county of new york: motion submissions part, room...
TRANSCRIPT
Index No. 103569/2012
Supreme Court of the State of New York County of New York: Motion Submissions Part, Room 130
In the Matter of the Application of
MALCOLM HARRIS,
Petitioner,
For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules
-against-
HON. MATTHEW A. SCIARRINO, Judge,
Criminal Court of the City of New York, County of New York,
Respondent, -and-
CYRUS R. VANCE, JR., District Attorney for the County of New York,
-and-
TWITTER, INC.,
Additional Parties - Respondents.
MEMORANDUM OF LAW IN SUPPORT OF THE DISTRICT ATTORNEY’S CROSS-MOTION TO DISMISS
CYRUS R. VANCE, JR.
District Attorney New York County One Hogan Place
New York, New York 10013 (212) 335-9000
[email protected] LEE LANGSTON
ALAN GADLIN RICHARD NAHAS ASSISTANT DISTRICT ATTORNEYS Of Counsel
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TABLE OF CONTENTS Page
TABLE OF AUTHORITIES ............................................................................................. iii
INTRODUCTION................................................................................................................ 2
ARGUMENT
PETITIONER CANNOT USE AN ARTICLE 78 PROCEEDING TO CHALLENGE THE TRIAL JUDGE’S DENIAL OF HIS MOTION TO QUASH SUBPOENAS. ................................................................................................. 5
Petitioner is not entitled to a writ of prohibition. ....................................... 5
Petitioner is not entitled to a writ of mandamus. ...................................... 21
CONCLUSION ................................................................................................................... 24
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TABLE OF AUTHORITIES
FEDERAL CASES
Hubbard v. MySpace, Inc., 788 F.Supp.2d 319 (S.D.N.Y. 2011) ................................... 21
STATE CASES
Cayuga Indian Nation of N.Y. v. Gould, 14 N.Y.3d 614 (2010)................................ 7, 15
Kramer v. Rosenberger, 107 A.D.2d 748 (2d Dept. 1985) .............................................. 3, 22
Matter of Agnello v. Armer, 56 A.D.2d 712 (4th Dept. 1977) ....................................... 11
Matter of Aurnou v. Leggett, 79 A.D.2d 623 (2d Dept. 1980) ............................. 9, 12, 15
Matter of Brown v. Grosso, 285 A.D.2d 642 (2d Dept. 2001)....................................... 14
Matter of B. T. Prods., Inc. v. Barr, 44 N.Y.2d 226 (1978) ................................. 12-13, 16
Matter of Cohen v. Demakos, 144 A.D.2d 605 (2d Dept. 1988) ................................... 11
Matter of Giordano v. Mackston, 240 A.D.2d 578 (2d Dept. 1997) .................................. 22
Matter of Holman v. Ferdinand, 228 A.D.2d 441 (2d Dept. 1996) ............................... 11
Matter of Jacobs v. Altman, 69 N.Y.2d 733 (1987) .......................................................... 6, 16
Matter of La Rocca v. Lane, 37 N.Y.2d 575 (1975) ........................................................... 6
Matter of Legal Aid Society of Sullivan County v. Scheinman, 53 N.Y.2d 12 (1981) ........................................................................................................................ 3-4, 21-22
Matter of Lipari v. Owens, 70 N.Y.2d 731 (1987) ......................................................... 7, 9
Matter of Molea v. Marasco, 64 N.Y.2d 718 (1984) .......................................................... 7
Matter of Mulvaney v. Dubin, 55 N.Y.2d 668 (1981) .................................................. 5, 15
Matter of Neal v. White, 46 A.D.3d 156 (1st Dept. 2007) ......................................... 5-6, 8
Matter of Nigrone v. Murtagh, 36 N.Y.2d 421 (1975) ..................................................... 4, 12
Matter of O'Neill v. King, 108 A.D.2d 772 (2d Dept. 1985) ...................................... 9, 15
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Matter of Pirro v. LaCava, 230 A.D.2d 909 (2d Dept. 1996) ......................................... 14
Matter of Powers v. Buscaglia, 251 A.D.2d 1093 (4th Dept. 1998) ................................... 22
Matter of Rush v. Mordue, 68 N.Y.2d 348 (1986) .......................................................... 5-9
Matter of State of New York v. King, 36 N.Y.2d 59 (1975) .......................................... 3, 6-7
Matter of Tucker v. Buscaglia, 262 A.D.2d 979 (4th Dept. 1999) ................................. 15
Matter of Veloz v. Rothwax, 65 N.Y.2d 902 (1985), rev’g 103 A.D.2d 715 (1st Dept. 1984) ........................................................................ 22-23
People ex rel. Livingston v. Wyatt, 186 N.Y. 383 (1906) ........................................... 5, 10-11
People v. Johnson, 103 A.D.2d 754 (2nd Dept. 1984) ...................................................... 8
People v. Kozlowski, 11 N.Y.3d 223 (2008) ....................................................................... 8
People v. Santos, 64 N.Y.2d 702 (1984) ........................................................................... 7-8
People v. Stevens, 91 N.Y.2d 270 (1998) ............................................................................ 7
People v. Villacorta, 76 A.D.3d 911 (1st Dept. 2010) ....................................................... 8
Rafferty v. Owens, 82 A.D.2d 582 (2d Dept. 1981) .......................................................... 8
FEDERAL STATUTES
18 U.S.C. §2703................................................................................................ 2, 11-13, 16-21
18 U.S.C. §2711......................................................................................................... 18, 20-21
STATE STATUTES
CPL 1.20 ................................................................................................................................ 17
CPL 10.10 .............................................................................................................................. 19
CPL 10.30 .............................................................................................................................. 19
CPL 20.40 .............................................................................................................................. 19
CPL 240.20 ............................................................................................................................ 14
