New York Law Review

Tag: Waiver of Immunity

  • People v. Diaz, 29 N.Y.3d 1126 (2017): Defendant’s Right to Testify Before the Grand Jury and Waiver of Immunity

    People v. Diaz, 29 N.Y.3d 1126 (2017)

    A defendant’s statutory right to testify before a grand jury is violated when the prosecution demands an unaltered waiver of immunity that includes provisions beyond the statutory requirements of CPL 190.45.

    Summary

    The New York Court of Appeals held that the defendant’s right to testify before a grand jury was violated when the prosecution refused to allow him to testify after he signed a waiver of immunity with certain provisions struck out. The court found that the defendant had satisfied the statutory requirements for a waiver of immunity under CPL 190.45, which only requires a waiver of the privilege against self-incrimination. The prosecution’s insistence on an unaltered waiver, including additional provisions, was deemed an infringement upon the defendant’s right to testify. The court emphasized that the defendant only needed to meet the requirements of the statute, and nothing more, to make a valid written waiver of immunity.

    Facts

    The defendant, Diaz, was indicted on charges of attempted criminal possession of a weapon and other related offenses. Diaz served notice of his intent to testify before the grand jury. The prosecution provided him with a waiver of immunity form which, in addition to the statutorily required provisions, also contained three additional paragraphs relating to his right to counsel, the scope of questioning, and the use of his testimony. Diaz struck out those three additional provisions and signed the form. The Assistant District Attorney (ADA) informed Diaz that he would not be allowed to testify unless he signed the unaltered waiver. Diaz did not sign the unaltered form and was consequently not permitted to testify.

    Procedural History

    After a jury conviction, the trial court found the defendant guilty and dismissed the indictment. The Appellate Division vacated the conviction, finding the defendant was denied his right to testify before the grand jury. The People appealed this decision to the New York Court of Appeals.

    Issue(s)

    Whether a defendant’s statutory right to testify before a grand jury is violated when the prosecution requires an unaltered waiver of immunity containing provisions beyond those mandated by CPL 190.45?

    Holding

    Yes, because the defendant complied with the statutory requirements for a waiver of immunity, the prosecution’s insistence on additional, non-statutory terms violated his right to testify.

    Court’s Reasoning

    The Court of Appeals affirmed the Appellate Division’s decision. The court found that Diaz met the necessary requirements for a valid written waiver of immunity under CPL 190.45 when he signed the document, even after striking out the additional provisions. The court reasoned that CPL 190.45 is clear, straightforward, and concise in its requirements. The court referenced that a waiver of immunity requires only a written instrument waiving the privilege against self-incrimination. The additional provisions regarding the right to counsel, the scope of questioning, and the use of testimony were not required by the statute. The prosecution improperly demanded an unaltered waiver. The Court of Appeals reiterated that the defendant’s right to testify before the grand jury “must be scrupulously protected.”

    The court emphasized that the prosecutor was not authorized to impose any additional requirements. A valid waiver of immunity was established when Diaz agreed to waive his right to self-incrimination. The court stated, “When a defendant meets the waiver of immunity requirements of CPL 190.45, he or she must be permitted to testify.” The court noted that a waiver of immunity, per the statute, requires only a written instrument waiving the privilege against self-incrimination.

  • People v. Stewart, 92 N.Y.2d 963 (1998): Validity of Grand Jury Waiver of Immunity

    People v. Stewart, 92 N.Y.2d 963 (1998)

    A waiver of immunity before a grand jury is valid when the defendant signs a written waiver containing an oath in the presence of the grand jury, and the grand jury foreperson acknowledges the oath, satisfying the requirements of CPL 190.45(2).

    Summary

    Richard Stewart was charged with robbery and assault. He was informed of his right to testify before the grand jury if he waived immunity. Stewart signed a waiver of immunity in the grand jury’s presence, which included a sworn oath, and the foreperson acknowledged the oath. Subsequently indicted, Stewart moved to dismiss, arguing that the waiver was invalid because he hadn’t taken a separate oath affirming its contents. The trial court agreed and dismissed the indictment, but the Court of Appeals reversed, holding that signing the waiver containing the oath in the grand jury’s presence, with the foreperson’s acknowledgment, satisfied the statutory requirements for a valid waiver of immunity.

