
    The People of the State of New York, Respondent, v Edward Chapman, Doing Business as Middleman Home Improvement Products Co., Appellant.
    Argued March 24, 1987;
    decided April 28, 1987
    
      POINTS OF COUNSEL
    
      Kent V. Moston and Matthew Muraskin for appellant.
    
      Denis Dillon, District Attorney (Lawrence J. Schwarz and Anthony J. Girese of counsel), for respondent.
   OPINION OF THE COURT

Titone, J.

A waiver of immunity obtained in violation of a Grand Jury witness’ State constitutional right to counsel (NY Const, art I, § 6) is not an effective waiver within the meaning of CPL 190.40 (2) (a). Accordingly, where a Grand Jury witness testifies under such a constitutionally defective waiver, the witness, whether voluntary or compelled, receives the automatic transactional immunity conferred by that statute and cannot thereafter be prosecuted for any matter on which responsive testimony has been given (CPL 50.10 [1]; see, Matter of Rush v Mordue, 68 NY2d 348).

The accusatory phase of the present criminal action began on November 23, 1983, when a felony complaint was filed against defendant, leading to an arraignment at which defendant was represented by retained counsel. Several months after the arraignment, however, defendant’s counsel was relieved by court order, in part because defendant was apparently unable to pay his legal fees.

Having received a forwarded notice that his case would be presented to a Grand Jury, defendant appeared, unrepresented, on the scheduled date and indicated to the Assistant District Attorney handling the matter that he wished to testify. In response to the presiding Judge’s question whether he wished to testify without the advice of counsel, defendant stated only that he was unable to afford an attorney. Rather than pursuing the inquiry, the court shifted subjects, explaining to defendant that he would have to sign an irrevocable waiver of immunity before he would be permitted to testify, that he would then be required to answer every question posed, that his testimony could later be used against him and that he might regret his decision "[d]own the road.” When defendant told the court that he felt that he had to testify to “clear up” the matter, the court simply admonished him not to take the matter "too lightly” and wished him “good luck.” Following this discussion, defendant signed an immunity waiver.

Appearing before the Grand Jury promptly after this colloquy, defendant stated that he had not discussed his decision to testify with an attorney, although he acknowledged that he did understand the significance of the immunity waiver as it was explained to him by the Judge. Defendant also stated, in response to a question, that he had not been aware of his right to have counsel present in the Grand Jury room during his testimony (see, CPL 190.52). Once again, there was no further exploration of whether defendant wished to proceed without counsel or any discussion of the possibility of assigning an attorney if defendant were unable to retain one. Rather, defendant was immediately sworn and asked to resign and swear to the immunity waiver in the Grand Jury’s presence (see, CPL 190.45 [1], [2]). He then testified concerning the incidents that were the subject of the Grand Jury’s inquiry.

Following the Grand Jury’s issuance of an indictment, defendant made a dismissal motion, arguing that his immunity waiver should be deemed ineffective because it was obtained in violation of his right to counsel. The trial court agreed with this position and, concluding that transactional immunity had consequently been conferred, dismissed the indictment without leave to the People to resubmit. On appeal by the People, however, the Appellate Division modified by granting the People permission to seek a new indictment before another Grand Jury. Although that court concurred in the conclusion that the indictment before it was tainted by defendant’s uncounseled immunity waiver, it rejected the contention that the constitutional infirmity rendered the waiver ineffective, resulting in a complete bar to prosecution under the transactional immunity provisions of CPL 50.10 and 190.40. Instead, the court held, it was only the further use of the uncounseled testimony that was prohibited, and the People were entitled to pursue the prosecution if they had sufficient independent evidence of defendant’s guilt. We conclude that the Appellate Division was in error and that its order must be reversed.

Initially, it is undisputed, and indeed is beyond dispute, that the circumstances surrounding defendant’s execution of the immunity waiver and his subsequent Grand Jury testimony constituted a violation of his State constitutional right to the assistance of counsel at every critical stage of the proceeding (NY Const, art I, § 6). Regardless of whether he was actually represented at the time he appeared before the Grand Jury, defendant’s indelible right to counsel had attached when the felony complaint against him was first filed (see, People v Samuels, 49 NY2d 218; cf., CPL 190.52 [conferring waivable right to advice of counsel during testimony before the Grand Jury]), and that right continued throughout the criminal proceeding, notwithstanding the order relieving the specific attorney who had represented him at arraignment. Indeed, since defendant had already been accused of a serious crime, his appearance before the Grand Jury was unquestionably an occasion "when legal advice is most critically needed” (People v Settles, 46 NY2d 154, 164). Accordingly, neither his uncounseled waiver of the right to such legal advice nor his immediately ensuing waiver before the Grand Jury of his statutory right to immunity may be deemed to be valid renunciations of those rights under the State Constitution.

Furthermore, the taint resulting from the absence of counsel was not mitigated by the limited judicial intervention that occurred in this case. Although the Judge presiding over the Grand Jury proceedings informed defendant of the consequences of waiving his right to remain silent, no mention was made of the importance of independent legal counsel or the imprudence of making the decision to appear and testify without first obtaining the advice of a trained, experienced attorney. In light of these omissions, it can hardly be said that the court’s inquiry was sufficiently searching to assure that any waiver of the right to counsel that may have occurred was made intelligently and with full knowledge of the " 'dangers and disadvantages’ ” of forgoing constitutional protection (cf., People v Sawyer, 57 NY2d 12, 21; People v White, 56 NY2d 110). To the contrary, defendant’s evident lack of understanding, as reflected by his statements that he could not afford an attorney and that he was unaware of his right to have the advice of counsel during his testimony, suggests that any waiver may well have been made in ignorance of the protections that the Constitution and the statutes afford (see, NY Const, art I, § 6; CPL 190.52 [l]).

Having concluded that defendant’s State constitutional right to counsel was violated and that his waiver of immunity was the tainted fruit of that violation, we further conclude that the immunity waiver was ineffective for all purposes, including the application of CPL 190.40 (2) (a), the keystone of our modern immunity rules. Enacted to eliminate the confusing thicket of decisional law and overlapping legislative provisions that had evolved both before and after the enactment of the predecessor provision (former Penal Law § 2447, subsequently superseded by Code Crim Proc § 619-c; see, People v Williams, 81 AD2d 418, affd 56 NY2d 916), CPL 190.40 now provides that every Grand Jury witness who gives responsive testimony automatically receives full transactional immunity unless he has "effectively waived such immunity.”

The People have argued that the effectiveness of a waiver under this provision should be determined exclusively by reference to CPL 190.45, which prescribes the formal requisites for immunity waivers and delineates certain specific instances in which such waivers must be deemed ineffective. In essence, the People argue, a waiver is ineffective and transactional immunity is consequently conferred if, and only if, the subscribed waiver was not properly sworn to before the Grand Jury (CPL 190.45 [2]) or a witness whose appearance was compelled was not adequately informed of his right to the assistance of counsel (CPL 190.45 [3]). In all other circumstances, the People contend, the immunity waiver is "effective” within the meaning of the statute, and any defects or improprieties in the manner in which it was procured must be redressed through such constitutionally mandated remedies as suppression or use immunity.

We decline, however, to adopt this restrictive view, since it would leave the voluntary target-witness without meaningful protection. Our State’s immunity statutes were designed to strike a fair balance between the government’s legitimate need to gather evidence and society’s equally compelling need to afford full protection to the witness whose constitutional rights are in jeopardy (see, Bellacosa, Practice Commentary, McKinney’s Cons Laws of NY, Book 11A, CPL 190.40, at 244-246). Moreover, the statutory rules governing the substitution of immunity for the witness’ constitutional privilege "must be interpreted liberally in order that the individual’s rights are adequately guarded” (People v Williams, 81 AD2d, at 422, supra).

In this context, we conclude that in order to safeguard the rights of individuals who have already been accused, CPL 190.40 (2)’s requirement of an "effective” waiver must be construed to mean a waiver obtained under circumstances that are fully consistent with the witness’ State constitutional right to counsel (see, People v Samuels, 49 NY2d 218, supra; cf., People v Dunbar, 53 NY2d 868). Indeed, in light of the special solicitude with which we have historically treated that right (see, e.g., People v Cunningham, 49 NY2d 203, 207; People v Hobson, 39 NY2d 479; see also, People v Velasquez, 68 NY2d 533, 536-537), it would be anomalous for us now to recognize an effective waiver of the important protections afforded by our immunity statutes without first assuring that the witness’ constitutional right to counsel had been scrupulously honored.