CPL 240.30 ............................................................................................................................ 14
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CPL 255.20 ............................................................................................................................ 22, 23
CPL 450.10 .............................................................................................................................. 8
CPL 450.15 .............................................................................................................................. 8
CPL 610.10 ...................................................................................................................... 14, 18
CPL 610.20 ............................................................................................................................ 18
CPL 690.05 ............................................................................................................................ 19
CPL 690.20 ............................................................................................................................ 21
CPL 690.35 ............................................................................................................................ 19
CPLR 7801 ................................................................................................................................ 3, 5
CPLR 7803 .................................................................................................................................... 5
CPLR 7804 .............................................................................................................................. 2
Penal Law §10.00 .................................................................................................................. 17
OTHER AUTHORITIES
Orin Kerr, Comment, A User’s Guide to the Stored Communications Act, and the Legislator’s Guide to Amending It, 72 Geo Wash L Rev 1208, 1219 (2004) ................................................................................................................................ 12
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK MOTION SUBMISSIONS PART – ROOM 130 In the Matter of the Application of MALCOLM HARRIS, Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, -against- HON. MATTHEW A. SCIARRINO, Judge, Criminal Court of the City of New York, County of New York, Respondent, -and- CYRUS R. VANCE, JR., District Attorney, New York County, -and- TWITTER, INC., Additional Parties-Respondent.
MEMORANDUM OF LAW IN SUPPORT OF THE DISTRICT ATTORNEY’S CROSS-MOTION TO DISMISS Index No. 103569/2012 Hon. Carol E. Huff
This Memorandum of Law is submitted in support of the cross-motion of
Cyrus R. Vance, Jr., District Attorney, New York County, a respondent in this
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proceeding, pursuant to CPLR 7804(f), to dismiss the petition for CPLR Article 78
relief brought by petitioner Malcolm Harris.
INTRODUCTION
Dissatisfied with the trial court’s denial of motions to quash subpoenas issued to
Twitter as part of the criminal case pending against him, petitioner now seeks to short-
circuit the appellate process and instead obtain relief pursuant to CPLR Article 78. He
does not cite, much less distinguish, the binding precedent that makes clear that criminal
defendants are simply not entitled to interrupt their prosecutions to launch what is in
essence a pre-conviction collateral attack using Article 78 as the vehicle. His petition
should be dismissed in its entirety.
Petitioner divides his claims into ten causes of action. He seeks relief in the
nature of prohibition to enjoin the trial court from: 1) enforcing the People’s
subpoenas (First Cause of Action); 2) enforcing its order directing disclosure pursuant
to 18 U.S.C. §2703(d) of the Stored Communications Act (“SCA”) (Second Cause of
Action); and 3) reviewing the subpoenaed material in camera (Third Cause of Action).
In what he characterizes as a hybrid prohibition/mandamus claim, petitioner seeks to
enjoin Judge Sciarrino from relying on the third-party doctrine to deny petitioner
standing to challenge the subpoenas and orders, and to compel the judge to perform
what petitioner deems the correct standing analysis (Fourth Cause of Action). Finally,
petitioner seeks relief in the nature of mandamus, compelling Judge Sciarrino to find
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that petitioner has standing to move to quash the Twitter subpoenas, and then to rule
on the challenges petitioner is raising pursuant to the First, Fourth, and Fourteenth
Amendments, the State Constitution, the Electronics Communication Privacy Act, the
SCA, the Criminal Procedure Law (“CPL”) and common law (Fifth through Tenth
Causes of Action).
However, it is well established that mandamus and prohibition are
“extraordinary” remedies, which in any event “do not lie for interlocutory relief which
operates to disrupt the normal progress of a pending criminal action.” Matter of Legal
Aid Society of Sullivan County v. Scheinman, 53 N.Y.2d 12, 16 (1981); see CPLR
7801(2) (except where otherwise provided by law or in the case of orders summarily
punishing contempt of court, an Article 78 proceeding shall not be used to “challenge a
determination . . . made in a civil action or criminal matter”). Those remedies are
available only if there is “an unlawful use or abuse of the entire action or proceeding as
distinguished from an unlawful procedure or error in the action or proceeding itself
related to the proper purpose of the action or proceeding.” Matter of State of New
York v. King, 36 N.Y.2d 59, 64 (1975). “A CPLR Article 78 proceeding may not be
used to review [a judge’s] decisions in [a] pending criminal proceeding so as to direct
contrary decisions.” Kramer v. Rosenberger, 107 A.D.2d 748, 749 (2d Dept. 1985).
Instead, “[s]ound principles of judicial administration require” that if any errors are
committed during the course of the criminal proceeding, “their correction be left to the
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normal avenues of appellate review.” Matter of Legal Aid Society of Sullivan County v.
Scheinman, 53 N.Y.2d at 16.
