TABLE OF CONTENTSPage

STATEMENT PURSUANT TO RULE 5531 CPLR. . . . . . . . . . . . . . . . . iii

PRELIMINARY STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

QUESTION PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

ARGUMENT

COUNTS OF AN INDICTMENT ARE NOTSUBJECT TO DISMISSAL SIMPLY BECAUSESOME OF THE EVIDENCE PRESENTED TOTHE GRAND JURY WAS OBTAINED FROM AB A N K R E S P O N D I N G T O A NADMINISTRATIVE SUBPOENA ISSUED BYTHE POLICE COMMISSIONER OF THE CITYOF NEW YORK NOR IS THAT EVIDENCESUBJECT TO SUPPRESSION. . . . . . . . . . . . . . . . . . . . . . . . . 7

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

APPENDIX

Notice of Appeal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-1

Decision and Order .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-3

Indictment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-12

Transcription of Minutes of Proceedings, March 23, 2012. . . . . . . . . . A-32

Certification Pursuant to Rule 2105 of the C.P.L.R. . . . . . . . . . . . . . . . A-76

ii

SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION: SECOND JUDICIAL DEPARTMENT-----------------------------------------------------------------------------xTHE PEOPLE OF THE STATE OF NEW YORK, :

Appellant, :

-against- :

:

AYODELE ADENIRAN, : Defendant-Respondent. :

-----------------------------------------------------------------------------x

STATEMENT PURSUANT TO RULE 5531 OF THE C.P.L.R.

1. The indictment number of the case is 1888/2011 as

consolidated with Indictment 3250/2010 (Queens County).

2. The full names of the parties are the People of the State of

New York against Ayodele Adeniran, defendant.

3. This action was commenced by the filing of an indictment,

the case in the Supreme Court, Queens County.

4. Defendant was arraigned on the indictment on November

18, 2011. Indictment 1888/2011 charged defendant Ayodele Adeniran with two

counts of Grand Larceny in the Second Degree (Penal Law § 155.40 [1]) and

two counts of Attempted Grand Larceny in the Second Degree (Penal Law §§

iii

110.00/155.40 [1]). Indictment 3250/2010 charged defendant Ayodele

Adeniran with Criminal Possession of Stolen Property in the First Degree

(Penal Law § 165.54), Attempted Grand Larceny in the First Degree (Penal

Law §§ 110/155.42), 155.40-1), Grand Larceny in the Second Degree (Penal

Law § 155.40 [1]), nine counts of Criminal Possession of a Forged Instrument

in the Second Degree (Penal Law § 170.25) and eighteen counts of Identity

Theft in the First Degree (Penal Law §§190.80[1], 190.80[3]).

5. This appeal is from an order of the Supreme Court, Queens

County (Margulis, J.) dated April 18, 2012 which granted defendant’s motion

to suppress evidence and dismissed three counts of the indictment.

6. This appeal is prosecuted by the appendix method pursuant

to 22 N.Y.C.R.R. § 670.9 (b).

iv

SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION: SECOND JUDICIAL DEPARTMENT-----------------------------------------------------------------------------xTHE PEOPLE OF THE STATE OF NEW YORK, :

Appellant, :

-against- :

:

AYODELE ADENIRAN, : Defendant-Respondent. :

-----------------------------------------------------------------------------x

BRIEF FOR APPELLANT

PRELIMINARY STATEMENT

The People appeal from an order of the Supreme Court, Queens

County (Margulis, J.), dated April 18, 2012, suppressing evidence and

dismissing three counts of an indictment on the ground that the evidence was

imporperly obtained from a third party bank in response to an administrative

subpoena issued by the Police Commissioner of the City of New York.

Criminal Term erred because there is no basis on which evidence obtained

from a party pursuant to a legally issued subpoena may be subject to the

exclusionary rule, nor, even if there was, could defendant demonstrate standing

to move for suppression. Moreover, an indictment is not subject to dismissal

simply because evidence later determined, albeit erroneously, to be

inadmissible, was presented to the Grand Jury. Therefore, this Court should

reverse the order suppressing the evidence obtained by subpoena and reverse

that part of the order dismissing three counts of the indictment.

