NYS CPL Law
Criminal Procedure Law
New York State Consolidated Laws
Article 190 - NY Criminal Procedure Law
THE GRAND JURY AND ITS PROCEEDINGS
S 190.05 Grand jury; definition and general functions.
A grand jury is a body consisting of not less than sixteen nor more
than twenty-three persons, impaneled by a superior court and
constituting a part of such court, the functions of which are to hear
and examine evidence concerning offenses and concerning misconduct,
nonfeasance and neglect in public office, whether criminal or otherwise,
and to take action with respect to such evidence as provided in section
S 190.10 Grand jury; for what courts drawn.
The appellate division of each judicial department shall adopt rules
governing the number and the terms for which grand juries shall be drawn
and impaneled by the superior courts within its department; provided,
however, that a grand jury may be drawn and impaneled for any
extraordinary term of the supreme court upon the order of a justice
assigned to hold such term.
S 190.15 Grand jury; duration of term and discharge.
1. A term of a superior court for which a grand jury has been
impaneled remains in existence at least until and including the opening
date of the next term of such court for which a grand jury has been
designated. Upon such date, or within five days preceding it, the court
may, upon declaration of both the grand jury and the district attorney
that such grand jury has not yet completed or will be unable to complete
certain business before it, extend the term of court and the existence
of such grand jury to a specified future date, and may subsequently
order further extensions for such purpose.
2. At any time when a grand jury is in recess and no other
appropriate grand jury is in existence in the county, the court may,
upon application of the district attorney or of a defendant held by a
local criminal court for the action of a grand jury, order such grand
jury reconvened for the purpose of dealing with a matter requiring grand
S 190.20 Grand jury; formation, organization and other matters
preliminary to assumption of duties.
1. The mode of selecting grand jurors and of drawing and impaneling
grand juries is governed by the judiciary law.
2. Neither the grand jury panel nor any individual grand juror may be
challenged, but the court may:
(a) At any time before a grand jury is sworn, discharge the panel and
summon another panel if it finds that the original panel does not
substantially conform to the requirements of the judiciary law; or
(b) At any time after a grand juror is drawn, refuse to swear him, or
discharge him after he has been sworn, upon a finding that he is
disqualified from service pursuant to the judiciary law, or incapable of
performing his duties because of bias or prejudice, or guilty of
misconduct in the performance of his duties such as to impair the proper
functioning of the grand jury.
3. After a grand jury has been impaneled, the court must appoint one
of the grand jurors as foreman and another to act as foreman during any
absence or disability of the foreman. At some time before commencement
of their duties, the grand jurors must appoint one of their number as
secretary to keep records material to the conduct of the grand jury`s
4. The grand jurors must be sworn by the court. The oath may be in any
form or language which requires the grand jurors to perform their duties
5. After a grand jury has been sworn, the court must deliver or cause
to be delivered to each grand juror a printed copy of all the provisions
of this article, and the court may, in addition, give the grand jurors
any oral and written instructions relating to the proper performance of
their duties as it deems necessary or appropriate.
6. If two or more grand juries are impaneled at the same court term,
the court may thereafter, for good cause, transfer grand jurors from one
panel to another, and any grand juror so transferred is deemed to have
been sworn as a member of the panel to which he has been transferred.
S 190.25 Grand jury; proceedings and operation in general.
1. Proceedings of a grand jury are not valid unless at least sixteen
of its members are present. The finding of an indictment, a direction to
file a prosecutor's information, a decision to submit a grand jury
report and every other affirmative official action or decision requires
the concurrence of at least twelve members thereof.
2. The foreman or any other grand juror may administer an oath to any
witness appearing before the grand jury.
3. Except as provided in subdivision three-a of this section, during
the deliberations and voting of a grand jury, only the grand jurors may
be present in the grand jury room. During its other proceedings, the
following persons, in addition to witnesses, may, as the occasion
requires, also be present:
(a) The district attorney;
(b) A clerk or other public servant authorized to assist the grand
jury in the administrative conduct of its proceedings;
(c) A stenographer authorized to record the proceedings of the grand
(d) An interpreter. Upon request of the grand jury, the prosecutor
must provide an interpreter to interpret the testimony of any witness
who does not speak the English language well enough to be readily
understood. Such interpreter must, if he has not previously taken the
constitutional oath of office, first take an oath before the grand jury
that he will faithfully interpret the testimony of the witness and that
he will keep secret all matters before such grand jury within his
(e) A public servant holding a witness in custody. When a person held
in official custody is a witness before a grand jury, a public servant
assigned to guard him during his grand jury appearance may accompany him
in the grand jury room. Such public servant must, if he has not
previously taken the constitutional oath of office, first take an oath
before the grand jury that he will keep secret all matters before it
within his knowledge.
(f) An attorney representing a witness pursuant to section 190.52 of
this chapter while that witness is present.
(g) An operator, as that term is defined in section 190.32 of this
chapter, while the videotaped examination of either a special witness or
a child witness is being played.
