In Sussman the court dealt with the showing that the Organized Crime Task Force was required to make upon a challenge to its authority to issue office subpoenas. It was there held that in accordance with subdivision 4 of section 70-a Exec. of the Executive Law the OCTF would have to show upon a motion to quash by a subpoenaed individual that the information or documents sought from such individuals bore a reasonable relationship to multi-county organized crime activities.Summary of this case from Matter of Sloma v. Hynes
Argued January 8, 1976
Decided April 1, 1976
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, HAROLD J. HUGHES, J.
Maxwell B. Spoont, Acting Deputy Attorney-General in Charge of the Organized Crime Task Force (Seale W. Tuttle of counsel), for appellants. Herald Price Fahringer and John S. McBride for respondents.
We hold that under subdivision 4 of section 70-a of the Executive Law there must be a showing that the matters under investigation involve multicounty "organized crime activities" to authorize the issuance of office subpoenas by the Deputy Attorney-General in charge of the Organized Crime Task Force, and that as so interpreted the statute is constitutional. In this respect we distinguish between the prerequisite to issuance of office subpoenas and the prerequisite to appearance by the Deputy Attorney-General before a Grand Jury. (Cf. People v Rallo, 39 N.Y.2d 217.)
The State-wide Organized Crime Task Force (OCTF) was established by the enactment of section 70-a of the Executive Law. The authority and powers of the Deputy Attorney-General in charge of OCTF are delineated in the various subdivisions of the section. We have expressed our views with reference to certain aspects of his prosecutorial authority under subdivision 7 in People v Rallo (supra). We now address issues raised on this appeal with respect to his investigatory authority under subdivision 4. Analytically, subdivision 7 relates to the discharge of the responsibilities of the Deputy Attorney-General in an area of judicial cognizance, i.e., Grand Jury proceedings. Subdivision 4, on the other hand, relates to the discharge of his responsibilities in an area of executive cognizance — criminal investigation.
It is under subdivision 4 that the Deputy Attorney-General in charge of OCTF derives his authority to conduct hearings, to administer oaths, to subpoena and examine witnesses, and to compel the production of other evidence. These powers are conferred in furtherance and implementation of his fundamental authority and responsibility "to conduct investigations * * * of organized crime activities carried on either between two or more counties of this state or between this state and another jurisdiction" (subd 1). Unlike subdivision 7, subdivision 4 does not contain independently described conditions precedent to the exercise of the powers enumerated therein: "4. The deputy attorney general in charge of the organized crime task force is empowered to conduct hearings at any place within the state, to administer oaths or affirmations, subpoena witnesses, compel their attendance, examine them under oath or affirmation, and require the production of any books, records, documents or other evidence he may deem relevant or material to an investigation. He may designate an assistant to exercise any such powers. Every witness attending before such deputy attorney general or his assistant shall be examined privately and the particulars of such examination shall not be made public. If a person subpoenaed to attend upon such inquiry fails to obey the command of a subpoena without reasonable cause, or if a person in attendance upon such inquiry shall, without reasonable cause, refuse to be sworn or to be examined or to answer a question or to produce a book or paper, when ordered so to do by the officer conducting such inquiry, he shall be guilty of a class A misdemeanor."
At the threshold we observe that, aside from explicit statutory mandate, under general principles of law our court has traditionally required a subject matter identification, though not very demanding, as a precondition to the issuance of office subpoenas by the Attorney-General in the exercise of investigatory authority granted to his office by statute. Thus we have held that the Legislature may "not confer upon an executive an arbitrary and unbridled discretion as to the scope of his investigation. However broad the statutory language may be, the discretion must be exercised within bounds circumscribed by a reasonable relation to the subject-matter under investigation and to the public purpose to be achieved." (Carlisle v Bennett, 268 N.Y. 212, 217 [investigation of alleged security frauds under General Business Law, § 352]; also Myerson v Lentini Bros. Moving Stor. Co., 33 N.Y.2d 250, 256-260 [investigation under the Consumer Protection Law of New York City]; Matter of A'Hearn v Committee on Unlawful Practice of Law of N.Y. County Lawyers' Assn., 23 N.Y.2d 916, 918, cert den 395 U.S. 959 [investigation as to unauthorized practice of law].) Thus, we do not attach the same significance to the absence in subdivision 4 of section 70-a of any explicit reference to the necessity for a showing of "organized crime activities" that we do to the corresponding absence in subdivision 7 authorizing appearance before the Grand Jury, with respect to which latter subject matter the underlying applicable law is quite different.