QUESTION PRESENTED

Are counts of an indictment subject to dismissal because some of

the evidence presented to the grand jury was obtained by the Police

Department pursuant to an office or administrative subpoena it issued and is

that evidence subject to suppression?

STATEMENT OF FACTS

In September, 2010, a person living in Arizona told the New York

Police Department that a check in the amount of $342.76 had been debited

from his account without permission or authority. When the Arizona resident

obtained an image of the check from his bank, he found it to be one created

remotely, but not by the account holder or by his permission or authority.

Pursuant to authority vested in the Police Commissioner of the

City of New York under section 14-137 of the New York City Administrative

Code, a subpoena was issued to Citibank for records which, when received and

examined by a police detective showed that defendant was the sole signatory

on the account to which the remote check was deposited. A Citibank

2

investigator told police that the account was opened in January 2010, and that

between July 15, 2010 through December 9, 2010, approximately

$1,152.472.44 was deposited into the account, all by means of remotely

created checks in amounts less than $50.

The bank investigator said that hundreds of the checks deposited

into the account have been returned to Citibank on a weekly basis after not

being honored by the issuing institutions because they are fraudulent checks,

and that in no instance had one check been found to be legitimate. Further

review by the detective of the Citibank records showed that the after the

deposits were made, the account holder, the defendant, would withdraw the

funds and wire said them out of the bank, thereby stealing over $680,000.00

from Citibank, which is responsible for the withdrawn funds.

Evidence concerning this theft and a similar one from another

bank was presented to the Queens County Grand Jury which indicted defendant

for was arrested and subsequently indicted defendant, charging him, as relevant

here, with Criminal Possession of Stolen Property in the First Degree (Penal

Law § 165.54), Attempted Grand Larceny in the First Degree (Penal Law §§

110/155.42), 155.40-1) and Grand Larceny in the Second Degree (Penal Law

§ 155.40 [1]),

3

Following his arrest, defendant proceeded to trial before the

Honorable Ira Margulis, a Justice of the Supreme Court, Queens County. After1

a jury was selected, however, defendant’s attorney moved to dismiss the

indictment for what he called “egregious police misconduct in the investigation

of this case” (Colloquy: 4). Specifically, counsel argued that in obtaining2

evidence from Citibank by the use of an administrative subpoena issued under

authority vested in the Police Commissioner by section 14-137 of the New

York City Administrative Code, a police detective “act[ed] as a cowboy and

... use[d] extra legal methods” (Colloquy: 4-5). In defense counsel’s view, the

only proper way to subpoena evidence would be by process “authorized by the

Grand Jury” (Colloquy: 6). He argued that, particularly since no grand jury

was then hearing evidence concerning this matter, the subpoena was issued

“completely ultra vires” (Colloquy: 6, 14-15). 3

The trial which commenced was on Indictment 1888/2011 as consolidated with1

Indictment 3250/2010.

Parentheses containing the word “Colloquy” followed by a page number refer to2

the transcript of the minutes of the proceedings held before the Supreme Court on March 23,2012, included as part of the Appendix filed with this brief.

Defense counsel moved for dismissal of the consolidated indictment based on the3

police department subpoena and an additional claim that a police detective was improperlypermitted to testify to hearsay before the Grand Jury. As that aspect of defendant’s motionwas properly denied, it is not before this Court on the People’s appeal. C.P.L. § 470.15 (1); see, e.g., People v. Falquez, 66 A.D.3d 918, n.1 (2d Dept. 2009).

4

After the People were heard in opposition to the motion, Criminal

Term held that the Police Commissioner could only issue subpoenas in

connection with “administrative proceedings involving the Police Department

their subdivisions and possibly as well outside entities that are regulated by

administrative code provisions” (Colloquy: 39). Criminal Term added that

“[s]ince the records from Citibank were obtained by what I deem to be the

improperly issued subpoena... those records must be and hereby are

suppressed” (Colloquy: 39). It held further that “[a]ny count relating to the

Citibank records...are hereby dismissed” (Colloquy: 40) and, the court, as

promised, thereafter issued a further written decision explaining its holdings

(A. 3).4

The People now appeal Criminal Term’s order. Whether the5

Police Commissioner’s authority to issue subpoenas is, indeed, limited in the

manner suggested by Criminal Term, the defendant did not have standing to

Numbers following the letter A refer to pages in the Appendix filed with this brief.4

On March 23, 2012, the defendant pled guilty to Grand Larceny in the Second5

Degree (P.L. § 155.40[1]) and the remaining counts of consolidated indictments essentiallyalleging thefts from other banks. He was sentenced on July 9, 2012 to serve six months injail to be followed by probation for five years. In that “[e]ach offense involves ... injury, lossor other consequence to a different victim,” C.P.L. § 40.20(2)(e), there would be no bar tofurther prosecution of the counts concerning Citibank if the instant order dismissing themwere reversed. See, e.g., People v. Luongo, 47 N.Y.2d 418, 430 (1979).

5

object to a subpoena issued to a bank. Moreover, nothing in the section itself,

or its legislative history supports the holding that the Police Commissioner did

not have authority to issue the subpoenas to which defendant objected, nor is

there any authority for the contention that a Grand Jury may only receive

evidence that is obtained through its own processes, or, indeed, to dismiss an

indictment on the ground that evidence later determined to have been illegally

obtained was presented to the Grand Jury.

Accordingly, since Criminal Term suppressed evidence based on

its erroneous finding that the Police Department improperly issued subpoenas

to Citibank, and dismissed three counts the indictment on that basis, the order

suppressing the evidence obtained by the Police-Department-issued subpoena

and dismissing three counts of the indictment should be reversed.

6

ARGUMENT

COUNTS OF AN INDICTMENT ARE NOTSUBJECT TO DISMISSAL SIMPLY BECAUSESOME OF THE EVIDENCE PRESENTED TOTHE GRAND JURY WAS OBTAINED FROMA B A N K R E S P O N D I N G T O A NADMINISTRATIVE SUBPOENA ISSUED BYTHE POLICE COMMISSIONER OF THECITY OF NEW YORK NOR IS THATEVIDENCE SUBJECT TO SUPPRESSION.

Investigating a complaint that checks had been illegally written

against the bank account of an Arizona resident and deposited into a Citibank

account, the Police Department issued subpoenas to Citibank for its records

under authority of section 14-137 of the Administrative Code, a provision

which derives its authority from the express provisions of subdivision 21 of

section 20 of the General Cities Law. See Application of Dairymen's League

Co-op. Ass'n, 274 A.D. 591 (1 Dept.1948), aff’d, 299 N.Y. 634 (1949). st

Though defendant’s attorney strenuously argued that “there is no legal

authority for the issuance of that subpoena whatsoever” (Colloquy: 6), the

General City Law provides, in relevant part, that “[s]ubject to the constitution

and general laws of this state, every city is empowered...[t]o investigate and

inquire into all matters of concern to the city or its inhabitants, and to require

7

and enforce by subpoena the attendance of witnesses at such investigations.”

General City Law § 20 (21).

The Administrative Code of the City of New York, applying that

grant of authority, delegates to the police “commissioner, and his or her

deputies ... the power to issue subpoenas, attested in the name of the

commissioner and to exact and compel obedience to any order, subpoena or

mandate issued by them and to that end may institute and prosecute any

proceedings or action authorized by law in such cases. The commissioner, and

his or her deputies may in proper cases issue subpoena duces tecum.” N.Y.C.

Administrative Code § 14-137(a).

Hence, in issuing the subpoena at issue here, the Deputy

Commissioner who signed it was acting under a statute that on its face vests

him with broad authority to do so with regard to an investigation or inquiry

“into all matters of concern to the city or its inhabitants,” General City Law §

20 (21). Moreover, the subpoena was issued to Citibank and not the eventual

defendant and, under United States v. Miller, 425 U.S. 435, 440 (1976)(with

internal quotation marks omited), the records it sought were not the

defendant’s “private papers [but i]nstead... the business records of the banks.”