(h) A social worker, rape crisis counselor, psychologist or other
professional providing emotional support to a child witness twelve years
old or younger who is called to give evidence in a grand jury proceeding
concerning a crime defined in article one hundred twenty-one, article
one hundred thirty, article two hundred sixty, section 120.10, 125.10,
125.15, 125.20, 125.25, 125.26, 125.27, 255.25, 255.26 or 255.27 of the
penal law provided that the district attorney consents. Such support
person shall not provide the witness with an answer to any question or
otherwise participate in such proceeding and shall first take an oath
before the grand jury that he or she will keep secret all matters before
such grand jury within his or her knowledge.
3-a. Upon the request of a deaf or hearing-impaired grand juror, the
prosecutor shall provide a sign language interpreter for such juror.
Such interpreter shall be present during all proceedings of the grand
jury which the deaf or hearing-impaired grand juror attends, including
deliberation and voting. The interpreter shall, if he or she has not
previously taken the constitutional oath of office, first take an oath
before the grand jury that he or she will faithfully interpret the
testimony of the witnesses and the statements of the prosecutor, judge
and grand jurors; keep secret all matters before such grand jury within
his or her knowledge; and not seek to influence the deliberations and
voting of such grand jury.
4. (a) Grand jury proceedings are secret, and no grand juror, or other
person specified in subdivision three of this section or section 215.70
of the penal law, may, except in the lawful discharge of his duties or
upon written order of the court, disclose the nature or substance of any
grand jury testimony, evidence, or any decision, result or other matter
attending a grand jury proceeding. For the purpose of assisting the
grand jury in conducting its investigation, evidence obtained by a grand
jury may be independently examined by the district attorney, members of
his staff, police officers specifically assigned to the investigation,
and such other persons as the court may specifically authorize. Such
evidence may not be disclosed to other persons without a court order.
Nothing contained herein shall prohibit a witness from disclosing his
(b) When a district attorney obtains evidence during a grand jury
proceeding which provides reasonable cause to suspect that a child has
been abused or maltreated, as those terms are defined by section ten
hundred twelve of the family court act, he must apply to the court
supervising the grand jury for an order permitting disclosure of such
evidence to the state central register of child abuse and maltreatment.
A district attorney need not apply to the court for such order if he has
previously made or caused a report to be made to the state central
register of child abuse and maltreatment pursuant to section four
hundred thirteen of the social services law and the evidence obtained
during the grand jury proceeding, or substantially similar information,
was included in such report. The district attorney's application to the
court shall be made ex parte and in camera. The court must grant the
application and permit the district attorney to disclose the evidence to
the state central register of child abuse and maltreatment unless the
court finds that such disclosure would jeopardize the life or safety of
any person or interfere with a continuing grand jury proceeding.
5. The grand jury is the exclusive judge of the facts with respect to
any matter before it.
6. The legal advisors of the grand jury are the court and the district
attorney, and the grand jury may not seek or receive legal advice from
any other source. Where necessary or appropriate, the court or the
district attorney, or both, must instruct the grand jury concerning the
law with respect to its duties or any matter before it, and such
instructions must be recorded in the minutes.
S 190.30 Grand jury; rules of evidence.
1. Except as otherwise provided in this section, the provisions of
article sixty, governing rules of evidence and related matters with
respect to criminal proceedings in general, are, where appropriate,
applicable to grand jury proceedings.
2. A report or a copy of a report made by a public servant or by a
person employed by a public servant or agency who is a physicist,
chemist, coroner or medical examiner, firearms identification expert,
examiner of questioned documents, fingerprint technician, or an expert
or technician in some comparable scientific or professional field,
concerning the results of an examination, comparison or test performed
by him in connection with a case which is the subject of a grand jury
proceeding, may, when certified by such person as a report made by him
or as a true copy thereof, be received in such grand jury proceeding as
evidence of the facts stated therein.
2-a. When the electronic transmission of a certified report, or
certified copy thereof, of the kind described in subdivision two or
three-a of this section or a sworn statement or copy thereof, of the
kind described in subdivision three of this section results in a written
document, such written document may be received in such grand jury
proceeding provided that: (a) a transmittal memorandum completed by the
person sending the report contains a certification that the report has
not been altered and a description of the report specifying the number
of pages; and (b) the person who receives the electronically transmitted
document certifies that such document and transmittal memorandum were so
received; and (c) a certified report or a certified copy or sworn
statement or sworn copy thereof is filed with the court within twenty
days following arraignment upon the indictment; and (d) where such
written document is a sworn statement or sworn copy thereof of the kind
described in subdivision three of this section, such sworn statement or
sworn copy thereof is also provided to the defendant or his counsel
within twenty days following arraignment upon the indictment.
