by
Jill Paperno, Second Assistant Monroe County Public Defender
and author of Representing the Accused: A Practical Guide to Criminal Defense
Article 190 of the Criminal Procedure Law sets forth the rules relating to grand jury presentations. As defined in Section 190.05 of the Criminal Procedure Law,
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.
In Monroe County, there are usually at least two grand juries sitting at any one time. The grand jury sits for a term of the court (CPL 190.15), which is usually a month in length, although upon application of the D.A. the period can be extended (190.15[1]). As the grand jury sits, its decisions as to which cases are indicted, which are returned to lower court and which are dismissed are publicized periodically in a document called “the risings.” (Not the Bruce Springsteen rising.) So there are times that a prosecutor may commence a grand jury presentation, but delay the grand jury’s decision to see whether your client is accepting an offer. The prosecutor may tell you that the grand jury has its “final rising” on a particular date, and that the prosecutor must know your client’s decision prior to that date.
Proceedings of the grand jury are not valid unless at least sixteen members are present (CPL 190.25). At least twelve members must agree for a charge to be indicted (CPL 190.25).
The Grand Jury is a secret process (See CPL 190.25[4][a]); only specified individuals may be present during the grand jury’s work. The list of those who may be present is contained in CPL 190.25(2). The public may not be present. Your client may not be present unless s/he chooses to testify, and then may only be present during his/her testimony.
Although the Court and the District Attorney are the legal advisors to the grand jury, there is no judge presiding in the room during grand jury conduct. Instead, the prosecutor reads the law to the grand jury and generally runs the show. If you have a dispute about something that is occurring in grand jury in one of your cases, you may seek to have the County Court Part I Judge resolve the matter by requesting to see the judge with the prosecutor.
Section 190.30 of the Criminal Procedure Law sets forth the evidentiary rules applicable to the grand jury. Notably, there are certain types of hearsay evidence that are admissible in grand jury, but hearsay is limited to the specific types of evidence set forth in that statute.
If you represent a witness who may appear before the grand jury, or a defendant against whom a case is being presented, you must become familiar with the statutes relating to compulsion of evidence and immunity (CPL 190.40), waiver of immunity (CPL 190.45), the statute that addresses who may call witnesses and the procedures when a defendant is a witness (CPL 190.50), and the statute that addresses an attorney’s role before the grand jury when representing a witness (CPL 190.52).
If you represent a defendant before the grand jury, unless s/he is a cooperating witness who has been offered immunity, you will be expected to review with your client the law relating to immunity and waiver of immunity. Your client will have to sign a waiver of immunity that you will witness.
Although the District Attorney’s Office has traditionally requested that the defendant sign an extensive waiver that exceeded the language of the Criminal Procedure Law, and also required that defense counsel sign an affirmation and acknowledge its signature in grand jury that defense counsel knows his/her role, a recent case decided by the Fourth Department (and discussed previously in this blog) confirms that the practice of requiring waiver beyond what the statute sets forth is unlawful.
In People v. Brumfield, in which the defendant was convicted after trial, the Fourth Department ruled:
CPL 190.50(5) provides that, if a defendant serves upon the People a notice of his intent to testify before the grand jury, appears at the appropriate time and place, and signs and submits to the grand jury “a waiver of immunity pursuant to [CPL] 190.45,” the defendant “must be permitted to testify before the grand jury” (CPL 190.50[5][b]; see CPL 190.50[5][a] ). In the event that the defendant complies with those procedures and is thereafter not permitted to testify, the appropriate remedy is dismissal of the indictment (see CPL 190.50[5][c] ). The parties do not dispute that defendant complied with the first two requirements of the statute. The only dispute is whether defendant signed “a waiver of immunity pursuant to section 190.45” (CPL 190.50[5][b] ). CPL 190.45(1) provides that a waiver of immunity “is a written instrument” in which a person who is to testify before the grand jury stipulates that he or she “waives [the] privilege against self-incrimination and any possible or prospective immunity to which he [or she] would otherwise become entitled, pursuant to [CPL] 190.40, as a result of giving evidence in such proceeding.” Here, the paragraphs in the waiver of immunity form that defendant left intact stated that defendant waived his privilege against self-incrimination and any immunity to which he would otherwise be entitled pursuant to CPL 190.40. Thus, defendant signed a waiver of immunity form that complied with the requirements of CPL 190.45(1) and was therefore required to be permitted to testify before the grand jury (see CPL 190.50[5][b] ). It is well settled that a defendant’s statutory right to testify before the grand jury “ ‘must be scrupulously protected’ “ (People v. Smith, 87 N.Y.2d 715, 721, quoting People v. Corrigan, 80 N.Y.2d 326, 332). We conclude that, because defendant complied with the requirements of CPL 190.50(5) but was nevertheless denied his right to testify before the grand jury, the court erred in denying defendant’s motion to dismiss the indictment. We therefore reverse the judgment of conviction, grant the motion, and dismiss the indictment without prejudice to the People to re-present any appropriate charges under counts two through five of the indictment to another grand jury (see generally People v. Pattison, 63 AD3d 1600, 1601, lv denied 13 NY3d 799).
