The following papers numbered 1 to 2 were read and considered on defendant's motion to dismiss the criminal prosecution for a lack of probable cause, for a Kastigar hearing to determine whether defendant's legal protections under Garrity and Kastigar were implemented, and to disqualify the Westchester County District Attorney's Office from conducting the hearing.

Papers Numbered
Notice of Motion and Affidavits Annexed
Affirmation in Opposition 2

Defendant, Eva Pena, is a sergeant with the New York City Police Department ("NYPD"). She is charged by misdemeanor information dated September 4, 2019, with Petit Larceny pursuant to Penal Law § 155.25. The information and owner's deposition alleged that on September 3, 2019, defendant, without permission from the Macy's Department Store in Yonkers, removed items of clothing. Macy's Asset Protection Office Samantha Newton-Henry (hereinafter "APO Newton-Henry") signed the owner's deposition. The information also contains a statement by defendant to the Yonkers Police Department that she did not steal [*2]anything and that she was "set up." APO Newton-Henry also provided an oral and written statement to the Yonkers Police Department on September 3, 2019.

On September 6, 2019, defendant was arraigned and entered a plea of not guilty. The People allege that thereafter, on or about December 5, 2019, defendant was served with disciplinary charges from the NYPD entitled Matter of the Police Department City of New York v. Sergeant Eva Y. Pena Case no.: 2019-21002. The charges were allegedly amended on or about July 6, 2022.

Defendant, through counsel, now moves to dismiss the criminal case on the grounds there was no probable cause for defendant's arrest, for a hearing under Kastigar v. United States, 406 US 441 [1972] to determine if the prosecution used defendant's compelled statement to her employer in the above-entitled criminal matter, and to disqualify the District Attorney's office from conducting the Kastigar hearing should the court order such a hearing.

This branch of defendant's motion, which seeks to dismiss for an alleged lack of probable cause is denied as moot. Defendant raised these same arguments in a prior motion which the Court on December 15, 2022, denied pending a pre-trial hearing on the issue.

Defendant alleges that she was compelled to provide testimony in relation to the Matter of the Police Department City of New York v. Sergeant Eva Y. Pena Case no.: 2019-21002 before the Honorable Joshua Kleiman, Assistant Deputy Commissioner. Defendant claims APO Newton-Henry also testified in the disciplinary proceeding and, that prior to her testimony, she was had a two and a half hour "prep period" with NYPD Assistant Department Advocate Penny M. Bluford-Garrett, Esq. Defendant alleges that during this time, APO Newton-Henry had "substantial exposure" to defendant's compelled statement (defendant's affirmation, ¶30). Defendant alleged that as a result, APO Newton-Henry materially altered the testimony offered at defendant's NYPD disciplinary hearing. Defendant claims APO Newton-Henry's prior account of events were "significantly different, and less incriminating " (defendant's affirmation ¶35). Defendant asserts that APO Newton-Henry's , after the meeting, was tailored to support evidence of guilt against defendant. Defendant argues APO Newton-Henry's testimony in the above-entitled criminal matter has been tainted by her alleged exposure to defendant's immunized statement and seeks to preclude any testimony by APO Newton-Henry at trial.

Defendant further argues that various prosecutors of the Westchester County District Attorney's Office have communicated with the NYPD Advocates Office since September 3, 2019, "regarding the status of the NYPD internal investigation and related disciplinary trial, thereby forever 'tainting' the criminal prosecution" (see defendant's motion at ¶26). Defendant accordingly requests this Court direct NYPD Assistant Department Advocate Penny Bluford-Garett, Esq., the attorney who handled defendant's disciplinary hearing, be compelled to testify at a Kastigar hearing regarding conversations she had with the District Attorney's office regarding the NYPD internal investigation and defendant's disciplinary matters. Defendant also requests this Court direct Assistant District Attorneys Timothy O'Hara, Kristina Dushaj and ToniAnn Gagliardi testify as to whether they are aware of defendant's Garrity and Kastigar rights and whether they followed reliable procedures to avoid "tainting" the evidence. Defendant [*3]demands the appointment of a prosecutor from another county to represent the People at any Kastigar hearing.

The People oppose defendant's motion and deny any exposure of defendant's immunized statement to either the prosecutors or their witnesses. The People contend that the evidence supporting the Petit Larceny charge was gathered and memorialized on September 3, 2019, the date of the alleged theft. This evidence, according to the prosecution, consisted of Macy's employees' oral and written statements to the Yonkers Police Department, including an owner's deposition made on September 4, 2019. (see People's affirmation, exhibit 2). The People maintain that any testimony provided by APO Newton-Henry at defendant's disciplinary hearing was based on events she witnessed involving defendant and the Macy's video of defendant's conduct in Macy's on September 3, 2019.

