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The court also noted that a high burden is placed on the action to establish non-responsiveness


A man has been charged with grand larceny in the second degree and attempted assault in the second degree. The man is accused of attempting to cause physical injury to a peace officer with intent to prevent the said officer from performing his lawful duty.

The man was then arraigned on those charges at which time he was served with a notice of impending grand jury proceeding. The man thereafter advised the district attorney of his desire to testify.

Subsequently, the man and his attorneys appeared at the place and time specified in the notice of presentment. But, a dispute arose between the district attorney and the man’s attorney as to whether the man would be permitted to testify. The entire discussion was recorded outside the presence of the grand jury.

The man, through his criminal attorney, has made a request that the grand jury hear his two charges under separate presentations and separate grand jury numbers. As a result of proposed offer of proof, namely, that the man specifically wanted to exercise his right to remain silent on the grand larceny charge and he indicated he had important testimony and that he was actually present on the attempted assault in the second degree.

The court stated that before they will allow the man to testify, they are requiring him to complete a general waiver of immunity.

The question is whether the man, who is charged with two separate and distinct crimes, occurring ten days apart from each other, and who desires to testify as to one incident, but not the other, must sign a general waiver of immunity before he is permitted to exercise his right to testify.

The criminal court concludes that the man’s appearance as a witness is governed by law.

The opponent also acknowledged the man’s right to appear. However it is their position that the said right is expressly conditioned on the execution and submission of a waiver of immunity prior to testifying.

The court stated that the man’s case should again serve as a reminder to law enforcement officials of the consequences of calling a witness without obtaining a waiver of immunity. Sources revealed that in the absence of such waiver, the response of the witness to questions posed by the prosecutor may clothe the witness with immunity from prosecution for any transaction concerning which he gave testimony.

In the man’s case, the man clearly invoked the privilege as to the grand larceny charge and intends to offer no testimony as to the said matter. The man however, did desire to testify as to the separate attempted assault charge and was willing to execute and submit a waiver of immunity as to the said charge.

Subsequently, the district attorney agreed to present the charges as two separate indictments, beginning with the attempted assault. However, the prosecutor, while stating that he had no intention of expanding the questioning beyond the scope of the attempted assault, demanded as a precondition to any testimony that the man will sign a general waiver of immunity for any and all crimes including the grand larceny and any other potential crime there could be, testimony about that he could be unaware of at that time.

Sources revealed that the district attorney’s desire for a general waiver was addressed to the potential occurrence of the man’s testimonials as to the grand larceny and thereby the man would open the door to full cross examination as to that charge without conferring immunity.

In addition, the practical application of the district attorney’s position is to place the man in a position where in order to testify as to the attempted assault, to which he has a legal right, he must waive immunity as to the grand larceny charge. The criminal court further stated that if he still insisted upon invoking the privilege, he thereafter would face contempt charges upon his refusal to testify as to the grand larceny.

Based on records, the testimony of the man could subsequently be utilized by the prosecution as part of the direct case upon the trial. But, the man’s attorney correctly objected to the district attorney’s interpretation of the various controlling statutes, as the legal advisor of the grand jury, as to whether or not the testimony by the man opens the door to the grand larceny charge.

The criminal court stated that when an offender, who testifies before a grand jury, and in his opening statement before that body prior to being subjected to examination by the opponent, attempts to interject testimony of his conduct or actions outside of the scope of the present inquiry to which he has waived immunity, such evidence is unreasonably given or volunteered.

The court further stated that the possibility of unintended immunity can therefore only arise upon questioning from the district attorney which is not limited to the inquiry in question. Moreover, if the questioning is limited in scope and pertinent to the inquiry, non-responsive or bad faith answers by the offender will not be the basis for transactional immunity from the trial.

The court also noted that a high burden is placed on the action to establish non-responsiveness. However the comments from the appellate division with regards to the standard of strict legal adherence and the connected problems for the unwary are important to the determination.

Sources revealed that the constitutional privilege and the benefits of the law do not depend on the attitude or intentions of the prosecutor. Neither do they depend on the effect of the witness’ testimony in exposing him, without more, to conviction for the commission of a crime. Possibly, as a result of the privilege and the plain language of the legal protection, a heightened sense of caution on the part of the prosecutor is commended before witnesses are examined, lest the witness receive transactional immunity through his testimony from liability for the crime under investigation.

Nevertheless, it is the decision determined by the legislature, after presumably balancing the detriments to the community with the rights of the individual in maintaining constitutional liberty.

Since the man refused to sign the said waiver of immunity, the court stated that he properly brought the matter, instead of seeking a prior judicial authoritative ruling on the scope of his immunity, since the legal advisor to the grand jury, in the first instance, is the district attorney.

As to the first count of the indictment, the court found that the evidence submitted to the grand jury, while of a circumstantial nature, was legally sufficient to support the charge of grand larceny in the second degree.

Consequently, the court ordered that the motion by the man to dismiss the indictment is granted only to the extent that count two of the said indictment, charging the man with attempted assault in the second degree, is dismissed upon the condition that within ten days after service of the order upon the man’s attorney, the man will execute the limited waiver of immunity as provided by law for an appearance before the grand jury and so appears and testifies. It is further ordered that the evidence submitted in support of count one, charging the man with grand larceny in the second degree is legally sufficient to support the charges.

It is difficult for any parent or family member to see a love one suffering from wrongful accusation. Whenever you want to seek legal assistance, you can have the help of the Suffolk County Criminal Attorney. You can also ask guidance from the Suffolk County Grand Larceny Lawyer at Stephen Bilkis and Associates office.

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