N.Y. Criminal Procedure Law § 190.30: Grand jury; rules of evidence

§ 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.