Opinion
May 29, 1987
Michael Wiseman for defendant.
Elizabeth Holtzman, District Attorney (Mitchell Weingarten of counsel), for plaintiff.
Defendant moves to dismiss the indictment on the ground that the Grand Jury proceeding was "defective" (CPL 210.20 [c]; 210.35 [4]) in that the People's failure to allow him to testify before the Grand Jury under a "limited" waiver of immunity constituted a denial of his statutory right to appear and testify before that body (CPL 190.50).
CPL 190.50 (5) (c), provides that such a motion "must be made not more than five days after the defendant has been arraigned upon the indictment". The People contend that the instant motion is not timely, since it was not made by defense counsel until January 15, 1987, defendant having been arraigned on March 26, 1986. The People's contention is without merit. This court is not considering the motion made by defense counsel. Rather, this court is now deciding defendant's pro se motion, made March 29, 1986, which has not previously been decided by any Judge of this court.
Defendant was charged, in a felony complaint, inter alia, with robbery in the first degree and criminal possession of a weapon in the second degree. On February 3, 1986, upon learning that the People were about to present evidence to a Grand Jury, defendant gave notice of his intent to appear and testify before that body (CPL 190.50). On February 13, 1986, defendant's attorney sent a handwritten letter to the People, confirming an earlier conversation, stating that since the People were presenting only the weapon charge, defendant requests that he be permitted to sign a waiver of immunity only as to this charge. Defense counsel also asked for a judicial ruling if the People failed to grant this request. On February 14, 1986, the People sent a letter to defense counsel stating that, in confirmation of an earlier conversation, it was understood that defendant did not wish to testify if only the weapon charge was presented. Accordingly, only this charge was presented to the Grand Jury and an indictment was voted charging defendant with criminal possession of a weapon in the third degree.
The People maintain that defense counsel's letter misconstrued their initial oral conversation and that the parties had a second oral conversation after counsel's letter where they resolved their misunderstanding. The People further contend that their letter reflected the agreement reached at this subsequent conversation. Defendant, however, does not admit that any second conversation occurred. Rather, defendant asserts that the People's letter was written in response to their initial conversation and incorrectly stated defendant's position.
For the purposes of this decision, the court accepts defendant's statement of the facts.
Whether a defendant is entitled, as a matter of right, to testify under a "limited" waiver of immunity is subject to divergent views by nisi prius courts.
A defendant, prior to exercising his right to testify before a Grand Jury (CPL 190.50 [5]), must execute a "waiver of immunity pursuant to [CPL] 190.45" (CPL 190.50 [5] [b]). CPL 190.45 (4) provides, as one type of waiver, a "limited" waiver of immunity. This entails a defendant agreeing to waive his constitutional rights only as to particular subjects and not others.
In People v Scott ( 124 Misc.2d 357), the court ruled that defendant was entitled to execute a waiver of immunity as to an attempted assault charge and retain immunity as to a grand larceny charge, notwithstanding the prosecutor's insistence on a general waiver of immunity (supra, at 364-365). The court reasoned that by testifying under a general waiver of immunity, defendant would be denied his Fifth Amendment privilege against self-incrimination, since he could be compelled to answer incriminatory questions regarding the grand larceny charge without the protection of immunity (supra, at 362). On the other hand, in People v Goetz ( 131 Misc.2d 1, affd 116 A.D.2d 316, revd on other grounds 68 N.Y.2d 96), the court ruled that the prosecutor has discretion to determine whether to grant or deny a request for a "limited" waiver of immunity. The court then reviewed the prosecutor's decision not to agree to a "limited" waiver and found no abuse of that discretion.
This court declines to follow Scott's lead to the extent that it implies that a defendant may, without a showing of need, unilaterally avail himself of a "limited" waiver of immunity. This court also disagrees with Goetz (People v Goetz, 131 Misc.2d 1, affd 116 A.D.2d 316, revd on other grounds 68 N.Y.2d 96, supra), to the extent that it indicates that a prosecutor's immunity decision before the Grand Jury are always reviewable for abuse of discretion.
Scott's concern that, by the prosecutor demanding a general waiver of immunity, the defendant is forced to yield his privilege against self-incrimination on one charge so he can testify on the other is unfounded. By voluntarily testifying, defendant waives the Fifth Amendment privilege as to matters within the bounds of appropriate cross-examination (Fitzpatrick v United States, 178 U.S. 304, 315; People v Bridget, 73 A.D.2d 291, 298-299, quoting with approval People v Tice, 131 N.Y. 651, 656-657; People v Shapiro, 308 N.Y. 453, 458). Since nothing indicates that the Fifth Amendment protection still lies, defendant would not be compelled to yield this privilege; rather, it would have been waived.
