The People, Appellant,v.Michael S. Brumfield, Respondent.BriefN.Y.January 6, 2015Brief Completed: March 13, 2014 To Be Argued By: Kelly Christine Wolford Time Requested: 25 Minutes STATE OF NEW YORK COURT OF APPEALS THE PEOPLE OF THE STATE OF NEW YORK, Appellant, -vs- MICHAELS. BRUMFIELD, Defendant-Respondent. BRIEF FOR APPELLANT SANDRA DOORLEY District Attorney of Monroe County Attorney for Appellant By: Kelly Christine Wolford Senior Assistant District Attorney Suite 832 Ebenezer Watts Building Rochester, New York 14614 Phone: (585) 753-4335 Fax: (585) 753-4692 TABLE OF CONTENTS Page TABLE OF AUTHORITIES QUESTION PRESENTED PRELIMINARY STATEMENT STATEMENT OF FACTS POINT I DEFENDANT'S RIGHT TO TESTIFY BEFORE THE GRAND JURY WAS NOT VIOLATED BY THE PEOPLE'S REFUSAL TO ALLOW HIM TO TESTIFY AFTER HE UN ILA TERALL Y ALTERED THE WAIVER OF IMMUNITY FOR ii 1 2 3 NO LEGITIMATE PURPOSE 8 CONCLUSION 22 APPENDIX TABLE OF AUTHORITIES CASES People v. Adams, 53 NY2d 241 (1981) . . . . . . . . . . . . . . .. . . . . . . . . . . . . .. . . . . . . . . . . . . . 18 People v. Chapman, 69NY2d 497 (1987) ... . . ..... ....... . ... . . .. . . .... . .... ... 9t 16 People v. Crampe, 17 NY3d 469 (2011) ........ . . ... ........ ...... ............... 15 People v. Crisp, 246 AD2d 84 (1998)t lv dismissed 93 NY2d 898 (1998) . . . . . . . . . . . . . . . . 13 People v. Devone, 163 Misc.2d 581 (Sup. Ct. Kings Cty 1994) . . . . . . . . . . . . . . . . . . . . . . . . 18 People v. Dunn, 14 A03d 364 (1st Dept. 2005) ...... .. ........ . .. ..... ......... . .. . 12 People v. Edwards, 283 AD2d 219 {200 1 ), lv denied 96 NY2d 918 (200 1) . . . . . . . . . . . . . . . 13 People v. Griffin, 135 Misc.2d 775 {Sup. Ct. Kings Cty 1987) . . . . . . . . . . . . . . . . . . . . . . . . . 18 People v. Higley, 70 NY2d 624 {1987) ...... .. .. . ............. .. . . ................ 9 People v. Jorge, 172 Misc.2d 795 {Bronx County 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 People v. Lopez, 71 NY2d 662 ( 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 People v. McFarlan, 42 NY2d 896 (1977) .................... . . . ................ 9t 19 People v. McFarlan, 52 AD2d 112 {1st Dept. 1976) . ........... . ... . ... . ........ .. ... 9 People v. Seaburg, 74 NY2d 1 {1989) . . .. . . .. . . .. . . . . . . . . .. . . . . . . . . .. . . .. . .. . . .. . 15 People v. Smith, 87 NY2d 715 {1996) .... .. .. ... ..... ........ ...... .. . ... ... .. ... 12 People v. Watkins, 40 AD3d 290 {1st Dept. 2007) . . .............. . ............ . .. . . . 13 People v. Weisman, 231 AD2d 131 (1st Dept. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 People v. Williams, 81 AD2d 418 (2nd Dept. 1981) affd 56 NY2d 916 (1982) . .. . . ... 8, 9t 12 .. n STATUTES CPL § 50.10 ................................................................. 8 CPL § 190.40 ........................................................... 5, 8, 12 CPL § 190.40(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 CPL § 190.40(2) (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 CPL § 190.45 ............................................................ 12, 15 CPL § 190.45(1) ........................................................ 1, 10, 18 CPL § 190.45{4) .................................................... 12, 18, 19,21 CPL § 190.50 ............................................................ 10, 13 CPL § 190.50(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 3, 6, 12, 21 CPL § 190.50(5)(b) ........................................................... 10 CPL § 190.52 . .. . .. . . .. ...... . .. . .. . ... . ...... . ... . .... . .. . ...... .. . . .. 5, 11 , 12 CPL § 190.52 (1) . . . ..... . .. . .. . ... . ... .. ..... . .... . . . ....... . .. . ... . . . . . .... 14 CPL § 190.52(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 CPL § 210.20 . ..... . .. . .. . ... . . .. ....... . .. . .. . ................... .. . . .... .. 20 ... m Question: Answer of the trial court: Answer of the Appellate Division: QUESTION PRESENTED Did the prosecutor's refusal to allow defendant to testify at the grand jury after he unilateral crossed-out portions of the Waiver of Immunity related to his right to counsel, counsel's roll in the grand jury, the potential future use of any testimony he would provide, and a portion that made clear his waiver was not limited, deny him his right to testify under CPL § 190.50{5)? No. The trial court held ''that the motion to dismiss the indictment must be denied on the ground that the failure of the defendant to testify resulted not from any restrictions placed upon such right by the prosecution, but from defendant's attempt to improperly limit the waiver of immunity to his benefit." Yes. The Fourth Department held that defendant was denied his right to testify before the grand jury because the two paragraphs left intact by defendant complied with the requirements of CPL § 190.45(1 ). 