author: Chief Judge Cooke. Jasen, J.

text:
    In the Matter of the Bronx County Grand Jury Investigation into the Attempted Murder of Clara Vanderbilt. Jonathan L. Rosner, Individually and as Attorney for Richard G. Rosen, et al., Appellants-Respondents; Pat Hickey, as Clerk of the Supreme Court of the State of New York, Bronx County, Respondent-Appellant. (And Another Proceeding.)
    Argued May 6, 1982
    decided July 1, 1982

      POINTS OF COUNSEL

      Jonathan L. Rosner, appellant-respondent pro se, and for another, appellants-respondents.
    I. The two tape recordings made by and which are the property of the “target” of the investigation which were delivered to his attorney for the purpose of obtaining professional advice are protected against compulsory production from the attorney by the attorney-client privilege, the privilege against self incrimination and the right to be secure against unreasonable searches and seizures. (Branzburg v Hayes, 408 US 665; Costello v United States, 350 US 359; United States v Calandra, 414 US 338; People v De Martino, 71 AD2d 477; Fisher v United States, 425 US 391; United States v Miller, 660 F2d 563; United States v Davis, 636 F2d 1028; Matter of Grand Jury Proceedings, 632 F2d 1033; People v Belge, 59 AD2d 307; Matter of Victor, 422 F Supp 475.) II. The tape recording made by the “target” of the investigation which was intended for and disclosed only to his wife, and which was delivered to his attorney for the purpose of obtaining legal advice is protected by the marital privilege and may not be submitted to the Grand Jury. (People v Melski, 10 NY2d 78; People v Daghita, 299 NY 194; People v Monahan, 21 AD2d 76; Prink v Rockefeller Center, 48 NY2d 309; People v Harris, 39 Misc 2d 193; People v Sullivan, 42 Misc 2d 1014; People v Fitzgerald, 101 Misc 2d 712; People v Seaman, 104 Misc 2d 10; People v Feld, 305 NY 322; Matter of Terkeltoub, 256 F Supp 683.)

      Mario Meróla, District Attorney (Steven R. Kartagener and Alan D. Marrus of counsel), for respondent-appellant.
    I. After correctly finding that both tape recordings prepared by Dr. Rosen shortly before his attempt to commit suicide are manifestly relevant to the Grand Jury’s investigation into the attempted murder of Dr. Rosen’s lover, Ms. Vanderbilt, the court below erred in holding that the marital privilege precluded the Grand Jury’s listening to the taped, oral “suicide note” left by Dr. Rosen for his wife, Barbara, with the clear expectation that its contents would be heard by her only after their marriage had ended in his death. (Virag v Hynes, 54 NY2d 437; United States v Nixon, 418 US 683; Branzburg v Hayes, 408 US 665; Matter of Additional Jan. 1979 Grand Jury of Albany Supreme Ct. v Doe, 50 NY2d 14; Matter of Keenan v Gigante, 47 NY2d 160; People v Silverman, 252 App Div 149; Matter of Priest v Hennessy, 51 NY2d 62; Prink v Rockefeller Center, 48 NY2d 309; Matter of Jacqueline F., 47 NY2d 215; Poppe v Poppe, 3 NY2d 312.) II. The court below correctly ruled that the attorney-client privilege does not warrant preclusion of the two tapes from presentation to the Grand Jury. (Fisher v United States, 425 US 391; Matter of Priest v Hennessy, 51 NY2d 62; Bloodgood v Lynch, 293 NY 308; People v Copicotto, 50 NY2d 222; United States v Beattie, 541 F2d 329; Kozecke v Humble Oil & Refining Co., 46 AD2d 986; Matter of King v Ashle, 179 NY 281; Matter of Victor, 422 F Supp 475; United States v Miller, 660 F2d 563.)
   OPINION OF THE COURT

Chief Judge Cooke.

The marital privilege may protect from discovery a tape recording left to one spouse by the other, even though the tape apparently was prepared in contemplation of suicide. Having attached, the marital privilege also precludes examining the tape for deletions or erasures. In addition, a tape recording having left the maker’s possession, but which is regained without disclosure of its contents and delivered to the maker’s attorney in order to obtain legal advice, is protected by a combination of the Fifth Amendment privilege against self incrimination and the attorney-client privilege.

BACKGROUND

Late on December 31, 1981, Clara Vanderbilt told an acquaintance that her friend Dr. Richard Rosen had requested that she meet him at his office at Montefiore Hospital, where they both worked. A short time later, Vanderbilt was found outside Dr. Rosen’s office, unconscious from a severe bludgeoning about the head. Extensive surgery succeeded in preventing her death.

By January 3, 1982, Rosen knew he was a target of the assault investigation. On that day, he visited Vanderbilt at the hospital and learned that she had received a favorable prognosis. Rosen went to his office, made a tape recording at his desk, and then left the hospital. That evening, he attempted suicide at his house. Lifesaving emergency care was given to him at White Plains Hospital.

After accompanying her husband to the hospital, Barbara Rosen returned to their home in the late evening of January 3. In the study, she found a cassette tape addressed to “Barbara” (“Tape No. 1”). Mrs. Rosen did not listen to the cassette, however.

The next day, January 4, Mrs. Rosen spoke to Arthur Olick, a neighbor and close friend of the Rosens who is an attorney. At this time, Dr. Rosen was still hospitalized and unconscious. After the wife related all the recent events, Olick expressed the need to retain counsel for Dr. Rosen and advised Mrs. Rosen to act for her husband. Mrs. Rosen told Olick of the tape she had found in the study and that she wanted to throw it away because of her aversion to listening to it. Olick instructed her to give the tape to him instead, to answer truthfully any questions about its existence, and to refer all inquiries to him.

Olick also suggested that Dr. Rosen’s hospital office be examined for any other notes or tapes. Mrs. Rosen telephoned her husband’s superior and requested that he look for such articles. A second cassette then was retrieved from Dr. Rosen’s desk and delivered to Mrs. Rosen (“Tape No.. 2”). Mrs. Rosen wrapped both cassettes and left them in Olick’s mailbox on the afternoon of January 4.

After the doctor regained consciousness, he hired Jonathon Rosner to represent him. Mrs. Rosen took the still-sealed tapes from Olick and delivered them to Rosner by handing them to Rosner’s 15-year-old son.

In the course of the police investigation, Mrs. Rosen voluntarily revealed the existence of Tape No. 1 and Rosner’s possession of it. Rosner refused to comply either with a Grand Jury subpoena duces tecum seeking the tape or with an ex parte court order directing that the tape be surrendered under seal to the court for the purpose of protecting the tape’s integrity. At a hearing on January 27, on an order to show cause and on a motion to quash the subpoena, Rosner admitted the existence and his possession of Tape No. 2. The court declined to rule whether the claimed privileges — attorney-client, marital, and that against self incrimination — protected the two tapes from discovery by subpoena. Instead, the court found Rosner to be in contempt, but allowed him until the morning of January 29 to deliver the tapes to the court for safekeeping.

On January 28, Rosner and an Assistant District Attorney stipulated before a single Appellate Division Justice that the tapes would be surrendered to Supreme Court as ordered, but under seal. This was done on January 29. On the same day, a subpoena duces tecum was also served on Rosner for Tape No. 2.

On February 1, Rosner and Dr. Rosen commenced an article 78 proceeding to force the tapes’ return. The Assistant District Attorney moved for the tapes’ release to the Grand Jury. The Trial Judge declared that he would hear both applications on February 3 and, in the interim, he would listen to the tapes.

On February 3, the Assistant District Attorney served papers opposing the motion to quash and also another Grand Jury subpoena duces tecum seeking “any and all tapes, documents or written communications made by Mr. Rosner [szc] that are relevant to this investigation.” Following the hearing, the Trial Judge, without discussing the privilege claims, ruled that the subpoenas should be quashed because the tapes were irrelevant to the Grand Jury investigation into Vanderbilt’s assault, a ground not raised by petitioners.

On appeal, the Appellate Division unanimously reversed. It ruled that the contents of Tape No. 1 — the tape to Mrs. Rosen — were protected by the marital privilege. In response to a claim of possible tampering, however, the Appellate Division ordered that Tape No. 1 be scientifically tested to ascertain whether it had “been altered in any manner”. As to Tape No. 2, the court conclusorily stated only that “no privilege whatsoever can attach” and ordered its full disclosure to the Grand Jury, as well as any scientific analysis the Grand Jury might deem appropriate.

tape no. 1

Petitioners Dr. Rosen and Rosner argue that Tape No. 1 is protected from discovery by virtue of the marital privilege, and that this protection extends beyond the tape’s contents so as to bar any scientific examination for tampering.

The marital privilege provides that “[a] husband or wife shall not be required, or, without consent of the other if living, allowed, to disclose a confidential communication made by one to the other during marriage” (CPLR 4502, subd [b]). Not protective of all communications, the privilege attaches only to those statements made in confidence and “that are induced by the marital relation and prompted by the affection, confidence and loyalty engendered by such relationship” (Poppe v Poppe, 3 NY2d 312, 315; see, also, Prink v Rockefeller Center, 48 NY2d 309, 314; Fisch, New York Evidence [2d ed], § 597, p 380). Whether a statement comes within the marital privilege is a preliminary question for the court, and involves a determination that must be made on an ad hoc basis (see Poppe v Poppe, supra, p 315; Fisch, New York Evidence, p 381; 4 Bender’s, New York Evidence [1981 ed], § 245.03, subd [1], par [d], p 446.9).

The initial inquiry then is whether Dr. Rosen was induced by the marital relation to prepare Tape No. 1. Communications that would have been made regardless of the marriage’s existence are not protected (see Parkhurst v Berdell, 110 NY 386, 393-394). Nor are communications made without reliance on the marital relation or that are aimed at destroying the marriage (see Poppe v Poppe, 3 NY2d 312, 315, supra; People v McCormack, 278 App Div 191, 196-197, affd 303 NY 782).

