Opinion
December 5, 1995
Appeal from the Supreme Court, New York County (Herbert Adlerberg, J.).
The certificate of materiality issued by the California Judge, and the accompanying submissions presented to Supreme Court, New York County, provided ample basis for its determinations that appellant's testimony was both material and necessary to the pending California prosecution, and that no undue hardship existed, such that issuance of the subpoena compelling him to appear and testify was proper (CPL 640.10; see, Matter of Codey [Capital Cities, Am. Broadcasting Corp.], 82 N.Y.2d 521; State of New Jersey v Bardoff, 92 A.D.2d 890; Matter of Failla, 89 A.D.2d 923; cf., People v McCartney, 38 N.Y.2d 618).
Appellant's challenge to the facial sufficiency of the certificate, including the asserted failure to include the facts underlying its determination of materiality and to specify the number of days of testimony required, are meritless given the technical nature of the defects (CPLR 2001; CPL 470.05), and, in any event, such deficiencies were remedied by the applicant's additional submissions ( see, Matter of Codey [Capital Cities, Am. Broadcasting Corp.], 183 A.D.2d 126, revd on other grounds 82 N.Y.2d 521, supra).
Nor was appellant denied his statutory right to a hearing on the application where he elected to submit a written opposition, and never requested an opportunity to produce oral testimony. Thus, his challenge to the adequacy and form of the hearing he received is unpreserved ( see, CPLR 5501 [a] [3]; CPL 470.05).
Service of the order to show cause one day late did not constitute a jurisdictional defect as appellant's appearance on the return date, at which time he challenged the application on both jurisdictional and substantive grounds, confirmed the adequacy of the notice received ( see, Matter of Caro v Jones, 41 A.D.2d 829).
Concur — Sullivan, J.P., Rosenberger, Wallach, Ross and Williams, JJ.