People v. Stewart

Appellate Division of the Supreme Court of New York

People v. Stewart

247 A.D.2d 849, 669 N.Y.S.2d 102, 1998 N.Y. App. Div. LEXIS 1148

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 4, 1998

StatusPublished

This text of 247 A.D.2d 849 (People v. Stewart) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Stewart, 247 A.D.2d 849, 669 N.Y.S.2d 102, 1998 N.Y. App. Div. LEXIS 1148 (N.Y. Ct. App. 1998).

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Order affirmed. Memorandum: Supreme Court properly dismissed the indictment on the ground that defendant’s waiver of immunity did not comply with CPL 190.45 and that the testimony of defendant before the Grand Jury thus rendered him immune from prosecution (see, CPL 190.40 [2] [a]). The record establishes that defendant appeared before an Onondaga County Grand Jury and signed a waiver of immunity, which provided in part: “I, Richard Stewart * * * swear pursuant to the provisions of § 190.45 of the Criminal Procedure Law of the State of New York, and do hereby waive all immunity which I would otherwise obtain from indictment, prosecution, punishment, penalty or forfeiture for or on account of or relating to any transaction * * * before the Grand Jury of the County of Onondaga, State of New York”. Defendant’s waiver of immunity was signed before the foreman of the Grand Jury and [850]*850witnessed by defendant’s counsel. No separate oral oath was administered to defendant in conjunction with his waiver of immunity. The court in dismissing the indictment concluded that defendant’s waiver was not effective, under CPL 190.45 (2).

We agree. CPL 190.45 (2) provides that “[a] waiver of immunity is not effective unless and until it is sworn to before the grand jury conducting the proceeding in which the subscriber has been called as a witness.” The requirement that a waiver of immunity be “sworn to before the grand jury” (CPL 190.45 [2]) was not satisfied when defendant signed the waiver in the presence of the Grand Jury foreman. Under section 190. 45, subscribing and swearing to the waiver before the Grand Jury are distinct requirements. Only the first requirement was met in the instant case. Defendant was never administered an oath before the Grand Jury prior to the execution of the waiver of immunity, and he never ratified the waiver after being placed under oath (cf., People v Hanley, 227 AD2d 144, 144-145; People v Cole, 196 AD2d 634, 636; People v Allen, 163 AD2d 396, 397-398, lv denied 77 NY2d 875, 957). The fact that the written instrument contains language that defendant “swear [s]” that he waives immunity is not a substitute for having the waiver sworn to before the Grand Jury.

In concluding that defendant effectively waived immunity by signing the waiver before the Grand Jury foreman, the dissent sanctions the People’s substantial compliance with CPL 190.45 (2). The Court of Appeals has made clear, however, that a waiver of immunity is invalid and ineffective unless there is strict compliance with “the unequivocal direction of CPL 190.45 (2)” (People v Higley, 70 NY2d 624, 626; see, CPL 190.45 [3]; People v Goldson, 145 AD2d 982). “Where the Legislature has unambiguously required that a waiver of immunity be sworn to before the Grand Jury, and where the Legislature has unambiguously provided that a waiver is ineffective unless and until so sworn, it is not for the People to fashion a substitute for the procedure prescribed by statute” (People v Higley, supra, at 626).

All concur except Lawton and Wisner, JJ., who dissent and vote to reverse in the following Memorandum.

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Order affirmed. Memorandum: Supreme Court properly dismissed the indictment on the ground that defendant’s waiver of immunity did not comply with CPL 190.45 and that the testimony of defendant before the Grand Jury thus rendered him immune from prosecution (see, CPL 190.40 [2] [a]). The record establishes that defendant appeared before an Onondaga County Grand Jury and signed a waiver of immunity, which provided in part: “I, Richard Stewart * * * swear pursuant to the provisions of § 190.45 of the Criminal Procedure Law of the State of New York, and do hereby waive all immunity which I would otherwise obtain from indictment, prosecution, punishment, penalty or forfeiture for or on account of or relating to any transaction * * * before the Grand Jury of the County of Onondaga, State of New York”. Defendant’s waiver of immunity was signed before the foreman of the Grand Jury and [850]*850witnessed by defendant’s counsel. No separate oral oath was administered to defendant in conjunction with his waiver of immunity. The court in dismissing the indictment concluded that defendant’s waiver was not effective, under CPL 190.45 (2).

We agree. CPL 190.45 (2) provides that “[a] waiver of immunity is not effective unless and until it is sworn to before the grand jury conducting the proceeding in which the subscriber has been called as a witness.” The requirement that a waiver of immunity be “sworn to before the grand jury” (CPL 190.45 [2]) was not satisfied when defendant signed the waiver in the presence of the Grand Jury foreman. Under section 190. 45, subscribing and swearing to the waiver before the Grand Jury are distinct requirements. Only the first requirement was met in the instant case. Defendant was never administered an oath before the Grand Jury prior to the execution of the waiver of immunity, and he never ratified the waiver after being placed under oath (cf., People v Hanley, 227 AD2d 144, 144-145; People v Cole, 196 AD2d 634, 636; People v Allen, 163 AD2d 396, 397-398, lv denied 77 NY2d 875, 957). The fact that the written instrument contains language that defendant “swear [s]” that he waives immunity is not a substitute for having the waiver sworn to before the Grand Jury.

In concluding that defendant effectively waived immunity by signing the waiver before the Grand Jury foreman, the dissent sanctions the People’s substantial compliance with CPL 190.45 (2). The Court of Appeals has made clear, however, that a waiver of immunity is invalid and ineffective unless there is strict compliance with “the unequivocal direction of CPL 190.45 (2)” (People v Higley, 70 NY2d 624, 626; see, CPL 190.45 [3]; People v Goldson, 145 AD2d 982). “Where the Legislature has unambiguously required that a waiver of immunity be sworn to before the Grand Jury, and where the Legislature has unambiguously provided that a waiver is ineffective unless and until so sworn, it is not for the People to fashion a substitute for the procedure prescribed by statute” (People v Higley, supra, at 626).

All concur except Lawton and Wisner, JJ., who dissent and vote to reverse in the following Memorandum.

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247 A.D.2d 849, 669 N.Y.S.2d 102, 1998 N.Y. App. Div. LEXIS 1148, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-stewart-nyappdiv-1998.

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