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

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Presentation on theme: "Grand Jury Practice and Indictments Bernard L. Hyman, Jr. Oneida County Assistant District Attorney."— Presentation transcript:


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



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

6 Requests to Appear – CPL (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

7 Requests to Appear – CPL (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 (3 rd 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 (1 st Dept. 1999)

8 Defense Counsel’s Role – CPL 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

9 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

10 Defense Witnesses – CPL (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 (2 nd Dept. 2003)

11 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

12 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 (1 st. Dept. 1990) No court order required where original submission was withdrawn by prosecutor before grand jury vote or where superseding indictment is sought

13 WAIVERS CPL –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

14 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

15 Removal of Grand Jurors CPL –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

16 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.

17 Evidentiary Standards – CPL 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 (4 th Dept. 2009)

18 Voting and Grand Jury Action

19 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


21 Description and Function CPL –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.

22 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

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

24 Notice of Readiness People must be ready within 6 months ***

25 Waiver of Indictment

26 Superior Court Information CPL

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

28 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

29 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

30 CPL Section Notices Identification Procedure Oral Statements Written Statements

31 Sealed Indictments

32 Effect of Charges Superseded by Indictment

33 Juvenile Offenders

34 Speedy Trial Issues

35 Other Notices

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