New York Law Review

Tag: Fifth Amendment

  • Matter of Birnbaum v. State, 73 N.Y.2d 638 (1989): Government Regulation Requiring Continued Business Operation Is Not a Taking

    Matter of Birnbaum v. State, 73 N.Y.2d 638 (1989)

    A state regulation requiring a business, particularly one in a pervasively regulated industry like nursing homes, to continue operating for a reasonable period to allow for alternative arrangements does not automatically constitute a taking under the Fifth Amendment.

    Summary

    The New York Court of Appeals held that the State’s action of requiring a nursing home to remain open until alternative arrangements could be made for patients did not constitute a “taking” of property requiring compensation. The nursing home owners sought to close the facility due to unprofitability, but the state intervened to prevent immediate closure, citing regulations requiring notice and approval. The court reasoned that the nursing home industry is heavily regulated, and the state’s action was a reasonable measure to prevent a public emergency, not an unconstitutional taking.

    Facts

    Bernard Birnbaum operated Abbott Manor Nursing Home. After his death, his executors (respondents) found the nursing home unprofitable due to insufficient Medicaid reimbursement rates. They attempted to increase reimbursement rates, sell the facility, or find a receiver, but were unsuccessful. Respondents notified relatives of Medicaid patients of the imminent closure of the nursing home.

    Procedural History

    The State sought and obtained a temporary restraining order to prevent the nursing home’s closure. The Supreme Court appointed coreceivers to operate the facility and held the State responsible for operating costs. The Appellate Division determined the Court of Claims had sole jurisdiction regarding compensation. The Court of Claims later granted summary judgment to respondents, finding a “taking.” The Appellate Division affirmed. The New York Court of Appeals reversed.

    Issue(s)

    Whether the State’s action of requiring a nursing home to remain open and operating until reasonable alternative arrangements could be made for the continued care of the patients constituted a “taking” of property under the Fifth and Fourteenth Amendments of the U.S. Constitution and Article 1, Section 7 of the New York Constitution.

    Holding

    No, because the State’s actions, preventing the precipitous closing of a nursing home in contravention of the regulations of the Department of Health, did not constitute a “taking” of property under the Federal or State Constitutions.

    Court’s Reasoning

    The court reasoned that the nursing home industry is subject to extensive state regulation to control costs and ensure adequate provision of facilities. Regulations prevent nursing homes from discontinuing operation without 90 days’ notice and the Commissioner of Health’s approval. The court applied factors used to determine if a taking has occurred: the economic impact of the government’s action, its frustration of reasonable investment-backed expectations, and the action’s public purpose. Citing Penn Central Transp. Co. v New York City, 438 U.S. 104 (1978). The court cited Justice Holmes stating that a person “cannot be compelled to carry on even a branch of business at a loss, much less the whole business”. However, the court emphasized the narrowness of that rule, and that a person’s right to cease operations is not a per se taking in a pervasively regulated industry with administrative procedures for terminating service. The court held that a business “may be made to suffer interim reasonable losses, without compensation, for a reasonable period of time during which solutions accommodating the public and private interests can be devised.” The State conferred upon the owners the exclusive right to operate a nursing home because the public interest required exclusivity. Therefore, the State may enforce the obligation that there not be immediate termination of nursing home services, because such use of the property threatens imminent injury to the public. “Long ago it was recognized that ‘all property in this country is held under the implied obligation that the owner’s use of it shall not be injurious to the community’ “, citing Keystone Bituminous Coal Assn. v DeBenedictis, 480 U.S. 470 (1987).

  • Kuriansky v. Bed-Stuy Health Care Corp., 73 N.Y.2d 875 (1989): Provisional Remedies and Preservation of Constitutional Claims

    Kuriansky v. Bed-Stuy Health Care Corp., 73 N.Y.2d 875 (1989)

    A party must properly raise and preserve a constitutional challenge at the trial level to allow for appellate review; broad assertions of constitutional violations are insufficient.

    Summary

    This case concerns the propriety of provisional remedies (attachment and preliminary injunction) obtained by the plaintiff in a civil forfeiture action. The New York Court of Appeals affirmed the lower court’s decision, holding that the plaintiff made a sufficient showing to justify the provisional remedies. Furthermore, the Court held that the defendants’ claim that conditioning relief from the provisional restraints upon disclosure of potentially incriminating financial information violated their Fifth and Sixth Amendment rights was not preserved for appellate review, as the argument was not specifically raised and ruled upon in the lower courts. A general assertion of Fifth Amendment rights was deemed insufficient. Therefore, the order of the Appellate Division was affirmed.