1 PRELIMINARY STATEMENT The defendant, Michael S. Brumfield, was convicted following a jury trial on April21, 2009, of Attempted Criminal Possession of a Weapon in the 2"d Degree, Attempted Criminal Possession of a Weapon in the 3rd Degree, Obstructing Governmental Administration in the Second Degree, and Resisting Arrest in Monroe County Court [Geraci, J.]. Defendant was sentenced on May 27, 2009 to 7 years in prison and 5 years post-release supervision. There has been no stay of the sentence. Defendant is currently incarcerated. 2 STATEMENT OF FACTS Defendant Michael Brumfield was arrested and charged in Rochester City Court with a multitude of crimes including Obstructing Governmental Administration in the Second Degree, Resisting Arrest, Aggravated Unlicensed Operation of a Motor Vehicle, and various traffic infractions. On October 23, 2008, Monroe County Assistant District Attorney Raymond Benitez sent a letter via fax to defendant's attorney, John Bradley, Esq., informing Mr. Bradley pursuant to CPL § 190.50{5) that the case against Brumfield would be submitted to a Monroe County Grand Jury on October 27, 2008 at 10:45 am. The letter informed Mr. Bradley that if Brumfield wished to testify before the Grand Jury he must notify the District Attorney's Office in writing. {Appendix, hereinafter A, 36). On October 27, 2008, at 8:45 am, a letter signed by Mr. Bradley indicating that Brumfield wished to testify before the Grand Jury "regarding the charges currently pending against him" was received by the Monroe County District Attorney's Office. (A 37). In response to Mr. Bradley's request, a time was reserved for Brumfield to testify on October 29, 2008. {A 28). On October 29, 2008, defendant Brumfield and his attorney Mr. Bradley arrived at the Grand Jury room and were presented with a two 3 page written Waiver of Immunity and one page Attorney's Acknowledgment. 1 (A 23) As the trial court noted, these were the same forms that had been in use for years in Monroe County. (A 7-8). Nevertheless, the defendant crossed out three separate portions of the Waiver of Immunity, paragraphs 3, 4, and 6, initialed the changes, and signed the waiver. (A 23). The waiver was notarized by a notary public provided by the District Attorney's Office. (A 38-39). The crossed-out portions of the waiver were as follows: 3. I know that I have the right to talk with a lawyer before deciding whether to sign and swear to this waiver of immunity. Furthermore, a) I have been informed by the District Attorney that, if I want to talk to a lawyer before I testify, I will be allowed a reasonable time in which to obtain and talk with one. b) I know that if I cannot afford an attorney, I could obtain the services of the Public Defender's Office at no cost to me. I have been informed by the District Attorney that I would be allowed a reasonable amount of time in which to talk with the Public Defender's Office before deciding whether to sign this waiver of immunity and testify before the Grand Jury. 1 Although defense counsel refused to sign the Attorney's Acknowledgment, the People did not insist he do so before defendant's testimony in the Grand Jury, hence this was not an issue raised by defendant in his motion to dismiss. 4 c) I have been informed by the District Attorney that pursuant to Section 190.52 of the Criminal Procedure Law, I may have my attorney present in the Grand Jury room during my testimony, but that my attorney may not take part in the proceeding other then to advise me. 4. I further understand that the possible questioning before the Grand Jury will not be limited to any specific subjects, matters or areas of conduct. 6. I do hereby consent and agree to the use against me of any testimony given by me before the Grand Jury or evidence hereby produced by me upon any investigation, hearing, trial, prosecution or proceeding. (A 38-39). After being altered by defendant, the waiver stated only: 1. I, Michael Brumfield, residing at 141 (unreadable), in the City of Rochester, County of Monroe, State of New York, being duly sworn, depose and say that I am about to become a witness in the above-entitled Grand Jury Proceeding. 