Codey, Application of

• Citation: 589 N.Y.S.2d 400,183 A.D.2d 126
• Parties: , 20 Media L. Rep. 1982 In the Matter of the Application of Robert H. CODEY, etc., Petitioner-Respondent, For the appearance of Capital Cities, American Broadcasting Corp., Inc., Respondent-Appellant, As a material witness before the New Jersey State Grand Jury, Mercer County, State of New Jersey.
• Decision Date: 27 October 1992
• Court: New York Supreme Court Appellate Division

Page 400

589 N.Y.S.2d 400

183 A.D.2d 126, 20 Media L. Rep. 1982

In the Matter of the Application of Robert H. CODEY, etc Petitioner-Respondent For the appearance of Capital Cities, American Broadcasting Corp., Inc., Respondent-Appellant As a material witness before the New Jersey State Grand Jury, Mercer County, State of New Jersey.

Supreme Court, Appellate Division First Department.

Oct. 27, 1992.

Gregory L. Diskant, New York City, of counsel (Crystal Mayner, with him, on the brief, Patterson, Belknap, Webb & Tyler, attorneys), for respondent-appellant.

Paul Harnisch, Commack, of counsel (Patrick J. Hynes, with him, on the brief, Robert M. Morgenthau, New York City, attorney), for petitioner-respondent.

Before MURPHY, P.J., ELLERIN, WALLACH and ASCH, JJ.

ELLERIN, Justice.

On this appeal we are called upon to interpret the provisions of the Uniform Act to Secure the Attendance of Witnesses from Without the State which is codified in this state in CPL § 640.10.

In April, 1991 petitioner, on behalf of the State of New Jersey, moved in Criminal Term of the Supreme Court of New York for a subpoena compelling the appearance of respondent Capital Cities, American Broadcasting Corporation, Inc., ["ABC"] before the New Jersey grand jury in Mercer County to produce certain items held by ABC's custodian of records. The application was made pursuant to § 640.10 based on supporting papers asserting that the grand jury of Mercer County, New Jersey was in the process of investigating allegations of point shaving by members of the 1987-88 men's basketball team at North Carolina State University. In February and March of 1990, ABC's News Division had broadcast three stories concerning the alleged point shaving. The stories relied in part on confidential sources and included excerpts of an interview with one unidentified player, who was shown only in shadow and with his voice disguised.

The items sought to be subpoenaed are the notes of interviews, if any, which were conducted by ABC World News Tonight correspondent Armen Keteyian, of Kelsey Weems, a player on the North Carolina basketball team, and video and audio tapes, if any, of interviews with Weems. The affidavit filed in support of the application alleges that Mr. Weems subsequently stated under oath that he was the player who had been interviewed anonymously on ABC World News Tonight, but that the portions of his interview which were broadcast were taken out of context and that he did not implicate himself in point shaving.

The Uniform Act to Secure the Attendance of Witnesses from Without the State is a reciprocal act which has been adopted in all fifty states, Puerto Rico, The Virgin Islands and the District of Columbia. The Act defines the procedure and circumstances under which a party to a criminal proceeding in one state may secure the attendance of witnesses residing outside that state's jurisdiction and subpoena power and it is designed to cover subpoenae duces tecum as well as subpoenae ad testificandum (Matter of State of Washington v. Harvey, 10 A.D.2d 691, 198 N.Y.S.2d 897, appeal dismissed, 8 N.Y.2d 865, 203 N.Y.S.2d 914, 168 N.E.2d 715).

Under the statute, in order to secure a subpoena for an out of state witness, an application must, in the first instance, be brought in the trial court in the jurisdiction where the criminal proceeding is pending. That court must decide, inter alia, whether the witness is material to the criminal proceeding and, if such finding is made, issue a certificate to that effect (see, State v. Smith, 87 N.J.Super. 98, 208 A.2d 171). Thereafter an application based on such certificate may be submitted to the courts of the state whose cooperation is sought in compelling the witness's attendance. Significantly, that court too must hold a hearing, upon notice to the potential witness, to determine anew whether the evidence sought is material to the other state's proceeding and, in addition, to determine if the evidence is also necessary to that proceeding and if it will cause undue hardship to the witness if he or she is compelled to attend and testify in the requesting state (New Jersey v. Bardoff, 92 A.D.2d 890, 459 N.Y.S.2d 878). While the burden of proof at the hearing on the issues of materiality and necessity rests upon the party seeking the evidence (id.), the certificate of the requesting state "shall be prima facie evidence of all the facts stated therein" (CPL § 640.10[2] [emphasis supplied].