Under these principles, it is clear that petitioner’s bid for Article 78 relief is utterly
inappropriate. Although he pretends that some of his claims go to the court’s
jurisdiction, in reality he is simply complaining that the judge’s rulings on his motion to
quash the People’s subpoenas were legally erroneous. He would, of course, be entitled
to raise such claims on direct appeal, if convicted. But petitioner is not authorized to
bring an interlocutory appeal challenging the judge’s determination, “and such
nonappealability may not be indirectly eluded by the device of an Article 78 proceeding.”
Matter of Nigrone v. Murtagh, 36 N.Y.2d 421, 425 (1975).
Before analyzing the propriety of petitioner’s resort to Article 78 relief, it is
important to clarify what exactly the People are seeking to obtain, as that continues to be
mischaracterized by petitioner (see, e.g., Pet.’s Memo. at 8-10). The People seek only
two things here and nothing else: (1) subscriber information linking the Twitter account
at issue to petitioner, and (2) public Tweets for the relevant time period, that is, only
those Tweets that petitioner broadcast to the entire world. This is clear from the
People’s subpoenas and the trial court’s June 30, 2012 order requiring Twitter to
comply.
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ARGUMENT
PETITIONER CANNOT USE AN ARTICLE 78 PROCEEDING TO CHALLENGE THE TRIAL JUDGE’S DENIAL OF HIS MOTION TO QUASH SUBPOENAS.
A. Petitioner is not entitled to a writ of prohibition.
A petition seeking Article 78 relief in the nature of prohibition may be granted
upon a showing that a “body or officer proceeded, is proceeding or is about to proceed
without or in excess of jurisdiction.” CPLR 7803(2). However, “[t]he writ of
prohibition is not favored by the courts.” People ex rel. Livingston v. Wyatt, 186 N.Y.
383, 393 (1906). In particular, prohibition “is, and must be, restricted so as to prevent
incessant interruption of pending judicial proceedings by those seeking collateral
review of adverse determinations made during the course of those proceedings.”
Matter of Rush v. Mordue, 68 N.Y.2d 348, 353 (1986); see Matter of Neal v. White,
46 A.D.3d 156, 159-60 (1st Dept. 2007); see also Matter of Mulvaney v. Dubin, 55
N.Y.2d 668, 669 (1981) (writ of prohibition is not available “as a means of seeking
collateral review of an error of law in a pending criminal action”). “Permitting liberal
use of this extraordinary remedy so as to achieve, in effect, premature appellate review
of issues properly reviewable in the regular appellate process would serve only to
frustrate the speedy resolution of disputes and to undermine the statutory and
constitutional schemes of ordinary appellate review.” Matter of Rush v. Mordue, 68
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N.Y.2d at 353; see Matter of La Rocca v. Lane, 37 N.Y.2d 575, 579 (1975); Matter of
State of New York v. King, 36 N.Y.2d at 61-64.
Thus, although a petitioner seeking Article 78 relief must demonstrate that a
“clear legal right” of his has been violated, Matter of Jacobs v. Altman, 69 N.Y.2d 733,
734 (1987); Matter of Rush v. Mordue, 68 N.Y.2d at 352, such a showing is not nearly
sufficient to entitle the petitioner to relief. The petitioner must also establish that the
“court exceed[ed] its jurisdiction or authorized power in such a manner as to implicate
the legality of the entire proceeding . . . .” Id. at 353; see Matter of Neal v. White, 46
A.D.3d at 159. In that regard, the Court of Appeals has cautioned “that errors of law,
which of course may be verbalized, but incorrectly, as excesses of jurisdiction or
power, are not to be confused with a proper basis for using the extraordinary writ.”
Matter of State of New York v. King, 36 N.Y.2d at 62; see Matter of Rush v. Mordue,
68 N.Y.2d at 353. For instance, a claim that the county in which a crime is being
prosecuted lacks geographic jurisdiction, or that the defendant has immunity from
prosecution, is a proper subject of a writ of prohibition; because the defendant cannot
be tried at all, “the propriety of the entire proceeding” is implicated. Matter of Rush
v. Mordue, 68 N.Y.2d at 353, 353. In contrast, “errors of substantive law or
procedure committed within a proceeding which is properly maintainable” cannot be
raised by way of a writ of prohibition, “however egregious the error may be . . . .” Id.
at 353; see, e.g., Matter of La Rocca v. Lane, 37 N.Y.2d at 579; Matter of Neal v.
White, 46 A.D.3d at 159.
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In fact, “even if there has been an excess of jurisdiction,” prohibition still does
not lie “if there is available an adequate remedy, by way of appeal or otherwise.”
Matter of Molea v. Marasco, 64 N.Y.2d 718, 720 (1984); see, e.g., Matter of Lipari v.
Owens, 70 N.Y.2d 731, 732-33 (1987); Matter of State v. King, 36 N.Y.2d at 62.
Thus, the Court of Appeals has established a “rule generally precluding a writ of
prohibition by a criminal defendant,” because “an adequate opportunity to raise legal
arguments and receive appropriate relief will be available to the defendant in the
criminal prosecution, particularly given a defendant’s right to appeal adverse rulings in
the event of a conviction.” Cayuga Indian Nation of N.Y. v. Gould, 14 N.Y.3d 614,
633 (2010).
Petitioner’s request for prohibition relief contravenes all of these principles.
Most obviously, petitioner is seeking to obtain what is in essence a premature appeal
of Judge Sciarrino’s legal rulings, even though he has an adequate remedy at law to
address all his claims – a direct appeal from the judgment of conviction, if he is
convicted. It is simply impermissible for petitioner to use an Article 78 proceeding in
this fashion, “however cleverly the [purported] errors may be characterized by counsel
as an excess of jurisdiction or power.” Matter of Rush v. Mordue, 68 N.Y.2d at 353.
