2023 New York Laws › CVP - Civil Practice Law and Rules › Article 13-A - Proceeds of a Crime-Forfeiture › 1311-A - Subpoena Duces Tecum.

§  1311-a.  Subpoena  duces  tecum.    1. At any time before an action
pursuant to this article  is  commenced,  the  claiming  authority  may,
pursuant  to  the  provisions  of subdivision two of this section, apply
without notice for the issuance of a subpoena duces tecum.
2. An application for a subpoena duces tecum pursuant to this section:
(a) shall be made in the  judicial  district  in  which  the  claiming
authority  may commence an action pursuant to this article, and shall be
made in writing to a justice of the supreme court, or  a  judge  of  the
county court; and
(b)  shall  be  supported  by  an  affidavit,  and  such other written
documentation as may be submitted which: (i) sets forth the identity  of
the claiming authority and certifies that the applicant is authorized to
make   the   application   on  the  claiming  authority's  behalf;  (ii)
demonstrates reasonable grounds to believe that  the  execution  of  the
subpoena  would  be  reasonably  likely to lead to information about the
nature and location of any debt or property against which  a  forfeiture
judgment  may  be enforced; (iii) states whether any other such subpoena
or provisional remedy  has  been  previously  sought  or  obtained  with
respect  to the subject matter of the subpoena or the matter to which it
relates; (iv) contains a factual statement which sets  forth  the  basis
for  the issuance of the subpoena, including a particular description of
the nature of the information sought to be obtained; (v) states  whether
the  issuance of the subpoena is sought without notice to any interested
party; and (vi) where the application seeks the issuance of the subpoena
without notice to any interested party,  contains  a  statement  setting
forth  the  factual  basis  for  the  claiming  authority's  belief that
providing notice of the application for the issuance of the subpoena may
result in any property being destroyed, removed from the jurisdiction of
the court, or otherwise being unavailable for forfeiture or to satisfy a
money judgment that may be entered in the  forfeiture  action,  and  may
interfere with law enforcement investigations or judicial proceedings.
3. An application made pursuant to this section may be granted, in the
court's  discretion, upon a determination that the application meets the
requirements set forth in subdivision two  of  this  section;  provided,
however,  that no such subpoena may be issued or directed to an attorney
with regard to privileged records or documents or attorney  work-product
relating  to  a client. When a subpoena has been issued pursuant to this
section, the claiming authority shall have the right  to  possession  of
the  subpoenaed  material. The possession shall be for a period of time,
and on such reasonable terms and conditions, as the  court  may  direct.
The  reasonableness of such possession, time, terms and conditions shall
be determined with consideration for, among other things, (a)  the  good
cause  shown  by  the  party issuing the subpoena or in whose behalf the
subpoena is issued, (b) the rights and legitimate needs  of  the  person
subpoenaed  and (c) the feasibility and appropriateness of making copies
of the subpoenaed material. Where the application seeks  a  subpoena  to
compel  the  production  of an original record or document, the court in
its discretion may order the production of  a  certified  transcript  or
certified copy thereof.
4.  Upon a determination pursuant to subdivision three of this section
that the subpoena should be granted, the court shall issue the subpoena,
seal all papers relating thereto, and direct that  the  recipient  shall
not,  except  as  otherwise  ordered  by the court, disclose the fact of
issuance or the subject  of  the  subpoena  to  any  person  or  entity;
provided,  however,  that  the court may require that notice be given to
any interested party prior to the issuance of the subpoena,  or  at  any
time  thereafter,  when:  (a)  an  order  granting  a provisional remedy
pursuant to this article with respect  to  the  subject  matter  of  the

subpoena  or  the  matter  to  which it relates has been served upon the
defendant whose  books  and  records  are  the  subject  matter  of  the
subpoena,  whether  such  books and records are in the possession of the
defendant  or  a third party; or (b) the court determines that providing
notice of the application (i) will not  result  in  any  property  being
destroyed,  removed  from  the  jurisdiction  of the court, or otherwise
being unavailable for forfeiture or to satisfy a money judgment that may
be entered in the forfeiture action and (ii) will not interfere with law
enforcement investigations or judicial proceedings. For purposes of this
section, "interested party" means any person whom the  court  determines
might  have an interest in the property subject to the forfeiture action
brought pursuant to this article.
5. Notwithstanding the provisions of subdivision four of this section,
where a subpoena duces tecum has been issued pursuant  to  this  section
without  notice  to  any  interested party, the claiming authority shall
serve written notice of the  fact  and  date  of  the  issuance  of  the
subpoena  duces  tecum,  and  of  the fact that information was obtained
thereby, upon any interested party not later than ninety days after  the
date  of  compliance  with  such  subpoena,  or  upon  commencement of a
forfeiture action, whichever occurs first; provided, however, where  the
action  has not been commenced and upon a showing of good cause, service
of the notice required herein may be postponed by order of the court for
a reasonable period of time. The court, upon the filing of a  motion  by
any  interested  party  served with such notice, may, in its discretion,
make available to such party or the party's counsel for inspection  such
portions  of  the  information  obtained pursuant to the subpoena as the
court directs.
6. Nothing contained in this section shall be construed to diminish or
impair any right of subpoena or discovery that may otherwise be provided
for by law to the claiming authority or to a defendant in  a  forfeiture
action.