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The aforesaid search was in the first of the two indictments…. cont

The prosecution’s chief witness to the activities of the event was the young male prostitute, who testified that on the date of offense, after the two friends had driven him and another company to the man’s home for the purpose of having them take part, for a consideration, in deviate sexual conduct with two men, the offender engaged in anal intercourse with him. The man’s defense to the accusation that cast him in the role of a promoter of prostitution appears to have been to portray himself as a person whose uncontrollable sexual urges made him the easy dupe of his two friends, the real and sole promoters, who manipulated him so they could stage their activities in his home. Further, to establish that his role was so limited, he proposed to call all the other criminal participants in the events who were available as witnesses.

Examination of his ensuing offer of proof revealed that according to the attorney’s representations, the 15-year-old boy would have testified that, when the boys appeared at his door, the offender wanted nothing to do with them and was hesitant to admit them. The man’s attorney therefore advised the court that it would have countered the inference of promoting by testifying that the man acted only as patron. As to the other adult, whose wiretapped conversation with the offender was heavily relied on by the district attorney to try to prove the man’s soliciting and promoting, counsel assured the court that he expected that the witness would testify that he had intended to visit the man socially before he learned of his friends and the boys’ existence and that, to his knowledge too, his friend was never more than a patron.
Despite the assurances, when the man sought to call them at trial, each witness, appearing in chambers in the company of his own counsel, invoked his privilege against self incrimination. However, from the discussion that ensued, it soon became apparent that the protection the witnesses sought was not from disclosure of any past criminal activities but solely from the possibility that any testimony they would give on behalf of the man would precipitate their prosecution for perjury. All three of the prospective witnesses had testified previously.

Sources revealed that it is also well-settled law that one who is granted immunity in return for his testimony receives no license to swear falsely with impunity while under the protection of the immunity. However, in the case, the witnesses did not seek immunity for any false statements they might make at the man’s trial. Confronted with the prosecutor’s warning injunction that they be consistent above all else, they sought assurance that any misstatements or inconsistencies they may have expressed during the course of their prior testimony would not suddenly become prosecutable after their appearance on the man’s behalf. Robbery was not charged.

Consequently, the district attorney’s refusal to extend immunity, not to speak of the menacing terms in which he did so, could have served no purpose other than to permanently bind the witnesses to their previous sworn versions, accurate or not. By doing so, it impermissibly affected their meaningful exercise of their Fifth Amendment rights and insured their unavailability as witnesses of the man. As a result, the order of the appellate division is reversed and the case remitted to the county court for further proceedings.

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