
    The People of the State of New York, Appellant, v Richard Corrigan, Respondent.
    Argued September 17,1992;
    decided October 27, 1992
    POINTS OF COUNSEL
    
      Howard R. Relin, District Attorney of Monroe County, Rochester (Elizabeth Clifford of counsel), for appellant.
    The lower courts erred in dismissing the instant charge. (People v De Salvo, 32 NY2d 12; People v Shinkle, 51 NY2d 417; People v Baptiste, 72 NY2d 356; People v Gonzalez, 68 NY2d 424; People v Wilkerson, 64 NY2d 749; People v Avant, 33 NY2d 265; People v Jones, 141 AD2d 763; People v Kersch, 135 AD2d 570; People v Eaddy, 142 Misc 2d 341; People v Steuding, 6 NY2d 214.)
    
      Harris Beach & Wilcox, Rochester (Lawrence J. Andolina and Daniel J. Moore of counsel), for respondent.
    The lower court correctly dismissed the charges because the prosecutor used immunized testimony during the Grand Jury investigation in violation of Corrigan’s State and constitutional protection against self-incrimination. (Mincey v Arizona, 437 US 385; Lisenba v California, 314 US 219; Shales v Leach, 119 AD2d 990; Garrity v New Jersey, 385 US 493; Matter of Matt v Larocca, 71 NY2d 154; Lefkowitz v Turley, 414 US 70; Gardner v Broderick, 392 US 273; People v Avant, 33 NY2d 265; Kastigar v United States, 406 US 441.)
   OPINION OF THE COURT

Hancock, Jr., J.

Defendant police officer elected to testify before a Grand Jury which was investigating his misconduct during an arrest. During submission of evidence to the Grand Jury, the prosecutor had in his possession, and concededly reviewed, a copy of defendant’s immunized statement made involuntarily pursuant to an internal police investigation. The question presented on the People’s appeal is whether the prosecutor’s possession and review of the immunized statement during defendant’s testimony constituted a use of the statement warranting dismissal of the charges against defendant. Under the circumstances of this case, the prosecutor’s actions did not warrant dismissal, and County Court’s order should, therefore, be reversed.

I.

Defendant, an off-duty Town of Brighton police officer, was working as staff security at a restaurant. After watching a group of young men drink alcohol and act in a boisterous manner, defendant asked one of them to produce identification to establish his age. The young man could not provide identification and defendant ordered him not to drink. Defendant had seen another member of the group, Bihn Nguyen, giving drinks to this same young man. Defendant confronted Bihn, who began to argue. When defendant told the group to leave, they became abusive, and defendant finally advised the owner to call the local police. After the police arrived, defendant took Bihn outside to a police car. The People allege that defendant grabbed Bihn by the throat, bent him over the trunk of the car, and struck him in the head with a flashlight.

The Police Department conducted an internal investigation of the incident which included taking an internal affairs statement from defendant — a compulsory interview under threat of dismissal. As part of its internal investigation, the Police Department also interviewed officers who had been at the scene and had witnessed the incident. Subsequent to the departmental investigation, the matter was referred to the Grand Jury.

Two of the police officers who had been interviewed during the internal police investigation testified before the Grand Jury. During the examination of defendant — who voluntarily appeared before the Grand Jury and waived immunity — the prosecutor concededly had the statement before him in his presentation of the case and reviewed it while defendant was testifying. The statement was never offered into evidence, however, and the Grand Jury was not made aware of its existence. Defendant was neither confronted with the statement, nor was there any showing that he even knew the prosecutor possessed it.

Upon direction from the Grand Jury, the District Attorney filed an information charging defendant with two counts of assault in the third degree. At Town Court, defendant moved to dismiss the information on the ground that during the Grand Jury proceedings the People had made use of defendant’s involuntary statement in violation of his rights under the Federal and New York State Constitutions. Town Court granted defendant’s motion and dismissed the information. It concluded that the prosecutor had used the involuntary statement in the Grand Jury proceeding and that — excluding all evidence derived from its use — insufficient evidence existed to support the information. County Court affirmed, but noted that the information was supported by other properly admitted proof and could have been sustained. Nevertheless, County Court held that dismissal of the information was warranted pursuant to CPL 210.35 (5) because the prosecutor’s use of the involuntary statement had the over-all effect of forcing defendant to conform his Grand Jury testimony to his prior statement and thereby restricted his right to testify freely. A Judge of this Court granted leave to appeal.

