New York Law Review

Tag: immunity

  • People v. Corrigan, 80 N.Y.2d 326 (1992): Scope of Immunity and Prosecutorial Misconduct Before Grand Jury

    People v. Corrigan, 80 N.Y.2d 326 (1992)

    A prosecutor’s mere possession and review of a defendant’s immunized statement during the defendant’s grand jury testimony does not automatically constitute an unconstitutional “use” of the statement requiring dismissal of the charges, absent a showing of actual prejudice or impairment of the grand jury proceeding’s integrity.

    Summary

    The case addresses whether a prosecutor’s possession and review of a police officer’s immunized statement during his grand jury testimony constituted a prohibited “use” of the statement, warranting dismissal of assault charges. The Court of Appeals held that while the practice was disfavored, it did not warrant dismissal because there was no indication that the prosecutor used the statement to elicit testimony, control the witness, or impair the integrity of the grand jury proceeding, and sufficient independent evidence existed to sustain the charges. This ruling emphasizes the necessity of demonstrating actual prejudice to justify dismissing charges based on potential prosecutorial misconduct before a grand jury.

    Facts

    Defendant, an off-duty police officer, was working security at a restaurant. He confronted a group of young men drinking alcohol, leading to an argument with one, Bihn Nguyen. After police arrived, the defendant allegedly grabbed Nguyen by the throat, bent him over a car trunk, and struck him with a flashlight. The Police Department conducted an internal investigation, obtaining a compelled statement from the defendant under threat of dismissal. Subsequently, the matter was presented to a Grand Jury.

    Procedural History

    The District Attorney filed an information charging the defendant with assault. The Town Court dismissed the information, concluding the prosecutor improperly used the defendant’s involuntary statement. The County Court affirmed, finding dismissal warranted despite the existence of other admissible proof. The Court of Appeals reversed the County Court’s order, reinstating the information and remitting the case for further proceedings.

    Issue(s)

    1. Whether the prosecutor’s possession and review of the defendant’s immunized statement during his Grand Jury testimony constituted a prohibited “use” of the statement under the Fifth Amendment and the New York Constitution.

    2. Whether, assuming such conduct constituted a prohibited “use,” dismissal of the information was the appropriate remedy.

    Holding

    1. No, because there was no showing that the prosecutor used the statement as a source of information, to control the witness, or that the defendant was aware of the prosecutor’s possession of the statement.

    2. No, because the defendant was not inhibited from exercising his right to testify, the integrity of the Grand Jury proceedings was not impaired, and ample independent evidence existed to sustain the charges.

    Court’s Reasoning

    The Court acknowledged that a statement made under threat of dismissal is automatically immunized. While the People bear the burden of proving that any evidence used was derived independently of the statement, the court found no evidence that the prosecutor used the statement as a source of information or to control the witness. The prosecutor’s questions were generally non-specific, and the defendant was given wide latitude in his testimony. CPL 210.35(5) allows dismissal only when the Grand Jury proceeding fails to conform to CPL 190 requirements, impairing its integrity and potentially prejudicing the defendant. Here, there was no indication that the defendant was aware of the prosecutor’s possession of the statement, and his testimony was not inhibited. The court cautioned against the practice of possessing immunized statements during Grand Jury presentations but held that dismissal was not warranted in this specific instance because sufficient independent evidence existed to sustain the charges. The court emphasized that “[a] defendant’s guarantee of immunity as well as his or her rights to testify before the Grand Jury must be scrupulously protected.”

  • People v. Shapiro, 50 N.Y.2d 747 (1980): Prosecutorial Discretion in Granting Immunity

    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.”

  • People v. Wolfson, 61 N.Y.2d 870 (1984): Enforceability of Informal Promises of Non-Prosecution

    People v. Wolfson, 61 N.Y.2d 870 (1984)

    An informal promise of non-prosecution, absent constitutional or statutory authorization, does not confer immunity from prosecution, although it might, in some circumstances, lead to the suppression of resulting statements as involuntary.

    Summary

    Defendants Wolfson and Dunbar appealed their convictions for criminal sale of marihuana. They argued that a prior informal promise of non-prosecution made during an internal investigation should bar their prosecution. The Court of Appeals held that such an informal promise does not confer immunity from prosecution, as immunity requires constitutional or statutory basis. The Court also rejected the claim that the Grand Jury proceeding was defective due to a technical violation regarding the Special Assistant District Attorney’s residency waiver. The Court reasoned that the failure to obtain the waiver did not negate the authority of the prosecutor. Finally, the court stated that the defendants’ guilty pleas waived any challenge to the sufficiency of the evidence before the Grand Jury.