3. A written or oral statement, under oath, by a person attesting to
one or more of the following matters may be received in such grand jury
proceeding as evidence of the facts stated therein:
(a) that person's ownership or lawful custody of, or license to
occupy, premises, as defined in section 140.00 of the penal law, and of
the defendant's lack of license or privilege to enter or remain
(b) that person's ownership of, or possessory right in, property, the
nature and monetary amount of any damage thereto and the defendant's
lack of right to damage or tamper with the property;
(c) that person's ownership or lawful custody of, or license to
possess property, as defined in section 155.00 of the penal law,
including an automobile or other vehicle, its value and the defendant's
lack of superior or equal right to possession thereof;
(d) that person's ownership of a vehicle and the absence of his
consent to the defendant's taking, operating, exercising control over or
(e) that person's qualifications as a dealer or other expert in
appraising or evaluating a particular type of property, his expert
opinion as to the value of a certain item or items of property of that
type, and the basis for his opinion;
(f) that person's identity as an ostensible maker, drafter, drawer,
endorser or other signator of a written instrument and its falsity
within the meaning of section 170.00 of the penal law;
(g) that person's ownership of, or possessory right in, a credit card
account number or debit card account number, and the defendant's lack of
superior or equal right to use or possession thereof.
Provided, however, that no such statement shall be admitted when an
adversarial examination of such person has been previously ordered
pursuant to subdivision 8 of section 180.60, unless a transcript of such
examination is admitted.
3-a. A sex offender registration form, sex offender registration
continuation/supplemental form, sex offender registry address
verification form, sex offender change of address form or a copy of such
form maintained by the division of criminal justice services concerning
an individual who is the subject of a grand jury proceeding, may, when
certified by a person designated by the commissioner of the division of
criminal justice services as the person to certify such records, as a
true copy thereof, be received in such grand jury proceeding as evidence
of the facts stated therein.
4. An examination of a child witness or a special witness by the
district attorney videotaped pursuant to section 190.32 of this chapter
may be received in evidence in such grand jury proceeding as the
testimony of such witness.
5. Nothing in subdivisions two, three or four of this section shall be
construed to limit the power of the grand jury to cause any person to be
called as a witness pursuant to subdivision three of section 190.50.
6. Wherever it is provided in article sixty that the court in a
criminal proceeding must rule upon the competency of a witness to
testify or upon the admissibility of evidence, such ruling may in an
equivalent situation in a grand jury proceeding, be made by the district
7. Wherever it is provided in article sixty that a court presiding at
a jury trial must instruct the jury with respect to the significance,
legal effect or evaluation of evidence, the district attorney, in an
equivalent situation in a grand jury proceeding, may so instruct the
8. (a) A business record may be received in such grand jury
proceedings as evidence of the following facts and similar facts stated
(i) a person's use of, subscription to and charges and payments for
communication equipment and services including but not limited to
equipment or services provided by telephone companies and internet
service providers, but not including recorded conversations or images
communicated thereby; and
(ii) financial transactions, and a person's ownership or possessory
interest in any account, at a bank, insurance company, brokerage,
exchange or banking organization as defined in section two of the
(b) Any business record offered for consideration by a grand jury
pursuant to paragraph (a) of this subdivision must be accompanied by a
written statement, under oath, that (i) contains a list or description
of the records it accompanies, (ii) attests in substance that the person
making the statement is a duly authorized custodian of the records or
other employee or agent of the business who is familiar with such
records, and (iii) attests in substance that such records were made in
the regular course of business and that it was the regular course of
such business to make such records at the time of the recorded act,
transaction, occurrence or event, or within a reasonable time
thereafter. Such written statement may also include a statement
identifying the name and job description of the person making the
statement, specifying the matters set forth in subparagraph (ii) of this
paragraph and attesting that the business has made a diligent search and
does not possess a particular record or records addressing a matter set
forth in paragraph (a) of this subdivision, and such statement may be
received at grand jury proceedings as evidence of the fact that the
business does not possess such record or records. When records of a
business are accompanied by more than one sworn written statement of its
employees or agents, such statements may be considered together in
determining the admissibility of the records under this subdivision. For
the purpose of this subdivision, the term "business records" does not
include any records prepared by law enforcement agencies or prepared by
any entity in anticipation of litigation.
(c) Any business record offered to a grand jury pursuant to paragraph
(a) of this subdivision that includes material beyond that described in
such paragraph (a) shall be redacted to exclude such additional
material, or received subject to a limiting instruction that the grand
jury shall not consider such additional material in support of any
(d) No such records shall be admitted when an adversarial examination
of such a records custodian or other employee of such business who was
familiar with such records has been previously ordered pursuant to
subdivision eight of section 180.60 of this chapter, unless a transcript
of such examination is admitted.
(e) Nothing in this subdivision shall affect the admissibility of
business records in the grand jury on any basis other than that set
forth in this subdivision.
S 190.32 Videotaped examination; definitions, application, order and
1. Definitions. As used in this section:
(a) "Child witness" means a person twelve years old or less whom the
people intend to call as witness in a grand jury proceeding to give
evidence concerning any crime defined in article one hundred thirty or
two hundred sixty or section 255.25, 255.26 or 255.27 of the penal law
of which the person was a victim.
(b) "Special witness" means a person whom the people intend to call as
a witness in a grand jury proceeding and who is either:
(i) Unable to attend and testify in person in the grand jury
proceeding because the person is either physically ill or incapacitated;
(ii) More than twelve years old and who is likely to suffer very
severe emotional or mental stress if required to testify in person
concerning any crime defined in article one hundred thirty or two
hundred sixty or section 255.25, 255.26 or 255.27 of the penal law to
which the person was a witness or of which the person was a victim.
