Muldoon, Getz & Reston

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Issues In NY Criminal Law--Vol. 1, #5©

Issue: Sealed Indictment

THE usual route of a felony charge is to start in local criminal court as a felony complaint. Upon either a preliminary hearing or referring the case to the grand jury, the charge is evaluated and perhaps voted as a felony indictment.

While it's common for the felony case to begin locally, there is no requirement for this in the CPL. Less frequently, a charge starts out in grand jury. This is the "sealed indictment" (the term is not found in the CPL). A sealed indictment might be used where the prosecutor, for whatever reason, does not wish to alert the prospective defendant to the fact that criminal charges are being investigated. See Muldoon and Feuerstein, Handling a Criminal Case in New York, sec. 3:3 (West Group 1999-2000)

In the usual situation, where a felony case was first in local court, a defendant has the statutory right to testify before the grand jury. To exercise this right, where the case is no longer in local court, the defense must notify the prosecutor. If the case is still pending locally, it is the prosecutor who must advise the defendant.

What notice is the prosecutor required to provide where the case was never filed in local court? None. People v Woodward, 197 AD2d 905, 602 NYS2d 262 (4th Dept 1993).

But what if the defendant on his own, perhaps suspecting that a case is being introduced against him at grand jury, requests to testify? Does an as-yet-uncharged defendant have any statutory right to testify before the grand jury?
CPL 190.50(5)(a) addresses the issue. The right to testify at grand jury is not limited to defendants who have been charged below. A defendant who learns of an investigation against him or her and also provides written notice to the prosecutor of the intent to testify has the right to do so.

In one 1998 Miscellaneous decision, the court discussed the defendant's untrammeled statutory right to testify, despite no charge having been filed locally. The defendant, a prison inmate, was involved in an altercation. Afterwards, the defendant gave the prosecutor notice of his request to testify before the grand jury. By doing so, the defendant was entitled to exercise his statutory right. People v Trammel, 178 Misc2d 753, 680 NYS2d 828 (Co Ct. 1998).

CONSIDER a similar situation: the first indictment is dismissed. Therefore the defendant is no longer subject to an undisposed of felony complaint in local court. People v Lennon,223 AD2d 403, 636 NYS2d 334 (2d Dept 1996).

WHAT about speedy trial time and a sealed indictment. Where a sealed indictment is the method used, the date the indictment is filed with the superior court is the starting point for CPL 30.30 computation purposes. See People v Schaffer, 200 AD2d 695, 608 NYS2d 8 (2d Dept 1994). See Handling, sec. 13:23

QUOTATION: "There is nothing in the world like a persuasive speech to fuddle the mental apparatus and upset the convictions and debauch the emotions of an audience not practised in the tricks and illusions of oratory." Mark Twain, The Man That Corrupted Hadleyburg

RECENT legislation: Upon the jury's request, the judge in a criminal case may provide a witness list. L. 1999, ch 66, amending 310.20 (adding subd. 3).

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