    Facts

    The specific facts underlying the forfeiture action against Bed-Stuy Health Care Corp. are not detailed in this memorandum opinion. However, the plaintiffs sought and obtained provisional remedies, including attachments and preliminary injunctions, to restrain the defendants’ assets during the pendency of the forfeiture proceedings. The defendants sought relief from these restraints, arguing that doing so would violate their Fifth and Sixth Amendment rights.

    Procedural History

    The Supreme Court granted the plaintiffs’ motions for provisional relief. The defendants appealed, arguing that conditioning relief from the provisional restraints upon the disclosure of potentially incriminating financial information was precluded by the Fifth and Sixth Amendments. The Appellate Division affirmed the Supreme Court’s order. The defendants then appealed to the New York Court of Appeals. The Court of Appeals affirmed the Appellate Division’s order.

    Issue(s)

    Whether the defendants adequately preserved their claim that conditioning relief from provisional restraints upon the disclosure of potentially incriminating financial information violated their Fifth and Sixth Amendment rights, thus entitling them to appellate review of that claim.

    Holding

    No, because the defendants did not specifically invoke their Fifth Amendment privilege or raise the argument they now advance on appeal in the lower courts. The Court of Appeals held that a broad assertion of Fifth Amendment violations was insufficient to preserve the specific argument for appellate review.

    Court’s Reasoning

    The Court of Appeals based its decision on the principle of preservation of issues for appellate review. The Court stated that “the record does not demonstrate either that defendants ever actually attempted to invoke their Fifth Amendment privilege or that they made the argument they now advance on appeal.” The Court emphasized that the defendants only broadly argued that “CPLR Article 13-A violates defendants’ Fifth Amendment rights,” which was insufficient to preserve the specific argument regarding the disclosure of financial information as a condition for relief from the provisional restraints. Because the issue was not properly raised and ruled upon in the lower courts, the Court of Appeals declined to address the merits of the constitutional claim. This holding reinforces the importance of raising specific legal arguments and creating a clear record in the lower courts to preserve those arguments for appellate review. This is a fundamental principle of appellate procedure and ensures that the trial court has the initial opportunity to address and rule upon the legal issues presented.

  • People v. Hager, 69 N.Y.2d 141 (1987): Physical Dexterity Tests and Self-Incrimination

    People v. Hager, 69 N.Y.2d 141 (1987)

    Physical dexterity tests, such as walking a straight line, do not constitute testimonial evidence protected by the Fifth Amendment privilege against self-incrimination because they exhibit a person’s physical coordination, not their subjective knowledge or thought processes.

    Summary

    Hager was convicted of leaving the scene of an accident. Police apprehended him shortly after the incident and, smelling alcohol on his breath, administered physical coordination tests (e.g., balancing, walking a straight line) and a breathalyzer test without providing Miranda warnings. Hager argued the performance test results should be suppressed as a violation of his Fifth Amendment rights. The New York Court of Appeals affirmed the conviction, holding that physical dexterity tests do not elicit testimonial evidence and therefore do not trigger the requirement for Miranda warnings.

    Facts

    Catherine Kuehhas was struck by a car driven by Hager at approximately 12:40 a.m. on May 9, 1983.
    Eyewitnesses reported that Hager stopped briefly at the scene but then drove away without providing identification.
    Police pursued and apprehended Hager shortly after the incident.
    The investigating officer detected the smell of alcohol on Hager’s breath.
    Hager was taken to Central Testing Headquarters and consented to physical coordination tests and a breathalyzer test.
    Miranda warnings were not given before the physical coordination tests.

    Procedural History

    Hager was convicted of violating Vehicle and Traffic Law § 600 (2)(a) and (b) (leaving the scene of an accident) and sentenced to probation.
    Hager appealed, arguing that the physical performance test results should have been suppressed.
    The Appellate Division affirmed the conviction.
    Hager appealed to the New York Court of Appeals.

    Issue(s)

    Whether the results of physical coordination tests administered to a suspect without Miranda warnings are admissible as evidence, or whether they violate the suspect’s privilege against self-incrimination under the Fifth Amendment and the New York State Constitution.

