by William T. Easton, a/k/a "Bill", a/k/a "Billy"

In recent years our firm has noted the prosecution’s increased use of monikers or “a/k/a”s in the captions of indictments, especially for those defendants charged federally with gang-associated offenses such as Racketeer Influenced and Corrupt Organization (RICO) crimes, CCE (Continued Criminal Enterprise) crimes, and defendants charged state-side with gang-related offenses.       

Oddly, this firm has not detected a similar increase in our white collar practice, even in conspiracy cases involving multiple defendants.  Thus, a defendant in a white collar case who is widely known as “Chip,” “the Chipster” or “Biff” will usually be indicted under his or her own proper name, while a “blue collar” defendant who has a nickname of “Money,” “Killer” or “Smooth” will usually be indicted with his moniker included prominently in the caption of the indictment.

This misuse of a nickname should be resisted by motion. As a threshold, you should draw the distinction between an alias and a “street name” (or a nickname). The former is an official use of an assumed name often to evade detection or escape responsibility. The reference to the use of an alias should be viewed as a prior “bad act” under either People v. Sandoval, 34 NY 2d 371 (1974), or People v. Molineux ,168 NY 264 (1901) and subjected to the usual procedural and substantive  protections of these doctrines. New York Law is surprisingly good in this area. See People v. Walker, 83 2d 455 (1994); People v. Butler, 138 A.D.2d 615 (2d Dept. 1988). As such, the prosecution should not be permitted to short cut the process by simply appending the alias to the indictment. See People v. Klukofsky, 201 Misc 457 (1951).

Just as pernicious, however, is the use of the “street name”--an unofficial moniker--which you should also move to strike. The motion should be in two parts. First, you should move to strike the nickname or alias from the indictment as surplusage, or alternatively request the Court  not to read it to the jury. There is no reason to read the caption of the indictment including the moniker to the jury.  Most trial courts will agree with you on this, especially when accompanied by a modest concession that you will not assert a defense that a person other than the defendant who has the “street name” of your client committed the offense, not your client. See People v. Bellamy, 26 AD 3d 638 (3rd Dept. 2006).

Second, you should bar reference to the moniker itself, and relatedly the prosecution’s misuse of it either during cross examination or summation.  The prosecution almost always tries to make the street name an indicator of your client’s character or community reputation (usually for violence, dishonesty or criminality). In United States v. Farmer, 583 F.3d 131 (2d Cir 2009), the Second Circuit reversed a federal attempted murder conviction and roundly condemned this practice. In Farmer, the prosecutor indicted the homicide defendant and included the moniker “Murder” in the indictment and copiously referred to the street name in summation. The Second Circuit ruled:

 a potentially prejudicial nickname should not be used in a manner beyond the scope of its proper admission that invites unfair prejudice. Federal Rule of Evidence 404(a) provides (with exceptions not applicable here) that “[e]vidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion.” It is the ethical obligation of the prosecutor, and the legal obligation of the court, to ensure that this rule is observed....In this case, the prosecutors, in their addresses to the jury, invited prejudice by repeatedly emphasizing Farmer's nickname in a manner designed to suggest that he was known by his associates as a murderer and that he acted in accordance with that propensity in carrying out the acts charged in the indictment. This abuse of Farmer's nickname entitles Farmer to a new trial...

Thus, in almost all cases, you should move to strike a “street name” from the caption of the indictment and take steps to further ensure that the prosecution does not attempt to use the street name for purposes of showing reputation or propensity.  Farmer is strong support for such motion.

by William T. Easton, a/k/a "Bill", a/k/a "Billy"

In recent years our firm has noted the prosecution’s increased use of monikers or “a/k/a”s in the captions of indictments, especially for those defendants charged federally with gang-associated offenses such as Racketeer Influenced and Corrupt Organization (RICO) crimes, CCE (Continued Criminal Enterprise) crimes, and defendants charged state-side with gang-related offenses.       

Oddly, this firm has not detected a similar increase in our white collar practice, even in conspiracy cases involving multiple defendants.  Thus, a defendant in a white collar case who is widely known as “Chip,” “the Chipster” or “Biff” will usually be indicted under his or her own proper name, while a “blue collar” defendant who has a nickname of “Money,” “Killer” or “Smooth” will usually be indicted with his moniker included prominently in the caption of the indictment.

This misuse of a nickname should be resisted by motion. As a threshold, you should draw the distinction between an alias and a “street name” (or a nickname). The former is an official use of an assumed name often to evade detection or escape responsibility. The reference to the use of an alias should be viewed as a prior “bad act” under either People v. Sandoval, 34 NY 2d 371 (1974), or People v. Molineux ,168 NY 264 (1901) and subjected to the usual procedural and substantive  protections of these doctrines. New York Law is surprisingly good in this area. See People v. Walker, 83 2d 455 (1994); People v. Butler, 138 A.D.2d 615 (2d Dept. 1988). As such, the prosecution should not be permitted to short cut the process by simply appending the alias to the indictment. See People v. Klukofsky, 201 Misc 457 (1951).

Just as pernicious, however, is the use of the “street name”--an unofficial moniker--which you should also move to strike. The motion should be in two parts. First, you should move to strike the nickname or alias from the indictment as surplusage, or alternatively request the Court  not to read it to the jury. There is no reason to read the caption of the indictment including the moniker to the jury.  Most trial courts will agree with you on this, especially when accompanied by a modest concession that you will not assert a defense that a person other than the defendant who has the “street name” of your client committed the offense, not your client. See People v. Bellamy, 26 AD 3d 638 (3rd Dept. 2006).

