§ 190.30 Grand jury; rules of evidence.

1. Except as otherwise provided in this section, the provisions of
article sixty, governing rules of evidence and related matters with
respect to criminal proceedings in general, are, where appropriate,
applicable to grand jury proceedings.

2. A report or a copy of a report made by a public servant or by a
person employed by a public servant or agency who is a physicist,
chemist, coroner or medical examiner, firearms identification expert,
examiner of questioned documents, fingerprint technician, or an expert
or technician in some comparable scientific or professional field,
concerning the results of an examination, comparison or test performed
by him in connection with a case which is the subject of a grand jury
proceeding, may, when certified by such person as a report made by him
or as a true copy thereof, be received in such grand jury proceeding as
evidence of the facts stated therein.

2-a. When the electronic transmission of a certified report, or
certified copy thereof, of the kind described in subdivision two or
three-a of this section or a sworn statement or copy thereof, of the
kind described in subdivision three of this section results in a written
document, such written document may be received in such grand jury
proceeding provided that: (a) a transmittal memorandum completed by the
person sending the report contains a certification that the report has
not been altered and a description of the report specifying the number
of pages; and (b) the person who receives the electronically transmitted
document certifies that such document and transmittal memorandum were so
received; and (c) a certified report or a certified copy or sworn
statement or sworn copy thereof is filed with the court within twenty
days following arraignment upon the indictment; and (d) where such
written document is a sworn statement or sworn copy thereof of the kind
described in subdivision three of this section, such sworn statement or
sworn copy thereof is also provided to the defendant or his counsel
within twenty days following arraignment upon the indictment.

3. A written or oral statement, under oath, by a person attesting to
one or more of the following matters may be received in such grand jury
proceeding as evidence of the facts stated therein:

(a) that person's ownership or lawful custody of, or license to
occupy, premises, as defined in section 140.00 of the penal law, and of
the defendant's lack of license or privilege to enter or remain
thereupon;

(b) that person's ownership of, or possessory right in, property, the
nature and monetary amount of any damage thereto and the defendant's
lack of right to damage or tamper with the property;

(c) that person's ownership or lawful custody of, or license to
possess property, as defined in section 155.00 of the penal law,
including an automobile or other vehicle, its value and the defendant's
lack of superior or equal right to possession thereof;

(d) that person's ownership of a vehicle and the absence of his
consent to the defendant's taking, operating, exercising control over or
using it;

(e) that person's qualifications as a dealer or other expert in
appraising or evaluating a particular type of property, his expert
opinion as to the value of a certain item or items of property of that
type, and the basis for his opinion;

(f) that person's identity as an ostensible maker, drafter, drawer,
endorser or other signator of a written instrument and its falsity
within the meaning of section 170.00 of the penal law;

(g) that person's ownership of, or possessory right in, a credit card
account number or debit card account number, and the defendant's lack of
superior or equal right to use or possession thereof.

Provided, however, that no such statement shall be admitted when an
adversarial examination of such person has been previously ordered
pursuant to subdivision 8 of section 180.60, unless a transcript of such
examination is admitted.

3-a. A sex offender registration form, sex offender registration
continuation/supplemental form, sex offender registry address
verification form, sex offender change of address form or a copy of such
form maintained by the division of criminal justice services concerning
an individual who is the subject of a grand jury proceeding, may, when
certified by a person designated by the commissioner of the division of
criminal justice services as the person to certify such records, as a
true copy thereof, be received in such grand jury proceeding as evidence
of the facts stated therein.

4. An examination of a child witness or a special witness by the
district attorney videotaped pursuant to section 190.32 of this chapter
may be received in evidence in such grand jury proceeding as the
testimony of such witness.

5. Nothing in subdivisions two, three or four of this section shall be
construed to limit the power of the grand jury to cause any person to be
called as a witness pursuant to subdivision three of section 190.50.

6. Wherever it is provided in article sixty that the court in a
criminal proceeding must rule upon the competency of a witness to
testify or upon the admissibility of evidence, such ruling may in an
equivalent situation in a grand jury proceeding, be made by the district
attorney.

7. Wherever it is provided in article sixty that a court presiding at
a jury trial must instruct the jury with respect to the significance,
legal effect or evaluation of evidence, the district attorney, in an
equivalent situation in a grand jury proceeding, may so instruct the
grand jury.

8. (a) A business record may be received in such grand jury
proceedings as evidence of the following facts and similar facts stated
therein:

(i) a person's use of, subscription to and charges and payments for
communication equipment and services including but not limited to
equipment or services provided by telephone companies and internet
service providers, but not including recorded conversations or images
communicated thereby; and

(ii) financial transactions, and a person's ownership or possessory
interest in any account, at a bank, insurance company, brokerage,
exchange or banking organization as defined in section two of the
banking law.

(b) Any business record offered for consideration by a grand jury
pursuant to paragraph (a) of this subdivision must be accompanied by a
written statement, under oath, that (i) contains a list or description
of the records it accompanies, (ii) attests in substance that the person
making the statement is a duly authorized custodian of the records or
other employee or agent of the business who is familiar with such
records, and (iii) attests in substance that such records were made in
the regular course of business and that it was the regular course of
such business to make such records at the time of the recorded act,
transaction, occurrence or event, or within a reasonable time
thereafter. Such written statement may also include a statement
identifying the name and job description of the person making the
statement, specifying the matters set forth in subparagraph (ii) of this
paragraph and attesting that the business has made a diligent search and
does not possess a particular record or records addressing a matter set
forth in paragraph (a) of this subdivision, and such statement may be
received at grand jury proceedings as evidence of the fact that the
business does not possess such record or records. When records of a
business are accompanied by more than one sworn written statement of its
employees or agents, such statements may be considered together in
determining the admissibility of the records under this subdivision. For
the purpose of this subdivision, the term "business records" does not
include any records prepared by law enforcement agencies or prepared by
any entity in anticipation of litigation.

(c) Any business record offered to a grand jury pursuant to paragraph
(a) of this subdivision that includes material beyond that described in
such paragraph (a) shall be redacted to exclude such additional
material, or received subject to a limiting instruction that the grand
jury shall not consider such additional material in support of any
criminal charge.

(d) No such records shall be admitted when an adversarial examination
of such a records custodian or other employee of such business who was
familiar with such records has been previously ordered pursuant to
subdivision eight of section 180.60 of this chapter, unless a transcript
of such examination is admitted.

(e) Nothing in this subdivision shall affect the admissibility of
business records in the grand jury on any basis other than that set
forth in this subdivision.