    Holding

    No, because the privilege against self-incrimination applies only to testimonial or communicative evidence, and physical performance tests demonstrate a person’s physical condition rather than revealing subjective knowledge or thought processes.

    Court’s Reasoning

    The court reasoned that the privilege against self-incrimination protects individuals from being compelled to provide “evidence of a testimonial or communicative nature” (citing Schmerber v. California, 384 U.S. 757, 761). The key distinction lies between evidence that reveals a person’s subjective knowledge or thought processes and evidence that simply exhibits a person’s physical characteristics or condition.
    The court stated, “Evidence is ‘testimonial or communicative’ when it reveals a person’s subjective knowledge or thought processes.”
    Physical performance tests, such as balancing tests and walking a straight line, fall into the latter category. They demonstrate a person’s degree of physical coordination, which is observable by police officers, rather than revealing any thoughts or beliefs.
    “The defendant’s responses to those tests in this case indicated he had imbibed alcohol, not because the tests revealed defendant’s thoughts, but because his body’s responses differed from those of a sober person” (citing People v. Boudreau, 115 A.D.2d 652, 654).
    The court concluded that because the performance tests did not elicit testimonial evidence, Miranda warnings were not required prior to their administration. The evidence obtained from the tests was therefore admissible.

  • People v. Rush, 68 N.Y.2d 350 (1986): Scope of Transactional Immunity for Grand Jury Testimony

    People v. Rush, 68 N.Y.2d 350 (1986)

    A Grand Jury witness who testifies without waiving immunity receives transactional immunity concerning the subject of their compelled testimony, precluding prosecution for prior inconsistent statements related to that testimony.

    Summary

    Anthony Rush, a witness to a shooting, gave a sworn statement to police identifying the shooter. Later, before a Grand Jury, without waiving immunity, Rush recanted his statement. He was then indicted for perjury, with the indictment alleging that either his statement to the police or his Grand Jury testimony was false. Rush sought to dismiss the indictment based on transactional immunity. The Court of Appeals held that Rush’s Grand Jury testimony granted him transactional immunity regarding his prior statement to the police, barring prosecution for perjury based on the inconsistency between the two statements. This decision clarifies the scope of transactional immunity and its implications for perjury prosecutions.

    Facts

    Anthony Rush witnessed a shooting and identified Lucas Bouges as the shooter in a sworn statement to the police. Subsequently, Rush was called to testify before a Grand Jury investigating the shooting. Without waiving immunity, Rush testified before the Grand Jury that he had lied to the police and that Bouges was not the shooter.

    Procedural History

    A Grand Jury indicted Rush for second-degree perjury. Rush moved to dismiss the indictment, claiming transactional immunity. The trial court denied the motion, reducing the charge to third-degree perjury but rejecting the immunity claim. Rush then commenced an Article 78 proceeding seeking a writ of prohibition to enjoin the prosecution. The Appellate Division granted the petition and dismissed the indictment. The People appealed to the Court of Appeals.

    Issue(s)

    1. Whether prohibition under CPLR Article 78 is available to raise a claim of immunity from prosecution.
    2. Whether Rush’s Grand Jury testimony conferred transactional immunity regarding his prior sworn statement to the police, thus precluding a perjury prosecution based on the inconsistency between the two statements.

    Holding

    1. Yes, because prohibition is appropriate when a court acts without jurisdiction or exceeds its authorized powers, particularly when implicating fundamental constitutional rights like the privilege against self-incrimination.
    2. Yes, because Rush’s Grand Jury testimony, given without waiving immunity, concerned the truthfulness of his prior sworn statement, thus conferring transactional immunity that bars prosecution for perjury based on the prior inconsistent statement.

    Court’s Reasoning

    The Court of Appeals first addressed the propriety of using prohibition to assert a claim of immunity. Referencing previous cases such as Matter of Steingut v. Gold, the Court emphasized that prohibition is an extraordinary remedy, available only where there is a clear legal right and a court acts without or in excess of jurisdiction. The Court noted, “prohibition will not lie as a means of seeking collateral review of mere trial errors of substantive law or procedure, however egregious the error may be, and however cleverly the error may be characterized by counsel as an excess of jurisdiction or power.” However, the Court found prohibition appropriate here because Rush’s claim of immunity implicated his Fifth Amendment privilege against self-incrimination, making the potential harm (unconstitutional prosecution) uncorrectable through ordinary appeal.

