People v. O'Neal

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

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 NY2d 348 , 355 [1986]; 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 NY2d at 355-356 ). “CPL 50.10 (1), defining the scope of the conferred immunity, 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 gave evidence therein’, and [the Court of Appeals] ha[s] interpreted this as a grant of full transactional immunity for any topic discussed by the witness within the scope of the proceeding” (Matter of Rush v Mordue, 68 NY2d at 356 [footnote and internal quotation marks omitted]; see People v Henderson, 257 AD2d 213 , 215 [1999]; Matter of Carey v Kitson, 93 AD2d 50 , 60 [1983]; People v Williams, 81 AD2d 418 , 421 [1981], affd 56 NY2d 916 [1982]). “[A]bsent a waiver, a witness before the Grand Jury responding directly to questioning legally addressed to him, cannot be convicted of an offense for any transaction concerning which he gave testimony” (People v Williams, 81 AD2d at 421 ).

“In order for there to be immunity, the connection between the ‘transaction, matter or thing’ about which a witness testifies before the Grand Jury and the criminal charges must be ‘real and of some substantiality, not merely trifling, imaginary or speculative’ ” (People v Feerick, 93 NY2d 433 , 452 [1999], quoting Matter of Gelinas v Barrett, 147 AD2d 293 , 295 [1989]; see People v McKenna, 250 AD2d 240 , 242-243 [1998]). “The

Here, with respect to the charge of grand larceny in the second degree (see Penal Law § 155.40 [1]), “[a] person steals property and commits larceny when, with intent to deprive another of property or to appropriate the same to himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner thereof” (Penal Law § 155.05; see People v Kutsy, 105 AD3d 975 , 976 [2013]). The defendant’s grand jury testimony that she was the owner of the real property would be relevant to establishing the defendant’s alleged intent to deprive the rightful owners of the real property (see Penal Law §§ 155.40, 155.05). Thus, the defendant testified to the “transaction, matter or thing” for which she stands indicted (People v Feerick, 93 NY2d at 452 ), and her testimony may “tend to a conviction when combined with proof of other circumstances which others may supply” (Matter of Carey v Kitson, 93 AD2d at 64 [emphasis omitted]; see People v Williams, 81 AD2d at 424-425 ; cf. People v Weisman, 231 AD2d 131 , 135 [1997]). Accordingly, the Supreme Court properly found that the defendant’s testimony conferred immunity upon her from prosecution of grand larceny in the second degree.

However, the Supreme Court erred in dismissing the second and third counts of the indictment charging the defendant with criminal possession of a forged instrument in the second degree and offering a false instrument for filing in the first degree, respectively. “A person is guilty of criminal possession of a forged instrument in the second degree when, with knowledge that it is forged and with intent to defraud, deceive or injure another, he [or she] utters or possesses any forged instrument of a kind specified in section 170.10” (Penal Law § 170.25; see Matter of Aldridge v Kelly, 157 AD2d 716 , 718 [1990]), which includes a deed (see Penal Law § 170.10 [1]). “Aperson is guilty of offering a false instrument for filing in the first degree when . . . knowing that a written instrument contains a false statement or false information, and with intent to defraud the state

Chambers, J.P., Miller, Duffy and Connolly, JJ., concur.