The People, Appellant,v.Michael S. Brumfield, Respondent.

Brief

N.Y.January 6, 2015

To Be Argued By: David R. Juergens Time Requested: 10 Minutes APL-2013-00347 __________________________________________________________________ Court of Appeals State of New York _______________________ THE PEOPLE OF THE STATE OF NEW YORK, Appellant, -vs- MICHAEL S. BRUMFIELD, Respondent. _______________________ __________________________________________________________________ BRIEF FOR RESPONDENT __________________________________________________________________ TIMOTHY P. DONAHER Monroe County Public Defender Attorney for Respondent BY: DAVID R. JUERGENS Assistant Public Defender 10 N. Fitzhugh Street Rochester, New York 14614 Tel: (585) 753-4093 Fax: (585) 753-4234 Date Completed: April 22, 2014 _________________________________________________________________ TABLE OF CONTENTS TABLE OF AUTHORITIES i-iv QUESTION PRESENTED 1 PROCEDURAL HISTORY 2 STATEMENT OF FACTS 4 POINT I: The Appellate Division Correctly Dismissed the Indictment because Michael Brumfield Signed a Waiver-of-Immunity Document that Complied with CPL 190.45 (1) and, therefore, the People Should Have Allowed Him to Testify before the First Grand Jury. 8 A. Introduction 8 B. The Public-Private Constitutional Right to Indictment by Grand Jury 9 C. The Defendant’s Statutory Right to Testify before the Grand Jury 10 D. The Defendant Signed a Waiver-of-Immunity Document that Complied with the Statute. 11 E. The People Preserved Only an “All-or-Nothing” Argument for this Appeal. 13 F. In any Event, None of the Three Deleted Paragraphs Were Mandatory Provisions. 14 G. “Gamesmanship” 25 CONCLUSION 28 i TABLE OF AUTHORITIES Constitution NY Const, art I, § 6............................................................................................ 9, 11, 19, 28 Federal Case Johnson v Zerbst, 304 US 458 (1938) ........................................................................................................ 23 State Cases People v Archie, 28 Misc3d 617 (Sup Ct, Kings County 2010) ............................................................... 15 People v Batalis, 27 NY2d 958 (1970) ...................................................................................................... 19 People v Batalis, 32 AD2d 1068 (1969) .................................................................................................... 20 People v Batashure, 75 NY2d 306 (1990) ........................................................................................................ 9 People v Betts, 70 NY2d 289 (1987) ...................................................................................................... 12 People v Boston, 75 NY2d 585 (1990) ........................................................................................................ 9 People v Brumfield, 109 AD3d 1105 (4th Dept 2013) ............................................................................. 2, 7, 8 People v Calbud, Inc., 49 NY2d 389 (1980) ........................................................................................................ 9 People v Chapman, 69 NY2d 497 (1987) .......................................................................................... 11, 18, 19 People v Clark, 267 AD2d 4 (1st Dept 1999) ......................................................................................... 26 ii People v Corrigan, 80 NY2d 326 (1992) ...................................................................................................... 10 People v Crisp, 246 AD2d 84 (1st Dept 1998) ................................................................................. 25, 26 People v Dunn, 14 AD3d 364 (1st Dept 2005) ....................................................................................... 22 People v Durante, 97 AD2d 851 (2d Dept 1983) ........................................................................................ 10 People v Edwards, 283 AD2d 219 (1st Dept 2001) ..................................................................................... 26 People v Evans, 79 NY2d 407 (1992) ................................................................................................ 10, 14 People v Gallagher, 18 Misc3d 1135 (A) (Sup Ct, Queens County 2008), 2008 WL 480077 ...................... 20 People v Higley, 70 NY2d 624 (1987) ................................................................................................ 11, 14 People v Hunter, 17 NY3d 725 (2011) ...................................................................................................... 14 People v Iannone, 45 NY2d 589 (1978) ........................................................................................................ 9 People v Pelchat, 69 NY2d 97 (1984) ........................................................................................................ 19 People v Perez, 83 NY2d 269 (1994) ........................................................................................................ 9 People v Peters, 18 Misc3d 428 (Essex County Ct 2007) ........................................................................ 15 People v Samuels, 49 NY2d 218 (1980) ...................................................................................................... 18 iii People v Savareese, 258 AD2d 484 (2d Dept 1999) ...................................................................................... 26 People v Smith, 155 Misc2d 596 (Orange County Court 1992) .............................................................. 23 People v Smith, 84 NY2d 998 (1994) ...................................................................................................... 21 People v Smith, 87 NY2d 715 (1996) .................................................................................... 