8

As defense counsel suggested in his lengthy discourse seeking

dismissal of the indictment, the subpoena was almost certainly issued in

recognition of the concerns of the bank that it not violate federal law in

disclosing account information (Colloquy: 27-30). Those concerns arise from

the federal Right to Financial Privacy Act of 1978 (generally known as

“RFPA”), 12 U.S.C. § 3401, et seq., despite the express language of the statute

under which its provisions concerning the disclosure of its customers records

specifically do not “preclude any financial institution, or any officer, employee,

or agent of a financial institution, from notifying a Government authority that

such institution, or officer, employee, or agent has information which may be

relevant to a possible violation of any statute or regulation.” 12 U.S.C. § 3403

(c). Since the statute also permits banks to disclose information pursuant to6

various forms of process, 12 U.S.C. § 3402, see LCR Tech., Inc. v. HSBC Bank

USA, N.A., 37 A.D.3d 766 (2d Dept. 2007), state law enforcement officials

confronted by these issues by banks and financial institutions reluctant to

reveal information without one of the ostensibly authorized processes, which

Even more fundamentally, it has never been clear that the statute has any bearing6

on disclosures to state law enforcement. See, e.g., In re Grand Jury Applications forCourt-Ordered Subpoenas etc., 142 Misc. 2d 241 (Sup. Ct. N.Y. Co. 1988) (Berkman, J.);Accord, Norkin v. Hoey, 181 A.D.2d 248, 250 (1st Dept. 1992);Wright v. Liguori, 445 Fed.Appx. 469 (3d Cir. 2011).

9

include what the statute calls an “administrative subpena,” 12 U.S.C. § 3405,

generally will issue any process available to them rather than delay important

and legitimate investigations while litigating the applicability of the federal

statute.

There is, of course, nothing in either the state statute or the city

administrative code provision that limits the Police Commissioner’s subpoena

authority for use only in “administrative enforcement, either internally within

the police department or to enforce certain administrative code violations”

(Colloquy: 20-21, 39; A. 7). There is, for instance, nothing in the statute

analogous to the provisions of the federal and state taxation statutes which

specifically limit the use of administrative subpoena authority to cases that

have not been “referred” for prosecution. See 26 U.S.C § 7602(2)(d)(1)(“No

summons may be issued under this title, and the Secretary may not begin any

action under section 7604 to enforce any summons, with respect to any person

if a Justice Department referral is in effect with respect to such person”); Tax

Law § 697(b)(2). The sole case cited as the basis for narrowing the scope of7

the Commissioner’s subpoena authority, Irizarry v. New York City Police Dept,

Indeed, even the Internal Revenue Code language is read very narrowly and rarely7

provides a basis for a taxpayer’s relief. See United States v. La Salle Nat'l Bank, 437 U.S.298, 309 (1978).

10

260 A.D.2d 269 (1st Dept. 1999), only discusses a proper basis for issuing a

subpoena under the Administrative Code, without imposing any limitations on

its use.

Moreover, even if it was somehow improper, as Criminal Term

suggested, for the Legislature and City Council to vest subpoena authority in

the Police Commissioner, at least to the extent that he used it “as part of a

criminal investigation where the Queens County District Attorney was

ultimately going to prosecute” (A. 4, 5-6), “the issuance of a subpoena to a

third party to obtain the records of that party does not violate the rights of a

defendant, even if a criminal prosecution is contemplated at the time the

subpoena is issued.” United States v. Miller, 425 U.S. 435, 444 (1976)(bank

records). See also People v. Di Raffaele, 55 N.Y.2d 234, 242 (1982) (declining

“to establish a more restrictive standard under the provisions of section 12 of

article I of the New York State Constitution, concluding that there is no

sufficient reason for any such differentiation”). Hence, if there were any

reason the Police Commissioner could not issue the subpoena at issue, the

party entitled to raise it would have been Citibank, either by motion to quash

or in defense of a motion to compel compliance, Hynes v. Moskowitz, 44

N.Y.2d 383, 393 (1978).

