CPL 2024 (PDF) Criminal Procedure Law

CRIMINAL PROCEDURE LAW  CRIMINAL PROCEDURE LAW ARTICLE 1 - SHORT TITLE, APPLICABILITY AND DEFINITIONS 1.00 - Short title This chapter shall be known as the criminal procedure law, and may be cited as "CPL". 1.10 - Applicability of chapter to acti...

CRIMINAL PROCEDURE LAW  CRIMINAL PROCEDURE LAW ARTICLE 1 - SHORT TITLE, APPLICABILITY AND DEFINITIONS 1.00 - Short title This chapter shall be known as the criminal procedure law, and may be cited as "CPL". 1.10 - Applicability of chapter to actions and matter occurring before and after effective date The CPL applies exclusively to all criminal actions and proceedings that occurred upon or after its effective date, as well as the appeals and post judgment proceedings that may follow It also applies to criminal actions and proceedings that have occurred prior to the effective date but were still pending beyond the effective date including their appeals and post judgment proceedings In no way would these new laws render any prior proceedings or procedures ineffectual 1.20 - Definition and Terms Oh boy, this is an important section. You must understand and memorize the majority of terms contained here Let's start with the SEVEN ACCUSATORY INSTRUMENTS. You must know these inside and out. FutureClerk Hint: Think of the SEVEN (7) deadly Sins to remember there are SEVEN (7) of them THIS AREA LEFT INTENTIONALLY BLANK CPL - 1  1. Indictment - A written accusation by a GRAND JURY, filed with a SUPERIOR COURT which charges one or more defendants, with the commission of one or more offenses, at least one of which is a CRIME and serves as a BASIS FOR PROSECUTION 2. Superior Court Information (SCI) - A written accusation by a DISTRICT ATTORNEY, filed with a SUPERIOR COURT which charges one or more defendants, with the commission of one or more offenses, at least one of which is a CRIME and serves as a BASIS FOR PROSECUTION 3. Information - A verified written accusation by a PERSON, filed with a LOCAL CRIMINAL COURT, which charges one or more defendants, with the commission of one or more offenses, NONE OF WHICH IS A FELONY, and which may serve to both COMMENCE a criminal action and as a BASIS FOR PROSECUTION 4. Simplified Information - This is a general name, which encompasses a SIMPLIFIED TRAFFIC INFORMATION, SIMPLIFIED PARKS INFORMATION AND SIMPLIFIED ENVIRONMENTAL CONSERVATION INFORMATION. They are all in brief and simplified form, cannot charge a FELONY and may serve to both COMMENCE a criminal action and as a BASIS FOR PROSECUTION 5. Prosecutor’s Information - A written accusation by a DISTRICT ATTORNEY, filed with a LOCAL CRIMINAL COURT, which charges one or more defendants, with the commission of one or more offenses, NONE OF WHICH IS A FELONY, and which serves as a BASIS FOR PROSECUTION. Take note: As seen in CPL 100.10, it can commence a criminal action, but only upon the direction of the grand jury that it be filed in a case not previously commenced in a local criminal court 6. Misdemeanor Complaint - A verified written accusation by a PERSON, filed with a LOCAL CRIMINAL COURT, which charges one or more defendants, with the commission of one or more offenses, at least one of which is a MISDEMEANOR and NONE OF WHICH IS A FELONY, and which may COMMENCE a criminal action only, but which may not, except with THE DEFENDANT’S CONSENT serve as a BASIS FOR PROSECUTION 7. Felony Complaint - A verified written accusation by a PERSON, filed with a LOCAL CRIMINAL COURT, which charges one or more defendants, with the commission of one or more FELONIES, which serves to COMMENCE a criminal action but is not a basis for PROSECUTION All accusatory instruments regardless of the person deemed the accuser MUST be entitled "The people of the State of New York" against a person designated as the defendant Note: While not one of the seven, the CPL now considers an appearance ticket for a parking infraction, for the purposes of this section, an accusatory instrument. CPL - 2  ACCUSATORY INSTRUMENTS CHART1 TYPE WRITTEN BY COURT OFFENSE COMMENCE BASIS FOR PROSECUTION INDICTMENT GRAND JURY SUPERIOR ONE OR MORE MAY COMMENCE A CRIMINAL BASIS FOR PROSECUTION COURT OFFENSE BUT AT ACTION LEAST ONE CRIME SUPERIOR DISTRICT SUPERIOR ONE OR MORE MAY COMMENCE A CRIMINAL BASIS FOR PROSECUTION COURT ATTORNEY COURT OFFENSE BUT AT ACTION INFORMATION LEAST ONE CRIME (SCI) AT LEAST ONE CRIME INFORMATION PERSON LOCAL ONE OR MORE MAY COMMENCE A CRIMINAL BASIS FOR PROSECUTION CRIMINAL OFFENSE BUT NOT ACTION COURT A FELONY SIMPLIFIED A POLICE LOCAL ONE OR MORE MAY COMMENCE A CRIMINAL BASIS FOR PROSECUTION INFORMATION OFFICER OR CRIMINAL OFFENSE BUT NOT ACTION OTHER PUBLIC COURT A FELONY SERVANT AUTHORIZED BY LAW PROSECUTOR’S DISTRICT LOCAL ONE OR MORE MAY COMMENCE A BASIS FOR PROSECUTION INFORMATION ATTORNEY CRIMINAL OFFENSE BUT NOT CRIMINAL ACTION COURT A FELONY FILED AT THE DIRECTION OF THE GRAND JURY, THE LOCAL CRIMINAL COURT OR SUPERIOR COURT, OR AT THE DA'S OWN INSTANCE IN A CASE NOT PREVIOUSLY COMMENCED IN A LOCAL CRIMINAL COURT MISDEMEANOR PERSON LOCAL ONE OR MORE MAY COMMENCE A CRIMINAL BASIS FOR PROSECUTION COMPLAINT CRIMINAL OFFENSE, AT ACTION ONLY WITH THE COURT LEAST ONE IS A DEFENDANT’S CONSENT MISDEMEANOR BUT NO FELONIES FELONY PERSON LOCAL ONE OR MORE MAY NOT A BASIS FOR COMPLAINT CRIMINAL FELONY COMMENCE A CRIMINAL ACTION PROSECUTION COURT 1 All accusatory instruments regardless of the person deemed the accuser MUST be entitled “The People of the State of New York” against a person designated as the defendant Now for some other important definitions: Arraignment - When the defendant appears in court after the filing of an accusatory instrument to have the court acquire and exercise control over the person Trial - A JURY TRIAL commences with the selection of the jury and continues to verdict. A NONJURY TRIAL commences when the first opening a address if there is one, otherwise when the first witness is sworn and continues to verdict Conviction - The entry of a plea of guilty or verdict of guilty Sentence - The imposition and entry of sentence upon conviction Judgment - The combination of both the CONVICTION and SENTENCE Commencement of a Criminal Action - A criminal action commences with the filing of an accusatory instrument.... Say it again, one more time Trial Jurisdiction - When a court has the authority to accept a plea or try a matter and ultimately dispose of the accusatory instrument Preliminary Jurisdiction - When a court has the authority to commence a criminal action and conduct proceedings that will lead to prosecution and disposition of an action in a court that has trial jurisdiction Appearance Ticket - A written notice issued by a public servant directing a person to appear in a local criminal court for an accusatory instrument to be filed against them Remember, the CPL now considers an appearance ticket for a parking infraction, for the purposes of his section, an accusatory instrument Summons - Issued by a local criminal court or superior court directing a person to appear to be arraigned upon an accusatory instrument already filed against them Warrant of Arrest - This is a directive from a local criminal court to a police officer to scoop someone up and bring his butt to court to be arraigned upon an accusatory instrument already filed against him Superior Court Warrant of Arrest - Same as above but issued by a superior court for an arraignment upon an indictment Bench Warrant - The process of any criminal court directing a police officer or UNIFORMED COURT OFFICER to bring a defendant to court who has ALREADY BEEN ARRAIGNED, for the purpose of achieving their court CPL - 4 appearance to be able continue on with a case that has already been commenced Lesser Included Offense - When it is impossible to commit a crime without simultaneously committing another crime of lesser grade. Example: When you sell crack on the corner to your customers, it is impossible to not also be committing the crime of "possession of a controlled substance “in addition to the "sale of a controlled substance" Petty Offense - A violation or traffic infraction. NOT A CRIME. Expunge - means to deem an arrest and any enforcement activity connected with that arrest, including prosecution and any disposition in any New York state court, a NULLITY. Judicial Hearing Officer - Also known as "JHO" is a person so designated as such pursuant to Article 22 of the Judiciary Law THIS AREA LEFT INTENTIONALLY BLANK CPL - 5  JUVENILE OFFENDER THIRTEEN-YEAR-OLD (13) CRIMINALY