Respondent argues that Tape No. 1 is not protected by the marital privilege because, as a suicide message, it was not intended to be received during the marriage and was made in contemplation of destroying it. This argument is unpersuasive. Whether the communication was meant to be received after death is irrelevant; the concern is whether the statement was made because of the marital relation (cf. New York Life Ins. Co. v Ross, 30 F2d 80, 81 [letter to wife found with will held privileged]). To that extent, the communication is made “during marriage” for the purpose of the privilege. Nor is a suicide note the sort of communication excluded from the privilege’s scope as aimed at destroying the marriage. That exception refers to the nature of the statement itself (see, e.g., Poppe v Poppe, 3 NY2d 312, supra [wife’s admission of adulterous affairs destructive of marriage and thus not privileged]). A suicide note to one’s spouse may be a last attempt to preserve the affection that gave rise to the marriage and to explain the reason for the drastic act.

Nothing in the record suggests any reason for concluding that Dr. Rosen’s tape to his wife was not induced by the marital relationship. Thus, the tape must be considered as satisfying the first condition of the privilege.

The next issue in determining if the privilege should prevent disclosure is whether Dr. Rosen’s statement to his wife, made via the cassette recording, was and remains “confidential”. No question can be raised that Dr. Rosen made the tape and “delivered” it to his wife outside the presence of any third parties. Thus, at the time Mrs. Rosen discovered the tape, its message was unknown to anyone outside the marriage and so remained confidential for the purpose of the marital privilege.

That Tape No. 1 passed through the hands of Olick and Rosner’s son, third parties with no justifiable interest in becoming privy to the marital privilege, did not destroy that privilege. The privilege falls only when the substance of a communication, and not the mere fact of its occurrence, is revealed to third parties (see People v Hayes, 140 NY 484, 495-496; cf. Prink v Rockefeller Center, 48 NY2d 309, 313, supra). Neither person through whose hands the tape passed listened to the tape, but instead learned only of its existence. Nor did Mrs. Rosen’s disclosure to the police reveal anything more than that the tape had been made. Indeed, to date, only Dr. Rosen and the Justices of the lower courts know exactly what message is contained in Tape No. 1. The communication’s confidentiality must be deemed intact.

The Appellate Division expressly found the privilege applicable after listening to the tape. As such, there is no basis for the order that the tape be scientifically examined. The request for such an order arose from the expressed concern that Tape No. 1 had been tampered with, particularly through deletions. Once it is determined that the contents of the tape were privileged, it is irrelevant whether there have been erasures or other deletions. What is not said and whether deletions have been made are as much a part of a communication’s “substance” as are the statements actually made.

In summary, Tape No. 1 was made by Dr. Rosen for his wife as a communication made in confidence and induced by the marital relationship. It is, therefore, protected by the marital privilege both as to its contents and as to examination for deletions.

tape no. 2

Petitioners challenge the compelled production of Tape No. 2 by asserting a combination of the attorney-client privilege and the Fifth Amendment privilege against self incrimination. In essence, petitioners claim that material protected in a client’s hands should not lose that protection when possession is transferred to an attorney for the purpose of seeking legal advice.

This court’s analysis starts with the recognition that Rosner may not directly assert any Fifth Amendment claim of protection held by Dr. Rosen. The Fifth Amendment states that “[n]o person * * * shall be compelled in any criminal case to be a witness against himself” (US Const, 5th Arndt). Rosner, against whom the coercive power of the subpoena is directed, would not be incriminating himself by any production of the tape. There being no self incrimination involved, Rosner has no Fifth Amendment right; nor may he assert the right on behalf of his client, against whom no compulsion has been directed (see Fisher v United States, 425 US 391, 396-401).

This does not end the inquiry, however. An attorney may rely on the attorney-client privilege to prevent discovery of materials that would not have been discoverable if in the client’s hands {id., at p 404). This entails a two-pronged review. First, it must be determined whether the material sought was received by the attorney under circumstances giving rise to the attorney-client privilege {id., at pp 402-405). Second, if the attorney-client privilege attaches, attention is then directed to whether the material would be protected by some privilege had it remained in the client’s-possession {id., at p 405).

The attorney-client privilege generally extends to any “confidential communication made between the attorney or his employee and the client in the course of professional employment” (CPLR 4503, subd [a]). The privilege is intended to foster openness between counsel and client so that legal problems can be thoroughly and accurately analyzed (see 8 Wigmore, Evidence [McNaughton rev, 1961], § 2291). Not all communications are covered, however. Only those disclosures “necessary to obtain informed legal advice” fall within the scope of the privilege (Fisher v United States, 425 US 391, 403, supra).

Tape No. 2 was delivered to Rosner in contemplation of the pending Vanderbilt investigation. It was certainly necessary for Rosner to obtain it in order to render complete legal advice. But respondent urges that, in light of the number of people through whose hands Tape No. 2 passed, there was no confidential communication within the meaning of CPLR 4503 (subd [a]).

While it is true that the attorney-client privilege does not attach unless there is a “confidential communication” between counsel and his or her client, this does not require that all aspects of the communication, including its topic, must be confidential for the privilege to attach. Rather, the pertinent “confidence” arises from the attorney-client relationship and the privacy of the conversation or communication to the attorney. By way of example, a husband may consult an attorney in a divorce proceeding; although the wife may very well be aware of the,subject matter of the husband’s conversation, she will be unable to discover the details of his discussion with his attorney from his attorney.

Moreover, a client’s mere intent to disclose to third persons the substance of the discussion held with the attorney does not mitigate the privilege. There must be actual disclosure, otherwise the confidence arising from the attorney-client relationship has not been breached.

In the present controversy, Dr. Rosen has lost any privilege he may have had as to the fact that he made Tape No. 2. As to the tape’s contents, however, Dr. Rosen has lost nothing. Notwithstanding his earlier intent to direct the tape’s message to others, such was never done. That the tape passed through the hands of his colleagues, his wife, his friend Olick, and his attorney’s son does not operate to destroy the confidentiality of the tape’s message because none of these persons ever heard his words. When Rosner finally received the tape, he received it with its contents undisclosed. Whatever the tape’s initial purpose and intended audience, it ultimately was uttered only to Rosner by his client who was seeking legal advice and outside the presence of any third party with no intention that it be passed to another (see Fisher v United States, 425 US 391, 402-405, supra; cf. Rosseau v Bleau, 131 NY 177,183-184). Thus, to the extent that Dr. Rosen’s “communication” with Rosner is defined in terms of the tape’s message, it remains confidential — made in the attorney-client relationship — and protected by the privilege.

Having concluded that the attorney-client privilege attaches, it must now be determined whether Tape No. 2 would be protected had it remained in Dr. Rosen’s possession (see Fisher v United States, 425 US 391, 405, supra). That is, could Dr. Rosen have asserted rights under the Fifth Amendment to prevent the Grand Jury from obtaining the tape had the subpoena been directed to him personally?

Under the holding in Fisher v United States (425 US 391, supra), a document is protected “if the act of producing it results in compelled testimonial self-incrimination", (Note, Constitutional Law — Taxpayer’s Fifth Amendment Privilege Against Self-Incrimination — Fisher v United States, 18 BC Ind & Com LR 998, 1008 [emphasis added]). All three elements must be present for the Fifth Amendment’s protection to be implicated. The use of the subpoena power, of course, provides the requisite governmental coercion to make production of the tape compelled. And it must be assumed that the tape’s content is self incriminatory. The question here is whether “testimonial evidence” is involved.

Testimonial evidence is that which communicates the witness’ ideas or thoughts, that exposes the witness’ mental state or thought process (see United States v Beattie, 541 F2d 329, 331; Comment, No Fifth Amendment Privilege for Accountant-Prepared Tax Records in Attorney’s Possession, 31 Ark L Rev 152,155). Not only is immediate oral testimony covered, but also books and records (see People v Copicotto, 50 NY2d 222, 228-229; United States v Beattie, supra; 8 Wigmore, Evidence [McNaughton rev, 1961], §§ 2263, 2264; Richardson, Evidence [10th ed — Prince], § 526, p 519; Fisch, New York Evidence [2d ed], § 691, p 390; Comment, 31 Ark L Rev 152, 155).

To assert successfully a claim of Fifth Amendment privilege with respect to the production of evidence, the evidence itself must be testimonial and the act of production also must include some testimonial quality (see Fisher v United States, 425 US 391, 409-411, supra; Note, 18 BC Ind & Com LR 998, 1009-1010).

In the present controversy, both the evidence sought and its production, if made by Dr. Rosen, are testimonial in nature. A tape cassette is clearly testimonial in that it is an aural record of the accused’s communication; only live testimony could be any more personal. Moreover, production of the tape by Dr. Rosen would be testimonial by virtue of his authentication, express or implied, of the tape (see 8 Wigmore, § 2264, p 380). By producing Tape No. 2 in response to a subpoena, Dr. Rosen would not only express his belief that this is the tape sought by the Grand Jury, but would be vouching for the circumstances of its preparation, its accuracy, and the conclusions drawn from it. Thus, there is a testimonial element to the production of Tape No. 2 (cf. Fisher v United States, 425 US 391, 412-413, supra; 8 Wigmore, § 2264, p 380).

Although it is concluded that the Fifth Amendment protection is available, this conclusion is grounded on the assumption that Dr. Rosen gave the tape to Rosner. That is a factual question that appears not to have been determined below. For Dr. Rosen’s Fifth Amendment rights to be protected by Rosner through the attorney-client privilege, the tape must have come back into Dr. Rosen’s actual or constructive possession (see United States v Beattie, 541 F2d 329, 331, supra). Thus, a question remains whether Mrs. Rosen was acting as her husband’s agent when she took the tape from Olick and transferred it to Rosner. If so, the tape should be protected.

CONCLUSION

Under all the circumstances, Tape No. 1, prepared by Dr. Rosen for his wife, is completely protected by the marital privilege. Arising out of and made in reliance on the confidence of the marital relation, the tape can be neither heard nor examined for deletions.