Contrary to the People’s argument and in contrast to the apparent distinction created in CPL 190.45 (3) and 190.52 (l), the State constitutional guarantee of the right to counsel admits of no distinction between voluntary and compelled witnesses. While witnesses whose appearance has been compelled may be the ones most obviously in need of protection, we cannot ignore the equally compelling need to ensure the protection of those who, like defendant, appear voluntarily, perhaps in the hope of exonerating themselves or obtaining leniency through a sympathetic presentation (cf., People v Settles, supra, at 163). Accordingly, where, as here, the right to counsel has already attached by virtue of a previously filed accusatory instrument (see, People v Samuels, supra), the accused’s statutory immunity rights cannot effectively be waived unless the strictures of the State constitutional guarantee have been observed.

In this case, our conclusion that defendant’s waiver of immunity was ineffective because it was obtained in violation of his State constitutional right to counsel compels the further conclusion that the indictment against him should have been dismissed with prejudice. The dissenters’ suggested remedy of suppression is not adequate to redress the constitutional violation that occurred here. Transactional immunity was automatically conferred when defendant testified before the Grand Jury without having executed an effective waiver (CPL 190.40 [2]), and he thereafter could not be prosecuted for "any transaction, matter or thing concerning which he gave evidence” (CPL 50.10 [1]). Since it is undisputed that defendant’s Grand Jury testimony concerned the subject matter of the indictment, the Appellate Division erred in authorizing resubmission of the charges.

For all of the foregoing reasons, the order of the Appellate Division, insofar as it authorized resubmission of the charges to a new Grand Jury, should be reversed and the order of the trial court dismissing the indictment with prejudice reinstated.

Simons, J.

(dissenting). Defendant executed a waiver of immunity and testified before the Grand Jury investigating him, without benefit of counsel, after his right to counsel attached. That being so, I agree with the majority that defendant’s testimony must be suppressed for all purposes and the indictment dismissed (CPL 60.45 [2]; People v Samuels, 49 NY2d 218; People v Settles, 46 NY2d 154). The waiver of immunity was invalid on constitutional grounds and, therefore, defendant was entitled to the prescribed constitutional remedy — suppression and use immunity (see, People v Swanson, 18 AD2d 832; Pitler, New York Criminal Practice Under the CPL § 5.12, at 246-247 [1972]). Transactional immunity is a creature of statute, however, and inasmuch as defendant effectively executed a statutory waiver of immunity, I find no reason in law or public policy to immunize him from further prosecution for the charged crimes by granting him the relief only the statute confers. Accordingly, I would affirm the Appellate Division’s order suppressing defendant’s testimony but permitting the People to seek an indictment from another Grand Jury without using the suppressed testimony.

The parties do not dispute that defendant appeared in court on his own initiative and willingly sought to testify before the Grand Jury. He was presented to the court as a pro se defendant. If the court had inquired further to determine whether defendant’s election to proceed without counsel was knowing and intelligent, that no doubt would have been the end of the matter because defendant’s desire to testify is apparent from the record (see, People v Mitchell, 61 NY2d 580; People v Sawyer, 57 NY2d 12, 21, rearg dismissed 57 NY2d 776, cert denied 459 US 1178; People v McIntyre, 36 NY2d 10, 17). Although the court knew defendant had previously been represented, and advised him of his right to counsel, it did not determine whether he wished new counsel appointed. Nevertheless, the court thoroughly explained the nature and effect of a waiver of immunity and defendant proceeded to the Grand Jury room and swore to the waiver before the Grand Jury. At that time the Assistant District Attorney advised him again of his right to assistance of counsel but defendant did not request that counsel be appointed. Based on this we are asked to rule not only that defendant’s testimony may not be used against him but that he may never be prosecuted for any crime related to matters the Grand Jury was considering because, the waiver having been executed without the advice of counsel, he automatically received transactional immunity.

