People v. Jones

tion, the defendant took no position on the validity of Miller’s assertion of the privilege and his availability as a witness.^[1]

Generally, “the witness is, at least in the first instance, the sole arbiter of the applicability of the constitutional privilege [against self-incrimination] to his own situation.” (People v Thomas, 51 NY2d 466 , 472 [1980] [citations omitted]; see also People v Arroyo, 46 NY2d 928 , 930 [1979] [noting that “the general rule” is “that the witness is the judge of his right to invoke the privilege”] [citations omitted].) However, “the privilege’s protection extends only to witnesses who have ‘reasonable cause to apprehend danger from a direct answer,’ ” and whether such reasonable cause exists is an “inquiry * * * for the court; the witness’ assertion does not by itself establish the risk of incrimination.” (Ohio v Reiner, 532 US 17 , 21 [2001], quoting Hoffman v United States, 341 US 479 , 486 [1951];^[2] see also People ex rel. Taylor v Forbes, 143 NY 219 , 231 [1894] [a witness may be “compelled to answer when * * * it is perfectly clear and plain that he is mistaken, and that the answer cannot possibly injure him, or tend in any degree to subject him to the peril of prosecution”]; State of New York v Carey Resources, 97 AD2d 508 , 509 [2d Dept 1983] [where “the danger of incrimination is not readily apparent, the witness may be required to establish a factual predicate”].)

In People v Brady ( 97 NY2d 233 [2002]), the People requested in a Sandoval hearing permission to question the defendant at trial about a crime to which he had pleaded guilty, but for which he had not yet been sentenced. Observing that the defendant “ha[d] never suggested that he thought the guilty plea the least bit vulnerable or that there was any ground upon which it should or could be vacated,” and noting that the defendant had never sought “to withdraw the plea or indicate [d] that he had even the remotest hope or intention of doing so” ( 97 NY2d at 236 ), the Court of Appeals held that the defendant

had waived his Fifth Amendment right not to be cross-examined about his plea and about the statements he made in the plea allocution. In this case, Miller had not only entered his plea of guilty, but had already been sentenced, waived his right to appeal, and affirmatively indicated that he did not intend to file an appeal. Under these circumstances, even more clearly than the defendant in Brady, Miller had waived his right against self-incrimination relating to the robbery, and could not — and did not — refuse to testify on the ground that his testimony would incriminate him in the commission of that crime.^[3]

Miller’s self-incrimination claim related not to the robbery, but to the statement Miller made in his guilty plea allocution that the defendant had participated in the robbery with him, a statement which, at the defendant’s trial, Miller’s attorney contended was false. Of course, if Miller testified at the trial that the defendant had not participated in the robbery, Miller could not be prosecuted for falsely stating in the plea allocution that the defendant had done so, since that statement was not under oath. (See Penal Law § 210.00 [5] [“A person ‘swears falsely’ when he intentionally makes a false statement * * * while giving testimony’]; § 210.00 ^[3] [“‘Testimony’ means an oral statement made under oath in a proceeding before any court * * * ”].) Miller also could not be prosecuted for perjury proven by inconsistent statements, since in such a prosecution — in which a person may be convicted of perjury based solely, upon the “irreconcilable inconsistency” of two statements, without the prosecution having to allege or prove which one was false — both of the statements must be under oath. (See Penal Law § 210.20; see also People v Ashby, 8 NY2d 238 [1960]; People v Palmer, 235 AD2d 577 [3d Dept 1997].)

If, however, Miller testified at the defendant’s trial, he could be charged with falsely testifying there that the defendant had

not committed the robbery. The possibility of such a prosecution was not merely hypothetical, since there was legally sufficient evidence to support it: the account of the complaining witness, who had already identified the defendant at trial as one of the robbers, and Miller’s statement in the plea allocution, which would corroborate the identification of the defendant by the complaining witness. (Penal Law § 210.50 [“In any prosecution for perjury, * * * falsity of a statement may not be established by the uncorroborated testimony of a single witness”]; see People v Rosner, 67 NY2d 290 [1986]; People v Gottfried, 61 NY2d 617 [1983].)

