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