The concept of immunity is derived from the constitutional right against self-incrimination. The Fifth Amendment of the Federal Constitution and article I, § 6 of the State Constitution, provide in similar language that no person shall be compelled in any criminal case to be a witness against himself. Because of these constitutional protections, the State may not compel testimony from a witness which may be used against him. In many Grand Jury investigations, however, particularly those involving official corruption and organized crime, the testimony of involved persons or potential accomplices is critical to support more serious charges against others. When that is so, the Fifth Amendment right of the witness may be protected by granting him immunity. If the protection accorded is coextensive with the witness’ constitutional right, the witness may be compelled to testify or be subject to civil contempt or imprisonment if he fails to comply. The immunity conferred thus serves the reciprocal purposes of protecting the witness’ Fifth Amendment rights and permitting the Grand Jury to receive necessary testimony from a witness who might otherwise properly refuse to testify, on constitutional grounds. Both the Supreme Court and this court have held that the witness’ constitutional rights are fully protected by use immunity, which precludes the prosecution from using his testimony against him in a subsequent criminal case (Kastigar v United States, 406 US 441, reh denied, 408 US 931; Matter of Anonymous Attorneys, 41 NY2d 506, 509-510; see also, Shales v Leach, 119 AD2d 990).

New York’s present immunity statute, however, provides broader protection. Historically, immunity rights in this State were found in several different unrelated statutes which were often confusing and difficult to harmonize and attempts to apply them frequently produced unintended results. Potential defendants or involved witnesses particularly in Grand Jury investigations, frequently flouted the Grand Jury or frustrated its investigation (see generally, Staff Comments to Proposed New York Criminal Procedure Law § 95.40 [renum CPL 190.40 under current statute], at 150-153 [1967]). The Legislature solved this problem by enacting a unique immunity statute, which substantially expanded a witness’ protection beyond constitutional limits, so that such testimony could be compelled (CPL 50.10, 190.35; see also, CPL 190.40; Lefkowitz v Cunningham, 431 US 801, 809). Under the statute, a witness testifying before a Grand Jury automatically receives transactional immunity unless he executes a waiver (CPL 50.10, 190.35, 190.40). This protection prevents the People not only from using a witness’ testimony to incriminate him, but also prevents the People from prosecuting the witness on any matter related to the transaction about which he has testified (see generally, Pitler, New York Criminal Practice Under the CPL § 5.10, at 240-244 [as to use and transactional immunity generally]). The Legislature has also provided how immunity may be waived and what omissions or defects render the waiver ineffective for purposes of affording the witness the broad protection of transactional immunity (CPL 190.45). Inasmuch as the source of the immunity defendant seeks here is statutory, the validity of his waiver should be judged by statutory requirements. Defendant’s waiver of immunity was effective under these statutory provisions and because it was, he is only entitled to constitutional use immunity.

In judging the validity of the waiver, it is important to note that the statute implementing transactional immunity for Grand Jury witnesses creates three classifications of witnesses: (1) those called by the People; (2) those called by the Grand Jury itself; and (3) defendants or possible defendants (see, CPL 190.50). It provides that all Grand Jury witnesses are entitled to transactional immunity unless immunity is "effectively waived” (CPL 190.40 [emphasis added]). Defendant was not compelled to testify, of course, but willingly appeared before the Grand Jury in an attempt to exonerate himself. He had no right to appear unless he executed a waiver, but once he executed the waiver, the District Attorney was required to permit him to testify (CPL 190.50 [5]). Defendant did execute a waiver and it met the statutory requirements. That the statute also permits any witness, after executing a waiver, to have counsel present in the Grand Jury room and that defendant did not get the benefit of this right is irrelevant (see, CPL 190.52). We are concerned only with the effectiveness of his waiver of immunity. His right to counsel is fully protected by suppression of his testimony.

The grounds for declaring a statutory waiver ineffective are set forth in CPL 190.45 (2), (3) and (4). Those subdivisions provide that a waiver is not valid: (a) if the witness does not swear to it before the Grand Jury (subd [2]); (b) if a witness "called by the people” is deprived of his right to counsel (subd [3]); and (c) to the extent that the witness is questioned about matters outside the scope of a limited waiver (subd [4]).

In this case, defendant executed an unlimited waiver of immunity and swore to it before the Grand Jury. More importantly, defendant was not called by the People (CPL 190.45 [3]). That being so, he was not entitled to the additional statutory right to counsel prior to executing the waiver. The Legislature conferred this right only on witnesses compelled to testify, not on target defendants who volunteer to testify (CPL 190.45 [3]). The language of the statute is specific and if the Legislature did not intend to so limit the right, it could easily have said so. By interpreting CPL 190.45 (3) otherwise, the majority has rendered its first sentence meaningless.