RESPONSIBLE FOR MURDER 2, or such conduct as a SEXUALLY MOTIVATED FELONY OR FOURTEEN AND FIFTEEN-YEAR-OLD (14 AND 15-YEAR-OLD) CRIMINALLY RESPONSIBLE FOR MURDER 2 OR M MANSLAUGHTER 1 A ASSAULT 1 R RAPE 1 K KIDNAPPING 1 M MURDER 2 C CRIMINAL SEXUAL ACT 1 A AGGRAVATED SEX ABUSE 1 B BURGLARY 1 AND 2 R ROBBERY 1 AND 2 A ARSON 1 & 2 A ATTEMPT TO COMMIT MURDER 2 OR KIDNAPPING 1 OR AS PART OF A SEXUALLY MOTIVATED FELONY P POSSESSION OF MACHINE GUN OR FIREARM ON SCHOOL GROUNDS CPL - 6 ARTICLE 10 - THE CRIMINAL COURTS THE CRIMINAL COURTS Criminal Courts Superior Court Local Criminal Court Superior Courts Supreme Court County Court Local Criminal District Court Courts NYC Criminal Court City, Town, or Village Court Supreme Court Justice or County Court Judge sitting as a Local Criminal Court CPL - 7 10.10 - Definitions The CRIMINAL COURTS: Superior Courts and local Criminal Courts SUPERIOR COURTS: o The Supreme Court o A County Court LOCAL CRIMINAL COURTS: o District court o New York City Criminal Court o City Court o Town court o Village Court o Supreme Court justice sitting as local criminal court o County Court judge sitting as a local criminal court 10.20 - Superior Courts Superior Courts have: Trial jurisdiction of ALL OFFENSES EXCLUSIVE trial jurisdiction of FELONIES Trial jurisdiction of MISDEMEANORS, CONCURRENT with that of the local criminal courts Trial jurisdiction of PETTY OFFENSES, but only when charged in an Indictment that also charges a crime Preliminary jurisdiction of ALL OFFENSES, but only through the agency of their Grand Juries When a Superior Court Judge sits as local criminal court it is only for the following purposes: Conducting Arraignments Issuing Warrants of Arrest Issuing Search Warrants 10.30 - Local Criminal Courts The local criminal courts have Trial jurisdiction of ALL OFFENSES OTHER THAN FELONIES EXCLUSIVE trial jurisdiction of PETTY OFFENSES, except for special circumstance as described above in "Superior Court" CPL - 8  Trial jurisdiction of MISDEMEANORS, CONCURRENT with that of the Superior Courts, but subject to divestiture (taking control of) by the Superior Court The local criminal courts have preliminary jurisdiction of ALL OFFENSES, subject to divestiture by the Superior Courts and their grand juries Take note: A Superior Court judge sitting as a local criminal court does not have trial jurisdiction of any offense but PRELIMINARY JURISDICTION only 10.40 - Chief administrator to prescribe forms and to authorize use of electronic filing The Chief Administrator of the courts shall have the power to prescribe forms by adopting, amending or rescinding them. That used to be all I had to say about article 10.40, but now the article has been amended to include lots of information about electronic filing. Give this a read through, but don’t go crazy: The Chief Administrator of the courts may promulgate rules authorizing a program in the use of electronic means ("e-filing") in the supreme court and in the county court for: o The filing with a court of an accusatory instrument for the purpose of commencement of a criminal action or proceeding in a superior court, and o The filing and service of papers in pending criminal actions and proceedings. Participation in e-filing is strictly voluntary and will only take place upon the consent of all parties in the criminal action. The chief administrator of the courts shall have the power to adopt, amend and rescind forms for the efficient and just administration of this chapter. The "filing and service of papers in pending criminal actions and proceedings" shall include the filing and service of a notice of appeal A failure by any party to submit papers in compliance with forms authorized by this section shall not be grounds for that reason alone for denial or granting of any motion. (BARD) The Chief Administrator of the Courts can create rules that allow for the use of electronic filing (e-filing) in the Supreme Court and County Court for criminal cases. However, the Chief Administrator must consult with the county clerk of the county where the e-filing will be used and obtain the county clerk's agreement. (BARD) Participation in the e-filing program is voluntary, but a party's failure to consent does not prevent other parties from filing and serving papers electronically. Filing an accusatory instrument electronically does not require the consent of any other party. However, the subject of the accusatory instrument and their attorney have the right to review and obtain copies of the instrument if they would have had that right with paper filing. (BARD) No party can be forced to participate in e-filing. All parties will be notified about their options for e-filing in plain language. If a party is not represented by counsel, the clerk will explain the options for electronic CPL - 9  filing in plain language, including expedited processing. The unrepresented litigant may participate in the program only upon their request, which will be documented in the case file after being presented with plain language explanation. The Chief Administrator of the Courts may eliminate the requirement of consent to participation in the e-filing program in supreme and county courts of not more than six counties. However, the Chief Administrator may not eliminate the requirement for a court without the consent of the district attorney, the criminal defense bar, and the county clerk of the county in which the court presides. The Chief Administrator of the Courts cannot eliminate the requirement of consent to participation in the e-filing program in a county without providing notice and opportunity to submit comments to all persons and organizations who regularly appear in criminal actions or proceedings in the superior court of that county. The Chief Administrator must also consult with the members of the advisory committee before eliminating the requirement. If the Chief Administrator eliminates the requirement of consent to participation in the e-filing program, attorneys will be given the opportunity to opt out of the program. Attorneys can opt out if they meet any of the following criteria: Where the attorney certifies in good faith that he or she lacks appropriate computer hardware and/or connection to the internet and/or scanner or other device by which documents may be converted to an electronic format; or Where the attorney certifies in good faith that he or she lacks the requisite knowledge in the operation of such computers and/or scanners necessary to participate. o For this purpose, the knowledge of any employee of an attorney, or any employee of the attorney's law firm, office or business who is subject to such attorney's direction, shall be imputed to the attorney. Unrepresented parties may opt out at any time once they have opted in. Nothing in this section shall affect or change any existing laws governing the sealing and confidentiality of court records in criminal proceedings or access to court records by the parties to such proceedings, nor shall this section be construed to compel a party to file a sealed document by electronic means. (Bard) Papers and documents filed electronically in criminal proceedings in supreme court or county court will not be available for public inspection online. However, the unified court system may share statistical information that does not include any papers or documents filed with the action. The chief administrator may, in their discretion, post papers or documents that have not been sealed pursuant to law on a public website maintained by the unified court system, if doing so would be in the public interest. CPL - 10 ARTICLE 30 - TIMELINESS OF PROSECUTIONS AND SPEEDY TRIAL 30.10 Periods of limitation A criminal action must be commenced within the period of limitation as described here from the commission of the crime CPL Statute of Limitations OFFENSE LIMITATION Class "A" Felony No limit Rape 1 No limit Course of sexual conduct against a No limit child 1 Aggravated sexual abuse 1 No limit Rape 2 Must be commenced within Criminal sexual act 2 TWENTY (20) YEARS after the Incest 2 (when committed as commission thereof or within TEN rape 2) or (10) YEARS from when the offense Criminal sexual act 2 is first reported to law enforcement, whichever occurs earlier Rape 3 Must be commenced within ten Criminal sexual act 3 years after the commission thereof Any other Felony FIVE (5) years Misdemeanor TWO (2) years Petty Offense 1 year Fiduciary larceny 1 year from when the facts are discovered or should