To begin, petitioner plainly is not empowered to take an interlocutory appeal
from Judge Sciarrino’s orders. Absent specific statutory authorization in the CPL, a
party in a criminal proceeding cannot appeal from an order arising out of that
proceeding. See, e.g., People v. Stevens, 91 N.Y.2d 270, 277-78 (1998); People v.
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Santos, 64 N.Y.2d 702, 704 (1984). And the CPL provides a defendant with no right
to an interlocutory appeal in a criminal matter. CPL 450.10, 450.15; see Rafferty v.
Owens, 82 A.D.2d 582, 585 (2d Dept. 1981). Because no statute authorizes an appeal
from an order disposing of a motion to quash a subpoena issued after a criminal
action has commenced, a defendant in a criminal case cannot seek to appeal from
such an order. People v. Santos, 64 N.Y.2d at 704; People v. Johnson, 103 A.D.2d
754, 754-55 (2nd Dept. 1984).
Of course, a defendant has an adequate remedy to review the court’s order, as
“the propriety of an order disposing of such a motion to quash can be resolved on the
direct appeal from any resulting judgment of conviction.” People v. Johnson, 103
A.D.2d at 755; see, e.g., People v. Kozlowski, 11 N.Y.3d 223 (2008); People v.
Villacorta, 76 A.D.3d 911 (1st Dept. 2010). Indeed, while petitioner repeatedly insists
that he has “no adequate remedy at law,” in that enforcement of the subpoenas and
orders would lead to “constitutional violations that cannot be remedied on appeal”
(e.g., Pet. at ¶¶132-33, 158, 169-71, 185), he never explains why this is so. That
petitioner cannot appeal before “the ordeal of a criminal trial and the possibility of
conviction” does not render review by way of writ of prohibition appropriate. Matter
of Rush v. Mordue, 68 N.Y.2d at 354; see Matter of Neal v. White, 46 A.D.3d at 160.
Nor can petitioner prevail by complaining that disclosure may infringe on his
First Amendment and other privacy rights. See Pet.’s Memo. at 23, 29-30; Pet. at
¶¶166, 170. Prohibition is not available simply because the purported judicial error is
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of constitutional dimension. See Matter of Lipari v. Owens, 70 N.Y.2d at 732-33;
Matter of O'Neill v. King, 108 A.D.2d 772, 772 (2d Dept. 1985); see also Matter of
Rush v. Mordue, 68 N.Y.2d at 354. And it is certainly not enough for petitioner to
assert that, by deciding to further protect any rights he and Twitter might have by
conducting an in camera review of the documents before determining whether they
should be provided to the People, Judge Sciarrino would “make[] himself the principal
means by which the constitutional violations are effected.” Pet.’s Mem. at 20. In
Matter of Aurnou v. Leggett, 79 A.D.2d 623 (2d Dept. 1980), the Second Department
rejected the use of prohibition to review the trial judge’s order directing the defense to
disclose a private letter for in camera review, in order to assist the court in determining
whether the material was discoverable by the People. The appellate court reached
that conclusion even though the majority agreed that the defendant had presented a
“strong argument” that compliance with the order would violate his privilege against
self-incrimination, id. at 623, and despite the dissent’s protestation that “the harm
would be complete and irreparable upon disclosure of defendant’s private letter even
to the court, much less the district attorney,” id. at 624 (dissent). The majority
nonetheless concluded that any error could be remedied by an appeal from a
judgment of conviction, if one were obtained. Id. at 624. See Matter of O'Neill v.
King, 108 A.D.2d at 772 (prohibition does not lie to challenge judge’s determination
to conduct in camera interview of defendant as part of competency hearing, despite
10
claim that procedure would violate defendant’s Fifth Amendment rights, as defendant
“has an adequate remedy by appeal or habeas corpus”).
Because petitioner can challenge Judge Sciarrino’s order on direct appeal if he is
convicted, a writ of prohibition does not lie, even if petitioner’s claims had any merit.
A contrary determination not only would interfere with the course of a pending
criminal proceeding, but also would flout the limits on interlocutory appeals in
criminal cases imposed by the Legislature. Not surprisingly, then, courts have
repeatedly rejected efforts to use a writ of prohibition to challenge rulings such as the
one at issue here.
Most notably, over a century ago the Court of Appeals concluded that a writ of
prohibition cannot be used to challenge the validity of a subpoena, even in the face of
a finding that there was no jurisdiction to issue it. In People ex rel. Livingston v.
Wyatt, 186 N.Y. 383 (1906), a case not cited by petitioner, a magistrate in a criminal
case issued a subpoena requiring the recipient to produce nine years worth of business
records, so that “[n]o business secret would remain unknown if such a command was
obeyed.” Id. at 392. The Court of Appeals expressly opined that “the subpoena
issued by the magistrate was void upon its face,” and even found “strong reason for
believing that in this case criminal process has been used for improper purposes,” id.
at 393, going so far as to declare outright that the magistrate was “acting without
jurisdiction,” id. at 394. “[S]till,” the Court concluded, “prohibition is not the proper
remedy.” Id. The Court reasoned that “that form of relief can be resorted to only
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when there is no other.” Id. at 395. Here, likewise, because petitioner can raise any
valid challenges he has on direct appeal from a conviction, “prohibition is not the
proper remedy” even for his claims that the court lacked jurisdiction to enforce the
subpoenas and issue what petitioner deems a 18 U.S.C. §2703(d) disclosure order.