12, 19, 20, 24 People v Stewart, 92 NY2d 965 (1998) ...................................................................................................... 11 People v Thomas, 300 AD2d 1034 (4th Dept 2002) ................................................................................... 24 People v Thompson, __ NY3d __ (February 20, 2014) .................................................................................. 15 People v Watkins, 40 AD3d 290 (1st Dept 2007) ....................................................................................... 25 State Statutes CPL 180.80 ........................................................................................................................ 26 CPL 190.25 (5) .................................................................................................................... 9 CPL 190.40 .......................................................................................................... 5, 7, 12, 13 CPL 190.45 ........................................................................................................ 7, 10, 13, 21 CPL 190.45 (1) .................................................................................... 6, 7, 9, 11, 12, 13, 15 CPL 190.45 (2) .................................................................................................................. 11 CPL 190.45 (3) ...................................................................................................... 11, 17, 18 CPL 190.45 (4) ............................................................................................................ 12, 23 iv CPL 190.50 .................................................................................................................... 6, 28 CPL 190.50 (5) (a) ....................................................................................................... 10, 24 CPL 190.50 (5) (b)........................................................................... 7, 10, 12, 13, 14, 21, 24 CPL 190.50 (5) (c) ............................................................................................................. 10 CPL 190.52 ........................................................................................................................ 17 CPL 190.52 (1) .................................................................................................................. 19 CPL 210.20 .................................................................................................................... 6, 28 Other References People v Dunn, Brief for Respondent, 2004 WL 5473978 ............................................... 22 1 QUESTION PRESENTED Question: Did Michael Brumfield sign a waiver of immunity form that complied with the requirements of CPL 190.45 (1)? Trial Court: Not addressed. Appellate Division: Yes. Compare the statute - CPL 190.45 (1) - with Mr. Brumfield’s Waiver (Paragraphs 2 and 5) CPL 190.45 (1) Mr. Brumfield’s Waiver – Paragraph 2 “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 waives [1] his privilege against self-incrimination and [2] 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 proceeding.” “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” (R 38). Mr. Brumfield’s Waiver – Paragraph 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” (R 39). 2 PROCEDURAL HISTORY Local Court On February 5, 2008, Michael Brumfield was arrested for six non-felonies. For nine months, the criminal action was pending in Rochester City Court. On November 10, 2008, a Monroe County Grand Jury indicted Mr. Brumfield for three felonies and two misdemeanors (Appendix/Record on Appeal [“R”] at 13-15, 17). Superior Court On November 26, 2008, Michael Brumfield was arraigned in Monroe County Court before Hon. Frank P. Geraci, Jr. (R 41). A timely motion to dismiss the indictment was filed by the defense (R 20-26) and opposed by the prosecution (R 27-35). On March 3, 2009, Mr. Brumfield’s dismissal motion was denied (R 5-11). On April 20, 2009, a jury trial commenced. Mr. Brumfield did not testify. On April 21, 2009, Mr. Brumfield was acquitted on one felony but was convicted on the other four charges (two felonies, two misdemeanors) (R 12). On May 27, 2009, Mr. Brumfield was sentenced (on the top count) to seven years in state prison plus five years of post-release supervision (R 12). Appellate Division On September 27, 2013, the Fourth Department dismissed the indictment “without prejudice to the People to re-present any appropriate charges . . . to another grand jury” (People v Brumfield, 109 AD3d 1105, 1107 [4th Dept 2013]) (R 3-4). Contrary to the People’s “Preliminary Statement” (People’s Brief at 2), Mr. Brumfield is not “currently incarcerated.” True, he did serve almost 4 ½ years on the 3 original top-count felony sentence (April 21, 2009 [verdict rendered] to September 27, 2013 [indictment dismissed]). But, on October 5, 2013 (eight days after the indictment was dismissed), a Part I Monroe County Court Judge agreed to release Mr. Brumfield on his own recognizance. Today, he remains free. Local Court On November 4, 2013, the People notified Mr. Brumfield’s attorney that the matter was scheduled to be submitted to a second Monroe County Grand Jury on November 19, 2013 (see Exhibit A [attached]). On November 19, 2013, Mr. Brumfield signed a new Waiver of Immunity form and was permitted to testify before the second Grand Jury. On November 26, 2013, the Grand Jury refused to indict the two felonies. Instead, it directed the People to file a Prosecutor’s Information in Rochester City Court (charging two misdemeanors) (see Exhibit B [attached]). Thus, no “indictment is currently pending” (contrast People’s “Preliminary Appeal Statement” at page 5, question 11). On December 12, 2013, Mr. Brumfield was scheduled for arraignment on the Prosecutor’s Information in Rochester City Court (see Exhibit C [attached]). On these pending misdemeanors, Mr. Brumfield now faces a maximum sentence of one year in the Monroe County Jail. Court of Appeals On December 12, 2013, Hon. Jonathan Lippman, Chief Judge of the Court of Appeals, granted the People’s application for Leave to Appeal (R 1). 