have been discovered with due diligence HINT: F1DUC1ARY = LOOK AT THE ONES! Public Office Misconduct Anytime in Office Up to FIVE (5) YEARS after leaving office No more than Five (5) CPL - 11  Years beyond the normal 30.10-time frame (i.e no more than 10 years) Environmental Conservation Within FOUR (4) YEARS after the facts are discovered, or should had been discovered (Tree = 4 letters = 4 years) Tax Law THREE (3) YEARS (Tax = 3 letters = 3 years) Course of sexual conduct Within FIVE (5) YEARS of "the against a child 1 most recent" act of sexual conduct Sex offenses against children A criminal action against the less than 18 (Felonies): perpetrator of this crime must o 263.05 Use of a child in commence within five years after a sexual performance commission of the offense. The o 255.25, 26, 27 Incest period of limitation shall not begin 3rd, 2nd, 1st degrees to run until the child has reached the age of TWENTY-THREE (23) or the offense is reported to a law enforcement agency or statewide central register of child abuse and maltreatment, whichever occurs earlier. Terrorism Eight years or No limit if the commission of such felony offense resulted in, or created a foreseeable risk of, death or serious physical injury to another person (Hint: No limit = “Never Forget”) Note 1: A statute is tolled (the clock stops) while: 1. defendant is continuously outside the state or 2. Whereabouts continuously unknown or continuously unascertainable with reasonable diligence **However, no more than 5 years can be added to regular statute of limitation time** Example; if the crime is a misdemeanor where the SOL is 2 years even if the whereabouts of the defendant were unknown, or he was outside CPL - 12  the state, the period cannot be extended by more than 5 more years: 2 years + 5 = 7 years. OR For a FELONY: SOL IS 5 YEARS + 5 more years: 10 years. Note 2: In the event an action is timely commenced and then dismissed, the time frame that ran for that failed prosecution is not part of the limitation required under the filing of a new action of another charge for the same offense Future Clerk Hint: Felony Five, Me Two, Don't be a Petty One 30.20 - Speedy trial Once an action is commenced a defendant is entitled to a speedy trial, this protects us all Insofar as is practicable, the trial of criminal action must be given preference over civil cases, and Criminal cases where the defendant is incarcerated have preference over cases where the defendant is at liberty CASE PREFERENCE Criminal cases where the defendant is incarcerated have preference over ↓ Criminal cases where defendant is at liberty, which have preference over ↓ Civil cases CPL - 13 30.30 - Speedy trial; time limitations SPEEDY TRIALS: CPL 30.30 Offense Sub 1. When the defendant Sub 2. When in the at liberty, Motion to dismiss custody of the sheriff must be granted when or the office of people are not ready for a children and family trial in: services, defendant must be released on bail or ROR when the people are not ready for trial in: Felony 6 months 90 days Class A 90 days 30 days Misdemeanor for which defendant could receive a sentence of more than three (3) months Class B 60 days 15 days Misdemeanor for which the defendant could receive a sentence of no more than three (3) months Violation 30 days 5 days Notes: Motion filed by the defense may be denied if the people were ready for trial in a timely fashion but now are not ready due to some exceptional fact or circumstance and due diligence has been exercised to be ready. Subdivisions 1 and 2 do not apply to Murder. CPL - 14 Motions for release if not ready for trial in specified times do not apply to: Defendants who are serving a term of imprisonment for another offense. Defendants who are being held in custody pending trial of another criminal charge. Does not prevent re-detention after being released from custody, are charged with another crime, or violate the conditions on which they were released. For the purposes of this subdivision, the term offense shall include vehicle and traffic law infractions **REMEMBER: 90-30-15-5 TO RELEASE WHEN IN JAIL** **6 MONTHS-90-60-30 TO DISMISS** The periods that must be excluded when computing the time within which the people must be ready for trial: 1. A reasonable period of delay resulting from other proceedings concerning the defendant, including but not limited to: a. Proceedings for the determination of competency and the period during which the defendant is incompetent to stand trial. b. Demands to produce and requests for bills of particulars. c. Pre-trial motions. d. Appeals. e. Trials of other charges. f. The period during which such matters are under consideration by the court. 2. The period of delay resulting from a continuance granted by the court at the request of, or with the consent of, the defendant or his or her counsel in the interest of justice. a. An unrepresented defendant must be advised of the consequence of such a continuance in open court for their consent to be accepted 3. The period of delay resulting from the absence or unavailability of the defendant. 4. Where the defendant has either escaped from custody or has failed to appear when required after having previously been released on bail or on his own recognizance, and provided the defendant is not in custody on another matter, the period extending from the day the court issues a bench warrant because of the defendant's failure to appear in court when required, to the day the defendant subsequently appears in the court pursuant to a bench warrant or voluntarily or otherwise 5. A reasonable period of delay when the defendant is joined for trial with a co-defendant as to whom the time for trial pursuant to this section has not run and good cause is not shown for granting a severance; CPL - 15  6. The period of delay resulting from detention of the defendant in another jurisdiction provided the district attorney is aware of such detention and has been diligent and has made reasonable efforts to obtain the presence of the defendant for trial 7. The period during which the defendant is without counsel through no fault of the court; except when the defendant is proceeding as his own attorney with the permission of the court; 8. Other periods of delay occasioned by exceptional circumstances such as: a. Delays caused by the unavailability of evidence. b. Delays caused by the need for additional time to prepare the case. 9. The period during which an action has been adjourned in contemplation of dismissal 10. The period prior to the defendant's actual appearance for arraignment, 11. The period during which a family offense is before a family court until such time as an accusatory instrument or indictment is filed against the defendant alleging a crime constituting a family offense If the prosecution states they are ready for trial, the court will investigate to see if they are actually ready. An order finally denying a motion to dismiss for speedy trial shall be reviewable upon an appeal from an ensuing judgment of conviction despite the fact that such judgment is entered upon a plea of guilty. Where the defendant is to be tried following the withdrawal of the plea of guilty or is to be retried following a mistrial, an order for a new trial or an appeal or collateral attack, the criminal action and the commitment to the custody of the sheriff or the office of children and family services, if any, must be deemed to have commenced on the date the withdrawal of the plea of guilty or the date the order occasioning a retrial becomes final; Where a defendant has been served with an appearance ticket, the criminal action must be deemed to have commenced on the date the defendant first appears in a local criminal court in response to the ticket (NOTE: The following four sections get complicated. Keep track of where you are. There are four sections of how time is calculated: Two for a felony complaint motion to dismiss and motion for release and two for an indictment motion to dismiss and motion for release. It sounds WAY more complicated than it really is. The chart that follows should help.) Where a criminal action is commenced by filing a felony complaint, and during the course of the action the felony complaint is replaced or converted to an information, prosecutor’s information, or a misdemeanor complaint the period applicable as to when a motion to dismiss must be granted when people are not ready for a trial must be granted must be calculated from the date of filing new accusatory