The People, Appellant,v.Michael S. Brumfield, Respondent.BriefN.Y.January 6, 2015Brief Completed: May 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- MICHAEL S. BRUMFIELD, Defendant-Respondent. REPLY 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 TABLE OF AUTHORJTIES POINT I CONCLUSION The prosecutor's efforts to make a clear record that defendant was knowingly, voluntarily, and intelligently waiving immunity before testifying in grand jury did not deprive defendant of his right to testify. -i- ii .I 7 TABLE OF AUTHORITIES CASES People v. Crampe, 1 7 NY3d 469 (20 11) ................................. 2 People v. Lopez, 71 NY2d 662 ( 1988) ...... . ........... .. .. . . . ...... . .. 2 People v. Seaburg, 74 NY2d 1 (1989) ? .................. ................ - POINT I The prosecutor's efforts to make a clear record that defendant was knowingly, voluntarily, and intelligently waiving immunity before testifying in grand jury did not deprive defendant of his right to testify. The Waiver of Immunity at issue in this case was designed to insure that a prospective witness understands his or her rights before signing the waiver and the effect that signing a waiver will have on that witness in the future. The waiver of immunity does not require a prospective witness waive any rights other than those waived under either the statutory scheme or by operation of law. The waiver explains, in laymen's terms, the rights of the witness and the effect of the waiver, thus creating a record that the witness's waiver of immunity was knowing, intelligent, and voluntary. Defense counsel at grand jury crossed off that portion of the waiver which advised defendant of his right to counsel and counsel's limited role in the proceeding. Counsel, apparently of the belief that no one has the right to inquire into whether a defendant understands his rights, argued 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 ). 1 Quite simply counsel is wrong. When a criminal defendant is waiving important constitutional or statutory rights, New York law does not assume that an attorney for the defendant advised his client of all the rights he may be waiving. The law requires the court, or in this case the prosecutor, ensure that the defendant is knowingly, intelligently, and voluntarily waiving these rights. See e.g. People v. Crampe, 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, 74 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. The same logic applies to paragraph (6), the paragraph counsel crossed out which advised the defendant that his testimony before the grand jury could be used against him in the future. The language in 2 paragraph (6) advised the defendant what would happen as a matter of law if he waived immunity and testified before the grand jury- his testimony could be used against him in a future proceeding. The People were fulfilling their responsibility of insuring that defendant knew the consequences of waiving immunity and testifying before the grand jury. This paragraph did not ask him to waive any additional rights, it simply articulated the direct consequences of his decision. Defendant's failure to testify in Grand Jury was of his own design, not that of the People. The People attempted create a record to establish that defendant's decision to waive immunity and testify before the grand jury was knowing, intelligent, and voluntary. Counsel for defendant, by insisting that such issues were solely of his concern and outside the province of the prosecution, misapprehended the role of the prosecutor in the grand jury and laws of this State. A person who is about to enter the grand jury and testify regarding an event for which they face indictment should only do so knowing and understanding the full consequences of such action. The efforts by the People to make a record of that understanding did not deny defendant his right to testify. 3 CONCLUSION The Appellate Division, Fourth Department's decision reversing defendant's conviction and dismissing the indictment should be reversed and defendant's conviction affirmed. May, 2014 Respectfully submitted, v Y: KE~L CHRISTIN WOLFORD Assistant District Attorney Ebenezer Watts Building Suite 832 Rochester, NY 14614 (585) 753-4335 4 STATE OF NEW YORK COURT OF APPEALS II ---------------------------------- 1 THE PEOPLE OF THE STATE OF NEW YORK, Appellant, -vs- MICHAEL S. BRUMFIELD, Defendant-Respondent. AFFIDAVIT OF SERVICE BY MAIL ,j I! ----------------------------- STATE OF NEW YORK) COUNTY OF MONROE) SS: CITY OF ROCHESTER) 1 1 CYNTHIA A. BELLUCCO, being duly sworn, deposes and says that deponent I is not a party to this action, is over the age of eighteen ( 18) years and resides at I I. Rochester, New York. That on the llth day of May, 2014, deponent served three (3) copies of Reply Brief for Appellant upon David Juergens, Assistant Public Defendant attorney for Defendant-Respondent in this action at 10 North Fitzhugh Street Rochester, New York 14614, by depositing true copies ofthe 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 ofNew York. Sworn to before me this IJTII day ofMay, 2014. N RY PUBLIC JEANNE T. HEllER 'IJTARY PliBLIC, Slale ol N.Y., Uontc 1 Commission ~Ynir,c " , \ , ld Wl _ 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: May 13, 2014