ROSATO v. REED (2004)

Petitioner commenced this original proceeding pursuant to CPLR article 78 to prohibit his prosecution under Indictment No. 04-04-064 on the ground that he is immune from prosecution based upon his testimony before the grand jury (see CPL 190.45, 190.50).   As petitioner properly contends, prohibition lies where, as here, a petitioner claims that a prosecution is improper because it is barred by immunity (see Matter of Rush v. Mordue, 68 N.Y.2d 348, 355, 509 N.Y.S.2d 493, 502 N.E.2d 170;  Matter of Altieri v. Holden, 231 A.D.2d 369, 371-372, 663 N.Y.S.2d 602;  Matter of Altman v. Bradley, 184 A.D.2d 131, 133, 591 N.Y.S.2d 403, appeal dismissed and lv. denied 81 N.Y.2d 775, 594 N.Y.S.2d 711, 610 N.E.2d 384).

 We conclude, however, that the petition must be dismissed.   Contrary to the contention of petitioner, the mere fact that he answered a question about his address before signing the waiver of immunity does not confer immunity upon him.   Although the crimes allegedly occurred at petitioner's residence, geographical jurisdiction is not an element of the crimes but, rather, is a question of venue (see CPL 20.40;  People v. Chaitin, 94 A.D.2d 705, 462 N.Y.S.2d 61, affd. 61 N.Y.2d 683, 472 N.Y.S.2d 597, 460 N.E.2d 1082;  People v. Patterson, 185 Misc.2d 519, 521, 708 N.Y.S.2d 815;  see generally People v. McLaughlin, 80 N.Y.2d 466, 471, 591 N.Y.S.2d 966, 606 N.E.2d 1357).   Therefore, that answer did not prove any “part or feature” of the crimes (Matter of Doyle, 257 N.Y. 244, 256, 177 N.E. 489;  cf. People v. Williams, 81 A.D.2d 418, 425-426, 440 N.Y.S.2d 935, affd. 56 N.Y.2d 916, 453 N.Y.S.2d 430, 438 N.E.2d 1146;  Matter of Carey v. Kitson, 93 A.D.2d 50, 60, 461 N.Y.S.2d 876, lv. denied 60 N.Y.2d 553, 467 N.Y.S.2d 1028, 454 N.E.2d 1317).   That answer also did not place petitioner at the scene of the crimes at the time of the crimes, and thus that one answer did not constitute “a ‘link’ in the ‘chain of facts' against [petitioner]” (Williams, 81 A.D.2d at 424, 440 N.Y.S.2d 935;  cf. People ex rel. Coyle v. Truesdell, 259 App.Div. 282, 285-286, 18 N.Y.S.2d 947).

 Contrary to the further contentions of petitioner, there was a sworn waiver of immunity (see People v. Stewart, 92 N.Y.2d 965, 967, 683 N.Y.S.2d 751, 706 N.E.2d 739;  People v. Chasey, 5 A.D.3d 815, 816, 772 N.Y.S.2d 629, lv. denied 2 N.Y.3d 797, 781 N.Y.S.2d 296, 814 N.E.2d 468), and it was submitted to the grand jury.   In any event, submission of the waiver of immunity is not a prerequisite to the waiver's validity but, rather, is a prerequisite to petitioner's testimony (compare CPL 190.45 with 190.50[5] [b] ).  Finally, we conclude that there was “literal compliance” with the requirements of 190.45(3) (Stewart, 92 N.Y.2d at 967, 683 N.Y.S.2d 751, 706 N.E.2d 739).

It is hereby ORDERED that said petition be and the same hereby is unanimously dismissed without costs.

MEMORANDUM: