Appel v. State

PER CURIAM ORDER For the reasons to be hereafter stated, it is ORDERED, this 26th day of May, 1966, by the Court of Appeals of Maryland, that the order passed herein by the court below be affirmed; but, since it requires the appellant to appear in New York on dates which have now expired, the case is remanded so that the Circuit Court may modify its order to include dates satisfactory to the New York authorities. It is further ORDERED that the mandate issue immediately. Stedman Prescott Chief Judge Prescott, C. J., delivered the opinion of the Court. After appellant, a two-year resident of Maryland, who is a licensed lawyer in the State of New York and who formerly served for 28 years as an investigator for the New York City Alcohol Beverage Control Board, refused voluntarily to appear as a witness before the Grand Jury in New York, these proceedings, under the Uniform Act to Secure the Attendance of Witnesses from without a State in Criminal Proceedings, Code (1957 and 1965 Cum.

Supp.), Article 27, §§ 617-623, were instituted. In accordance with § 618, a sealed certificate of Justice Fine of the Supreme Court of the State of New York was filed in the Circuit Court for Montgomery County, and, in due time, ²²⁰ a hearing pursuant to said section was held before Judge Pugh. It will be unnecessary to set forth all the minute details of the proceeding showing compliance with the statutory provisions, for appellant, as indeed he must, concedes that any not challenged in this appeal were complied with. After said hearing, Judge Pugh ordered appellant to appear before the Grand Jury in New York for a period of 3 days; this appeal resulted.

Appellant contends that (1) the evidence produced at the hearing was insufficient to support a finding that he was a material and necessary witness; (2) the affidavit of David A. Goldstein, attached to Justice Fine’s certificate, should not have been considered; and (3) the trial court erred in failing to make a determination that the laws of all States through which he ordinarily would be required to pass afforded him protection from arrest and the service of civil and criminal process (in connection with matters which arose before his entrance into said States). I Justice Fine’s certificate conformed with the language of the statute, and stated, inter alia, that appellant was a necessary and material witness to a Grand Jury investigation then being conducted. Appellant challenges this as not being a statement of fact but a mere certified conclusion of the petitioning court. Although the Uniform Act has been in effect in some jurisdictions for about 30 to 35 years, there is a paucity of decisions of Courts of last resort interpreting the same. 1 In re Grothe, 208 N.E. 2d 581 , decided by an intermediate appellate Court in Illinois is heavily relied upon by appellant.

There the petitioning State relied solely upon the judge’s certificate, which stated that Grothe was “a material and necessary witness” in a Grand Jury investigation in Massachusetts. The court held the Uniform Act should be strictly construed, and “the certified conclusion of the petitioning court to the effect that the witness is material and necessary can have no weight whatso ²²¹ ever”; hence the lower court’s order had been improvidently issued. On the other hand, an intermediate appellant court in Florida, in Epstein v. People of State of New York, 157 So. 2d 705 , when the same reason was assigned for challenging the sufficiency of a like certificate under the Uniform Act, the court said: “Since the certificate is in the words of the statute, we think that it is sufficient. * * * and inasmuch as the certificate is issued by a judge of the requesting state who has satisfied himself as to the sufficiency of the evidentiary facts to establish the necessary conditions for the making of the certificate, it is not required that he give the basis of his decision in order to have a certificate that is prima facie good.” In the view that we take of the case at bar, it is unnecessary to adopt or to discuss further the quoted portions of the above opinions. Grothe is