BILL NUMBER: S37

SPONSOR: HOYLMAN
 
TITLE OF BILL:

An act to amend the criminal procedure law, in relation to establishing
provisions for appeals by a non-party to an intermediate appellate court

 
PURPOSE OR GENERAL IDEA OF BILL:

To codify the right of a nonparty to appeal a denial of a motion to
quash a subpoena issued as part of a criminal proceeding where the
movant is seeking to protect confidential and privileged information.

 
SUMMARY OF SPECIFIC PROVISIONS:

Section 1 of the bill adds a new section 450.25 to the criminal proce-
dure law. Section 450.25 provides that an appeal directly to the inter-
mediate appellate court may be taken as of right by a non-party from
certain orders of a criminal court where the movant is protected by
claim of privilege, immunity from disclosure, or any other constitu-
              

tional, common law, or statutory privilege or protection.  Provides that
such appeal shall be expeditiously filed, heard and determined, and
shall be taken only upon reasonable notice to the parties to the action
or proceeding who shall have an opportunity to be heard.

Section 2 of the bill amends section 450.60 of the criminal procedure
law to include reference to section 450.25.

Section 3 of the bill adds a new subdivision 4-a to section 460.10 of
criminal procedure law. Provides that an appeal by a nonparty to an
intermediate appellate court by right pursuant to section 450.25 shall
be taken in accordance with the rules of the appellate division of the
department in which such intermediate appellate court is located.

Section 4 of the bill amends section 460.50 of criminal procedure law by
adding a new subdivision 7. Provides where a nonparty to a criminal
action or proceeding has appealed an order of a criminal court pursuant
to section 460.25, such nonparty may apply to the criminal court that
issued such order for an order staying such action or proceeding pending
the determination of the appeal. If such application is denied, the
nonparty may apply to the intermediate appellate court where the appeal
is then pending for an order staying such action or proceeding pending
determination of the appeal. An application shall be brought upon
reasonable notice to the parties to such action or proceeding and such
parties shall be accorded adequate opportunity to be heard.

Section 5 of the bill is the effective date.

 
JUSTIFICATION:

This bill will restore a longstanding practice of the Appellate Divi-
sions of the Supreme Court of the State of New York that has been
upended by the recent New York State Court of Appeals decision in PEOPLE
v. JUAREZ, 31 N.Y.3d 1186 (2018). In JUAREZ, the Court held that "unless
the legislature acts, CPL article 450 does not authorize a nonparty's
appeal" of a denial of a motion to quash a subpoena issued after an
accusatory instrument has been filed in a criminal proceeding.

Prior to the decision in JUAREZ, the Appellate Divisions that considered
the question allowed nonparties to appeal from such denials, recognizing
that a contrary rule would "irrevocably preclude (a third party) from
any opportunity to vindicate its position before an appellate body." See
PEOPLE v. MARIN, 86 A.D.2d 40, 42 (2nd Dept.  1982) (holding that law
firm could appeal from a denial of its motion to quash as the order was
final as to the law firm); see also PEOPLE v. LAUGHING, 979 N.Y.S.2d 416
(3rd Dept. 2014) (considering but ultimately denying appeal of subpoena
duces tecum brought by non-party).

While the Appellate Divisions have historically allowed appeals by a
wide variety of nonparties, this bill seeks only to address the narrow
procedural gap left by the Court of Appeals decision in JUAREZ by ensur-
ing appellate review for nonparties only where a challenge is brought
against a subpoena based on a recognized protection from disclosure,
such as the attorney-client privilege, attorney work product protection,
priest-penitent privilege, marital privilege, physician-patient privi-
lege, psychotherapist-patient privilege, or the protections afforded
reporters under the New York Reporters Shield Law.

