Bill Text: NY A05845 | 2021-2022 | General Assembly | Introduced

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Bill Title: Provides that in grand jury proceedings when following submission to a grand jury of a criminal charge or charges, the grand jury dismisses all charges presented or directs the district attorney to dismiss all charges or directs the DA to file in a local criminal court an application for disclosure of certain materials; authorizes the court to limit disclosure of certain items where there is a reasonable likelihood that such disclosure may lead to the identity of a witness who is not a public servant or expert witness; makes related provisions.

Spectrum: Partisan Bill (Democrat 10-0)

Status: (Engrossed - Dead) 2022-01-05 - ordered to third reading cal.192 [A05845 Detail]

Download: New_York-2021-A05845-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                          5845

                               2021-2022 Regular Sessions

                   IN ASSEMBLY

                                    February 26, 2021
                                       ___________

        Introduced  by  M.  of  A.  O'DONNELL  --  read once and referred to the
          Committee on Codes

        AN ACT to amend the criminal procedure law, in relation  to  grand  jury
          proceedings

          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:

     1    Section 1.  Paragraph (d) of subdivision 3 of section  190.25  of  the
     2  criminal  procedure law is amended and a new paragraph (a-1) is added to
     3  read as follows:
     4    (a-1) A judge or justice of the superior court;
     5    (d) An interpreter. Upon request of the grand jury or the  court,  the
     6  prosecutor must provide an interpreter to interpret the testimony of any
     7  witness who does not speak the English language well enough to be readi-
     8  ly  understood.  Such  interpreter must, if he or she has not previously
     9  taken the constitutional oath of office, first take an oath  before  the
    10  grand jury that he or she will faithfully interpret the testimony of the
    11  witness  and  that  he  or  she will keep secret all matters before such
    12  grand jury within his or her knowledge;
    13    § 2. Subdivision 4 of section 190.25 of the criminal procedure law  is
    14  amended  by adding seven new paragraphs (c), (d), (e), (f), (g), (h) and
    15  (i) to read as follows:
    16    (c) In addition to paragraphs (a) and (b) of this  subdivision,  when,
    17  following  submission  to  a grand jury of a criminal charge or charges,
    18  the grand jury dismisses all charges presented or directs  the  district
    19  attorney  to  file  in a local criminal court a prosecutor's information
    20  charging an offense other than a felony, as provided in subdivision  one
    21  of  section  190.70  of  this article, an application may be made to the
    22  superior court for disclosure of the following material relating to  the
    23  proceedings before such grand jury:
    24    (i) the criminal charge or charges submitted;
    25    (ii) the legal instructions provided to the grand jury;

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD07054-02-1
        A. 5845                             2

     1    (iii)  the  testimony of all public servants who testified in an offi-
     2  cial capacity before the grand jury and  of  all  persons  who  provided
     3  expert testimony; and
     4    (iv) the testimony of all other persons who testified before the grand
     5  jury, redacted as necessary to prevent discovery of their names and such
     6  other  personal  data  or  information that may reveal or help to reveal
     7  their identities.
     8    (d) The application specified in paragraph (c) of this subdivision may
     9  be made by any person, must be in writing and, except where made by  the
    10  people,  must  be  upon  notice to the people. The court shall direct or
    11  provide notice to any other appropriate person  or  agency.  Where  more
    12  than  one  application is made hereunder in relation to such a dismissal
    13  or direction, the court may consolidate such applications and  determine
    14  them together. When no application hereunder is made, the superior court
    15  may  order  disclosure on its own motion as provided in paragraph (e) of
    16  this subdivision at any time following  notice  to  the  people  and  an
    17  opportunity  to be heard and reasonable efforts to notify and provide an
    18  opportunity to be heard to any other appropriate person or agency.
    19    (e) Upon an application as provided in paragraph (c) of this  subdivi-
    20  sion  or  on  the court's own motion, the court, after providing persons
    21  given notice an opportunity to be heard, shall determine whether:
    22    (i) a significant number of members of the general public in the coun-
    23  ty in which the grand jury was drawn and impaneled are likely aware that
    24  a criminal investigation had  been  conducted  in  connection  with  the
    25  subject matter of the grand jury proceeding; and
    26    (ii)  a  significant  number  of members of the general public in such
    27  county are likely aware of the identity of the subject against whom  the
    28  criminal  charge  specified  in  paragraph  (c)  of this subdivision was
    29  submitted to a grand jury, or such subject has consented to such disclo-
    30  sure; and
    31    (iii) there is significant public interest in disclosure.
    32    Where the court is satisfied that all three of these factors are pres-
    33  ent, and except as provided in paragraph (f) of  this  subdivision,  the
    34  court  shall direct the district attorney to promptly disclose the items
    35  specified in paragraph (c) of this subdivision.
    36    (f) Notwithstanding any  other  provisions  of  this  subdivision,  on
    37  application of the district attorney or any interested person, or on its
    38  own  motion,  the court shall limit disclosure of the items specified in
    39  paragraph (c) of this subdivision, in whole or  part,  where  the  court
    40  determines  there  is  a  reasonable likelihood that such disclosure may
    41  lead to discovery of the identity of a witness who is not a public serv-
    42  ant or expert witness, imperil the health or safety of a grand juror who
    43  participated in the proceeding or a  witness  who  appeared  before  the
    44  grand jury, jeopardize an identified current or future criminal investi-
    45  gation, create a specific threat to public safety, or despite the inter-
    46  ests  reflected  by  this  subdivision  is  contrary to the interests of
    47  justice.
    48    (g) Where a court determines not to direct disclosure, in whole or  in
    49  part, pursuant to this subdivision, it shall do so promptly in a written
    50  order  that  shall  explain with specificity, to the extent practicable,
    51  the basis for its determination.
    52    (h) Where an application pursuant to paragraph (c) of this subdivision
    53  has been denied, in whole or in part, the applicant  may  appeal  as  of
    54  right  from  such  order  to the appellate division in the department in
    55  which such order was entered, in accordance with  article  four  hundred
    56  sixty of this chapter.
        A. 5845                             3

     1    (i)  Nothing in this paragraph or paragraph (c), (d), (e), (f), (g) or
     2  (h) of this subdivision shall be interpreted as limiting or  restricting
     3  any broader right of access to grand jury materials under any other law,
     4  common law or court precedent.
     5    §  3.  This  act shall take effect on the thirtieth day after it shall
     6  have become a law.