2. I am aware that by executing this document and testifying before the Grand Jury that I am: a) giving-up my right against self-incrimination, and b) giving-up any prospective immunity to which I would otherwise be entitled pursuant to Section 190.40 of the Criminal Procedure Law. 5 5. I understand that by signing this document I give up all immunity and privileges to which I would otherwise have been entitled under the provisions of the United States Constitution, the Constitution of the State of New York, as well as any applicable statutory provisions. (A 38-39). Upon being presented with the altered Waiver of Immunity, the Assistant District Attorney advised defendant and counsel that unless a new, unaltered, Waiver of Immunity was signed, defendant would not be permitted to testify. (A 23, 28-29). Defendant would not sign a complete waiver and was therefore not permitted to testify. At no time did defendant or counsel seek to speak with the Part 1 judge who had empaneled the Grand Jury. (A 29, 68). On November 1 0, 2008, an indictment was filed charging defendant with two counts of Attempted Criminal Possession of a Weapon in the 2"d Degree, Attempted Criminal Possession of a Weapon in the 3rd Degree, Obstructing Governmental Administration, and Resisting Arrest. (A 13-15) The felony charges of attempted possession of a weapon were not originally charged in Rochester City Court. Defendant was subsequently arraigned on the indictment and filed a timely motion to dismiss pursuant to CPL §§ 190.50(5) and 210.20. 6 Defendant's motion claimed that he was denied his right to testify before the Grand Jury because the People would not permit him to testify unless he signed an unaltered Waiver of Immunity. The People in response acknowledged that they did not permit defendant to testify at the Grand Jury after he refused to sign an unaltered Waiver of Immunity. Following the argument of motions, County Court issued a decision denying defendant's motion to dismiss the indictment. Ultimately a jury convicted defendant of one count of Attempted Criminal Possession of a Weapon in the 2"d Degree, Attempted Criminal Possession of a Weapon in the 3rd Degree, Obstructing Governmental Administration in the Second Degree, and Resisting Arrest. This appeal ensued. 7 POINT I DEFENDANT'S RIGHT TO TESTIFY BEFORE THE GRAND JURY WAS NOT VIOLATED BY THE PEOPLE'S REFUSAL TO ALLOW HIM TO TESTIFY AFTER HE UNILATERALLY ALTERED THE WAIVER OF IMMUNITY FOR NO LEGITIMATE PURPOSE "In this State a witness who testifies before a Grand Jury automatically receives immunity, except in certain circumstances not applicable here (CPL 190.40, subd. 2). By statute this immunity not only protects the witness from subsequent use of his testimony, as is required by the Federal Constitution, but also absolves him from all criminal liability, penalty or forfeiture for any transaction, [matter or thing] concerning which he gave evidence." People v. Williams, 81 AD2d 418, 423 (2"d Dept. 1981) aff'd 56 NY2d 916 (1982)(internal citations omitted). For decades since the enactment of the Criminal Procedure Law, courts across this State have issued warnings to prosecutors - the transactional immunity granted to defendants who do not properly waive immunity before testifying in Grand Jury under CPL § 190.40(2) is extremely broad requiring the prosecutor to "proceed with caution." People v. Weisman, 231 AD2d 131, 134 (1st Dept. 1997). As the 2"d Department noted in Williams, "[t]he constitutional privilege and the benefits of CPL 50.1 0 and 190.40 do not 8 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. Perhaps, as a result of the privilege and the plain language of the statutory protection, a heightened sense of caution on the part of the prosecutor is commended before witnesses are examined before a Grand Jury, lest the witness receive transactional immunity through his testimony from liability for the crime under investigation." Williams, 81 AD2d at 425. New York decisional law is replete with examples of ineffective waivers of immunity resulting in transactional immunity to a witness. See J e.g. People v. Chapman, 69 NY2d 497 (1987)(right to counsel issue), People v. Higley, 70 NY2d 624 (1987)(failure to swear to waiver before the grand jury), People v. McFarlan, 42 NY2d 896 (1977) reversing People v. McFarlan, 52 AD2d 112 (1 5' Dept. 1976)(limited waiver of immunity). With the potential of unintended immunity so great, the wise prosecutor heeds the advice of the courts and proceeds with extreme caution whenever a witness, particularly the defendant, appears to testify before the Grand Jury. 9 The importance to prosecutors across this State of the question presented to this Court today cannot be overlooked. Prosecutors know and understand the dangers associated with an invalid Waiver of Immunity before the Grand Jury, the very real danger that an invalid or incomplete waiver of immunity provides a criminal defendant with complete transactional immunity on the charge about which he provides testimony in the Grand Jury. Caution is required. The Defendant's Right to Testify Under CPL § 190.50 A defendant's right to testify before the Grand Jury in New York