People v. McCartney

• Decision Date: 24 February 1976
• Citation: 345 N.E.2d 326,381 N.Y.S.2d 855,38 N.Y.2d 618
• Parties: , 345 N.E.2d 326 The PEOPLE of the State of New York, Respondent, v. Merle Eugene McCARTNEY, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 855

381 N.Y.S.2d 855

38 N.Y.2d 618, 345 N.E.2d 326

The PEOPLE of the State of New York, Respondent, v. Merle Eugene McCARTNEY, Appellant.

Court of Appeals of New York.

Feb. 24, 1976.

James F. Young, Elmira, for appellant.

D. Bruce Crew, III, Dist. Atty., for respondent.

GABRIELLI, Judge.

This case concerns the construction and application of CPL 640.10 (subd. 3), the 'UNIFORM ACT TO SECURE ATTENDANCE OF WITNESSES FROM WITHOUT THE STATE IN CRIMIN CASES.' ¹ We have not previously had occasion to construe and apply this statute which has now been enacted by some 47 States and the District of Columbia. The 'Uniform Act' enables a State to secure the attendance of witnesses who are not located within its borders and are, hence, immune to its normal subpoena power. Defendant contends that he was denied the right to secure compulsory attendance of witnesses on his behalf, given to him by the Sixth Amendment of the United States Constitution and held applicable to the States through the due process clause of the Fourteenth Amendment in Washington v. Texas, 388 U.S. 14, 17--19, 87 S.Ct. 1920, 18 L.Ed.2d 1019; and he asserts that this right has been violated because the Judge at his pretrial confession suppression hearing refused to utilize the procedures set forth in the 'Uniform Act' to compel a Maryland State trooper to testify at the hearing.

The defendant pleaded guilty to the charge of robbery in the second degree (Penal Law, § 160.10) after the court determined, following a hearing, that statements made to New York State Police investigators at the Washington County Jail in Hagerstown, Maryland, were voluntarily made upon a waiver of his right to admonitions before interrogation. The Appellate Division unanimously affirmed the conviction. At the suppression hearing, the prosecution produced Investigator Anderson of the New York State Police, who had conducted the interrogation of defendant; another New York State Police officer who was also present during defendant's interrogation, Senior Investigator Capozzi, although available to the defendant, was not called upon to testify, but his testimony at a suppression hearing for defendant's brother arising out of the same charge was made available to the defendant. Defendant's counsel then sought to compel the attendance of a Maryland State trooper, Officer Miles, who was alleged to have been present during the defendant's questioning in the Maryland jail. The Judge found th Trooper Miles' testimony would not be 'of any determinative value to this proceeding', since he did not participate in the questioning of defendant but was merely 'in and out' of the room in which defendant was being held, and denied the application for a certificate pursuant to CPL 640.10 (subd. 3).

It should be noted, prefatorily, that a State is not constitutionally required by the Sixth Amendment guarantee of compulsory process to compel the attendance of witnesses beyond its jurisdiction over whom it has no subpoena power. ² Thus, while the constitutionality of the 'Uniform Act' has been upheld (New York v. O'Neill, 359 U.S. 1, 79 S.Ct. 564, 3 L.Ed.2d 585), the 'Act' is clearly not constitutionally mandatory (see People v. Carter, 37 N.Y.2d 234, 240, 371 N.Y.S.2d 905, 910, 333 N.E.2d 177, 181; People v. Cavanaugh, 69 Cal.2d 262, 70 Cal.Rptr. 438, 444 P.2d 110; State v. Blount, 200 Or. 35, 264 P.2d 419; State v. Smith, 87 N.J.Super. 98, 208 A.2d 171). The 'Uniform Act' has been sustained against the claim that, by requiring the Judge to pass upon the issue of a witness' materiality, it constitutes a violation of due process and a denial of a fair trial (Glynn v. Donnelly, D.C., 360 F.Supp. 214, petition den., 1 Cir., 485 F.2d 692, cert. den., 416 U.S. 957, 94 S.Ct. 1970, 40 L.Ed.2d 307). It is important to note, therefore, that we are not here faced with a question of constitutional dimension but, rather, one of statutory construction. Hence, we must determine whether the defendant was entitled under the 'Act' to have the Trial Judge issue a certificate calling for the attendance of Trooper Miles at his Huntley hearing.

The 'Uniform Act' is a reciprocal act and is operative only among States which have adopted it. Section 5 of the act (CPL 640.10, subd. 5) emphasizes that, as a uniform act, it should be applied uniformly in the jurisdictions in which it has been adopted. ³ It has consistently been held that, in order to be entitled to the issuance of compulsory process under the 'Act', the court of the 'requesting' State must determine whether the witness sought is 'material' (People v. Cavanaugh, 69 Cal.2d 262, 70 Cal.Rptr. 438, 444 P.2d 110, Supra; People v. Nash, 36 Ill.2d 275, 222 N.E.2d 473, cert. den., 389 U.S. 906, 88 S.Ct. 222, 19 L.Ed.2d 223, 681; Midgett v. State,223 Md. 282, 164 A.2d 526; State v. Fouquette, 67 Nev. 505, 221 P.2d 404, cert. den., 341 U.S. 932, 71 S.Ct. 799, 95 L.Ed. 1361; State v. Blount,200 Or. 35, 264 P.2d 419, Supra; State v. Emrick, 129 Vt. 475, 282 A.2d 821; State v. Mance 7 Ariz.App. 269, 438 P.2d 338; State v. Smith, 87 N.J.Super. 98, 208 A.2d 171, Supra; Ann., 44 A.L.R.2d 732--739; cf. Glynn v. Donnelly, 360 F.Supp. 214, Supra; Matter of Stamler (Costello), 279 App.Div. 908, 111 N.Y.S.2d 313).

Unsupported statements that the witness is material or necessary are not sufficient to require the Trial Judge to grant an application under CPL 640.10 (subd. 3). The party who seeks to secure the presence of an out-of-State witness should present evidence in the form of an affidavit of the witness or otherwise show that the testimony of the desired witness is material and necessary (State v. Blount, supra; cf. Matter of Stamler, supra). Indeed, it is established that the burden of showing materiality is upon the party seeking to compel the attendance of an out-of-State witness (People v. Cavanaugh, supra; State v. Blount, supra; State v. Emrick, supra; People v. Newville, 220 Cal.App.2d 267, 33 Cal.Rptr. 816; State v. Smith, supra); and in respect of materiality, we think it must be demonstrated by the defendant that the testimony of the witness sought to be subpoenaed is relevant, admissible and of significance to his case. We do not think it unfair to impose upon a defendant such a burden because his right to secure witnesses must be balanced against the rights of the witness whose presence would be compelled. 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 (cf. State v. Emrick, supra). Two Judges of the United States Supreme Court thought this incursion so serious that they concluded the 'Uniform Act' was unconstitutional (New York v. O'Neill, 359 U.S. 1, 79 S.Ct. 564, 3 L.Ed.2d 585, Supra, dissenting opn. per Douglas, J., Black, J., concurring). While we do not subscribe to this view, we do hold that the burden of proof of materiality should rest upon the party seeking to obtain the benefit of compulsory process for an out-of-State witness under the 'Uniform Act'.

Turning to the facts of the instant case, we cannot conclude that defendant has met this burden. He has made only an unsupported statement that there...