Noting the possibility of such a prosecution, Miller’s attorney claimed that he could refuse to testify on the ground that, if he did so, he would be subject to prosecution for the testimony he would give.^[4] In support of that proposition, Miller cited People v Sapia ( 41 NY2d 160 [1976]) and People v Shapiro ( 50 NY2d 747 [1980]). In Sapia, the Court of Appeals held that a witness had properly asserted a Fifth Amendment right to refuse to testify based on a possible perjury charge, stating that there was “substance to the argument that [the witness’] proposed testimony would have been so inconsistent with prior statements he had made to Federal authorities as to expose him to conviction for perjury.” ( 41 NY2d at 164 .) And in Shapiro, the Court of Appeals cited Sapia in observing that “ordinarily, exposure, whether to perjury or other criminal charges, is a sufficient basis for a witness’ invocation of the privilege against self incrimination.” ( 50 NY2d 759 -760.) Moreover, in People v Bagby ( 65 NY2d 410 , 413 [1985]), the Court of Appeals recognized a witness’ right to refuse to testify based on the prosecutor’s threat that, if she gave testimony materially different from sworn statements she had already made, “there [was] a good likelihood of perjury prosecution.”

However, in each of these cases — Sapia, Shapiro and Bagby — the witness whose Fifth Amendment right was in issue had made prior statements under oath, and would therefore have been subject to prosecution for perjury committed not only in the testimony the witness was being called upon to give, but in one or more sworn statements the witness had al

ready made.^[5] None of these cases stands for the proposition that a witness has the right to refuse to testify on the ground that the witness may be prosecuted for perjury in the testimony he or she is seeking to avoid giving. Significantly, in Bagby, the Court of Appeals clarified the language used in Sapia by citing that case for the proposition that a “witness may claim the privilege based upon the fact that the proposed testimony would be so inconsistent with prior statements under oath as to expose him to conviction for perjury.” ( 65 NY2d at 413-414 [emphasis added].) Extending the reach of these cases to witnesses who had made prior unsworn statements is neither necessary nor reasonable.

As the Supreme Court long ago held, “the constitutional guaranty of the 5th Amendment does not deprive the lawmaking authority of the power to compel the giving of testimony, even [though] the testimony, when given, might serve to incriminate the one testifying, provided immunity be accorded * * * in all respects commensurate with the protection guaranteed by the constitutional limitation.” (Glickstein v United States, 222 US 139 , 141 [1911]; see also Kastigar v United States, 406 US 441 [1972].) The New York Legislature exercised this power by enacting CPL 50.20, which provides that “a [person who] * * * refuse [s] to give evidence requested of him on the ground that [the testimony] may tend to incriminate him” (CPL 50.20 [1]) may nonetheless be compelled to give that evidence if he receives immunity from a “competent authority.”^[6] (CPL 50.20 [2] [a], [b].) A person who testifies in a legal proceeding with the transactional immunity granted pursuant to CPL 50.10 (2) “cannot * * * be convicted of any offense or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which he gave evidence therein,” but “may nevertheless be convicted of perjury as a result of having given false testimony in [the] legal proceeding [in which he is an immunized witness].” (CPL 50.10 [1]; see People v Gottfried, 61 NY2d 617 [1983]; Matter of Rush v Mordue, 68 NY2d 348 , 357 [1986].)

failing to comply with the order.” When the defendant was, in fact, charged with committing perjury before the grand jury, he claimed that the Fifth Amendment precluded the prosecution from using at the trial the truthful portions of his immunized grand jury testimony in establishing that other portions were intentionally false. In rejecting that claim, the Court followed Glickstein and other cases holding that the Fifth Amendment does not protect a witness against compulsory self-incrimination relating to future conduct, and reasoned that “at the time [the witness] was granted immunity, the privilege would not have protected him against false testimony that he later might decide to give.” ( 445 US at 130 .) Because here, too, the Fifth Amendment did not permit Miller to claim a privilege against self-incrimination based on the fear of prosecution for committing perjury in testimony he had not yet given, I determined that Miller could not validly assert the privilege and directed him to testify.^[7]