Matter of Cohen v. Demakos, 144 A.D.2d 605 (2d Dept. 1988), is particularly
deadly to petitioner, as it involves a criminal defendant’s effort to use a writ of
prohibition to block a subpoena issued to a third party. The trial judge in a pending
criminal case issued a subpoena directing a person to appear at a suppression hearing
as a witness on behalf of the court. The witness and the defendant sought to
challenge the court’s authority to issue the subpoena, but the Second Department
held that a writ of prohibition did not lie. As to the criminal defendant, the Second
Department found that his claims “as to the propriety of the subpoena may be
addressed on appeal from a judgment of conviction rendered against him in the
criminal action if he is convicted.” Id. at 605. Obviously, the same can be said of
petitioner here.
Courts have also rejected efforts to use a writ of prohibition to raise
suppression claims and attacks on search warrants. See Matter of Holman v.
Ferdinand, 228 A.D.2d 441, 441 (2d Dept. 1996) (Article 78 proceeding does not lie
to review order denying motion to suppress identification testimony); Matter of
Agnello v. Armer, 56 A.D.2d 712, 713 (4th Dept. 1977) (rejecting effort to obtain writ
of prohibition “to vacate a search warrant,” because defendant could seek suppression
12
order from the trial court and the writ “should not be used to forestall or reverse an
erroneous ruling by the trial court”); see also Matter of Nigrone v. Murtagh, 36
N.Y.2d at 425 (suggesting that claims of “unauthorized wiretapping, or illegal search
and seizure,” cannot be raised in a writ of prohibition); Matter of Aurnou v. Leggett,
79 A.D.2d at 624 (although “trial court refusals to suppress confessions, identification
and property allegedly seized in violation of the Fourth Amendment often place
defendants in great jeopardy in claimed violation of sacred constitutional precepts,”
“none would argue” that an appellate court can “make midtrial evaluations” of such
claims via a writ of prohibition). This authority is especially damaging to petitioner’s
cause, because he claims that the subpoenas and §2703(d) order violate his Fourth
Amendment and other constitutional rights, and because a §2703(d) order has been
described as “something like a mix between a subpoena and a search warrant.” Orin
Kerr, Comment, A User’s Guide to the Stored Communications Act, and the
Legislator’s Guide to Amending It, 72 Geo Wash L Rev 1208, 1219 (2004).
By contrast, the extremely rare cases where a writ of prohibition was found to
be an appropriate vehicle to challenge the validity of a search warrant merely confirms
that the writ cannot be employed in this case. In Matter of B. T. Prods., Inc. v. Barr,
44 N.Y.2d 226 (1978), the petitioner company’s records were seized pursuant to a
search warrant obtained by the Organized Crime Task Force, and held by the Task
Force for two years, without the Task Force ever attempting to proceed with criminal
charges. The petitioner commenced an Article 78 proceeding to regain the property,
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arguing that the Task Force had no authority to apply for a warrant, and as a result the
judge who issued the warrant had acted in excess of his jurisdiction in issuing it and
entrusting the records to the Task Force’s custody. 44 N.Y.2d at 230-32.
The Court of Appeals granted the writ of prohibition. In doing so, however,
the Court stressed that, “[i]n most cases, prohibition will not be available to challenge
the validity of a search warrant.” 44 N.Y.2d at 233. The Court pointed out that the
writ did not lie in cases where the petitioner was challenging “the existence of
probable cause in a particular situation” rather than the issuing court’s jurisdiction, as
the petitioner was. But it emphasized that “[o]f equal significance is the fact that in
the typical case there will exist an adequate alternative remedy.” Ordinarily, a criminal
proceeding will ensue, and the validity of the warrant can be litigated in a motion to
suppress, “the denial of which is appealable in the context of an appeal from the
resultant conviction.” In that particular case, however, there was “no indication that
there ever will be a prosecution, and thus there is no opportunity for a motion to
suppress.” Under the unique circumstances of that case, the Court found use of
prohibition appropriate, lest a failure to prosecute “serve as a shield for the allegedly
illegal” seizure and retention of the property. Id.
Here, of course, there is a criminal prosecution, petitioner (and Twitter) have
been able to challenge the validity of the subpoenas and the §2703(d) order in a
motion to quash made to the judge presiding over the case, and petitioner can
challenge the judge’s adverse rulings on direct appeal if he is convicted. As such, this
14
is the typical case, in which, as the Court of Appeals recognized, a writ of prohibition
cannot be used to raise even jurisdictional challenges to the validity of disclosure
orders.
According to petitioner, however, he is entitled to relief because “prohibition
lies where a judge grants a discovery application for which there is no statutory basis.”
Pet.’s Memo. at 17. He is wrong for two independent reasons. First, his claims do
not concern a “discovery application.” “Discovery,” which is governed by CPL
Article 240, takes place between the People and the defendant. See CPL 240.20(1)
(upon a demand to produce by “a defendant,” “the prosecutor shall disclose to the
defendant” various materials); CPL 240.30(1) (upon a demand to produce by the
prosecutor, “a defendant against whom” charges are “pending shall disclose” various
materials). Twitter is not a defendant in the criminal case. Instead, it is a witness, and
CPL article 610 governs efforts by parties to obtain testimony and physical evidence
from witnesses. See CPL 610.10(3). Plainly, then, an objection to unauthorized
discovery is entirely different, in law and in fact, from a motion to quash a subpoena.