(c) "Operator" means a person employed by the district attorney who
operates the video camera to record the examination of a child witness
or a special witness.
2. In lieu of requiring a witness who is a child witness to appear in
person and give evidence in a grand jury proceeding, the district
attorney may cause the examination of such witness to be videotaped in
accordance with the provisions of subdivision five of this section.
3. Whenever the district attorney has reason to believe that a witness
is a special witness, he may make an ex parte application to the court
for an order authorizing the videotaping of an examination of such
special witness and the subsequent introduction in evidence in a grand
jury proceeding of that videotape in lieu of the live testimony of such
special witness. The application must be in writing, must state the
grounds of the application and must contain sworn allegations of fact,
whether of the district attorney or another person or persons,
supporting such grounds. Such allegations may be based upon personal
knowledge of the deponent or upon information and belief, provided, that
in the latter event, the sources of such information and the grounds for
such belief are stated.
4. If the court is satisfied that a witness is a special witness, it
shall issue an order authorizing the videotaping of such special witness
in accordance with the provisions of subdivision five of this section.
The court order and the application and all supporting papers shall not
be disclosed to any person except upon further court order.
5. The videotaping of an examination either of a child witness or a
special witness shall proceed as follows:
(a) An examination of a child witness or a special witness which is to
be videotaped pursuant to this section may be conducted anywhere and at
any time provided that the operator begins the videotape by recording a
statement by the district attorney of the date, time and place of the
examination. In addition, the district attorney shall identify himself,
the operator and all other persons present.
(b) An accurate clock with a sweep second hand shall be placed next to
or behind the witness in such position as to enable the operator to
videotape the clock and the witness together during the entire
examination. In the alternative, a date and time generator shall be used
to superimpose the day, hour, minute and second over the video portion
of the recording during the entire examination.
(c) A social worker, rape crisis counselor, psychologist or other
professional providing emotional support to a child witness or to a
special witness, as defined in subparagraph (ii) of paragraph (b) of
subdivision one of this section, or any of those persons enumerated in
paragraphs (a), (b), (c), (d), (e), (f) and (g) of subdivision three of
section 190.25 may be present during the videotaping except that a
doctor, nurse or other medical assistant also may be present if required
by the attendant circumstances. Each person present, except the witness,
must, if he has not previously taken a constitutional oath of office or
an oath that he will keep secret all matters before a grand jury, must
take an oath on the record that he will keep secret the videotaped
(d) The district attorney shall state for the record the name of the
witness, and the caption and the grand jury number, if any, of the case.
If the witness to be examined is a child witness, the date of the
witness' birth must be recorded. If the witness to be examined is a
special witness, the date of the order authorizing the videotaped
examination and the name of the justice who issued the order shall be
(e) If the witness will give sworn testimony, the administration of
the oath must be recorded. If the witness will give unsworn testimony, a
statement that the testimony is not under oath must be recorded.
(f) If the examination requires the use of more than one tape, the
operator shall record a statement of the district attorney at the end of
each tape declaring that such tape has ended and referring to the
succeeding tape. At the beginning of such succeeding tape, the operator
shall record a statement of the district attorney identifying himself,
the witness being examined and the number of tapes which have been used
to record the examination of such witness. At the conclusion of the
examination the operator shall record a statement of the district
attorney certifying that the recording has been completed, the number of
tapes on which the recording has been made and that such tapes
constitute a complete and accurate record of the examination of the
(g) A videotape of an examination conducted pursuant to this section
shall not be edited unless upon further order of the court.
6. When the videotape is introduced in evidence and played in the
grand jury, the grand jury stenographer shall record the examination in
the same manner as if the witness had testified in person.
7. Custody of the videotape shall be maintained in the same manner as
custody of the grand jury minutes.
S 190.35 Grand jury; definitions of terms.
The term definitions contained in section 50.10 are applicable to
sections 190.40, 190.45 and 190.50.
S 190.40 Grand jury; witnesses, compulsion of evidence and immunity.
1. Every witness in a grand jury proceeding must give any evidence
legally requested of him regardless of any protest or belief on his part
that it may tend to incriminate him.
2. A witness who gives evidence in a grand jury proceeding receives
(a) He has effectively waived such immunity pursuant to section
(b) Such evidence is not responsive to any inquiry and is
gratuitously given or volunteered by the witness with knowledge that it
is not responsive.
(c) The evidence given by the witness consists only of books, papers,
records or other physical evidence of an enterprise, as defined in
subdivision one of section 175.00 of the penal law, the production of
which is required by a subpoena duces tecum, and the witness does not
possess a privilege against self-incrimination with respect to the
production of such evidence. Any further evidence given by the witness
entitles the witness to immunity except as provided in subparagraph (a)
and (b) of this subdivision.
S 190.45 Grand jury; waiver of immunity.
