Superior Court v. Farber

• Decision Date: 08 June 1978
• Citation: 94 Misc.2d 886,405 N.Y.S.2d 989
• Parties: . Myron FARBER and the New York Times, Respondents. Supreme Court, Trial Term,New York County, Part 35
• Court: New York Supreme Court

Page 989

405 N.Y.S.2d 989

94 Misc.2d 886

In the Matter of the SUPERIOR COURT of the State of New Jersey, Petitioner, v. Myron FARBER and the New York Times, Respondents.

Supreme Court, Trial Term,New York County, Part 35.

June 8, 1978.

Ronald J. Levine, New York City, for petitioner.

Eugene R. Schuman, New York City, for respondents.

HAROLD J. ROTHWAX, Judge.

This is an application pursuant to the Uniform Act to compel the Attendance of Witnesses from Without the (demanding) State, enacted in CPL 640.10 subd. (2) and Title 2a of New Jersey Statutes Annotated, §§ 81-18, et seq. The application is made upon the certificate of Judge William Arnold of the New Jersey Superior Court, Bergen County. Judge Arnold certifies that certain documents in the possession of Myron Farber, a newspaper reporter, and/or the New York Times are necessary and material to the defense of a criminal proceeding in Bergen County. Accordingly, Judge Arnold has invoked the process of this court to issue a subpoena duces tecum for such documents, returnable in Bergen County. There is no doubt that CPL 640.10 subd. (2) comprehends subpoenas duces tecum as well as subpoenas ad testificandum. State of Washington v. Harvey, 10 A.D.2d 691, 198 N.Y.S.2d 897, app. dsmd. 8 N.Y.2d 865, 203 N.Y.S.2d 914, 168 N.E.2d 715.

Respondents oppose the issuance of a subpoena on two grounds. First, respondents alleged, the certificate and supporting papers are insufficient as a matter of law to show the materiality and need for the documents in the Bergen County trial. By the terms of the statute, the certificate from the requesting State is prima facie evidence of the facts stated therein. CPL 640.10 subd. (2). The court of the requesting state properly determines whether the witness or document sought is material. (People v. McCartney, 38 N.Y.2d 618, 621, 381 N.Y.S.2d 855, 856, 345 N.E.2d 326, 328). While the certificate and supporting affidavits must support the assertion of materiality an application under the Uniform Act is entitled to full faith and credit in the absence of an abuse of discretion or evidence of arbitrariness by the issuing judge (cf. People v. McCartney,supra p. 623, 381 N.Y.S.2d p. 858, 345 N.E.2d p. 329). This court finds that the certificate of Judge Arnold and the supporting affidavits establish a sufficient factual predicate for the finding of materiality and need. The documents requested consist of notes taken by respondent Farber in the course of interviews with persons who have subsequently testified for the prosecution in the Bergen County trial. Respondent Farber's articles, based upon those interviews, led to the prosecution. Respondent Farber apparently cooperated closely with the prosecuting authorities and disclosed information previously unknown to them. The information sought is in the nature of Rosario material (People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881, cert. den. 368 U.S. 866, 82 S.Ct. 117, 7 L.Ed.2d 64). Respondents have not produced any evidence to rebut the prima facie validity of Judge Arnold's findings. This court is cognizant of Judge Arnold's familiarity with the issues involved in this case, over which he has presided through two years of preliminary hearings and twelve weeks of trial.

Respondents...