People v. Henderson

• Decision Date: 08 July 1999
• Citation: 257 A.D.2d 213,694 N.Y.S.2d 191
• Parties: , The PEOPLE of the State of New York, Appellant, v. Jermaine HENDERSON, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 191

694 N.Y.S.2d 191

257 A.D.2d 213, The PEOPLE of the State of New York, Appellant, v. Jermaine HENDERSON, Respondent.

Supreme Court, Appellate Division, Third Department, New York.

July 8, 1999.

Sol Greenberg, District Attorney (Christopher D. Horn of counsel), Albany, for appellant.

E. Stewart Jones Jr. (Peter J. Moschetti Jr. of counsel), Troy, for respondent.

Before: MERCURE, J.P., PETERS, SPAIN, CARPINELLO and GRAFFEO, JJ.

CARPINELLO, J.

Appeal from an order of the County Court of Albany County (Rosen, J.), entered August 6, 1998, which granted defendant's motion to dismiss the indictment.

In the early morning hours of October 31, 1997, defendant was in an altercation with off-duty Police Officer William Bonanni while the two were patronizing the Partridge Pub, a bar in the City of Albany. As noted by this court in a related case, there is no dispute that Bonanni, along with off-duty Police Officer Sean McKenna who was also present, assisted in subduing defendant, who was arrested and placed in handcuffs (see, People v. McKenna, 250 A.D.2d 240, 241, 685 N.Y.S.2d 110, lvs. denied 93 N.Y.2d 850, 688 N.Y.S.2d 498, 710 N.E.2d 1097, 93 N.Y.2d 855, 688 N.Y.S.2d 503, 710 N.E.2d 1102, appeal dismissed 93 N.Y.2d 859, 689 N.Y.S.2d 13, 711 N.E.2d 198). Defendant was then transported to the police station, accompanied by Bonanni and McKenna. According to defendant, he was physically assaulted by Bonanni and McKenna in the police garage while he was still restrained.

A Special Prosecutor appointed by County Court to investigate defendant's allegations of police brutality presented evidence to a Grand Jury, which handed up an indictment against Bonanni and McKenna charging them with assault in the second degree and assault in the third degree. Defendant was called as a witness before this Grand Jury without executing a waiver of immunity (see, CPL 190.40[a] ). His testimony mainly involved the alleged events in the police garage, but did "touch upon" events that took place in the bar (compare, id., at 242, 685 N.Y.S.2d 110). For example, when asked to describe one of the individuals that allegedly assaulted him in the police garage, defendant responded that he had dark hair, was wearing a purple and tan shirt and that he "remember[ed] him from being at the bar". When asked if he knew the profession of either of the individuals who he claimed assaulted him, defendant responded that he did not know their profession but he "thought that they were bouncers from the bar". When asked if, upon arriving at the hospital, he then knew the identity of the individuals who allegedly assaulted him in the garage, defendant responded, "No. I just still thought that they were bouncers I got in an altercation with at the bar."

As a result of the events at the Partridge Pub, a separate Grand Jury, before which Bonanni and McKenna testified, handed up an indictment against defendant charging him with assault in the third degree and resisting arrest in the third degree. Specifically, the indictment alleges that defendant, on or about October 31, 1997 at approximately 1:30 A.M. at the Partridge Pub, did, with intent to cause physical injury, cause such injury to Bonanni by punching him in the face and that, on the same morning and at the same place, he intentionally prevented McKenna from effectuating an authorized arrest by means of striking, pushing and otherwise fighting with him.

Defendant moved to dismiss the indictment upon the ground that he had obtained transactional immunity by virtue of his testimony before the Bonanni-McKenna Grand Jury. County Court cited the mentioned excerpts from defendant's Grand Jury testimony, which it found to be properly responsive to the questions asked, and reasoned that this testimony provided a clear connection to the crimes charged. County Court noted that defendant's testimony "would not only 'tend to a conviction', but could, in fact, lead to a conviction by using [his] own words against him, a powerful evidentiary tool, indeed", and therefore concluded that immunity had been conferred and dismissed the indictment. The People appeal.

CPL 50.10(1) provides that a person who has been a witness in a legal proceeding cannot be prosecuted for any offense "on account of any transaction, matter or thing concerning which he [or she] gave evidence therein". This has been interpreted as a grant of full "transactional" immunity for any topic discussed by the witness within the scope of the proceeding (see, Matter of Rush v. Mordue, 68 N.Y.2d 348, 356, 509 N.Y.S.2d 493, 502 N.E.2d 170; People v. Chin, 67 N.Y.2d 22, 33 n. 4, 499 N.Y.S.2d 638, 490 N.E.2d 505; Matter of Brockway v. Monroe, 59 N.Y.2d 179, 189, 464 N.Y.S.2d 410, 451 N.E.2d 168). The Grand Jury testimony need not be "the equivalent of a confession" (Matter of Gelinas v. Barrett, 147 A.D.2d 293, 295, 543 N.Y.S.2d 183); rather, it suffices that the testimony "will prove some part or feature of it, will tend to a conviction when combined with proof of other circumstances which others may supply" (Doyle v. Hofstader, 257 N.Y. 244, 256, 177 N.E. 489; see, People v. McKenna, supra; Matter of Gelinas v. Barrett, supra ).

Critical to our holding here is a comparison between the facts involved and legal arguments advanced in this case and those presented to this court in People v. McKenna (supra ). In People v. McKenna, Bonanni and McKenna unsuccessfully attempted to convince this court that the events at the Partridge Pub and the subsequent events at the police garage were "inextricably intertwined" and that because these events took place on the same morning and involved the same parties, their testimony before defendant's Grand Jury regarding events at the...