Relates to the presence of a superior court judge at certain stages of a grand jury proceeding involving the submission of a criminal charge against a police officer for a felony charge specified in article 120, 121 or 125 of the penal law while acting in the course of his or her official duties.
STATE OF NEW YORK
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7194
2015-2016 Regular Sessions
IN ASSEMBLY
April 27, 2015
___________
Introduced by M. of A. LENTOL -- (at request of the Office of Court
Administration) -- read once and referred to the Committee on Codes
AN ACT to amend the criminal procedure law, in relation to grand juries
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Subdivision 3 of section 190.25 of the criminal procedure
2 law is amended by adding a new closing paragraph to read as follows:
3 Notwithstanding the foregoing, and except during the deliberations and
4 voting of a grand jury, a superior court judge must be present during
5 any proceedings before a grand jury that involve submission of a crimi-
6 nal charge against a police officer for a felony offense specified in
7 article one hundred twenty, one hundred twenty-one or one hundred twen-
8 ty-five of the penal law committed while acting in the course of his or
9 her official duties. While present, the judge shall exercise powers and
10 duties that are appropriate to the judge's supervisory authority over
11 proceedings before the grand jury and that otherwise will assist it in
12 discharge of its functions, including but not limited to ruling on legal
13 issues and determining the admissibility of evidence. The judge may
14 also advise the grand jurors, where appropriate, that additional
15 witnesses may be called to testify before them. At the close of the
16 presentation of evidence, the district attorney shall furnish the court
17 with the charges to be submitted to the grand jury and the court shall
18 instruct the grand jury in accordance with subdivision six of this
19 section as to any such charges supported by legally sufficient evidence
20 for which an indictment is authorized under section 190.65 of this arti-
21 cle; provided, however, that where a charge is not supported by legally
22 sufficient evidence but the evidence is legally sufficient to support a
23 lesser included offense, the court, at the request of the district
24 attorney, shall instruct the grand jury on the most serious lesser
25 included offense with respect to which the evidence before the grand
26 jury is sufficient.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD09307-01-5
A. 7194 2
1 § 2. Section 190.25 of the criminal procedure law is amended by adding
2 a new subdivision 4-a to read as follows:
3 4-a. (a) Notwithstanding the provisions of subdivision four of this
4 section, when, following submission to a grand jury of a criminal charge
5 or charges the grand jury dismisses all charges presented, an applica-
6 tion may be made to the superior court for disclosure of the following
7 material relating to the proceedings before such grand jury:
8 (i) the criminal charge or charges submitted;
9 (ii) the legal instructions provided to the grand jury;
10 (iii) the testimony of all public servants who testified before the
11 grand jury and of all persons who provided expert testimony; and
12 (iv) the testimony of all other persons who testified before the grand
13 jury, redacted to prevent discovery of their names and such other
14 personal data or information that may reveal or help to reveal their
15 identities.
16 (b) The application specified in paragraph (a) of this subdivision may
17 be made by any person, must be in writing and, except where made by the
18 people, must be upon notice to the people. Except for good cause other-
19 wise shown, the application must be made within one year of the close of
20 the term of the grand jury which dismissed such charges. Where more than
21 one application is made hereunder in relation to such a dismissal, the
22 court may consolidate them and determine them together. Where no appli-
23 cation hereunder is made, the superior court may order disclosure on its
24 own motion as provided in paragraph (c) of this subdivision at any time
25 following notice to the people and an opportunity to be heard.
26 (c) Upon an application as provided in paragraph (a) of this subdivi-
27 sion or on its own motion, the court shall determine whether:
28 (i) the general public in the county in which the grand jury was drawn
29 and impaneled likely is aware that a criminal investigation had been
30 conducted in connection with the subject matter of the grand jury
31 proceeding; and
32 (ii) the identity of the subject against whom the criminal charge
33 specified in paragraph (a) of this subdivision was submitted to a grand
34 jury has already been disclosed publicly or such subject has consented
35 to such disclosure; and
36 (iii) there is significant public interest in disclosure.
37 Where the court is satisfied that all three of these factors have been
38 established, and except as provided in paragraph (d) of this subdivi-
39 sion, the court shall direct the district attorney to provide disclosure
40 of the items specified in paragraph (a) of this subdivision.
41 (d) Notwithstanding the other provisions of this subdivision, on
42 application of the district attorney or any interested person, or on its
43 own motion, the court shall limit disclosure of the items specified in
44 paragraph (a) of this subdivision, in whole or part, where the court
45 determines there is a reasonable likelihood that the disclosure may lead
46 to discovery of the identity of a witness who is not a public servant or
47 expert witness, imperil the health or safety of any grand juror or
48 witness appearing before the grand jury, jeopardize any current or
49 future criminal investigation, threaten public safety or is otherwise
50 against the interest of justice.
51 (e) Where a court determines not to direct disclosure pursuant to this
52 subdivision, it shall do so in a written order dismissing the applica-
53 tion therefor that shall, to the extent practicable, explain the basis
54 for its determination.
55 § 3. The opening paragraph of subdivision 1 of section 210.20 of the
56 criminal procedure law is amended to read as follows:
A. 7194 3
1 After arraignment upon an indictment, and notwithstanding subdivision
2 three of section 190.25, the superior court may, upon motion of the
3 defendant, dismiss such indictment or any count thereof upon the ground
4 that:
5 § 4. This act shall take effect immediately.