1. A waiver of immunity is a written instrument subscribed by a
person who is or is about to become a witness in a grand jury
proceeding, stipulating that he waives his privilege against
self-incrimination and any possible or prospective immunity to which he
would otherwise become entitled, pursuant to section 190.40, as a result
of giving evidence in such proceeding.
2. A waiver of immunity is not effective unless and until it is sworn
to before the grand jury conducting the proceeding in which the
subscriber has been called as a witness.
3. A person who is called by the people as a witness in a grand jury
proceeding and requested by the district attorney to subscribe and swear
to a waiver of immunity before giving evidence has a right to confer
with counsel before deciding whether he will comply with such request,
and, if he desires to avail himself of such right, he must be accorded a
reasonable time in which to obtain and confer with counsel for such
purpose. The district attorney must inform the witness of all such
rights before obtaining his execution of such a waiver of immunity. Any
waiver obtained, subscribed or sworn to in violation of the provisions
of this subdivision is invalid and ineffective.
4. If a grand jury witness subscribes and swears to a waiver of
immunity upon a written agreement with the district attorney that the
interrogation will be limited to certain specified subjects, matters or
areas of conduct, and if after the commencement of his testimony he is
interrogated and testifies concerning another subject, matter or area of
conduct not included in such written agreement, he receives immunity
with respect to any further testimony which he may give concerning such
other subject, matter or area of conduct and the waiver of immunity is
to that extent ineffective.
S 190.50 Grand jury; who may call witnesses; defendant as witness.
1. Except as provided in this section, no person has a right to call
a witness or appear as a witness in a grand jury proceeding.
2. The people may call as a witness in a grand jury proceeding any
person believed by the district attorney to possess relevant information
3. The grand jury may cause to be called as a witness any person
believed by it to possess relevant information or knowledge. If the
grand jury desires to hear any such witness who was not called by the
people, it may direct the district attorney to issue and serve a
subpoena upon such witness, and the district attorney must comply with
such direction. At any time after such a direction, however, or at any
time after the service of a subpoena pursuant to such a direction and
before the return date thereof, the people may apply to the court which
impaneled the grand jury for an order vacating or modifying such
direction or subpoena on the ground that such is in the public interest.
Upon such application, the court may in its discretion vacate the
direction or subpoena, attach reasonable conditions thereto, or make
other appropriate qualification thereof.
4. Notwithstanding the provisions of subdivision three, the district
attorney may demand that any witness thus called at the instance of the
grand jury sign a waiver of immunity pursuant to section 190.45 before
being sworn, and upon such demand no oath may be administered to such
witness unless and until he complies therewith.
5. Although not called as a witness by the people or at the instance
of the grand jury, a person has a right to be a witness in a grand jury
proceeding under circumstances prescribed in this subdivision:
(a) When a criminal charge against a person is being or is about to
be or has been submitted to a grand jury, such person has a right to
appear before such grand jury as a witness in his own behalf if, prior
to the filing of any indictment or any direction to file a prosecutor's
information in the matter, he serves upon the district attorney of the
county a written notice making such request and stating an address to
which communications may be sent. The district attorney is not obliged
to inform such a person that such a grand jury proceeding against him is
pending, in progress or about to occur unless such person is a defendant
who has been arraigned in a local criminal court upon a currently
undisposed of felony complaint charging an offense which is a subject of
the prospective or pending grand jury proceeding. In such case, the
district attorney must notify the defendant or his attorney of the
prospective or pending grand jury proceeding and accord the defendant a
reasonable time to exercise his right to appear as a witness therein;
(b) Upon service upon the district attorney of a notice requesting
appearance before a grand jury pursuant to paragraph (a), the district
attorney must notify the foreman of the grand jury of such request, and
must subsequently serve upon the applicant, at the address specified by
him, a notice that he will be heard by the grand jury at a given time
and place. Upon appearing at such time and place, and upon signing and
submitting to the grand jury a waiver of immunity pursuant to section
190.45, such person must be permitted to testify before the grand jury
and to give any relevant and competent evidence concerning the case
under consideration. Upon giving such evidence, he is subject to
examination by the people.
(c) Any indictment or direction to file a prosecutor's information
obtained or filed in violation of the provisions of paragraph (a) or (b)
is invalid and, upon a motion made pursuant to section 170.50 or section
210.20, must be dismissed; provided that a motion based upon such ground
must be made not more than five days after the defendant has been
arraigned upon the indictment or, as the case may be, upon the
prosecutor's information resulting from the grand jury's direction to
file the same. If the contention is not so asserted in timely fashion,
it is waived and the indictment or prosecutor's information may not
thereafter be challenged on such ground.
6. A defendant or person against whom a criminal charge is being or
is about to be brought in a grand jury proceeding may request the grand
jury, either orally or in writing, to cause a person designated by him
to be called as a witness in such proceeding. The grand jury may as a
matter of discretion grant such request and cause such witness to be
called pursuant to subdivision three.