Nor is this historical distinction between office and Grand Jury investigations accidental. Consideration of the character of the powers to be exercised under subdivision 4 and the circumstances under which such powers will be exercised reveals the substantive differences. The authority to subpoena witnesses, the issue presented on this appeal, is illustrative. The subpoenas issued under subdivision 4 were nonjudicial, office subpoenas. The execution of such subpoenas and the examination of witnesses thereunder will not be under direct judicial supervision as, of course, would be the case with respect to subpoenas and testimony before the Grand Jury. The witnesses will not have the right to request promptly to be taken before a Judge for judicial resolution of questions which may arise with respect to their examination, nor will they have the other procedural protections which attach when appearance is before a Grand Jury. The sanction for failure to obey the command of an office subpoena is conviction of a class A misdemeanor (subd 4). To provide a procedural means for the judicial resolution of legal issues which may rise during questioning it may thus be that the only recourse of the witness will be to invite and risk criminal prosecution. The option of moving to compel compliance under CPLR 2308 (subd [b]) lies with the Deputy Attorney-General. The more flexible and so much prompter procedures incident to contempt, to be had where the witness is summoned before the Grand Jury, will be unavailable in investigations conducted under the authority of subdivision 4.
Thus, balancing the interests of the Deputy Attorney-General to have sufficiently broad authority to enable him effectively to conduct investigations into organized crime activities, on the one hand, and, on the other, the interests of witnesses in their legitimate protection, it is entirely understandable that the Deputy Attorney-General should be required to make a preliminary showing that the purpose of his investigation is indeed inquiry into "organized crime activities", and more particularly organized crime activities which are "carried on either between two or more counties of this state or between this state and another jurisdiction".
It suffices for the disposition of the present appeal to note that here there was no preliminary showing whatsoever, either of multicounty crime or of organized crime. On the applications to quash the office subpoenas the Deputy Attorney-General was offered an opportunity and invited to submit proof on these issues. He chose rather, for the purpose we assume of obtaining an adjudication as to the scope of his subdivision 4 powers, to stand on his legal assertion that he was not required under the statute to make any showing that he was in fact proceeding with respect to multicounty organized crime activities.
Prior to the issuance of the office subpoenas here, at the request of the District Attorney and with the approval of the Governor, a Grand Jury had been impanelled to investigate alleged fixing of horse races at the Monticello Raceway. It was incidental to the presentment of testimony before that Grand Jury that there came private disclosure to OCTF of purported instances of larceny, coercion, extortion and other crimes involving persons at Monticello Raceway. Such disclosure in turn led to the issuance of the office subpoenas which are the subject matter of the present appeal. Even if the earlier approval of the Governor and request of the District Attorney were to be considered sufficient to meet two of the conditions expressly prescribed in subdivision 7 of section 70-a (a very questionable conclusion on the record presently before us) such circumstance could not be escalated into support for the issuance of the office subpoenas here, nor does the Deputy Attorney-General in charge of OCTF make any such claim. The statutory effect to be given participation of these two officials is limited to subdivision 7 only, relating to authority to appear before a Grand Jury. While authorizations of the Governor and of the appropriate District Attorney satisfy two of the three subdivision 7 conditions precedent, unlike the effect given executive certifications under the similar Federal statute (US Code, tit 18, § 3503, subd [a]), they do not thereby satisfy any requirement of a showing of "organized crime activities", an element which we have held is not required for the exercise of subdivision 7 authority (People v Rallo, 39 N.Y.2d 217, supra).
