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Can the defense file motion to dismiss without reviewing any evidence and just going by what the witness said happened in GJ?

Massapequa, NY |

Can the defense file a motion to dismiss GJ indictments for prosecutor misconduct without reviewing the evidence and going by what the witness said happened during witness testimony in front of GJ? Prosecutor will not hand over anything to the defense and its been over two months... how can defense go to trial without this ?

Attorney Answers 5


  1. A motion to dismiss can be done without the evidence based upon a witnesses affidavit.
    That is different than going to trial as you would receive that at or before trial.

    Joseph A. Lo Piccolo, Esq.
    Immediate Past President, Criminal Courts Bar Association 11'-12'
    Hession Bekoff & Lo Piccolo
    1103 Stewart Ave, Suite 200
    Garden City, NY 11530
    516-408-3666 (o) / 516-408-3833 (f)
    Jlopiccolo@hbclaw.net

    I am a criminal defense attorney practicing in Nassau, Suffolk and New York City. The above information is not a substitution for a meeting whereas all potential legal issues can be discussed.


  2. Yes. The transcript of the Grand Jury is the evidence that was presented. The defense can file a motion saying that it was insufficient to indict the person.

    to go to trial, the defense attorney is entitled to all of the evidence that the prosecutor has and intends to introduce. There are motions that can be filed to force the prosecutor to turn over the evidence.


  3. A motion to dismiss based upon what took place in the grand jury is always done without the defense having the grand jury minutes because the defense is not entitled to them yet unless the Judge finds the minutes would aid the defense in the motion. Thus, the motion should request disclosure of the minutes but Judges routinely deny that portion of the motion. If the defense knows of specific legal issues that may have arisen that can be raised in the motion and the Judge should review the minutes with that in mind.

    I am a former federal and State prosecutor and now handle criminal defense and personal injury/civil rights cases. Feel free to check out my web site and contact me at (212) 577-9797 or via email at Eric@RothsteinLawNY.com. I was named to the Super Lawyers list as one of the top attorneys in New York for 2012. No more than 5 percent of the lawyers in the state are selected by Super Lawyers. The above answer is for informational purposes only and not meant as legal advice.


  4. Yes the motion could be made. The judge gets a copy of the transcript and all evidence that was presented to the grand jury. The,water need not have reviewed this in order to make the motion. Many prosecutors don't turn over this material to the defense until right before trial.


  5. Yes.

    Hire a lawyer to protect your legal rights.

    Jeffrey J. Estrella, Esq.
    Licensed Attorney and Counsellor At Law/Abogado y Licensiado
    Licensed in New York, New Jersey, and Connecticut
    The Estrella Law Firm, P.C.
    75-20 Astoria Boulevard, Suite 170
    Inside The Bulova Corporate Center
    Jackson Heights, NY 11370
    T. (347) 628-2391
    F. (718) 672-4728
    E. Estrella.Jeffrey@gmail.com
    www.EstrellaLawyer.com

    The answers posted herein are not legal advice and no attorney-client relationship exists. Call for a free 20 minute consultation! THE ESTRELLA LAW FIRM, P.C. “LEGAL REPRESENTATION AND CONSULTING SERVICES THAT GO THE EXTRA MILE” -- Jeffrey J. Estrella, Esq. Licensed Attorney and Counsellor At Law/Abogado y Licensiado Licensed in New York, New Jersey, and Connecticut The Estrella Law Firm, P.C. 75-20 Astoria Boulevard, Suite 170 Inside The Bulova Corporate Center Jackson Heights, NY 11370 T. (347) 628-2391 F. (718) 672-4728 E. Estrella.Jeffrey@gmail.com www.EstrellaLawyer.com

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