Codey on Behalf of State of N.J. v. Capital Cities, American Broadcasting Corp., Inc.

• Decision Date: 22 November 1993
• Citation: 626 N.E.2d 636,605 N.Y.S.2d 661,82 N.Y.2d 521
• Parties: , 626 N.E.2d 636, 21 Media L. Rep. 2267 In the Matter of Robert H. CODEY, on Behalf of the STATE OF NEW JERSEY, Appellant, v. CAPITAL CITIES, AMERICAN BROADCASTING CORP., INC., Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 661

605 N.Y.S.2d 661

82 N.Y.2d 521, 626 N.E.2d 636, 21

Media L. Rep. 2267

In the Matter of Robert H. CODEY, on Behalf of the STATE OF

NEW JERSEY, Appellant, v. CAPITAL CITIES, AMERICAN BROADCASTING CORP., INC., Respondent.

Court of Appeals of New York.

Nov. 22, 1993.

[82 N.Y.2d 523] Robert M. Morgenthau, Dist. Atty. of New York County, New York City (Morrie I. Kleinbart, Patrick J. Hynes and Paul Harnisch, of counsel), for appellant.

Patterson, Belknap, Webb & Tyler, New York City (Gregory L. Diskant and Paul W. Laisure, of counsel), for respondent.

OPINION OF THE COURT

TITONE, Judge.

Petitioner, appearing on behalf of the State of New Jersey, commenced this proceeding under CPL 640.10 for a subpoena directing respondent to attend and produce documents and other evidence for a Grand Jury investigation that was pending in Mercer County, New Jersey. Having been denied the requested relief in the Court below, petitioner asks this Court to resolve the narrow question of whether the potentially privileged status of the evidence sought is a proper consideration for a CPL 640.10(2) determination. Contrary to the Court below, we conclude that the privileged status of the evidence is not a proper factor for consideration under CPL 640.10(2) and that, accordingly, there should be a reversal.

In February and March of 1990, respondent's news division broadcast three stories regarding an alleged point-shaving scheme by certain members of the 1987-1988 North Carolina State University men's basketball team. The stories were based, in part, on information gleaned from confidential sources. In addition, the broadcast included brief excerpts of an interview with an unidentified player, who was shown in silhouette and had his voice disguised so as to preserve his anonymity.

The unidentified player subsequently agreed to come forward and to cooperate with a Mercer County, New Jersey, Grand Jury that was investigating certain alleged illegal gambling activities. The player acknowledged to New Jersey law enforcement authorities that he had been interviewed by respondent's reporter. However, he stated that he was unable to recall all of the information that he had related during the 30-minute videotaped exchange.

Wishing to obtain the unpublished information, the Mercer County Grand Jury sought to obtain the videotaped out-takes and reporter's interview notes by invoking the procedures for interstate subpoenas as prescribed in the Uniform Act to Secure the Attendance of Witnesses From Without a State in Criminal Proceedings (codified at CPL 640.10; N.J.Stat.Annot. §§ 2A:81-18 to 2A:81-23). The first step in that process was an application to a New Jersey Superior Court Judge, who certified that the videotapes and notes in question were material and necessary to a Grand Jury investigation within the State and requested that they be produced by respondent, their custodian. A Deputy Attorney General of the State of New Jersey then presented the certificate to the Supreme Court, New York County, the jurisdiction in which the evidence's custodian was located, and applied for a subpoena requiring respondent to appear with the evidence before the Mercer County Grand Jury (see, CPL 640.10).

The Supreme Court granted the requested relief after concluding that the videotape and notes were material to the criminal investigation in New Jersey and that there was no hardship involved in requiring respondent to travel "right across the river" to a neighboring State. The court specifically declined to consider respondent's argument that the subpoena should not be issued because the material in question was privileged under New Jersey's Shield Law, which, according to respondent, establishes a right to refuse to divulge otherwise relevant evidence in these circumstances (see, N.J.Stat.Annot. § 2A:84A-21; see also, N.Y. Civil Rights Law § 79-h). In the Supreme Court's view, the question of privilege was one for resolution by the courts of New Jersey, the demanding State, rather than the courts of New York, the sending State.