We do not now delineate the precise quantum of proof with respect to multicounty or organized crime activities which will be required; it would be unwise for us to attempt to do so. The phrase "organized crime activities" is itself not susceptible of precise judicial definition. Factually, the circumstances in different cases may be expected to present different issues. It will serve now to observe that if the proof submitted by the Deputy Attorney-General in charge of OCTF establishes probable cause, as that standard has been developed elsewhere in the criminal law, there could be no doubt of his authority to proceed under subdivision 4. In our view, however, the proof need not go that far (cf. Myerson v Lentini Bros. Moving Stor. Co., 33 N.Y.2d 250, 256-257, supra). The resolution in each instance must be left to the sound determination of the court or Judge before which or whom the issue is raised, subject, of course, to appropriate appellate review. The proof must establish that the Deputy Attorney-General is proceeding in good faith and that the testimony and documents he seeks bear a reasonable relationship to matters properly under OCTF's investigatory jurisdiction, namely, "organized crime activities" which are also either multicounty or interstate. In passing we would observe that there may be instances, perhaps few in number, in which the delicacy of the particular investigation or the risk of and consequences attendant on premature disclosure may be such that it will be appropriate to employ specially limited, in camera, or even ex parte, procedures in which to receive the Deputy Attorney-General's proof and to make the necessary judicial determination. In any such instance, however, a full record, perhaps sealed, should be preserved to permit informed appellate review.
Under the terms of the order of Supreme Court, affirmed at the Appellate Division and now to be affirmed by us, OCTF will be afforded an opportunity to make the required showing to support the issuance of the office subpoenas in question. It is argued, however, that, because the phrase "organized crime activities" concededly is not susceptible of precise definition, the elusive character and vagueness of its content render subdivision 4 unconstitutional. Because an unarticulated holding of constitutionality which would be inferrable from our concurrence that OCTF should have another opportunity to submit the requisite proof of statutory compliance might leave lingering doubt, we now expressly confront and reject the challenge to constitutionality (cf. People v Pastore, 50 A.D.2d 1088; People v Rallo, 46 A.D.2d 518).
It is unquestioned that constitutional due process requires that a statute which defines a substantive crime must "give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden" (Papachristou v City of Jacksonville, 405 U.S. 156, 162; Lanzetta v New Jersey, 306 U.S. 451, 458; People v Berck, 32 N.Y.2d 567, 569). Section 70-a, however, does not fall within the category of statutes to which this constitutional principle is applicable. It is not the argument advanced here that to the extent that subdivision 4 proscribes conduct or contains a definition of a substantive criminal offense (i.e., that it makes [a] failure "to obey the command of a subpoena without reasonable cause", or [b] refusal "to be sworn or to be examined or to answer a question or to produce a book or paper, when ordered to do so by the officer conducting such inquiry", a class A misdemeanor), there is any constitutionally impermissible vagueness. Nor is any misdemeanor issue before our court on the present appeal. The argument focuses rather on an asserted vagueness as to the authority for the issuance of the subpoena. That issue can be tested, as here, by an appropriate proceeding to quash the subpoena, or in resisting a proceeding under CPLR 2308 (subd [b]) to compel compliance with the subpoena. Thus, a target or a witness may avoid being placed in jeopardy and obliged to dishonor an OCTF office subpoena at his peril.
If after investigation by OCTF a presentment is made to a Grand Jury such presentment and any subsequent charges will be concerned with specified substantive crimes each of which may be tested under the constitutional void-for-vagueness test. The concept of "organized crime activities" will then be irrelevant.
By critical contrast to statutes in which there is asserted vagueness in the definition of substantive crimes, the aspect of subdivision 4 of section 70-a now under review relates only to the investigative authority and powers of a prosecutor. Our attention has been invited to no case in which a statute conferring investigative authority has been held unconstitutional on the ground that the scope of such authority has not been sufficiently precisely defined, nor have we found any. It would have been open to make an argument, much the same as that advanced here, with respect to asserted unconstitutional vagueness in several cases in which the authority to issue office subpoenas has been upheld (e.g., Matter of Sigety v Hynes 38 N.Y.2d 260; Myerson v Lentini Bros. Moving Stor. Co., 33 N.Y.2d 250, supra; Matter of Di Brizzi [Proskauer], 303 N.Y. 206; Carlisle v Bennett, 268 N.Y. 212, supra). It may or may not be significant that the present contention appears not to have been raised in any of these cases.