is strictly a creation of statute. CPL § 190.50{5)(b) provides in pertinent part "[u]pon appearing at such time and place [as designated by the district attorney], and upon signing and submitting to the grand jury a waiver of immunity pursuant to section 190.45, such person must be permitted to testify before the grand jury .... " CPL § 190.45(1) defines a "waiver of immunity'' as a "written instrument subscribed by a person who is or is about to become a witness in a grand jury proceeding, stipulating that he waives his privilege against self-incrimination and any possible or prospective immunity to which he would otherwise become entitled, pursuant to section 190.40, as a result of giving evidence in such 10 proceeding." Subdivision (2) of section 190.45 explains that to be effective the waiver must be signed before the grand jury. Subdivision (3) explains a witness's right to confer with counsel prior to subscribing and swearing to a waiver of immunity. The role of a witness' attorney in the Grand Jury is detailed in CPL § 190.52. Unlike a defense attorney representing a defendant in open court, the role of a defense attorney in Grand Jury is very limited. In fact, other than advising his client, the defense attorney "may not otherwise take any part in the proceeding." CPL § 190.52(2). Finally, subdivision (4) of section 190.45, explains when a limited waiver of immunity is possible and its effect: If a grand jury witness subscribes and swears to a waiver of immunity upon a written agreement with the district attorney that the interrogation will be limited to certain specified subjects, matters or areas of conduct, and if after the commencement of his testimony he is interrogated or testifies concerning another subject, matter or area of conduct not included in such written agreement, he receives immunity with respect to any further testimony which he may give concerning such other subject, matter or area of conduct and the waiver of immunity is to that extent ineffective. Defendant's Alteration of the Waiver of Immunity Defendant herein, on the advice of counsel, crossed out paragraphs 11 3, 4, and 6 of the Waiver of Immunity presented to him by the Assistant District Attorney. Defendant's effort to limit the waiver of immunity presented to him was the sole reason he was not permitted to testify at Grand Jury. Defendant was afforded a reasonable opportunity to testify before the Grand Jury, however, as in People v. Dunn, 14 AD3d 364, 365 (1st Dept. 2005), ~~instead of availing himself of that opportunity, he attempted to place meritless conditions on his waiver of immunity (see CPL 190.45[4])." Although CPL § 190.45 explains many concepts surrounding a waiver of immunity, there is no suggested form for such a waiver. Moreover, CPL § 190.45 is simply an overview of the waiver of immunity, additional statutes and case law provide important details regarding the effect of immunity (CPL § 190.40), the role of an attorney in the proceedings (CPL § 190.52), and use immunity provided by the State and Federal Constitutions. See generally People v. Smith, 87 NY2d 715, 720 (1996), People v. Williams, 81 AD2d 418, 423 (1981) aff'd 56 NY2d 916 (1982). The waiver of immunity utilized in this case has been in use in Monroe County for a number of years. The waiver was designed to insure that a prospective witness understands his rights before signing the waiver 12 and the effect that signing a waiver will have on that witness in the future. Contrary to defendant's complaints, the waiver of immunity in this case does not require that a prospective witness waive any rights other than those waived under either the statutory scheme or the Constitution. The waiver explains, in laymen's terms, the rights of the witness and the effect of the waiver. Prosecutors are not the only attorneys aware of the potential pitfalls of CPL § 190.50(5) - as the volume of case law surrounding the validity of waivers of immunity reveals, defense attorneys are very much aware of the potential of transactional immunity should an unwary prosecutor fail to obtain a proper waiver before a witness' testimony in Grand Jury. With this in mind, it is difficult to fathom what legitimate purpose could be served by a defendant, on the advice of counsel, crossing-out language designed only to inform. Such an inexplicable alteration of a Waiver of Immunity suggests that counsel was not seeking to protect his client's rights, but instead was simply attempting to create a legal issue. Such gamesmanship is not unprecedented with it comes to the obligations of the People under CPL § 190.50, as First Department noted in People v. Watkins, 40 AD3d 290, 290-291 (1 5' Dept. 2007) "defense counsel's 13 deliberately dilatory and evasive