The legislative history supports treating witnesses compelled to appear differently from those who are targets of the investigation and appear to exonerate themselves. As the staff notes make clear, the statutory grant of transactional immunity was not intended to protect target witnesses who appear in an attempt to exculpate themselves. They come before the Grand Jury for their own purposes and presumably they do so only after carefully considering the decision with or without the advice of counsel. The statute was not changed to help them. On the contrary, one of the principal purposes behind the new statute was to make it easier to indict target witnesses, to facilitate obtaining evidence against them by providing a means to "compel testimony from the tainted or accomplice type of witness who would otherwise be able to avail himself of the self-incrimination privilege” (Staff Comments to Proposed New York Criminal Procedure Law § 95-40 [renum CPL 190.40 under current statute], at 152-153 [1967]; see also, Governor’s mem to L 1970, chs 996, 997 [enacting CPL], 1970 McKinney’s Session Laws of NY, at 3140-3141).

Nor is the relief the court grants here necessary as a matter of policy. The majority contends that unless we afford defendant transactional immunity, "the voluntary target-witness [is left] without meaningful protection [and his] constitutional rights are in jeopardy” (majority opn, at 502). Their statement wholly ignores the "meaningful” and substantial protection afforded by the exclusionary rule. This court, more than most others, has been sensitive to the defendants’ right to counsel (see, e.g., People v Knapp, 57 NY2d 161; People v Bartolomeo, 53 NY2d 225; People v Skinner, 52 NY2d 24). When that right has been impaired by improper official action, we have had no difficulty finding an appropriate remedy. Thus, if a statement has been obtained from a defendant without honoring his right to counsel, the statement has been suppressed (see, e.g., People v Samuels, 49 NY2d 218, supra); if a defendant has been tried before a petit jury under circumstances violating his constitutional right to counsel or to appear pro se, a new trial has been granted (People v McDonald, 68 NY2d 1; People v Mattison, 67 NY2d 462, cert denied — US —, 107 S Ct 571; People v Macerola, 47 NY2d 257; see also, People v Sawyer, 57 NY2d 12, supra). Those remedies have been adequate in the past and the majority fails to explain why they are not adequate here.

In sum, there is no constitutional or statutory requirement that we grant transactional immunity and I can find no overriding public policy concern suggesting that we should. That being so, I see no need to go beyond the explicit language of the statute and free defendant from prosecution.

I, therefore, dissent and would affirm the order of the Appellate Division.

Chief Judge Wachtler and Judges Kaye, Alexander and Bellacosa concur with Judge Titone; Judge Simons dissents and votes to affirm in a separate opinion in which Judge Hancock, Jr., concurs.

Order insofar as appealed from reversed and order of Nassau County Court reinstated. 
      
      .Since the court’s inquiry was clearly inadequate in this case, we need not decide whether a truly searching judicial inquiry would have sufficed as a substitute for the presence and independent advice of a retained or assigned attorney at this early pretrial phase of the proceeding (cf., People v Sawyer, 57 NY2d 12).
     
      
      
        .We note that the record does not even support a conclusion that an unequivocal waiver of the right to counsel occurred. Defendant never stated, either before the presiding Judge or the Grand Jury, that he did not want the aid of an attorney. Rather, he merely told the Judge that he was unable to afford one. Far from indicating an unequivocal wish to proceed pro se, this comment suggests that defendant may well have welcomed the advice of counsel had he known that a court-appointed attorney would be provided if he were financially unable to retain one (see, CPL 190.52 [1]).
     
      
      .Subdivision (1) of CPL 190.45 requires that the waiver be in writing. Under subdivision (2), even a written waiver is "not effective unless and until it is sworn to before the grand jury”. Subdivision (3) describes the rights of individuals specifically called by the People and asked to execute an immunity waiver, with express provision made for the invalidity of the waiver if those rights are not observed. Finally, subdivision (4) concerns limited waivers, which are invalid to the extent that the questioning exceeds the waiver’s agreed-upon scope.
     
      
      .Under CPL 190.45 (3), "[a] person who is called by the people as a witness in a grand jury proceeding and requested by the district attorney [to waive immunity] has a right to confer with counsel before deciding whether he will comply with such request,” and "[a]ny waiver obtained * * * in violation of [that requirement] is invalid and ineffective.” In contrast, under CPL 190.52 (1), "[a]ny person who appears as a witness and has signed a waiver of immunity” is entitled to the assistance of assigned or retained counsel in the Grand Jury room, but no provision is made for mandatory advisement of that right or for invalidation of the waiver if the right is not observed.
     