Issue: Can the prosecution force a defendant to waive immunity in a form of their choosing, rather than the terms of C.P.L. § 190.45(1), before permitting him to testify in the grand jury?

 

Answer:  No (says the unanimous Court).

 

Facts: Defendant served timely notice of his intent to testify in the grand jury and appeared at the time specified to testify.  He refused, however, to sign the immunity form presented by the prosecutor because the form contained provisions that went beyond those set forth in C.P.L. § 190.45(1).

 

That statute provides that the waiver form should “stipulat[e] that he waives his privilege against self-incrimination and any possible or prospective immunity to which he would otherwise become entitled, pursuant to section 190.40 . . . .”

 

The prosecution added a paragraph saying the defendant had a right to talk to a lawyer before signing the waiver and before testifying.  The prosecution also included a paragraph saying that defendant understands “that the possible questioning before the Grand Jury will not be limited to any specific subjects, matters or areas of conduct.”  And, they added that the defendant was consenting to the use against him of any testimony or evidence he presented to the grand jury.

 

When the defendant refused to sign the prosecution’s form, he was not permitted to testify before the grand jury.  Defendant was then indicted and convicted at trial.

 

Finding:  Noting that the defendant’s statutory right to testify before the grand jury “must be scrupulously protected,” the Court found that the prosecution violated the “clear, straightforward and concise” statute by adding provisions in addition to the ones explicitly set forth.

 

CAL observes:  To the Court, this appeared to be a straightforward case of statutory construction.  Notably, the provisions the prosecution sought to add appear to be technically correct and contain information important for a defendant to understand, even if not set forth in the statute.  But see People v. Smith, 87 N.Y.2d 715 (1996) (finding that a defendant retains his Fifth Amendment rights regarding unrelated pending charges when testifying in the grand jury).  The Court seemed uninterested in those policy arguments in face of the plain statutory language.

 

The Court has not always been so protective of a defendant’s right to  testify in the grand jury.  In People v. Wiggins, 89 N.Y.2d 872 (1996), the Court held that defense counsel who arrived at the grand jury hours after the defendant’s scheduled testimony effectively waived his client’s right to testify before the grand jury and was not ineffective in doing so, despite the statutory language that reserves that decision for the defendant.  Few decisions irk our clients as much as Wiggins.