The order of the Appellate Division should be affirmed.
In my view, the five nonjudicial subpoenas duces tecum issued by the Organized Crime Task Force should be sustained.
The State-wide Organized Crime Task Force was created by the Legislature in 1970. (Executive Law, § 70-a.) The Legislature found that organized criminal activity conducted by efficient, disciplined and complex illegal organizations is a corrosive and corruptive influence on legitimate businesses and poses a significant threat to the welfare of the people of our State. (L 1970, ch 1003, § 1.) Moreover, these well-resourced conspiracies have spread throughout the State and Nation, thereby outreaching the efforts of local law enforcement officials who are confined by geographic jurisdiction and limited resources. (L 1970, ch 1003, §§ 2, 3.) To counter the danger to the peace and security of law-abiding citizens throughout the State, the Legislature established a task force, within the Office of the Attorney-General, whose sole purpose would be to investigate and prosecute those involved in organized criminal activity, in an effort to break the structure of organized crime and eliminate the power of the underworld.
In carrying out its statutory responsibilities, the Task Force, in January, 1974, commenced an investigation into the alleged "fixing" of horse races at Monticello Raceway in Sullivan County and at other New York State tracks. At the request of the Sullivan County District Attorney, and with the approval of the Governor, a Grand Jury was impaneled in Sullivan County in February, 1974 and the Task Force began presenting evidence in April. During the course of this investigation, the Task Force received information from an informer that raceway officials had converted raceway funds for their personal benefit and had made political contributions with corporate funds in violation of the Election Law. Believing these allegations to be "threadbare", the Task Force took no action. However, two days later, another informer furnished the Task Force with two letters from a hotel official who was also a member of the racing association board of directors. In one letter to the association, the official reported that the association had paid the bill for the bar mitzvah of the son of its president, Leon Greenberg. The hotel had since decided that this payment was "improper", repaid the money, and announced that it would rebill Greenberg personally. In the second letter, the hotel official resigned his position on the board of directors. At the request of the Sullivan County District Attorney and in the belief that the first informer's report had now been verified, the Task Force opened an investigation, collateral to that involving the horse race fixing, into the possibility that organized crime had infiltrated the management of the race track. Since the matter was not yet ripe for Grand Jury presentation, the Assistant Attorney-General in charge of the investigation issued an office subpoena, in accordance with subdivision 4 of section 70-a of the Executive Law, to the comptroller of the racing association seeking the production of association financial records bearing on all transactions over $2,500 during a five-year period. This office subpoena was partially complied with. As a result, documentary evidence was discovered which supported the allegation that illegal political contributions had been made by the association. Thereafter, the Assistant Attorney-General issued four additional office subpoenas directing certain racing association officials to produce specific financial records in their possession. Motions to quash all five subpoenas were granted by Special Term on the ground that the subpoenas failed to specify the nature of any alleged intercounty or interstate organized criminal activity. The Appellate Division unanimously affirmed. I would reverse the order of the Appellate Division and reinstate the subpoenas duces tecum.
The Legislature has specifically authorized the Deputy Attorney-General "to conduct hearings at any place within the state, to administer oaths or affirmations, subpoena witnesses, compel their attendance, examine them under oath or affirmation, and require the production of any books, records, documents or other evidence he may deem relevant or material to an investigation." (Executive Law, § 70-a, subd 4.) The standards by which nonjudicial subpoenas are to be measured are well established. The Legislature has the power to confer upon the Attorney-General, an executive officer, the power and duty to conduct investigations. While the Legislature may confer this discretionary authority, the discretion cannot be exercised in an "arbitrary and unbridled" manner. (Carlisle v Bennett, 268 N.Y. 212, 217.) The Attorney-General, or his designate, must act in good faith, with the knowledge of and with a due regard for the principles of evidence. (Dunham v Ottinger, 243 N.Y. 423, 433-434, app dsmd 276 U.S. 592.) A statute cannot, and subdivision 4 of section 70-a of the Executive Law does not, authorize the Attorney-General to conduct a roving investigation for the purpose of "generally prying into the affairs of any person." (Dunham v Ottinger, supra, p 433.)
