§ 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
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.