50 N.Y.2d 747 (1980)

A prosecutor’s discretion to grant immunity is subject to review for abuse, but the mere failure to grant immunity to a defense witness, without evidence of bad faith or intimidation, does not constitute such abuse.

Summary

The New York Court of Appeals addressed whether a prosecutor abused their discretion by not granting immunity to a defense witness in a rape trial. The defendant argued that the prosecutor’s refusal to grant immunity and a private conversation with the witness violated his right to present a defense. The Court of Appeals held that, absent evidence of bad faith or intimidation by the prosecutor, there was no abuse of discretion. The court reversed the Appellate Division’s decision and remitted the case for consideration of other issues.

Facts

The defendant was convicted of rape. The evidence against him included the victim’s testimony and expert testimony regarding the presence of sperm on her underwear. The defendant sought to call his brother-in-law, William Blake, to testify about his sexual relations with the victim around the time of the crime. Blake, on advice of counsel, refused to testify, citing potential self-incrimination. The prosecutor declined to seek immunity for Blake. The prosecutor had a private conversation with Blake before he was called to testify, against the advice of Blake’s counsel.

Procedural History

The defendant was convicted of first-degree rape. The Appellate Division reversed the conviction, finding that the prosecutor should have requested immunity for the defense witness. The prosecution appealed to the New York Court of Appeals.

Issue(s)

1. Whether the prosecutor abused their discretion by refusing to request immunity for the defendant’s proposed witness.
2. Whether the prosecutor’s private conversation with the witness, in violation of the witness’s right to counsel, constituted an interference with the defendant’s right to present a defense.

Holding

1. No, because there was no evidence of bad faith or intimidation on the part of the prosecutor.
2. No, because the violation of the witness’s right to counsel, without evidence of intimidation or coercion, did not constitute an interference with the defendant’s right to present a defense.

Court’s Reasoning

The Court of Appeals reasoned that a prosecutor’s discretion to grant immunity is subject to review for abuse. Such abuse can be found when it is used to prevent a defendant’s access to a police informant or when the prosecutor builds their case with immunized witnesses while denying the defendant a similar opportunity, as was seen in People v. Adams, 53 N.Y.2d 241 (1981). The court noted that the record did not demonstrate bad faith on the prosecutor’s part. The absence of charges against the witness regarding the subject of the proposed testimony does not establish bad faith. The court did not presume overreaching from the prosecutor’s private discussion with the witness, particularly given that the record showed no intimidation or coercion. Although the prosecutor violated Blake’s right to counsel, this did not constitute interference with the defendant’s right to present a defense. The court stated, “Though a prosecutor possesses the discretion to determine when to immunize a witness, this discretion is subject to review for abuse where, for example, it is exercised to prevent a defendant’s access to a police informant active in the crime or the prosecutor ‘builds his case with immunized witnesses but denies the defendant a similar opportunity or affirmatively threatens the defendant’s witnesses with prosecution for peijury if they give evidence favorable to the defense’”. The court also addressed the trial court’s instruction regarding a “minor variance” in the time of the offense as charged in the indictment, and found no reversible error there either, noting that “The precise moment of a rape is not a material element of the crime.”