II.

Under both the State and Federal Constitutions, a statement made under threat of dismissal is protected by the privilege against self-incrimination and automatically immunized from use in criminal proceedings (see, Matter of Matt v Larocca, 71 NY2d 154, 159; Lefkowitz v Turley, 414 US 70, 79). The immunity attaching to a compelled statement bars the People from using in any way the statement itself or any evidence derived directly or indirectly from it (see, Matter of Matt v Larocca, supra; Kastigar v United States, 406 US 441, 453). After the People are made aware of the fact that a defendant has made an immunized statement, the People bear the burden of establishing that any evidence used was derived from a source wholly independent of the statement (see, Braswell v United States, 487 US 99, 117; Kastigar v United States, supra, at 460-462; see also, United States v North, 910 F2d 843, 853-855; United States v Serrano, 870 F2d 1, 14-15). Where the People have submitted evidence obtained directly or indirectly from use of an immunized statement, the charge may be sustained only if supported by admissible evidence derived from an independent source (see, People v Avant, 33 NY2d 265, 271-272; People v Eckert, 2 NY2d 126, 129; see also, United States v Serrano, 870 F2d 1, 16, supra; United States v North, supra, at 854).

Notwithstanding the sufficiency of such properly admitted evidence, however, CPL 210.20 (1) (c) could, in some circumstances, provide a basis for a dismissal of the charge. Specifically, CPL 210.20 (1) (c) provides that a charge must be dismissed when the proceedings as a whole are defective within the meaning of CPL 210.35. Pursuant to CPL 210.35 (5), a Grand Jury proceeding is defective when "[t]he proceeding otherwise fails to conform to the requirements of [CPL 190] to such a degree that the integrity thereof is impaired and prejudice to the defendant may result.” CPL 190.50 (5) gives a defendant the right to testify at a Grand Jury proceeding, provided certain requirements are met, and charges have been dismissed under this section where this right has been denied (see, e.g., People v Green, 80 AD2d 650, 651 [prosecutor interrupted defendant several times and refused to allow her to complete her testimony]; see also, People v Massard, 139 AD2d 927; People v Davis, 119 Misc 2d 1013).

"Although not called as a witness by the people or at the instance of the grand jury, a person has a right to be a witness in a grand jury proceeding under circumstances prescribed in this subdivision”.

III.

We turn to the circumstances presented here. Defendant’s statement during the internal Police Department investigation was involuntary as a matter of law and automatically immunized from use in criminal proceedings. We are thus presented with two questions: (1) whether the prosecutor’s conduct constituted prohibited "use” of the immunized statement; and (2) if so, whether that "use” required dismissal of the information.

There is no showing that the prosecutor employed the statement as a source of information for questioning defendant. On the contrary, the record of defendant’s extensive testimony (covering 52 pages in the Grand Jury transcript) establishes that the prosecutor framed his questions to avoid any suggestion that he had any prior knowledge of the facts pertaining to the incident. All but three of his inquiries were nonspecific and nonleading, questions such as "What happened then?” and "What happened next?” The prior knowledge reflected in the three leading questions related to particulars already known by the prosecutor and fully available from other sources — i.e., the statements of the police witnesses in the police internal investigation report and the officers’ prior description of the same events in their testimony before the Grand Jury. No suggestion is made, and, moreover, defendant does not claim, that the People made any use of defendant’s statement as a source of information leading to the discovery of other information in the investigation (see, United States v Serrano, 870 F2d 1, 13-15, supra; compare, United States v Poindexter, 951 F2d 369, 374-377; United States v North, 910 F2d 843, 860-868, supra).

Nor does the record reveal any instance where the prosecutor could be said to have "used” his possession of the statement to control the witness or to affect in some way his answers or his demeanor. Defendant was never confronted with the statement, and indeed, there is no showing that he was even aware that the prosecutor had it (compare, New Jersey v Portash, 440 US 450, 458-460).

Defendant argues, nevertheless, and both courts below agreed, that the prosecutor’s mere possession and viewing of defendant’s immunized statement, without more, constituted a "use” prohibited by the State and Federal Constitutions. Defendant cites no authority, nor have we found any, to support his contention. We need not decide this question, however, because we conclude that the prosecutor’s conduct was not such a "use” as could warrant dismissal of the charges.

We find nothing in the record to support County Court’s conclusion that the prosecutor’s conduct had the effect of forcing defendant to conform his testimony to the statement and, thus, restricted his right to testify under CPL 190.50 (5). Given the absence of any indication that defendant was aware of the prosecutor’s possession of the statement, we cannot see how the statement could have affected his testimony. Indeed, a review of the 52-page transcript of defendant’s testimony reveals that it did not. Defendant was given wide latitude to offer his account of the incident. His answers were complete and, at times, lengthy and wide-ranging. He was never cut off or interrupted. We hold, therefore, that defendant was in no way inhibited from exercising his right to testify before the Grand Jury (see, CPL 190.50 [5]). Nor is there any other basis for a holding that the integrity of the Grand Jury proceedings was impaired or the defendant somehow prejudiced so as to require dismissal (see, CPL 210.20 [1] [c]; 210.35 [5]). For these reasons and because, as County Court held, the record contains ample evidence to sustain the charges independent of anything that could be attributed to the immunized statement, the dismissal of the charges should be reversed (see, e.g., People v Avant, supra, at 271-272).

We conclude with a word of caution. Although we hold that a dismissal of the information was not warranted, we by no means approve the practice followed by the prosecutor here. A defendant’s guarantee of immunity as well as his or her rights to testify before the Grand Jury must be scrupulously protected. To be sure, the possession of an immunized statement during a Grand Jury presentation could, in other circumstances, where the defendant becomes aware of the statement’s existence, be employed to compel the defendant to tailor the testimony to the statement or used in some other way to impair these guarantees. No reason is suggested for a prosecutor’s possession of an immunized statement during a Grand Jury presentation, and the practice should be avoided.

Accordingly, the order of Monroe County Court should be reversed, the information reinstated, and the case remitted to Mendon Town Court for further proceedings on the information.

Bellacosa, J.

(dissenting). I would affirm the lower courts’ dismissal of the criminal information for assault in the third degree.

Two critical facts are uncontroverted. First, the prosecutor possessed and read the defendant’s immunized statement prior to questioning the defendant — the target of the Grand Jury investigation — in the presence of the Grand Jury. Second, the presenting prosecutor held the immunized statement in his hand in the presence of the Grand Jury and defendant while he questioned the target defendant. Thus, it is plainly inaccurate to state that the People did not "in any way” use defendant’s immunized statement (majority opn, at 329).

Reasonable inferences from those two conceded uses, as drawn by the courts below, include that the prosecutor read the statement as part of his general preparation of the case and particularly for his interrogation of the target defendant in the Grand Jury. Another reasonable inference is that the "smoking gun” item was displayed by the prosecutor, who held it in his hand at the critical time and place. The likely strategic advantage sought was to assist in structuring the interrogation and in intimidating the target witness against testifying at variance with his prior sworn immunized statement. The prosecutor did not just discover this unauthorized evidence in his hands in the presence of the Grand Jury and the target witness at a critical juncture of this case.

County Court concluded on the appeal to that intermediate appellate court that "[defendant’s] statement was apparently used by the prosecutor to structure his examination of the defendant” (Monroe County Ct, Oct. 7, 1991, Wisner, J., slip opn, at 2). County Court also stated that it was "unable to parse out the effect of [the prosecutor’s] tactics” but found "the prejudice to the defendant [to be] clear” (id., at 4-5). I believe there is no basis for this Court to reject or undo the undisturbed facts and reasonable inferences drawn from the record by the courts below.

