Opinion
March 11, 1996
Appeal from the Supreme Court, Queens County (Appelman, J.).
Ordered that the order is reversed, on the law, that branch of the defendant's motion which was to dismiss Indictment No. 5945/94 as barred by transactional immunity is denied, that indictment is reinstated, and the matter is remitted to the Supreme Court, Queens County, for further proceedings consistent herewith.
Prior to testifying before the Grand Jury with respect to Indictment No. 5932/94, the defendant signed a document entitled "Waiver of Immunity Before Grand Jury Ind. No. 5932/94", stating he was waiving "all immunities and privileges from self-incrimination that I might otherwise be entitled to receive as a result of testifying in said Grand Jury proceeding". He then swore before the Grand Jury that the statements contained in his waiver of immunity were true (see, People v Cole, 196 A.D.2d 634).
We find that that document cannot be construed as "a written agreement with the district attorney that the interrogation will be limited to certain specified subjects" (CPL 190.45; People v Vargas, 150 Misc.2d 1053; People v Griffin, 135 Misc.2d 775; People v Coppola, 123 Misc.2d 31).
Further, prior to his appearance before the Grand Jury, the prosecutor informed the defendant that she would not grant him limited immunity. Therefore, it is inconceivable that he interpreted the document as a limited waiver of immunity.
Accordingly, his testimony before the Grand Jury did not afford him transactional immunity (see, CPL 190.45).
We note that the validity of Indictment No. 5932/94 is not before us. Therefore, we do not reach the question of whether the defendant's right to testify before the Grand Jury with respect to Indictment No. 5932/94 pursuant to the principles enunciated in People v Smith ( 87 N.Y.2d 715) was in any way infringed. Bracken, J.P., O'Brien, Santucci and Goldstein, JJ., concur.