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Article 620 - NY Criminal Procedure Law

SECURING ATTENDANCE OF WITNESSES BY MATERIAL WITNESS ORDER

Section Description
620.10Material witness order; defined.
620.20Material witness order; when authorized; by what courts issuable; duration thereof.
620.30Material witness order; commencement of proceeding by application; procurement of appearance of prospective witness.
620.40Material witness order; arraignment.
620.50Material witness order; hearing, determination and execution of order.
620.60Material witness order; vacation, modification and amendment thereof.
620.70Material witness order; compelling attendance of witness who fails to appear.
620.80Material witness order; witness fee.
S 620.10 Material witness order; defined.
  A material witness order is a court order (a) adjudging a person a
material witness in a pending criminal action and (b) fixing bail to
secure his future attendance thereat.

S 620.20 Material witness order; when authorized; by what courts
              issuable; duration thereof.
   1.  A material witness order may be issued upon the ground that  there
  is  reasonable  cause  to  believe  that a person whom the people or the
  defendant desire to call as a witness in a pending criminal action:
    (a)   Possesses information material  to  the  determination  of  such
  action; and
    (b)    Will not be amenable or responsive to a subpoena at a time when
  his attendance will be sought.
    2.  A material witness order may be issued only when:
    (a)  An indictment has been filed in a superior court and is currently
  pending therein; or
    (b)   A grand jury proceeding has  been  commenced  and  is  currently
  pending; or
    (c)  A felony complaint has been filed with a local criminal court and
  is currently pending therein.
    3.    The following courts may issue material witness orders under the
  indicated circumstances:
    (a)  When an indictment has been filed, or a grand jury proceeding has
  been commenced, or a defendant has been held by a local  criminal  court
  for  the  action of a grand jury, a material witness order may be issued
  only by the superior court in which such indictment  is  pending  or  by
  which such grand jury has been or is to be impaneled;
    (b)   When a felony complaint is currently pending in a district court
  or in the New York City criminal court or before a superior court  judge
  sitting  as  a  local  criminal  court,  a material witness order may be
  issued either by such court or by the superior court  which  would  have
  jurisdiction  of the case upon a holding of the defendant for the action
  of the grand jury;
    (c)  When a felony complaint is currently pending in a city court or a
  town court or a village court, a material witness order  may  be  issued
  only  by  the  superior  court which would have jurisdiction of the case
  upon a holding of the defendant for the action of the grand jury.
    4.   Unless vacated pursuant to section  620.60,  a  material  witness
  order  remains  in effect during the following periods of time under the
  indicated circumstances:
    (a)   An order issued by a  superior  court  under  the  circumstances
  prescribed  in  paragraph  (a)  of  subdivision  three remains in effect
  during the pendency of the criminal action in such superior court;
    (b)  An order issued by a district court or the New York City criminal
  court or a superior court judge sitting as a local criminal court, under
  circumstances prescribed in paragraph (b) of subdivision three,  remains
  in  effect  (i) until the disposition of the felony complaint pending in
  such court, and (ii) if the defendant is held for the action of a  grand
  jury,  during the pendency of the grand jury proceeding, and (iii) if an
  indictment results, for a period of ten days  following  the  filing  of
  such  indictment,  and  (iv) if within such ten day period such order is
  indorsed by the superior court  in  which  the  indictment  is  pending,
  during  the  pendency  of  the action in such superior court.  Upon such
  indorsement, the order is deemed to be that of the superior court.
    (c)    An  order  issued  by  a  superior  court  under  circumstances
  prescribed  in  paragraph (c) of subdivision three remains in effect (i)
  until the disposition of the felony complaint pending in the city,  town
  or  village  court,  and (ii) if the defendant is held for the action of
  the grand jury, during the pendency of the action in the superior court.

S 620.30 Material witness order; commencement of proceeding by
             application; procurement of appearance of prospective witness.
  1.    A  proceeding  to  adjudge  a  person a material witness must be
  commenced by application to the appropriate court, made in  writing  and
  subscribed and sworn to by the applicant, demonstrating reasonable cause
  to  believe  the  existence of facts, as specified in subdivision one of
  section 620.20, warranting the adjudication of such person as a material
  witness.
    2.  If the court is satisfied that the application  is  well  founded,
  the  prospective  witness may be compelled to appear in response thereto
  as follows:
    (a)  The court may issue an order directing him to appear therein at a
  designated time in order that a determination may  be  made  whether  he
  should  be  adjudged  a  material witness, and, upon personal service of
  such order or a copy thereof within the state, he must so appear.
    (b)  If in addition to the allegations specified in  subdivision  one,
  the  application  contains  further  allegations  demonstrating  to  the
  satisfaction of the court reasonable  cause  to  believe  that  (i)  the
  witness  would  be  unlikely  to respond to such an order, or (ii) after
  previously having been served with such an order,  he  did  not  respond
  thereto,  the  court  may issue a warrant addressed to a police officer,
  directing such officer to take such  prospective  witness  into  custody
  within  the  state  and to bring him before the court forthwith in order
  that a proceeding may be conducted to determine  whether  he  is  to  be
  adjudged a material witness.

