03/02/2020 In re 381 Search Warrants Directed to Facebook, Inc. :: 2017 :: New York Court of Appeals Decisions :: New York Case Law :: New York Law :: US … The majority and I agree on the framework used to resolve that issue. As their opinion sets out in more detail, it is a fundamental precept of the jurisdiction of our appellate courts that "'no appeal lies from a determination made in a criminal proceeding unless specifically provided for by statute'" (People v Lovett, 25 NY3d 1088, 1090 [2015], quoting People v Pagan, 19 NY3d 368, 370 [2012]). However, I believe the majority has misconstrued the authority it cites for the proposition that "while a subpoena does not commence a criminal proceeding, the issuance of a warrant does just that." The majority starts by citing CPL 1.20 [18], which states: "'Criminal proceeding' means any proceeding which (a) constitutes a part of a criminal action or (b) occurs in a criminal court and is related to a prospective, pending or completed criminal action, either of this state or of any other jurisdiction, or involves a criminal investigation." That section does not distinguish between subpoenas and warrants, and therefore does not support the majority's proposition. The majority next cites Cayuga Indian Nation of N.Y. v Gould (14 NY3d 614 [2010]). That case squarely contradicts the majority's holding here. In Cayuga Indian Nation, several district attorneys served warrants on the Nation, concerning possible prosecutions for the unlawful sale of cigarettes. The next day, the Nation filed a declaratory judgment action contending that the district attorneys "lacked the power to obtain a search warrant or seize property and demanded the return of the confiscated items" (id. at 631). We recognized that "[t]he general rule is that, once a criminal action has been initiated, a criminal defendant may not bring a declaratory judgment action to raise a statutory interpretation or other issue that can be adjudicated in the criminal prosecution" (id. at 633). The district attorneys sought to dismiss the declaratory judgment motion, arguing that "under the Criminal Procedure Law, the filing of a search warrant application commences a 'criminal proceeding' (see CPL 1.20 [18] . . . )" (id. at 634). We rejected the district attorneys' argument, and allowed the Nation to proceed, holding the following, which directly contradicts the majority's position here: "Our holding in Kelly's Rental did not expand the rule precluding the use of declaratory judgment actions to encompass situations like this one where a search warrant application was executed but no party was named as the defendant and no accusatory instrument had been filed against any person or company at the time civil relief was sought. A search warrant often targets a place without identifying a defendant. As such, it is not accurate to say that, in every case where a search warrant application has been filed, a criminal prosecution has been commenced, particularly since a warrant may be requested long before a decision is made to file criminal charges. A party is not categorically precluded https://law.justia.com/cases/new-york/court-of-appeals/2017/16.html 24/44