    On the merits, the Court focused on the scope of transactional immunity under CPL 190.40 and CPL 50.10. CPL 190.40(1) states: “Every witness in a grand jury proceeding must give any evidence legally requested of him regardless of any protest or belief on his part that it may tend to incriminate him.” The Court found that Rush’s Grand Jury testimony directly addressed the veracity of his prior sworn statement. Despite the People’s argument that Rush was called to testify about the homicide, the prosecutor directly questioned him about the truthfulness of his police statement. Because Rush testified about the prior statement without waiving immunity, he received transactional immunity for it.

    The Court acknowledged that CPL 50.10(1) allows for perjury prosecutions based on false testimony given “in such legal proceeding.” However, the indictment against Rush relied on Penal Law § 210.20, which allows prosecution for inconsistent statements without specifying which statement is false. This meant the jury could convict Rush based on the falsity of the prior police statement, which was barred by the transactional immunity. The Court reasoned that, “Because this indictment would permit the jury either to convict petitioner of the very crime for which he has been granted immunity, or to use evidence of that crime to convict him of perjury committed before the Grand Jury, and because prosecution thereunder necessarily implicates a violation of petitioner’s privilege against self-incrimination, it is fatally defective.”

  • People v. Chan, 68 N.Y.2d 233 (1986): Witness’s Assertion of Privilege and Right to Confrontation

    People v. Chan, 68 N.Y.2d 233 (1986)

    When a witness invokes their Fifth Amendment privilege against self-incrimination during cross-examination, the direct testimony need only be stricken if the refusal to answer pertains to matters directly related to the direct examination, thereby creating a substantial risk of prejudice to the defendant.

    Summary

    Peter Chan and Billy Chin were convicted of attempted murder. The key issue was whether their constitutional right to confront a witness (the victim, Robert Hu) was violated when Hu invoked his Fifth Amendment right against self-incrimination during cross-examination. The New York Court of Appeals held that the defendants’ right to confrontation was not violated because the areas Hu refused to answer were either collateral to his direct testimony or were sufficiently explored through other means, and therefore the trial court did not err in declining to strike Hu’s direct testimony.

    Facts

    Robert Hu, leader of the Ghost Shadows gang, was the target of a shooting stemming from a gang war with the White Tigers, a rival gang formed by Nickie Louie, a former member of the Ghost Shadows. Chan and Chin were members of the White Tigers. Hu met with Louie, where Louie demanded Hu relinquish control of the Mott Street rackets. Hu refused and left. Outside the coffee shop, Chin was observed with a gun. Shots were fired, and Hu identified Chan and Chin as the shooters. Hu had an extensive criminal record and pending charges.

    Procedural History

    The defendants, Chan and Chin, were convicted of attempted murder in the second degree in the Supreme Court, New York County. The Appellate Division, First Department, affirmed the judgments. The case was appealed to the New York Court of Appeals, arguing a violation of the right to confrontation.

    Issue(s)

    Whether the defendants were denied their constitutional right to confront an adverse witness when that witness invoked his privilege against self-incrimination on cross-examination.

    Holding

    No, because the witness’s invocation of the privilege concerned matters that were either collateral to his direct examination or sufficiently explored through other evidence, and did not prejudice the defendants.

    Court’s Reasoning

    The Court of Appeals acknowledged the fundamental right to confront witnesses through cross-examination, but clarified that this right is not unlimited. A witness may invoke the Fifth Amendment privilege against self-incrimination. The court distinguished between invoking the privilege on collateral matters (not requiring the striking of direct testimony) and invoking it on matters directly related to the direct examination (potentially requiring the striking of direct testimony). The court stated that “the ultimate question must be whether the defendant’s inability to test the accuracy of the witness’ direct examination has been such as to create a substantial risk of prejudice.” Here, the court found that the areas of inquiry that were foreclosed were either collateral or cumulative. The defense was able to cross-examine Hu about the events of the shooting. The defense argued five specific areas where cross-examination was improperly limited: Hu’s possible involvement in another gang member’s murder, promises or threats made to Hu by law enforcement, Hu’s participation in the coffee shop conversation, Hu’s leadership of the Ghost Shadows, and Hu’s involvement in a later shooting of defendant Chin. The court found that defendants had ample opportunity to advance their theories. As to possible promises or threats, Hu confirmed he had no agreements with the People, other than the immunity granted for his testimony. The court determined that “all collateral facts relevant to Hu’s bias, credibility, and motive were established through the cross-examination of Hu and through the testimony of other witnesses.” Therefore, the trial court did not abuse its discretion in declining to strike Hu’s direct testimony. The court also noted that New York’s immunity statutes grant full transactional immunity, which may understandably make prosecutors reluctant to request immunity.

