Normally, when a person is arrested for a felony charge in New York City, they are brought before a judge within 24 hours to be arraigned on a document called a felony complaint. However, for the case to proceed further as a felony, the prosecutor must indict the charge(s) by making a presentation to a grand jury. The prosecutor serves "felony grand jury notice" at arraignments to indicate his or her intent to present the case to a grand jury, and in response, a defendant (through his attorney) may serve "cross grand jury notice" of his or her intent to testify in the grand jury in connection with his case pursuant to New York Criminal Procedure Law (“CPL”) 190.50.
CPL 190.50(5)(a) and (b) states, basically, that a defendant who notifies the prosecutor – in writing – of his or her intent to testify in the grand jury in connection with a case for which he or she has already been arrested but not yet indicted* must be allowed to testify in any subsequent grand jury presentation scheduled by the prosecutor.
Defense attorneys serve cross grand jury notice in almost every felony case at arraignments, but defendants actually testify in the grand jury far less frequently. Defendants frequently say they want to testify at the outset of their case but oftentimes then change their mind about testifying in the grand jury when push comes to shove, so to speak.
However, many defendants complain that they were denied their rights to testify in the grand jury. Typically, they blame their defense attorneys for failing to serve cross grand jury notice or for failing to secure their appearance in the grand jury presentation. If you feel that you have been denied your right to testify in a grand jury proceeding against you, consider contacting criminal defense attorneys with extensive knowledge of grand jury practice. They may be able to help you make a motion to dismiss the indictment against you pursuant to CPL 190.50(5)(c).
* Sometimes, especially in cases involving a long-term police investigation, a person is indicted by a grand jury before they are arrested. In those cases, the defendants or suspects do not have the right to testify in the grand jury under CPL 190.50.
§ 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.