The People claim that defendant's statement was not disclosed to anyone outside the NYPD administrative team handling the NYPD disciplinary matter. That said, the People acknowledge that APO Newton-Henry's testimony preparation included whether she "set up" defendant. However, the People maintain that this topic, while a subject allegedly covered in defendant's compelled statement, was also made to the Yonkers Police Department following defendant's arrest and was made publicly by defendant, including in her federal civil lawsuit. Accordingly, and under these circumstances, the People argue, defendant's allegation that she was unlawfully treated, arrested, and set up by Macy's employees and the police is not privileged.

The People acknowledge communications with the NYPD and claim any such communication were limited to the status of defendant's disciplinary hearing and to obtain civilian statements gathered by NYPD investigators " (People's Affirmation p. 12). The People further allege that all information they received from the NYPD Internal Affairs Bureau was transmitted to the Westchester County District Attorney's Office and disclosed to defendant prior to the date of defendant's compelled statement, which was made on November 8, 2021. The People argue that they were never in possession of defendant's compelled statement.

Finally, the People assert that this Court lacks jurisdiction to appoint a prosecutor from another County to represent the People (County Law §701[1]).

A public employee who gives a statement to his or her public employer under the threat of dismissal automatically obtains immunity against the use and derivative use of that statement in any criminal prosecution pursuant to the declarant's Fifth Amendment privilege against compulsory self-incrimination (see United States v. Connolly, 2019 WL 2120523 *10 [SDNY 2019] citing Garrity v. New Jersey, 385 US 492 [1967]; People v. Corrigan, 80 NY2d 326, 329 [1992]). Defendant bears the burden of demonstrating that the compelled statement is subject to Garrity protection. The issue before this Court is whether the People used immunized statements by defendant in the present prosecution.

Any use of a defendant's compelled statement is unconstitutional under the Fifth Amendment's self-incrimination clause. (Kastigar v. United States, 406 US at 441, 453[1972]). The People "bear the burden of establishing that any evidence used was derived from a source wholly independent of the statement" (Corrigan, 80 NY2d at 329), and should the prosecution submit evidence "obtained directly or indirectly from use of an immunized statement, the charge may be sustained only if supported by admissible evidence derived from an independent source" [*4](id.). The People may not merely deny the information was derived from the statement, "the prosecution must affirmatively show how it acquired the evidence" (People v. Feerick, 241 AD2d 126, 133 [1st Dept 1998], aff'd 93 NY2d 433 [1999]). To do so, the People must "show, by a fair preponderance of the credible evidence, the existence of an independent source" (People v. Kronberg, 243 AD2d 132 [1st Dept 1998]). This burden may be satisfied by an affirmation (see People v. Nation, 189 Misc 2d 165, 168 [Co Ct Green Co 2001]).

Defendant now claims she "knows" APO Newton-Henry materially altered her testimony at defendant's NYPD disciplinary proceeding following a two and a half hour "prep period" with NYPD Assistant Department Advocate Penny Bluford-Garett, Esq. (defendant's affirmation ¶32). Defendant also alleges that the People had conversations with Ms. Bluford-Garett, Esq. and claims they and their witnesses were exposed to defendant's immunized testimony.

Defendant relies upon United States v. Allen, 864 F.3d 63 (2d Cir 2017) for support. In that matter, unlike here, there was no dispute that the witness reviewed defendant's compelled testimony. Following the witness' review of the compelled testimony, the witness' testimony became more incriminating. (id). The present pre-trial testimony is distinguishable and defendant's reliance on Allen is misplaced. Defendant points to no prior statement by APO Newton-Henry. The only statements before the Court are those made to the Yonkers Police Department. (People's exhibit 1 & 2). Reviewing those, APO Newton-Henry never stated she saw defendant conceal the items. Notably, this was also the basis for defendant's previous and present motion to dismiss. Thus, there is no inconsistency between the statements. Even though APO Newton-Henry allegedly reviewed a subject covered in defendant's statement, specifically whether defendant was "set up", does not violate Kastigar as Kastigar immunity does not extend to disciplinary proceedings (see e.g. Anonymous Attorneys v. Bar Ass'n of Erie Co, 41 NY2d 506, 509 [1977]).

