Opinion
June 21, 1985
Appeal from the Supreme Court, Kings County (Meyerson, J.).
Order affirmed, without costs or disbursements.
At the outset, we note that while an order determining an application to quash a subpoena relating to a criminal proceeding which was issued after the commencement of the criminal action (CPL 1.20) is not directly appealable by the immediate parties to that criminal action ( People v. Santos, 64 N.Y.2d 702; cf. Matter of Morgenthau v. Hopes, 55 A.D.2d 255, lv dismissed 41 N.Y.2d 1007), where, as here, the individual seeking appellate review of the order is not a party to the underlying criminal action, the order is final and appealable as to that individual ( People v. Johnson, 103 A.D.2d 754; People v. Marin, 86 A.D.2d 40).
We conclude that the appellant's application to quash the Grand Jury subpoena based on the existence of an alleged parent/child privilege is premature. A witness cannot raise the issue of privilege until he or she actually appears and is questioned ( Matter of Cunningham v. Nadjari, 39 N.Y.2d 314; Matter of A. M., 61 A.D.2d 425). Accordingly, the application to quash the Grand Jury subpoena was properly denied. We note that a guardian ad litem should be appointed to represent the child in any further proceedings. Brown, J.P., Rubin, Lawrence and Kunzeman, JJ., concur.