PEOPLE v. New York State District Attorneys Association, New York State Association of Criminal Defense Lawyers and New York Criminal Bar Association, Amici Curiae. (2001)

Order, Supreme Court, New York County (James Yates, J.), entered on or about December 21, 1999, which denied nonparty appellant The New York City Police Department's motion to quash a subpoena duces tecum, unanimously reversed, on the law, without costs, and the motion granted.

 Since the Police Department was not a party to the underlying criminal action, it may properly appeal from the order denying the motion to quash the subpoena duces tecum (Matter of Cunningham v. Nadjari, 39 N.Y.2d 314, 383 N.Y.S.2d 590, 347 N.E.2d 915;  Matter of Grand Jury Subpoena No. 2573/85, 111 A.D.2d 891, 491 N.Y.S.2d 29, lv. denied 65 N.Y.2d 606, 493 N.Y.S.2d 1028, 483 N.E.2d 134).

 The motion court erroneously denied the Police Department's motion to quash the subpoena duces tecum since defendant failed to put forth a factual predicate to support the contention that the documents sought in the subpoena will bear relevant and exculpatory evidence (Matter of Constantine v. Leto, 157 A.D.2d 376, 557 N.Y.S.2d 611, affd. for reasons stated 77 N.Y.2d 975, 571 N.Y.S.2d 906, 575 N.E.2d 392;  People v. Gissendanner, 48 N.Y.2d 543, 423 N.Y.S.2d 893, 399 N.E.2d 924).   Without the factual predicate, defendant's subpoena merely constitutes a discovery demand directed to a non-party, which is in contravention to the discovery provisions of CPL Article 240.