4 STATEMENT OF FACTS The Incident On February 5, 2008, a Rochester police officer stopped a car driven by Michael Brumfield. The incident culminated in Mr. Brumfield’s arrest for six charges: two Penal Law misdemeanors (resisting arrest and obstructing governmental administration), three traffic offenses (driving with an expired inspection sticker; driving without a license; aggravated unlicensed operation of a motor vehicle) and one violation (unlawful possession of marihuana) (R 36). No felonies were charged (R 36). The Grand Jury Proceeding More than eight months later (October 23, 2008), the People served Mr. Brumfield’s attorney with written notice that they intended to present the case to a Monroe County Grand Jury (R 36). Mr. Brumfield served a timely, written notice on the People that he wished “to give testimony before the Grand Jury regarding the charges currently pending against him,” referencing the crime report number (CR # 08-040668) (R 37). On October 29, 2008, Mr. Brumfield and his attorney (Special Assistant Public Defender John Bradley) arrived, as scheduled, at the Grand Jury room. The People provided Mr. Brumfield with a waiver-of-immunity form. After reviewing the form and consulting with his attorney, Mr. Brumfield crossed-out paragraphs 3, 4 and 6, initialed the deletions and signed the document before a notary public (R 38-39). Two relevant paragraphs remained intact: 5 Paragraph 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” (R 38). Paragraph 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” (R 39). But, after consulting with other members of his office, Assistant District Attorney Raymond Benitez stated that he would not accept the signed waiver. An ultimatum was given. Unless Mr. Brumfield signed a new waiver, in the original form and without any deleted paragraphs, the People would prohibit Mr. Brumfield from testifying before the Grand Jury. After Mr. Brumfield refused to accept their ultimatum, the People refused to allow him to appear before the Grand Jury (R 6-7, 23, 28-29). The Indictment On November 10, 2008, an indictment was filed, charging Mr. Brumfield with five offenses: three felonies (attempted criminal possession of a weapon in the second degree [two counts] and in the third degree [one count]) and two Penal Law misdemeanors 6 (resisting arrest and obstructing governmental administration in the second degree) (R 13-15). The Dismissal Motion On November 26, 2008, Mr. Brumfield was arraigned (R 41). Within five days, he moved to dismiss the indictment (CPL 190.50; 210.20]), arguing that he had signed a statutorily sufficient waiver of immunity (CPL 190.45 [1]) and, therefore, should have been allowed to testify before the Grand Jury (R 20-25, 56-58, 63-64, 67-70). The People opposed dismissal (R 27-35, 58-62, 65-69). During oral argument, the trial court expressed some concern about whether deleted paragraph 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”) (R 39) was a valid or invalid provision (R 60-64, 66-67, 70). The Trial Court Decision Mr. Brumfield’s motion to dismiss the indictment was denied (R 5-11). But the trial court never addressed whether the document signed by Mr. Brumfield (comprising paragraphs 2 and 5) was a complete and enforceable waiver of immunity. In other words, the trial court never compared the language of the signed waiver with the language of CPL 190.45 (1). The Appellate Division Decision On September 27, 2013, the Appellate Division, Fourth Department, reversed the trial court: 7 “The only dispute is whether defendant signed ‘a waiver of immunity pursuant to section 190.45’ (CPL 190.50 [5] [b]) . . . 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])” (R 3). The Fourth Department dismissed the indictment “without prejudice to the People to re-present any appropriate charges . . . to another grand jury” (People v Brumfield, 109 AD3d 1105, 1107 [4th Dept 2013]) (R 3-4). 8 Point I: The Appellate Division Correctly Dismissed the Indictment because Michael Brumfield Signed a Waiver-of-Immunity Document that Complied with CPL 190.45 (1) and, therefore, the People Should Have Allowed Him to Testify before the First Grand Jury. A. Introduction The purpose of a waiver of immunity is to safeguard the People’s right to prosecute a prospective Grand Jury witness. Here, the People’s right was adequately protected because Mr. Brumfield signed a valid and enforceable waiver-of-immunity document. But the People unlawfully prevented him from testifying before the first Grand Jury. The proper remedy was dismissal of the indictment with leave to re-present (People v Brumfield, 109 AD3d 1105, 1107 [4th Dept 2013]) (R 3-4). No provision of CPL Article 190 required any of the three deleted paragraphs to be included in the waiver-of-immunity document. Each paragraph was properly deleted by Mr. Brumfield. Paragraph 3 (explaining a Grand Jury witness’s statutory right-to- counsel) was superfluous because Mr. Brumfield had assigned counsel when he signed the waiver document. Paragraph 4 (warning that the prosecutor’s questioning of Mr. Brumfield would be unlimited) was erroneous because the prosecutor’s questioning must be limited to “the case under consideration” or to proper credibility topics. Paragraph 6 (demanding “consent” to unlimited future use of the Grand Jury testimony) was unauthorized and blatantly coercive. Nevertheless, undeterred by their lack of statutory authority to do so, the People precluded Mr. Brumfield from testifying because he deleted paragraphs 3, 4 and 6. 