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NY Grand Jury Proceedings - Discovery for Defendants

The accused has a right to discovery before he or she testifies. Statutory (New York Criminal Procedure Law) and constitutional discovery for arrests and criminal defendants in New York means that one can actually see some of the prosecutor’s case against the accused. Statements, video and audio are available to those who have been accused to a crime. Now more than ever, the New York Criminal Defense Attorney has more tools in the arsenal to level the playing field.

Here, accompanied by some delay, is a “Motion by the People for authorization to release the transcripts of the grand jury testimony of persons who testified before the grand jury in order to comply with the discovery obligations imposed by CPL §245.20(1)(b).” The Case is People v. Schoetz, and it discusses what the obligations of the prosecutor are when it comes to producing discovery, evidence, to an accused person in New York State: Criminal Defendants in New York State.

The Court recites that

Under the recently enacted discovery scheme in criminal cases (CPL §245.10 et seq.), within fifteen calendar days of arraignment on an indictment (CPL §245.10[1][a]) the People are automatically required to disclose to the defendant "[a]ll transcripts of the testimony of a person who has testified before a grand jury, including but not limited to the defendant or a co-defendant" (CPL §245.20[1][b]). The People are concerned that release of grand jury transcripts without a court order authorizing such release may violate the mandates for grand jury secrecy. 

Grand Jury proceedings are technically secret or were secret until the amendments were made to the New York Criminal Procedure Law. The Grand Jury Proceedings remained secret so that persons would be willing to come forward, testify and bear witness so that there is probable cause to move forward against the accused. The requirement for an indictment is a basic due process for the accused:

Specifically, the People seek clarification as to whether the following language in CPL §190.25(4)(a) requires that a court order be obtained authorizing disclosure of the transcripts before they can be turned over to the defendant:

"Grand jury proceedings are secret, and no grand juror or other person specified in subdivision three of this section or section 215.70 of the penal law may, except in the lawful discharge of his duties or upon written order of the court, disclose the nature of substance of any grand jury testimony, evidence, or any decision, result or other matter attending a grand jury proceeding." 

What happens in the regular course of things? In New York, criminal defendants get arrested and then arraigned. The arraignment is the time where the accused comes forward and states “not guilty,” bail is set (or not) and the accused, on a felony complaint, may submit a notice of intention to testify by the grand jury. It is vital to have a criminal defense attorney at this time because a New York Criminal Defense Attorney often will determine the conditions of release and whether an order of protection will issue and prevent the accused from seeing his or her family, owning weapons and his or her ability to communicate with the complainant or, in some cases, the order of protection can prohibit contact with the accused's children.

New York Criminal Defense Attorneys regularly file these notices whether or not the accused will testify in the grand jury. With the new Criminal Procedure Laws, in New York, the accused is entitled to discovery before some of the grand jury proceedings commence:

A "district attorney" and a "public prosecutor" are subject to the secrecy provisions of CPL §190.25(4)(a) since the former is specified in subdivision three of that section and the latter is specified in Penal Law §215.70. However, the automatic, compulsory disclosure commandments recently mandated by the Legislature in CPL §245.10(a) and §245.20(1) clearly impose lawful duties upon a district attorney or public prosecutor. Indeed, not only did the Legislature choose to refer to the prosecution's discovery responsibilities as "obligations" (see CPL §245.10[a]) but it also directed that the disclosure of the items and information specified in CPL §245.20(1), including grand jury transcripts, be "automatic" rather than by a preceding demand or court order. Thus, disclosure of the transcripts of grand jury testimony falls within the "lawful discharge of his [her] duties" exception to the grand jury secrecy requirements and the People must disclose those transcripts automatically and without a court order within the time dictated by CPL §245.10(a).

In terms of Grand Juries, what was secret is now subject to disclosure. Although new, prosecutors know their obligations under the law - the question usually becomes whether a criminal defendant, or his criminal defense attorney, will hold the prosecutor to their obligations as well as to their burden of proof.

The Court (J.S.C. RICHARD B. MEYER) Holds that “a district attorney or public prosecutor is not required by CPL §190.25(4)(a) to obtain a court order authorizing release of the transcripts of grand jury testimony before complying with the automatic discovery obligations imposed upon the prosecution by CPL §245.20(1)(a) since such disclosure is made in the lawful discharge of their duties.”

The case is People v. Schoetz, 2020 NY Slip Op 20073 (Sup. Ct. Essex March 12, 2020). Call the Law Offices of Cory H. Morris, 631-450-2515 (NYS) (954) 998-2918 (FLA) for any criminal/addiction matters, appeals, accidents, injuries and accountability matters.


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