November 25, 2019

A Cup of Joe | Can a Legal Technicality Cause Justice to Crash?

This week’s case brings us up to Montgomery County, located in the heart of New York's Mohawk Valley region. The foothills of the Catskill Mountains dot the southern part of the county, while foothills of the Adirondack Mountains dot the north. The Montgomery County courthouse is a 1½ hour drive to Syracuse (due west); and a 3-hour drive north, as the crow flies, from our Manhattan office.

Actor Kirk Douglas (father of Michael Douglas), and Bud Fowler, the first African American professional baseball player, were both born there. In episode 6, season 5 of the American television show, The Office, a sign reading “Mohawk Valley Center” is displayed in the opening seconds of the episode. This sign indicates the Dunder Mifflin UTICA branch. Utica is a city within the Mohawk Valley.

On November 29, 2019, Gloversville plays host to “Black Friday Camp,” at the Paul Nigra Center for Creative Art, 2736 St. Highway 30 NY 12078. For $55 you can get your holiday shopping done while your kids prepare dinner for you and bone up on their cooking skills! Campers will be spending the day with Chef Andrew creating a three-course-meal for three to take home at the end of the day. Kids will learn how to prepare an amazing appetizer, main course and a dessert. While you are out shopping till you drop, your Junior Chefs will be learning valuable kitchen skills and preparing a masterpiece to share with you! (Early drop off at 8am and late pick up until 5pm is available).

This is a case about consequences of not following the law to the letter. There is no trial. There is little good here.

ENTER: Danielle A. Dager, 29-year-old mother; Joseph Kiuber, 48; Sherri L. Orlosky, 58, Joseph’s girlfriend.

BACKGROUND: Danielle was cruising in her 2004 Mazda with her child in the car up in Montgomery County. As he was traveling westbound, Joseph and Sherri were heading east on his motorcycle. Danielle made a left turn into the Price Chopper Plaza, crossing into the oncoming lane striking the motorcycle throwing Joseph and Sherri onto the road. Joseph was hurt real bad and was hospitalized at Albany Medical Center for two months. Sherri was transported to St. Mary’s Hospital in Amsterdam where she soon died. Danielle and her child were not injured.

Lab results were positive for drugs in Danielle’s system at the time of the accident. Alcohol was not found. She was charged by the Montgomery County Sheriff’s Office for multiple crimes. She was sent to the Montgomery County Jail without bail.


There are two kinds of jury duty a person can get: The first is a summons to serve on a petit jury. If you are selected, you serve on a jury for a trial. The second, is a summons for a grand jury.

A grand jury is made up of 16 to 23 jurors. They hear testimony and if 12 or more of them agree that a felony crime has been committed, they return an indictment, and the case proceeds to trial.

If you are charged with a felony, you can testify to the grand jury. Anyone who testifies at a grand jury (unlike at trial) is granted immunity from being prosecuted for a crime. But if you sign a “Waiver of Immunity” under oath, you do not get immunity. So the prosecutors will not let a defendant give testimony to the grand jury unless they sign that Waiver…under oath.


Danielle wanted to testify to the Grand Jury. She was accompanied by her attorney, Rebecca Whitman, Esq., who explained to Danielle that she had to sign a waiver of immunity. Danielle did not understand the purpose, or the meaning, behind the wavier, but relied on Rebecca's advice that the procedure was customary, and required.

At 10:06 am, Danielle 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?"


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."

Danielle signed the wavier in the presence of the grand jury. Danielle was then placed under oath, and provided her testimony.


The attorney believed that although this was a tragic case, her client was being over-charged by the prosecution. But, the grand jury did not sympathize with Danielle and voted to indict. Danielle’s lawyer was shocked and she immediately filed a motion to dismiss. This is the oral argument:


JUDGE: I will now hear argument on Defendant’s motion to dismiss the indictment. Counsel?

DANIELLE’S ATTORNEY: Thank you, Your Honor. First, a witness who gives evidence in a grand jury proceeding receives immunity unless they have effectively waived that immunity. And in order to do that, a document has to be signed by the witness BEFORE giving testimony.

JUDGE: I would like to ask the People, whether there is any dispute as to whether the Defendant signed her name to the written waiver?

DISTRICT ATTORNEY: No, Your Honor, the waiver was signed; and Danielle's signature on the waiver constitutes an oath. She had her attorney there, Your Honor.

JUDGE: Well, the question remains whether that act alone, constitutes an effective waiver of her right to immunity. Clearly, it was not signed under oath.

DANIELLE’S ATTORNEY: And that is our argument, Judge. In People v. Higley, they held that a Defendant who did not swear to the waiver of immunity before the grand jury was immune from prosecution.

DISTRICT ATTORNEY: Judge, in People v. Stewart, after Higley was decided, the Court held that the signature on a waiver was effective even though it was not sworn to the Grand Jury.

DANIELLE’S ATTORNEY: Your Honor, counsel is forgetting that the waiver in Stewart was upheld because the waiver itself contained a written oath. The waiver here, has no oath, and the grand jury minutes show that Danielle was not sworn under oath until AFTER she signed the waiver.


JUDGE: 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 them to swear not only to their signature, but to the fact that they read it, and that the statements made therein were true and correct.

This Court is not persuaded by the District Attorney's argument that Danielle’s signature on the waiver constitutes an oath.

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 the law, renders the waiver of immunity INEFFECTIVE, as a matter of law, and confers transactional IMMUNITY upon Danielle, for all acts which were the subject of her grand jury testimony.

This case is DISMISSED. Danielle is to be RELEASED immediately. The Court is ADJOURNED.

See you next week.

Here is the case: http://www.courts.state.ny.us/reporter/3dseries/2019/2019_51828.htm

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