9 The Appellate Division did not adopt the trial court’s erroneous assumptions (1) that all paragraphs contained the prosecutor’s “standard” form were necessary for a valid waiver-of-immunity document and (2) that Mr. Brumfield was required to justify the paragraph deletions. Instead, the Appellate Division compared the language of Mr. Brumfield’s signed waiver (paragraphs 2 and 5) with the requirements of CPL 190.45 [1]) and concluded that Mr. Brumfield’s signed waiver complied with the statute. B. The Public-Private Constitutional Right to Indictment by Grand Jury Before someone may be “put to the onerous task of defending himself from [felony] accusations, the State must convince a Grand Jury composed of the accused’s peers that there exists sufficient evidence and legal reason to believe the accused guilty” (People v Iannone, 45 NY2d 589, 594 [1978]; NY Const, art I, § 6). Indictment by Grand Jury is “not merely a personal privilege of the defendant but a ‘public fundamental right,’ which is the basis of jurisdiction to try and punish an individual” for a felony (People v Boston, 75 NY2d 585, 587 [1990]). The Grand Jury protects the public “against the potential abuse of power by those invested with the prosecutorial authority of the State” (People v Perez, 83 NY2d 269, 273 [1994]). The Grand Jury acts as a “buffer between the State and its citizens,” shielding against prosecutorial excesses and unfounded prosecutions (People v Calbud, Inc., 49 NY2d 389, 394-396 [1980]; see also People v Batashure, 75 NY2d 306, 310 [1990] [the prosecutor may not usurp the Grand Jury’s function of determining the legal sufficiency of the evidence]; see CPL 190.25 [5] [“The grand jury is the exclusive judge of the facts with respect to any matter before it”]). 10 C. The Defendant’s Statutory Right to Testify before the Grand Jury A defendant’s right “to testify before the Grand Jury must be scrupulously protected” (People v Corrigan, 80 NY2d 326, 332 [1992]). Indeed, any statutorily unauthorized effort by a prosecutor to control or restrict this important right mandates a dismissal of the indictment “because [a] defendant’s appearance before a Grand Jury is the singular incursion on the prosecutor’s otherwise exclusive stronghold” (People v Evans, 79 NY2d 407, 414 [1992] [indictment was dismissed because defendant should have been given an opportunity to testify before, not after, the Grand Jury’s vote]; see e.g. People v Durante, 97 AD2d 851, 852 [2d Dept 1983] [by immediately examining the defendant, the prosecutor effectively deprived him “of a reasonably fair and uninterrupted opportunity to first furnish the panel with his own version concerning the matters being investigated”]; CPL 190.50 [5] [c] [“Any indictment . . . obtained or filed in violation of the provisions of paragraph (a) or (b) is invalid and . . . must be dismissed”]). When a defendant satisfies three statutory conditions, “such person must be permitted to testify before the grand jury and to give any relevant and competent evidence concerning the case under consideration” (CPL 190.50 [5] [b]): • An accused must serve on the People (before the indictment is filed) a written notice requesting an appearance before the Grand Jury (CPL 190.50 [5] [a]); • An accused must arrive for the scheduled Grand Jury appearance (proper date, time and place) (CPL 190.50 [5] [b]); and • An accused must sign a “waiver of immunity” that meets the statutory requirements of CPL 190.45 (CPL 190.50 [5] [b]). 11 No one disputes that Mr. Brumfield satisfied the first two statutory requirements. The People argue, however, that Mr. Brumfield did not satisfy the third requirement. D. The Defendant Signed a Waiver-of-Immunity Document that Complied with the Statute. CPL 190.45 (1) defines what stipulations must appear in a written instrument for that document to qualify as a valid waiver-of-immunity document. As explained below, subdivisions (2), (3) and (4) address other matters. CPL 190.45 (2) Subdivision (2) concerns when an otherwise-valid waiver-of-immunity document becomes “effective.” The subscriber must swear to the waiver before the Grand Jury (People v Higley, 70 NY2d 624, 626 [1987]; compare People v Stewart, 92 NY2d 965, 967 [1998] [“defendant’s signing of the waiver and his undertaking of an oath as to its contents occurred in the presence of the Grand Jury”). Here, however, the People prevented Mr. Brumfield from reaching the “oath” stage of the Grand Jury proceeding. CPL 190.45 (3) Subdivision (3) expressly relates not to a defendant, but to someone “who is called by the people as a witness in a grand jury proceeding and requested by the district attorney to subscribe and swear to a waiver of immunity before giving evidence” (compare CPL 190.45 [3] [a statutory right to counsel for certain prosecution witnesses] with People v Chapman, 69 NY2d 497, 499-500 [1987] [the defendant’s waiver of immunity was not effective because it was obtained in violation of his State constitutional right to counsel]; NY Const, art I, § 6). 12 CPL 190.45 (4) Subdivision (4) describes the consequences resulting when an inquiry by the district attorney exceeds the boundaries of a limited written waiver of immunity. For this limited-written-waiver provision to be relevant, however, the Grand Jury must have more than one “case under consideration” (see CPL 190.50 [5] [b]). In other words, if the Grand Jury is only considering one “case” (such as a traffic-stop incident), then the prosecutor’s examination of the defendant must be limited to that case (CPL 190.50 [5] [b]) and to proper impeachment of the defendant’s credibility (see People v Smith, 87 NY2d 715, 718 [1996] [an accused testifying before the Grand Jury “may be cross- examined regarding prior criminal or immoral acts affecting credibility” but he or she does not waive the privilege against self-incrimination for questioning about other unrelated pending charges]; compare People v Betts, 70 NY2d 289, 292 [1987]). CPL 190.45 (1) Subdivision (1) defines a “waiver of immunity” as a document containing two stipulations: “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 waives [1] his privilege against self-incrimination and [2] 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 proceeding.” 