testimonial privilege in New York

1995Arlequin’s testimony added the "critical weight” to the prosecution’s case in a form not subject to cross-examination by defendant, which is recognized as the hallmark of reversible error (see, Namet v United States, 373 US, at 187 , supra; United States v Maloney, 262 F2d, at 536-537, supra; see also, People v Pollock, 21 NY2d, at 213 , supra). *224 Indeed, given the prosecutor’s awareness of Arlequin’s intention to invoke the Fifth Amendment, her repeated violations of the trial court’s order not to question him on such matters and her summation references to his invocations of his Fifth Ame

1993Absent a conscious and flagrant attempt by the prosecutor to build a case out of the inferences arising from the use of the testimonial privilege or without some indication that the witness’s refusal to testify adds critical weight to the People’s case in a form not subject to cross-examination, reversal is not warranted (see, People v Walker, 192 AD2d 631 ; People v Jones, 138 AD2d 405 ; see also, People v Berg, 59 NY2d 294 ).

2019People v Vargas , 86 NY2d 215, 221 [the People questioned a witness knowing the witness would respond by invoking the Fifth Amendment]). " Absent a conscious and flagrant attempt by the prosecutor to build a case out of the inferences arising from the use of the testimonial privilege or without some indication that the witness's refusal to testify adds critical weight to the People's case in a form not subject to cross-examination, reversal is not warranted'" ( People v Alston , 71 AD3d 684, 685 , quoting People v Jones , 138 AD2d 405, 406 ).

2013“Absent a conscious and flagrant attempt by the prosecutor to build a case out of the inferences arising from the use of the testimonial privilege or without some indication that the witness’s refusal to testify adds critical weight to the People’s case in a form not subject to cross-examination, reversal is not warranted” (People v Jones, 138 AD2d 405, 406 [1988]).

2019People v Vargas , 86 NY2d 215, 221 [the People questioned a witness knowing the witness would respond by invoking the Fifth Amendment]). " Absent a conscious and flagrant attempt by the prosecutor to build a case out of the inferences arising from the use of the testimonial privilege or without some indication that the witness's refusal to testify adds critical weight to the People's case in a form not subject to cross-examination, reversal is not warranted'" ( People v Alston , 71 AD3d 684, 685 , quoting People v Jones , 138 AD2d 405, 406 ).

2016It is clear that the People did not call Kirven for the sole purpose of eliciting his invocation of the privilege or in “a conscious and flagrant attempt to build its case out of inferences arising from the use of the testimonial privilege” (Namet, 373 US at 186 ; see Pollock, 21 NY2d at 209-211 [in a case where joint defendants denied killing the victim and claimed their confessions were false and extracted by force, but where each confession specifically referred to one Earl James as an accomplice, it was error for the People to call James for the sole purpose of having him invoke the testim

2016It is clear that the People did not call Kirven for the sole purpose of eliciting his invocation of the privilege or in “a conscious and flagrant attempt to build its case out of inferences arising from the use of the testimonial privilege” (Namet, 373 US at 186 ; see Pollock, 21 NY2d at 209-211 [in a case where joint defendants denied killing the victim and claimed their confessions were false and extracted by force, but where each confession specifically referred to one Earl James as an accomplice, it was error for the People to call James for the sole purpose of having him invoke the testim

1995Arlequin’s testimony added the "critical weight” to the prosecution’s case in a form not subject to cross-examination by defendant, which is recognized as the hallmark of reversible error (see, Namet v United States, 373 US, at 187 , supra; United States v Maloney, 262 F2d, at 536-537, supra; see also, People v Pollock, 21 NY2d, at 213 , supra). *224 Indeed, given the prosecutor’s awareness of Arlequin’s intention to invoke the Fifth Amendment, her repeated violations of the trial court’s order not to question him on such matters and her summation references to his invocations of his Fifth Ame

2014The standard for reviewing decisions on motions decided under CPL 440.10 (1) (g-1) is abuse of discretion (People v Jones, 109 AD3d 402, 405 [1st Dept 2013]).

2014The standard for reviewing decisions on motions decided under CPL 440.10 (1) (g-1) is abuse of discretion (People v Jones, 109 AD3d 402, 405 [1st Dept 2013]).

2014While a defendant needs to show more than a mere possibility that the verdict would have been more favorable to him (see People v Rodriguez, 193 AD2d 363, 365 [1st Dept 1993], lv denied 81 NY2d 1079 [1993]), he does not have to establish a virtual certainty that there would have been no conviction without the DNA evidence (see People v Tankleff, 49 AD3d 160 [2d Dept 2007]).

2014While a defendant needs to show more than a mere possibility that the verdict would have been more favorable to him (see People v Rodriguez, 193 AD2d 363, 365 [1st Dept 1993], lv denied 81 NY2d 1079 [1993]), he does not have to establish a virtual certainty that there would have been no conviction without the DNA evidence (see People v Tankleff, 49 AD3d 160 [2d Dept 2007]).