7. Where a subpoena is made pursuant to this section, all papers and
proceedings relating to the subpoena and any motion to quash, fix
conditions, modify or compel compliance shall be kept secret and not
disclosed to the public by any public officer or public employee or any
other individual described in section 215.70 of the penal law. This
subdivision shall not apply where the person subpoenaed and the
prosecutor waive the provisions of this subdivision.
This subdivision shall not prevent the publication of decisions and
orders made in connection with such proceedings or motions, provided the
caption and content of the decision are written or altered by the court
to reasonably preclude identification of the person subpoenaed.
S 190.52 Grand jury; attorney for witness.
1. Any person who appears as a witness and has signed a waiver of
immunity in a grand jury proceeding, has a right to an attorney as
provided in this section. Such a witness may appear with a retained
attorney, or if he is financially unable to obtain counsel, an attorney
who shall be assigned by the superior court which impaneled the grand
jury. Such assigned attorney shall be assigned pursuant to the same
plan and in the same manner as counsel are provided to persons charged
with crime pursuant to section seven hundred twenty-two of the county
2. The attorney for such witness may be present with the witness in
the grand jury room. The attorney may advise the witness, but may not
otherwise take any part in the proceeding.
3. The superior court which impaneled the grand jury shall have the
same power to remove an attorney from the grand jury room as such court
has with respect to an attorney in a courtroom.
S 190.55 Grand jury; matters to be heard and examined; duties and
authority of district attorney.
1. A grand jury may hear and examine evidence concerning the alleged
commission of any offense prosecutable in the courts of the county, and
concerning any misconduct, nonfeasance or neglect in public office by a
public servant, whether criminal or otherwise.
2. District attorneys are required or authorized to submit evidence
to grand juries under the following circumstances:
(a) A district attorney must submit to a grand jury evidence
concerning a felony allegedly committed by a defendant who, on the basis
of a felony complaint filed with a local criminal court of the county,
has been held for the action of a grand jury of such county, except
where indictment has been waived by the defendant pursuant to article
one hundred ninety-five.
(b) A district attorney must submit to a grand jury evidence
concerning a misdemeanor allegedly committed by a defendant who has been
charged therewith by a local criminal court accusatory instrument, in
any case where a superior court of the county has, pursuant to
subdivision one of section 170.25, ordered that such misdemeanor charge
be prosecuted by indictment in a superior court.
(c) A district attorney may submit to a grand jury any available
evidence concerning an offense prosecutable in the courts of the county,
or concerning misconduct, nonfeasance or neglect in public office by a
public servant, whether criminal or otherwise.
S 190.60 Grand jury; action to be taken.
After hearing and examining evidence as prescribed in section 190.55,
a grand jury may:
1. Indict a person for an offense, as provided in section 190.65;
2. Direct the district attorney to file a prosecutor`s information
with a local criminal court, as provided in section 190.70;
3. Direct the district attorney to file a request for removal to the
family court, as provided in section 190.71 of this article.
4. Dismiss the charge before it, as provided in section 190.75;
5. Submit a grand jury report, as provided in section 190.85.
S 190.65 Grand jury; when indictment is authorized.
1. Subject to the rules prescribing the kinds of offenses which may
be charged in an indictment, a grand jury may indict a person for an
offense when (a) the evidence before it is legally sufficient to
establish that such person committed such offense provided, however,
such evidence is not legally sufficient when corroboration that would be
required, as a matter of law, to sustain a conviction for such offense
is absent, and (b) competent and admissible evidence before it provides
reasonable cause to believe that such person committed such offense.
2. The offense or offenses for which a grand jury may indict a person
in any particular case are not limited to that or those which may have
been designated, at the commencement of the grand jury proceeding, to be
the subject of the inquiry; and even in a case submitted to it upon a
court order, pursuant to the provisions of section 170.25, directing
that a misdemeanor charge pending in a local criminal court be
prosecuted by indictment, the grand jury may indict the defendant for a
felony if the evidence so warrants.
3. Upon voting to indict a person, a grand jury must, through its
foreman or acting foreman, file an indictment with the court by which it
S 190.70 Grand jury; direction to file prosecutor`s information and
1. Except in a case submitted to it pursuant to the provisions of
section 170.25, a grand jury may direct the district attorney to file in
a local criminal court a prosecutor`s information charging a person with
an offense other than a felony when (a) the evidence before it is
legally sufficient to establish that such person committed such offense,
and (b) competent and admissible evidence before it provides reasonable
cause to believe that such person committed such offense. In such case,
the grand jury must, through its foreman or acting foreman, file such
direction with the court by which it was impaneled.
2. Such direction must be signed by the foreman or acting foreman.
It must contain a plain and concise statement of the conduct
constituting the offense to be charged, equivalent in content and
precision to the factual statement required to be contained in an
indictment pursuant to subdivision seven of section 200.50. Subject to
the rules prescribed in sections 200.20 and 200.40 governing joinder in
a single indictment of multiple offenses and multiple defendants, such
grand jury direction may, where appropriate, specify multiple offenses
of less than felony grade and multiple defendants, and may direct that
the prospective prosecutor`s information charge a single defendant with
multiple offenses, or multiple defendants jointly with either a single
offense or multiple offenses.