On the other hand, since the Legislature has conferred a broad subpoena power upon the officer in charge of the Task Force, the office subpoenas issued here should be sustained if the information sought is relevant to a legitimate inquiry and if there is some basis for inquisitorial action. (Matter of A'Hearn v Committee on Unlawful Practice of Law of N.Y. County Lawyers' Assn., 23 N.Y.2d 916, 918, cert den 395 U.S. 959.) At a preliminary stage of an investigation, such as is involved here, it is only necessary to establish that the records and books sought bear "a reasonable relation to the subject matter under investigation and the public purpose to be served." (Myerson v Lentini Bros. Moving Stor. Co., 33 N.Y.2d 250, 256; accord Matter of La Belle Creole Int., S.A. v Attorney-General of State of N.Y., 10 N.Y.2d 192, 196; Carlisle v Bennett, 268 N.Y. 212, 217, supra.) Investigations would be paralyzed, if not aborted, if arguments into materiality and relevancy are transferred to a preliminary stage. "Only where the futility of the process to uncover anything legitimate is inevitable or obvious must there be a halt upon the threshold." (Matter of Edge Ho Holding Corp., 256 N.Y. 374, 382.)
In my view, the Task Force is not required to make a preliminary factual showing that the matter to which the office subpoenas are addressed involves either organized crime or multicounty activities. That is precisely what the Attorney-General is attempting to determine by its investigation. If the Task Force officials were possessed of the facts which would establish the existence of either element, it would be unnecessary for them to conduct an investigation. The test is, and has always been, whether the materials sought relate reasonably to the subject matter investigated and to the public purpose to be served. (See, e.g., Myerson v Lentini Bros. Moving Stor. Co., 33 N.Y.2d 250, 256, supra; Matter of La Belle Creole Int., S.A. v Attorney-General of State of N.Y., 10 N.Y.2d 192, 196, supra.) If there is a fair basis for an investigation, office subpoenas seeking pertinent information should be enforced.
The broad language of the statute would indicate that the Legislature had intended to give wide procedural latitude to the Task Force to bring to fruition the investigations conducted. A broad grant of subpoena and investigatory power is consistent with the legislative findings. The Legislature found that local county prosecutors were severely hampered in their efforts to investigate organized crime by their limited resources and by their restricted geographic jurisdictions. (L 1970, ch 1003, § 3.) It was recognized that evidence of criminal activity, particularly activity conducted by organized criminal associations, does not suddenly appear in the hands of investigators as a neatly wrapped package, with all the bows tied. Rather, a successful investigation requires weeks, months, and perhaps years, of painstaking research and ceaseless effort. The services of accountants, financial analysts, and other specialists may be required. Not until a substantial number of pieces are collected and put in place will the shape and dimensions of the total mosiac become clear. Organized crime goes to great pains and lengths, for rather obvious reasons, to conceal its presence. A criminal act that, on the surface, appears to be of an entirely local and unorganized nature gathers greater significance as further facts are unearthened and analyzed. The Legislature recognized that overworked, under-resourced local prosecutors cannot devote the time and money required to pursue this kind of intensive investigation. Even if they could, once the trail led out of their county, their efforts would be hampered by jurisdictional limitations. A State-wide unit, with broad investigatory powers, was needed in order to prosecute well-financed criminal associations who do not measure their activity by nice boundary lines.
In order that the valid and important public purpose of checking organized crime be served, it is important that Task Force investigations not be cut off by the same arbitrary lines the Task Force was created to avoid. Where there is a fair basis for an organized crime investigation, the Task Force should be permitted to proceed. The alternative, of course, in the event that the Task Force is prevented from investigating, is for the local District Attorney to investigate on his own. He has an absolute right to summon any witnesses and their records before a Grand Jury. (CPL 190.50, subd 2; 610.20, subd 2.) However, to require the local prosecutor to conduct organized crime investigations, at least during the preliminary stage, is to defeat the legislative purpose and to read back into the law the same arbitrary limitations that frustrated investigations before.
