People v. Smith

• Decision Date: 08 February 1996
• Citation: 665 N.E.2d 138,642 N.Y.S.2d 568,87 N.Y.2d 715
• Parties: , 665 N.E.2d 138 The PEOPLE of the State of New York, Appellant, v. Larry SMITH, also known as Keith Gates, also known as Edwin Kevin Fischer, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 568

642 N.Y.S.2d 568

87 N.Y.2d 715, 665 N.E.2d 138

The PEOPLE of the State of New York, Appellant, v. Larry SMITH, also known as Keith Gates, also known as Edwin

Kevin Fischer, Respondent.

Court of Appeals of New York.

Feb. 8, 1996.

[87 N.Y.2d 716] [665 N.E.2d 139] Robert M. Morgenthau, District Attorney of New York County, New York City (Sheryl Feldman, Mark Dwyer and Nikki Kowalski, of counsel), for appellant.

[87 N.Y.2d 717] Diane E. Courselle, and E. Joshua Rosenkranz, New York City, for respondent.

OPINION OF THE COURT

KAYE, Chief Judge.

In People v. Betts, 70 N.Y.2d 289, this Court held that a defendant who elects to waive the Fifth Amendment privilege against self-incrimination and testify at trial does not automatically waive the constitutional protection with respect to cross-examination regarding unrelated pending criminal charges. We must now determine whether this principle applies to a prospective defendant's testimony before the Grand Jury, so as to preclude cross-examination of him, solely for impeachment purposes, regarding an unrelated pending charge. Under the narrow circumstances presented, we conclude that the Betts rationale applies and that dismissal of the indictment was appropriate.

I.

In September 1991, defendant allegedly offered to sell concert tickets to several individuals and then stole the $120 collected by the group. Upon receiving notice of the People's intent to present this larceny case to the Grand Jury, defendant served reciprocal notice of his intent to testify. He was not given an opportunity to testify during presentment of the charges, however, and in November 1991 the indictment was dismissed. The People subsequently obtained an unrelated indictment charging defendant with perjury based upon his testimony before a separate Grand Jury in November of 1990. That perjury indictment rested on defendant's alleged denial that he had ever been arrested for or convicted of robbery when in fact he was convicted of robbery in 1977.

On March 16, 1992, approximately one week after obtaining the perjury indictment, the People sought to re-present the charges in the larceny case to a second Grand Jury, and defendant was produced in order to testify. When the prosecutor informed defense counsel that he intended to question defendant about all of his prior convictions, including the 1977 robbery conviction, counsel explained that he would instruct his client not to answer questions regarding the 1977 conviction since such questioning would force defendant to incriminate himself as to the pending perjury charge. At the prosecutor's suggestion, the parties sought a ruling from the Grand Jury Judge, who held that the prosecutor could cross-examine defendant about the 1977 robbery conviction and that defendant could not refuse to answer. Defendant elected not to testify, and the Grand Jury returned an indictment charging defendant with grand larceny in the fourth degree and criminal possession of stolen property in the fifth degree.

Before the trial court, defendant moved to dismiss the indictment pursuant to CPL 190.50, 210.20 and 210.35, urging that he was forced to forego testifying regarding the larceny case by the Grand Jury Judge's ruling that he would thereby forfeit his Fifth Amendment right not to incriminate himself as to the pending perjury charge. The prosecutor conceded that "of course" he had intended to use the defendant's responses about the 1977 robbery conviction against him in the upcoming perjury trial but nevertheless maintained that the Fifth Amendment did not preclude such questioning. The court granted defendant's motion and dismissed the indictment with leave to re-present a third time, holding that the People could not cross-examine defendant regarding the 1977 robbery conviction should he testify at any future Grand Jury proceeding. The Appellate Division affirmed. We agree with the core decision reached by both the trial court and the Appellate Division and therefore affirm.

II.

A defendant who elects to waive the Fifth Amendment privilege against self-incrimination and testify at trial generally may be cross-examined regarding prior criminal or immoral acts affecting credibility (People v. Bennett, 79 N.Y.2d 464, 468, 583 N.Y.S.2d 825, 593 N.E.2d 279; People v. Sorge, 301 N.Y. 198, 200, 93 N.E.2d 637). As we held in People v. Betts, 70 N.Y.2d 289, 520 N.Y.S.2d 370, 514 N.E.2d 865, however, a testifying defendant does not automatically waive the privilege against self-incrimination as to questions concerning pending criminal charges unrelated to the case on trial. Thus, cross-examination of a defendant at trial, for credibility purposes, with respect to an unrelated pending charge is prohibited, except where the defendant's own assertions "open the door" to such questioning, id., at 295, 520 N.Y.S.2d 370, 514 N.E.2d 865; see also, People v. Bennett, 79 N.Y.2d at 468, 583 N.Y.S.2d 825, 593 N.E.2d 279.