People v. Brumfield — N.Y.S.2d —- (Fourth Dept. Sept. 27, 2013). Although the Court ruled on the waiver issue and did not reach the attorney affirmation issue, it seems that a refusal to allow defendant to testify because the attorney refuses to sign an affidavit not required by the statute or acknowledge it in grand jury might also result in a reversal. The District Attorney has been granted leave to appeal the Fourth Department’s holding to the Court of Appeals.
Practical tips
Because handling preliminary hearings requires a working knowledge of grand jury practice, you must read the grand jury statutes (CPL Article 190). You should be aware of the following:
1. If your client wishes to testify before the grand jury, you must send the prosecutor a written notice of your client’s intent to testify. (CPL 190.50[5][a]). If the prosecutor is presenting on short notice, do your notice by email and fax, with an explanation included that you cannot send the letter by U.S. mail because of the short notice you received.
Some attorneys send these notices on each case both in order to preserve the client’s right and to preserve any potential issue of the prosecutor presents the case without providing the defendant with the opportunity to testify. But if you choose to engage in this practice, you must notify the prosecutor if your client is not testifying before the grand jury, as your client will be body-ordered to the grand jury, and may be left sitting, without you there, initially bewildered and eventually angry.
2. Often, it’s a bad idea for your client to testify before the grand jury. You don’t yet know the evidence the prosecutor has in the case, you don’t yet know whether your client’s version varies greatly with that evidence or with any statement s/he may have made to the police, the client’s testimony can be used at trial, the grand jury is likely to indict any case the prosecutor presents to them, and you may be revealing more than you should to the prosecutor prior to trial, allowing the prosecutor to try to prepare the witnesses to refute your defense. There are exceptions to the bad idea rule, but not many. (I should note that some of my colleagues engage in a more vigorous and less conservative grand jury practice than I do, with greater success.)
3. You are entitled to reasonablenotice of the prosecutor’s presentation of the case if your client has been held for action of the grand jury on an undisposed of felony complaint and/or if notice has been served by the defense:
The Criminal Procedure Law imposes a new obligation on prosecutors under CPL 190.50(5)(a): a defendant must be informed that a Grand Jury proceeding against that person is pending, in progress or about to occur, if that person has been arraigned on an undisposed felony complaint charging an offense which is a subject of the prospective or pending Grand Jury proceeding. CPL 190.50(5)(a) then adds in pertinent part that “[w]hen 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 [or her] own behalf if, prior to the filing of any indictment * * * he [or she] serves upon the district attorney of the county a written notice making such request” (emphasis added). Once an accused serves such notice requesting an appearance before the Grand Jury, the District Attorney “must notify the fore[person] of the grand jury of such request, and must subsequently serve upon the applicant * * * a notice that [the applicant] will be heard by the grand jury at a given time and place. Upon appearing at such time and place * * * such person must be permitted to testify before the grand jury and to give any relevant and competent evidence concerning the case under consideration” (CPL 190.50[5][b] ). The District Attorney must afford defendant “reasonable *413 time” to exercise the right to appear as a witness at the Grand Jury (CPL 190.50[5][a] ).