Further, Kastigar does not extend to mere questioning of a witness about a subject covered in a compelled statement. The mere making of an immunized statement which relates to the subject matter of the criminal prosecution does not entitle defendant to a hearing nor establish a meritorious Kastigar claim. The inquiry is not whether the People had defendant's immunized testimony, but whether they made any use of the testimony. (People v. Feerick, 241 AD2d 126, 135 1st Dept 1998). Where defendant, as here, has publicly alleged that she was "set up", unlawfully treated and unlawfully arrested by Macy's employees and the Yonkers Police Department, these statements are not protected. (see https://meaww.com/female-nypd-sergeant-eva-pena-arrest-shoplift- 360-designer-clothing-macy-store; https://www.nydailynews.com/new-york/nyc-crime/ny-shoplifting-nypd-sergeant-sues-m acys-false-arrest-racial-profiling-20221003-zbhg2ozq6jcb3krk52oc2apb6m-story.html [noting that "Pena has accused the store's asset protection staff of framing her, trying to shake her down and forging her signature on the confession"]).

Defendant's arguments are conclusory and speculative. Defendant lacks any factual specificity that the People ever had access to her compelled statement, let alone that the People have fatally used it in the above-entitled criminal case. The evidence that supports the criminal charge and comprises the proof that the People intend to use on their direct case was gathered and memorialized on or about September 3, 2019, the date of the alleged theft. The evidence includes Macy's employees who allegedly observed defendant's conduct, including that of APO Newton-Henry; surveillance video taken that day showing defendant's conduct inside Macy's; and the physical evidence of defendant's alleged theft, which included items of clothing [*5]allegedly recovered that day.

Defendant was thereafter charged and arraigned on September 6, 2019. Discovery was conducted, the People filed a Certificate of Compliance and declared ready. Defendant, through her attorneys, filed a series of motions and the matter appeared on the Court's calendar numerous times.

The NYPD instituted a disciplinary proceeding during this time and after the criminal charge was filed. Defendant was allegedly served with the disciplinary charges on or about December 5, 2019, several months after the above action was filed. Defendant allegedly made a compelled statement to the NYPD on November 8, 2021, two years after the charges were filed. Amended charges in the disciplinary proceeding were filed on or about July 6, 2022, nearly three years after the charges were filed. The hearing took place on July 6, 2022 and concluded on July 18, 2022. The defendant's compelled statement could not have tainted the criminal charge as the statement simply did not exist at the time prosecution of the criminal charge commenced.

"A defendant who seeks Kastigar relief must first articulate the purported violation with enough specificity to permit the government to respond. This entails a showing that there is a sufficient nexus between the immunized testimony and the prosecution" (Connolly, 2019 WL 2120523 at *19). "An insubstantial and speculative possibility of taint does not trigger Kastigar" (id.). To demonstrate entitlement to a hearing, a defendant "must lay a foundation on more than suspicion that it may have happened" (id. at *20). The chronology of events establishes no impermissible taint or use of materials contained in the NYPD compelled statement. It is an impossibility for defendant's compelled statement to have tainted the criminal charge as the statement did not exist at the time the evidence was obtained and the prosecution commenced. The above-entitled prosecution is based on proof derived from sources independent of the compelled statement (see People v. Ackerman, 44 Misc 3d 626, 631-632 [Sup Ct, Bronx Co 2014]; Nation, 189 Misc 2d at 168). The evidence used to file the information was collected and disclosed to defendant not mere days, weeks or even months but years prior to defendant's compelled statement.

Defendant has failed to meet her burden. Defendant's motion for a Kastigar hearing is accordingly denied.

Defendant has failed to set forth a basis for a Kastigar hearing, thereby rendering this branch of the motion moot. Notwithstanding, this application is not properly before this Court as only "a superior criminal court in the county wherein the action is triable" (County Law §701[1]) has jurisdiction to decide if a District Attorney should be disqualified and replaced by another prosecutor (see People v. Anonymous, 126 Misc 2d 673 [Crim Ct, NYC 1984]; Morgenthau v. Crane, 113 AD2d 20,21 [1st Dept 1985]).

As the Court has previously addressed the defendant's probable cause challenge by ordering a pre-trial hearing to resolve this issue, this branch of defendant's motion is denied. As to defendant's Kastigar claim, the Court is satisfied that the prosecution and its witnesses have not been exposed to defendant's compelled NYPD statement and the evidence supporting the criminal charge is derived from sources obtained prior to and independent of any immunized statement. Finally, that branch of defendant's motion which sought appointment of a special district attorney is denied as this Court does not have jurisdiction.