It is further held that, when the attorney-client privilege obtains, counsel cannot be compelled to deliver material that would be privileged in the client’s hands. This does not mean that an attorney may serve as a repository for any incriminating evidence that might be held by the client, such as physical evidence of a crime (see Genson v United States, 534 F2d 719, 727). But when, as here, the evidence sought is inherently testimonial and its delivery was for the purpose of seeking legal advice rather than merely concealing evidence, that evidence falls within the privilege.

As noted, Dr. Rosen can assert his Fifth Amendment privilege only if Tape No. 2 came back into his actual or constructive possession. Consequently, there must be a hearing to ascertain the capacity in which Mrs. Rosen was acting when she regained the tape from Click and delivered it to Rosner. If Mrs. Rosen is found to have been acting as her husband’s agent, then Dr. Rosen’s rights remain intact and Tape No. 2 is privileged.

Accordingly, the order of the Appellate Division should be modified, without costs, and the matter remitted to Supreme Court, Bronx County, for further proceedings in accordance with this opinion, and, as so modified, the order should be affirmed.

Jasen, J.

(concurring in part and dissenting in part). I concur in the majority’s determination that Tape No. 1 is subject to the marital privilege and cannot be obtained by the Grand Jury either to evaluate its contents or condition. I cannot agree, however, that, on the record before us, it is proper to quash the Grand Jury’s subpoena as to Tape No. 2. Therefore, I dissent from that portion of the majority’s decision.

The Appellate Division, after listening to Tape No. 1, found it to contain statements by Dr. Rosen which were “made in reliance on the marital relationship and would not have been made but for this relationship.” (87 AD2d 528.) That court also found that the tape remained, despite being given to others for safekeeping or transfer, confidential.

The record indicates that the tape was marked for Mrs. Rosen and was left in the Rosen home where she would find it. There is no allegation that anyone discovered or handled it before she did. Before she forwarded it to attorney Olick, she sealed it in a package. I would agree that the record clearly supports the determination that this was a confidential communication made in the marital relationship. It is, thus, proper to protect that tape in all respects.

As to Tape No. 2, which was left by Dr. Rosen for his medical colleagues, I have no dispute with the majority’s initial analysis that attorney Rosner cannot assert Dr. Rosen’s Fifth Amendment rights. The law is clear that the Fifth Amendment is a personal right that cannot be asserted by third parties. (See, e.g., Couch v United States, 409 US 322; Fisher v United States, 425 US 391, 396-401.) Rosner, to whom the subpoena is directed, clearly has no Fifth Amendment claim of his own to raise since what he is being compelled to produce are not even arguably his private papers or self incriminating. Thus, except for the existence of the attorney-client privilege, Rosner could raise no Fifth Amendment claim. It is at this point that I differ with the majority’s construction of the facts and the implications drawn therefrom.

Rosner asserts that the attorney-client privilege attaches because the tapes were given to him by Mrs. Rosen at her husband’s direction and for the purpose of obtaining legal advice. But Rosner does not claim that he had ever listened to either of the tapes in order to dispense legal advice. Given this testimony, I can conclude only that the client disclosed nothing more than the existence of the tape to his attorney. Since the tape has been held at different times by at least five persons other than Dr. Rosen, its existence can hardly be deemed confidential.

It is likewise improper to conclude, on the basis of this record, that the tape was given for legal advice. While attorney Rosner asserts that it was given to him for legal advice, he offers nothing in support of this assertion. It is difficult to envision what type of legal advice could be obtained by giving one’s attorney a cassette tape which the attorney does not listen to.

The purpose of the attorney-client privilege is to “foster openness between counsel and client so that legal problems can be thoroughly and accurately analyzed (see 8 Wig-more, Evidence [McNaughton rev, 1961], § 2291).” (Majority opn, at p 76.) In this case, it would appear quite obvious that the tapes were given to the attorney not to allow a thorough analysis of the contents of the tapes in order to give counsel to the client’s legal problems but, rather, an attempt to secure the tape from any investigation, including that of the Grand Jury. Indeed, the existence of this second tape was not even known to the investigators or the Grand Jury until Rosner appeared in opposition to the Grand Jury’s subpoena of Tape No. 1.

This, of course, is not to say that any statements made by Dr. Rosen as to what was on the tape would not be privileged. Such communication, assuming it was done in confidence, would relate to Dr. Rosen’s legal problems and be subject to the attorney-client privilege. But I cannot agree with invoking the attorney-client privilege when the attorney serves as nothing more than a repository for potentially incriminating evidence. It is not the purpose of the attorney-client privilege to thwart a criminal investigation and invoking it to preclude a Grand Jury from carrying out its constitutional responsibilities of investigating serious crimes is, in my opinion, improper.

Even if Rosner did support his claim to have given legal advice about the existence of the tape, I would still be troubled by whether or not this would amount to a confidential communication to his attorney. Unlike the facts surrounding Tape No. 1, the facts surrounding the making and handling of Tape No. 2 give no assurance that it has remained confidential. The contents of the tape were intended for Dr. Rosen’s medical colleagues and left on his desk at the hospital. There are no facts indicating that at the time Dr. Rosen left it on his desk, he intended the contents of the tape to remain confidential or that he took any precautionary steps to insure that no one would listen to it. Indeed, it appears that by leaving it plainly visible on his desk, he intended his medical colleagues to listen to it after his suicide. Mrs. Rosen, however, intervened by telephoning her husband’s superior at the hospital, who upon discovering the cassette, returned it to her. It was at that point that Mrs. Rosen wrapped the cassette and gave it to attorney Olick, who held it until Dr. Rosen retained Rosner. Olick then returned the tape to Mrs. Rosen, who forwarded it to Rosner by giving it to his teen-aged son. Given these multiple conveyances and the initial manner in which the tape was left, I cannot agree with the majority’s conclusion (at p 77) that “[w]hen Rosner finally received the tape, he received it with its contents undisclosed.” Although it is possible that no one, as Rosner asserts, even listened to the tape, it is equally possible that any number of people, including the medical colleagues for whom it was intended, did listen to the tape.

The majority dismisses this problem by likening the cassette to a letter in a sealed envelope where those who convey it learn only of its existence while the contents remain private. I think a more appropriate analysis would be to a letter in an unsealed envelope. It is, of course, possible that no one among those passing the letter would look into the unsealed envelope and read its contents, but it is equally possible that any number of them would do so. Rosner had entered little into the record other than his own statement that his son told him he did not listen to the tape to support his contention that the tape remained confidential. Notably missing is any affidavit from the chief of surgery who initially recovered the tape from Dr. Rosen’s desk at the hospital. Significantly, neither court below addressed this question.

Even were I to subscribe to the majority’s opinion that the attorney-client privilege has been properly asserted, I would be compelled to disagree with their conclusion that Tape No. 2 is protected by Dr. Rosen’s Fifth Amendment rights.

The Fifth Amendment “protects a person only against being incriminated by his own compelled testimonial communications.” (Fisher v United States, supra, at p 409.) Traditionally, this has been applied to protect a person’s private papers which reflect “a private inner sanctum of individual feeling and thought.” (Couch v United States, 409 US 322, 327, supra; Murphy v Waterfront Comm,., 378 US 52, 55.) The theory being that private thoughts, although written down or otherwise recorded, remain privileged and the government may not obtain access to those thoughts merely because the person had recorded them.

It was thus natural to extend the Fifth Amendment privilege against being compelled to testify to cover one’s private papers. (See Fisher v United States, supra, at p 420 [Brennan, J., concurring].) But just as logically, the Supreme Court has declined to extend the privilege to cover nonprivate records or information. (Bellis v United States, 417 US 85; Andresen v Maryland, 427 US 463.) By applying the Fifth Amendment to this tape recording, the majority assumes that it is a private recording of Dr. Rosen’s thoughts. Since it was concededly intended for his medical colleagues, I do not believe this would qualify as a private record. In this regard, it is analogous to business records to which others have access; those are not privileged precisely because they are not private in nature, whether or not anyone has availed himself of the opportunity to review those records. (Bellis v United States, supra, at pp 91-97.)

Assuming the Fifth Amendment does apply, I believe that, on the record before us, it is not established that Tape No. 2 is either testimonial or incriminating. At best, this court is faced with divided factual findings by the courts below. But those courts’ findings were addressed only as to whether or not the tape was relevant and material to the Grand Jury’s investigation. It is unclear, on the basis of those factual findings, whether or not the tape is incriminating. I cannot, therefore, agree with the majority’s statement that “it must be assumed that the tape’s content is self incriminatory.” (At p 78.)

Nor can I agree with their statement that: “A tape cassette is clearly testimonial in that it is an aural record of the accused’s communication”. (At p 79.) This appears to assume that all cassette tapes are testimonial in nature. In light of the Supreme Court’s repeated refusal to extend the definition of what is testimonial, I find such an assumption questionable. (See Fisher v United States, supra, at p 408, citing Schmerber v California, 384 US 757 [blood samples nontestimonial]; Gilbert v California, 388 US 263 [voice exemplars nontestimonial]; United States v Wade, 388 US 218 [handwriting exemplars nontestimonial]; Holt v United States, 218 US 245 [donning blouse worn by perpetrators nontestimonial]; Bellis v United States, supra [partnership records nontestimonial].) The pronouncement in Boyd v United States (116 US 616) that the Fifth Amendment privilege is extended to private papers must be, in view of these subsequent decisions, given a limited application. (Supreme Court, 1975 Term, Fifth Amendment Protection of Private Papers, 90 Harv L Rev 76.) Thus, I think it improper to assume without a hearing on this specific question that all tapes are, or that this tape is, testimonial. Just as the giving of a voice exemplar or the taking of a blood sample was found to not be sufficiently testimonial in nature to warrant Fifth Amendment protection, it may well be that when the contents of Tape No. 2 is reviewed, it would be found to be nontestimonial' A review to determine whether or not the tape is testimonial or incriminating can, of course, be conducted by the court, in camera.

