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Defendant Files Motion to Dismiss Due to Transactional Immunity


In 1980, the district attorney summons a grand jury to investigate allegations concerning a gas company. In connection with that investigation, the district attorney issued a subpoena directing the company’s president, to present to the grand jury numerous books and records of the company.

In addition,a New York Criminal Lawyer said the grand jury issued a subpoena directing the president to appear and give testimony. Consequently, the president appeared and testified to the company’s sales volume, his knowledge of that volume, his involvement in the company’s operation and his knowledge of about the financial situation.

The attorney-general secured charges against the president charging him with one count of grand larceny in the second degree (sales tax evasion) and sixteen counts of offering a false instrument for filing in the first degree (false sales tax returns).

The president moved to dismiss the charges on the ground that his testimony had conferred upon him immunity from prosecution on the transactions charged in the indictment.

In support of the motion to dismiss on the ground of transactional immunity, the president also argued that the amount of sales tax due by the company can be easily calculated by taking the company’s gasoline volume and multiplying it by the then prevailing gasoline prices. A Long Island Criminal Lawyer said the testimony on volume of gasoline sold for all practical purposes is testimony on sales tax due.

In opposition to the motion, the attorney-general argued, that neither the president nor his corporation was a target of the investigation conducted by the district attorney, that he did not learn of the president’s testimony and his investigation was resulted from another charges and did not arise out of, or flow from, the prior investigation by the district attorney.

With regard to the substance of the president’s grand jury testimony, the attorney-general also argued that his answers before the grand jury were introductory and general in nature with no evidentiary value.

Consequently, after both sides had been heard, the special term denied the president’s motion to dismiss the charges. As a result, the claim of transactional immunity is properly cognizable by way of a proceeding in the nature of prohibition.

With regard to the crime of offering a false instrument for filing in the first degree, it would be present upon the City of New York to prove that even assuming the sales tax returns were false, the president was sufficiently involved in the operation of the company to know they were false. With that matter, it is noted that there is no evidence that the president prepared the sales tax returns in question and his signature does not appear on all the returns. Moreover, according to a report prepared by the prosecution’s handwriting expert, it appears that someone else signed the president’s name on many of the returns on which the president’s signature does appear. Under the said situation, the evidence of the president’s knowledge and involvement in the company’s affairs, including knowledge of any financial difficulties experienced by the company, would be crucial in demonstrating that the president knew that the returns were false and that he had a reason for submitting false returns.

A New York Sex Crimes Lawyer said the president also moves to stay all proceedings in an action however; the motion is dismissed as academic. The president’s application for a court order prohibiting the respondent from trying him is granted and the motion for a stay is also dismissed as academic.

Based on records, the case should again serve as a reminder to law enforcement officials of the consequences of calling a witness before a grand jury without obtaining a waiver of immunity. In the absence of such a waiver, the responses 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.

There are certain situations that we are caught unaware of it usually happens at work, when we give our trust to someone to do a particular job for us. Sometimes, it can give us much trouble and even legal problems. If you want the legal service of the New York City Criminal Attorneys or NYC White Collar Crime Lawyers, you can visit and/ or drop by the office of Stephen Bilkis and Associates

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