In re Failla

Appellate Division of the Supreme Court of New York

In re Failla

89 A.D.2d 923, 454 N.Y.S.2d 25, 1982 N.Y. App. Div. LEXIS 18109

CourtAppellate Division of the Supreme Court of the State of New York

DecidedAugust 30, 1982

StatusPublished

Cited by1 cases

This text of 89 A.D.2d 923 (In re Failla) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Failla, 89 A.D.2d 923, 454 N.Y.S.2d 25, 1982 N.Y. App. Div. LEXIS 18109 (N.Y. Ct. App. 1982).

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Opinion

In a proceeding pursuant to CPL 640.10, James Failla appeals from an order of the Supreme Court, Richmond County (Broomer, J.), dated July 20, 1982, which directed him to appear before a New Jersey Grand Jury. Order affirmed, without costs or disbursements. Appellant’s primary contention is that he was denied a fair hearing because the demanding State, New Jersey, did not produce the Deputy Attorney-General who prepared the petition to the New Jersey court. At a hearing pursuant to CPL 640.10 (subd 2), the certification from the demanding State “shall be prima facie evidence of all the facts stated therein”. It is not incumbent upon the demanding State to produce a witness to attest to those facts (see State of New Jersey v Geoghegan, 76 AD2d 894; Matter of State of Washington v Harvey, 10 AD2d 691, app dsmd 8 NY2d 865). At the hearing, appellant alleged that a witness who testified before a New Jersey Grand Jury and implicated appellant in the events under investigation perjured himself. If this allegation is true, appellant’s testimony would still be material and necessary to refute the other witness’ testimony. There is no evidence in this record that the New Jersey court abused its discretion when it certified that appellant was a material and necessary witness (see Matter of Superior Ct. of State of N.J. v Farber, 94 Misc 2d 886). We have considered appellant’s remaining contentions and find them to be without merit. Damiani, J. P., Mangano, Brown, Rubin and Boyers, JJ., concur.

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In a proceeding pursuant to CPL 640.10, James Failla appeals from an order of the Supreme Court, Richmond County (Broomer, J.), dated July 20, 1982, which directed him to appear before a New Jersey Grand Jury. Order affirmed, without costs or disbursements. Appellant’s primary contention is that he was denied a fair hearing because the demanding State, New Jersey, did not produce the Deputy Attorney-General who prepared the petition to the New Jersey court. At a hearing pursuant to CPL 640.10 (subd 2), the certification from the demanding State “shall be prima facie evidence of all the facts stated therein”. It is not incumbent upon the demanding State to produce a witness to attest to those facts (see State of New Jersey v Geoghegan, 76 AD2d 894; Matter of State of Washington v Harvey, 10 AD2d 691, app dsmd 8 NY2d 865). At the hearing, appellant alleged that a witness who testified before a New Jersey Grand Jury and implicated appellant in the events under investigation perjured himself. If this allegation is true, appellant’s testimony would still be material and necessary to refute the other witness’ testimony. There is no evidence in this record that the New Jersey court abused its discretion when it certified that appellant was a material and necessary witness (see Matter of Superior Ct. of State of N.J. v Farber, 94 Misc 2d 886). We have considered appellant’s remaining contentions and find them to be without merit. Damiani, J. P., Mangano, Brown, Rubin and Boyers, JJ., concur.

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Bluebook (online)

89 A.D.2d 923, 454 N.Y.S.2d 25, 1982 N.Y. App. Div. LEXIS 18109, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-failla-nyappdiv-1982.

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