This is not to say that individual citizens are at the mercy of the Task Force. In accordance with the case law that has developed over the years, the Task Force must establish, upon a motion to quash, that the materials sought relate to the subject matter investigated and to the public purpose to be achieved. However, that is all the Task Force need do. To require definitive proof of jurisdictional elements is to require an impossibility.
The majority reaches its conclusion that a preliminary factual showing of the jurisdictional elements must be made only by "balancing the interests of the Deputy Attorney-General * * * and * * * the interests of witnesses in their legitimate protection" (p 232). I believe that authority for a judicial weighing of interests is sorely lacking. The statute certainly does not confer it. Our case law, designed to guard against fishing expeditions conducted by roving commissions, does not require it.
The majority also contends that the sole recourse of the witness, absent its holding, would be to invite and risk a criminal prosecution for failure to obey a subpoena (p 232). However, it is well established that the recipient of an office subpoena can go into court and challenge it "on the ground it calls for irrelevant or immaterial documents or subjects the witness to harassment". (Myerson v Lentini Bros. Moving Stor. Co., 33 N.Y.2d 250, 256, supra; accord Matter of A'Hearn v Committee on Unlawful Practice of Law of N.Y. County Lawyers' Assn., 23 N.Y.2d 916, 918, supra.) "If through ignorance or intention", the Deputy Attorney-General abuses his subpoena power, "the victim of his illegitimate and oppressive attempt not only will be immune under the statute from punishment for refusing to submit to his unreasonable requests or questions but can always appeal to the courts for protection." (Dunham v Ottinger, 243 N.Y. 423, 434, app dsmd 276 U.S. 592, supra.) In this very case, there was no criminal prosecution for disobedience of the command of a subpoena. Rather, the recipients of the subpoenas moved in court, as is their right, to quash the subpoenas. Prospective witnesses are always free to obtain this kind of judicial review. Hence, the protection that the majority deems necessary to bestow upon prospective witnesses is totally unnecessary.
I believe that the subpoenas issued in this case were relevant to a legitimate purpose. I also conclude that there was a fair basis for the inquisitorial action. The Task Force, with the approval of the Governor and the local District Attorney, had been investigating possible organized crime involvement in the alleged fixing of horse races at the Monticello Raceway. The legitimacy of this investigation is not challenged. In the course of the investigation, the Task Force learned of wrongful acts allegedly committed by officials involved in track management. The acts complained of included the siphoning off of corporate money for private gain and the giving of illegal corporate political contributions. Given the asserted presence or organized crime in other areas of track operation and the nature of acts allegedly committed by the track management, it was reasonable for the Assistant Attorney-General to conclude that organized crime may very well be playing a role in the management of the track.
I would also note that the presence of intercounty activity is indicated by the fact that the allegedly illegal political contributions were made to one State-wide political organization, as well as to political associations located in several other counties. Thus, there was sufficient cause to believe that criminal activity of a possibly organized nature was not confined to Sullivan County and was not purely of a local character. The financial records sought bear a reasonable relation to the matters under investigation and to the public purpose to be served. It is relevant that the local District Attorney gave his approval of the collateral investigation, even though such approval is not necessary for the issuance of a nonjudicial office subpoena by the Deputy Attorney-General. (Compare Executive Law, § 70-a, subd 4 with Executive Law, § 70-a, subd 7.)
There can be little doubt that the presence of organized crime is often not readily detectable. Indeed, it is this very imperceptibility that heightens the danger that these criminal associations pose to legitimate society. The Organized Crime Task Force was created because extensive and painstaking investigation is needed to root out this subversive element. The majority's decision ignores both established precedent and the evidence contained in the record. The State's laudable effort to bring organized crime under control has been struck a totally unnecessary blow. I believe that the office subpoenas were properly issued and comply satisfactorily with the standards set forth in our cases. For the reasons stated, I would reverse the order of the Appellate Division and sustain the subpoenas.
Chief Judge BREITEL and Judges WACHTLER and FUCHSBERG concur with Judge JONES; Judge JASEN dissents and votes to reverse in a separate opinion; Judges GABRIELLI and COOKE taking no part.
Order affirmed, without costs.