    Facts

    Defendants Wolfson and Dunbar were convicted of criminal sale of marihuana in the fourth degree, based on guilty pleas. These pleas were entered after indictments against them. The defendants argued that the prosecution was barred because they had been given an informal promise that the “book would be closed” following an internal investigation of marihuana use by members of the Nassau County District Attorney’s staff.

    Procedural History

    The defendants were convicted in the trial court based on their guilty pleas. They appealed, arguing that the prosecution was barred by a prior promise of non-prosecution and that the Grand Jury proceeding was defective. The Appellate Division affirmed the convictions. The defendants then appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether an informal promise of non-prosecution made during an internal investigation bars a subsequent criminal prosecution.
    2. Whether the failure to obtain a waiver of nonresidence for a Special Assistant District Attorney, as required by the Nassau County Administrative Code, renders a Grand Jury proceeding defective.
    3. Whether a guilty plea waives the right to challenge the sufficiency of the evidence presented to the Grand Jury.

    Holding

    1. No, because immunity from prosecution requires a constitutional or statutory basis, and an informal promise does not meet this requirement.
    2. No, because the failure to obtain a residency waiver does not affect the authority or power of an appointed Special Assistant District Attorney to serve.
    3. Yes, because a guilty plea generally waives any challenge to the sufficiency of the evidence before the Grand Jury.

    Court’s Reasoning

    The Court of Appeals reasoned that immunity from prosecution can only be conferred either by the Constitution or as authorized by statute. The informal promise of non-prosecution, if it existed, could not confer immunity because it lacked such a basis. The court acknowledged that such a promise might, in some circumstances, entitle a defendant to the suppression of statements made as involuntary, according to CPL 60.45 (subd 2, par [b], cl [i]), but this was not dispositive here. Regarding the Grand Jury proceeding, the court distinguished the case from People v. Di Falco, where a lack of jurisdiction impaired the integrity of the Grand Jury. Here, the Special Assistant District Attorney had been appointed by the District Attorney and had taken the oath of office, meaning that, regardless of the unobtained residency waiver, the prosecutor had the actual authority to serve in the role and present the case to the Grand Jury. Finally, the court relied on the established precedent of People v. Kazmarick, stating that the defendants’ claims related to the sufficiency of the evidence before the Grand Jury, which were waived by their guilty pleas.

  • People v. Fischer, 47 N.Y.2d 1049 (1979): Sufficiency of Initial Warnings for Evasive Contempt Before a Grand Jury

    People v. Fischer, 47 N.Y.2d 1049 (1979)

    A Grand Jury witness who has been granted immunity and warned about evasive contempt need not be contemporaneously warned that their answers are evasive to be charged with criminal contempt, provided the initial warnings were adequate.

    Summary

    The case addresses whether a Grand Jury witness, granted immunity and warned about evasive contempt, requires subsequent real-time warnings during testimony to be charged with criminal contempt for evasive answers. The New York Court of Appeals held that contemporaneous warnings are not required if the initial warnings adequately informed the witness of their immunity and potential liability for perjury or evasive responses. The court emphasized that fundamental fairness requires informing the witness of their immunity but rejected a rule mandating repeated warnings during the testimony, provided the initial warning was sufficient and the questioning did not constitute a ‘contempt trap’.

    Facts

    Fischer, an auctioneer involved in selling property related to a matrimonial action, testified before a Grand Jury investigating corruption allegations within that action. He was granted immunity but warned about potential perjury or contempt charges for false or evasive answers. During his first appearance, the District Attorney explained the nature of the investigation and potential penalties for perjury or contempt, specifically defining evasive contempt. In a subsequent appearance, Fischer was questioned about a conversation concerning a judge’s relationship with a party in the matrimonial action. Finally, he was asked whether he had mentioned a kickback scheme involving the referee in the matrimonial action, to which he responded vaguely, claiming he couldn’t recall. He was subsequently indicted for criminal contempt for giving evasive answers.

    Procedural History

    The Supreme Court, New York County, dismissed the indictment, relying on a case requiring contemporaneous warnings for evasive contempt. The Appellate Division, First Department, reversed, holding that the prior warnings and repeated questioning sufficiently apprised Fischer of his vulnerability to a contempt charge. Fischer appealed to the New York Court of Appeals.

    Issue(s)

    Whether a Grand Jury witness, granted immunity and initially warned about potential contempt for evasive answers, must receive contemporaneous warnings during their testimony to be charged with criminal contempt for those evasive answers.

