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This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
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No. 6
The People &c.,
Appellant,
v.
Michael S. Brumfield,
Respondent.
Kelly Christine Wolford, for appellant.
David R. Juergens, for respondent.
MEMORANDUM:
The order of the Appellate Division should be affirmed.
The People appeal from a judgment vacating defendant's
conviction, 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
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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), and dismissing
the indictment without prejudice to the People to re-present any
appropriate charges to another grand jury.
In vacating the judgment of conviction, the Appellate
Division held that defendant was denied his right to testify
before the grand jury. We agree. CPL 190.50 (5) 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 CPL 190.45. The parties do not dispute that
defendant complied with the first two requirements of CPL 190.50
(5). Rather, the issue presented on this appeal is whether
defendant complied with the third requirement of signing a waiver
of immunity. CPL 190.45 (1) 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 People presented defendant with a waiver of immunity form
that included the provisions required by CPL 190.45, and three
additional provisions that are not required under that statute.
One paragraph concerned defendant's right to talk to a lawyer
before deciding whether to sign the waiver, and before
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testifying. Another paragraph stated that defendant understands
"that the possible questioning before the Grand Jury will not be
limited to any specific subjects, matters or areas of conduct."
And the third paragraph 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 struck out those three additional provisions and signed
the form. The Assistant District Attorney advised defendant and
counsel that unless defendant signed an unaltered waiver of
immunity, defendant would not be permitted to testify. Defendant
did not sign the unaltered form, and he was not permitted to
testify.
Defendant's statutory right to testify before the grand
jury was violated. This right "'must be scrupulously
protected'"(People v Smith, 87 NY2d 715, 721 [1996], quoting
People v Corrigan, 80 NY2d 326, 332 [1992]). Even with the
deletions made by defendant, he complied with the waiver of
immunity as required under CPL 190.45; that is, he left intact
the provisions that stated he waived his privilege against self-
incrimination and any immunity to which he would be entitled.
Defendant was only required to meet the requirements of the
statute, and nothing more to make a valid written waiver of
immunity. The statute is clear, straightforward and concise.
When a defendant meets the waiver of immunity requirements of CPL
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190.45, he or she must be permitted to testify.
* * * * * * * * * * * * * * * * *
Order affirmed, in a memorandum. Chief Judge Lippman and Judges
Read, Pigott, Rivera and Abdus-Salaam concur. Judges Stein and
Fahey took no part.
Decided February 17, 2015
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