Posted On: July 13, 2013 by Stephen Bilkis

Limited waiver of immunity is invoked

Defendant was charged, in a felony complaint, inter alia, with Robbery in the first Degree and Criminal Possession of a Weapon in the Second Degree. Thereafter, upon learning that the People were about to present evidence to a grand jury, defendant gave notice of his intent to appear and testify before that body. Defendant's attorney sent a handwritten letter to the People, confirming an earlier conversation, stating that since the People were presenting only the weapon charge, defendant requests that he be permitted to sign a waiver of immunity only as to this charge. Defense counsel also asked for a judicial ruling if the People failed to grant this request. Later, the People sent a letter to defense counsel stating that, in confirmation of an earlier conversation, it was understood that defendant did not wish to testify if only the weapon charge was presented. Accordingly, only this charge was presented to the grand jury and an indictment was voted charging defendant with Criminal Possession of a Weapon in the Third Degree.

A Kings County criminal attorney said that the People maintain that defense counsel's letter misconstrued their initial oral conversation and that the parties had a second oral conversation after counsel's letter where they resolved their misunderstanding. The People further contend that their letter reflected the agreement reached at this subsequent conversation. Defendant, however, does not admit that any second conversation occurred. Rather, defendant asserts that the People's letter was written in response to their initial conversation and incorrectly stated defendant's position.

The issue to be resolved in this case is whether a defendant is entitled, as a matter of right, to testify under a "limited" waiver of immunity 2 is subject to divergent views by nisi prius courts.
In a case law, the court ruled that defendant was entitled to execute a waiver of immunity as to an attempted assault charge and retain immunity as to a grand larceny charge,

notwithstanding the prosecutor's insistence on a general waiver of immunity. The court reasoned that by testifying under a general waiver of immunity, defendant would be denied his Fifth Amendment privilege against self-incrimination, since he could be compelled to answer incriminatory questions regarding the grand larceny charge without the protection of immunity. On the other hand, in another case, the court ruled that the prosecutor has discretion to determine whether to grant or deny a request for a "limited" waiver of immunity. The court then reviewed the prosecutor's decision not to agree to a "limited" waiver and found no abuse of that discretion.

The court declines to follow a ruling to the extent that it implies that a defendant may, without a showing of need, unilaterally avail himself of a "limited" waiver of immunity. 3; and likewise disagrees with another case to the extent that it indicates that a prosecutor's immunity decision before the grand jury are always reviewable for abuse of discretion.

CPL 190.45, subdivision 4, provides that a witness may testify under a "limited" waiver of immunity "upon a written agreement with the district attorney." This requires prosecutorial consent.

In the case at bar, accepting defendant's version of the events, the People declined to consent to such an agreement. Given the explicit statutory language, this decision was within their discretionary power.

While in the trial context, the prosecutor's immunity decisions are subject to a restricted review under a due process analysis, different concerns are present at a grand jury proceeding. In the trial situation, due process requires that immunity decisions be balanced against defendant's constitutional right to present a defense. On the other hand, the grand jury proceeding is not adversarial in nature. Defendant does not have a constitutional right to present evidence to the grand jury, nor does a defendant have a constitutional right to confront witnesses before the grand jury. Defendant also does not have a constitutional right to testify before a grand jury. Thus, there is no constitutional right of defendant to balance against the district attorney's discretion in granting or denying immunity before the grand jury. There is a statutory right to appear and testify before the grand jury. Further, unlike the petit jury, "Grand Jury is not ... charged with the ultimate responsibility of determining the guilt or innocence of the accused", and the trial's concern of ascertaining the truth is not as predominant. Therefore, the main justifications for reviewing the prosecutor's conduct in the area of immunity at trial are not present in the grand jury context.

Assuming arguendo, however, that there are times when immunity decisions at grand jury proceedings are reviewable for abuse of discretion, this case is clearly not one of them. In a case, the Court of Appeals held that to oppose a motion seeking to consolidate indictments charging two separate criminal transactions, a defendant wishing to testify as to one criminal transaction but not the other must make "a convincing showing that he has both important testimony to give concerning one count and strong need to refrain from testifying on the other". Since the consolidation issue arises at trial where the constitutional rights to testify, to confront witnesses against a defendant and to present evidence are more significant than at the grand jury, this court would adopt the Lane test as the minimal showing required of a defendant to challenge the prosecutor's immunity discretion before the grand jury.
Here, defendant has not satisfied this test. His conclusory assertions of his need to testify regarding his alleged innocent possession of the weapon and to remain silent on the robbery charge is insufficient to meet this test. Therefore, this court will not review the People's decision for abuse of discretion.

The People's decision not to allow defendant to testify before the grand jury under a "limited" waiver of immunity was within their discretionary authority. Therefore, defendant was not denied his statutory right to appear and testify before that body. Accordingly, the grand jury proceeding was not "defective".

Criminal cases, by reason of its sensitivity should be entrusted to skilled lawyers like us here in Stephen Bilkis and Associates. Call us now, our Kings County Criminal lawyers are always ready to give you advice in your predicaments.