Murphy, P. J. (dissenting). The facts are as stated in Justice Ellerin’s opinion.
The statute to be construed, the Uniform Act to Secure the Attendance of Witnesses from Without the State in Criminal Cases (CPL 640.10), sets forth without ambiguity the procedure and relevant considerations for a court in this State when a court in another State has certified that a person within this State is a material witness whose attendance and testimony are required in a criminal prosecution or Grand Jury investigation in the foreign jurisdiction. The statute provides, upon the issuance of such certification, for a hearing to be held in this State’s courts to determine whether the witness is in fact material and necessary and whether "it will not cause undue hardship to the witness to be compelled to attend and testify * * * in the other state” (CPL 640.10 [2]). If, after such a hearing, it is found that the witness is material and necessary to the out-of-State prosecution or investigation and that no undue hardship is entailed by his or her attendance in the foreign jurisdiction, process must issue in this State compelling the witness’s presence and testimony in the State from which the certification has come.
Here, it is not disputed that, as the hearing court found, the respondent’s testimony and records are material and necessary — at least as those terms are ordinarily understood — to the New Jersey investigation in which they are sought. It is, however, respondent’s contention that the evidence which the subpoena would compel is privileged under New Jersey law and, accordingly, ultimately inadmissible. Respondent further contends that the New York hearing court ought to have taken cognizance of the inadmissibility of the evidence at *136issue, and, upon that ground, refused to issue the challenged subpoena. The governing statute, however, does not afford courts of the sending State the latitude to deny issuance of a subpoena on any but the grounds specified therein, and nowhere does the statute specify evidentiary admissibility as a relevant decisional criterium.
While I share Justice Ellerin’s concern that the liberty interests of persons called upon to give evidence in foreign jurisdictions not be unduly curtailed, that is a concern which I believe is adequately addressed by the statute as written; even if it were permissible, there would exist no need judicially to engraft upon the statute the additional limitation proposed by respondent. The statute does, of course, allow the court of the sending jurisdiction broad discretion to refuse to compel an appearance in a foreign jurisdiction in any case where such an appearance would involve undue hardship. Here, however, there exists no serious claim that the present respondent, the American Broadcasting Company, will suffer any undue detriment by appearing across the Hudson in the neighboring State of New Jersey in accordance with the subpoena’s demand. Indeed, there is no reason to suppose that respondent’s claim of privilege would have been appreciably more difficult to assert in New Jersey than it has been here. As Justice Ellerin has ably pointed out, the claim is straightforward and would most probably be disposed of routinely in either jurisdiction. Of course, had the claim not been so straightforward, the wisdom of abiding by the statute’s implicit placement of venue and having the evidentiary issue arising under the laws of New Jersey decided by the courts of that State would not be arguable.
To be sure, it is true that in People v McCartney (38 NY2d 618, 622) the Court of Appeals, in language unnecessary to its holding, did state that the admissibility of the evidence sought was a consideration in determining whether out-of-State evidence should be requested; but nothing in that decision can be read to require, as the respondent in effect contends, that the courts of the sending State supplant the courts of the requesting State as ultimate arbiters of evidentiary admissibility in the requesting State. If the requesting State wishes out of commendable solicitude for the liberty interests of persons in other jurisdictions, to advance its consideration of evidentiary admissibility so as to render it a factor in determining whether a request for out-of-State evidence is to be made, it may, of course, do so, but this is not required by the statute. *137Nor does the failure of the requesting State fully to consider at the point of certification the ultimate admissibility of the evidence sought constitute a relinquishment of the undoubted prerogatives of the courts of the requesting State to determine whether concededly material and necessary evidence is in the end to be received in criminal prosecutions and investigations conducted within their jurisdiction.
As I think it quite plain that the hearing court committed no abuse of discretion in issuing the challenged subpoena (see, People v McCartney, supra, at 623) and, indeed, that had the subpoena been denied upon the ground advanced by the respondent a reversal would now be required, I believe that the order appealed should be affirmed.
Wallach and Asch, JJ., concur with Ellerin, J.; Murphy, P. J., dissents in a separate opinion.
Order, Supreme Court, New York County, entered June 28, 1991, granting the application of petitioner pursuant to CPL 640.10 to compel respondent to produce certain evidence in its possession before a State Grand Jury in Mercer County, New Jersey, is reversed, on the law, and the application denied, without costs.