In a full-fledged opinion by Justice Clark, over a two-justice dissent in an opinion by Justice Saxe, the First Department determined a reporter could be compelled to testify, under Criminal Procedure Law section 640.10, in a Colorado proceeding which sought to identify law enforcement personnel who leaked information to the press.  The relevant facts are laid out in the dissenting opinion.  The petitioner in the case is James Holmes, the accused shooter in the Aurora, Colorado, movie theater massacre. The respondent is a reporter who interviewed two law-enforcement persons about the contents of a package allegedly sent by James Holmes to his treating psychiatrist.  A Colorado court issued a subpoena to the reporter.  Supreme Court enforced the subpoena under the Uniform Act to Secure the Attendance of Witnesses from Without the State in Criminal Cases (CPL 640.10).  Because the reporter has already appeared in Colorado, the controversy is moot.  But the First Department determined the exception to the mootness doctrine should be applied (important issue likely to recur, etc.). The reporter’s testimony about her confidential sources is protected in New York under Civil Rights Law section 79-h (b). But Colorado’s privilege statute is much weaker. The majority determined the privilege issue was irrelevant to the enforcement of the subpoena.  The dissent argued that the reporter would suffer “undue hardship” within the meaning of the statute if she were forced to reveal her confidential sources (because her livelihood depended on witness-confidentiality).  The majority wrote:

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” …, and that she would not suffer undue hardship because petitioner would pay the costs of her travel and accommodations … . …

The narrow issue before the Supreme Court was whether respondent should be compelled to testify, and privilege and admissibility are irrelevant for this determination … . 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.  Matter of Holmes v Winter, 2013 NY Slip Op 05666, First Dept 8-20-13