On respondent's appeal, the Appellate Division reversed and denied the application for a subpoena, 183 A.D.2d 126, 589 N.Y.S.2d 400. The Court did not dispute that the evidence sought in this case would be substantively relevant and material in the context of the pending Grand Jury investigation. Nonetheless, relying on some language in People v. McCartney 38 N.Y.2d 618, 622, 381 N.Y.S.2d 855, 345 N.E.2d 326 and on two out-of-State decisions (Matter of McAuley, 63 Ohio App.2d 5, 408 N.E.2d 697; People v. Marcy, 91 Mich.App. 399, 283 N.W.2d 754), the Court reasoned that the evidence could not realistically be considered "material" or "necessary" if it was inadmissible as a result of an applicable privilege. Since, according to the Appellate Division, the videotape and reporter's notes were privileged under both New York and New Jersey law and respondent had standing to assert the privilege in the New Jersey criminal proceeding, the Court held that a subpoena requiring production of the evidence should not be issued (183 A.D.2d 126, 130-135, 589 N.Y.S.2d 400). In reaching this conclusion, the Court was influenced by this Court's general observation that the process of compelling the presence of an out-of-State witness "has been termed 'drastic' because it represents an incursion upon the liberty of a prospective witness, who, although accused of no crime or wrongdoing, is required to attend a criminal proceeding in another State" ( People v. McCartney, supra, 38 N.Y.2d at 622, 381 N.Y.S.2d 855, 345 N.E.2d 326). The Appellate Division then granted petitioner leave to appeal to this Court, certifying the following question of law: "Was the decision and order of this Court, which reversed the order of the Supreme Court, properly made?"

The Uniform Act to Secure the Attendance of Witnesses From Without a State (Uniform Act) is a reciprocal statute that has been adopted in all 50 States, as well as in Puerto Rico, the Virgin Islands and the District of Columbia. The Uniform Act provides detailed and constitutionally valid procedures whereby a party to a criminal proceeding in one State can either obtain the presence of a witness residing in another State or can compel the production of evidence located in another State (see, New York v. O'Neill, 359 U.S. 1, 79 S.Ct. 564, 3 L.Ed.2d 585).

The first step under these procedures is for the party seeking to compel a New York witness's attendance in another State to obtain a certificate from a court of record in that State verifying that "there is a criminal prosecution pending in such court, or that a grand jury investigation has commenced or is about to commence," that the individual in question "is a material witness in such prosecution, or grand jury investigation" and that "[the witness's] presence will be required for a specific number of days" (CPL 640.10[2]. The certificate must then be presented to a Justice of the Supreme Court or a Judge of the County Court in the county in which the potential witness is located (id.). Upon presentation of the certificate, the Justice or Judge must fix a date and place for a hearing.

Following the hearing, the court must issue a subpoena commanding the witness to appear in the demanding State if, after considering the evidence, it determines "that the witness is material and necessary, that it will not cause undue hardship to the witness to be compelled to attend and testify * * * in the other state, and that the laws of the state in which prosecution is pending * * * will give [the witness] protection from arrest and the service of civil and criminal process" (CPL 640.10[2]. The certificate issued by a Judge of the demanding State is "prima facie evidence of all the facts stated therein" for purposes of the sending State's CPL 640.10(2) hearing (id.). Absent a showing of good cause, disobedience of a subpoena issued pursuant to this procedure is punishable in the same manner as is disobedience of a subpoena issued by a New York State court of record for a proceeding pending in New York (id.).

Since it involves a judicial determination of the validity and force of another State's demand for a witness's appearance, an application conducted pursuant to CPL 640.10(2) is analytically analogous to a motion to quash a subpoena, which is ordinarily deemed civil in nature (see, Matter of Abrams [John Anonymous], 62 N.Y.2d 183, 192, 476 N.Y.S.2d 494, 465 N.E.2d 1; Matter of Cunningham v. Nadjari, 39 N.Y.2d 314, 317, 383 N.Y.S.2d 590, 347 N.E.2d 915; Matter of Boikess v. Aspland, 24 N.Y.2d 136, 299 N.Y.S.2d 163, 247 N.E.2d 135). Furthermore, under the terms of the statute, such a proceeding may be entertained only by a Justice of the Supreme Court or a Judge of the County Court, both of which have civil, as well as criminal, jurisdiction (CPL 640.10[2]; see, Matter of Cunningham v. Nadjari, supra ). Accordingly, although authorized by a provision of the Criminal Procedure Law, a CPL 640.10 application should be deemed civil. Moreover, as the application is the only contest in court between the parties in New York, it is appropriate in this context to treat it as a special proceeding and, as such, resulting in an order that is appealable under the provisions of the CPLR (see, e.g., Matter of Abrams, supra; cf., Matter of Santangello v. People, 38 N.Y.2d 536, 538, 381 N.Y.S.2d 472, 344 N.E.2d 404). ¹ In this case, the order of the Appellate Division resolves all of the issues between the parties to this special proceeding and is therefore final. Accordingly, the Appellate Division had the authority to grant petitioner permission to appeal pursuant to CPLR 5602(a)(1)(i), and the certified question is unnecessary.

While the foregoing resolves one fundamental threshold question, it still remains for us to determine whether petitioner's appeal may be entertained in light of a recent development that occurred after the parties' briefs...