Unless it was shown at such a hearing that the tape is testimonial and incriminating, the question of whether or not its production was compelled need not be reached. If, at the hearing, it was determined that the tapes were either nontestimonial or nonincriminating, the act of producing them, even subject to a subpoena, would not involve testimonial self incrimination. “In the case of a documentary subpoena the only thing compelled is the act of producing the document and the compelled act is the same as the one performed when a chattel or document not authored by the producer is demanded.” (Fisher v United States, supra, at p 410, n 11.) The only testimonial aspect would then be that turning over the tape concedes its existence. Certainly, merely admitting the existence of a common cassette tape cannot be deemed self incriminating. Whether this would constitute compelling self incriminatory testimony when the tape was heard by the Grand Jury cannot be determined until the nature of the tape is ascertained.

Because I believe that the assumptions made by the majority are improper and are not supported by the record before us, I would agree with the majority at the Appellate Division that respondent has not sustained his burden and the Grand Jury is entitled to Tape No. 2.

It is a “well settled” rule of law “that every person owes a duty to give evidence before the Grand Jury when requested to do so.” (Matter of Additional Jan. 1979 Grand Jury of Albany Supreme Ct. v Doe, 50 NY2d 14, 20 [citations omitted].) That duty is, of course, subject to limitations such as those validly raised under the Fifth Amendment. But the person resisting the subpoena has the burden of establishing that the Grand Jury is not entitled to the evidence. Unless there is such a showing, the Grand Jury’s subpoena is presumptively valid.

Given the multiple questions as to whether or not either the attorney-client privilege or the Fifth Amendment privilege applies, I do not believe that Rosner has met his burden to entitle him to quash the Grand Jury’s subpoena. I would, therefore, affirm the Appellate Division as to Tape No. 2.

Judges Jones, Wachtler, Fuchsberg and Meyer concur with Chief Judge Cooke; Judge Jasen concurs in part and dissents in part and votes to modify in a separate opinion; Judge Gabrielli taking no part.

Order modified, without costs, and matter remitted to Supreme Court, Bronx County, for further proceedings in accordance with the opinion herein and, as so modified, affirmed.

      . There is some question whether Olick was acting as Dr. Rosen’s attorney or merely as a friend before Rosner was hired. If Olick did become Dr. Rosen’s counsel, then issues of confidentiality stemming from the attorney-client relationship would arise (see discussion under “Tape No. 2” of this opinion). Under the analysis taken by this court, however, Olick’s precise role is irrelevant and so it is assumed without deciding that Olick’s status was that of friend, not counsel.

      . Indeed, the fact of deletions, if any, would not be discovered except for an improper review of the privileged contents. To order further examination on the basis of an unwarranted reading of the material is an unacceptable bootstrapping.

      . Petitioners assert this argument for Tape No. 1 as well. Inasmuch as that tape is wholly protected by the marital privilege, as discussed under “Tape No. 1”, supra, it is not addressed in this portion of the opinion. The following discussion, however, is equally applicable to Tape No. 1.

      . It is noted that the People have never asserted nor do they claim, that any of the third parties through whose hands the tape passed have actually listened to the tape.

      . The cassette tape recording should be likened to a letter in a sealed envelope. The fact of the letter’s existence is known to all who handled it; but its contents remain private. Similarly, all those through whose hands the tape passed know of its existence, but Dr. Rosen’s message, whatever it may be, remains private.

      . It should be noted that, in the context of Fifth Amendment rights, inquiry concerning the confidentiality of the communication as such has no place. The privilege accorded is to protect against compulsory incrimination through one’s own testimony or personal records (see Andresen v Maryland, 427 US 463, 470-471). It is not intended to protect private information per se (id., at p 477).
      “Confidentiality” in a constitutional sense may be denominated “expectation of privacy”. This, however, is a concept implicated in Fourth Amendment analysis and should not be raised in considering a claim of compelled self incrimination. As the Supreme Court noted in Andresen, the Fifth Amendment does not protect an individual’s records from seizure under a search warrant, but it does protect against their production under a subpoena {id., at pp 473-474). Thus, whether there was a confidential disclosure is relevant only to an inquiry of the attorney-client relationship, not whether the Fifth Amendment protection attaches.

      . Clearly, a magnetic recording of one’s spoken words constitutes the putting of thoughts into speech as much as would writing the words on paper. A tape recording simply is not the same type of physical evidence as is a blood sample or handwriting exemplar (cf. United States v Wade, 388 US 218; Schmerber v California, 384 US 757). The holding in Bellis v United States (417 US 85) is inapposite here as Dr. Rosen prepared the tape in a personal capacity, not as the representative of some legally cognizable, independent entity.

      . The attorney cannot be considered as the client’s agent as this would bootstrap all such evidence into the attorney-client privilege. There is also a logical inconsistency in making one principal in the attorney-client relationship the agent of the other for the purposes of that relationship.

      . Of course, nothing stated here is intended to shift the burden of establishing the privilege from the party asserting the privilege (see Bloodgood v Lynch, 293 NY 308, 314).


source: Caselaw Access Project

author: Jasen, J.

license: Public Domain

text:
    Richard G. Glamm, Appellant, v Frances Allen, as Executrix of Floyd J. Reinhart, Deceased, Respondent.
    Argued June 10, 1982
    decided July 2, 1982

      POINTS OF COUNSEL

      Robert J. Krzys for appellant.
    I. The order of Special Term premised upon CPLR 210 (subd [b]) was correctly applied to the facts involved in this action, and the order of the court below which refused to apply the 18-month tolling provision was in error and should be reversed. (Gilbert Props. v Millstein, 33 NY2d 857; Siegel v Kranis, 29 AD2d 477; Grago v Robertson, 49 AD2d 645; Citibank [N. Y. State] N.A. v Suthers, 68 AD2d 790; Dura-Bilt Remodelers v Albanese, 86 Misc 2d 172; Gibson v Meehan, 7 NY2d 93; Becker v Lesnick, 96 Misc 2d 819; Kelly v Adams, 104 Misc 2d 30; Schwartz v Public Administrator of County of Bronx, 27 AD2d 913; Matter of Osadchey, 53 AD2d 960; Ryder v Sheldon, 69 AD2d 768.) II. The “continuous treatment” doctrine applicable in malpractice cases, together with the rule of law that an action is not terminated until there is a final determination on the merits, or until the appeal is finally determined, was erroneously construed by the court below. (Borgia v City of New York, 12 NY2d 151; Gilbert Props. v Millstein, 33 NY2d 857; Buchholz v United States Fire Ins. Co., 269 App Div 49, 302 NY 577; Cohoes Housing Auth. v Ippolito-Lutz, Inc., 65 AD2d 666, 49 NY2d 961; Schauer v Joyce, 54 NY2d 1; Florio v Cook, 65 AD2d 548, 48 NY2d 792; Tool v Boutelle, 91 Misc 2d 464; Muller v Sturman, 79 AD2d 482.) III. This action, having been commenced within three years of the date in which respondent’s executrix consented and substituted other attorneys in attorney Reinhart’s place and stead (CPLR 321), is not time barred. (Hess v Tyszko, 46 AD2d 980.) IV. As a matter of law, the order of the court below which premised its decision on facts not contained in the original record on appeal, and which later rejected said facts in reconsidering the issues raised in the appeal, was erroneous and should be reversed. V. The rejection by the court below to reconsider its initial decision upon a factual basis premised under CPLR 207 constituted an abuse of discretion.

      Jeffrey N. Miller for respondent.
    I. The 18-month tolling provision of CPLR 210 (subd [b]) applies when a cause of action exists prior to the death of defendant. The tolling provision is inapplicable to this case since the cause of action accrued after the death of defendant. (Gilbert Props. v Millstein, 33 NY2d 857; Grago v Robertson, 49 AD2d 645; Dura-Bilt Remodelers v Albanese, 86 Misc 2d 172; Matter of Cuhady, 49 Misc 2d 668; Sargent v McLeod, 209 NY 360; Borgia v City of New York, 12 NY2d 151; Matter of Richman, 168 Misc 834.) II. Under the continuous representation doctrine, appellant’s claim for legal malpractice accrued upon the death of attorney Reinhart. The Statute of Limitations on the claim commenced to run on the appointment of Frances Allen as executrix. (Hess v Tyszko, 46 AD2d 980; Matter of Trybom, 168 Misc 484; Buchholz v United States Fire Ins. Co., 269 App Div 49, 302 NY 577; Cohoes Housing Auth. v Ippolito-Lutz, Inc., 65 AD2d 666, 49 NY2d 961; Borgia v City of New York, 12 NY2d 151; Sargent v McLeod, 209 NY 360; Muller v Sturman, 79 AD2d 482; Citibank [N. Y. State] N.A. v Suthers, 68 AD2d 790; Grago v Robertson, 49 AD2d 645; Siegel v Kranis, 29 AD2d 477.)
   OPINION OF THE COURT

Jasen, J.

We are asked on this appeal to determine the proper method of computing the Statute of Limitations period in an action for malpractice against the estate of a deceased attorney.

Plaintiff, Richard Glamm, was injured on April 26,1969 while voluntarily assisting regular firemen in the City of Amsterdam Fire Department to extinguish a fire. His injuries required extensive hospitalizations and left him partially disabled. While Glamm was hospitalized, members of his family contacted attorney Reinhart to determine if he could recover for his injuries from the City of Amsterdam. Plaintiff’s complaint in this action indicates that within 30 days of the accident Reinhart visited Glamm at the hospital and agreed to represent him.

On October 1, 1969, attorney Reinhart commenced an action on plaintiff’s behalf under the Volunteer Firemen’s Benefit Law. Apparently Reinhart was of the opinion that plaintiff’s means of recovery for his injuries were governed by that statute and therefore did not commence a tort action against the City of Amsterdam, nor did he file a notice of claim with the city. Such a notice is, of course, a condition precedent to commencing an action against a municipality. (General Municipal Law, § 50-e.)

