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Article 190 - NY Criminal Procedure Law

• NY Laws ›
• CPL ›
• Part 2 ›
• Title I ›
• Article 190

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
190.60.

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
jury action.

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
business.
  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
faithfully.
  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
  jury;
    (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
  knowledge;
    (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
  own testimony.
    (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
  thereupon;
    (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
  using it;
    (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
  attorney.
    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
  grand jury.
    8.  (a)  A  business  record  may  be  received  in  such  grand  jury
  proceedings as evidence of the following facts and similar facts  stated
  therein:
    (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
  banking law.
    (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
  criminal charge.
    (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
            procedure.
  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;
  or
    (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
  examination.
    (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
  recorded.
    (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
  witness.
    (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
immunity unless:
  (a)  He has effectively waived such immunity pursuant to section
190.45; or
  (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
  or knowledge.
    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
law.
  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
was impaneled.

S 190.70 Grand jury; direction to file prosecutor`s information and
            related matters.
  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
            court.
   (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
            jury action.
  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
  report:
    (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
  identifiable person.
    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
  therein.
    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
190.85.
  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
attorney.

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