Grand Jury Indictment in New York

A felony in New York generally must be presented to a grand jury for indictment, or waived by superior court information. The grand jury is a one-sided proceeding: the prosecutor presents evidence, gives the legal instructions, and asks for an indictment. There is no judge in the room. There is no defense attorney in the room unless the target chooses to testify.

The 190.50 Right to Testify

Under CPL § 190.50, a person who has been arraigned on a felony complaint has the right to testify before the grand jury. The right must be invoked in writing. If the prosecution proceeds without giving the accused notice, the resulting indictment can be dismissed under CPL § 210.35(4). The procedure is technical, the deadlines are short, and the choice to testify is one of the most consequential decisions in a felony case.

Should You Testify?

The conventional answer is no. The grand jury's standard of proof is low (legally sufficient evidence and reasonable cause), the cross-examination is the prosecutor's, the recorded transcript can be used to impeach you for the rest of the case, and the rate at which testimony actually produces a no-true-bill is low. But there are cases where it makes sense — affirmative-defense cases, mistaken-identity cases, and cases where a target letter has already telegraphed the issues. The decision should be made with counsel after seeing as much of the prosecution evidence as possible.

Defense Witnesses

The accused may also call witnesses before the grand jury. The grand jury, with the prosecutor's permission, decides whether to hear them. Defense witnesses are rare but occasionally pivotal.

If You Are Indicted

The indictment moves the case to Supreme Court. The defense work shifts to:

• Reviewing the grand-jury minutes for sufficiency and instructional error (CPL § 210.30)
• CPL Article 245 discovery
• Suppression motions under CPL Article 710
• Speedy-trial calculations under CPL § 30.30
• Plea negotiation, motion practice, and trial preparation

If you have received notice that a grand jury is about to present your case, or if you have been arraigned on a felony complaint, time is short. Call us at 212-233-1233 or email [email protected].