In JUAREZ, prosecutors subpoenaed a New York Times reporter, seeking to
compel her testimony and production of her notes related to an interview
she conducted of a criminal defendant while he was held in pretrial
detention. The reporter moved to quash the subpoenas, arguing that the
information was protected from disclosure based on the qualified privi-
lege in the Reporters Shield Law. While the trial court initially grant-
ed the motion to quash for the purposes of a HUNTLEY hearing, it later
denied the motion to quash in connection with trial. On appeal, the
Appellate Division unanimously reversed, finding that the People had not
satisfied their burden of making a "'clear and specific showing' that
the disclosure sought . . . is 'critical or necessary' to the People's
proof of a material issue."  PEOPLE v. JUAREZ, 39 N.Y.S.3d 155 (1st
Dept. 2016). The Court of Appeals, addressing the procedural question,
it raised sua sponte at oral argument held: "Unless the legislature
acts, CPL article 450 does not authorize a nonparty's appeal under these
circumstances. In the absence of statutory authorization, an order
resolving a nonparty's motion to quash a subpoena issued after the
filing of the accusatory instrument in a criminal proceeding
 - contrasted with an order issued before the criminal action begins -
is simply not appealable."

This bill heeds the call of the Court of Appeals by creating a statutory
basis for nonparties to challenge an erroneous denial of a motion to
quash. The fundamental question, as noted in JUAREZ, is "how best to
balance the interest of the expedient resolution of criminal actions
against the right of a nonparty in a pending criminal action to seek
appellate review of an order denying a motion to quash a subpoena when
the State's longstanding interests in protecting the newsgathering role
of reporters, or other weighty third-party concerns, are implicated."
Id. at 1191. This bill addresses this balance by limiting the right to
appeal a trial court order denying a motion to quash strictly to nonpar-
ties challenging a subpoena based on a privilege or protection against
disclosure, as opposed to those seeking to challenge the relevance or
scope of a subpoena. Such a limitation greatly minimizes any risk that
such challenges will unnecessarily frustrate the speedy determination of
criminal trials or overly burden the appellate courts of New York. Even
with the Appellate Divisions' prior practice of allowing appeals from a
broad group of nonparty witnesses, such appeals appear to have been
quite infrequent. This bill further calls for each of the Appellate
Divisions to adopt rules for such appeals to be handled in an expe-
ditious matter and to ensure the parties to the criminal matter are
provided adequate notice of any appeal.

This bill will not only preserve fundamental rights advanced by nonpar-
ties, but it will bring predictability and consistency to challenges to
nonparty subpoenas. As explained in one of the dissenting opinions in
JUAREZ, the other two avenues by which nonparty challenges to subpoenas
may be brought - challenging a criminal contempt finding or subsequent
denial of a CPLR article 78 action - are just as likely (if not more
likely) to cause delay to the ongoing criminal proceedings, while also
significantly increasing the burden on the nonparty. PEOPLE v. JUAREZ,
39 N.Y.S.3d 155 (1st Dept. 2016) (Rivera, J., dissenting).

The Court of Appeals has said that a challenge to a subpoena even one
related to a criminal investigation is "'limited in scope, challenging
only the validity of the subpoena or the jurisdiction of the issuing
authority,' and 'substantial delay in the proceedings is unlikely' to
result from permitting appeals from orders deciding such motions." See
IN RE 381 SEARCH WARRANTS DIRECTED TO FACEBOOK, INC., 29 N.Y.3d 231, 246
(2017). The limited scope of challenges to a subpoena, and unlikelihood
of substantial delay to result therefrom, are no different whether the
subpoena is issued prior to, but in connection with, a criminal matter,
or once a criminal matter has already commenced.

Absent a direct right to appeal, individuals who believe they are obli-
gated, or permitted, to maintain the confidentiality of information they
gain under the promise of confidentiality would face the impossible
choice of facing fines or possible jail time through potential contempt
findings or disclosing the at-issue information, knowing that doing so
would violate the promise of confidentiality.  This bill takes a
middle-ground approach to fix this procedural gap by limiting the right
to a direct appeal only to those parties who have moved to quash based
on a privilege or protection. Codifying a limited right to appeal here
is an important step in ensuring that New York remains a champion of the
free press (as well as a protector of other societally important privi-
leges), and that its courts have adequate procedures for protecting the
rights of nonparties who assert privileges in criminal actions.

 
PRIOR LEGISLATIVE HISTORY:

S.7343 of 2020 (Hoylman): Died in Codes
A.9666 of 2020 (Lenthol): Died in Codes

 
FISCAL IMPLICATIONS:

To be determined.

 
EFFECTIVE DATE:
This act shall take effect on the ninetieth day after it shall have
become a law.