Plaintiff’s claim under the Volunteer Firemen’s Benefit Law was transferred to the Workers’ Compensation Board where, in March of 1974, the referee ruled against the plaintiff on the ground that he was not an employee of the City of Amsterdam. Almost a year later, in January, 1975, the Workers’ Compensation Appeals Board reversed the decision of the referee and awarded plaintiff benefits on the theory of implied contract. On appeal to the Appellate Division, Third Department, that court, on November 4, 1976, reversed the determination of the Workers’ Compensation Appeals Board and dismissed plaintiff’s claim. (Matter of Glamm v City of Amsterdam, Amsterdam Fire Dept., 54 AD2d 996.)

On October 14, 1976, less than a month before the Appellate Division rendered its decision, attorney Rein-hart died. An appeal to this court was taken from the Appellate Division order by attorneys appointed pursuant to CPLR 321. This court unanimously affirmed the order of the Appellate Division (Matter of Glamm v City of Amsterdam, Amsterdam Fire Dept., 42 NY2d 1026.)

Within 90 days of being served a certified copy of this court’s order, the successor attorneys filed a notice of claim with the City of Amsterdam to recover for injuries sustained because of the city’s negligence in allowing an untrained person to work with its trained fire fighters. The action which was commenced on the basis of that notice was dismissed for failure to comply with the notice requirement of section 50-e of the General Municipal Law. (Glamm v City of Amsterdam, 94 Misc 2d 991.) That decision was affirmed by both the Appellate Division and this court. (67 AD2d 1056, affd 49 NY2d 714.)

On April 7, 1980, almost 11 years after plaintiff was injured, he commenced this malpractice action against the estate of attorney Reinhart. The complaint alleges malpractice against attorney Reinhart for his failure to file a timely notice of claim pursuant to section 50-e of the General Municipal Law with the City of Amsterdam. Plaintiff claims in his complaint that his attorney should have filed such a notice, as required by statute, within 90 days of the accident in order to protect any claims he might have had against the city.

Respondent raised, in her answer, an affirmative defense that this action was barred by the Statute of Limitations and moved on that basis for summary judgment. Special Term denied the motion and granted a cross motion to dismiss the affirmative defense.

On appeal, the Appellate Division reversed, granted respondent’s motion for summary judgment and dismissed the complaint. Applying the three-year Statute of Limitations period for malpractice actions (CPLR 214), the Appellate Division held that the time to bring this action had expired three years after the date on which the executrix had been appointed. The Appellate Division reasoned that under the continuous representation doctrine, the cause of action accrued at the point in time when the professional services which gave rise to the wrongful act or omission ended. In this case, the Appellate Division found that the action accrued at the date of the attorney’s death. Because the cause of action did not come into existence, under the Appellate Division reasoning, until the date of death, the court further found CPLR 210 (subd [b]) to be inapplicable. That section provides that the first 18 months after the death of a person against whom a cause of action exists are not counted in the Statute of Limitations period. The Appellate Division reasoned that CPLR 210 (subd [b]) could not be applied unless the cause of action existed prior to the death of the person liable. The Appellate Division concluded that CPLR 210 (subd [b]) was inapplicable because the cause of action did not come into existence “until the termination of the attorney-client relationship, i.e., upon the death of the attorney”. (84 AD2d, at p 881.) Since that 18-month period could not extend the Statute of Limitations period, the Appellate Division held that the ordinary three-year Statute of Limitations would apply, thus barring this action. We disagree and now reverse the order of the Appellate Division.

An action for malpractice accrues at the date of the malpractice complained of. (McDermott v Torre, 56 NY2d 399.) This is so even if one or several subsequent events have the effect of tolling the Statute of Limitations period. In this case, the alleged malpractice occurred when attorney Reinhart failed to file on behalf of the plaintiff a notice of claim pursuant to section 50-e of the General Municipal Law. It was that error which plaintiff now claims caused him to lose his right to seek recovery against the City of Amsterdam and which, consequently, gave rise to this malpractice action.

Even though the cause of action accrued at the date of the malpractice, the plaintiff was not obligated to commence an action against his attorney during the period in which his attorney continued to represent him in the action to recover for the injuries he sustained at the fire scene. It is not disputed that plaintiff engaged Reinhart as his attorney almost immediately and that until the time of Reinhart’s death he was continually representing the plaintiff. It is thus appropriate in this case, for Statute of Limitations purposes, to apply the rule of continuous treatment or, more appropriately in the legal context, continuous representation.

Although the rule of continuous treatment was first applied in medical malpractice cases (Borgia v City of New York, 12 NY2d 151), its application has been held to be just as appropriate in actions concerning legal malpractice. As this court recently stated, “the rule recognizes that a person seeking professional assistance has a right to repose confidence in the professional’s ability and good faith, and realistically cannot be expected to question and assess the techniques employed or the manner in which the services are rendered (Siegel v Kranis, 29 AD2d 477).” (Greene v Greene, 56 NY2d 86, 94.) Neither is a person expected to jeopardize his pending case or his relationship with the attorney handling that case during the period that the attorney continues to represent the person. Since it is impossible to envision a situation where commencing a malpractice suit would not affect the professional relationship, the rule of continuous representation tolls the' running of the Statute of Limitations on the malpractice claim until the ongoing representation is completed. (McDermott v Torre, supra, at p 407.) Because we interpret the continuous representation rule to toll the Statute of Limitations rather than to delay the point at which the cause of action accrues, its application is limited to situations in which the attorney who allegedly was responsible for the malpractice continues to represent the client in that case. When that relationship ends, for whatever reason, the purpose for applying the continuous representation rule no longer exists.

In this case, the alleged malpractice was the failure of the attorney to timely, file a notice of claim, pursuant to section 50-e of the General Municipal Law with the City of Amsterdam. Thus, the malpractice cause of action accrued after the 90-day period to file the notice of claim expired. The three-year Statute of Limitations was tolled, however, during the period that attorney Reinhart, who plaintiff alleges should have filed the notice, was representing plaintiff in his efforts to recover from the City of Amsterdam. That representation and the toll imposed under the rule of continuous representation necessarily ended at the time of the attorney’s death.

In addition to the tolling of the Statute of Limitations by virtue of the application of the continuous representation rule, we hold that CPLR 210 (subd [b]) is applicable to this case and further extends by 18 months the time within which the plaintiff was required to commence this action. That statute provides, in pertinent part: “The period of eighteen months after the death * * * of a person against whom a cause of action exists is not a part of the time within which the action must be commenced against his executor or administrator.” Thus, CPLR 210 (subd [b]) tolled the Statute of Limitations the moment attorney Reinhart died, and it resumed running automatically 18 months thereafter. The net effect of applying this statute is to tack 18 months onto the time provided for bringing a malpractice cause of action. (McLaughlin, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 210, p 284; Siegel, New York Practice, § 55, p 56.)

In order for this tolling provision to apply, the claim of malpractice against the attorney must have been in existence prior to the attorney’s death. (Matter of Cudahy, 49 Misc 2d 668; 1 Weinstein-Korn-Miller, NY Civ Prac, par 210.04.) It is necessary, then, to ascertain when plaintiff’s cause of action for malpractice accrued.

Plaintiff argues that the alleged malpractice occurred in 1969 when the attorney failed to file on his behalf a notice of claim pursuant to section 50-e of the General Municipal Law. Hence, he maintains that the cause of action for malpractice accrued after the expiration of the 90 days within which the attorney should have filed the notice of claim with the City of Amsterdam and, therefore, was in existence prior to the death of the attorney in 1976. We agree. As we stated, a cause of action against an attorney for malpractice accrues at the time of the malpractice complained of. (McDermott v Torre, supra.) Here, the cause of action accrued on the date when the malpractice was committed by the attorney in his failure to file a timely notice of claim pursuant to the requirements of section 50-e of the General Municipal Law, thus barring plaintiff from commencing an action against the City of Amsterdam. It is at this point that the plaintiff was aggrieved by Reinhart’s legal representation and the action against him for malpractice came into existence. It matters not that plaintiff was unaware of the malpractice until after the attorney died. What is important is when the malpractice was committed, not when the client discovered it.

Since the cause of action for malpractice was in existence at the date of the attorney’s death, CPLR 210 (subd [b]) is applicable and, thus, the Statute of Limitations did not commence to run in this case until April 14, 1978, 18 months after attorney Reinhart’s death. This action, having been commenced on April 7, 1980, was clearly within the three-year Statute of Limitations applicable to attorney malpractice. (CPLR 214, subd 6.)

Plaintiff also sought to appeal to this court an order of the Appellate Division dated December 31, 1981, which denied his motion for reargument and reconsideration of the decision of that court. Such an order is nonfinal and no appeal from it may be brought to this court.

Accordingly, the order of the Appellate Division, dated November 30, 1981, should be reversed, with costs; and plaintiff’s appeal from the order of the Appellate Division, dated December 31, 1981, should be dismissed.

Chief Judge Cooke and Judges Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

On plaintiff’s appeal from the order of the Appellate Division dated November 30, 1981: Order reversed, with costs, and the order of Special Term reinstated.

On plaintiff’s appeal from the order of the Appellate Division dated December 31, 1981: Appeal dismissed, without costs.

      . Respondent Frances Allen was appointed executrix of the estate of Floyd J. Reinhart on November 15, 1976.

