

People v DePalo (2017 NY Slip Op 01441)





People v DePalo


2017 NY Slip Op 01441


Decided on February 23, 2017


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on February 23, 2017

Friedman, J.P., Andrias, Moskowitz, Kapnick, Kahn, JJ.


3028 1450/15

[*1]The People of the State of New York, Respondent,
vRobert DePalo, et al., Defendants-Appellants, Pangaea Trading Partners, LLC, Defendant.


Peter R. Ginsberg Law, LLC, New York (Peter R. Ginsberg of counsel) and Moskowitz & Book, LLP, New York (Avraham C. Moskowitz of counsel), for appellants.
Cyrus R. Vance, Jr., District Attorney, New York (Garrett Lynch of counsel), for respondent.

Appeal from order, Supreme Court, New York County (Ronald A. Zweibel, J.), entered on or about August 16, 2016, which denied defendants' motion for issuance of letters rogatory seeking the assistance of judicial authorities in the United Kingdom in the conduct of discovery there, unanimously dismissed, as taken from a nonappealable order.
In this matter where an indictment has been filed, a criminal trial is pending, and defendants seek information via letters rogatory for use at their criminal trial, the denial of the application for such letters is part of the criminal proceeding, notwithstanding that the application was brought under CPLR 3108 (see People v Santos, 64 NY2d 702, 704 [1984]; People v Christopher B., 102 AD3d 115, 117-120 [1st Dept 2012], lv denied 20 NY3d 860 [2013]; People v Johnson, 103 AD2d 754, 755 [2d Dept 1984]; compare Matter of Abrams [John Anonymous], 62 NY2d 183, 192 [1984] [denial of motion to quash preindictment subpoena "issued pursuant to a criminal investigation, is civil by nature and not subject to the rule restricting direct appellate review of orders in criminal proceedings"]).
"It is well established that no appeal lies from a determination made in a criminal proceeding unless specifically provided for by statute" (People v Pagan, 19 NY3d 368, 370 [2012] [internal quotation marks omitted]). The order appealed from is not a disposition listed in CPL 450.10 or 450.15, and is therefore not an appealable paper (see People v Hurley, 47 AD3d 488 [1st Dept 2008]). A "defendant may only appeal after conviction" (People v Coppa, 45 NY2d 244, 249 [1978]), and may not obtain an interlocutory appeal by claiming to invoke the court's civil jurisdiction.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: FEBRUARY 23, 2017
CLERK


