Grand Jury Practice and Indictments

Grand Jury Practice and Indictments Bernard L. Hyman, Jr. Oneida County Assistant District Attorney

GRAND JURY

PRACTICE

COMPOSITION

CPL Section 190.25 • 23 Grand Jurors • 1 Foreman and 1 Vice Foreman appointed by the impaneling judge • Secretary appointed by the grand jurors

Requests to Appear – CPL 190.50 (5) • Notice only required to those defendants whose case was previously commenced by way of felony complaint in lower criminal court • A potential defendant may nonetheless serve a written request to appear before the grand jury upon the district attorney • Written request must be honored despite lack of felony complaint

Requests to Appear – CPL 190.50 (5) • Failure to allow defendant to testify warrants dismissal of indictment • Any challenge to the indictment based on a failure to allow defendant to testify must be made within five (5) days of arraignment • Untimely request constitutes waiver, People v. Legree, 176 AD2d 983 (3rd Dept. 1991) • Defense counsel’s strategic move to have defendant not testify is valid even without defendant’s consent People v. Dickens, 259 AD2d 450 (1st Dept. 1999)

Defense Counsel’s Role – CPL 190.52 • Any person who signs a waiver of immunity is entitled to have an attorney appear with them • Attorney may be present • Attorney may advise • May not otherwise take part in proceeding • Court may remove attorney who is in violation

Notice of Time to Appear • Notice required when notice requested or when an unresolved felony complaint is pending in lower criminal court • Notice must be reasonable • One day notice is unreasonable • Notice need not include a list of charges to be presented

Defense Witnesses – CPL 190.50(6) • Request may be made orally or in writing • Grand jury has discretion to grant such a request • Prosecutor may require defense witnesses to execute written waivers of immunity, People v. Buxton, 309 AD2d 872 (2nd Dept. 2003)

Defendant’s Right to Testify • Defendant, appearing before the grand jury, must be afforded an opportunity to give his version of events prior to being examined by the People. People v. Miller, 144 AD 2d 94. • When that opportunity has not been conferred the indictment must be dismissed, provided that defendant has moved for such relief within five days of his/her arraignment

Resubmission • Judicial order not required for resubmission unless there has been an initial refusal by the grand jury to indict or a prior court dismissal of the indictment. People v. Cade, 74 NY2d 410; People v. Brown, 166 AD2d 4581 (1st. Dept. 1990) • No court order required where original submission was withdrawn by prosecutor before grand jury vote or where superseding indictment is sought

WAIVERS • CPL 190.45 – Must be in writing – Witness in grand jury entitled to attorney present – Waiver should specify conduct which will be examined – any other conduct for which defendant is questioned is subject to a grant of immunity

Defense Motions • Motion to dismiss for failure to give notice of time to appear must be made within five days of arraignment • Court can review – Sufficiency of evidence presented – Notice issues – Voting records – Any other issues that may impair the ability of the grand jury to function properly

Removal of Grand Jurors • CPL 190.20 – 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

Removal of Grand Jurors – (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.

Evidentiary Standards – CPL 190.30 • General rules of evidence apply • Admission of some inadmissible evidence during grand jury presentation will not be deemed fatal to indictment unless the remaining evidence is insufficient to sustain the indictment, People v. Carncross, 59 AD3d 1112 (4th Dept. 2009)

Voting and Grand Jury Action

Voting and Grand Jury Action • Quorum = 16 • True Bill = 12 or more • No Bill = less than 12 • Only 12 grand jurors need vote so long as the 12 grand jurors heard substantially all of the material evidence in the case

INDICTMENTS

Description and Function • CPL 200.10 – An indictment is a written accusation by a grand jury, filed with a superior court, charging a person, or two or more persons jointly, with the commission of a crime, or with the commission of two or more offenses at least one of which is a crime. Except as used in Article 190, the term indictment shall include a superior court information.

Arraignment • Upon arraignment, defense counsel should receive: – A true and accurate copy of the indictment filed with the Court – A copy of any Prosecutor’s or District Attorney’s Information filed with the Court – Discovery Demand – Demand for Notice of Alibi – Written Notice of Readiness – Any notices pursuant to CPL 710.30

Sufficiency and Defectiveness • Motion to dismiss based on defective grand jury proceedings or the form and content of the indictment pursuant to CPL 200.50 • Certain counts require specific pleading (i.e. Perjury) • Multiplicitous Counts • Duplicitousness

Notice of Readiness

• People must be ready within 6 months ***

Waiver of Indictment

Superior Court Information • CPL 200.15

Amendment • CPL 200.70 • Matters of form, time, place, names of persons and the like • CANNOT change theory of prosecution as reflected before the grand jury

Multiplicitous Counts • Where each count of an indictment requires proof of an element not essential to the other, an indictment is not multiplicitous • Course of conduct cases

Duplicitous Counts • A count is duplicitous when it alleges the commission of a particular offense occurring repeatedly during a designated period of time • Charging one count under two separate theories of larceny is not duplicitous

CPL Section 710.30 Notices • Identification Procedure • Oral Statements • Written Statements

Sealed Indictments

Effect of Charges Superseded by Indictment

Juvenile Offenders

Speedy Trial Issues

Other Notices