    Holding

    No, because the initial warnings regarding immunity and the consequences of evasive answers were sufficient to put the witness on notice of potential criminal liability, and the prosecutor’s questioning did not constitute a “contempt trap”.

    Court’s Reasoning

    The Court of Appeals held that fundamental fairness requires informing a Grand Jury witness of the extent of their immunity. However, it rejected the requirement of contemporaneous warnings for evasive contempt, distinguishing it from the requirements of summary contempt proceedings. The court emphasized that the initial warnings, coupled with the repeated questioning, were sufficient to inform Fischer of his potential liability. The court distinguished the case from scenarios where the prosecutor attempts to trap the witness. Here, the prosecutor carefully reframed and repeated the questions. The court referenced People v. Ianniello, noting that a contempt conviction was upheld even when the defendant was never brought before the court and directed to give a more responsive answer. The court stated that the witness should be informed that they will not be immune from prosecution for perjury if they lie, or for contempt if they refuse to answer or give evasive replies, but the prosecutor isn’t required to repeat the admonition every time the witness’ testimony becomes vague or evasive.

  • People v. Tomasello, 21 N.Y.2d 143 (1967): Perjury Prosecution of a Grand Jury Target

    21 N.Y.2d 143 (1967)

    A prospective defendant or target of a grand jury investigation is not immune from perjury prosecution for knowingly false testimony, even if compelled to testify, as the immunity protects against past crimes, not the act of perjury itself.

    Summary

    Tomasello, a target in a grand jury investigation into the theft of topsoil, was indicted for perjury after denying he received topsoil from Zara Contracting Company. He moved to dismiss the indictment, arguing his constitutional rights were violated because he was compelled to testify against himself. The lower courts agreed, but the Court of Appeals reversed, holding that while Tomasello’s compelled testimony grants him immunity from prosecution for substantive crimes related to the topsoil theft, it does not shield him from perjury if he lied under oath. The court reasoned that immunity is for past crimes, not a license to commit perjury during testimony.

    Facts

    The Attorney-General initiated an investigation into crimes related to public works projects. A grand jury in Suffolk County investigated Zara Contracting Company for allegedly stealing topsoil from a Long Island Expressway construction site. Alfred Tomasello was subpoenaed after evidence suggested he received building materials from Zara for private construction. Tomasello denied receiving topsoil or other materials from Zara.

    Procedural History

    The grand jury indicted Tomasello for first-degree perjury. Tomasello moved to dismiss the indictment, arguing his constitutional rights were violated. The Supreme Court granted the motion, dismissing the indictment. The Appellate Division affirmed, relying on prior case law. The Court of Appeals reversed the Appellate Division’s order and reinstated the indictment, but allowed Tomasello to renew his motion based on insufficient evidence before the grand jury.

    Issue(s)

    Whether a prospective defendant or target of a grand jury investigation is immune from indictment and prosecution for perjury if their testimony is found to be willfully false, despite the fact that their testimony was compelled and thus grants immunity from prosecution for substantive crimes based on that testimony?

    Holding

    No, because the constitutional privilege against self-incrimination protects against prosecution for past crimes, but does not provide a license to commit perjury; therefore, compelled testimony, while granting immunity from substantive crimes, does not shield a witness from perjury charges if the testimony is knowingly false.

    Court’s Reasoning

    The Court reasoned that automatic protection from prosecution for substantive crimes based on compelled testimony should not simultaneously immunize the witness from perjury if they knowingly lie. The court adopted the reasoning from Glickstein v. United States, stating, “it cannot be conceived that there is power to compel the giving of testimony where no right exists to require that the testimony shall be given under such circumstances, and safeguards as to compel it to be truthful…the immunity afforded by the constitutional guarantee relates to the past and does not endow the person who testifies with a license to commit perjury.” The Court emphasized that the privilege protects against compelled self-incrimination regarding past acts, not future acts of perjury committed during the testimony itself. The court quoted Wigmore on Evidence: “the perjured utterance is not ‘evidence’ or ‘testimony’ to a crime but is the very act of crime itself; the compulsion is not to testify falsely but to testify truly”. The Court concluded that allowing perjury to go unpunished would undermine justice. The court also addressed Tomasello’s other grounds for dismissal. It affirmed the Attorney-General’s authority to appear before the grand jury. Finally, the court remanded the case to allow Tomasello to challenge the sufficiency of the evidence supporting the perjury indictment.