Opinion
December 7, 1987
Appeal from the Supreme Court, Queens County (LeVine, J.).
Ordered that the order is reversed, without costs or disbursements, and the motion is granted to the extent that upon written notice of not less than 10 days, or at such time and place as the parties may agree, Jeffrey Shankman is directed to comply with the judicial subpoena duces tecum dated October 29, 1985, in accordance herewith.
We agree with the Supreme Court that Jeffrey Shankman should not be precluded from invoking his privilege against self-incrimination with respect to any questions to be asked or any documents to be produced in compliance with a judicial subpoena duces tecum dated October 29, 1985 (see, Hoffman v United States, 341 U.S. 479; Steinbrecher v Wapnick, 24 N.Y.2d 354, rearg denied 24 N.Y.2d 1038; State of New York v Carey Resources, 97 A.D.2d 508).
Nevertheless, under the circumstances, Shankman should have been compelled to raise his privilege at the deposition with regard to each question to be asked and with respect to each document required to be produced by him (see, State of New York v Carey Resources, supra). Whether the privilege should be sustained is to be governed by "the implications of the question, in the setting in which it is asked" (Hoffman v United States, supra, at 486; see, Steinbrecher v Wapnick, supra). "The privilege may only be asserted when the witness has a reasonable cause to apprehend danger from a direct answer (see, Hoffman v United States [supra, at] 486; State of New York v Skibinski, 87 A.D.2d 974; Southbridge Finishing Co. v Golding, 208 Misc. 846, 852, affd 2 A.D.2d 882). While the witness is generally the best judge of whether an answer may tend to be incriminating (People v Arroyo, 46 N.Y.2d 928, 930; Matter of Grae, 282 N.Y. 428, 434; People ex rel. Taylor v Forbes, 143 N.Y. 219, 230-231; Triangle Pub. v Ferrare [ 4 A.D.2d 591] 593), when the danger of incrimination is not readily apparent, the witness may be required to establish a factual predicate (People v Priori, 164 N.Y. 459, 465; United States v Roundtree, 420 F.2d 845; 8 Wigmore, Evidence [McNaughton rev, 1961], § 2271)" (State of New York v Carey Resources, supra, at 509).
Therefore, the appellant's motion is granted to the extent indicated. At the deposition, as noted, Shankman may invoke his privilege against self-incrimination, and the parties, if they be so advised, may seek appropriate rulings from the Supreme Court concerning any invocation of the privilege against self-incrimination by Shankman (see, Slater v Slater, 78 Misc.2d 13, 16; see also, Matter of Lieb v Henry, 99 A.D.2d 757; State of New York v Carey Resources, supra). Mangano, J.P., Thompson, Lawrence and Eiber, JJ., concur.