In the instant case, the application before Criminal Term, Supreme Court, was accompanied by a certificate from the assignment judge of the Superior Court of New Jersey, Law Division (Criminal), which certified that that court had found that the materials sought were necessary and material to the ongoing grand jury investigation. The certificate did not, however, recite the facts upon which that court had based its conclusion.

In opposing the application, ABC did not argue that the items sought were not relevant to the grand jury investigation. Rather, it argued that they were incapable of being found either material or necessary because they were privileged from disclosure under the laws of New Jersey, as well as under the laws of this state. In support, ABC offered the affidavit of Armen Keteyian, who stated that any information he had collected in connection with the story was in his role as a reporter gathering the news and that the player who was interviewed anonymously on television was a confidential source. Petitioner, in turn, declined to address the question of privilege, and argued that the courts of this state may only consider whether the material sought is material and necessary and that questions of admissibility are irrelevant at this stage of the proceedings and must await resolution by the courts of New Jersey after the subpoena directing attendance in that jurisdiction is issued.

Petitioner's application was granted, based on findings by the trial court that the certificate issued by the Superior Court of New Jersey was prima facie evidence that the evidence was material, with the affidavit offered by petitioner adding further support to that conclusion, that the issue of whether the items sought were privileged under New Jersey law was not properly raised on the application and, finally, that, in view of the geographical proximity, respondent could not argue that it would suffer "undue hardship" by being compelled to appear in Mercer County, New Jersey.

Since we conclude to the contrary and find that the impact of the newsperson's privilege on the evidence sought is a relevant issue that must be decided by the courts of this state in determining whether to grant the application and issue the subpoena, we reverse.

While the Uniform Act to Secure the Attendance of Witnesses from Without the State is of vital importance in facilitating the securing of evidence necessary to the just disposition of criminal proceedings, it is not to be invoked casually. As the Court of Appeals has held, "The process for securing 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, 38 N.Y.2d 618, 622, 381 N.Y.S.2d 855, 345 N.E.2d 326; see also, Bellacosa, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 11A CPL § 640.10, at 306).

Here, the certificate issued by the Superior Court of New Jersey did not state the facts upon which its conclusion of materiality and necessity were based and gave no indication as to whether the issuing court had considered any questions surrounding the admissibility of the evidence in determining its materiality. It is questionable whether this conclusory certificate, barren of any factual underpinnings, would, standing alone, be adequate to support the petition (see, generally, Annotation "Sufficiency of Evidence to Support or Require Finding that In-State Witness in Criminal Case is 'Material and Necessary' ..." 12 ALR4th 771, 775-777, § 3). Such deficiencies in the certificate, however, are not here significant because petitioner itself supplied a factual basis for the finding of materiality in the general sense by means of its affidavit demonstrating the relevance of the potential evidence. Not only does ABC not contest the facts as set forth, but it makes clear that it is not attacking the materiality or necessity of the requested items in any sense other than that they will ultimately be ruled privileged and therefore inadmissible.

Thus, the pivotal issue for our determination is whether the courts of this state should, in the first instance, consider and resolve the impact which the personal privilege raised by the witness will have on the admissibility of the evidence sought before making the ultimate determination as to whether the evidence is necessary and material to the New Jersey proceeding. It is significant that the statute requires the state being petitioned, here New York, to make its own separate and independent finding on materiality and necessity before it is obliged to issue an order compelling one within its borders to appear in the courts of another state or jurisdiction.

The significance of the admissibility of evidence on its materiality in the context of CPL § 640.10 is clearly set forth in People v. McCartney, supra, where the Court of Appeals held that, in evaluating materiality of evidence in a proceeding pursuant to that statute, the court must consider its "relevan[ce], admissibil[ity] and ... significance to [the] case." While, in McCartney, the Court was dealing with a situation in which New York was the requesting state rather than, as here, the state which has been requested to compel the production of the evidence, there is no reasonable basis to find that admissibility is any less relevant a factor in...