Second, you should bar reference to the moniker itself, and relatedly the prosecution’s misuse of it either during cross examination or summation.  The prosecution almost always tries to make the street name an indicator of your client’s character or community reputation (usually for violence, dishonesty or criminality). In United States v. Farmer, 583 F.3d 131 (2d Cir 2009), the Second Circuit reversed a federal attempted murder conviction and roundly condemned this practice. In Farmer, the prosecutor indicted the homicide defendant and included the moniker “Murder” in the indictment and copiously referred to the street name in summation. The Second Circuit ruled:

 a potentially prejudicial nickname should not be used in a manner beyond the scope of its proper admission that invites unfair prejudice. Federal Rule of Evidence 404(a) provides (with exceptions not applicable here) that “[e]vidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion.” It is the ethical obligation of the prosecutor, and the legal obligation of the court, to ensure that this rule is observed....In this case, the prosecutors, in their addresses to the jury, invited prejudice by repeatedly emphasizing Farmer's nickname in a manner designed to suggest that he was known by his associates as a murderer and that he acted in accordance with that propensity in carrying out the acts charged in the indictment. This abuse of Farmer's nickname entitles Farmer to a new trial...

Thus, in almost all cases, you should move to strike a “street name” from the caption of the indictment and take steps to further ensure that the prosecution does not attempt to use the street name for purposes of showing reputation or propensity.  Farmer is strong support for such motion.

The New York Court of Appeals, in People v Brumfield (2015 NY Slip Op 01377 [2/17/15]), affirmed the holding of the Appellate Division, Fourth Department (109 AD3d 1105 [4th Dept 9/27/13]), that the District Attorney cannot condition a defendant' right to testify at the grand jury on the defendant's willingness to sign a waiver form that waives more rights than required by CPL 190.45 and 190.50.

As discussed in a post after the Appellate Division's decision, 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. 

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 illegal 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 statute 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  Mr. Brumfield with the Monroe County District Attorney's waiver of immunity form containing language not required by statute, Brumfield deleted that language from the form and then signed the amended form before a notary public.

Despite Mr.Brumfield having fully complied with the statutory conditions for him to testify at the grand jury, the ADA refused to permit Mr. Brumfield to testify before the grand jury.  Mr. 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 first 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...

 This week, the Court of Appeals affirmed thsi holding, writing that 

Defendant's statutory right to testify before the grand jury was violated. This right "'must be scrupulously protected'"(People v Smith , 87 NY2d 715, 721 [1996], quoting People v Corrigan , 80 NY2d 326, 332 [1992]). Even with the deletions made by defendant, he complied with the waiver of immunity as required under CPL 190.45; that is, he left intact the provisions that stated he waived his privilege against self-incrimination and any immunity to which he [*3]would be entitled. Defendant was only required to meet the requirements of the statute, and nothing more to make a valid written waiver of immunity. The statute is clear, straightforward and concise. When a defendant meets the waiver of immunity requirements of CPL 190.45, he or she must be permitted to testify.

It should be noted that there is nothing in this decision which precludes the District Attorney from continuing to use the form. seeking to have defendants waive more rights than required by statute.. Hopefully, however, attorneys  will  no longer agree to sign this waiver form now that defendants who refuse to sign the form will no longer be penalized.

Excellent work by both John Bradley and by Assistant Monroe County Public Defender David  Juergens, who represented Mr. Brumfield on appeal.

The New York Court of Appeals, in People v Brumfield (2015 NY Slip Op 01377 [2/17/15]), affirmed the holding of the Appellate Division, Fourth Department (109 AD3d 1105 [4th Dept 9/27/13]), that the District Attorney cannot condition a defendant' right to testify at the grand jury on the defendant's willingness to sign a waiver form that waives more rights than required by CPL 190.45 and 190.50.

As discussed in a post after the Appellate Division's decision, 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. 

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 illegal 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 statute 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  Mr. Brumfield with the Monroe County District Attorney's waiver of immunity form containing language not required by statute, Brumfield deleted that language from the form and then signed the amended form before a notary public.

Despite Mr.Brumfield having fully complied with the statutory conditions for him to testify at the grand jury, the ADA refused to permit Mr. Brumfield to testify before the grand jury.  Mr. 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 first 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...

 This week, the Court of Appeals affirmed thsi holding, writing that 

Defendant's statutory right to testify before the grand jury was violated. This right "'must be scrupulously protected'"(People v Smith , 87 NY2d 715, 721 [1996], quoting People v Corrigan , 80 NY2d 326, 332 [1992]). Even with the deletions made by defendant, he complied with the waiver of immunity as required under CPL 190.45; that is, he left intact the provisions that stated he waived his privilege against self-incrimination and any immunity to which he [*3]would be entitled. Defendant was only required to meet the requirements of the statute, and nothing more to make a valid written waiver of immunity. The statute is clear, straightforward and concise. When a defendant meets the waiver of immunity requirements of CPL 190.45, he or she must be permitted to testify.

It should be noted that there is nothing in this decision which precludes the District Attorney from continuing to use the form. seeking to have defendants waive more rights than required by statute.. Hopefully, however, attorneys  will  no longer agree to sign this waiver form now that defendants who refuse to sign the form will no longer be penalized.

Excellent work by both John Bradley and by Assistant Monroe County Public Defender David  Juergens, who represented Mr. Brumfield on appeal.