    Facts

    Richard Stewart was arraigned on felony charges of robbery and assault. The prosecutor notified Stewart of his right to testify before the grand jury, contingent on waiving immunity. Stewart expressed his intention to testify. He appeared before the grand jury with his attorney and was presented with an unexecuted waiver of immunity. The waiver contained a statement swearing to its terms, pursuant to CPL 190.45. Stewart signed the waiver in the presence of the grand jury and his attorney. The grand jury foreperson and Stewart’s attorney also signed the waiver, with the foreperson acknowledging the written oath. Stewart then testified, and an indictment was returned against him.

    Procedural History

    Stewart moved to dismiss the indictment, claiming he had been granted transactional immunity because his waiver was invalid. The trial court agreed, dismissing the indictment after a hearing. The Appellate Division affirmed. The New York Court of Appeals reversed the Appellate Division’s order.

    Issue(s)

    Whether a waiver of immunity is effective under CPL 190.45(2) when the defendant signs a written waiver containing an oath in the presence of the grand jury, and the grand jury foreperson acknowledges the oath, even if a separate testimonial oath as to the validity of the waiver’s contents is not administered.

    Holding

    Yes, because under CPL 190.45(2), the act of signing a waiver of immunity that contains a sworn oath, in the presence of the Grand Jury, and its acknowledgement by the Grand Jury foreperson satisfies the statutory requirement that the waiver be sworn to before the grand jury.

    Court’s Reasoning

    The Court of Appeals reasoned that CPL 190.45(2) requires both subscribing to and swearing to the waiver before the grand jury. Here, Stewart satisfied that requirement by signing the waiver that included the oath in the presence of the grand jury. The grand jury foreperson, authorized to administer oaths under CPL 190.25(2), acknowledged this act. The Court distinguished this case from People v. Higley, 70 N.Y.2d 624 (1987), where the waiver was executed outside the grand jury’s presence and not sworn to or ratified before it. In Stewart’s case, the signing of the waiver and the oath occurred within the grand jury’s presence and were acknowledged by its foreperson. The court held that no further action was required under CPL 190.45(2). The court emphasized the importance of adhering to statutory requirements but found that those requirements were met in this case. The present and unequivocal act of signing the waiver containing the oath, coupled with the foreperson’s acknowledgment, validated the waiver.

  • Ransom v. St. Regis Mohawk Education & Community Fund, 86 N.Y.2d 553 (1995): Tribal Sovereign Immunity and Waiver by Implication

    86 N.Y.2d 553 (1995)

    A general “sue and be sued” clause in a tribal corporation’s charter, referencing state law, does not constitute an explicit waiver of tribal sovereign immunity necessary to subject the tribe to the jurisdiction of state courts.

    Summary

    This case addresses whether a tribal social service agency, incorporated under the District of Columbia Nonprofit Corporation Act and qualified to do business in New York, waived its tribal sovereign immunity by including a “sue and be sued” clause in its charter. The New York Court of Appeals held that merely referencing the statutory authority to sue and be sued is not an explicit and unequivocal waiver of sovereign immunity, and thus, the tribal entity remains immune from suit in New York courts. This ruling reinforces the principle that waivers of tribal sovereign immunity must be clearly and expressly stated, not implied.

    Facts

    Four members of the St. Regis Mohawk Tribe, employed by the St. Regis Mohawk Education and Community Fund (Fund), were suspended or discharged. The Fund, a non-profit corporation organized under the District of Columbia Nonprofit Corporation Act, provides services to the St. Regis Mohawk Reservation. The employees claimed the Fund violated the Tribe’s employment policy by not following grievance procedures. The Fund’s articles of incorporation allow it to exercise powers granted under the D.C. act, including the power to sue and be sued. The directors of the Fund are also the elected Tribal Chiefs.

    Procedural History

    The employees initiated a CPLR article 78 proceeding challenging their dismissal. The Supreme Court initially rejected the Fund’s sovereign immunity defense and ordered reinstatement. The Appellate Division reversed and remitted for a determination of whether the Fund was an arm of the Tribe and if it enjoyed sovereign immunity. On remand, the Supreme Court found the Fund had waived its immunity. The Appellate Division again reversed, holding the Fund was an arm of the tribal government and that the generalized incorporation of corporate powers did not constitute an unequivocal waiver. The New York Court of Appeals then heard the case.

