2 The police department and force shall have the power and it shall be eir duty to preserve the publicpeace. prevent crime, detect and arrest offenders, suppress riots. mobs and ins ctions, disperse unlawful ordangerous assemblages and assemblages which obstruct the free passage of publ c streets, sidewalks, parks andplaces; protect the rights of persons and property. guard the public health, prese e order at elections and all publicmeetings and assemblages; subject to the provisions of law and the rules and re lations of the commissioner oftraiffic, regulate, direct, control and restrict the movement of vehicular and pede .an traffic for the facilitation oftraffic and the convenience of the public as well as the proper protection of hum life and health; remove allnuisances in the public streets, parks and places; arrest all street mendicants and beggars; provide proper policeattendance at fires; inspect and observe all places of public amusement, all plac of business having excise or otherlicenses to carry on any business; enforce and prevent the violation of all laws a d ordinances in force in the city;and for these PWPOilCS 10 arrest all persons guilty of violating any law or ordin ce for the suppression orpunishment of crimes or offenses.

i./

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Accordingly, the Court finds that the subpoena issued by the NYPD was improperly

issued.' Because the evidence from this improper subpoena lead directly to the information

which gave rise to the counts of the indictment relating to the money allegedly stolen from

Citibank, that evidence is suppressed and those counts of the indictment are dismissed. G¥Jmg

Sun v United States. 371 US 471 [1963])

The foregoing constitutes the decision and order of this court.

Kew Gardens, New YorkDated: April 18. 2012

3As the subpoena here was not properly issued. the Court wi)) not reach further privacy issues. The Courtagrees with that lineof cases holding "a party bas no standing to move to quash a subpoena issued to a third-partybank for that party's bank records ... in Ilmminal case".lPeoole v Lmnroa. _ Misc3d~ 2012NY SlipOp22023 ·6-1 (New York County Supreme Court] [collecting cases])

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