One would think that the proposition that District Attorney cannot ignore or flaunt unambiguous statutory language is not a remarkable proposition. Indeed, as attorneys who prosecute others for acting as though adherence to the the strict requirements of law is only optional, one would think that prosecutors would be sticklers for compliance with statutory language. As detailed below, however, the Monroe County District Attorney's office apparently believed that it could ignore the statutory provisions regarding a defendant's right to testify at the grand jury and instead, unilaterally impose its own set of requirements and conditions for a defendant's right to testify. Even worse, trial judges, and many defense attorneys in Monroe County acquiesced in this lawless deprivation of defendants' rights. Finally, as detailed below, the Appellate Division, Fourth Department, in People v Brumfield (2013 NY Slip Op 06120 [4th Dept  9/27/13]), held that the District Attorney cannot validly refuse to permit a defendant to testify at the grand jury where the defendant has complied with the statutory requirements, but refused to agree to the additional waivers sought by the District Attorney.

The Criminal Procedure Law provides that a defendant had a right to testify at a grand jury if a defendant serves upon the People a notice of his intent to testify before the grand jury, appears at the appropriate time and place, and signs and submits to the grand jury "a waiver of immunity pursuant to [CPL] 190.45," the defendant "must be permitted to testify before the grand jury" (CPL 190.50 [5] [b]). CPL 190.45 (1) provides that a waiver of immunity "is a written instrument" in which a person who is to testify before the grand jury stipulates that he or she "waives [the] privilege against self-incrimination and any possible or prospective immunity to which he [or she] would otherwise become entitled, pursuant to [CPL] 190.40, as a result of giving evidence in such proceeding."

The Monroe County District Attorney has a waiver of immunity form that added six paragraphs of waiver of rights not set forth in the statute.  Included in this form are paragraphs in which the defendant states (1) that he understands "that the possible questioning before the Grand Jury will not be limited to any specific subjects, matters or area of conduct; (2) that he understands that by signing the form he gives "up all immunity and privilege to which [he] 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"; and (3) he does "consent and agree tot he use of any testimony given by me before the Grand Jury or evidence hereby produced by me upon any investigation, hearing, trial, prosecution, or proceeding."

There is nothing wrong with the prosecutor seeking to have defendants waive additional rights. But it is difficult to understand why the defendant would want to sign that form when there is nothing offered to the defendant in exchange for giving up additional rights. Yet, most attorneys in Monroe County acquiesced to this request and had their clients sign the Monroe County District Attorney's form.

On attorney who resisted was Assistant Monroe County Public Defender John Bradley, who saw no reason for his client to waive more that the statue requires and who did not believe that the prosecutor could ignore that statute and unilaterally impose additional conditions before his client could testify. His client, Mr. Brumfield, agreed.So when the ADA presented Brumfield with the Monroe County District Attorney's waiver of immunity form containing three parapgraph not required by statute, Brumfield deleted six paragraphs from that form and then signed the form before a notary public.

Despite Mr.Brumfield having fully complied with the statutory conditions for him to testify at the grand jury, the The District Attorney refused to permit Brumfield to testify before the grand jury. Brumfield then moved to dismiss the indictment obtained against him on the ground that his right to testify at the grand jury had been violated.Seems like a fairly easy motion pursuant to CPL 190.50 [5] [c]. Disappointingly, however, the trial court judge, denied the motion finding that  the signed waiver of Brumfield's privilege against self-incrimination and any immunity to which he would otherwise be entitled pursuant to CPL 190.40 was not a valid waiver.

This decision was reversed on appeal by the Appellate Division, Fourth Department,  which held that

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]). It is well settled that a defendant's statutory right to testify before the grand jury " must be scrupulously protected' " (People v Smith, 87 NY2d 715, 721, quoting People v Corrigan, 80 NY2d 326, 332). We conclude that, because defendant complied with the requirements of CPL 190.50 (5) but was nevertheless denied his right to testify before the grand jury, the court erred in denying defendant's motion to dismiss the indictment. We therefore reverse the judgment of conviction, grant the motion, and dismiss the indictment...

There is nothing in this decision which precludes the District Attorney from continuing to use the form. Hopefully, however, attorneys  will  no longer agree to sign this waiver form and defendants who refuse to sign the form will no longer be penalized.

Great work by David Juergens on the appeal.