    Issue(s)

    Whether the inclusion of a “sue and be sued” clause, referencing the District of Columbia Nonprofit Corporation Act and New York’s Not-For-Profit Corporation Law, in the charter of a tribal social service agency constitutes an express and unequivocal waiver of tribal sovereign immunity, thereby subjecting the agency to the jurisdiction of New York courts.

    Holding

    No, because a waiver of tribal sovereign immunity must be unequivocally expressed and cannot be implied. The generalized incorporation of corporate powers, including the power to sue and be sued, does not satisfy this strict waiver standard.

    Court’s Reasoning

    The Court of Appeals reaffirmed that Indian tribes possess common-law sovereign immunity. This immunity extends to tribal sub-agencies and corporate entities created to further governmental objectives. The court emphasized the importance of preserving tribal resources and autonomy, citing Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978), and reiterating that a waiver of tribal sovereign immunity “cannot be implied but must be unequivocally expressed.”

    The court distinguished the present case from others where waivers were found. In Altheimer & Gray v. Sioux Mfg. Corp., 983 F.2d 803 (7th Cir. 1993), the tribe explicitly waived immunity in a tribal law and in the corporation’s charter regarding written contracts. In Rosebud Sioux Tribe v. Val-U Constr. Co., 50 F.3d 560 (8th Cir. 1995), the charter included a “sue and be sued” clause, coupled with an arbitration clause. Here, the Court found that the Fund’s charter merely recognized its capacity to enter courts, but the Tribe never explicitly stated it would waive immunity and submit to the jurisdiction of New York courts.

    The court reasoned that, similar to state waivers of Eleventh Amendment immunity, a “sue and be sued” clause only grants the entity the capacity to enter courts; it doesn’t automatically waive sovereign immunity. Referencing Howard v. Liberty Mem. Hosp., 752 F.Supp. 1074 (S.D. Ga. 1990), the court stated that the general powers provisions of corporation statutes are not self-executing. An express invocation of the power to sue and be sued, along with submission to a particular forum by official tribal action, is required.

    Regarding the individual respondents, the court found they were acting within the scope of their authority as tribal officials, even if they erroneously exercised their delegated duties. Therefore, they remained protected by the Fund’s sovereign immunity.

  • People v. Herbert, 22 N.Y.2d 601 (1968): Defining “Public Officer” for Waiver of Immunity

    People v. Herbert, 22 N.Y.2d 601 (1968)

    The term “public officer” in the New York Constitution, mandating forfeiture of office for refusing to waive immunity, extends beyond high-ranking officials to encompass any public employee with knowledge of wrongdoing in their area of official responsibility.

    Summary

    This case concerns whether a parking fee collector, who refused to waive immunity during a grand jury inquiry into his conduct in that role, could forfeit his subsequent position as Commissioner of Street Sanitation. The Court of Appeals held that the constitutional provision requiring forfeiture for refusing to waive immunity applies to any public employee with knowledge of wrongdoing, regardless of rank. The court reasoned that the purpose of the provision is to ensure accountability in public service, and this purpose would be undermined if lower-ranking employees could conceal wrongdoing with impunity.

    Facts

    The defendant, Herbert, served as Acting Head Parking Fee Collector and Parking Fee Collector for the City of Buffalo from 1954 to 1966.

    In January 1966, he was appointed Commissioner of Street Sanitation for the city.

    In March 1966, a grand jury investigated Herbert’s conduct in his prior parking fee collecting positions.

    Herbert was subpoenaed, informed of the inquiry, and asked to sign a waiver of immunity related to his parking fee offices, which he refused.

    Procedural History

    The People and the Attorney General brought an action to forfeit Herbert’s position as Commissioner of Sanitation under Article I, Section 6 of the New York Constitution.

    The Special Term and the Appellate Division ruled that Herbert’s prior positions were not “public offices” within the meaning of the constitutional provision.

    The suit for forfeiture was dismissed, and judgment was entered for Herbert.

    Issue(s)

    Whether the positions of Parking Fee Collector and Acting Parking Fee Collector constitute “public office” as the term is used in Section 6 of Article I of the New York Constitution, such that refusal to waive immunity during a grand jury investigation into those offices could lead to forfeiture of a subsequently held public office.

    Whether compelling forfeiture of office for refusing to waive immunity violates the Fifth Amendment protection against self-incrimination under the U.S. Constitution.

    Holding

    Yes, because the constitutional policy requires any person in public service to disclose knowledge of criminal wrongdoing in that place, regardless of rank, or risk their official position.