3. Upon the filing of such grand jury direction, the court must,
unless such direction is insufficient on its face, issue an order
approving such direction and ordering the district attorney to file such
a prosecutor`s information in a designated local criminal court having
trial jurisdiction of the offense or offenses in question.
S 190.71 Grand jury; direction to file request for removal to family
(a) Except as provided in subdivision six of section 200.20 of this
chapter, a grand jury may not indict (i) a person thirteen years of age
for any conduct or crime other than conduct constituting a crime defined
in subdivisions one and two of section 125.25 (murder in the second
degree) or such conduct as a sexually motivated felony, where authorized
pursuant to section 130.91 of the penal law; (ii) a person fourteen or
fifteen years of age for any conduct or crime other than conduct
constituting a crime defined in subdivisions one and two of section
125.25 (murder in the second degree) and in subdivision three of such
section provided that the underlying crime for the murder charge is one
for which such person is criminally responsible; 135.25 (kidnapping in
the first degree); 150.20 (arson in the first degree); subdivisions one
and two of section 120.10 (assault in the first degree); 125.20
(manslaughter in the first degree); subdivisions one and two of section
130.35 (rape in the first degree); subdivisions one and two of section
130.50 (criminal sexual act in the first degree); 130.70 (aggravated
sexual abuse in the first degree); 140.30 (burglary in the first
degree); subdivision one of section 140.25 (burglary in the second
degree); 150.15 (arson in the second degree); 160.15 (robbery in the
first degree); subdivision two of section 160.10 (robbery in the second
degree) of the penal law; subdivision four of section 265.02 of the
penal law, where such firearm is possessed on school grounds, as that
phrase is defined in subdivision fourteen of section 220.00 of the penal
law; or section 265.03 of the penal law, where such machine gun or such
firearm is possessed on school grounds, as that phrase is defined in
subdivision fourteen of section 220.00 of the penal law; or defined in
the penal law as an attempt to commit murder in the second degree or
kidnapping in the first degree, or such conduct as a sexually motivated
felony, where authorized pursuant to section 130.91 of the penal law.
(b) A grand jury may vote to file a request to remove a charge to the
family court if it finds that a person thirteen, fourteen or fifteen
years of age did an act which, if done by a person over the age of
sixteen, would constitute a crime provided (1) such act is one for which
it may not indict; (2) it does not indict such person for a crime; and
(3) the evidence before it is legally sufficient to establish that such
person did such act and competent and admissible evidence before it
provides reasonable cause to believe that such person did such act.
(c) Upon voting to remove a charge to the family court pursuant to
subdivision (b) of this section, the grand jury must, through its
foreman or acting foreman, file a request to transfer such charge to the
family court. Such request shall be filed with the court by which it was
impaneled. It must (1) allege that a person named therein did any act
which, if done by a person over the age of sixteen, would constitute a
crime; (2) specify the act and the time and place of its commission; and
(3) be signed by the foreman or the acting foreman.
(d) Upon the filing of such grand jury request, the court must, unless
such request is improper or insufficient on its face, issue an order
approving such request and direct that the charge be removed to the
family court in accordance with the provisions of article seven hundred
twenty-five of this chapter.
S 190.75 Grand jury; dismissal of charge.
1. If upon a charge that a designated person committed a crime,
either (a) the evidence before the grand jury is not legally sufficient
to establish that such person committed such crime or any other offense,
or (b) the grand jury is not satisfied that there is reasonable cause to
believe that such person committed such crime or any other offense, it
must dismiss the charge. In such case, the grand jury must, through its
foreman or acting foreman, file its finding of dismissal with the court
by which it was impaneled.
2. If the defendant was previously held for the action of the grand
jury by a local criminal court, the superior court to which such
dismissal is presented must order the defendant released from custody if
he is in the custody of the sheriff, or, if he is at liberty on bail, it
must exonerate the bail.
3. When a charge has been so dismissed, it may not again be submitted
to a grand jury unless the court in its discretion authorizes or directs
the people to resubmit such charge to the same or another grand jury.
If in such case the charge is again dismissed, it may not again be
submitted to a grand jury.
4. Whenever all charges against a designated person have been so
dismissed, the district attorney must within ninety days of the filing
of the finding of such dismissal, notify that person of the dismissal by
regular mail to his last known address unless resubmission has been
permitted pursuant to subdivision three of this section or an order of
postponement of such service is obtained upon a showing of good cause
and exigent circumstances.
S 190.80 Grand jury; release of defendant upon failure of timely grand
Upon application of a defendant who on the basis of a felony complaint
has been held by a local criminal court for the action of a grand jury,
and who, at the time of such order or subsequent thereto, has been
committed to the custody of the sheriff pending such grand jury action,
and who has been confined in such custody for a period of more than
forty-five days, or, in the case of a juvenile offender, thirty days,
without the occurrence of any grand jury action or disposition pursuant
to subdivision one, two or three of section 190.60, the superior court
by which such grand jury was or is to be impaneled must release him on
his own recognizance unless:
(a) The lack of a grand jury disposition during such period of
confinement was due to the defendant`s request, action or condition, or
occurred with his consent; or
(b) The people have shown good cause why such order of release should
not be issued. Such good cause must consist of some compelling fact or
circumstance which precluded grand jury action within the prescribed
period or rendered the same against the interest of justice.
