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December 4, 2013

Bronx Supreme Court Upholds Defendants Rights To Call Grand Jury Witnesses

By Michael H. Joseph

In most he said, she said cases, such as assault cases, multi-defendant possession of drugs or a weapon charge, a grand jury proceeding is an effective forum to end a felony prosecution at an early stage. Where there is a viable defense, testing the People’s case at an early stage can prevent a stressful, expensive and lengthy prosecution. Our Westchester criminal defense lawyers have successfully handled numerous grand jury proceedings and aggressively stand up to the prosecutor’s frequent attempts to limit our client’s presentation of evidence.

A recent Bronx decision boldly reiterated the rights that defendants have in grand jury proceedings. In People v. Matos-Mesa, the Defendant was charged with felony assault with a weapon and the defendant testified in front of the grand jury that his actions were taken in self defense and indicated that a neighbor had witnessed the incident and had video recorded part of it. The defendant’s criminal defense attorney had emailed the prosecutor the witness’ contact information, but the prosecutor did not present her testimony and claimed that the witness didn’t remember the incident.

The Court dismissed the indictment because the prosecutor violated the defendant’s rights by not allowing the grand jury to decide whether to call the witness. New York Criminal Procedure Law 210.20, 210.35 and 190.50 allows a defendant to challenge the legal sufficiency of an indictment on the ground that it was obtained by an unfair grand jury proceeding. The Court found that by failing to notify the Grand Jury of the witness, the assistant district attorney obstructed the the Grand Jury’s investigation by denying the accused a meaningful Grand Jury presentation. Criminal Procedure Law §190.50 (6) provides a defendant the right to request that a witness testify before the Grand Jury and it allows the Grand Jury, not the prosecutor to determine whether to have the witness’ testimony. The Courts have even recognized that the defense has the right to ask that a Grand Jury issue a subpoena to secure a witness’ testimony. The Westchester prosecutors have tried to side step this requirement by claiming that it was the defense’s obligation to have its witnesses present to testify.

Our criminal defense attorneys have also encountered situations where a prosecutor tried to condition presentation of the witness upon a private interview with the witness prior to their testifying. The Court in Matos Mesa affirmatively rejected this contention because the prosecutor may not claim they have to learn what the witness’ testimony will be prior to advising the Grand Jury of the request that the witness testify because a prosecutor does not have discretion whether to the present a defense witness or to usurp the Grand Jury’s discretion in determining what witnesses can testify. In New York, a prosecutor has the obligation to inform the Grand Jury of any witnesses the defense wants to call and all information about the witness provided by the defense, Our New York City criminal defense attorneys will continue to fight prosecutorial abuse of the grand jury process.

 
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