      . The expiration of the 90 days within which to file the notice of claim is the point at which the malpractice occurred even though the attorney might have corrected the error by requesting permission to file a late notice of claim. The attorney in this case never did so and it is pure speculation as to whether or not the court would have allowed him to file a late notice. The fact that he did not redeem himself when a procedure to do so would have been available does not alter the time when the malpractice occurred.


author: Jones, J. Jasen, J.

text:
    The People of the State of New York, Appellant, v Obardo Moselle, Jr., Respondent. The People of the State of New York, Appellant, v Paul Daniel, Respondent. The People of the State of New York, Appellant, v Steven A. Wolter, Respondent.
    Argued June 7, 1982
    decided July 1, 1982

      POINTS OF COUNSEL

      Richard J. Arcara, District Attorney (John J. De Franks and Thomas W. Bender of counsel), for appellant in the first above-entited action.
    I. The extraction of a blood sample from defendant was constitutionally permissible. (Breithaupt v Abram, 352 US 432; Schmerber v California, 384 US 757; People v Bellia, 11 NY2d 852; Cupp v Murphy, 412 US 291; Chimel v California, 395 US 752; People v Evans, 43 NY2d 160.) II. Failure to have made an official arrest of defendant prior to extraction of his blood should not preclude the admissibility of blood test results when such results were obtained constitutionally and in good faith anticipation of'a Penal Law prosecution arising out of a vehicular homicide.

      Leonard J. Klaif for respondent in the first above-entitled action.
    I. Section 1194 of the Vehicle and Traffic Law provides the only procedure under which blood may be extracted from the driver of an automobile. II. At bar, the blood sample extracted from respondent was extracted in a constitutionally impermissible fashion. (Breithaupt v Abram, 352 US 432; People v Evans, 43 NY2d 160; Schmerber v California, 384 US 757; Cupp v Murphy, 412 US 291.)

      Richard J. Arcara, District Attorney (John J. De Franks and Thomas W. Bender of counsel), for appellant in the second above-entitled action.
    I. The extraction of a blood sample from defendant was constitutionally permissible. (Breithaupt v Abram, 352 US 432; Schmerber v California, 384 US 757; People v Bellia, 11 NY2d 852; Cupp v Murphy, 412 US 291; Chimel v California, 395 US 752; People v Evans, 43 NY2d 160.) II. Failure to comply with the requirements of section 1194 of the Vehicle and Traffic Law should not be a bar to admission of blood test results in a Penal Law prosecution. (People v Leis, 13 AD2d 22; People v Manning, 7 AD2d 1008; People v Blowers, 79 Misc 2d 462.)

      David Gerald Jay for respondent in the second above-entitled action. The blood sample was illegally seized. (People v Brol, 81 AD2d 739; People v Thomas, 46 NY2d 100; People v Bongiorno, 263 App Div 863; Schmerber v California, 384 US 757; People v Clayton, 41 AD2d 204; People v Kates, 53 NY2d 591.)

      Theodore E. Wiggins, Jr., District Attorney, for appellant in the third above-entitled action.
    I. By misconstruing section 1194 of the Vehicle and Traffic Law, the court below ruled improperly in granting suppression of certain blood test results. (People v Brol, 81 AD2d 739; Rochin v California, 342 US 165; Breithaupt v Abram, 352 US 432; People v Young, 42 Misc 2d 540; People v McConnell, 19 Misc 2d 1050; Schmerber v California, 384 US 757; People v Blowers, 79 Misc 2d 462; People v Leis, 13 AD2d 22; People v Flynn, 73 Misc 2d 178; People v Manning, 7 AD2d 1008.) II. As the taking of blood, over objection, violates no constitutional right of defendant, results of the blood test are admissible in a manslaughter trial. (Schmerber v California, 384 US 757; Gilbert v California, 388 US 263; Preston v United States, 376 US 364; Cupp v Murphy, 412 US 291; Chimel v California, 395 US 752; People v Mitchell, 39 NY2d 173; People v Berzups, 49 NY2d 417; Carroll v United States, 267 US 132; People v Paddock, 29 NY2d 504; People v Haitz, 65 AD2d 172.)

      J. Michael Jones for respondent in the third above-entitled action.
    I. The Judge erred in failing to suppress the results of the blood test in regard to the prosecution of the charges of manslaughter in the second degree and assault in the second degree, when they were suppressed for the charge of driving while intoxicated. (People v Donaldson, 36 AD2d 37; People [Mulrean] v Fox, 256 App Div 578; Matter of June v Tofany, 34 AD2d 732; People v Strauss, 260 App Div 880; People v Ashby, 31 Misc 2d 707; People v Stratton, 1 NY2d 664; People v McGroder, 81 Misc 2d 1081; People v Berrios, 28 NY2d 361; Breithaupt v Abram, 352 US 432; Rochin v California, 342 US 165.) II. The Judge erred in ordering a severance of the counts of the indictment since such order violates CPL 40.10 and 40.20. (Matter of Abraham v Justices of N. Y. Supreme Ct. of Bronx County, 37 NY2d 560; People v Abbamonte, 43 NY2d 74; Serignese v Henry, 101 Misc 2d 982; Benton v Maryland, 395 US 784; People v Montone, 82 Misc 2d 234.) III. The Judge erred in finding that defendant voluntarily waived his right to remain silent. The Miranda warning was insufficient because by forcefully taking his blood, defendant’s will was overborne by police coercion and there could be no voluntary waiver. (Miranda v Arizona, 384 US 436; People v Weiss, 102 Misc 2d 830; People v Spano, 4 NY2d 256; People v Rogers, 48 NY2d 167; People v Bay, 76 AD2d 592; People v Camacho, 103 Misc 2d 791; People v Haitz, 65 AD2d 172; United States v Cavallino, 498 F2d 1200; United States v Washington, 341 F2d 277.)
   OPINION OF THE COURT

Jones, J.

Absent a manifestation of a defendant’s consent thereto, blood samples taken without a court order other than in conformity with the provisions of subdivisions 1 and 2 of section 1194 of the Vehicle and Traffic Law are inadmissible in prosecutions for operating a motor vehicle while under the influence of alcohol under section 1192 of that law. Beyond that, blood samples taken without a defendant’s consent are inadmissible in prosecutions under the Penal Law unless taken pursuant to an authorizing court order.

In People v Moselle, defendant was involved in an automobile accident on March 17, 1979 in which his vehicle collided with another vehicle operated by Paul Barrett. Within minutes Sergeant Caffery of the Erie County Sheriff’s Department arrived at the scene. Barrett was then being placed in an ambulance. Defendant, who was still seated behind the wheel of his vehicle when Caffery arrived, was shortly transferred to the ambulance, and both men were then transported to the hospital.

Sergeant Caffery conducted an on-the-scene investigation, after completion of which he proceeded to the hospital. Detecting a strong odor of alcohol emanating from defendant, Caffery directed a physician to take a sample of his blood. The People offered no proof that defendant consented to this procedure, that he had been arrested, or that the procedural requirements of section 1194 of the Vehicle and Traffic Law were observed. Analysis of the blood sample so taken about an hour after the accident revealed the presence of .17 of one per centum by weight of alcohol in defendant’s bloodstream.

On recommendation of the Grand Jury, a prosecutor’s information was filed charging defendant with operating a motor vehicle while he had .10 of one per centum or more of alcohol in his blood (Vehicle and Traffic Law, § 1192, subd 2). No Penal Law charge was ever placed against him.

On October 2, 1980 after a jury trial at which testimony was received over defendant’s objection as to the results of his blood analysis and the jury was charged in effect that if they found that the police had reasonable grounds to believe that defendant was operating a motor vehicle while his ability to do so was impaired they could consider evidence of the results of such analysis, defendant was convicted in Town Court, Town of Elma, of violation of subdivision 2 of section 1192. On appeal Erie County Court reversed the conviction and dismissed the accusatory instrument.

In People v Daniel, on October 20, 1979 a van operated by defendant collided with two other motor vehicles as a result of which a passenger in one of the other vehicles was killed. Investigating police officers observed defendant lying semiconscious on the ground and on looking into the van found a cold, half-full bottle of beer on the console and two empty bottles on the dashboard and on the floor. Defendant was taken by ambulance to the hospital where Officer Willis requested a registered nurse to take a blood sample from him. Defendant was not under arrest at the time, was not asked for his consent, and neither consented nor refused to give the blood sample. While the blood was being drawn defendant regained consciousness. Subsequent analysis revealed the presence of .22 of one per centum by weight of alcohol in defendant’s bloodstream.

Defendant was indicted for criminally negligent homicide and for violations of subdivisions 2 and 3 of section 1192 of the Vehicle and Traffic Law (operating a motor vehicle while he had .10 of one per centum or more of alcohol in his blood and driving while intoxicated). His pretrial motion to suppress the results of the blood test was granted by Erie County Court and a motion to reargue was denied. On appeal the Appellate Division unanimously affirmed.

In People v Wolter, on January 7,1980 the motor vehicle being driven by defendant collided head-on with another motor vehicle as a consequence of which the operator of the other vehicle was instantly killed. The investigating Sheriff’s deputy found defendant in a semiconscious condition behind the steering wheel of his vehicle and detected the odor of alcohol. Defendant was removed to the hospital in an ambulance. The deputy there placed defendant under arrest for driving while intoxicated and for failure to keep right. The deputy gave defendant, then fully conscious, his constitutional preinterrogation warnings and advised him in accordance with the prescriptions of section 1194 of the Vehicle and Traffic Law. Defendant refused to submit to a blood test. Following a telephone conversation with the District Attorney, the deputy then directed a physician to draw a sample of defendant’s blood, less than two hours after the accident. Subsequent analysis disclosed a blood alcohol content of .23 of one per centum by weight.

Defendant was indicted for manslaughter in the second degree (Penal Law, § 125.15, subd 1), for assault in the second degree (Penal Law, § 120.05, subd 4), for driving while intoxicated in violation of subdivision 3 of section 1192 of the Vehicle and Traffic Law, and for violations of other sections of that law. After a pretrial suppression hearing, Livingston County Court ruled that, while the results of the blood test could not be used in connection with the prosecution for driving while intoxicated, they could be used on the manslaughter trial, and accordingly severed the driving while intoxicated charge for separate trial. After selection of a jury for trial on the remaining charges defendant’s plea of guilty to criminally negligent homicide was accepted in full satisfaction of all counts in the indictment, and the severed driving while intoxicated charge was dismissed with prejudice to resubmittal.