13 Mr. Brumfield’s Waiver Paragraph 2 included both stipulations: “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” (R 38). Paragraph 5 went even further: “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” (R 39). This identity of language between Mr. Brumfield’s signed waiver-of-immunity document and CPL 190.45 (1) satisfied the third statutory requirement (CPL 190.50 [5] [b] [“signing and submitting to the grand jury a waiver of immunity pursuant to section 190.45”]), thus triggering Mr. Brumfield’s absolute statutory right to appear before the Grand Jury. E. The People Preserved Only an “All-or-Nothing” Argument for this Appeal. The People now argue that their conduct (prohibiting Mr. Brumfield from testifying before the first Grand Jury) should be condoned by this Court if any one of the three deleted paragraphs, individually, would have caused Mr. Brumfield’s signed waiver-of-immunity document to become invalid or unenforceable (People’s Brief at 22- 23). But the People did not preserve this argument. 14 In the trial court, the People took an all-or-nothing position (R 28-35), arguing that “[t]he district attorney was clearly justified in prohibiting defendant from testifying at the Grand Jury after he refused to sign [the waiver of immunity] without alteration” (R 32) and that “[i]f a defendant does not choose to accept the terms of immunity proposed by the prosecutor, he cannot testify” (R 34). The trial court expressly found that “[t]he prosecutor, after consulting with his office, would not accept the proffered waiver and informed the defendant that unless a new waiver, without any deletions, was signed, the defendant would not be permitted to testify” (R 7) (emphasis added). It is too late for the People to argue, in effect, that they would have allowed Mr. Brumfield to testify before the Grand Jury if he would have agreed to add one or two of the three deleted paragraphs back into the waiver-of-immunity form. The Grand Jury prosecutor never gave Mr. Brumfield that option. On appeal, the People should be bound by their trial court arguments (see e.g. People v Hunter, 17 NY3d 725, 727-728 [2011] [the People cannot raise a lack-of-standing argument for the first time on appeal]). F. In any Event, None of the Three Deleted Paragraphs Were Mandatory Provisions. Especially in the Grand Jury context, where the Legislature has enacted comprehensive procedural statutes, the People have no authority to “make-up” the rules (see e.g. People v Higley, 70 NY2d 624, 626 [1987] [“it is not for the People to fashion a substitute for the procedure prescribed by statute,” observing that CPL 190.50 (5) (b) requires the defendant’s direct testimony to occur before the People’s examination]; see e.g. People v Evans, 79 NY2d 407, 414 [1992] [the defendant’s post-vote/pre-filing right 15 to testify before the Grand Jury “is an added window given to defendants. However, the District Attorney acquires no correlative right to control or restrict the timing of the exercise of the right”]; see e.g. People v Peters, 18 Misc3d 428, 431-432 [Essex County Ct 2007] [a district attorney has no authority “to set a precise [pre-Grand-Jury- presentment] deadline by which a defendant must serve notice of his intention to exercise his right to testify before the grand jury”]; see e.g. People v Archie, 28 Misc3d 617, 624- 625 [Sup Ct, Kings County 2010] [two alibi witnesses for the defense were, in effect, precluded from giving Grand Jury testimony because the “prosecutor was determined to adhere strictly to a ‘procedure’ in the District Attorney’s office whereby no defense witness is permitted to testify without first speaking to an assistant district attorney about his or her testimony”]). Indeed, this Court remains “highly concerned about prosecutorial overreach in the grand jury context” (People v Thompson, __ NY3d __ [February 20, 2014]). The Trial Court Analysis Was Flawed In their brief, the People try to explain why the trial court’s decision was correct. Conspicuously absent, however, is any effort to explain why the Appellate Division’s decision was wrong. In fact, the People mention the Appellate Division’s decision only once (People’s Brief at 1 [Question Presented; Answer of the Appellate Division]). Unlike the Appellate Division’s analysis, the trial court never compared the language of Mr. Brumfield’s signed waiver of immunity (paragraphs 2 and 5) with the language of CPL 190.45 (1) to determine whether the waiver document compiled with 16 the statute. This comparison, standing alone, shows that Mr. Brumfield signed a valid and enforceable waiver-of-immunity document for the traffic-stop incident. But, even assuming arguendo that examining the content of the three deleted paragraphs was a necessary exercise (to determine whether Mr. Brumfield’s signed waiver was valid and enforceable), the trial court effectively turned the analysis upside down. The trial court improperly assumed that all paragraphs of the People’s “standard” waiver of immunity form (“utilized in Monroe County for a number of years” [R 8]) were presumptively necessary. Thereafter, the trial court improperly put the burden on Mr. Brumfield to “justify” his deletion of the three paragraphs from the standard form. To the contrary, the burden should have been placed upon the People to justify their inclusion of paragraphs 3, 4 and 6. They drafted the document and would gain its primary