N.Y. Criminal Procedure Law § 190.50: Grand jury; who may call witnesses; defendant as witness

§ 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.