    No, because the court determined that the state has a right to discharge a public official who invokes the privilege against self-incrimination when asked questions specifically, directly, and narrowly relating to the performance of his official duties.

    Court’s Reasoning

    The court reasoned that a narrow interpretation of “public officer” would create an illogical and harmful distinction, allowing lower-ranking employees to conceal wrongdoing while holding higher-ranking officials accountable.

    The court emphasized that the purpose of the constitutional provision is to impose a duty to disclose knowledge of crimes in the public service, a duty that applies equally to officials of high and low degree. The court found this to be the intent of the 1938 Constitutional Convention.

    The court dismissed the argument that subsequent amendments to the provision indicated a legislative intent to distinguish between different levels of public employment. The court cited the legislative history of those amendments, which focused on closing loopholes in the original provision rather than creating new distinctions.

    Regarding the Fifth Amendment issue, the court acknowledged the Supreme Court’s decisions in Spevack v. Klein and Garrity v. New Jersey, which addressed the privilege against self-incrimination. However, the court distinguished those cases, noting that they did not directly address the situation of a public official refusing to answer questions related to their public employment. The court quoted from Spevack, noting the express reservation of judgment on the question of whether a policeman could be discharged for refusing to testify about his conduct as a police officer.

    The court concluded that the state has a right to discharge a public official who refuses to testify about their public employment, and that this right does not create an inescapable conflict with the Fifth Amendment.

    The court stated the contemporary view of the 1949 amendment: “that a public official refusing to testify before a grand jury * * * under waiver of immunity, should be removed from office” but that People v. Harris “has disclosed a loophole” which it was suggested be corrected “to prevent avoidance of the clear intent” of the 1938 amendment.

  • People v. Goldman, 21 N.Y.2d 152 (1967): Perjury Prosecution After Compelled Testimony

    People v. Goldman, 21 N.Y.2d 152 (1967)

    A public officer who is compelled to testify before a grand jury under threat of removal from office can be prosecuted for perjury if their testimony is intentionally false, even if the compelled waiver of immunity would render the testimony inadmissible in a prosecution for a substantive crime.

    Summary

    Goldman, a former New York City police officer, was convicted of perjury for false statements he made before a grand jury investigating bribery. Goldman had signed a waiver of immunity under threat of losing his job, and he subsequently denied knowing a gambler named Johnson, despite photographic evidence to the contrary. The New York Court of Appeals affirmed the conviction, holding that while the compelled waiver might prevent prosecution for substantive crimes, it does not give the officer a license to lie under oath. The court reasoned that compelling truthful testimony serves a critical public interest, and perjury sanctions are necessary to enforce that requirement. This case clarifies the limits of Garrity v. New Jersey in the context of perjury prosecutions.

    Facts

    In 1964, Lewis Goldman, a New York City police officer, testified before a grand jury investigating bribery related to gambling. Prior to his testimony, Goldman signed a limited waiver of immunity, compelled by Section 1123 of the New York City Charter, which mandated termination for refusing to waive immunity. During his testimony, Goldman denied knowing a gambler named “Grumpy” Johnson and denied receiving anything from him in August 1960. However, a hidden police camera had photographed Goldman receiving something from Johnson on that date. At the grand jury, Goldman was shown the photograph and conceded the person looked like him, but still denied knowing Johnson or receiving anything from him.

    Procedural History

    Goldman was indicted for perjury based on his denials before the grand jury. He was convicted after a jury trial in the Supreme Court, New York County, and sentenced to a prison term. The Appellate Division, First Department, affirmed the conviction without opinion. Goldman then appealed to the New York Court of Appeals.

    Issue(s)

    Whether a public officer, compelled to testify before a grand jury under threat of removal from office, can be prosecuted for perjury based on false statements made during that testimony, when the waiver of immunity may have been coerced?

    Holding

    Yes, because compelling testimony from a public officer serves a critical public interest and the threat of perjury sanctions is necessary to ensure that the testimony is truthful, and because the right against self-incrimination does not protect against the commission of a crime (perjury) during the giving of testimony.