benefit - the ability to prosecute a Grand-Jury-testifying defendant. After summarizing the arguments of the parties (R 7-8) and quoting CPL 190.45 (1) (R 9), the trial court adopted the People’s position (R 32) that the statute “provides no suggested form for a waiver of immunity” (R 9). Perhaps, strictly speaking, the statute provides no particular “form” for a waiver of immunity. But, unambiguously, the statute articulates the “substance” necessary for any general waiver-of-immunity document to be a valid written instrument for immunity purposes. The remainder of the trial court’s decision mischaracterized the three paragraph deletions as an improper attempt by Mr. Brumfield to somehow “limit” the scope of the People’s inquiry (R 10-11). The trial court concluded that Mr. Brumfield’s failure “to 17 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” (R 11). This blame-the-defendant conclusion was erroneous. Under Mr. Brumfield’s signed waiver-of-immunity document, the People could have fully questioned him about the traffic-stop incident of February 5, 2008. None of the paragraph deletions caused the waiver-of-immunity document to become invalid or unenforceable. The Right-to-Counsel Paragraph Deleted paragraph 3 stated: “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. 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 [sic] to advise me” (R 38). This language originates from CPL 190.45 (3) (a provision expressly related to prosecution witnesses) and from CPL 190.52 (a statutory right-to-counsel provision for any Grand Jury witness who signs a waiver of immunity). Here, the People did not call 18 Mr. Brumfield as a witness and, more importantly, Mr. Brumfield already had an assigned attorney. Under any view of the relevant facts, paragraph 3 was superfluous. Reasonably interpreted, CPL 190.45 (3) involves witnesses, called by the People, who are not represented by counsel. The obvious purpose of the “right-to-counsel” advisement is to give such unrepresented witness an opportunity to obtain counsel (if he or she so desires). Once the witness has obtained counsel, the “right-to-counsel” advisement serves no purpose. Moreover, nothing requires this “right-to-counsel” advisement to be contained in the waiver document. The advisement may be oral or may be contained in a separate document. Indeed, the advisement normally should occur before the unrepresented witness executes the waiver of immunity (not simultaneously with it). If the People’s witness, after receiving the advisement, elects to exercise his or her right to counsel, then the witness must be “accorded a reasonable time in which to obtain and confer with counsel” (CPL 190.45 [3]). Again, once such witness re-appears with counsel and is prepared to execute the written waiver, any further right-to-counsel advisement becomes unnecessary. The People’s discussion of People v Chapman (69 NY2d 497 [1987]) omits one crucial fact: Chapman involved a defendant, unrepresented at the time of the Grand Jury proceeding, whose state constitutional right to counsel had indelibly attached (because a felony complaint had been filed) (People v Samuels, 49 NY2d 218 [1980]). This Court held that the defendant could not validly waive his statutory right to transactional 19 immunity without the searching inquiry necessary for a valid waiver of the defendant’s constitutional right to counsel (People v Chapman, 69 NY2d at 501-503). In Chapman, the Judge presiding over the Grand Jury proceeding did not conduct a sufficiently searching inquiry: “To the contrary, defendant’s evident lack of understanding, as reflected by his statements that he could not afford an attorney and that he was unaware of his right to have the advice of counsel during his testimony, suggests that any waiver may well have been made in ignorance of the protections that the constitution and the statutes afford (see NY Const, art I, § 6; CPL 190.52 [1])” (69 NY2d at 501). Here, unlike Chapman, Mr. Brumfield had an attorney. Here, unlike Chapman, no constitutional right-to-counsel problem needed to be addressed. The Permission-to-Ambush Paragraph Deleted paragraph 4 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” (R 39). On its face, this paragraph is erroneous (see e.g. People v Smith, 87 NY2d 715 [1996] [defendant’s waiver of his privilege against self-incrimination did not include questioning about unrelated pending criminal charges]) and violates the prosecutor’s “duty of fair dealing to the accused” (see generally People v Pelchat, 69 NY2d 97, 105 [1984] [as a public officer, a prosecutor should seek justice, not just conviction]). When a Grand Jury prosecutor gives inadequate notice regarding the Grand Jury’s investigation or asks improper questions, the indictment should be dismissed (see e.g. People v Batalis, 27 NY2d 958 [1970] [the Grand Jury prosecutor never informed the 20 defendant, before he testified, that he had already been indicted] affirming People v Batalis, 32 AD2d 1068, 1069 [1969] [elementary fairness required such disclosure because “[i]f advised by the District Attorney that he had been indicted, defendant may well not have testified”]; see e.g. People v Gallagher, 18 Misc3d 1135 [A] [unreported case] 2008 WL 480077, * 10 [Sup Ct, Queens County 2008] [The grand jury prosecutor’s cross-examination of the rape defendant about issues neither related to the facts nor the defendant’s credibility (such as his personal relationship with his wife and his “elevated responsibility” as an elected official) violated the People’s duty of fair dealing]). Interestingly, the People now argue that the striking of Paragraph 4 “is the most significant alteration to the Waiver of Immunity” because “[r]emoval of this paragraph directly impacted the extent of the waiver” (People’s Brief at 18-19).1 But the People never really explain this “direct impact.” If the People mean that Mr. Brumfield refused to give them carte blanche to ask him any question on any topic, then they are correct. If the People mean, however, that Mr. Brumfield somehow limited their ability to question him fully about the traffic-stop incident, then they are wrong. The “extent” or scope of Mr. Brumfield’s express waiver of his Fifth Amendment right to remain silent equaled the scope of Mr. Brumfield’s right to testify before the Grand Jury (see People v Smith, 87 NY2d 715, 719 [1996]). 