conduct was nothing more than a blatant attempt to use the People's obligations under CPL 190.50 as an opportunity for gamesmanship, conduct of which we strongly disapprove (People v. Crisp, 246 AD2d 84, 86-87 [1998], lv dismissed 93 NY2d 898 [1998]; see a/so People v. Edwards, 283 AD2d 219 (2001), lv denied, 96 NY2d 918 [2001 ])." Recognizing the importance of obtaining a valid Waiver of Immunity before allowing the defendant to testify, the district attorney here was clearly justified in prohibiting defendant from testifying at the Grand Jury after he refused to sign the waiver without alteration. The Striking of Language Relating to Counsel The striking of paragraph (3) of the Waiver of Immunity served no purpose whatsoever. Paragraph (3) stated: 3. I know that I have the right to talk with a lawyer before deciding whether to sign and swear to this waiver of immunity. Furthermore, a) I have been informed by the District Attorney that, if I want to talk to a lawyer before I testify, I will be allowed a reasonable time in which to obtain and talk with one. b) I know that if I cannot afford an attorney, I could obtain the services of the Public Defender's Office at no cost to me. I have been informed by the District Attorney that I would be allowed a reasonable amount of 14 time in which to talk with the Public Defender's Office before deciding whether to sign this waiver of immunity and testify before the Grand Jury. c) I have been informed by the District Attorney that pursuant to Section 190.52 of the Criminal Procedure Law, I may have my attorney present in the Grand Jury room during my testimony, but that my attorney may not take part in the proceeding other then to advise me. (A 38-39). This paragraph explains the language of CPL § 190.52 (1) and (2) relative to a witness' right to counsel and the extent to which counsel may participate during testimony before the Grand Jury. Language not covered in the potion of the waiver left in tact by defendant herein. Defense counsel offered no explanation regarding why paragraph (3) was crossed out on the waiver, except to say that his client "knows he has a right to counsel" and "[w]hether or not he's advised of his rights is my job as his attorney. It is not the People's job to ensure that I'm doing my job .... " (A 57, 64). Defendant could not have been prejudiced by the explanation of rights provided in paragraph 3. In Grand Jury the People act as legal advisor and are ultimately responsible for ensuring that any waiver of immunity satisfies the requirements of CPL § 190.45 and is knowingly, 15 intelligently, and voluntarily entered into. Typically, New York courts encourage efforts to ensure that a defendant is acting knowingly, intelligently, and voluntarily when waiving statutory or constitutional rights. See e.g., People v. Cramp~, 17 NY3d 469 (2011 )(waiver of counsel requires a "searching inquiry designed to insure that the defendant is aware of the dangers and disadvantages of proceeding without counsel"); People v. Lopez, 71 NY2d 662 {1988){the court has a duty to inquire to ensure that a guilty plea is knowing and voluntary); People v. Seaburg, 7 4 NY2d 1 {1989){the court must ensure that a waiver of appeal is knowing, intelligent and voluntary for the waiver to be effective). In fact, New York courts require that there be a record of a defendant's waiver of rights in areas such as guilty pleas, waivers of appeal, and waiver of rights under Miranda. This requirement enables courts to determine whether these important waivers are knowing, intelligent and voluntary. Defense counsel's argument that he alone is responsible for ensuring that his client knows his rights and voluntarily waives them is undermined by the volumes of decisional law that places such burdens on the People or the Courts. Paragraph {3) of the Waiver of Immunity was specifically designed to ensure that the defendant who is about to waive immunity and testify 16 before the Grand Jury understands his right to counsel and counsel's limited ability to participate in the proceedings. This Court's decision in People v. Chapman, 69 NY2d 497 (1987) illustrates the potential for immunity if a defendant is not adequately advised of his rights to counsel before testifying in Grand Jury. The inclusion of paragraph (3) in the Waiver of Immunity simply accomplishes what courts expect when a person is waiving rights in our system of justice. Use of Testimony in Future Proceedings Paragraph (6) of the Waiver of Immunity, which was also crossed-out by defendant, states: "I do hereby consent and agree to the use against me of any testimony given by me before the Grand Jury or evidence hereby produced by me upon any investigation, hearing, trial, prosecution or proceeding." (A 