    Court’s Reasoning

    The Court of Appeals distinguished this case from Garrity v. New Jersey, which held that statements obtained under threat of removal from office cannot be used in subsequent criminal prosecutions. The court reasoned that Garrity addressed the use of compelled testimony in prosecuting substantive crimes, whereas Goldman was prosecuted for the act of perjury itself. Citing Matter of Gardner v. Broderick, the court affirmed that a public officer may be compelled to testify, even under threat of removal, and that refusal to testify constitutes insubordination. The court reasoned that to allow the officer to lie with impunity would render the compulsion to testify meaningless. The court drew an analogy to witnesses granted immunity from prosecution for substantive crimes, who are still subject to perjury charges for false statements. The court quoted Glickstein v. United States, stating that it is “impossible in reason to conceive that Congress commanded the giving of testimony, and at the same time intended that false testimony might be given with impunity”. The court also found that Goldman’s denials before the grand jury were clear and unequivocal, and that the delay in bringing him before the grand jury was a matter for the jury to consider, which they did. The court concluded that the passage of time did not excuse his outright false statements, because the jury chose not to believe that it had clouded the defendant’s memory. Ultimately, the court decided that the importance of extracting truthful testimony from public officers outweighs concerns about coerced waivers of immunity when the prosecution is for the crime of perjury itself. Therefore, the judgement was affirmed.

  • Matter of Carucci, 22 N.Y.2d 363 (1968): Corporate Disqualification for Officer’s Refusal to Waive Immunity

    Matter of Carucci, 22 N.Y.2d 363 (1968)

    A corporation can be disqualified from bidding on public contracts when its officer refuses to waive immunity before a grand jury, even if the officer resigns shortly before the appearance, especially if the resignation appears designed to avoid the statutory disqualification.

    Summary

    Carucci sought to nullify the New York City Housing Authority’s decision to disqualify it from bidding on future contracts because its former president refused to sign a waiver of immunity before a grand jury investigating bid-rigging, as mandated by Public Authorities Law § 2601. The Court of Appeals upheld the disqualification, finding the statute constitutional and applicable even if the officer resigned shortly before the grand jury appearance. The court reasoned that allowing such resignations to circumvent the statute would undermine its purpose, and the corporation’s remedy was to seek removal of the disqualification under Public Authorities Law § 2603.

    Facts

    The New York City Housing Authority disqualified Carucci, a corporation, from bidding on future contracts.
    The disqualification was based on Public Authorities Law § 2601.
    Carucci’s former president appeared before a grand jury investigating bid-rigging.
    The former president refused to sign a waiver of immunity.
    Carucci argued that because its officer resigned before the grand jury appearance, the disqualification should not apply.

    Procedural History

    The lower court upheld the Housing Authority’s decision.
    The Appellate Division affirmed the lower court’s ruling.
    Carucci appealed to the New York Court of Appeals.

    Issue(s)

    Whether Public Authorities Law § 2601 is constitutional.
    Whether the disqualification imposed on Carucci is valid, considering its officer resigned before refusing to sign the waiver of immunity.
    Whether a resignation tendered to avoid statutory disqualification changes the applicability of the law.

    Holding

    Yes, Public Authorities Law § 2601 is constitutional because it serves a legitimate public interest in preventing corruption in public contracting.
    Yes, the disqualification is valid because the officer’s resignation, occurring almost simultaneously with the refusal to waive immunity, did not negate the applicability of the statute. The court reasoned that allowing resignations to circumvent the law would undermine its purpose.

    Court’s Reasoning

    The court relied on its decision in Matter of Gardner v. Broderick, decided the same day, which upheld the constitutionality of similar statutes.
    The court emphasized that the timing of the officer’s resignation was critical. If the resignation occurred almost simultaneously with the refusal to sign the waiver or was clearly intended to avoid the statutory disqualification, the officer’s actions would still be attributed to the corporation.
    The court recognized that the statute might penalize cooperative corporations but noted that Public Authorities Law § 2603 provided a procedure for removing the disqualification under such circumstances, representing the appellant’s exclusive remedy.
    The court stated, “Where the termination of the relationship of the individual officer with the corporation occurs almost contemporaneously with his refusal to sign a waiver of immunity or where it is obvious that the resignation was tendered and accepted solely for the purpose of avoiding the statutory disqualification, the person so resigning or otherwise departing shall be deemed to have acted in his capacity as a corporate officer when he refused to sign the waiver.”
    The court acknowledged that the statute may, at times, “operate to penalize a corporation which had severed its connection with the recalcitrant officer and which has otherwise been co-operative”, but affirmed that the legislatively prescribed remedy was the procedure outlined in Public Authorities Law § 2603 to remove the disqualification.