  • Matter of Brian AA, 71 N.Y.2d 63, (1987): Right to Counsel During Juvenile Mental Health Diagnostic Study

    71 N.Y.2d 63 (1987)

    A juvenile does not have a Sixth Amendment right to counsel’s presence during a court-ordered diagnostic mental health study conducted after a fact-finding hearing but before a dispositional hearing; the applicable standard is fundamental fairness, which is satisfied by pre-hearing disclosure of the examiner’s report and the opportunity to cross-examine and present contrary evidence.

    Summary

    This case addresses whether a juvenile has the right to have counsel present during a court-ordered diagnostic mental study conducted between the fact-finding and dispositional hearings. The New York Court of Appeals held that the juvenile does not have a Sixth Amendment right to counsel’s presence at the examination. The Court reasoned that, unlike a pre-trial sanity examination, the diagnostic study occurs after a determination of guilt, making it more analogous to the sentencing phase of an adult trial. The Court stated that pre-hearing disclosure of the mental health report and the opportunity to cross-examine and present contrary evidence satisfy the requirement of fundamental fairness.

    Facts

    A juvenile, Brian AA, was adjudicated a juvenile delinquent. Subsequent to the fact-finding hearing, but before the dispositional hearing, the court ordered a diagnostic mental study of Brian. Brian’s attorney was not permitted to be present during the study. Brian appealed, arguing that his constitutional rights were violated.

    Procedural History

    The Family Court ordered the diagnostic mental study. The Appellate Division affirmed the Family Court’s decision without opinion. Brian AA appealed to the New York Court of Appeals, arguing a constitutional right to counsel’s presence and a violation of his Fifth Amendment rights due to the lack of Miranda warnings.

    Issue(s)

    1. Whether a juvenile has a Sixth Amendment right to have counsel present during a court-ordered diagnostic mental health study conducted after a fact-finding hearing but before a dispositional hearing.

    2. Whether the failure to administer Miranda warnings prior to the court-ordered mental health examination of a juvenile violates the juvenile’s Fifth Amendment right against self-incrimination.

    Holding

    1. No, because the diagnostic study occurs after the juvenile has been found to have committed an act that would be a crime if committed by an adult, placing the juvenile in a position analogous to the sentencing stage of an adult criminal proceeding, where the “full panoply of constitutional rights” does not apply.

    2. No, because Estelle v. Smith, which required Miranda warnings in the context of a capital sentencing examination, has been limited to its unique facts and distinguished in subsequent noncapital cases. The court noted that it did not hold “that the same Fifth Amendment concerns are necessarily presented by all types of interviews and examinations that might be ordered or relied upon to inform a sentencing determination.”

    Court’s Reasoning

    The Court reasoned that the diagnostic study occurs after the fact-finding hearing, where the juvenile has already been found to have committed an act that would be a crime if committed by an adult. Therefore, the juvenile’s position is more analogous to the sentencing stage of an adult criminal proceeding. Citing People v. Perry, the Court noted that the “full panoply of constitutional rights” does not apply at sentencing. The governing standard is fundamental fairness, which requires that the defendant have an opportunity to refute aggravating factors influencing the court. The court held that “pre-hearing disclosure of the mental health examiner’s report (Family Ct Act § 351.1 [4]), coupled with the right to cross-examine and submit a counter psychiatric study or other evidence (Family Ct Act § 350.4 [4]) amply satisfies the constitutional requisite”. Regarding the Fifth Amendment claim, the Court distinguished Estelle v. Smith, noting that the Supreme Court itself limited that holding. The Court of Appeals concluded that appellant was not entitled to Miranda admonitions, citing People v Ronald W.

  • People v. Ferro, 538 N.Y.S.2d 317 (1983): Defining Interrogation After Invocation of Miranda Rights

    People v. Ferro, 57 N.Y.2d 786, 440 N.E.2d 1337, 455 N.Y.S.2d 596 (1983)

    Interrogation, for Miranda purposes, includes any police conduct the police should know is reasonably likely to elicit an incriminating response from a suspect, considering the officer’s knowledge of the suspect, even if it doesn’t involve direct questioning.

    Summary

    Ferro was arrested for murder and invoked his Miranda rights. Police then placed stolen furs from the victim’s residence in front of his cell. Ferro subsequently made incriminating statements. The New York Court of Appeals held that placing the furs in front of Ferro’s cell constituted interrogation because the police should have known it was reasonably likely to elicit an incriminating response, and because he hadn’t received fresh Miranda warnings, the statements were inadmissible. The Court emphasized that the focus is on what the police should have known, not their subjective intent.

    Facts

    Lillian Sher was murdered during a robbery in which furs were stolen. Ferro was arrested for the murder. After being read his Miranda rights, Ferro declined to answer any questions. While in a detention cell, Ferro asked to speak to a District Attorney. A detective told him he would have to say what he wanted to discuss. Ferro said nothing further. The detective and his partner then placed the stolen furs in front of Ferro’s cell. Ferro then said he wanted to speak to a District Attorney, stating he would tell them what they wanted to know if the D.A. could do something for him. He then requested to speak to an Italian detective, and after speaking with Detective Cassi, he made incriminating statements.

    Procedural History

    The trial court denied Ferro’s motion to suppress his statements. Ferro was convicted of felony murder. The Appellate Division affirmed the conviction. The Court of Appeals granted leave to appeal.

    Issue(s)

    Whether placing stolen furs in front of a suspect’s jail cell, after the suspect has invoked his right to remain silent, constitutes interrogation under Miranda.

    Holding

    Yes, because the police should have known that placing the furs in front of the suspect, who had previously requested to speak with a District Attorney, was reasonably likely to elicit an incriminating response, and he did not receive fresh Miranda warnings before making his statements.

    Court’s Reasoning

    The court relied on Miranda v. Arizona, which requires that interrogation cease once a suspect indicates a desire to remain silent. That right must be “scrupulously honored.” The Court cited Rhode Island v. Innis, clarifying that interrogation includes not only express questioning but also “any words or actions on the part of the police…that the police should know are reasonably likely to elicit an incriminating response.” The Court explicitly stated that the focus is on the police’s knowledge and what they “should have known,” not on their subjective intent. The Court reasoned that by placing the furs in front of Ferro after he had requested a D.A., the police “should have known…that doing so was reasonably likely to elicit from defendant an incriminating response.” In such a situation, where “the only possible object of the police action in revealing evidence to a defendant is to elicit a statement from him, it does no violence to logic to conclude that the police should have known that it would do so.” Therefore, Ferro’s statements were inadmissible because his right to cut off questioning was not scrupulously honored. The Court distinguished this case from situations where police conduct is in furtherance of routine administrative duties.

  • In re Grand Jury Subpoena for Documents in the Custody of Bekins Record Storage Co., 62 N.Y.2d 324 (1984): Attorney-Client Privilege and Document Disclosure

    In re Grand Jury Subpoena for Documents in the Custody of Bekins Record Storage Co., 62 N.Y.2d 324 (1984)

    A client cannot assert the attorney-client privilege for documents in their lawyer’s possession if the documents were not created for litigation or to seek/provide legal advice, and they are not otherwise privileged. The mere fact that documents were confidentially shared with a lawyer does not make them privileged communications.

    Summary

    A grand jury investigating loan fraud issued a subpoena to a record storage company for files of a law firm (“C & D”) representing two individuals (“A” and “B”). The individuals sought to quash the subpoena, claiming attorney-client privilege, work product protection, and Fifth Amendment rights. After an in camera review, the lower court ordered most documents disclosed. The New York Court of Appeals held that the Fifth Amendment privilege against self-incrimination does not extend to the contents of voluntarily prepared business papers and that most of the documents were not protected by the attorney-client privilege because they were either business-related or contracts between the clients, not confidential communications with the attorney. However, a letter from the client to the attorney regarding settlement negotiations was protected.

    Facts

    • A grand jury was investigating potential loan fraud.
    • The grand jury subpoenaed Bekins Record Storage Co., which stored files of the law firm C & D, who represented individuals A and B, targets of the investigation.
    • The subpoena demanded all files relating to C & D’s representation of A and B.
    • A and B moved to quash the subpoena, arguing attorney-client privilege, work product protection, and Fifth Amendment protection.