11

Moreover, the constitutional limits on search and seizure do not

apply to evidence obtained by subpoena, and in any event, “defendant had no

legitimate expectation of privacy in the records” which were sought and

obtained. People v. Di Raffaele, 55 N.Y.2d at 241-242. Indeed, in the usual

context of such motions, the suppression of physical evidence may only be

ordered with respect to evidence seized where the defendant has “an actual

subjective expectation of privacy in the place searched, [or an] expectation . .

. that society is prepared to recognize as reasonable.” Rakas v. Illinois, 439

U.S. 128, 143 (1978). As Di Raffaele suggests, New York law is no different

in this regard. People v. Ponder, 54 N.Y.2d 160, 165 (1981).

Any claim that defendant had standing to object to the production

of the bank’s records could only be based on a contorted reading of the federal

bank secrecy statute repeatedly rejected by the courts of this state. While, as

the First Department has observed, the RFPA was enacted in the wake of

Miller to overrule it at least to the extent of providing some degree of financial

privacy, Norkin v. Hoey, 181 A.D.2d 248, 250-251 (1 Dept. 1992), “[t]hest

Legislature of this State has not acted to provide for any privacy rights in such

records, and our courts have, in the main, followed United States v Miller

(supra), in holding that bank customers have no proprietary interest in the

12

records kept by the banks with which they do business, the records being the

property of the bank, and that bank customers do not have a sufficient

expectation of privacy in such records to confer upon them the standing

necessary to challenge a subpoena seeking those records on the grounds that

it violates their constitutional privileges against unreasonable searches and

seizures (see, e.g., Matter of Cappetta, 42 N.Y.2d 1066 [(1977)(“As to the

subpoena addressed to petitioner's bank, it is clear that the records sought are

not subject to the constitutional privilege against unreasonable searches and

seizures,” citing Miller)]; Matter of Congregation B'Nai Jonah v Kuriansky,

172 AD2d 35 [(3d Dept. 1991)(“it is a settled principle that a bank customer

has no proprietary or possessory interests in bank records and hence cannot

preclude their production,” internal quotations omitted)]; People v Doe, 96

AD2d 1018, 1019 [(1 Dept. 1983) (“Bank records, although they may reflectst

transactions between the bank and its customers, belong to the bank. The

customer has no proprietary or possessory interests in them. Hence, he cannot

preclude their production”)]; Matter of Shapiro v Chase Manhattan Bank, 53

AD2d 542 [(1 Dept. 1976) (quoting from Miller to hold, with internalst

quotation marks omitted, “These are the business records of the banks and

appellant can assert neither ownership nor possession. Since no Fourth

13

Amendment interests of the depositor are implicated here, this case is governed

by the general rule that the issuance of a subpoena to a third party to obtain the

records of that party does not violate the rights of a defendant, even if a

criminal prosecution is contemplated at the time the subpoena is issued”)];

Matter of Democratic County Comm. v Nadjari, 52 AD2d 70 [(1 Dept.st

1976)(In Miller, “[t]he Supreme Court concluded that an individual has no

reasonable expectation of privacy with respect to records such as are subject

to the subpoena at issue herein and thus has no cognizable Fourth Amendment

interest”)].” Norkin v. Hoey, 181 A.D.2d at 251. Hence, notwithstanding

defendant’s argument or the Essex County case to which he makes substantial

reference, People v. Doty, 34 Misc. 3d 183, 187 (Essex County Ct.

2011)(“defendant's property interest in his bank account records and

information cannot be, and is not, contested”), defendant has no “privacy rights

in his [sic] bank accounts and his own records” (Colloquy: 6-7).

