People v. Feola, 75 N.Y.2d 610 (1990)
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A waiver of immunity before a grand jury is ineffective unless sworn to before the grand jury as explicitly required by CPL 190.45(2), and failure to comply strictly with this requirement renders any subsequent testimony immune from prosecution.
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Summary
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Feola, a member of the Ulster County Legislature, testified before a grand jury investigating contracts. Although he signed a waiver of immunity, he never swore to it before the grand jury. He was later indicted and convicted. The New York Court of Appeals reversed, holding that because Feola did not swear to the waiver as required by CPL 190.45(2), the waiver was ineffective, and his grand jury testimony rendered him immune from prosecution. The court rejected the argument of substantial compliance, emphasizing the need for strict adherence to the statutory requirements for waiving immunity.
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Facts
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Defendant Feola, a member of the Ulster County Legislature and President of Onteora Enterprises, Inc., was investigated by the Ulster County Grand Jury regarding contracts between the county and M&D Provisions Distributing Company (M&D). M&D was owned by Feola’s sister and operated out of Onteora’s plant. Feola, accompanied by his attorney, appeared before the Grand Jury at his request. Before testifying, the prosecutor informed Feola that the investigation concerned contracts and that he could testify only if he waived immunity. Feola stated he understood the waiver and was appearing voluntarily. The prosecutor presented a signed and notarized waiver of immunity, but Feola never swore to it before the Grand Jury.
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Procedural History
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After his testimony, Feola was indicted for violating General Municipal Law §§ 801 and 803. At trial, he moved to dismiss the indictment, arguing his waiver was invalid under CPL 190.45(2), thus granting him immunity under CPL 190.40. The trial court denied the motion, and Feola was convicted. The Appellate Division affirmed the conviction. The New York Court of Appeals reversed the Appellate Division’s decision.
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Issue(s)
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Whether a signed but unsworn waiver of immunity before a grand jury is effective under CPL 190.45(2), and if not, whether subsequent testimony grants the witness immunity from prosecution.
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Holding
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No, because CPL 190.45(2) explicitly requires the waiver to be sworn to before the grand jury to be effective. Because the waiver was ineffective, his subsequent testimony rendered him immune from prosecution.
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Court’s Reasoning
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The Court of Appeals emphasized the clear and unambiguous language of CPL 190.45(2), which states that a waiver of immunity is not effective