1 In their Application for Leave to Appeal, however, the People identified Paragraph 3 (right-to- counsel advisement) as the most important provision “necessary to protect the People from any subsequent claim of immunity” (see People’s “Letter of Support” dated November 21, 2013 at 2- 3). 21 Certainly, a defendant has no “right” to testify about a matter completely unrelated to the matter(s) under Grand Jury investigation (see e.g. People v Smith, 84 NY2d 998, 1001 [1994] [prosecutor properly attempted to get the defendant to focus on matters relevant to the case being investigated, rather than giving “her life story” to the Grand Jury]). By the same token, however, the People’s “right” to examine a Grand-Jury- testifying defendant must be limited to questions about “any relevant and competent evidence concerning the case under consideration” (CPL 190.50 [5] [b]). In other words, the “scope” of the prosecutor’s right to examine the defendant cannot exceed the “scope” of the defendant’s right to testify (CPL 190.50 [5] [b] [upon waiving immunity pursuant to section 190.45, a defendant must be permitted “to give any relevant and competent evidence concerning the case under consideration”]). Here, the People had no legal authority to condition Mr. Brumfield’s right to appear before the Grand Jury on his “agreement” to answer questions on unspecified “subjects, matters or areas of conduct.” When Mr. Brumfield served the People with notice that he wished to testify before the Grand Jury, the People had indicated that the “subject, matter or area of conduct” under Grand Jury investigation was a traffic-stop incident occurring on February 5, 2008. No other specific subjects, matters or areas of conduct were identified by the People as fodder for questioning. Quite properly, Mr. Brumfield would not agree to be ambushed by questions about topics unrelated to the February 5, 2008 incident. The People raise an erroneous, straw-man-like argument when they suggest that, based upon the language of Mr. Brumfield’s reciprocal notice (that he wished to testify 22 “regarding the charges currently pending against him”), he “could potentially have received transactional immunity on the very charge the People sought to indict” (People’s Brief at 20-21). The People note that the pre-indictment charges against Mr. Brumfield did not include any felonies (because the arresting officer had only charged Mr. Brumfield with non-felonies). Thereafter, citing no relevant case law, the People claim that Mr. Brumfield’s failure to add these never-charged felonies to his reciprocal notice (requesting a Grand Jury appearance) would somehow open the door to transactional immunity. Essentially, the People fault Mr. Brumfield for not being clairvoyant (for not predicting what non-pending felonies the Grand Jury might indict). Here, the prosecutor’s Grand Jury notice listed all of the pending non-felonies (R 36). Mr. Brumfield’s reciprocal notice did not repeat this list. But it did include the crime report number for the traffic-stop incident (arguably, an expansive, not restrictive, inclusion) (R 37). In any event, even assuming arguendo that Mr. Brumfield’s reciprocal notice had “restrictive” language, that language was never incorporated into the waiver- of-immunity document. When viewed reasonably, Mr. Brumfield’s reciprocal notice was nothing more than a specific response to the People’s Grand Jury notice, not some clever attempt to gain transactional immunity for previously-uncharged felonies (contrast People v Dunn, 14 AD3d 364 [1st Dept 2005] [where the defendant improperly tried “to limit his waiver of immunity to the crimes charged in the felony complaint” despite having notice that uncharged crimes arising from other incidents were also under investigation]; see also People v Dunn, Brief for Respondent, 2004 WL 5473978, *28 [defendant improperly 23 added a hand-written amendment to the waiver form, stating that he would only testify about “the charges listed in Felony Complaint Docket # 2002NY0640 exclusively”]). Reasonably interpreted, CPL 190.45 (4) contemplates a situation where the Grand Jury investigation involves more than one incident or “case.” Situations may arise where a defendant wishes to testify about one incident, but not others. Exercising prosecutorial discretion, the People may agree with the defendant, in writing, that the People’s interrogation of the witness will be limited “to certain specified subjects, matters or areas of conduct” (CPL 190.45 [4]). As a general rule, the People have no obligation to limit their inquiry. But, if they do agree, then they must honor their agreement. A fundamentally different issue arises if the People seek to question a Grand-Jury- testifying defendant about unknown cases (incidents not included in the People’s Grand Jury notice and not otherwise disclosed to the defendant). Such “ambush” cross- examination would violate the prosecutor’s “duty of fair dealing” (see e.g. People v Smith, 155 Misc2d 596, 600 [Orange County Court 1992] [“the District Attorney, in all fairness to the defendant . . . must inform [him] of such other charges”]). A defendant cannot knowingly, voluntarily and intelligently waive his constitutional right against self-incrimination and exercise his statutory right to testify before