instrument. (NOTE: the periods in subsection 4 do not apply to this calculation i.e. the periods are excluded from that time) If more than SIX (6) MONTHS have passed from when the felony complaint was filed to the date of the new accusatory instrument was CPL - 16  filed, then the period applicable to the felony complaint remains applicable and continues as if no new accusatory instrument has been filed. Where a criminal action is commenced by filing a felony complaint, and during the course of the action the felony complaint is replaced or converted to an information, prosecutor’s information or a misdemeanor complaint, the period applicable to when a motion for release on bail or ROR when the people are not ready for trial must be granted is calculated from the date of filing of new accusatory instrument. (NOTE: the periods in subsection 4 do not apply to this calculation i.e. the periods are excluded from that time) If more than NINETY (90) days have passed from when defendant is committed to the date of the new accusatory instrument was filed, then the period applicable to the felony complaint remains applicable and continues as if no new accusatory instrument has been filed. Where a count of an indictment is reduced to charge only a misdemeanor or petty offense and a reduced indictment or a prosecutor's information is filed, the period applicable as to when a motion to dismiss must be granted when people are not ready for a trial must be granted must be calculated from the date of filing new accusatory instrument.(NOTE: the periods in subsection 4 do not apply to this calculation i.e. the periods are excluded from that time) If more than SIX (6) MONTHS have passed from when the indictment was filed to the date of the new accusatory instrument was filed, then the period applicable to the indictment remains applicable and continues as if no new accusatory instrument has been filed. Where a count of an indictment is reduced to charge only a misdemeanor or petty offense and a reduced indictment or a prosecutor's information is filed, the period applicable to when a motion for release on bail or ROR when the people are not ready for trial must be granted is calculated from the date of filing of new accusatory instrument. (NOTE: the periods in subsection 4 do not apply to this calculation i.e. the periods are excluded from that time) If more than NINETY (90) DAYS have passed from when the indictment was filed to the date of the new accusatory instrument was filed, then the period applicable to the indictment remains applicable and continues as if no new accusatory instrument has been filed. The procedural rules prescribed in subdivisions one through seven of section 210.45 of this chapter with respect to a motion to dismiss an indictment are not applicable to a motion made pursuant to subdivision two of this section. If, upon oral argument, a time period is in dispute, the court must promptly conduct a hearing in which the people must prove that the time period is excludable. CPL - 17  MOTIONS TO DISMISS/RELEASE FILING CALCULATIONS FOR CONVERSIONS/REDUCTIONS Motions Time period Felony Complaint converted to information, prosecutor’s information or a misdemeanor complaint OR Indictment reduced to charge only a misdemeanor or petty offense as a reduced indictment or Prosecutors information Motion to dismiss Less than SIX (6) Calculated from filing of MONTHS from filing new accusatory of original instrument instrument to new instrument Motion to dismiss More than Calculated from filing of SIX (6) MONTHS original accusatory from filing of original instrument instrument to new instrument Motion for release Less than Calculated from filing of NINETY (90) DAYS new accusatory from filing of original instrument instrument to new instrument Motion for release More than Calculated from filing of NINETY (90) DAYS original accusatory from filing of original instrument instrument to new instrument CPL - 18 ARTICLE 100 - COMMENCEMENT OF ACTION IN LOCAL CRIMINAL COURT OR YOUTH PART OF A SUPERIOR COURT--ACCUSATORY INSTRUMENTS 100.05 - Commencement of action (In Local Criminal Court or Youth Part of a Superior Court) All actions commence in the local criminal court by the filing of an accusatory instrument, of which there are five of them, or, in the case of a juvenile offender or adolescent offender, other than an adolescent offender charged with only a violation or traffic infraction, in the youth part of the superior court If more than one instrument is filed in the course of the same criminal action, then the action commences when the first such instrument is filed Let's list in the five accusatory instruments of the LLC: 1. INFORMATION 2. SIMPLIFIED INFORMATION 3. PROSECUTOR’S INFORMATION 4. MISDEMEANOR COMPLAINT 5. FELONY COMPLAINT FYI: The only way to commence an action in the Superior court (other than a criminal action against a juvenile offender or adolescent offender) is by the filing of an indictment by the Grand Jury against a defendant who has never been held by the local criminal court, otherwise a criminal action can only be commenced in a local criminal court, by filing one of the five accusatory instruments listed above 100.07 - Effect of Family Court proceeding A Criminal Court shall have concurrent jurisdiction over family offenses with the Family Court. The same domestic violence offense can result in simultaneous proceedings in the two courts. See 530.11and 812FCA. (GOD SHE'S MAD SIC) 100.10 - Local criminal court and youth part of the superior court accusatory instruments; definitions thereof 1. "Information" is a Verified written accusation by a person charging one or more offenses, none of which is a Felony. It serves both to commence a criminal action and as a basis for prosecution 2. "Simplified Traffic, Parks, and Environmental Informations” are simply written accusations by a Police officer or Public servant charging one or more offenses in simplified form, none of which is a Felony and CPL - 19  contains NO factual allegations supporting such charges, weird huh? It serves both to commence a criminal action and acts as a basis for prosecution 3. "Prosecutor's Information" Written accusation by a District Attorney filed at the direction of the Grand Jury, the local criminal court or Superior court or at the DA's own instance. It charges one or more offenses, none of which is a Felony. It serves as a basis for prosecution but can only commence an action when directed to be filed by a Grand Jury for a case not yet commenced in the local criminal court 4. "Misdemeanor Complaint" Verified written accusation by a person, charging at least one Misdemeanor but no Felony. It commences a criminal action but can only serve as a basis for prosecution with the defendant’s consent while waiving his right to prosecution by an information 5. "Felony Complaint" Verified written accusation filed by a person in the local criminal court or youth part of the superior court, charging at least one Felony. It commences an action but is not a basis for prosecution 100.15 - Information, misdemeanor complaint and felony complaint; form and content An information, misdemeanor complaint or a felony complaint must contain (Local Criminal Court): The name of the court The title of the action Subscribed and verified by "Complainant" based on personal knowledge or information and belief of the commission of the offense Each instrument must contain an accusatory part and a factual part. The complainant's verification only applies to the factual part and not the accusatory part The accusatory part designates offenses charged. The factual part contains a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges Where a Felony complaint charges a violent felony offense and such offense is an armed felony, then the accusatory part must designate the offense an "Armed Felony" while the factual part must allege facts supporting such designation 100.20 - Supporting deposition A written instrument accompanying or filed in connection with an accusatory instrument. Must be subscribed and verified by a person Other than the complainant, containing factual allegations based on knowledge or information and belief which tend to support and supplement the charges CPL - 20  This is NOT an accusatory instrument. This is an addition to an accusatory instrument. 