The general preference of prosecutors for the use of grand jury

subpoenas as a means to obtain evidence comes not, as Criminal Term appears

to hold, from some sort of legal requirement that limits the grand jury to

receive only evidence it has subpoenaed itself, but from the fact that a grand

jury subpoena is much less subject to a motion to quash than is an office or

14

administrative subpoena. See, generally, Virag v. Hynes, 54 N.Y.2d 437, 441

(1981)( discussing the “fundamental distinction between a nonjudicial, ‘office’

subpoena and a Grand Jury subpoena”).

More fundamentally, the premise of defendant’s argument as

accepted by Criminal Term’s objection to the use of the Police Department

subpoena is flawed by the intimation that because the information sought might

reveal a crime, it could only be obtained by grand jury subpoena (Colloquy: 6).

A grand jury can receive evidence from any number of sources, ranging from

that recovered through the use of court ordered search warrants, and that

evidence voluntarily produced by those in possession of it. See generally,

C.P.L. § 190.30. That the Criminal Procedure Law provides one means of

obtaining evidence does not mean that others are proscribed. Cf. People v.

Wrotten, 14 N.Y.3d 33, 38 (2009)(as to the videotaping of witnesses C.P.L.

“article 65 addresses only a single, discrete circumstance and otherwise leaves

courts' preexisting authority unaffected”).

No law even intimates that the provisions by which a grand jury

can obtain evidence by compulsion somehow restricts the District Attorney

15

from receiving evidence by other means. That the District Attorney does not8

have office subpoena authority, as discussed in People v. Natal, 75 N.Y.2d

379, 385 (1990), does not mean that the Legislature cannot provide it to the

Police Department. Hence, the issue is not whether some provision of the

Criminal Procedure Law limits the District Attorney but whether the legislative

bodies of the State and City of New York could provide the Police

Commissioner with authority which the District Attorney does not normally

possess.

The answer is surely yes. While Criminal Term apparently

believes that both the Police Department and the District Attorney may only

issue subpoenas when authorized under C.P.L. § 610.20 and C.P.L.R. 2302,

The suggestion that the Criminal Procedure Law was somehow being8

“circumvented” by the use of other subpoena authority is preposterous. That the “provisionsof [the C.P.L.] apply exclusively to: (a) All criminal actions and proceedings commencedupon or after the effective date thereof and all appeals and other post-judgment proceedingsrelating or attaching thereto; and (b) All matters of criminal procedure prescribed in thischapter which do not constitute a part of any particular action or case, occurring upon or aftersuch effective date” is a limitation on the statute—its provisions do not apply in civil cases,rather than one that pre-empts every other law—federal, state, county or city----which mightbear on the subject matter of a criminal prosecution or investigation. See e.g., Cunninghamv. Nadjari, 39 N.Y.2d 314 (1976)(appealability of motion to quash pre-indictment subpoenagoverned by the C.P.L.R.); People v. Jennings, 69 N.Y.2d 103, 113-114 (1986)(applyingC.P.L.R. provisions to motion to renew or re-argue); People v. Bilsky, 95 N.Y,2d 172, 177-178 (2000)(applying C.P.L.R. 2217(b) to a second application for a search warrant).

16

and neither provision grants the District Attorney any authority to issue

administrative or office subpoenas. The Police Department and the District

Attorney are, however, different entities, with different responsibilities.

Compare County Law § 700(1) with N.Y.C. Charter § 435. Neither the

Criminal Procedure Law or the C.P.L.R. provide for, address or even mention

any restriction on the subpoena power of the Police Commissioner,but

municipalities are explicitly granted the authority to use subpoenas "to

investigate and inquire into all matters of concern to the city or its inhabitants."

General City Law § 20(21). New York City has explicitly delegated this

authority to the Police Department in the Administrative Code § 14-137,

including allowing the Commissioner to "devise, make and issue process and

forms of proceedings to carry into effect any powers or jurisdiction possessed

by him or her." N.Y.C. Admin. Code § 14-137(a). This statutory language does

not limit the subpoena power of the Police Department, as Criminal Term

supposed, to "administrative proceedings involving the Police Department",

but, instead, authorizes the Police Commissioner to issue a subpoena to aid in

the Police Department’s responsibility under the City Charter to conduct

investigations or to prevent crime (Colloquy: 12-13).