38-39). This paragraph was intended to explain in laymen's terms that the witness's testimony before the Grand Jury can be used at future proceedings. Although stated in terms of "consent," this paragraph simply explains what occurs by operation of law if a witness waives immunity at Grand Jury and provides testimony. Defendant's blanket statement that "[t]his is not in any way required by law, and potentially could cause the defendant to give up more rights than the law 17 requires" is not a reasonable reading of this paragraph. Defendant has not articulated what "rights" he may be giving up under this paragraph that he would not otherwise be waiving. Moreover, contrary to defendant's contention during oral argument before the trial court, this paragraph does not create a situation where defendant would be precluded from arguing against admissibility of statements made in the Grand Jury in the future. Paragraph 6 advises the would-be witness of the potential that anything he says in the Grand Jury can be used against him in the future. This is no different than the warnings provided by Miranda namely that "any statement can and will be used against you in a court of law." Advising a witness that in all likelihood what they say can be used in the future is not punitive or threatening, such language simply provides the witness with information that is necessary in making an informed decision about whether they wish to give testimony before the Grand Jury. Nothing less is required under our laws. Limitation on Waiver of Immunity Defendant's striking of paragraph (4) which stated "I further understand that the possible questioning before the Grand Jury will not be limited to any specific subjects, matters or areas of conduct" is the most 18 significant alteration to the Waiver of Immunity. Removal of this paragraph directly impacted the extent of the waiver. Again, defendant provided no reason for removing this paragraph of the waiver of immunity, except to say that it was unnecessary. However, this paragraph goes to the heart of a waiver of immunity. CPL § 190.45(1) provides that a witness who waives immunity and testifies at Grand Jury "waives his privilege against self-incrimination and any possible or prospective immunity to which he would otherwise become entitled .... " [Emphasis added]. "The legislature has permitted the District Attorney, at his discretion, to limit the immunity afforded to a witness when appropriate (see CPL 190.45[4]) so as not to impair his ability to carry out his duty in presenting evidence or acting as legal advisor to the Grand Jury." People v. Devone, 163 Misc.2d 581, 585 (Sup. Ct. Kings Cty 1994). [Emphasis in original]; see also People v. Griffin, 135 Misc.2d 775 (Sup. Ct. Kings Cty 1987). A defendant cannot unilaterally determine that the waiver of immunity will be limited, as was done by defendant herein. A limited waiver of immunity requires the consent of the district attorney and cannot be unilaterally created by the prospective witness or 19 defendant. See generally, People v. Adams, 53 NY2d 241 (1981), People v. Jorge, 172 Misc.2d 795 (Bronx County 1997). Yet, this is precisely what defendant herein attempted to do by crossing-out paragraph (4). Paragraph (4) of the Waiver of Immunity is derived from CPL § 190.45(4) and is designed to prevent a witness from receiving limited immunity without the consent of the prosecutor. A defendant who chooses not to accept the terms of immunity proposed by the prosecutor, cannot testify at the Grand Jury. CPL 190.40{2}(a) and 190.45(4}. The dangers of a limited waiver are extreme. People v. McFarlan, 42 NY2d 896 (1977). Here, defendant crossed-out that portion of the waiver that explained it was not limited in any way. Had the People permitted the defendant to enter the Grand Jury and testify with that portion crossed-out, defendant could have argued that by allowing testimony after this paragraph was removed, the People consented, in writing, to the waiver being limited. See CPL § 190.45(4). This possibility is rendered even more of a reality by defendant's notice that he wished to testify specifically "regarding the charges currently pending against him" - charges which did not include the felonies of which he was ultimately charged. (A 37). Had the People not refused defendant's efforts to limit the waiver of immunity 20 and allowed him to testify, defendant could potentially have received transactional immunity on the very charge the People sought to indict. Defendant's contention below that crossing-out paragraph (4) could not have limited the waiver of immunity is simply incorrect. Summary Defendant's claim that he should have been permitted to alter the Waiver of Immunity in the case because it over-explained