100.25 - Simplified information; form and content; defendant's right to supporting deposition; notice requirement A defendant charged by a Simplified information has a right to a supporting deposition of the complainant police officer or public servant if the request is timely made. To be timely, it must be made before a plea of guilty or commencement of a trial, but not later than THIRTY (30) DAYS after the date the defendant was directed to appear in court. Note: This contradicts CPL 100.20 where it indicates a supporting deposition is subscribed and verified by a person other than the complainant 100.30 - Information, misdemeanor complaint, felony complaint, supporting deposition and proof of service of supporting deposition; verification Verifying informations, complaints, supporting depositions and proof of service are done by swearing to them: Before the court with which it is filed Before a desk officer in charge at police station or police headquarters or any of his superior officers Before a public servant when filed by public servant Before a Notary Public 100.40 - Local criminal court and youth part of the superior court accusatory instruments; sufficiency on face "Sufficiency on its face", in general, is when an accusatory instrument conforms to the requirements of such, and when the factual part along with the supporting deposition, if provided, give "Reasonable cause to believe" that the defendant committed the offense, and non-hearsay allegations of the factual part, establish, if true, every element of the offense charged and the defendant’s commission thereof 100.45 - Information, prosecutor's information, misdemeanor complaint; severance, consolidation, amendment, bill of particulars The rules of severing counts of an indictment or severing of defendants (this does not mean cutting off body parts, however appropriate such punishment may be) applies to informations, prosecutor’s informations and to misdemeanor complaints. CPL - 21  At any time before the entry of a plea of guilty to or commencement of a trial of an information, the court may on application of the people, with notice to the defendant and opportunity to be heard, order the amendment of the accusatory part by adding a count charging an offense supported by the factual part. The defendant may then be entitled to a reasonable adjournment 100.50 - Superseding informations and prosecutor’s informations At any time before entry of a plea of guilty to, or commencement of a trial of an information or prosecutor’s information, another information may be filed which will supersede the original instrument. Upon arraignment of the new instrument the older instrument must be dismissed except for any counts not superseded by the new instrument A misdemeanor complaint must or may be replaced and superseded by an information pursuant to section CPL 170.65 100.55 - Local criminal court accusatory instruments; in what courts filed In general, accusatory instruments are filed where the crime allegedly occurred If offense committed in: District Court - in the county in which the offense was committed New York City Criminal Court - when the crime was allegedly committed in New York City Town Court - if committed in the town Village Court - if committed in the village. Note: NYC Criminal court contains five courts as a whole. Some odd exceptions worth noting are that a Felony complaint can be filed with any town or village court in a County where the offense occurred in some town of such County, not having to be the town where the court is located Here is another little ditty for you: When an accusatory instrument is filed with a judge of the Superior Court sitting as a local criminal court, the offense must be committed in the County in which such judge is then present and in which he either resides or is holding a term of a Superior Court A local criminal court accusatory instrument may be filed with a local criminal court while it is operating an "off hours" arraignment part, for offenses allegedly committed within the same county CPL - 22 100.60 - Youth part of the superior court accusatory instruments; in what courts filed Any youth part of the superior court accusatory instrument may be filed with the youth part of the superior court of a particular county when an offense charged was allegedly committed in that county or that part over which such court has jurisdiction. ARTICLE 110 - REQUIRING DEFENDANT'S APPEARANCE IN LOCAL CRIMINAL COURT OR YOUTH PART OF SUPERIOR COURT FOR ARRAIGNMENT 110.10 - Methods of requiring defendant's appearance in local criminal court or youth part of the superior court for arraignment; in general After action is commenced: Warrant of arrest or Summons Before action is commenced: An arrest made without a warrant or Appearance ticket 110.20 - Local criminal court or youth part of the superior court accusatory instruments; notice thereof to district attorney When a criminal action in which a crime is charged is commenced in a local criminal court, or youth part of the superior court, The arresting Officer OR his agency shall promptly transmit to the DA the accusatory instrument upon or prior to the arraignment, except: in the Criminal Court of the City of New York where it is the Clerk of the Court in which the defendant is arraigned who shall transmit it. ARTICLE 120 - WARRANT OF ARREST 120.10 - Warrant of arrest; definition, function, form and content This is a process of a local criminal court directing a police officer to arrest a defendant and bring him before such court. The sole function of the warrant of arrest is to achieve the defendant's court appearance for purpose of arraignment upon the accusatory instrument The warrant must be subscribed by the issuing judge and must state or contain the following: 1. The name of the issuing court 2. The date of issuance 3. The name or title of offense charged CPL - 23  4. The defendant's name or description (by which he can be identified with reasonable certainty) 5. The police officer to whom it is addressed 6. A direction that such officer to arrest the defendant and bring him before the issuing court 120.20 - Warrant of arrest; when issuable When an accusatory instrument, other than a simplified traffic information, has been filed a local criminal court or youth part of the superior court, against a defendant who has not appeared for arraignment, and not come under the control of the court, such court may issue a warrant of arrest If the court feels the accusatory instrument is not sufficient on its face the court must dismiss the accusatory instrument. If the court feels the instrument is sufficient, it still may refuse to issue a warrant until an examination of witnesses can determine that there is reasonable cause to believe the defendant committed the charged offense If the court is satisfied that the defendant may respond to a summons in lieu of a warrant of arrest, it may NOT issue a warrant of arrest. Upon the request of the district attorney, in lieu of a warrant of arrest or a summons, the court may authorize the district attorney to simply direct the defendant to appear for arraignment on a designated date if so satisfied that the defendant will appear 120.30 - Warrant of arrest; by what courts issuable and in what courts returnable A warrant of arrest may be issuable and then returnable only in the local criminal court or youth part of the superior court where the accusatory instrument was filed Keep in mind the special rule where if an accusatory instrument cannot be filed in the proper town or village court due to unavailability, then an adjoining town or village court in the same County can handle it 120.40 - Warrant of arrest; attaching accusatory instrument to warrant of town court, village court or city court When a town, village or city court issues a warrant of arrest it MAY attach a duplicate copy of the accusatory instrument. This way if when the warrant is executed and if the defendant is brought to the local criminal court due to the issuing court’s unavailability, the defendant can then be arraigned on that duplicate copy CPL - 24 120.50 - Warrant of arrest; to what police officers addressed The warrant may be addressed to police officers whose geographical area of employment embraces either the place where the offense charged was committed or the locality of the court where the warrant is issued 120.55 - Warrant of arrest; defendant under parole or probation supervision A warrant of arrest issued by a local criminal court or youth part of the superior court against a defendant under parole or probation may be addressed to the appropriate parole or probation officer within their geographical area of employment following the same guidelines as in 120.50 above 120.60 - Warrant of arrest; what police officers may execute A warrant of arrest may be executed by any police officer to whom it's addressed or to any police officer designated to execute it. A police officer may designate another officer to execute the warrant when: He has reasonable cause to believe the defendant is in a particular county other than the one where the warrant is returnable, AND the warrant is executable in that county without the endorsement of the local criminal court thereof, AND the arrest is to be made within the geographical area of employment of the designated officer. You must know all three criteria that must be met to designate. 