Indeed, petitioner’s effort to conflate the two is incompatible with his own, correct,
observation that a subpoena cannot be used to obtain discovery outside the bounds of
CPL article 240. Pet’s Memo. at 16-17; see, e.g., Matter of Brown v. Grosso, 285
A.D.2d 642, 644 (2d Dept. 2001); cf. Matter of Pirro v. LaCava, 230 A.D.2d 909 (2d
Dept. 1996) (cited by petitioner) (granting writ of prohibition where trial judge
granted, inter alia, criminal defendant’s request for a subpoena duces tecum directing
15
medical examiner to produce materials relating to autopsy, and rejecting trial judge’s
conclusion that the request could be distinguished from disclosure not authorized by
statute on the ground that defendant was not seeking “discovery”).
Second, in all the cases petitioner cites that actually deal with discovery,
prohibition was awarded to prosecutors, not to criminal defendants. That distinction
is critical because, unlike defendants, the People obviously cannot appeal from any
ensuing adverse verdict. Cf. Cayuga Indian Nation of N.Y. v. Gould, 14 N.Y.3d at
633 & n.9 (even though generally a criminal defendant may not bring a declaratory
judgment proceeding once a criminal action has commenced, the People may do so in
some circumstance “because their right to appeal adverse rulings in criminal actions is
severely circumscribed”). Indeed, when the purportedly unlawful disclosure order
would assertedly harm the criminal defendant, courts have found that the defendant
cannot challenge that order by writ of prohibition. See, e.g., Matter of Mulvaney v.
Dubin, 55 N.Y.2d 668, 669 (1981) (writ of prohibition not available to prevent trial
court from requiring defendant to give People a written report of his examination by a
court-appointed psychiatrist); Matter of Tucker v. Buscaglia, 262 A.D.2d 979, 979 (4th
Dept. 1999) (“Prohibition does not lie to obtain collateral review of an order directing
a suspect in a criminal investigation to supply corporeal evidence”); see also Matter of
O'Neill v. King, 108 A.D.2d at 772; Matter of Aurnou v. Leggett, 79 A.D.2d at 623-
24.
16
In short, petitioner’s bid for a writ of prohibition should be rejected without
more because he can raise his claims on direct appeal from a judgment of conviction,
and cannot use Article 78 to obtain an otherwise-impermissible interlocutory appeal.
There is yet another insurmountable defect in petitioner’s application for a writ
of prohibition. Even ignoring that jurisdictional claims cannot be raised in such an
application when there is another adequate remedy, petitioner is not advancing claims
that are truly jurisdictional. “Plainly the court had jurisdiction to entertain the
criminal action[] before it and the authority to issue orders relating to the disposition
of th[at] action. Prohibition is generally not available to collaterally review an arguable
error of law committed in a pending criminal action . . . .” Matter of Jacobs v.
Altman, 69 N.Y.2d at 735.
For example, petitioner complains that the enforcement of the subpoenas and
orders will result in a “fishing expedition,” Pet.’s Memo. at 15-16, 20; Pet. at ¶¶ 130,
163, and, similarly, that the judge issued a 18 U.S.C. §2703(d) disclosure order despite
the absence of the requisite “reasonable ground to believe” that the matters to be
disclosed are “relevant and material to an ongoing criminal investigation.” Pet.’s
Memo. at 18; Pet. at ¶¶ 95-96, 147-161. These, however, are simply legal arguments,
cognizable on appeal, that do not raise a proper claim for prohibition relief. See
Matter of B.T. Prods. v. Barr, 44 N.Y.2d at 233 (challenge that goes “simply to the
existence of probable cause [to support a search warrant] in a particular situation” is
17
not jurisdictional).1 Likewise, petitioner’s contention that the judge erred in treating
the People’s papers as sufficient to constitute an application for a §2703(d) order,
even though the People did not denominate the papers as such, Pet. at ¶¶147, 149,
simply raises a potential procedural error, not a basis for concluding that the court had
no power to issue an order.
Petitioner is also insistent that the judge exceeded his jurisdiction by affording
the People “discovery” not authorized by New York law. According to him, the only
discovery permitted is that set forth in CPL Article 240, and the subpoenas and orders
called for the production of evidence outside the scope of those statutes. Pet. at
¶¶116-122, Pet.’s Memo. at 6,7, 15-17. This claim is frivolous. As already
demonstrated, CPL Article 240 controls discovery between the People and a
defendant, not what information can be obtained from a third party such as Twitter.
And when it comes to third parties, CPL Article 610 provides ample and broad
statutory authority supporting for the disclosure requirements here. After all, “[a]ny
criminal court may issue a subpoena for the attendance of a witness in any criminal
1 Petitioner also heatedly insists that there was no “ongoing criminal investigation,”
another prerequisite for a §2703(d) order (Pet.’s Memo. at 6-7, 18; Pet. at ¶¶149, 151-52), but he never explains what he means by that curious assertion. If he means that there can be no “ongoing investigation” because he has already been charged, that claim is absurd. The fact is that the investigation of criminal cases routinely continues up to, and during trial -- as the issuance of the subpoenas in this case show. Perhaps petitioner is alluding to the fact that he is charged with disorderly conduct, which is a violation and thus classified as an offense rather than a crime. See Penal Law §10.00(1), (3), (6). However, since an offense is prosecuted by way of an accusatory instrument, it is still the subject of a “criminal action.” See CPL 1.20(1), (4), (6), (7), (16).
