IN RE: NEWSDAY (2004)

 OPINION OF THE COURT

The appeal should be dismissed, without costs, on the ground that no statutory authority exists for our review of Supreme Court's order in this criminal proceeding (see Matter of Manners [Christopher L.], 74 N.Y.2d 734, 544 N.Y.S.2d 818, 543 N.E.2d 83 [1989] ).

Newsday's application to intervene and obtain access to records supporting issuance of a search warrant was an application “involving a criminal investigation and the proceeding in which the order was issued was therefore a criminal proceeding” (Matter of Alphonso C. [Morgenthau], 38 N.Y.2d 923, 924-925, 382 N.Y.S.2d 980, 346 N.E.2d 819 [1976], citing CPL 1.20[18][b];  Matter of Santangello v. People, 38 N.Y.2d 536, 381 N.Y.S.2d 472, 344 N.E.2d 404 [1976] ).^*  As it was issued in a criminal proceeding, Supreme Court's order was not appealable to the Appellate Division under CPL article 450, nor is the Appellate Division order appealable to this Court by permission pursuant to CPL 460.20 because it is not an appealable order as defined by CPL 450.90.   Remedies available to Newsday could have been via a Freedom of Information Law request (Public Officers Law § 87) or a civil proceeding pursuant to CPLR article 78 at the trial court level (see e.g. Matter of Gannett Co. v. De Pasquale, 43 N.Y.2d 370, 401 N.Y.S.2d 756, 372 N.E.2d 544 [1977];  Matter of Associated Press v. Bell, 70 N.Y.2d 32, 517 N.Y.S.2d 444, 510 N.E.2d 313 [1987] ), from which an appeal to this Court might ultimately have been taken.

Appeal dismissed, without costs, by the Court of Appeals sua sponte, in a memorandum.

FOOTNOTES

FOOTNOTE.   By contrast, we note that “the direct appealability of orders granting or denying motions to quash subpoenas in criminal investigations and actions has a peculiar analytical basis” (Matter of Cunningham v. Nadjari, 39 N.Y.2d 314, 317, 383 N.Y.S.2d 590, 347 N.E.2d 915 [1976] ).   Indeed, since 1936, in a line of cases originating with People v. Doe, 272 N.Y. 473, 3 N.E.2d 875 [1936], this Court has permitted direct appeal of those orders on the ground that “they were final orders in special proceedings on the civil side of a court vested with civil jurisdiction” (Cunningham, 39 N.Y.2d at 317, 383 N.Y.S.2d 590, 347 N.E.2d 915, citing Matter of Boikess v. Aspland, 24 N.Y.2d 136, 138-139, 299 N.Y.S.2d 163, 247 N.E.2d 135 [1969] ).   In Cunningham, however, we recognized that “on a basis of stare decisis these precedents represent a formidable line of authority, however asymmetrical may appear to be the support for the rule they express and apply” (39 N.Y.2d at 317, 383 N.Y.S.2d 590, 347 N.E.2d 915;  see also Matter of Abrams [John Anonymous], 62 N.Y.2d 183, 192, 476 N.Y.S.2d 494, 465 N.E.2d 1 [1984] ).

MEMORANDUM.

Chief Judge KAYE and Judges G.B. SMITH, CIPARICK, ROSENBLATT, GRAFFEO, READ and R.S. SMITH concur.