CPL 195
CPL 195.10 – General Principles and Statutory Prerequisites for Waiver of Indictment
Core Definition and Scope:
Criminal Procedure Law (CPL) Article 195 governs the waiver of indictment process in New York State.
Under CPL 195.10, a defendant may choose to waive the constitutional right to a grand jury indictment and instead agree to be prosecuted by a Superior Court Information (SCI).
An SCI filed following a valid waiver carries the exact same legal force and effect as a grand jury indictment.
Mandatory Statutory Prerequisites for Waiver:
A defendant is permitted to waive indictment only if all three of the following conditions are fully satisfied:
Local Court Action: A local criminal court has held the defendant for grand jury action.
Offense Eligibility: The defendant is not charged with a Class A felony punishable by death or life imprisonment.
Prosecutorial Consent: The district attorney explicitly consents to the waiver.
Excluded Offenses:
Class A felonies punishable by death or life imprisonment are strictly prohibited from being prosecuted by waiver of indictment and Superior Court Information.
Timing and Forum Options for Waiver Execution:
A waiver of indictment can be executed in either of two places/times:
Local Criminal Court Execution: In the local criminal court at the time the court holds the defendant for grand jury action.
Superior Court Execution: In the appropriate superior court at any time before the grand jury files an indictment.
CPL 195.20 – Written Instrument Formalities, Content Requirements, and Execution
Writing Requirement:
Pursuant to CPL 195.20, a waiver of indictment must strictly be made in writing.
Required Identifying Information in the Written Instrument:
The written waiver instrument must explicitly set forth:
The exact name of the court in which the waiver is signed.
The formal title of the criminal action.
The name of each specific offense to be charged in the Superior Court Information (SCI).
The date, approximate time, and precise place of each charged offense.
Scope of Charges Permitted in Waiver:
The offenses listed in the written waiver may encompass:
Any offense for which the defendant was held for grand jury action by the local criminal court.
Any additional offenses that may be properly joined with the primary charges under the statutory joinder rules defined in CPL 200.20 and CPL 200.40.
Mandatory Defendant Acknowledgments and Understandings:
The written instrument must explicitly affirm that the defendant understands:
The New York State Constitution guarantees the right to prosecution by grand jury indictment.
The defendant is knowingly and voluntarily giving up (waiving) that constitutional right.
The district attorney will file a Superior Court Information (SCI) charging the specific offenses listed in the waiver instrument.
The resulting SCI holds the exact same legal force and effect as a formal grand jury indictment.
Formal Execution and Endorsement Requirements:
To be legally valid, the waiver execution must adhere to the following:
Must be signed by the defendant in open court.
Must be signed in the presence of the defendant's attorney.
Must be formally endorsed (approved) by the district attorney through a signature or other official indication of consent.
CPL 195.30 – Judicial Review, Order of Approval, and Case File Transfer
Mandatory Judicial Scrutiny:
Under CPL 195.30, every waiver of indictment must undergo formal judicial review before it can acquire legal effect.
The court is required to determine whether the submitted waiver satisfies all legal requirements set forth in:
CPL 195.10 (governing when a waiver is statutorily permitted).
CPL 195.20 (governing the mandatory form, content, and execution of the written instrument).
Judicial Order of Approval:
Upon determining that the waiver meets all statutory prerequisites:
The court must grant approval of the waiver.
The court must issue a formal written order approving the waiver.
Inter-Court Document Transfer Procedure:
When a waiver of indictment is approved in a local criminal court, that court must promptly transmit all necessary case papers to the appropriate superior court.
Transmitted materials must include:
The signed written waiver of indictment.
The court's written order approving the waiver.
All other case-related documentation and court files.
Jurisdictional Status Pending Transfer:
Until the superior court receives all transferred documents and case records, the criminal action is still legally considered pending in the local criminal court.
CPL 195.40 – Superior Court Information Filing Timelines and Custody Release Mandates
Obligation to File SCI:
Following a valid waiver of indictment, a Superior Court Information (SCI) must be filed.
Statutory Filing Timelines:
Waivers Executed in Superior Court: The district attorney must file the SCI immediately at the exact time the waiver instrument is signed.
Waivers Executed in Local Criminal Court: The district attorney must file the SCI in the appropriate superior court within after the local court approves the waiver.
Custody Status and Application for Release (ROR):
A defendant held in custody following waiver approval may apply for immediate release if:
More than have passed since judicial approval of the waiver; and
The district attorney has not filed the required SCI.
Mandatory Judicial Action on Release Application:
The superior court must release the defendant on their own recognizance (ROR) upon such application, unless one of two statutory exceptions applies:
Defendant-Caused Delay: The delay in filing was caused by the defendant's request, actions, condition, or consent.
Good Cause Shown: The prosecution establishes good cause for the delay.
Legal Standard for Good Cause:
Establishing good cause requires the district attorney to demonstrate a compelling fact or circumstance that prevented the filing of the SCI within the required period.
Review Assessment Questions and Official Answer Key
Question 1: Under CPL 195.10, a defendant may waive indictment and be prosecuted by:
A. A misdemeanor complaint
B. An information
C. A superior court information (SCI)
D. A felony complaint
Answer: C — A superior court information (SCI)
Question 2: Before a defendant may waive indictment, the defendant must first:
A. Plead guilty
B. Be held for grand jury action by a local criminal court
C. Be indicted by a grand jury
D. Be convicted of a felony
Answer: B — Be held for grand jury action by a local criminal court
Question 3: Which of the following defendants may NOT waive indictment?