18
action or proceeding in such court,” CPL 610.20(1), the People may themselves issue
subpoenas to any witnesses they are entitled to call in a criminal action or proceeding,
CPL 610.20(2), and those subpoenas may require the witness to produce physical
evidence, see CPL 610.10(3).
In another effort to identify a purported “jurisdictional” flaw, petitioner
contends that Judge Sciarrino acted “in excess of his powers” when he issued a
disclosure order pursuant to 18 U.S.C. §2703(d). Pet. at ¶141; see Pet.’s Memo. at 17-
19; Pet. at ¶¶142-53. Even assuming that the court issued such an order and that it
was not superfluous to the court’s decision,2 the court did not exceed its jurisdiction.
Petitioner’s contrary arguments are based on a misreading of the SCA and CPL
provisions upon which he relies.
Judge Sciarrino, as a judge of the New York City Criminal Court, plainly had
jurisdiction to issue a §2703(d) disclosure order. “[A]ny court that is a court of
competent jurisdiction” may issue such an order. 18 U.S.C. §2703(d). “[A] court of
general criminal jurisdiction of a State authorized by the law of that State to issue
search warrants” qualifies as a “court of competent jurisdiction.” 18 U.S.C.
§2711(3)(B). The New York City Criminal Court is just such a court. That court is a
2 As the People argued before Judge Sciarrino (see Pet., Exhibit 5 [Affirmation in Support of People’s Response to Defendant’s Motion to Quash], pp. 10-13; Exhibit 14 [Memorandum of Law in Opposition to Third-Party Twitter, Inc.’s Motion to Quash], pp. 7-9), the SCA is inapplicable to public communications such as petitioner’s voluntarily disseminated public Tweets. Accordingly, only the subpoenas, and not a §2703(d) order, were needed to obtain those Tweets. Moreover, under 18 U.S.C. §2703(c)(2), the People were entitled to obtain the other information they sought by way of a subpoena.
19
“local criminal court,” CPL 10.10(3)(b), and thus has preliminary jurisdiction over all
offenses. CPL 10.30(2). And under CPL 690.05(1), “a local criminal court” may issue
a search warrant. Furthermore, the New York City Criminal Court was authorized to
entertain a search warrant application in this case, as a warrant application can be
made to “[a] local criminal court” that has “preliminary jurisdiction over the
underlying offense . . .” CPL 690.35(2)(a).3 In that regard, petitioner has not, and
cannot, dispute that the criminal court has geographic jurisdiction over his offense.
See CPL 20.40(1).
The relevant state and federal statutory language thus makes it crystal clear that
Judge Sciarrino had jurisdiction to issue a §2703(d) order in this case. In contending
otherwise, petitioner essentially argues that the judge could not have issued a valid
search warrant for the public Tweets, and that as a result he had no authority to issue
a §2703(d) order for them. See Pet.’s Memo. at 19; Pet. at ¶¶144-46. That analysis is
completely misguided at its heart. Indeed, petitioner’s effort to conflate a search
warrant with a §2703(d) order is flatly incompatible with the fact that the SCA
expressly draws a distinction between a warrant issued pursuant to state warrant
procedures and a §2703(d) order. Compare 18 U.S.C. §2703(b)(1)(A) with 18 U.S.C.
§2703(b)(1)(B)(ii). In fact, contrary to petitioner’s insistence, Pet. at ¶144, the SCA
does not suggest that a judge is empowered to issue a §2703(d) order only if he could
3 In claiming otherwise, petitioner is forced to pretend that this statutory language does not exist, and instead that the warrant application can be made only to a court that has “geographical jurisdiction over the location to be searched.” Pet.’s Memo. at 19.
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also issue a search warrant for the same material under the particular circumstances of
the individual case. The relevant statutory language asks only the general question
whether the state court is “authorized . . to issue search warrants,” 18 U.S.C.
§2711(3)(B), not the specific question whether the court is “authorized to issue a
search warrant for the materials sought.” Put another way, the SCA references a state
court’s power to issue search warrants merely to ensure that the state court is one
viewed as significant enough under state law to issue search warrants, not as part of an
effort to delve into state substantive and procedural warrant law.
For the same reason, petitioner’s reliance on another provision of 18 U.S.C.
§2703(d) is unavailing. He stresses that if a state governmental authority is seeking the
disclosure order, the order “shall not issue if prohibited by the law of such state.”
Pet.’s Memo. at 18-19; Pet. at ¶¶152-53. But petitioner does not identify any
provision of New York law that prohibits a disclosure order in general, or even the
one issued here. Instead, he once again mistakenly equates a search warrant with a
disclosure order, claiming that because the judge supposedly could not issue a search
warrant under New York law for the public Tweets, he necessarily could not have
issued a §2703(d) disclosure order. Moreover, as demonstrated, petitioner is incorrect
in contending that a New York judge has no power to order discovery from a third
party except as authorized by CPL Article 240.