2021"Absent a conscious and flagrant attempt by the prosecutor to build a case out of the inferences arising from the use of the testimonial privilege or without some indication that the witness's refusal to testify adds critical weight to the People's case in a form not subject to cross-examination, reversal is not warranted" ( People v Alston , 71 AD3d 684, 685 [2010] [internal quotation marks and citation omitted], lv denied 14 NY3d 885 [2010]; see People v Berry , 27 NY3d 10, 16 [2016]).

2019People v Vargas , 86 NY2d 215, 221 [the People questioned a witness knowing the witness would respond by invoking the Fifth Amendment]). " Absent a conscious and flagrant attempt by the prosecutor to build a case out of the inferences arising from the use of the testimonial privilege or without some indication that the witness's refusal to testify adds critical weight to the People's case in a form not subject to cross-examination, reversal is not warranted'" ( People v Alston , 71 AD3d 684, 685 , quoting People v Jones , 138 AD2d 405, 406 ).

1978As noted by Mr. Justice White when speaking for the majority in Branzburg (supra, p 686 ) with reference to the claimed privilege in Garland, "this argument has been almost uniformly rejected since then, although there are occasional dicta that, in circumstances not presented here, a newsman might be excused.” Furthermore, after noting that, until Branzburg , the only testimonial privilege for unofficial witnesses that is rooted in the Federal Constitution is the Fifth Amendment privilege against self incrimination, Mr. Justice White stated (Branzburg, 408 US 665, 690 , supra), "We are asked t

1978As noted by Mr. Justice White when speaking for the majority in Branzburg (supra, p 686 ) with reference to the claimed privilege in Garland, "this argument has been almost uniformly rejected since then, although there are occasional dicta that, in circumstances not presented here, a newsman might be excused.” Furthermore, after noting that, until Branzburg , the only testimonial privilege for unofficial witnesses that is rooted in the Federal Constitution is the Fifth Amendment privilege against self incrimination, Mr. Justice White stated (Branzburg, 408 US 665, 690 , supra), "We are asked t

2021"Absent a conscious and flagrant attempt by the prosecutor to build a case out of the inferences arising from the use of the testimonial privilege or without some indication that the witness's refusal to testify adds critical weight to the People's case in a form not subject to cross-examination, reversal is not warranted" ( People v Alston , 71 AD3d 684, 685 [2010] [internal quotation marks and citation omitted], lv denied 14 NY3d 885 [2010]; see People v Berry , 27 NY3d 10, 16 [2016]).

2019Here, there was no indication that the People's motive for calling Mitchell was solely to raise inferences of the defendant's guilt based on the invocation of the privilege ( see People v Berry , 27 NY3d 10, 16 ).

2010People v Ianniello ( 21 NY2d 418, 424 [1968]) identified several legal rights of a witness which may be critically affected before the grand jury, concerning which the witness should be entitled to consult with counsel, including the right to assert or waive the privilege against self-incrimination, the right to refuse to answer questions having no bearing on the subject of the investigation and the right to assert a testimonial privilege such as attorney-client or doctor-patient (see also Matter of Lief v Hynes, 98 Misc 2d 817 [Sup Ct, Queens County 1979]).

1993(People v Ianniello, 21 NY2d 418, 424 .) The Court identified three legal rights of a witness which may be critically affected before the Grand Jury, and as to which the witness should be entitled to consult with counsel: the decision whether to assert the privilege against self-incrimination; the decision whether to answer a question that has no apparent bearing on the subject of the investigation; and the decision whether to invoke a testimonial privilege, such as the attorney-client privilege.

2023We agree that the court had enough information to decide against the guardian's removal without holding a testimonial hearing ( see Matter of Edgar V.L. , 214 AD3d 501, 513 [1st Dept 2023]).

2011McDermott v Manhattan Eye, Ear & Throat Hosp., 15 NY2d 20, 28 [1964]).

2010Under these circumstances, Greene’s invocation of the Fifth Amendment privilege against self-incrimination did not add critical weight to the prosecution’s case, and the defendant was not deprived of his right to a fair trial by Greene’s testimony (see People v Berg, 59 NY2d 294, 298 [1983]; People v Rivera, 205 AD2d 563 [1994]; cf. People v Anderson, 123 AD2d 770, 774-775 [1986]).

1999(Tenney v Brandhove, 341 US 367, 372 ; see, Supreme Ct. v Consumers Union, 446 US 719, 732-733 .) Like the protection afforded members of the House and Senate by the Speech or Debate Clause, legislative immunity provides State legislators and other State officials engaged in legislative activities with absolute immunity from suit and with a testimonial privilege for all legitimate legislative activities.

1998Here, given the totality of the circumstances, including the prosecutor’s agreement to confer immunity upon the witness in an attempt to avoid the need for him to invoke his 5th Amendment privilege, and the fact that Abimael did provide over 20 pages of relevant testimony before refusing to speak further, it cannot be said that he was brought to the stand in “a conscious and flagrant attempt * * * to build a case out of the inferences arising from the use of the testimonial privilege” (People v Jones, 138 AD2d 405, 406 , lv denied 71 NY2d 1028 ; see, People v Austin, 199 AD2d 325 , lv denied 8