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A 45-year old man was charged in a single-count indictment

A 45-year old man was charged in a single-count indictment with selling six grams of cocaine to a state police undercover officer. The man applied for a writ of prohibition on the ground that the prosecution was barred because he had automatically received transactional immunity by being compelled to testify as a witness before a grand jury in connection with the investigation of an unrelated homicide.

The petitioner was interrogated before the Grand Jury concerning a confrontation that he had with the homicide victim. The petitioner related that he has previously used the man as an intermediary to buy cocaine in quantities of one eighth to one quarter of an ounce and that, on the date in question, the man had accused him of “going over his head on a drug buy” by dealing directly with the drug supplier. The petitioner also admitted that before the date of their confrontation he would reward the man for obtaining cocaine for him by giving him a portion of the purchased drugs and that the man had, before that date, frequently visited petitioner to obtain drugs. However, prior to the argument, the petitioner had told Shills not to approach him for drugs because he had another person in “the business end of the drugs.”

The court concluded that the testimony elicited from petitioner before the grand jury did not result in conferring immunity on him concerning the sale of cocaine to an undercover officer. The court explained that, under New York’s immunity statute, a witness receives immunity for or on account of any transaction, matter or thing concerning which he gave evidence. In this case, the subject of the indictment, a drug sale to a police undercover agent, did not concern the same “transaction, matter or thing” as the petitioner’s Grand Jury testimony, which was restricted entirely to drug-selling activities occurring on or before the drug sale transaction occurred, without even the faintest suggestion that they involved the same undercover officer.

The court pointed out that the petitioner’s testimony before the Grand Jury does not satisfy the requirement that the link between the crime charged and the accused’s prior testimony must be real and of some substantiality, not mere trifling, imaginary or speculative. At most, the court noted, the testimony before the Grand Jury tended to prove that, before the petitioner had his confrontation with another man, he was involved in drug trafficking with different individuals. Clearly, where as in this case the crime charged is criminal sale of drugs subsequent to the date of the transactions described in the testimony before the Grand Jury, any admissions of prior uncharged drug-related activities would be barred from introduction on the prosecution’s direct case, the court held. Even though faintly probative of guilt, that evidence is inadmissible because its main tendency is to show a defendant’s bad character or criminal propensity; nor would it be admissible, as petitioner suggests, to prove his specific intent, since his intent may be easily inferred from the act of selling drugs itself, the court noted.

The court further found it unavailing to grant immunity that petitioner’s Grand Jury admissions of prior dealing in drugs might be introduced by the prosecution in rebuttal of some affirmative fact, which petitioner might, at the trial of the indictment, endeavor to prove, such as an agency defense. The court said that if it were to accept petitioner’s arguments, the effect would be to give him a blanket exemption from criminal liability for drug-selling offenses for the indefinite future, a consequence far beyond the purpose of the immunity statute.

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