Appel v. State

• Decision Date: 26 May 1966
• Docket Number: No. 465,465
• Citation: 220 A.2d 301,243 Md. 218
• Parties: Sidney APPEL v. STATE of New York. . Order
• Court: Maryland Court of Appeals

Page 218

243 Md. 218

220 A.2d 301

Sidney APPEL v. STATE of New York.

No. 465.

Court of Appeals of Maryland.

Order May 26, 1966.

Opinion June 22, 1966.

Robert C. Heeney, Rockville (William J. Rowan, III, and Heeney, McAuliffe & McAuliffe, Rockville, on the brief), for appellant.

David T. Mason, Asst. Atty. Gen. (Thomas B. Finan, Atty. Gen., Baltimore, and Leonard T. Kardy, State's Atty., for Montgomery County, Rockville, on the brief), for appellee.

Before PRESCOTT, C. J., and HORNEY, MARBURY, OPPENHEIMER and BARNES, JJ.

PER CURIAM ORDER

For reasons to be hereafter stated, it is ordered, this 26th day of May, 1966, by the Court of Appeals of Maryland, that the order passed herein by the court below be affirmed; but, since it requires the appellant to appear in New York on dates which have now expired, the case is remanded so that the Circuit Court may modify its order to include dates satisfactory to the New York authorities. It is further ordered that the mandate issue immediately.

OPINION

PRESCOTT, Chief Judge.

After appellant, a two-year resident of Maryland, who is a licensed lawyer in the State of New York and who formerly served for 28 years as an investigator for the New York City Alcohol Beverage Control Board, refused voluntarily to appear as a witness before the Grand Jury in New York, these proceedings, under the Uniform Act to Secure the Attendance of Witnesses from without a State in Criminal Proceedings, Code (1957 and 1965 Cum.Supp.), Article 27, §§ 617-623, were instituted.

In accordance with § 618, a sealed certificate of Justice Fine of the Supreme Court of the State of New York was filed in the Circuit Court for Montgomery County, and, in due time a hearing pursuant to said section was held before Judge Pugh. It will be unnecessary to set forth all the minute details of the proceeding showing compliance with the statutory provisions, for appellant, as indeed he must, concedes that any not challenged in this appeal were complied with. After said hearing, Judge Pugh ordered appellant to appear before the Grand Jury in New York for a period of 3 days; this appeal resulted.

Appellant contends that (1) the evidence produced at the hearing was insufficient to support a finding that he was a material and necessary witness; (2) the affidavit of David A. Goldstein, attached to Justice Fine's certificate, should not have been considered; and (3) the trial court erred in failing to make a determination that the laws of all States through which he ordinarily would be required to pass afforded him protection from arrest and the service of civil and criminal process (in connection with matters which arose before his entrance into said States).

I

Justice Fine's certificate conformed with the language of the statute, and stated, inter alia, that appellant was a necessary and material witness to a Grand Jury investigation then being conducted. Appellant challenges this as not being a statement of fact but a mere certified conclusion of the petitioning court.

Although the Uniform Act has been in effect in some jurisdictions for about 30 to 35 years, there is a paucity of decisions of Courts of last resort interpreting the same. ¹ In re Grothe, 59 Ill.App.2d 1, 208 N.E.2d 581, decided by an intermediate appellate Court in Illinois is heavily relied upon by appellant. There the petitioning State relied solely upon the judge's certificate, which stated that Grothe was 'a material and necessary witness' in a Grand Jury investigation in Massachusetts. The court held the Uniform Act should be strictly construed, and 'the certified conclusion of the petitioning court to the effect that the witness is material and necessary can have no weight whatsoever'- ; hence the lower court's order had been improvidently issued.

On the other hand, an intermediate appellate court in Florida, in Epstein v. People of State of New York, Fla.App., 157 So.2d 705, when the same reason was assigned for challenging the sufficiency of a like certificate under the Uniform Act, the court said: 'Since the certificate is in the words of the statute, we think that it is sufficient. * * * and inasmuch as the certificate is issued by a judge of the requesting state who has satisfied himself as to the sufficiency of the evidentiary facts to establish the necessary conditions for the making of the certificate, it is not required that he give the basis of his decision in order to have a certificate that is prima facie good.'

In the view that we take of the case at bar, it is unnecessary to adopt or to discuss further the quoted portions of the above opinions. Grothe is readily distinguishable on its facts, and in our opinion, there was ample evidence presented before Judge Pugh to support a finding that appellant was a material and necessary witness to appear before the Grand Jury investigation then being conducted in New York. Some of this testimony, in substantial part furnished by appellant and his witnesses, follows. Appellant and his wife were both licensed lawyers in the State of New York. He had served for 28 years as an investigator for the New York City Alcoholic Beverage Control Board (Control Board). The Grand Jury had for some time been conducting an investigation to determine whether there had been 'in existence conspiracies to pay bribes to public officials attached to the Control Board, and whether said bribes had, in fact, been paid.' Appella...