CPL 190.45 (4) provides that a witness may testify under a "limited" waiver of immunity "upon a written agreement with the district attorney". This requires prosecutorial consent. In the case at bar, accepting defendant's version of the events, the People declined to consent to such an agreement. Given the explicit statutory language, this decision was within their discretionary power.
While in the trial context, the prosecutor's immunity decisions are subject to a restricted review under a due process analysis (People v Priester, 98 A.D.2d 820, 821), different concerns are present at a Grand Jury proceeding. In the trial situation, due process requires that immunity decisions be balanced against defendant's constitutional right to present a defense (People v Owens, 63 N.Y.2d 824, 825; People v Adams, 53 N.Y.2d 241, 247; People v Shapiro, 50 N.Y.2d 747, 760). On the other hand, the Grand Jury proceeding is not adversarial in nature (People v Lancaster, 69 N.Y.2d 20, 26; People v Brewster, 63 N.Y.2d 419, 422). Defendant does not have a constitutional right to present evidence to the Grand Jury, nor does a defendant have a constitutional right to confront witnesses before the Grand Jury (People v Scalise, 70 A.D.2d 346, 350). Defendant also does not have a constitutional right to testify before a Grand Jury (People v Mead, 16 Misc.2d 171, 172, affd 11 A.D.2d 600; United States v Ciambrone, 601 F.2d 616, 622-623; Ronson v Commissioner of Correction of State of N.Y., 551 F. Supp. 450, affd 742 F.2d 1446, cert denied 469 U.S. 841, reh denied 469 U.S. 1143). Thus, there is no constitutional right of defendant to balance against the District Attorney's discretion in granting or denying immunity before the Grand Jury. There is a statutory right to appear and testify before the Grand Jury (People v Ferrara, 99 A.D.2d 257, 260). Further, unlike the petit jury, "[t]he Grand Jury is not * * * charged with the ultimate responsibility of determining the guilt or innocence of the accused" (People v Calbud, Inc., 49 N.Y.2d 389, 394), and the trial's concern of ascertaining the truth (United States v Turkish, 623 F.2d 769, 774-775, cert denied 449 U.S. 1077) is not as predominant. Therefore, the main justifications for reviewing the prosecutor's conduct in the area of immunity at trial are not present in the Grand Jury context.
It is for this reason that this court disagrees with People v Goetz ( 131 Misc.2d 1). For support of its proposition that the prosecutor's immunity decisions before the Grand Jury are reviewable for abuse, Goetz cites People v Adams ( 53 N.Y.2d 241). However, that case concerns a prosecutor's immunity decision at trial, not before the Grand Jury. Given the differences between the two proceedings, this court cannot analogize the two situations.
Assuming, arguendo, however, that there are times when immunity decisions at Grand Jury proceedings are reviewable for abuse of discretion, this case is clearly not one of them. In People v Lane ( 56 N.Y.2d 1), the Court of Appeals held that to oppose a motion seeking to consolidate indictments charging two separate criminal transactions, a defendant wishing to testify as to one criminal transaction but not the other must make "`a convincing showing that he has both important testimony to give concerning one count and strong need to refrain from testifying on the other'" (People v Lane, supra, at 8, quoting with approval Baker v United States, 401 F.2d 958, 977, on remand 430 F.2d 499, cert denied 400 U.S. 965). Since the consolidation issue arises at trial where the constitutional rights to testify, to confront witnesses against a defendant and to present evidence are more significant than at the Grand Jury, this court would adopt the Lane test as the minimal showing required of a defendant to challenge the prosecutor's immunity discretion before the Grand Jury.
Here, defendant has not satisfied this test. His conclusory assertions of his need to testify regarding his alleged innocent possession of the weapon and to remain silent on the robbery charge is insufficient to meet this test (People v Anderson, 118 A.D.2d 788, 789; People v Simpkins, 110 A.D.2d 790, 792; cf., People v Shapiro, 50 N.Y.2d 747, 757, supra). Therefore, this court will not review the People's decision for abuse of discretion.
CONCLUSION
The People's decision not to allow defendant to testify before the Grand Jury under a "limited" waiver of immunity was within their discretionary authority. Therefore, defendant was not denied his statutory right to appear and testify before that body (CPL 190.50). Accordingly, the Grand Jury proceeding was not "defective" (CPL 210.20 [c]; 210.35 [4]).
Defendant's motion is denied.