Defendant moves for an Order of this Court dismissing the Indictment on the grounds that: 1.) The People failed to advise the Defendant of her rights under CPL §190.45(3) prior to the execution of the waiver of immunity, and; 2.) That the waiver of immunity was ineffective under CPL §190.45(2), and that Defendant has been granted transactional immunity.

The People have responded through the Affidavit of Opposition of Christina Pearson, Esq., dated August 25, 2019. After a hearing held on September 13, 2019, this Court makes the following Findings of Fact and Conclusions of Law:

The Defendant stands charged, by way of Indictment, with Aggravated Vehicular Homicide, a class B felony, in violation of PL §125.14(5); Vehicular manslaughter, a class D felony, in violation of PL §125.12(1); Operation of a motor vehicle impaired by drugs, a misdemeanor, in violation of VTL §1192-4; Reckless driving, a misdemeanor, in violation of [*2]VTL §1212, and; Failure to keep right, an infraction, in violation of VTL §1141.

On June 5, 2018, the Defendant appeared to testify before the Grand Jury, accompanied by her attorney, Rebecca Whitman, Esq. Prior to testifying, the Defendant was advised, by her attorney, that she must execute a waiver of immunity. Defendant did not understand the purpose, or the meaning, behind the wavier, but relied on her attorney's advice that the procedure was customary, and nevertheless, required.

At 10:06 am, the Defendant was called into the Grand Jury room, along with her attorney. A brief reference to the waiver of immunity was made on the record as follows:

ADA Pearson: "So we are in the grand jury room. It is 10:06 in the morning and I have called Danielle Dager and she appears with counsel . . . Rebecca Whitman, and she has reviewed the Waiver of Immunity?"

Ms. Whitman: Correct.

ADA Pearson: And if you want to, again, if you have any questions, review it with your attorney and then please go ahead and fill that out and sign it."

After this brief colloquy, the Defendant signed the wavier, in the presence of the grand jury. The waiver was thereafter acknowledged by the jury foreperson, and the document was marked and entered as an exhibit. After the waiver was marked and entered, the Defendant was placed under oath, and provided her testimony.

PL §190.40, states, in relevant part, "Every witness in a grand jury proceeding must give evidence legally requested of him regardless of any protest or belief on his part that it may tend to incriminate him. A witness who gives evidence in a grand jury proceeding receives immunity unless he has effectively waived such immunity pursuant to section 190.45."

PL §190.45, states, in relevant part:. "A waiver of immunity is a written instrument subscribed by a person who is or is about to become a witness in a grand jury proceeding, stipulating that he waives his privilege against self-incrimination and any possible or prospective immunity to which he would otherwise become entitled, pursuant to section 190.40, as a result of giving evidence in such proceeding. A waiver of immunity is not effective unless and until it is sworn to before the grand jury conducting the proceeding in which the subscriber has been called as a witness."

At the onset, this Court is not persuaded by the Defendant's argument that the waiver of immunity was ineffective based upon the failure of the District Attorney to advise the Defendant, on the record, of her right to have counsel present, and her right to obtain an adjournment for that purpose. PL §190.45(3) states: "A person who is called by the people as a witness in a grand jury proceeding and requested by the district attorney to subscribe and swear to a waiver of immunity before giving evidence has a right to confer with counsel before deciding whether he will comply with such request, and, if he desires to avail himself of such right, he must be accorded a reasonable time in which to obtain and confer with counsel for such purpose."

This Court is satisfied that the Defendant voluntarily appeared before the grand jury, accompanied by her own attorney, who had previously advised her that in order to testify, she must waive her right to immunity. Even though the record is brief, the District Attorney offered the Defendant an opportunity to review the document with her attorney, before signing it. While the Defendant later confessed that she did not understand the undertaking, that shortcoming is [*3]not chargeable to the People.

While there is no dispute that the Defendant subscribed her name to the written waiver, the question remains whether that act alone, constitutes an effective waiver of her right to immunity. For the reasons detailed below, this Court finds that it does not.

The language of CPL §190.45 is unequivocal. "A waiver of immunity is not effective unless and until it is sworn to before the grand jury [emphasis added]." See, People v. Higley, 70 NY2d 624, [1987] [holding that a Defendant, who did not swear to the waiver of immunity before the grand jury was immune from prosecution]; See, People v. Stewart, 92 NY2d 965 [1998] [holding that Defendant's signature, on a waiver of immunity, was effective, but only because the waiver itself contained a written oath]; See, People v. Edwards, 37 AD3d 289 [1st Dept. 2007] [holding that a waiver of immunity signed outside the presence of the grand jury must be sworn to, before the grand jury, by placing the witness, under oath, and asking him to swear not only to his signature, but to the fact that he read it, and that the statements made therein were true and correct]; See also, People v. Hethington, [NY App. Div. 1999), 258 AD2d 919 [holding that the waiver of immunity containing a "I swear to" clause, and later executed in the presence of the grand jury, represented an effective waiver of immunity].

In the case at bar, the waiver of immunity signed by the Defendant does not contain a written oath, or a "sworn to" provision, and the grand jury minutes reveal that the Defendant was not sworn under oath until after she signed the waiver. Having notice of the potential defect in the written waiver of immunity, and the procedure by which it had been executed, the hearing record is devoid of any evidence, offered by the People, illustrating compliance with the requirements of CPL §190.45.

This Court is not persuaded by the District Attorney's argument that the Defendant's signature on the waiver constitutes an oath. That posture defies the clear language of the statute, and ignores the fact that the giving of an oath represents an undertaking that an affiant's statements are true and correct.^[FN1]

The record in this case reveals that the Defendant signed the waiver prior to being placed under oath, and the document itself fails to contain a "sworn to" provision alerting the Defendant to the solemnity of the undertaking.

The facts of this case bear out a heartbreaking human tragedy, and the weight and magnitude of this ruling is not lost on the Court. Yet, the deficiencies of the written waiver, coupled with the People's failure to adhere to the strict formalities prescribed under CPL §190.45, renders the waiver of immunity ineffective, as a matter of law, and confers transactional immunity upon the Defendant, for all acts which were the subject of her grand jury testimony.

Based upon these findings, the Defendant's motion to dismiss the Indictment is hereby GRANTED.

The foregoing constitutes the Decision and Order of this Court.