Opinion
March 14, 1962
Appeal from an order of the Supreme Court, Greene County, denying appellant's application in a proceeding pursuant to article 78 of the Civil Practice Act for an order to compel the Industrial Commissioner of the State of New York and the District Attorney of Greene County to deliver to appellant certain books and records and a stenographic record of his testimony before the Industrial Commissioner. In October, 1959 appellant was required to appear at a hearing before the Industrial Commissioner. In accordance with a subpoena duces tecum issued pursuant to section 39 Lab. of the Labor Law appellant produced the books and records in question at the hearing. Whether appellant voluntarily left these books and records with the Industrial Commissioner is disputed. In January, 1960 the Industrial Commissioner determined that appellant had obtained unemployment benefits by making false statements as to his employer and period of employment and ordered repayment of benefits received. An appeal of this determination to a Referee is now pending. In May, 1960 appellant, among others, was indicted by the Greene County Grand Jury for grand larceny. The District Attorney of Greene County admits that some of the records produced by appellant before the Industrial Commissioner as well as a transcript of his testimony before the commissioner was used in securing the indictment. Apparently there was no petition of the Grand Jury with respect to impounding of the records in question and no court order to that effect (Code Crim. Pro., § 952-t). A motion by appellant to examine the Grand Jury minutes was denied. He then moved to compel the District Attorney to surrender all documents he had received from the Industrial Commissioner. This motion was also denied by the County Court and a notice of appeal was filed. When a Judge of this court would not grant a stay pending the appeal, the appeal was abandoned and appellant began the instant proceeding. The court below denied the relief requested on the grounds that subdivisions 2 and 4 of section 1285 of the Civil Practice Act preclude review of the determinations here involved. We agree. An article 78 proceeding in the nature of certiorari or mandamus cannot be used to review a determination of a criminal tribunal (Civ. Prac. Act, § 1285, subd. 2; cf. Matter of Canizio v. Marasco, 188 Misc. 953). The amendment to appellant's petition was couched in language of the nature of prohibition, in effect to suppress this evidence. This must be first directed to the County Court and in any event is not within the scope of an article 78 proceeding ( Matter of Amalgamated Union, Local 224 v. Levine, 219 N.Y.S.2d 851). Thus appellant's proper course of action as to any grievances he may have concerning the actions of the District Attorney in the criminal proceeding is to direct such contentions in the first instance to the County Court, and then, if the County Court does not afford the relief appellant feels he is entitled to, to pursue an appeal of such determination in the normal prescribed manner. He is not entitled to review each facet of the criminal proceeding by an article 78 proceeding. Appellant's rights are adequately protected by recourse to the normal appellate review ( Matter of Duchin v. Peterson, 12 A.D.2d 622, motion for leave to appeal denied, 9 N.Y.2d 609; Matter of Kenler v. Murtagh, 12 A.D.2d 662). In regard to the books and papers held by the Industrial Commissioner in our view a different procedural situation exists. We do not believe that petitioner is restricted to the appeal procedure under the Labor Law (§ 620, subd. 2; § 621, subd. 2; § 626) or the Civil Practice Act (§ 1285, subd. 4). As to these books and records retained by the Industrial Commissioner, we are reversing the denial of petitioner's application by the court below. Objections in point of law were filed by the Attorney-General on behalf of the Industrial Commissioner under section 1293 of the Civil Practice Act. The Industrial Commissioner may now interpose an answer five days from the service of the order of this court with notice of entry thereof. We would normally expect, absent defenses thereto or sufficient reasons therefor, that the Industrial Commissioner would return books and papers produced by subpoena duces tecum. Order denying petitioner's applications and dismissing petition modified, without costs, to affirm so much thereof as denies petitioner's application and dismisses the petition against the District Attorney of Greene County and by reversing so much thereof as denies petitioner's application and dismisses the petition against the respondent Industrial Commissioner, with leave to Industrial Commissioner to answer within five days from the service of the order of this court with notice of entry thereof. Bergan, P.J., Coon, Gibson, Herlihy and Reynolds, JJ., concur.