S 190.85 Grand jury; grand jury reports.
1. The grand jury may submit to the court by which it was impaneled, a
(a) Concerning misconduct, non-feasance or neglect in public office
by a public servant as the basis for a recommendation of removal or
disciplinary action; or
(b) Stating that after investigation of a public servant it finds no
misconduct, non-feasance or neglect in office by him provided that such
public servant has requested the submission of such report; or
(c) Proposing recommendations for legislative, executive or
administrative action in the public interest based upon stated findings.
2. The court to which such report is submitted shall examine it and
the minutes of the grand jury and, except as otherwise provided in
subdivision four, shall make an order accepting and filing such report
as a public record only if the court is satisfied that it complies with
the provisions of subdivision one and that:
(a) The report is based upon facts revealed in the course of an
investigation authorized by section 190.55 and is supported by the
preponderance of the credible and legally admissible evidence; and
(b) When the report is submitted pursuant to paragraph (a) of
subdivision one, that each person named therein was afforded an
opportunity to testify before the grand jury prior to the filing of such
report, and when the report is submitted pursuant to paragraph (b) or
(c) of subdivision one, it is not critical of an identified or
3. The order accepting a report pursuant to paragraph (a) of
subdivision one, and the report itself, must be sealed by the court and
may not be filed as a public record, or be subject to subpoena or
otherwise be made public until at least thirty-one days after a copy of
the order and the report are served upon each public servant named
therein, or if an appeal is taken pursuant to section 190.90, until the
affirmance of the order accepting the report, or until reversal of the
order sealing the report, or until dismissal of the appeal of the named
public servant by the appellate division, whichever occurs later. Such
public servant may file with the clerk of the court an answer to such
report, not later than twenty days after service of the order and report
upon him. Such an answer shall plainly and concisely state the facts
and law constituting the defense of the public servant to the charges in
said report, and, except for those parts of the answer which the court
may determine to be scandalously or prejudicially and unnecessarily
inserted therein, shall become an appendix to the report. Upon the
expiration of the time set forth in this subdivision, the district
attorney shall deliver a true copy of such report, and the appendix if
any, for appropriate action, to each public servant or body having
removal or disciplinary authority over each public servant named
4. Upon the submission of a report pursuant to subdivision one, if
the court finds that the filing of such report as a public record, may
prejudice fair consideration of a pending criminal matter, it must order
such report sealed and such report may not be subject to subpoena or
public inspection during the pendency of such criminal matter, except
upon order of the court.
5. Whenever the court to which a report is submitted pursuant to
paragraph (a) of subdivision one is not satisfied that the report
complies with the provisions of subdivision two, it may direct that
additional testimony be taken before the same grand jury, or it must
make an order sealing such report, and the report may not be filed as a
public record, or be subject to subpoena or otherwise be made public.
S 190.90 Grand jury; appeal from order concerning grand jury reports.
1. When a court makes an order accepting a report of a grand jury
pursuant to paragraph (a) of subdivision one of section 190.85, any
public servant named therein may appeal the order; and when a court
makes an order sealing a report of a grand jury pursuant to subdivision
five of section 190.85, the district attorney or other attorney
designated by the grand jury may appeal the order.
2. When a court makes an order sealing a report of a grand jury
pursuant to subdivision five of section 190.85, the district attorney or
other attorney designated by the grand jury may, within ten days after
service of a copy of the order and report upon each public servant named
in the report, appeal the order to the appellate division of the
department in which the order was made, by filing in duplicate a notice
of appeal from the order with the clerk of the court in which the order
was made and by serving a copy of such notice of appeal upon each such
public servant. Notwithstanding any contrary provision of section
190.85, a true copy of the report of the grand jury shall be served,
together with such notice of appeal, upon each such public servant.
3. The mode of and time for perfecting an appeal pursuant to this
section, and the mode of and procedure for the argument thereof, are
determined by the rules of the appellate division of the department in
which the appeal is brought. Such rules shall prescribe the matters
referred to in subdivision one of section 460.70 and in section 460.80,
except that such appeal is a preferred cause and the appellate division
of each department shall promulgate rules to effectuate such preference.
4. The record and all other presentations on appeal shall remain
sealed, except that upon reversal of the order sealing the report or
dismissal of the appeal of the named public servant by the appellate
division, the report of the grand jury, with the appendix, if any, shall
be filed as a public record as provided in subdivision three of section
5. The procedure provided for in this section shall be the exclusive
manner of reviewing an order made pursuant to section 190.85 and the
appellate division of the supreme court shall be the sole court having
jurisdiction of such an appeal. The order of the appellate division
finally determining such appeal shall not be subject to review in any
other court or proceeding.
6. The grand jury in an appeal pursuant to this section shall be
represented by the district attorney unless the report relates to him or
his office, in which event the grand jury may designate another
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