120.70 - Warrant of arrest; where executable Warrants of arrest issued by a District Court, NYC Criminal Court, the youth part of a superior court or Superior Court Judge sitting as a local criminal court may be executed ANYWHERE IN THE STATE Warrants of arrest issued by City, Town and Village courts are executable in the county of issuance or an adjoining county. For example: Example: If the Village of Rockville Centre issued a warrant, it could be executable in Nassau, NYC courts or Suffolk County only Special rule: The city, town or village court warrant could be executable anywhere in the state, upon the written endorsement thereon of the local criminal court of the county where the arrest is to be made. The warrant then becomes the process of both the issuing court and the endorsing court CPL - 25 120.80 - Warrant of arrest; when and how executed A warrant of arrest may be executed any day of the week at any hour of the day or night. Yes, even on Christmas. Ho, ho, ho, you’ve got to go! The officer must inform the defendant that a warrant for his arrest has been issued, unless encountering physical resistance, flight or other factors making normal procedure impractical. He or she may use justifiable physical force to execute the warrant if necessary Upon the defendant's request the officer MUST show him the warrant if he has it in his possession. The officer need not have the warrant in his possession, but upon request must show it to the defendant as soon as possible In general, the officer must give notice before entering a premise unless doing so would: 1. (FLIGHT) Result in the defendant escaping or attempting escape 2. (FEAR) Endanger the life or safety of the officer or another person 3. (FLUSH DOWN THE TOILET) Result in destruction, damage or secretion of material evidence If the officer is authorized to enter premises without giving notice or is not admitted after giving notice, he may break in 120.90 - Procedure after arrest Upon arresting a defendant for any offense pursuant to a warrant of arrest in the county in which the warrant is returnable, or in any adjoining county, or upon so arresting him or her for a felony in any other county, a police officer, if he or she be one to whom the warrant is addressed, must WITHOUT UNNECESSARY DELAY bring the defendant before the local criminal court or youth part of the superior court in which such warrant is returnable, provided that, where a local criminal court or youth part of the superior court in the county in which the warrant is returnable hereunder is operating an off-hours arraignment part at the time of defendant’s return, such police officer may bring the defendant before such local criminal court or youth part of the superior court. If the arresting officer was delegated to affect the arrest, then he must WITHOUT UNNECESSARY DELAY bring the defendant to the officer by whom he was so delegated, who will then proceed with the procedure in the preceding paragraph Upon arresting a defendant for an offense other than a felony pursuant to a warrant of arrest in a county other than the county in which the warrant is returnable, the officer must inform the defendant that he has a right to appear before the local criminal court in the county of his arrest. If the defendant does not want to exercise such right, the officer must request him to endorse such fact CPL - 26 upon the warrant. The officer must then bring him before the court in which the warrant is returnable. A delegated officer may hold a defendant for up to TWO (2) HOURS for purpose of delivering him to the custody of the appropriate officer Whenever a police officer is required to bring an arrested defendant before a town court in which a warrant of arrest is returnable, and if such town court is not available at the time, such officer must, if a copy of the underlying accusatory instrument has been attached to the warrant, instead bring such defendant before any village court embraced by such town, or any local criminal court of an adjoining town or city of the same county or any village court embraced by such adjoining town. When the court in which the warrant is returnable is a village court which is not available at the time, the officer must in such circumstances bring the defendant before the town court of the town embracing such village or any other village court within such town or, if such town court or village court is not available either, before the local criminal court of any town or city of the same county which adjoins such embracing town or, before the local criminal court of any village embraced by such adjoining town. When the court in which the warrant is returnable is a city court which is not available at the time, the officer must in such circumstances bring the defendant before the local criminal court of any adjoining town or village embraced by such adjoining town of the same county. (Bard) If a police officer is required to bring an arrested defendant before a youth part of a superior court, but the court is not in session, the officer must bring the defendant before the most accessible magistrate designated by the appellate division of the supreme court to act as a youth part. Before bringing a defendant arrested pursuant to a warrant before the local criminal court, the arresting officer MUST WITHOUT UNNECESSARY DELAY perform all fingerprinting and other preliminary duties (Bard) If a defendant is arrested in another county for a felony, misdemeanor, or crime that would be a felony if they had a prior conviction, and they are released on their own recognizance or bail to appear in a local criminal court in the county where the warrant is returnable, that local criminal court in which they later appear and are arraigned must order the defendant to be fingerprinted by the appropriate officer or agency. Upon the arrest of a JUVENILE OFFENDER or ADOLESCENT OFFENDER, the arresting officer SHALL IMMEDIATELY notify the parent or other person legally responsible for his care or with whom he is domiciled of the arrest, and location of where he is detained Upon arresting a defendant, other than a Juvenile offender, pursuant to a warrant of arrest, the police officer SHALL permit the defendant to make a CPL - 27  phone call anywhere in the U.S. or Puerto Rico, unless doing so may compromise an investigation or the prosecution of the defendant ARTICLE 160 - FINGERPRINTING AND PHOTOGRAPHING OF DEFENDANT AFTER ARREST--CRIMINAL IDENTIFICATION RECORDS AND STATISTICS 160.10 - Fingerprinting; duties of police with respect thereto It is the duty of the arresting officer or agency to take or cause to be taken fingerprints of any person charged with: A felony; or A misdemeanor in the Penal Law; or A misdemeanor defined outside of the Penal Law, which could constitute a felony if such person had a previous judgment of conviction for a crime Loitering for the purpose of engaging in a prostitution offense PL 240.37(2), a violation A police officer who makes an arrest for any offense, with or without a warrant may take or cause to be taken the fingerprints of the arrested person if the police officer: Is unable to determine their identity Reasonably suspects they are lying about their identity Reasonably suspects the arrested person is being sought by other law enforcement Whenever fingerprints are taken, the photograph and palmprints of the person MAY also be taken It's the Commissioner of the Division of Criminal Justice Services that determines the standards of fingerprinting 160.20 - Forwarding of fingerprints Upon the taking of fingerprints the appropriate police officer or agency MUST WITHOUT UNNECESSARY DELAY forward TWO (2) copies of the fingerprints to the division of criminal justice services 160.30 - Fingerprinting; duties of division of criminal justice services Upon receiving fingerprints, the DCJS MUST search its record for prior convictions of the defendant or adjudications as a youthful offender or juvenile delinquent and report back to the submitting police officer the results of their search CPL - 28  If the fingerprints so received are not sufficiently legible to permit accurate and complete classification, they must be returned to the forwarding police officer or agency with an explanation of the defects and a request that the defendant's fingerprints be retaken if possible. 