the law regarding his right to counsel, right against self-incrimination and right to immunity is an interesting one. Simplified, defendant's claim is really that the prosecutor (legal advisor to the grand jury) had no right to insist that defendant's waiver of immunity was knowingly, intelligently, and voluntarily entered into. That, according to defense counsel, was solely the defense attorney's responsibility. Following defendant's logic, the prosecutor must be punished for ensuring that the defendant knew he had the right to speak to his lawyer before signing the waiver, knew his attorney was not going to be able to participate, and knew that no matter what he said in the Grand Jury room he was not going to be granted immunity from prosecution. Certainly requiring a thorough colloquy of a defendant's rights and what rights he is waiving by signing a Waiver of Immunity cannot be 21 grounds to find that the prosecutor "denied" the defendant his right to testify before the Grand Jury. Had defendant herein testified after altering the Waiver of Immunity, he most certainly would have brought a different motion under CPL 21 0.20 - this one alleging that he was not properly advised of his rights prior to testifying and should be granted transactional immunity on these charges. Finally, defendant's claim that if any one of the paragraphs was properly crossed-out that his right to testify was violated is simply incorrect. Defendant crossed-out three separate paragraphs of the Waiver of Immunity and sought no judicial intervention when advised that he would not be permitted to testify without signing a complete waiver. If this Court were to find that any one of those paragraphs was improperly removed, thereby affecting the validity of the waiver of immunity, defendant's argument must fail. The People are tasked with obtaining a valid waiver of immunity from a prospective witness or transactional immunity is automatically granted. The removal of paragraphs 3 and 6 directly impacted the validity of the Waiver in this case. Furthermore, defendant's attempt at unilaterally limiting the waiver, standing alone, was grounds to deny him entry into the Grand Jury since such action was improper under 22 CPL § 190.45(4). Defendant's failure to testify in Grand Jury was of his own design, not that of the People. Defendant's was not denied his right to testify pursuant to CPL § 190.50(5). 23 CONCLUSION The Appellate Division, Fourth Department's decision reversing defendant's conviction and dismissing the indictment should be reversed and defendant's conviction affirmed. March, 2014 Respectfully submitted, SANDRA DOORLEY Monroe County District Attorney App llant : K L Y CHRIST E WOLFORD Assistant District Attorney Ebenezer Watts Building Suite 832 Rochester, NY 14614 (585) 753-4335 24 STATEOFNEWYORK COURT OF APPEALS THE PEOPLE OF THE STATE OF NEW YORK, Appellant, -vs- MICHAEL S. BRUMFIELD, Defendant-Respondent. STATE OF NEW YORK) COUNTY OF MONROE) SS: CITY OF ROCHESTER) AFFIDAVIT OF SERVICE BY MAIL Laurie Mastrocola , being duly sworn, deposes and says that deponent is not a party to this action, is over the age of eighteen ( 18) years and resides at Rochester, New York. That on the 13th day ofMarch, 2014, deponent served three (3) copies ofBrief and Appendix for Appellant upon David Juergens, Esq., Assistant Public Defender, attorney for respondent in this action at 1 0 North Fitzhugh Street, Rochester, New York 14614, by depositing a true copy of the same, enclosed in a postpaid properly addressed wrapper, in an official depository under the exclusive care and custody of the United States Postal Service within the State of New York. Sworn to before me this 13th day of March, 2014. JEANNE T. HEllER 'I')TARY PUBliC. Slate ol NJ·}nr~ Commission Expires 0~ :>bl? STATE OF NEW YORK COURT OF APPEALS PEOPLE OF THE STATE OF NEW YORK, Appellant, -vs- MICHAELS. BRUMFIELD, Defendant-Respondent. PDF CERTIFICATION I, KELLY CHRISTINE WOLFORD, ESQ., certify that I am an attorney admitted to practice in the State of New York, and that I compared the PDF brief and it is identical to the filed original printed materials. DATED: March 13, 2014 STATE OF NEW YORK* COURT OF APPEALS PEOPLE OF THE STATE OF NEW YORK, Appellant, -vs- CPLR 2105 CERTIFICATION MICHAEL S. BRUMFIELD, Defendant-Respondent. I, KELLY CHRISTINE WOLFORD, ESQ., certify that I am an attorney admitted to practice in the State of New York, that I compared the documents contained in PDF of the Appellant's Appendix to the identical records contained in the original Appellant's Appendix filed with the Court of Appeals, and that they are true, accurate, and complete copies of the same. DATED: March 13, 2014 HRISTINE WOLFORD, ESQ. Assistant District Attorney