Summary
In Matter of Stamler (279 App. Div. 908) this court held the subpoena-order issued out of a court in New Jersey was insufficient because the order did not state that the testimony of the witness was material.
Summary of this case from Matter of Washington v. HarveyOpinion
March 31, 1952.
Present — Dore, J.P., Cohn, Callahan, Van Voorhis and Shientag, JJ.
The subpoena-order is insufficient in this case because the certificate of the Judge of the New Jersey Superior Court does not set forth that the testimony of the witness is material. Section 618-a of the New York Code of Criminal Procedure contemplates, at the very least, that the court of the demanding State shall have passed on the question whether the testimony of the witness will be material in the prosecution pending in that State. Whether a mere statement that the witness is a material witness would be sufficient without further recital of the charge and the facts upon which the finding of materiality was based, we do not need now to pass upon. At least upon the certificate produced in this case it was improper for the Judge of the Court of General Sessions to grant the subpoena-order without any proof of the materiality of the testimony of the witness. Subpoena-order unanimously reversed, without costs, and the application denied. Settle order on notice.