On appeal the Appellate Division reversed defendant’s conviction, holding that the explicit provision of subdivision 2 of section 1194 of the Vehicle and Traffic Law (that upon refusal to consent thereto, “the test shall not be given”) foreclosed use of the results of the test on the prosecution of the charges under the Penal Law.

In each of these cases permission to appeal has been granted the People by a Judge of our court.

These three cases present varying aspects of the right of the People to introduce the results of chemical analysis of blood samples taken from a defendant without his consent following an automobile accident, for the purpose of proving the presence of a significant amount of alcohol in the defendant’s bloodstream. In each case there should be an affirmance of the order denying the People the right to introduce such evidence.

At the outset we observe that our disposition in none of these cases is predicated on constitutional grounds. Because our disposition of these appeals is premised on statutory and nonconstitutional legal principles, we have no occasion to reach or consider any underlying constitutional arguments.

Our decision is grounded on two enactments of our State Legislature and the absence of any other. Subdivisions 1 and 2 of section 1194 of the Vehicle and Traffic Law in effect at the time the blood samples in these cases were taken provided:

“1. Any person who operates a motor vehicle in this state shall be deemed to have given his consent to a chemical test of his breath, blood, urine, or saliva for the purpose of determining the alcoholic or drug content of his blood provided that such test is administered at the direction of a police officer:

“(1) having reasonable grounds to believe such person to have been driving in violation of any subdivision of section eleven hundred ninety-two and within two hours after such person has been placed under arrest for any such violation, or

“(2) within two hours after a breath test, as provided in section eleven hundred ninety-three-a of this chapter, indicates that alcohol has been consumed by such person and in accordance with the rules and regulations established by the police force of which he is a member.

“2. If such person having been placed under arrest or after a breath test indicates the presence of alcohol in his system and having thereafter been requested to submit to such chemical test, refuses to submit to such chemical test, the test shall not be given and a report of such refusal shall be forwarded by the police officer under whose direction the test was requested to the commissioner within seventy-two hours and the commissioner shall revoke his license or permit to drive and any non-resident operating privilege; provided, however, the commissioner shall grant such person an opportunity to be heard, unless such opportunity is waived by such person, and provided further, however, that no license, permit or non-resident operating privilege shall be revoked because of a refusal to submit to such chemical test unless the hearing officer is satisfied that the person was given sufficient warning, in clear and unequivocal language, prior to such refusal that such refusal to submit to such chemical test may result in the revocation of his license or operating privilege whether or not he is found guilty of the charge for which he was arrested and that the person persisted in his refusal.” GPL 240.40, enacted by chapter 412 of the Laws of 1979, effective January 1, 1980, provides:

“§ 240.40 Discovery; upon court order
“1. Upon motion of a defendant against whom an indictment, superior court information, prosecutor’s information, or information is pending, the court in which such accusatory instrument is pending:
“(a) must order discovery as to any material not disclosed upon a demand pursuant to section 240.20, if it finds that the prosecutor’s refusal to disclose such material is not justified, and (b) may order discovery with respect to any other property, which the people intend to introduce at the trial, upon a showing by the defendant that discovery with respect to such property is material to the preparation of his defense, and that the request is reasonable. Upon granting the motion pursuant to paragraph (b) hereof, the court shall, upon motion of the people showing such to be material to the preparation of their case and that the request is reasonable, condition its order of discovery by further directing discovery by the people of property, of the same kind or character as that authorized to be inspected by the defendant, which he intends to introduce at the trial.
“2. Upon motion of the prosecutor, and subject to constitutional limitation, the court in which an indictment, superior court information, prosecutor’s information or information is pending; (a) must order discovery as to any property not disclosed upon a demand pursuant to section 240.30, if it finds that the defendant’s refusal to disclose such material is not justified; and (b) may order the defendant to provide non-testimonial evidence. Such order may, among other things, require the defendant to:
“(i) Appear in a line-up;
“(ii) Speak for identification by witness or potential witness;
“(iii) Be fingerprinted;
“(iv) Pose for photographs not involving reenactment of an event;
“(v) Permit the taking of samples of blood, hair or other materials from his body in a manner not involving an unreasonable intrusion thereof or a risk of serious physical injury thereto;
“(vi) Provide specimens of his handwriting;
“(vii) Submit to a reasonable physical or medical inspection of his body.
“This subdivision shall not be construed to limit, expand, or otherwise affect the issuance of a similar court order, as may be authorized by law, before the filing of an accusatory instrument consistent with such rights as the defendant may derive from the constitution of this state or of the United States.
“3. An order pursuant to this section may be denied, limited or conditioned as provided in section 240.50.”

The disposition in Moselle turns on the express provision of subdivision 2 of section 1194. That section, treating of the taking of samples of blood for the purpose of proving alcoholic content in connection with prosecution for violation of provisions of the Vehicle and Traffic Law, authorizes the administration of chemical blood tests for such purpose when the defendant has “been placed under arrest or after a breath test indicates the presence of alcohol in his system” but provides that if the person “refuses to submit to such chemical test, the test shall not be given.” In this instance the police had designedly refrained from arresting defendant in conformity with an existing operational policy, and there was no proof that any breath test had been administered. Accordingly, neither of the prerequisites activating the authorization for giving chemical blood tests was established, and the statute therefore provided no authority to take the blood sample.

A similar analysis dictates an affirmance in People v Wolter to the extent that the prosecution in that case was denied the right to introduce the results of the blood test with respect to the charge of driving while intoxicated. While defendant had been arrested in that instance, thus triggering the statutory provisions, it was also undisputed that he had refused to submit to the test thus rendering applicable the statutory prohibition against giving the test.

We turn then to the issue presented in People v Daniel and also in People v Wolter — whether the results of a chemical test of a blood sample taken without the defendant’s consent and without a court order can subsequently be introduced on a prosecution for violation of a section of the Penal Law. We conclude that they cannot. We do not rely, however, for this conclusion on the provisions of subdivisions 1 and 2 of section 1194 of the Vehicle and Traffic Law. In our view, that statutory enactment only authorizes the giving of chemical blood tests for prosecutions for violations of the Vehicle and Traffic Law; it has no application to charges brought under sections of the Penal Law, notwithstanding that the charged Penal Law violations arise out of the operation of a motor vehicle. To this extent we differ with the rationale on which the Appellate Division premised its determination in Daniel.

The critical question presented is whether, in the absence both of statutory authority and of a court order, a blood sample may be taken from a person without his consent for use in a subsequent criminal prosecution. Our very recent decision in Matter of Abe A. (56 NY2d 288) presages the answer. There we held that a court order authorizing the taking of a blood sample from a suspect may issue prior to the filing of an accusatory instrument provided that the issuing court finds that there is “(1) probable cause to believe the suspect has committed the crime, (2) a ‘clear indication’ that relevant material evidence will be found, and (3) the method used to secure it is safe and reliable” (at p 291). We may assume (without deciding) that these three factual prerequisites might be satisfied in both Daniel and Wolter. It is fatal, however, that there was no court order authorizing the taking of the blood samples in either Daniel or Wolter.

It will be suggested, nevertheless, that in discovery procedures in criminal matters the existence of “exigent circumstances” is often held to excuse the failure to obtain a court order where the evidence sought (or here, by extension, its probative worth) might disappear or be lost by the expenditure of the time necessarily required to obtain the order. While the existence of exigent circumstances may excuse the failure to obtain a court order, their existence does not provide a source of authority to conduct discovery.

We return then to consideration of the basic authority for taking blood samples. No authority is cited to us recognizing any common-law right to take blood samples in the absence of a court order (cf. Matter of Abe A., 56 NY2d 288, 293-294, supra). More significant, and dispositive in this instance, is our conclusion, after examining the available legislative history associated with the enactment of CPL 240.40, that the Legislature in consequence of its enactment of that statutory provision (as well as its prior adoption of section 1194 of the Vehicle and Traffic Law) has preempted authorization and regulation of the taking of blood samples and mandated the prior issuance of a court order except that chemical blood tests may be given in conformity with section 1194 of the Vehicle and Traffic Law.

It is not seriously challenged that section 1194 has preempted the administration of chemical tests for determining alcoholic blood content with respect to violations under section 1192 of the Vehicle and Traffic Law. The detail of the statutory prescriptions and the positioning of the section in the Vehicle and Traffic Law leave no room for doubt in this regard. It is this conclusion which mandates affirmance of the exclusion of the results of the blood test in Moselle, no authority for the administration of the test in that case being found in section 1194.

We similarly conclude that the Legislature pre-empted authorization for the administration of blood tests for use in other criminal prosecutions by the enactment of CPL 240.40. The legislative proposal was a Governor’s program bill, recommended by the Office of Court Administration, similar to one recommended by the Judicial Conference, and drafted after consultation with the State Bar Association, the State District Attorney’s Association, the Legal Aid Society, and the Senate and Assembly Codes Committees. The bill was recited to have been drafted to meet constitutional requirements and to remedy prior discovery which had been “haphazard and unregulated”. Reference is found in the Governor’s bill jacket (Memorandum of Office of Richmond County District Attorney, June 25, 1979) to the “procedure available to each side for protective orders” (thus impliedly recognizing the statute as the exclusive premise for taking blood samples). Any lingering doubt that this legislation was intended to blanket the subject (except as the Legislature itself might additionally provide) rather than merely to constitute a partial piece of special legislative regulation is dispelled when note is taken of the last sentence of subdivision 2: “This subdivision shall not be construed to limit, expand or otherwise affect the issuance of a similar court order, as may be authorized by law, before the filing of an accusatory instrument consistent with such rights as the defendant may derive from the constitution of this state or of the United States.” (Emphasis added.) No room is then left for the taking of samples of blood otherwise than pursuant to a court order issued under CPL 240.40 or a court order otherwise authorized by law (or in conformity with § 1194). The negative inference is that the taking of blood in any other manner is foreclosed.

No court order having been issued for the taking of blood samples for prosecution of charges under the Penal Law in either Daniel or Wolter, the results of the tests of the blood samples illegally taken were properly suppressed.

