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In re Holmes

Supreme Court of New York, First Department

August 20, 2013

In re James Holmes, Petitioner-Respondent,
v.
Jana Winter, Respondent-Appellant. The Reporters Committee for Freedom of the Press plus 42 News Organizations, Amici Curiae. Index No. 3003713

Respondent appeals from the order of the Supreme Court, New York County (Larry Stephen, J.), entered on or about March 7, 2013, which compelled her to testify before the District Court of Arapahoe County, Colorado, in a criminal proceeding against petitioner.

Hogan Lovells U.S. LLP, Washington, DC (Christopher T. Handman of the bars of the District of Columbia and the State of Maryland, admitted pro hac vice, of counsel), and Hogan Lovells U.S. LLP, New York (Dori Ann Hanswirth, Theresa M. House, Nathaniel S. Boyer and Benjamin A. Fleming of counsel), for appellant.

Arshack, Hajek & Lehrman, PLLC, New York (Daniel N. Arshack of counsel), for respondent.

Levine Sullivan Koch & Schulz, LLP, New York (Katherine M. Bolger of counsel), for amici curiae.

Angela M. Mazzarelli, J.P., Rolando T. Acosta, David B. Saxe, Helen E. Freedman Darcel D. Clark, JJ.

CLARK, JUDGE.

In this appeal, the question presented is whether the Supreme Court erred in its determination to enforce a subpoena under the Uniform Act to Secure the Attendance of Witnesses from Without the State in Criminal Cases (CPL 640.10) when the witness's testimony potentially involves the assertion of privilege provided by Civil Rights Law § 79-h(b). We find that the Supreme Court acted properly in directing respondent to appear in the Colorado District Court. Accordingly, the inquiry into admissibility and privilege remains the province of the demanding State rather than the sending State.

As a threshold matter, we find that this appeal is not rendered moot by the fact that respondent appeared in the Colorado District Court because it "presents an issue of substantial public interest that is likely to recur and evade review" (Branic Intl. Realty Corp. v Pitt, 106 A.D.3d 178, 182 [1st Dept 2013]; see Coleman v Daines, 19 N.Y.3d 1087, 1090 [2012]; Matter of Hearst Corp. v Clyne, 50 N.Y.2d 707, 714-715 [1980]).

As to the merits, the Supreme Court properly directed respondent to testify in the criminal proceeding against petitioner. When seeking to compel a witness to testify in a criminal proceeding in another state, a petitioner bears the burden of securing a certificate from the out-of-state judge, presenting that certificate to a New York judge, showing that the witness's testimony is "material and necessary, " and showing that such compulsion would not cause undue hardship to the witness (CPL 640.10[2]; Matter of Tran v Kwok Bun Lee, 29 A.D.3d 88, 92 [1st Dept 2006]; State of New Jersey v Bardoff, 92 A.D.2d 890 [2d Dept 1983]). Petitioner furnished the court with a certificate issued, pursuant to the Uniform Act to Secure the Attendance of Witnesses from Without the State in Criminal Cases (CPL 640.10), by the Araphoe County District Court Judge, and demonstrated that respondent's testimony was "material and necessary" (Matter of Tran, 29 A.D.3d at 92; CPL 640.10[2]), and that she would not suffer undue hardship because petitioner would pay the costs of her travel and accommodations (see Tran, 29 A.D.3d at 93-94).

Respondent's reliance upon Civil Rights Law § 79-h(b) is unavailing. The narrow issue before the Supreme Court was whether respondent should be compelled to testify, and privilege and admissibility are irrelevant for this determination (see Matter of Codey [Capital Cities, Am. Broadcasting Corp.], 82 N.Y.2d 521, 528-530 [1993]; Matter of Magrino, 226 A.D.2d 218 [1st Dept 1996]). Respondent is entitled to assert whatever privileges she deems appropriate before the Colorado District Court. Compelling respondent to testify is distinguishable from compelling her to divulge the identity of her sources.

In Matter of Codey (Capital Cities, Am. Broadcasting Corp.) (82 N.Y.2d 521 [1993]), the Court of Appeals held that the "privileged status of... evidence is not a proper factor for consideration under CPL 640.10(2)" (id. at 524). Notwithstanding the holding in Codey, the dissent asserts that there are countervailing public policy implications that favor protecting the identity of an investigative reporter's confidential sources. In addition, the dissent reasons that an "undue hardship" is presented when an investigative reporter relies upon confidential sources for her livelihood and is compelled to divulge the identity of her sources.

The dissent's position conflates the separate and distinct concept of "privilege" with public policy and undue hardship. Privilege "pertains to the disclosability and admissibility of otherwise probative and useful evidence" (id. at 529). An undue hardship may pertain to "any familial, monetary, or job-related hardships" that result from being compelled to appear (Tran, 29 A.D.3d at 93). Nevertheless, undue hardship does not involve an analysis of the potential consequences if respondent exercises privilege in the demanding State. Again, the assertion of privilege remains irrelevant to the determination of whether a respondent should be compelled to testify pursuant to the Uniform Act to Secure the Attendance of Witnesses from Without the State in Criminal Cases (see Matter of Codey, 82 N.Y.2d at 528-530; Matter of Magrino, 226 A.D.2d at 218). Thus, if this Court were to resolve questions of privilege under the lens of public policy or undue hardship, it would frustrate the purpose of the reciprocal statutory scheme (id.).

The Court in Codey held that "[i]t would be inefficient and inconsistent with the over-all purpose and design of this reciprocal statutory scheme to permit the sending State's courts to resolve questions of privilege on a CPL 640.10(2) application" (Matter of Codey, 82 N.Y.2d at 529). "Further, evidentiary questions such as privilege are best resolved in the State—and in the proceeding—in which the evidence is to be used" (id. at 530).

We note that New York's Shield Law (Civil Rights Law § 79h-[b]) continues to represent a strong public policy and the long history of vigilantly safeguarding freedom of the press (see O'Neill v Oakgrove Constr., 71 N.Y.2d 521, 528-529 [1988]; Matter of Knight-Ridder Broadcasting v Greenberg, 70 N.Y.2d 151, 155-157 [1987]). The dissent argues that respondent's appearance was ordered to identify law enforcement personnel, which requires the disclosure of her confidential sources. However, the facts presented on this record do not establish with absolute certainty that the Colorado District Court will require the disclosure of confidential sources. As such, it calls into question whether this matter truly embodies a conflict between evidence privileged under New York law and evidence that is unprotected in the demanding State. It is not certain that respondent will forfeit privilege protections under the law of the demanding State. Given this uncertainty, we do not find countervailing public policy concerns that justify "the refusal of relief under CPL 640.10 even if the material and necessary' test set forth in the statute is satisfied" (Matter of ...


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