    Procedural History

    • Supreme Court conducted an in camera review of the documents.
    • Supreme Court granted the motion to quash for documents in 19 files but ordered disclosure for the rest.
    • The Appellate Division quashed the subpoena for two additional documents and affirmed the Supreme Court’s order in all other respects.
    • The New York Court of Appeals granted leave to appeal.

    Issue(s)

    1. Whether documents that would be protected by the Fifth Amendment privilege against self-incrimination in the client’s hands remain protected after being transferred to the attorney.
    2. Whether certain documents constitute privileged attorney-client communications.

    Holding

    1. No, because the Fifth Amendment privilege does not extend to the contents of voluntarily prepared business papers.
    2. No, for most documents because they were either business-related, contracts between the clients, or communications unrelated to legal advice; Yes, for one document (Document No. 121) because it was a confidential letter from the client to the attorney regarding settlement negotiations.

    Court’s Reasoning

    • Fifth Amendment Claim: The court relied on United States v. Doe, stating that the Fifth Amendment does not protect the contents of voluntarily prepared business papers. The court acknowledged the concern that responding to a subpoena and authenticating documents might be compelled, incriminating testimony, but stated that this was a factual determination that had not been properly raised in the lower courts.
    • Attorney-Client Privilege: The court stated that the privilege protects “evidence of a confidential communication made between the attorney or his employee and the client in the course of professional employment” (CPLR 4503, subd [a]). The communication must be for the purpose of obtaining legal advice from an attorney consulted for that purpose (Matter of Priest v Hennessy, 51 NY2d 62, 68-69). The court reasoned that Document No. 36 was conveyed while the attorney was acting as a commercial consultant, and Document No. 148 was a communication unrelated to legal advice. Neither was protected.
    • Executed Contract (Document No. 98): The court held that a completed contract is a communication between the contracting parties (the clients), not a confidential communication from client to attorney. Therefore, it is not protected by the attorney-client privilege.
    • Settlement Negotiation Letter (Document No. 121): This was a letter from the client to the attorney relating the results of settlement negotiations. The court found this to be “the classic situation of the discussion by a person of a matter under litigation with his or her attorney,” and therefore protected.

  • People v. Johnson, 55 N.Y.2d 931 (1982): Invoking Right to Counsel Requires Unequivocal Assertion

    People v. Johnson, 55 N.Y.2d 931 (1982)

    A suspect’s statement to police that they might consult with an attorney is insufficient to invoke the right to counsel; the suspect must unequivocally inform the police of their intention to retain counsel.

    Summary

    The New York Court of Appeals reversed the Appellate Division’s order and reinstated the trial court’s judgment convicting the defendant of sexual abuse. The court held that the defendant’s statement to police that he was going to see an attorney was insufficient to invoke his right to counsel. Because the defendant was not in custody, nor had he unequivocally informed the police of his intention to retain counsel, his subsequent statements were admissible in evidence.

    Facts

    The defendant, a 19-year-old school bus driver, was accused of sexually abusing a 10-year-old handicapped girl on his bus on September 27, 1977. The police learned of the incident the next day and contacted the defendant through his employer, who was also his uncle, asking him to come to the police station. The defendant initially denied the allegations. Later, inconsistencies arose, and the police contacted the defendant’s uncle again on October 4 to request further questioning. The defendant then admitted inaccuracies but still denied touching the victim and agreed to take a polygraph examination. On October 10, a detective notified the defendant that the polygraph was scheduled for October 13. The defendant stated that he was going to Manhattan to see his mother and then an attorney, but did not provide details about meeting the attorney.

    Procedural History

    The defendant was convicted of sexual abuse in the first degree at trial. He moved to suppress his statements, arguing Fifth Amendment violations. The trial court denied the motion. The Appellate Division reversed, holding that the defendant’s right to counsel had been violated, citing People v. Woodard and People v. Skinner. The People appealed to the New York Court of Appeals.

    Issue(s)

    Whether the defendant’s statement that he was going to meet with an attorney was sufficient to invoke his right to counsel, thereby rendering his subsequent statements inadmissible.

    Holding

    No, because under the circumstances, it was not enough to invoke his right to counsel under the circumstances that he suggested to the police that he might consult a lawyer. His statements were admissible unless he had retained counsel on the matter under investigation to the knowledge of the police or had unequivocally informed the police of his intention to do so.