160.40 - Fingerprinting; transmission of report received by police When an officer receives the report from DCJS, he or she must furnish: ONE (1) copy to the DA and TWO (2) copies to the court. The court will then provide ONE (1) of its copies to the counsel of the defendant or the defendant directly 160.45 - Polygraph tests; prohibition against No one shall polygraph or perform a psychological stress evaluation on sex assault victims. 160.50 - Order upon termination of action in favor of the accused When an action is terminated in favor of the accused, UNLESS the court on its own motion with not less than FIVE(5) DAYS notice to the accused or the DA with not less than FIVE(5) DAYS notice to the accused that the interests of justice require otherwise, THE COURT shall order the record of such action or proceeding sealed and the Clerk of the Court SHALL IMMEDIATELY notify commissioner of DCJS. Any fingerprints, photographs, and reports made are either returned to the accused or destroyed; Police, agencies, and DCJS must notify anyone to which they sent reports to return or destroy them. Generally, all official records shall be sealed Sealed records SHALL be made available to person accused or agent AND o A prosecutor (in a case where the defendant has moved for an ACOD in a marihuana case). o Law enforcement agency UPON EX PARTE MOTION in any superior court if justice requires. o Any state or local agency responsible for issuance of gun licenses, when accused has applied for license o NYS division of parole when accused is on parole supervision as a result of conditional release or a parole release granted by NYS Board of parole, and arrest which is subject of inquiry is one which occurred while accused was under such supervision o Any prospective employer of a police or peace officer, after application by person. CPL - 29  o probation department responsible for supervision of the accused under such supervision. Note: There really isn’t much in the rest of the section from which to draw a question. If you want to read through it, but if they ask a question, I think it’s going to be about the time-frames above. 160.55 - Order upon termination of criminal action by conviction for noncriminal offense; entry of waiver; administrative findings (BARD) If a person is convicted of a traffic infraction or violation for loitering, other than operating a motor vehicle while ability impaired, the clerk of the court must notify the commissioner of the division of criminal justice services and the heads of all appropriate police departments and other law enforcement agencies that the action has been terminated by such conviction, unless the district attorney demonstrates by motion or the court determines on its own motion, with FIVE (5) DAYS notice to the party and their attorney, that the interests of justice require otherwise. Upon notification of the termination of a criminal action or proceeding: o Any fingerprints, photographs, and reports made are either returned to the accused or destroyed. o Police, agencies, and DCJS must notify anyone to which they sent reports to return or destroy them. o Generally, all official records shall be sealed. o Access to sealed records shall be as per CPL 160.50 (d) and also make available to a police agency, probation department, sheriff's office, DA, department of correction of any municipality and parole department, upon arrest and conviction for harassment in 2 (PL 240.26), and against a member of the same family or household of defendant (CPL 530.11). A report of the termination of action by conviction for a non-criminal offense shall be sufficient notice of sealing to the commissioner of the DCJS. If court orders otherwise, clerk shall include notification of this determination in report to the DCJS. Person convicted of traffic infraction (other than loitering - CPL 160.10-5) may apply to court (with TWENTY (20) DAY notice to DA) for order sealing records. This section shall not apply to an action terminated in a manner pursuant to 160.50 Expungement of certain marihuana-related records. Note: Again, there really isn’t much in the rest of the section from which to draw a question. If you want to read through it, but if they ask a question, I think it’s going to be about the time-frames above. CPL - 30 160.57 - Automatic sealing of convictions This is a new section that is effective 11/16/2024… the day of your test. So, don’t you worry about it. 160.58 - Conditional sealing of certain controlled substance, marihuana or specified offense convictions. Person convicted (PL 220 or 221 [221 repealed]) or specified offense who has completed judicial diversion program or other program and completed sentence imposed is eligible to have file sealed pursuant to this section Motion to seal records may be made on court’s own motion or on motion of defendant. Court may also conditionally seal no more than 3 of defendant's prior eligible misdemeanors, and other specified files. Clerk of court shall notify DCJS and any court that sentenced defendant for any offense conditionally sealed. If defendant is thereafter arrested for any misdemeanor or felony, records shall be immediately unsealed and remain unsealed unless prosecution is terminated in favor of defendant in which case the records shall again be conditionally sealed. The court shall not seal the defendant's record pursuant to this section while any charged offense is pending 160.59 - Sealing of certain convictions "Eligible offense" shall mean any crime defined in the laws of this state other than: A SEX OFFENSE defined in PL130 An offense of SEXUAL PERFORMANCE BY A CHILD A felony offense of HOMICIDE, ABORTION AND RELATED OFFENSES A VIOLENT FELONY OFFENSE in PL70.02 A CLASS A FELONY OFFENSE defined in the penal law A felony offense defined of CONSPIRACY where the underlying offense is not an eligible offense An attempt to commit an offense that is not an eligible offense if the attempt is a FELONY An offense for which REGISTRATION AS A SEX OFFENDER is required Two ineligible offenses committed together shall be considered one ineligible offense. CPL - 31 Form to apply for sealing of record shall be provided by the chief administrator of the courts and may be used to apply for sealing of records. Application may be made by defendant convicted of up to 2 eligible offenses but not more than one is a felony in: Court of most serious conviction, OR Court where last convicted (if offenses are of same classification) Application shall contain: 1. Copies of certificates of conviction (or reason why not available) 2. Sworn statement by defendant as to whether he intends to file other requests to seal 3. Copy of other requests to seal 4. Sworn statement as to convictions requested to be sealed 5. Reasons why court should grant request to seal. Copy of request to seal shall be served on each DA in county of conviction(s). DA has FORTY-FIVE (45) DAYS to object to the sealing of the records. Generally, application shall be assigned to the sentencing judge. Judge shall summarily deny application if: Defendant is required to register as a sex offender Defendant has already obtained sealing of the maximum number of convictions Time period for sealing has not yet been satisfied Defendant has an undisposed charge pending Defendant was convicted of a crime after conviction for which sealing is sought Defendant has not provided reasons why relief should be granted Defendant has been convicted of two felonies, or more than TWO (2) crimes A defendant may obtain sealing of one eligible felony offense, but not more than TWO (2) eligible offenses. Period of incarceration is excluded in computing TEN (10) YEAR eligibility period. No appearance is required if DA does not oppose application If sealing request is granted, papers shall be sealed, and clerk shall inform DCJS. However, DCJS shall retain fingerprints, palmprints, photographs and digital images of same. CPL - 32  Papers sealed under this section SHALL be made available to: 1. defendant or defendant's agent 2. qualified agencies and state and federal law enforcement agencies (acting pursuant to law enforcement duties) 3. state or local agency which issues gun permits, if person has made an application for a permit 4. prospective employer of a police or peace officer in relation to employment application 5. FBI upon request be person to purchase a firearm Even if records are sealed, conviction remains for purpose of criminal proceeding where prior conviction enhances penalty of the offense charged. Defendants in criminal cases are not required to waive their right to seek sealing of records. 