People v. O'Neal

• Decision Date: 13 September 2017
• Parties: The PEOPLE, etc., appellant, v. Blanche O'NEAL, respondent.
• Court: New York Supreme Court — Appellate Division

153 A.D.3d 1281
60 N.Y.S.3d 460

The PEOPLE, etc., appellant,
v.
Blanche O'NEAL, respondent.

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

Sept. 13, 2017.

60 N.Y.S.3d 461

Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove and Ann Bordley of counsel), for appellant.

Edelstein & Grossman, New York, NY (Jonathan I. Edelstein of counsel), for respondent.

CHERYL E. CHAMBERS, J.P., ROBERT J. MILLER, COLLEEN D. DUFFY, and FRANCESCA E. CONNOLLY, JJ.

Appeal by the People, as limited by their brief, from so much of an order of the

60 N.Y.S.3d 462

Supreme Court, Kings County (Chun, J.), dated March 16, 2016, as dismissed counts one, two, and three of the indictment.

ORDERED that the order is modified, on the law, by deleting the provision thereof dismissing counts two and three of the indictment charging criminal possession of a forged instrument in the second degree and offering a false instrument for filing in the first degree, respectively, those counts of the indictment are reinstated, and the matter is remitted to the Supreme Court, Kings County, for further proceedings on the indictment; as so modified, the order is affirmed insofar as appealed from.

In connection with a burglary prosecution against Joseph Little, on September 29, 2014, the defendant testified before a grand jury that she was the owner of real property located on Vernon Avenue in Brooklyn (hereinafter the real property), and that she did not give Joseph Little permission to enter that property. On October 9, 2015, the defendant was charged in a four-count indictment with (1) grand larceny in the second degree for her alleged theft of the real property (see Penal Law § 155.40[1] ), (2) criminal possession of a forged instrument in the second degree for her alleged possession of a fraudulent deed for the real property which was filed with the City Register on or about September 14, 2012 (see Penal Law § 170.25 ), (3) offering a false instrument for filing in the first degree in connection with her alleged filing of the deed with the City Register (see Penal Law § 175.35 ), and (4) perjury in the first degree in connection with her grand jury testimony regarding the real property (see Penal Law § 210.15 ).

The defendant pleaded not guilty and, at a pretrial appearance, the issue of whether she was entitled to transactional immunity from prosecution based upon her grand jury testimony was raised. After the parties were afforded an opportunity to brief the issue, the Supreme Court, inter alia, dismissed the first, second, and third counts of the indictment charging the defendant with grand larceny in the second degree, criminal possession of a forged instrument in the second degree, and offering a false instrument for filing in the first degree, respectively. The People appeal.

"In our State, a witness at a Grand Jury proceeding is compelled to give any evidence legally requested" (Matter of Rush v. Mordue, 68 N.Y.2d 348, 355, 509 N.Y.S.2d 493, 502 N.E.2d 170 ; see CPL 190.40[1] ). "In exchange for that compelled testimony and in recognition of the witness's constitutional privilege against self-incrimination, CPL 190.40(2) confers automatic immunity from prosecution of any offenses concerning the compelled testimony, with exceptions not relevant here" (Matter of Rush v. Mordue, 68 N.Y.2d at 355–356, 509 N.Y.S.2d 493, 502 N.E.2d 170 ). " CPL 50.10(1), defining the scope of the conferred...