Defendant Should Have Been Allowed to Testify Before the Grand Jury

The Fourth Department reversed the trial court and dismissed the indictment (without prejudice) because the defendant was deprived of his right to testify before the grand jury. The defendant gave notice of his intent to testify and appeared at the right time and place. The defendant signed a waiver of immunity but deleted three paragraphs from the document.  The Fourth Department determined the waiver was sufficient even with the deletions:

CPL 190.50 (5) provides that, if a defendant serves upon the People a notice of his intent to testify before the grand jury, appears at the appropriate time and place, and signs and submits to the grand jury “a waiver of immunity pursuant to [CPL] 190.45,” the defendant “must be permitted to testify before the grand jury” (CPL 190.50 [5] [b]; see CPL 190.50 [5] [a]).  In the event that the defendant complies with those procedures and is thereafter not permitted to testify, the appropriate remedy is dismissal of the indictment (see CPL 190.50 [5] [c]).  The parties do not dispute that defendant complied with the first two requirements of the statute. The only dispute is whether defendant signed “a waiver of immunity pursuant to section 190.45” (CPL 190.50 [5] [b]).  CPL 190.45 (1) provides that a waiver of immunity “is a written instrument” in which a person who is to testify before the grand jury stipulates that he or she “waives [the] privilege against self-incrimination and any possible or prospective immunity to which he [or she] would otherwise become entitled, pursuant to [CPL] 190.40, as a result of giving evidence in such proceeding.”  Here, the paragraphs in the waiver of immunity form that defendant left intact stated that defendant waived his privilege against self-incrimination and any immunity to which he would otherwise be entitled pursuant to CPL 190.40.  Thus, defendant signed a waiver of immunity form that complied with the requirements of CPL 190.45 (1) and was therefore required to be permitted to testify before the grand jury (see CPL 190.50 [5] [b]).  It is well settled that a defendant’s statutory right to testify before the grand jury “ ‘must be scrupulously protected’ ” … . People v Brumfield, 851, 4th Dept 9-27-13