People v. Evans, 79 N.Y.2d 407, 412-13, 592 N.E.2d 1362, 1364 (1992)
Reasonable notice is not five or ten business hours after you’ve been assigned. (See CPL 190.50[5][a], People v. Degnan, 246 AD2d 819, “Insofar as is pertinent to this appeal, CPL 190.50(5)(a) provides that the District Attorney must notify the defendant or his or her attorney of a pending Grand Jury proceeding in such manner as to afford the defendant reasonable time to exercise his or her right to appear as a witness therein. Defendant asserts that the one-day notice provided by the People here was insufficient to allow him a reasonable opportunity to exercise his right to appear as a witness in the Grand Jury proceeding. We agree.” People v. Degnan, 246 A.D.2d 819, 820, 667 N.Y.S.2d 808, 809 (1998)) If you get notice that is unreasonable, send a letter to the prosecutor that the notice is unreasonable, and that you will be filing a five day motion seeking dismissal of the case after indictment if they do not provide you with reasonable notice.
4. A defendant has the right to testify before a grand jury that has not voted the case if the defense serves timely notice.
Our reading of CPL 190.50(5) together with its history and purpose warrants the conclusion that the Legislature intended that individuals who give timely notice reasonably prior to the prosecution’s presentment of evidence and prior to the Grand Jury vote on an indictment are entitled to testify before the vote. People v. Evans, 79 N.Y.2d 407, 413, 592 N.E.2d 1362, 1365 (1992)
So ask your prosecutor if they have voted the case yet; if they have, do not have your client testify. They will not tell you if you do not ask (and may not tell you if you do!). Tell them you will be filing a five-day motion (CPL 190.50[5][c]) unless they withdraw the case from that grand jury and present to another that has not voted the case.
5. If a defendant is out of custody on a felony and the case is no longer pending in local criminal court, the defendant is not entitled to notice of the presentation of the case unless the defendant has requested the opportunity to testify in writing (as 190.50[5][a] has been interpreted by courts). Similarly, if the case has been referred to the grand jury following a preliminary hearing or a defendant waives the preliminary hearing, you are not entitled to notice.
As a general rule, the target of a Grand Jury investigation is not entitled to any sort of notice that a Grand Jury proceeding against him is in progress or about to occur. The one exception is where a person has been arraigned on a “currently undisposed of felony complaint” charging the offense to be presented to the Grand Jury (subd. 5[a]). The purpose of this is to preserve some opportunity for a defendant to negate probable cause and avoid indictment. Thus the exception does not apply where defendant waives a preliminary hearing at arraignment or if the case is presented to the Grand Jury after the defendant has been held for the Grand Jury on the basis of a preliminary hearing.
Commentary N.Y. Crim. Proc. Law § 190.50 (McKinney)
Because many judges in Monroe County do not adhere strictly to Article 180, a question remains as to whether a defendant with an adjourned date for “screen” has an undisposed of felony pending in local criminal court, as undisposed of felonies are addressed in a statute that doesn’t specifically describe this situation. To be on the safe side, if your client wants to testify before the grand jury, serve notice whether or not the client is in custody or the case has been adjourned in local court.
If notice is served, it must notify the prosecutor of intent to testify on either all charges pending before the grand jury, or the specific charge the defendant wants to testify about. A notice served on one charge will not be deemed notice on another matter. See People v. McNamara, 99 A.D.3d 1248, 951 N.Y.S.2d 816 (2012) leave to appeal denied, 21 N.Y.3d 913, 988 N.E.2d 893 (2013).
And if the prosecutor does not provide notice of grand jury presentation when s/he is required to, the defense must file a “five day motion” to properly challenge the failure:
Special note should be taken of the fact that, although a motion to dismiss an indictment for failure to honor a defendant’s request to appear before the Grand Jury is, technically speaking, a “pretrial motion” (see CPL §§ 210.35 [4], 255.10), the timing is not governed by the forty-five day period specified in CPL § 255.20. This motion must be made within five days after arraignment or it is waived (see CPL § 190.50[5(c)]). (Emphasis added)