S 620.40 Material witness order; arraignment.
  1.    When the prospective witness appears before the court, the court
  must inform him of the nature and purpose of the proceeding, and that he
  is entitled to a prompt hearing upon the issue of whether he  should  be
  adjudged  a material witness.  The prospective witness possesses all the
  rights, and is entitled to all the court instructions, with  respect  to
  right  to  counsel,  opportunity  to  obtain  counsel  and assignment of
  counsel in case of financial inability to retain such,  which,  pursuant
  to  subdivisions  three  through  five  of  section  180.10, accrue to a
  defendant arraigned upon a felony complaint in a local criminal court.
    2.   If the  proceeding  is  adjourned  at  the  prospective  witness'
  instance,  for  the purpose of obtaining counsel or otherwise, the court
  must order him to appear upon the adjourned date.  The court may further
  fix bail to secure his appearance upon such date or until the proceeding
  is completed and, upon default thereof, may commit him to the custody of
  the sheriff for such period.

S 620.50 Material witness order; hearing, determination and execution
              of order.
  1.  The hearing upon the application must be conducted as follows:
    (a)  The applicant has the burden of proving by a preponderance of the
  evidence all facts essential to support a material  witness  order,  and
  any testimony so adduced must be given under oath;
    (b)    The  prospective  witness may testify under oath or may make an
  unsworn statement;
    (c)  The prospective witness may call witnesses in his behalf, and the
  court must cause process to be issued  for  any  such  witness  whom  he
  reasonably  wishes  to  call, and any testimony so adduced must be given
  under oath;
    (d)   Upon the hearing,  evidence  tending  to  demonstrate  that  the
  prospective witness does or does not possess information material to the
  criminal  action  in  issue,  or that he will or will not be amenable or
  respond to a subpoena at the time his  attendance  will  be  sought,  is
  admissible even though it consists of hearsay.
    2.    If  the  court  is  satisfied  after  such hearing that there is
  reasonable cause to believe that the prospective witness  (a)  possesses
  information  material  to the pending action or proceeding, and (b) will
  not be amenable or respond to a subpoena at a time when  his  attendance
  will  be  sought, it may issue a material witness order, adjudging him a
  material witness and fixing bail to secure his future attendance.
    3.  A material witness order must be executed as follows:
    (a)  If the bail is posted and approved  by  the  court,  the  witness
  must,  as  provided  in subdivision three of section 510.40, be released
  and be permitted to remain at liberty; provided that, where the bail  is
  posted  by  a  person  other  than the witness himself, he may not be so
  released except upon his signed written consent thereto;
    (b)  If the bail is not posted, or if though posted it is not approved
  by the court, the witness must, as  provided  in  subdivision  three  of
  section 510.40, be committed to the custody of the sheriff.

S 620.60 Material witness order; vacation, modification and
              amendment thereof.
   1.  At any time after a material witness order  has  been  issued  the
  court  must,  upon application of such witness, with notice to the party
  upon whose application the order was issued, and with opportunity to  be
  heard,  make  inquiry  whether  by  reason  of  new  or changed facts or
  circumstances the material witness  order  is  no  longer  necessary  or
  warranted,  or,  if  it  is, whether the original bail currently appears
  excessive.  Upon making any such determination, the  court  must  vacate
  the  order.    If  its  determination  is  that  the  order is no longer
  necessary or warranted, it  must,  as  the  situation  requires,  either
  discharge  the  witness  from  custody  or  exonerate the bail.   If its
  determination is that the bail is excessive, it must issue a  new  order
  fixing bail in a lesser amount or on less burdensome terms.
    2.    At any time when a witness is at liberty upon bail pursuant to a
  material witness order, the court may, upon  application  of  the  party
  upon  whose application the order was issued, with notice to the witness
  if possible and to his attorney if any and opportunity to be heard, make
  inquiry whether, by reason of new or changed facts or circumstances, the
  original bail is no longer sufficient to secure the future attendance of
  the witness at the pending action.   Upon making such  a  determination,
  the  court  must vacate the order and issue a new order fixing bail in a
  greater amount or on terms more likely to secure the  future  attendance
  of the witness.

S 620.70 Material witness order; compelling attendance of witness who
              fails to appear.
  If a witness at liberty on bail pursuant to a material  witness  order
  cannot  be  found or notified at the time his appearance as a witness is
  required, or if after notification he fails to appear in such action  or
  proceeding  as  required,  the court may issue a warrant, addressed to a
  police officer, directing such officer to take such witness into custody
  anywhere within the state and to bring him to the court forthwith.

S 620.80  Material witness order; witness fee.
   A witness held in the custody of the sheriff as a result of a material
  witness order must be paid the sum of three dollars per day for each day
  of  confinement  in such custody.   Such compensation is a county charge
  and is payable upon release of such material witness from custody or, in
  the discretion of the court, at any designated times or intervals during
  the confinement as the court may deem appropriate.

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