the Grand Jury without knowing the full nature of the Grand Jury investigation (see Johnson v Zerbst, 304 US 458, 464 [1938] [“A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege”]). “Upon serving the proper notice, appearing at the given time and place, and executing a waiver of immunity, a prospective defendant ‘must be permitted to testify before the grand jury and to give 24 any relevant and competent evidence concerning the case under consideration’ (CPL 190.50 [5] [a], [b])” (People v Smith, 87 NY2d 715, 719 [1996] [emphasis added]). This statutory rule presupposes that, before the defendant’s testimony, the permissible area of inquiry has been sufficiently identified to permit a “relevancy” determination. By deleting paragraph 4, Mr. Brumfield was not seeking to limit questioning about the February 5, 2008 traffic-stop incident; he was refusing to agree to be ambushed by questions about other unknown topics. The Unlimited-Use-of-Testimony Paragraph Deleted paragraph 6 stated: “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” (R 39). The People ask this Court to ignore the words “I do hereby consent and agree,” claiming that these words do not really mean what they unambiguously say (People’s Brief at 17 [“Although stated in terms of ‘consent,’ this paragraph simply explains what occurs by operation of law”]). Once again, the People have identified no reason or rationale for finding that this particular paragraph deletion caused Mr. Brumfield’s signed waiver-of-immunity document to become invalid or unenforceable. This omission is not surprising because the People have no legal authority to impose this “consent-and-agree” condition on Mr. Brumfield’s right to appear before the Grand Jury. Statutes and case law, not the People, determine the permissible future use of Grand Jury testimony (compare People v 25 Thomas, 300 AD2d 1034 [4th Dept 2002] [a waiver of immunity contemplates the use of Grand Jury testimony in any later proceeding where it becomes material]). By deleting paragraph 6, Mr. Brumfield was not limiting the People’s future use of his Grand Jury testimony; he was refusing to agree to any expanded future use. G. “Gamesmanship” Ignoring paragraphs 2 and 5 (left intact by Mr. Brumfield), the People suggest that Mr. Brumfield deleted paragraphs 3, 4 and 6 solely to create an appellate issue. They accuse him of “gamesmanship” (People’s Brief at 13-14). But, as previously argued, Mr. Brumfield was not obliged to sign the People’s original, unaltered waiver-of-immunity form. Paragraph 3 (right-to-counsel) was superfluous; Paragraph 4 (permission-to-ambush) was erroneous; and Paragraph 6 (unlimited-future-use-of-testimony) was coercive and unauthorized. The People’s three “gamesmanship” cases are all distinguishable from this case. In People v Watkins (40 AD3d 290 [1st Dept 2007]), the defendant’s attorney engaged in “deliberately dilatory and evasive conduct” that caused postponements and unreasonable delay in arranging for the defendant’s grand jury appearance. Neither Mr. Brumfield nor his attorney engaged in such tactics. In People v Crisp (246 AD2d 84, 86 [1st Dept 1998]), the defendant’s attorney tried to serve his client’s notice by mail. He sent it to the District Attorney six days before the scheduled Grand Jury presentment. But, for some reason, the defendant’s notice was not actually received by the District Attorney for eleven days (five days after the scheduled presentment and four days after the indictment was filed). The Crisp court 26 held that the notice was untimely because prosecutorial compliance with their statutory obligations would be impossible without actual notice of the defendant’s request for a Grand Jury appearance. To support its “actual notice” holding, the Crisp court discussed “gamesmanship” under a hypothetical set of facts. The court observed that if “mailing” (rather than “actual notice”) were sufficient service, then an incarcerated defendant could mail his notice (of intent to testify before the Grand Jury) on the last day of the CPL 180.80 period and procure a dismissal of the indictment (246 AD2d at 86). Nothing of that sort happened here. In People v Edwards (283 AD2d 219 [1st Dept 2001]), the court did not even mention “gamesmanship.” Instead, the court held that the defendant had been afforded a reasonable opportunity to testify, concluding that “defendant’s failure to testify resulted from the inadequacy of defense counsel’s communications with the prosecution concerning the scheduling of defendant’s Grand Jury appearance.” No scheduling issues hampered Mr. Brumfield’s Grand Jury appearance. “Gamesmanship” suggests unwarranted behavior calculated to obtain some unfair procedural advantage (see e.g. People v Clark, 267 AD2d 4 [1st Dept 1999] [the defendant “unreasonably refused to testify on the date when he, his attorney, and the grand jurors were present”]; see e.g. People v Savareese, 258 AD2d 484, 485 [2d Dept 1999] [“Although given an opportunity to testify and provided with two attorneys to represent him, the defendant became belligerent toward both counsel and refused to go into the Grand Jury room, claiming, without explanation, that he needed more time to 27 prepare and to compose himself”]). Here, Mr. Brumfield did not play any games. He signed a complete and valid waiver of immunity. His attorney was present. He was ready to testify. The People had no lawful authority to prevent him from doing so. 28 CONCLUSION The Appellate Division correctly dismissed the indictment with leave to re-present (CPL 190.50; 210.20; NY Const, art I, § 6). Dated: April 22, 2014 Respectfully submitted, TIMOTHY P. DONAHER Monroe County Public Defender Attorney for Respondent _________________________ BY: DAVID R. JUERGENS Assistant Public Defender 10 N. Fitzhugh Street Rochester, New York 14614 (585) 753-4093