PEOPLE v. NESCI (1998)

Appeal unanimously dismissed.

 An order determining a motion to quash a subpoena issued in the course of the prosecution of a criminal action arises out of a criminal proceeding for which no direct appellate review is authorized (People v. Santos, 64 N.Y.2d 702, 485 N.Y.S.2d 524, 474 N.E.2d 1192).   This rule, however, applies only to the parties to the underlying criminal action.   A non-party to the action may take an appeal since the order is final as to that individual or entity (see, 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;  People v. Johnson, 103 A.D.2d 754, 477 N.Y.S.2d 225).

 In the case at bar, the appellant is the New York State Police, an agency of the Executive Department of the State (Executive Law § 210).   Where a state agency is a party to an action, it is the state which is the real party in interest (Matter of Hongisto v. Mercure, 72 A.D.2d 850, 421 N.Y.S.2d 690; 21 Carmody-Wait 2d, N.Y. Prac. § 126:111, at 595).   Thus, in view of the State Police Division's relationship to the State of New York, appellant is a party to the criminal proceeding and no appeal may be taken from the instant order denying the motion to quash the subpoena (People v. Rivera, N.Y.L.J., May 28, 1987, at 12, col. 6 [App. Term 9th & 10th Jud. Dists.] ).

MEMORANDUM.