Finally, even petitioner’s argument that state law prohibited Judge Sciarrino
from issuing an analogous search warrant is inaccurate. Petitioner relies on the fact
21
that the Criminal Procedure Law provides that a search warrant issued by a New York
judge can be executed in New York State, and stresses that the material sought is
assertedly located in California. Pet.’s Memo. at 19; Pet. at ¶¶144-45; see CPL
690.20(1). But that goes to where a search warrant can be executed, not whether it
can be issued. And, once again, the SCA states that a state judge can issue a §2703(d)
order so long as it has the authority “to issue search warrants.” 18 U.S.C. §2711(3)(B)
(emphasis added). Indeed, given the nature of the electronic information at issue in
the SCA, it would make little sense to restrict the territorial scope of a §2703(d) order
in the same way that the scope of search warrants for physical items are limited. See
generally Hubbard v. MySpace, Inc., 788 F.Supp.2d 319, 324-26 (S.D.N.Y. 2011)
(search warrant issued by Georgia magistrate to search MySpace records in California
constituted a proper state warrant under 18 U.S.C. §2703(a), even though “the issuing
magistrate indisputably exceeded his ordinary territorial authority”).
In short, petitioner cannot obtain relief in the nature of a writ of prohibition
for two independent reasons: 1) he has an adequate remedy at law, in that he can raise
his challenges to the subpoena on direct appeal from any judgment of conviction; and
2) none of his claims call into question the court’s jurisdiction to rule as it did.
B. Petitioner is not entitled to a writ of mandamus.
Just as baseless is petitioner’s bid for mandamus relief. That relief is available
only to compel a public officer to perform “a purely ministerial act where there is a clear
legal right to the relief sought.” Matter of Legal Aid Society of Sullivan County v.
22
Scheinman, 53 N.Y.2d at 16; see, e.g., Matter of Powers v. Buscaglia, 251 A.D.2d 1093,
1093 (4th Dept. 1998). “It is well settled that mandamus is not available to remedy or
prevent trial errors.” Matter of Legal Aid Society of Sullivan County v. Scheinman, 53
N.Y.2d at 16. Thus, mandamus cannot be used “to direct [a subordinate court] to
decide an application in a particular manner.” Kramer v. Rosenberger, 107 A.D.2d at
749; see Matter of Giordano v. Mackston, 240 A.D.2d 578 (2d Dept. 1997).
Here, though, it could not be plainer that petitioner is simply seeking to have this
Court “direct” Judge Sciarrino “to decide an application in a particular manner.”
Petitioner insists that he has standing to move to quash the subpoena, that Judge
Sciarrino erred in holding otherwise, and that accordingly he is entitled to a writ directing
the judge to issue a contrary ruling on standing and then rule on petitioner’s underlying
challenges to the validity of the subpoena. See, e.g., Pet.’s Memo. at 25-26, 31. Thus,
petitioner is not even trying to hide that he is seeking to use mandamus in a wholly
illegitimate manner: as a vehicle for bringing an otherwise impermissible interlocutory
appeal to remedy supposed legal errors by the trial judge.
Matter of Veloz v. Rothwax, 65 N.Y.2d 902 (1985), rev’g 103 A.D.2d 715 (1st
Dept. 1984), demonstrates the impropriety of petitioner’s effort. In that case, a criminal
trial judge shortened the time period afforded the defendant to make pretrial motions
under CPL 255.20(1), and then precluded an omnibus motion the defendant filed after
the time period provided by the judge but before the statutory period elapsed. 103
A.D.2d at 716. The defendant then sought a writ of mandamus to compel the judge to
23
render a merits determination on his omnibus motion, but the Court of Appeals
dismissed the petition. Although the Court agreed that the judge “lacked the authority
to shorten the statutory time period in which to make pretrial motions,” it nevertheless
concluded that the defendant could not obtain a writ of mandamus “compelling
respondent to render a merits determination upon” the omnibus motion. The Court
reasoned that the judge’s “misconstruction of CPL 255.20 constitutes an error of law, in
a pending criminal action, which is not subject to relief in the nature of a writ of
mandamus. Moreover, because petitioner may obtain judicial review of his claim on
direct appeal from a judgment of conviction, it is impermissible to disrupt the criminal
proceedings by resort to the extraordinary writ of mandamus.” 65 N.Y.2d at 903-04
(citations omitted).
It is even more evident here than in Matter of Veloz that mandamus does not lie.
After all, the trial judge there refused even to accept the defendant’s motion, in flat
contravention of the governing statute. Arguably, that might be viewed as the failure to
perform a “purely ministerial” act. In stark contrast, here the trial judge accepted
petitioner’s motion and denied it based on his legal analysis of a substantive threshold
issue. Even then, the judge went on to assess various underlying issues as to the
propriety of the subpoenas. Even if the judge’s legal conclusions were wrong, that
cannot remotely be considered a “purely ministerial” failure, but rather is the sort of
error in legal judgment that cannot be reached by way of mandamus.
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CONCLUSION
The petition raises no issue appropriate for consideration in a CPLR Article 78
proceeding. Accordingly, the petition should be dismissed and the relief denied.
If the petition is not dismissed upon this cross-motion, respondent respectfully
requests the Court to allow 20 days from entry of the order denying this motion for
an answer to be filed and served.
Dated: New York, New York September 19, 2012 Respectfully submitted, CYRUS R. VANCE, JR. District Attorney New York County One Hogan Place New York, New York 10013 (212) 335-9000 By: __________________________ Lee Langston Assistant District Attorney Alan Gadlin Richard Nahas Assistant District Attorneys Of Counsel