Robinson v. Stichman

Eager, J. The respondent, a Special Commissioner and Special Assistant Attorney-General, appeals from an order granting a motion to quash and vacate a subpoena which was served upon the petitioner in connection with an investigation being conducted by the respondent pursuant to section 6 and subdivision 8 of section 63 of the Executive Law. The subpoena was quashed upon the ground that the petitioner was immune from service of process at the time of service. The petitioner was a nonresident of this State and voluntarily came here on January 6, 1963 to attend in Supreme Court, New York County, in connection with and to be there arraigned upon an indictment on a criminal charge pending in such court. Concededly, upon voluntarily coming here for such purpose, the [450] petitioner was immune from process "while attending court and for a reasonable time before and after, that is, going to court and returning to his home”. (Thermoid Co. v. Fabel, 4 N Y 2d 494, 499.) The rule of immunity extends in favor of a nonresident voluntarily appearing in the State to answer a criminal charge (see Thermoid Co. v. Fabel, supra; also Ann. 20 A. L. R. 2d 163 and cases cited), but the rule does not apply where such appearance was under compulsion of effective process or bail requirements (see Netograph Mfg. Co. v. Scrugham, 197 N. Y. 377). Here, the matter of the proceedings in connection with the arraignment and the petitioner’s attendance thereon in Supreme Court were not completed until late in the afternoon on January 8. It appears that thereafter, the petitioner, at his attorney’s request, remained in the State to and including January 11 for the purpose of furnishing information to and conferring with his attorney concerning the particular criminal charges represented by the indictment and a proposed motion in connection therewith. The petitioner did confer with his attorney on each of the three days during which he remained in the State following his arraignment and, under all the circumstances, it appears that this period of three days was reasonably required for the conferences. The subpoena was served upon the petitioner during the three-day period, namely, on January 10, while he was lunching with a business associate. No definite rule can be laid down as to the precise time the immunity from service of process will be lost following a voluntary court appearance by a nonresident here. The decisions are, however, uniform in their holding that the nonresident is to be allowed a reasonable time to leave the jurisdiction. “ [R] easonable deviations or delays will be allowed, provided they do not arise in carrying out a purpose entirely distinct from the purpose of going to, attending, or returning from, court.” (72 C. J. S., Process, § 88, pp. 1126, 1127.) The nonresident is not to be held to a tight schedule, as reasonableness is the keynote. What constitutes a reasonable time to be allowed to the nonresident for his departure from the jurisdiction necessarily depends upon the facts and circumstances in each case. (See 72 C. J. S., supra, p. 1127; 42 Am. Jur., Process, § 154, p. 133; Note, 11 Am. & Eng. Ann. Cas., pp. 1146-1148.) The rule granting immunity from process to the nonresident is a common-law rule existing “ from the earliest times ”. The purpose of the rule “ is to encourage voluntary attendance upon courts and to expedite the administration of justice ”. (Netograph Mfg. Co. v. Scrugham, supra, p. 380; Thermoid Co. v. [451] Fabel, supra, p. 500.) By virtue of the rule, the immunity from process is extended not “ simply [as] a personal privilege, but it is also the privilege of the court, and is deemed necessary for the maintenance of its authority and dignity and in order to promote the due and efficient administration of justice.” (Parker v. Marco, 136 N. Y. 585, 589.) Particularly, in the interest of facilitating the administration of justice in criminal proceedings, the rule is applied to encourage nonresidents to appear here voluntarily to face the charges, thus eliminating the problems, the expense and the delay involved in extradition. In view of the purposes of the rule, the tendency is ‘ ‘ not to restrict but to enlarge the right of privilege ” (see Parker v. Marco, supra, p. 589) and, moreover, the courts are very liberal in their interpretation of what is a reasonable period to allow the nonresident for departure from the State following his appearance in court here. (See 42 Am. Jur., Process, § 154, p. 133; Note, 11 Am. & Eng. Ann. Cas., pp. 1146-1148.) Consequently, we readily conclude that the time required for conferences here with counsel is a pertinent matter for consideration on the issue of reasonableness of the duration of the stay. Where consultation with counsel is a matter of right, or is reasonably required for the protection of the interests of the nonresident, who voluntarily appears here to answer court process, as is the case in a criminal proceeding, the matter of conferences with counsel is an essential part of his participation in the proceedings. That it should be so regarded so far as may be necessary to render the rule of immunity fully effective is clearly supported by decisions in this State (see Chase Nat. Bank v. Turner, 269 N. Y. 397; Parker v. Marco, supra)* and is in accordance with the prevailing weight of authority in foreign jurisdictions. (See Russell v. Landau, 127 Cal. App. 2d 682; Gerard v. Superior Court, 91 Cal. App. 2d 549, 552; Grundy v. Refior, 312 Mich. 428; Jacobson v. Hosmer, 76 Mich. 234; [452] Higgins v. California Prune & Apricot Growers, 282 F. 550, 559 [C. C. A. 2d].) Where the prime purpose of the nonresident in voluntarily coming here was to appear in court or in answer to court process, the conferring upon him of immunity from process for the time reasonably necessary to confer with counsel during his appearance here is not an extension of the existing rule. This does not constitute an enlargement of the rule, as asserted in the minority opinion, but merely the application of it within its existing framework, namely, subject to the limitation of a reasonable time to be viewed in light of all the particular facts and circumstances. The fact is that the rule, as it exists, would be unduly circumscribed and the purpose thereof frustrated if we were to rigidly limit its application to exclude the allowance of reasonable time for consultation with counsel. Under the circumstances here, this case, in our opinion, comes within the spirit and terms of the immunity rule and, therefore, the order appealed from should be affirmed. No costs should be allowed. Footnotes [*] In Chase National Bank v. Turner (supra) the Court of Appeals extended immunity in favor of a nonresident who came here merely to consult with and to aid counsel in connection with the argument of an appeal in an appellate court. In Parker v. Marco (supra) the court extended the privilege of immunity to a nonresident defendant in an action, who attended here in connection with an examination before trial of the plaintiff’s witnesses and the court referred to certain relevant very early decisions, saying that the privilege of immunity “ has even been extended to a suitor returning from an appointment with his solicitor for the purpose of inspecting a paper in his adversary’s possession in preparation for an examination before a master (Sidgier v. Birch, 9 Ves. 69), and while attending at the registrar’s office with his solicitor, to settle the terms of a decree (Newton v. Askew, 6 Hare, 319); and while attending from another state to hear an argument in his own case in the Court of Appeals (Pell’s case, 1 Rich. L. 197).”