A. A defendant charged with a misdemeanor
B. A defendant charged with a class E felony
C. A defendant charged with a class A felony punishable by death or life imprisonment
D. A defendant charged with a non-violent felony
Answer: C — A defendant charged with a class A felony punishable by death or life imprisonment
Question 4: A waiver of indictment requires the consent of:
A. The court only
B. The defendant's attorney only
C. The district attorney
D. The grand jury
Answer: C — The district attorney
Question 5: A waiver of indictment may be made:
A. Only in superior court
B. Only in local criminal court
C. In local criminal court or in superior court before an indictment is filed
D. Only after an indictment is returned
Answer: C — In local criminal court or in superior court before an indictment is filed
Question 6: Under CPL 195.20, a waiver of indictment must be:
A. Oral and made in open court
B. Written
C. Notarized
D. Recorded by the court reporter only
Answer: B — Written
Question 7: Which of the following information must be included in the written waiver?
A. The defendant's employment history
B. The names of all witnesses
C. The date, approximate time, and place of each offense
D. The prosecutor's trial strategy
Answer: C — The date, approximate time, and place of each offense
Question 8: The offenses listed in the written waiver may include:
A. Only misdemeanors
B. Only the original felony complaint charges
C. Offenses for which the defendant was held for grand jury action and any properly joinable offenses
D. Any offense chosen by the district attorney
Answer: C — Offenses for which the defendant was held for grand jury action and any properly joinable offenses
Question 9: The written waiver must state that the defendant understands:
A. The right to a jury trial only
B. The constitutional right to prosecution by grand jury indictment
C. The right to remain silent only
D. The right to appeal
Answer: B — The constitutional right to prosecution by grand jury indictment
Question 10: After a valid waiver, the Superior Court Information (SCI):
A. Has less legal effect than an indictment
B. Has the same legal force and effect as a grand jury indictment
C. May only be used for misdemeanors
D. Requires approval by the grand jury
Answer: B — Has the same legal force and effect as a grand jury indictment
Question 11: The defendant must sign the waiver:
A. Before a notary public
B. At the police station
C. In open court and in the presence of defense counsel
D. In the district attorney's office
Answer: C — In open court and in the presence of defense counsel
Question 12: Besides the defendant, who must endorse or approve the waiver?
A. The grand jury foreperson
B. The district attorney
C. The sheriff
D. The court clerk
Answer: B — The district attorney
Question 13: Before approving a waiver, the court must determine that it complies with:
A. CPL 190.65 only
B. CPL 180.80 only
C. CPL 195.10 and CPL 195.20
D. CPL 170.10 only
Answer: C — CPL 195.10 and CPL 195.20
Question 14: If the waiver satisfies the statutory requirements, the court must:
A. Forward it to the grand jury
B. Approve the waiver and issue a written order
C. Schedule a jury trial
D. Dismiss the charges
Answer: B — Approve the waiver and issue a written order
Question 15: When a waiver is approved in local criminal court, that court must promptly send the waiver and related documents to:
A. The Court of Appeals
B. The district attorney
C. The appropriate superior court
D. Family Court
Answer: C — The appropriate superior court
Question 16: Until the superior court receives the transferred documents, the criminal action is considered pending in:
A. The superior court
B. Family Court
C. The local criminal court
D. The Court of Appeals
Answer: C — The local criminal court
Question 17: If indictment is waived in superior court, the district attorney must file the SCI:
A. Within 30 days
B. Within 10 days
C. Immediately when the waiver is executed
D. After arraignment
Answer: C — Immediately when the waiver is executed
Question 18: If indictment is waived in local criminal court, the district attorney must file the SCI within:
A. 5 days
B. 7 days
C. 10 days after court approval of the waiver
D. 30 days
Answer: C — 10 days after court approval of the waiver
Question 19: A defendant held in custody after approval of a waiver may apply for release if:
A. Five days have passed without an SCI being filed
B. Ten days have passed without an SCI being filed
C. Thirty days have passed without an SCI being filed
D. The defendant requests a preliminary hearing
Answer: B — Ten days have passed without an SCI being filed
Question 20: If more than 10 days have passed without the filing of an SCI, the superior court must generally:
A. Dismiss the case
B. Release the defendant on their own recognizance (ROR)
C. Reduce the charges to a misdemeanor
D. Order a grand jury presentation
Answer: B — Release the defendant on their own recognizance (ROR)
Question 21: Which circumstance may justify denying release after the 10-day period?
A. The defendant refuses to plead guilty
B. The defendant caused or consented to the delay
C. The defendant requested assigned counsel
D. The defendant requested discovery
Answer: B — The defendant caused or consented to the delay
Question 22: Under CPL 195.40, "good cause" for failing to timely file an SCI requires:
A. A scheduling conflict for defense counsel
B. A compelling fact or circumstance preventing timely filing
C. A request from the victim
D. The district attorney's workload alone
Answer: B — A compelling fact or circumstance preventing timely filing
Question 23: Which statement best summarizes CPL Article 195?
A. Every felony must be prosecuted only by indictment.
B. A defendant may waive indictment under specific statutory conditions and proceed by Superior Court Information.
C. Waiver of indictment is available in every criminal case without restrictions.
D. A Superior Court Information may only be filed after a trial.
Answer: B — A defendant may waive indictment under specific statutory conditions and proceed by Superior Court Information.
Question 24: Which sequence correctly describes the waiver process?
A. Waiver → Court approval → SCI filed → Grand jury review
B. Grand jury indictment → Waiver → SCI filed
C. Valid waiver → Court approval → SCI filed → Prosecution proceeds by SCI
D. SCI filed → Waiver executed → Court approval
Answer: C — Valid waiver → Court approval → SCI filed → Prosecution proceeds by SCI
Question 25: Which of the following is NOT required for a valid waiver of indictment?
A. District attorney consent
B. A written waiver signed in open court
C. Grand jury approval of the waiver
D. Judicial approval of the waiver
Answer: C — Grand jury approval of the waiver