(DOWNLOAD) "Matter Vernon Wilson v. John A. Gallucci" by Supreme Court of New York * Book PDF Kindle ePub Free
eBook details
- Title: Matter Vernon Wilson v. John A. Gallucci
- Author : Supreme Court of New York
- Release Date : January 09, 1969
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 62 KB
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[32 A.D.2d 784 Page 784] This is a proceeding pursuant to article 78 of the CPLR to direct the respondent County Judge to issue certain subpoenas
duces tecum in a criminal case pending against petitioner and to prohibit said respondent and the respondent District Attorney
from moving said case to trial such subpoenas shall have been issued. The District Attorney has moved to dismiss the petition
upon objections in point of law, namely, the petition fails to state a cause of action and the County Judge's refusal to issue
the subpoenas was not a final determination and was an exercise of discretion in a criminal case which may not be reviewed
in an article 78 proceeding. Petition dismissed on the merits, without costs. Petitioner, indicted and charged with criminally
selling a dangerous drug in the second degree (Penal Law, 220.35), was granted a pretrial hearing on the admissibility of
identification evidence. Prior to the commencement of the hearing, he applied to the respondent County Judge for subpoenas
duces from tecum addressed to the Spring Valley Police Department, the Clarkstown Police Department, the Department of New
York State Police and five named members of the above Departments, for production of a wide range of records and documents
(too numerous to recite here; but see decision of Gallucci, J., dated March 13, 1969) "pertaining to the investigation and
arrest" of petitioner. The application was denied, by and order dated March 17, 1969, on the grounds of the failure to show
materiality and relevance and the breadth of the subpoenas. Determination of the instant proceeding turns on whether the issuance
of a subpoena duces tecum directed to a governmental department in a criminal action is a ministerial or discretionary act.
The prohibition sought is wholly dependent on a favorable determination on the mandamus (subpoena) issue. Mandamus will lie
against a body or [32 A.D.2d 784 Page 785]