Accordingly, the order of Erie County Court in Moselle and the orders of the Appellate Division in Daniel and Wolter should be affirmed.

Jasen, J.

(dissenting in part). I agree with the majority that, for purposes of prosecutions brought under the Vehicle and Traffic Law, section 1194 of that statute provides the exclusive method of extracting blood from a motorist believed to be intoxicated. Therefore, in People v Moselle, I vote to affirm. I also agree that section 1194 of the Vehicle and Traffic Law does not prohibit the extraction of blood from a nonconsenting motorist for purposes of prosecutions brought under the Penal Law. I cannot, however, join in the majority’s conclusion that CPL 240.40 prohibits the administration of a blood test in the absence of a court order authorizing the taking of a blood sample from an intoxicated motorist. Therefore, in People v Wolter and People v Daniel, I cast my vote to reverse.

CPL 240.40 is, as its title clearly states, a “discovery” statute. It governs the exchange of evidence only in the course of an ongoing criminal proceeding and not warrant-less searches undertaken by the police at the initial stage of an investigation to determine whether a crime has even been committed. By its express terms, CPL 240.40 only applies when “an indictment, superior court information, prosecutor’s information, or information is pending” (CPL 240.40, subds 1, 2) and authorizes the court in which such an accusatory instrument has been filed to issue an order requiring the “defendant” to submit to a blood test. As we have only recently noted, absent commencement of a criminal proceeding, there can be no “defendant”, and the authority of CPL 240.40 cannot be invoked against one whose status is merely that of a suspect. (Matter of Abe A., 56 AD2d 288, 294, n 2.)

Nor does the legislative history of CPL 240.40 support the majority’s view that this statute was intended to preempt authorization for blood tests administered by the police in furtherance of a criminal investigation. The sole aim of this statute was to remedy the “haphazard and unregulated” discovery that in the past had pervaded criminal proceedings while at the same time “accommodating reasonable concerns of prosecutors and defense counsel.” (Memorandum of Office of Court Administration, 1979 McKinney’s Session Laws of NY, pp 1888-1889.) Contrary to the majority’s suggestion, the reference in the Governor’s bill jacket to the “procedure available to each side for protective orders” can hardly be viewed as an implicit recognition that CPL 240.40 provides “the exclusive premise for taking blood samples.” (At p 110.) The “protective orders” mentioned in the bill jacket refer to CPL 240.40 (subd 3) which expressly ties in the provisions of CPL 240.50 dealing with protective orders issued in the course of a pending criminal action.

Assuming that there was any doubt as to the scope and effect of CPL 240.40, the Legislature has expressly provided that the subdivision governing discovery by the prosecutor “shall not be construed to limit, expand, or otherwise affect the issuance of a similar court order, as may be authorized by law, before the filing of an accusatory instrument consistent with such rights as the defendant may derive from the constitution of this state or of the United States.” (CPL 240.40, subd 2 [emphasis added].) Surprisingly relied upon by the majority, this caveat establishes beyond cavil that the Legislature intended that CPL 240.40 was to have no effect on the existing law governing the procedures for obtaining evidence, “especially in the pre-accusatory instrument stage.” (Bellacosa, Practice Commentaries, McKinney’s Cons Laws of NY, Supp Pamphlet 1972-1981, CPL 240.40, p 358.)

In short, CPL 240.40 is directed at regulating the exchange of evidence in the adversarial context of a pending criminal proceeding. There simply is no basis, either in the express language of the statute or its legislative history, for the majority’s conclusion that CPL 240.40 pre-empts authorization for blood tests administered in the course of a criminal investigation to determine whether there has been a violation of the Penal Law.

Having established that neither section 1194 of the Vehicle and Traffic Law nor CPL 240.40 prohibits the use of the blood samples taken from defendants Wolter and Daniel for purposes of preserving potential evidence of their blood-alcohol content in conjunction with prosecutions brought under the Penal Law, it becomes necessary to resolve the further issue — not reached by the majority due to its disposition — whether the nonconsensual extraction of blood from a motorist believed to be intoxicated is constitutionally proscribed. I conclude that it is not.

The constitutional claim raised by the defendants has, for the most part, already been decided. In Schmerber v California (384 US 757), the driver of an automobile was involved in an accident and placed under arrest. While receiving treatment at a hospital, the driver was compelled, over his explicit objection, to submit to a blood test. Acknowledging that the seizure of blood is subject to Fourth Amendment considerations, the Supreme Court held that the results of the test did not have to be suppressed. The court recognized that such blood samples provide an “effective means of determining the degree to which a person is under the influence of alcohol” and that the type of intrusion involved was minimal. (384 US, at p 771.) Particular reliance was placed on the fact that “the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system.” (Id., at p 770.) Given the highly evanescent nature of the evidence sought, the court concluded that no warrant was required before the blood sample could be taken.

Recently, in an analogous situation, we, too, have held that it is constitutionally permissible to obtain a blood sample from a suspect provided there is (1) probable cause to believe the suspect has committed a crime; (2) a “clear indication” that relevant material evidence will be found as a result of administering the blood test; and (3) the method used to obtain the blood is safe and reasonable. (Matter of Abe A., 56 NY2d 288, 291, supra.) Although Matter of Abe A. involved an instance in which a court order was obtained authorizing the test, we emphasized that, unlike the present cases, there were no exigent circumstances which justified the immediate, warrantless removal of the blood sample from the suspect’s body.

Measured by the standards set forth in Schmerber and Matter of Abe A., the blood samples taken from defendants Wolter and Daniel should not be suppressed. In both cases, the police had probable cause to believe the defendants had committed a crime. Moreover, there were signs that both defendants had been drinking just prior to the accidents in which they were involved. Thus, there was a “clear indication” that administration of the test would reveal the presence of alcohol in their blood. Finally, there is nothing in the record to suggest that the method used to obtain the sample from either defendant was unsafe or unreliable.

Nor is there any merit to defendant Daniel’s argument that the results of the blood test should be suppressed because he was not under arrest at the time the sample was taken. Quite simply, “[tjhere is no constitutional right to be arrested. The police are not required to guess at their peril the precise moment at which they have probable cause to arrest a suspect * * *. Law enforcement officers are under no constitutional duty to call a halt to a criminal investigation the moment they have the minimum evidence to establish probable cause, a quantum of evidence which may fall far short of the amount necessary to support a criminal conviction.” (Hoffa v United States, 385 US 293, 310; accord Matter of Abe A., supra, at p 297.) Given the exigent circumstances caused by the evanescent nature of the evidence sought and the minimal intrusion that was involved, the blood sample was properly taken from defendant Daniel even though he was not formally under arrest at the time. (See Cupp v Murphy 412 US 291.)

By holding that no blood tests can be administered in the absence of a court order, the majority has, for all practical purposes, eliminated a very important procedure as a method of establishing the intoxication of a motorist responsible for the death or serious physical injury of another. In most, if not all, cases, the percentage of alcohol in the blood will be greatly dissipated by the time the police have finished their preliminary investigation and sought out a magistrate to secure a warrant. Indeed, even with the passage of a very brief period of time, the results of a blood test will not provide an accurate reading of the motorist’s blood-alcohol level at the time the accident occurred. Given the ever-increasing number of fatalities linked to the intoxicated driver, the Legislature could not have intended to impose the restriction that the majority has placed on the legitimate and constitutionally permissible investigative efforts undertaken by the police to determine whether the Penal Law of this State has been violated.

In People v Moselle: Order affirmed.

Chief Judge Cooke and Judges Wachtler, Fuchsberg and Meyer concur with Judge Jones; Judge Jasen concurs in a separate opinion; Judge Gabrielli taking no part.

In People v Daniel and Wolter: Orders affirmed.

Chief Judge Cooke and Judges Wachtler, Fuchsberg and Meyer concur with Judge Jones; Judge Jasen dissents and votes to reverse in a separate opinion; Judge Gabrielli taking no part.

      . Barrett later died from injuries suffered in the accident.

      . Indeed, at trial the Assistant District Attorney informed the court that in cases . where a fatality occurred as a result of an automobile accident it was police practice not to make any arrests but in conducting their investigations to compile all information and to present that information to the District Attorney’s office for him to make the prosecutorial decisions.

      . In the Governor’s memorandum, the proposal, relating to more than discovery of blood samples, was described as “including, for the first time, a procedure for discovery on demand rather than on motion and court order.”

      . The dissenter’s submission that the Legislature in enacting CPL 240.40 intended to address no more than discovery “in the course of an ongoing criminal proceeding” (at p 111), is refuted by the inclusion of the last sentence of subdivision 2 of the section, quoted above. The explicit recognition there of the possibility of issuance of court orders for discovery purposes “before the filing of an accusatory instrument” (and the use of the word “defendant” in a more general meaning than one against whom a criminal proceeding has already been commenced) confirms that the Legislature had within its contemplation a broad all-inclusive scope of consideration.

      . It will be observed that while the sample of defendant’s blood in Wolter was taken on January 7, 1980, after the effective date of CPL 240.40 (Jan. 1, 1980), the sample of blood in Daniel was taken prior to that date on October 20, 1979. It may be suggested, therefore, that strictly speaking the statutory provision on which we ground our disposition of the appeal in Daniel had not yet become effective. Nonetheless the statute (L 1979, ch 412) became law on July 5,1979, and the pre-emptive effect of the legislative action must be held to stem from that date.

       Statistics provided by the Department of Motor Vehicles reveal an alarming increase in the number of State-wide fatalities arising from alcohol-related automobile accidents over the past few years. In 1979, there were 482 fatal accidents resulting in 535 deaths. The following year, 670 accidents took 737 lives. By 1981, 884 alcohol-related accidents resulted in 979 deaths. (Department of Motor Vehicles Annual Summary of Motor Vehicle Accidents.) In his memorandum approving increased penalties for the intoxicated motorist, the Governor noted that in 1980 “alcohol was a factor in more than half of all vehicular fatalities in New York State.” (1981 McKinney’s Session Laws of NY, p 2636.)