    Court’s Reasoning

    The court distinguished this case from People v. Woodard, where the defendant made a clear and categorical request for counsel during custodial interrogation, and People v. Skinner, where the police were aware that the defendant had retained counsel. The court emphasized that the defendant was not subject to custodial interrogation, nor had his right to counsel attached at the time he made the statement about seeing an attorney. The Court of Appeals stated the rule that after a suspect in custody requests counsel, any evidence obtained without counsel and without counsel’s consent is inadmissible at trial. Similarly, once formal charges are filed, the right to counsel attaches regardless of whether the defendant requests it. However, in this case, the defendant was free for two weeks, had access to competent adults, and had not unequivocally indicated his intention to retain counsel. The court stated, “It was not enough to invoke his right to counsel under the circumstances that he suggested to the police that he might consult a lawyer.” Therefore, the court concluded that his statements were admissible because he had not retained counsel to the knowledge of the police or unequivocally informed them of his intent to do so. The court reasoned that to trigger the right to counsel, a suspect must clearly and unambiguously assert their desire to have an attorney present during questioning. A mere mention of a possible consultation is insufficient to create this constitutional protection.

  • In re Grand Jury Subpoena Duces Tecum, 45 N.Y.2d 677 (1978): Required Records Exception to Fifth Amendment Privilege

    In re Grand Jury Subpoena Duces Tecum, 45 N.Y.2d 677 (1978)

    The Fifth Amendment privilege against self-incrimination does not apply to records that are required by law to be kept and are subject to governmental regulation and inspection.

    Summary

    This case addresses whether physicians can invoke the Fifth Amendment privilege against self-incrimination to avoid producing records subpoenaed by a grand jury. The New York Court of Appeals held that the “required records exception” to the Fifth Amendment privilege applies because the physicians were legally obligated to maintain the records, which were subject to governmental inspection. This exception ensures that regulatory laws are enforceable by preventing individuals from using the Fifth Amendment to shield required records.

    Facts

    A Grand Jury issued a subpoena duces tecum to physician appellants, demanding the production of certain medical and billing records. These records related to patient treatments and financial transactions. The physicians refused to produce the records, asserting their Fifth Amendment privilege against self-incrimination, arguing that the records could potentially incriminate them.

    Procedural History

    The lower courts ordered the physicians to produce the subpoenaed records. The physicians appealed, arguing that the subpoena violated their Fifth Amendment rights. The Appellate Division affirmed the lower court’s decision. The New York Court of Appeals then reviewed the case.

    Issue(s)

    1. Whether the Fifth Amendment privilege against self-incrimination protects physicians from being compelled to produce medical and billing records that they are required by law to maintain and are subject to governmental inspection.
    2. Whether the demand for billing records exceeded the scope of disclosure permitted under Section 17 of the Public Health Law.

    Holding

    1. No, because the required records exception to the Fifth Amendment privilege applies to records that are required by law to be kept and are subject to governmental regulation and inspection.
    2. The court did not rule on this issue because of its holding regarding the required records exception rendering the issue moot.

    Court’s Reasoning

    The Court of Appeals reasoned that the Fifth Amendment privilege, which typically protects private papers from compelled disclosure, does not extend to records required to be kept by law and subject to governmental regulation. The court relied on the “required records exception,” citing Shapiro v. United States, Davis v. United States, Wilson v. United States, Matter of Cappetta, and Matter of Sigety v. Hynes. These cases establish the principle that allowing the Fifth Amendment privilege to protect such records would undermine the enforcement of state and federal laws.

    The court emphasized that physicians were legally obligated to maintain the subpoenaed records under 8 NYCRR 29.2(3) and, under certain circumstances, to make them available for governmental inspection as per Public Health Law § 230(10)(k). Therefore, the court held that the physicians’ personal privilege against self-incrimination did not apply to the records sought.

    The court quoted United States v. White, stating that to allow the privilege to cloak such records would make enforcement of State and Federal laws impossible.

    The court found it unnecessary to rule on the appellants’ claim that the demand for billing records exceeded the scope of disclosure pursuant to section 17 of the Public Health Law, noting that CPL 190.40(1) requires witnesses in Grand Jury proceedings to provide “any evidence legally requested”. The Court disposed of the appeal based on the “required records exception”.