These record-rooted inferences are potent in themselves. They become dispositive, however, in the face of the unalterable burden placed on prosecutors in such matters and circumstances. Prosecutors must demonstrate that the use of forbidden evidentiary fruit was uncalculated and unconnected to the other evidence adduced before the Grand Jury. The prosecutor failed to meet or even try to meet that burden. Indeed, the Court acknowledges the burden and then ironically allows it to be shifted and inverted to the accused by relieving the prosecutor of providing any explanation and making the proper record. We should be unanimous that prosecutors who dominate the Grand Jury process should bear the burden and consequences of a barren record which fails to demonstrate that the People’s evidence was not obtained directly or indirectly through the use of the immunized statement and was derived from an independent source (see, majority opn, at 329). Targets, like defendant here, who are exercising a statutory right to testify by waiving immunity, should bear no such responsibility. They should not have to try to prove the negative of the prosecutor’s affirmative burden. Besides, targets and accuseds who find themselves in this virtually ex parte, vulnerable arena enjoy no meaningful opportunity to create a record. Thus, adverting repeatedly to the absence in the record of direct prejudicial impact on the defendant seems particularly unfair and misguided (see, e.g., majority opn, at 330, 331). It is not for us or the defendant to "suggest” a reason for "[the] prosecutor’s possession of an immunized statement during [the] Grand Jury presentation” (majority opn, at 332). That must remain the prosecutor’s burden to explain in fact, not in suggestion.

People v Avant (33 NY2d 265) cannot salvage this case for the prosecution on some alternative, fallback rationale. In Avant, defendants waived immunity and appeared to testify before a Grand Jury. They claimed after indictment that their appearance and waiver were involuntary. We held that, as a general rule, dismissal of criminal charges was not required if other independent evidence was legally available and sufficient. But, significantly, the Court adhered to People v Steuding (6 NY2d 214), requiring dismissal of the indictment where the defendant is a target and is wrongly, i.e., involuntarily, compelled to testify before a Grand Jury.

In the instant case, defendant was the target. Thus, the general rule employed in People v Avant (supra, at 271) does not control; instead, the exception based on People v Steuding (6 NY2d 214, supra) should apply and supports dismissal of this criminal information. While defendant here does not challenge the voluntariness of his Grand Jury appearance or waiver of immunity, he did suffer from the District Attorney’s strategic use of defendant’s concededly immunized statement in and during his own Grand Jury testimony. That is equivalent in this context to the violation of defendant’s right against self-incrimination. Thus, the Steuding dismissal remedy, preserved and restated in Avant, applies and should be employed to correct the error and to guard against improper advantage.

The Court’s expressed caveat and uneasiness concerning the precedential implications of approving the prosecutor’s conduct here, while it reverses and reinstates the information (see, majority opn, at 332), provides more food for thought. The effective way to ease that concern is to uphold the lower courts’ dismissal, not to reverse their actions. Otherwise, prosecutorial tactics of an unfair dimension and impact are bound to continue and proliferate. A still deeper concern is that this case may be read as signalling a weakening of New York State’s long-standing, unique immunity doctrine designed not only to be more generous in protecting against the power of State-compelled self-incrimination, but also to keep prosecutors in check in the exercise of their already disproportionately potent Grand Jury prerogatives (see, CPL 190.40, 190.45; Kastigar v United States, 406 US 441, 453; People v Sobotker, 61 NY2d 44; see also, People v Betts, 70 NY2d 289; United States v North, 910 F2d 843).

On the record before us, the lower courts correctly con-eluded that the prosecutor’s evident misuse in the Grand Jury of an immunized statement of the target defendant affected the integrity of the Grand Jury process. Inasmuch as the accusatory instrument suffers from a "legal impediment” (CPL 170.30 [1] [f]) and "fails to conform to the requirements of [the article governing the Grand Jury and its proceedings] to such degree that the integrity thereof is impaired and prejudice to the defendant may result” (CPL 210.35 [5]), this Court should sustain the dismissal of the information expressly authorized and contemplated by the interplay of those sections.

Chief Judge Wachtler and Judges Simons and Kaye concur with Judge Hancock, Jr.; Judge Bellacosa dissents and votes to affirm in another opinion in which Judge Titone concurs; Judge Smith taking no part.

Order reversed, etc. 
      
      . CPL 190.50 (5) states, in part:
     
      
      . Specifically, the prosecutor asked defendant if he had ever grabbed Bihn by the throat, if he had bent Bihn over the trunk of the police car, and if any other officer was holding Bihn when defendant struck him.
     
      
      . The dissent offers no reason for why, when there is concededly sufficient proof to sustain the charges, the information should be dismissed. People v Steuding (6 NY2d 214), relied on by the dissent, is inapplicable. There, the defendant was subpoenaed to appear before the Grand Jury and given immunity. The indictment was not dismissed for any tainting misconduct during the Grand Jury proceedings but because the subsequent indictment was based on immunized testimony given by defendant during his involuntary appearance.
     