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Defendant’s Right To Testify At The Grand Jury: Must Serve Notice On The Prosecution


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People v. Brumfield

2015 NY Slip Op 01377

New York Court of Appeals

Decided on February 17, 2015

Blog by: Stephen N. Preziosi Esq., Criminal Appeals Lawyer

The Court of Appeals reaffirms a defendant’s right to testify before a grand jury by narrowly construing the statutory waiver of immunity requirements provided by CPL 190.45.

Issue: Whether defendant was denied his right to testify before the grand jury as a matter of law where he strictly complied with the third requirement of signing a waiver of immunity pursuant to Criminal Procedure Law § 190.45?

Summary: Defendant appealed from a judgment convicting him, upon a jury verdict, of attempted criminal possession of a weapon in the second degree (Penal Law §§ 110.00, 265.03[3]), attempted criminal possession of a weapon in the third degree (Penal Law §§ 110.00, 265.02[1]), obstructing governmental administration in the second degree (Penal Law § 195.05), and resisting arrest (Penal Law § 205.30). Among other things, he claimed that the indictment should have been dismissed because was denied his right to testify before the grand jury. The Appellate Division, Fourth Department agreed and reversed the judgment of conviction finding that, pursuant to Criminal Procedure Law § 190.50(5)(b), defendant (a) served the People with a notice requesting appearance before the grand jury; (b) appeared at the appropriate time and place; and (c) signed a waiver of immunity as statutorily required by Criminal Procedure Law § 190.45. The People appealed on the narrow legal question of whether a defendant could be denied the right to testify before a grand jury where he or she refuses to waive rights other than those statutorily required by the statute. The Court of Appeals affirmed the Appellate Division, Fourth Department’s decision reversing the judgment of conviction.

See Also: Searches Incident To An Arrest

Holding: The Court of Appeals held that a defendant meets the waiver of immunity requirements by strictly complying with the express terms of Criminal Procedure Law § 190.45.

Facts: The People presented defendant with a waiver of immunity form which included the provision that he waives his privilege against self-incrimination and any immunity to which he would otherwise be entitled as required by Criminal Procedure Law § 190.45. However, it also included three additional provisions which are not required under the statute. The first concerned defendant’s right to talk to a lawyer before deciding whether to sign the waiver and testifying. The second provided that defendant understands “that the possible questioning before the Grand Jury will not be limited to any specific subjects, matters or areas of conduct.” The third stated that defendant consented and agreed to the use against him of any testimony given by him before the Grand Jury “or evidence hereby produced by [him] upon any investigation, hearing, trial, prosecution or proceeding.” Defendant signed the form, but he struck out the three additional provisions not required by Criminal Procedure Law § 190.45. The Assistant District Attorney refused to let defendant testify at the Grand Jury.

Legal Analysis: The Court of Appeals first looked to Criminal Procedure Law § 190.50 (5) which provides that a defendant must be permitted to testify before a grand jury if he serves upon the People a notice of intent to testify, appears at the designated time and place, and signs and submits a waiver of immunity pursuant to Criminal Procedure Law § 190.45. The question presented dealt only with the express terms of the waiver of immunity. Thus, the Court analyzed the express terms of Criminal Procedure Law § 190.45 (1) which provides: “A waiver of immunity is a written instrument subscribed by a person who is or is about to become a witness in a grand jury proceeding, stipulating that he [or she] waives his privilege against self-incrimination and any possible or prospective immunity to which he [or she] would otherwise become entitled, pursuant to section 190.40 . . . . ” The majority opinion narrowly construed the statute finding that a defendant complies with it by waiving his or her privilege against self-incrimination and any immunity to which he or she would be entitled. In doing so, the Court reaffirmed the longstanding statutory protections afforded to defendants under New York law to testify before a grand jury.


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