Betts is premised on a recognition that forcing a defendant to sacrifice the privilege against self-incrimination as to a pending charge in order to take the stand in one's own defense in an unrelated case exerts "an undeniable chilling effect upon a real 'choice' whether to testify" (People v. Betts, 70 N.Y.2d at 292, 520 N.Y.S.2d 370, 514 N.E.2d 865). Consequently, allowing the People to attack a testifying defendant's credibility through cross-examination regarding an unrelated pending charge would unfairly compromise two discrete constitutional rights: the defendant's right to testify with respect to the case on trial and the "correspondingly important" right not to incriminate oneself as to the pending matter (People v. Betts, 70 N.Y.2d at 295, 520 N.Y.S.2d 370, 514 N.E.2d 865).

Betts involved a defendant's decision whether to take the stand in his own defense at trial. Here the dilemma is posed not as to trial but as to defendant's right to testify before the Grand Jury. Because the right to testify in Grand Jury proceedings derives from statute rather than the Constitution the People and the dissent urge that Betts is simply inapplicable. We disagree.

To be sure, a prospective defendant has no constitutional right to testify before the Grand Jury. That right is provided by CPL 190.50(5). Upon serving the proper notice, appearing at the given time and place, and executing a waiver of immunity, a prospective defendant "must be permitted to testify before the grand jury and to give any relevant and competent evidence concerning the case under consideration" (CPL 190.50[5][a], [b]. By waiving the right to immunity, a testifying defendant before the Grand Jury necessarily gives up the Fifth Amendment privilege against self-incrimination (see, CPL 190.45[1] ).

According to the People, a prospective defendant who signs a waiver of immunity and exercises the statutory right to testify automatically also waives the privilege against self-incrimination as to all matters--including unrelated pending charges. But nothing in the statutory language indicates that the Legislature contemplated the waiver of the privilege against self-incrimination to exceed the scope of the accused's right to testify. As specified by CPL 190.50(5), a prospective defendant's right to testify encompasses only those matters relevant to the case before the Grand Jury (see, People v. Smith, 84 N.Y.2d 998, 1001, 622 N.Y.S.2d 507, 646 N.E.2d 809).

Both the People and the dissent, moreover, focus primarily on the constitutional nature of the right to testify at trial, overlooking this Court's additional explicit concern in Betts for the discrete, related and "correspondingly important" right against self-incrimination as to pending charges (see, People v. Bennett, 79 N.Y.2d at 468, 583 N.Y.S.2d 825, 593 N.E.2d 279, supra [per se rule enunciated in Betts is appropriate "because of the constitutional protections against self-incrimination"]. An unindicted defendant also has the constitutional right not to incriminate oneself regarding pending charges. Conditioning this right on the relinquishment of the right to testify before the Grand Jury in an unrelated case certainly jeopardizes and even dilutes the Fifth Amendment privilege (cf., Minnesota v. Murphy, 465 U.S. 420, 435-436, 104 S.Ct. 1136, 1146-47, 79 L.Ed.2d 409 [noting that it would be impermissible to require a probationer to choose between asserting his privilege not to make statements that would incriminate him in a pending or later criminal prosecution and answering questions relevant to the continuance of his probationary status].

Likewise, requiring a prospective defendant wishing to testify to forego the Fifth Amendment protection and suffer incrimination as to unrelated pending charges would place a high constitutional price on the right to testify before the Grand Jury. This right, albeit statutory, is significant (see, People v. Evans, 79 N.Y.2d 407, 413-414, 583 N.Y.S.2d 358, 592 N.E.2d 1362). " 'A person's reputation can be ruined forever by the mere handing up of an indictment, even though subsequently the indictment is dismissed, or the person tried and later acquitted' " (People v. Lazar, 51 Misc.2d 233, 235, 272 N.Y.S.2d 898).

Thus, CPL 190.50(5)(a) mandates that, where the defendant has been arraigned upon an undisposed felony complaint, the People "must" notify the defendant of the Grand Jury proceeding and accord a reasonable time to appear. This provision, adopted as part of the recodification of the Code of Criminal Procedure, expanded a defendant's rights to receive notice of pending or prospective Grand Jury proceedings (see, People v. Evans, 79 N.Y.2d at 412-413, 583 N.Y.S.2d 358, 592 N.E.2d 1362). Significantly, any indictment obtained in violation of the statutory notice and waiver provisions "is invalid" and "must be dismissed" upon timely motion (CPL 190.50[5][c]; see also, CPL 210.20, 210.35[4] ).

As this Court explained in People v. Evans, 79 N.Y.2d 407 at 413-414, 583 N.Y.S.2d...