17

Moreover, myriad other agencies and officers have been vested

with subpoena power, including, at least one other major source of criminal

cases, the New York City Department of Investigations, see N.Y. City Charter

§ 803, Matter of Parkhouse v. Stringer, 12 N.Y.3d 660, 665 (2009)(describing

those subpoena powers as “very broad”). The Attorney General, vested with

dual responsibilities for civil enforcement and criminal prosecution under

antitrust and securities statutes, has also been provided with broad subpoena

authority to carry them out, particularly in the Donnelly Act, Gen. Bus. Law

§343, see, e.g., Dellwood Foods, Inc. v. Abrams, 109 Misc. 2d 263 (Sup. Ct.

Bronx Co. 1981), aff’d, 84 A.D.2d 692 (1 Dept. 1981) and Martin Act, G.B.L.st

§ 352(2) (Martin Act), see, e.g. First Energy Leasing Corp. v. Attorney Gen.

of New York, 68 N.Y.2d 59, 64 (1986). The Organized Crime Task Force also

has the authority to issue office subpoenas under Executive Law section 70-a,

even if to determine whether or not to prosecute a case. See, e.g., Sussman v.

New York State Organized Crime Task Force, 39 N.Y.2d 227 (1976). In

exercising those dual responsibilities, it almost goes without saying that “there

is nothing improper about posing an interrogatory in a subpoena which is

potentially incriminating.” Big Apple Concrete Corp. v. Abrams, 103 A.D.2d

609, 613 (1st Dept. 1984).

18

Indeed, in upholding the authority of the Attorney General to issue

office subpoenas under section 63(8) of the Executive Law even as he acts as

prosecutor, the Court of Appeals said, in language also applicable to the Police

Commissioner and the investigation conducted before it was concluded that the

defendant violated the law, that there to be nothing improper in the Legislature

to “facilitat[ing] his effectiveness in carrying out such investigations, [by

granting] the Attorney-General the power to issue subpoenas.” Hynes v.

Moskowitz, 44 N.Y.2d at 396-397.

Yet even if the subpoena was improperly issued, and defendant

had standing to object to it, there surely is no basis for applying the

exclusionary rule to evidence obtained by that process. See People v. Greene,

9 N.Y.3d 277, 280 ( 2007) (“a violation of a statute does not, without more,

justify suppressing the evidence to which that violation leads”). If, for

instance, the subpoena somehow violated RFPA, it could at most be the subject

of a lawsuit for damages, but not for the suppression of evidence disclosed to

government without compliance with the Act. United States v. Daccarett, 6

F.3d 37 (2d Cir. 1993).

It is hard to imagine what countervailing interest there is which

would allow the defendant to hide a bank’s records documenting his thefts or

19

what mandate requires the actions taken by Criminal Term providing the

defendant with the windfall he has obtained. To the extent that the dismissal

of counts of the indictment was based on the idea that inadmissible evidence

was presented to the grand jury, the order is subject to reversal as it is well

established “beyond peradventure” that the exclsuionary rule is inapplicable

to the grand jury. People v. McGrath, 46 N.Y.2d 12 (1978); In re Grand Jury

Proceedings, 89 A.D.2d 605 (2d Dept. 1982); In re Kronberg, 95 A.D.2d 714

(1st Dept. 1983).

In sum, the Police Department had authority to issue the subpoena

at issue, and, even if it did not, defendant had no standing to challenge it.

Moreover, there was no basis whatsoever to suppress evidence obtained from

that subpoena, much less to dismiss counts of the indictment.

20

CONCLUSION

For the reasons set forth above, the order of the Supreme Court,

Queens County, granting defendant's motion to suppress evidence and

dismissing counts one two and three of the indictment should be reversed.

Respectfully submitted,

RICHARD A. BROWNDistrict AttorneyQueens County

JOHN CASTELLANOEDWARD D. SASLAW

Assistant District Attorneysof Counsel

March 25, 2013

21