People v. McFarlan
| Decision Date | 26 September 1975 |
| Citation | 89 Misc.2d 905,396 N.Y.S.2d 559 |
| Parties | The PEOPLE of the State of New York v. Marilyn McFARLAN, Defendant. |
| Court | New York Supreme Court |
Geller & Cohen, New York City by Irving Cohen, New York City, for defendant.
Robert P. La Russo, Jr., New York City, handled the matter in the lower court and Peter L. Zimroth, Chief of Appeals Bureau, New York City, handled same in the higher courts, for the People.
Defendant's counsel moves for an order dismissing the indictment herein on the grounds that the defendant has been granted immunity for the instant offense by a New York County Grand Jury and for any further relief that to this Court may seem just and proper.
On October 28, 1974, defendant Marilyn McFarlan was indicted by the Grand Jury of the County of New York for the Criminal Sale of a Controlled Substance in the First Degree, CPCS 2o and CPCS 3o (the instant indictment). All three counts of the indictment grow out of an alleged sale of a quantity of heroin by the defendant to an undercover police officer on June 4, 1974.
Subsequently, the defendant was subpoenaed by a different New York City Grand Jury to appear and testify in a homicide investigation unrelated to the instant indictment. The Assistant District Attorney presenting the homicide case informed the defendant that his inquiry would be limited to the events of December 4, 1974 through December 6, 1974, and that she would have full immunity from any criminal prosecutions dealing with matters occurring on those dates. Miss McFarlan testified concerning her knowledge of events of December 4 through December 6, 1974. During the course of her testimony, the defendant was asked how she had been supported, if she had never had a job. Defendant answered that she had sold drugs in the past. In continuing the questioning of the defendant in the homicide case, the Assistant District Attorney asked the defendant, "How were you supported during November and December of 1974?" To which the defendant answered, "Well, when I got busted was June the 4th."
The sole issue before the Court is whether the instant indictment must be dismissed because the defendant had been granted transactional immunity when she testified before a Grand Jury empanelled subsequent to the filing of the instant indictment and which was investigating crimes totally unrelated to the offenses alleged in the indictment. The pertinent New York immunity statutes are CPL 50.10 and CPL 190.40. CPL 50.10, subd. 1 provides:
* * *"
CPL 190.40, subd. 2 provides:
The Commission Staff Comments to CPL 50.10 also indicates that the Legislature intended to re-affirm the traditional New York concept that when a witness is compelled to yield his privilege against self-incrimination, he should be granted transactional immunity, i. e., immunity from prosecution for any transaction concerning which he was compelled to give evidence. People v. Ianniello, 21 N.Y.2d 418, 288 N.Y.S.2d 462, 235 N.E.2d 439 (1968) and People v. Tomasello, 21 N.Y.2d 143, 287 N.Y.S.2d 1, 234 N.E.2d 190 (1967) and Gold v. Menna, 25 N.Y.2d 475, 307 N.Y.S.2d 33, 255 N.E.2d 235 (1969). See also Felder v. N.Y. State Supreme Court, 44 A.D.2d 1, 352 N.Y.S.2d 706 (4th Dept. 1974).
Defendant's position is that since she had been compelled on December 18, 1974, to confess before a Grand Jury that her past means of support, until June 4, 1974, was the sale of drugs, the defendant cannot be convicted of any "sale or possession of drugs" on June 4, 1974; that crime being a "transaction, matter or thing concerning which she gave...
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