160.60 - Effect of termination of criminal actions in favor of the accused In any action terminated in favor of the accused the arrest and prosecution shall be deemed a nullity and the accused shall be restored to the status he occupied before and the arrest and prosecution cannot act as a disqualification to pursue or engage in any lawful activity, occupation, profession, etc. No such person shall be required to divulge information pertaining to his or her arrest or prosecution. "No, I have never been arrested" or maybe you have been, we will never know... ARTICLE 170 - PROCEEDINGS UPON INFORMATION, SIMPLIFIED TRAFFIC INFORMATION, PROSECUTOR'S INFORMATION AND MISDEMEANOR COMPLAINT FROM ARRAIGNMENT TO PLEA 170.10 - Arraignment upon information, simplified traffic information prosecutor's information or misdemeanor complaint; defendant’s presence, defendant's rights, court’s instructions and bail matters. After the accusatory instrument is filed the defendant MUST be arraigned thereon and MUST be personally present at such arraignment except when: A simplified information is filed and a procedure is provided by law that dispenses with the arraignment When the defendant's appearance is required by Summons or Appearance ticket, the court may for good cause shown permit the defendant to appear by counsel CPL - 33 Upon arraignment the court MUST IMMEDIATELY inform the defendant of the charge or charges against him and MUST furnish him with a copy of the accusatory instrument The defendant has a right to counsel, or an adjournment to obtain counsel, the right to make a free phone call to anywhere in the United States or Puerto Rico or a free piece of paper to write a letter to someone who cares, for the purpose of obtaining counsel or informing a relative, and the right to have counsel appointed if they cannot afford one, except for traffic infractions. The court must inform the defendant of these and other such rights. The court must also take affirmative action to afford these rights to the defendant. For example, there is the right to not be prosecuted by Misdemeanor Complaint (unless they consent) and such complaint must be superseded by an Information. Take the two minutes to read these rights within the statute when you are home with a cup of tea and in your jammies. The defendant has the right to the aid of counsel at the arraignment and at every subsequent stage of the action. If he appears upon such arraignment without counsel, he has the following rights: o To an adjournment for the purpose of obtaining counsel; and o To communicate, free of charge, by letter or by telephone provided by the law enforcement facility where the defendant is held to a phone number located in the United States, or Puerto Rico, for the purposes of obtaining counsel and informing a relative or friend that he or she has been charged with an offense; and o To have counsel assigned by the court if he is financially unable to obtain the same; except that this paragraph does not apply where the accusatory instrument charges a traffic infraction or infractions only. **The court can only allow a defendant to proceed without the aid of counsel if it is convinced the decision was made with knowledge of the significance thereof** The exception to this is if the defendant is being charged with a traffic infraction, he must be allowed to proceed without counsel If the defendant waives his right to counsel, he continues to have such right throughout the proceeding, and may exercise it at any time! Upon arraignment, unless the matter is being disposed of then and there, the court MUST issue a securing order either releasing the defendant on his own recognizance (ROR) or fixing bail....NO REMAND (commitment to the custody of the sheriff) allowed for Misdemeanor Complaints and Informations. That is reserved for Felony Complaints as we will see in 180.10 The only exception to this is if the arraignment is upon a summons or appearance ticket and your attorney is appearing on your behalf, this keeps your attorney out of jail lol. CPL - 34  If the defendant appears without counsel and no counsel is available at the moment, the matter must be adjourned to the "off hours" arraignment part, if one is in operation in the county in which the court is located. 170.15 - Removal of action from one local criminal court to another An action may be moved from one court to another if the arraigning court does not have trial jurisdiction or the inability of such court to form a jury, or in the rare event of all the judges of a court meeting an untimely death. No, I'm not kidding see 3(a). In any county outside a city having a population of one million or more, upon or after arraignment of a defendant on an information, a simplified information, a prosecutor's information or a misdemeanor complaint, such LLC may, upon motion, remove the action to a "problem solving court,” in the same county and continue until disposition. A "problem solving court", includes, but isn't limited to, drug court, domestic violence court, youth court, mental health court, and veterans court. The chief administrator of the courts shall designate specific local criminal courts as "problem solving courts" An order of removal issued under this subdivision shall not take effect until FIVE (5) DAYS after the date the order is issued unless, prior to such effective date, the problem-solving court notifies the court that issued the order that it will not accept the action or they will accept it on a date prior to the five date period. Notice of acceptance or denial shall be given promptly to the defendant, their counsel, and the DA In any county outside a city having a population of one million or more, upon or after arraignment of a defendant on an information, a simplified information, a prosecutor's information or a misdemeanor complaint, such LLC may, upon motion remove the action to "a human trafficking court" or "veterans treatment court" in the same county and continue until disposition. The chief administrator of the courts shall designate specific local criminal courts as a "human trafficking court" or "veterans treatment court” No cases can be removed where the defendant is charged with a CPL 530.11 family offense and the defendant and victim are members of the same family or household. An order of removal issued under this subdivision shall not take effect until FIVE (5) DAYS after the date the order is issued unless, prior to such effective date, the "human trafficking court" or "veterans treatment court" notifies the court that issued the order that it will not accept the action or they will accept it on a date prior to the FIVE (5) DAY period. CPL - 35  Notice of acceptance or denial shall be given promptly to the defendant, their counsel, and the DA. 170.20 - Divestiture of jurisdiction by indictment; removal of case to superior court at district attorney's instance When a case is pending in the local criminal court prior to a plea of guilty or commencement of a trial, and an indictment is filed with the Superior court for such Misdemeanor, the LCC is divested of jurisdiction and the case is terminated there in the lower court. This is at the DA's instance 170.25 - Divestiture of jurisdiction by indictment; removal of case to superior court at defendant's instance This is a removal of a case to the Supreme Court upon the defendant's request that such charge be prosecuted by indictment via presentation to the grand jury. It is done by motion on notice to the DA showing good cause to believe that the interests of justice so require. The defendant may ask for an adjournment for purposes of bringing such motion to the Superior Court, any time before entry of a plea of guilty or commencement of trial or within THIRTY (30) DAYS of arraignment If the defendant's request to be removed to the superior court for grand jury action is granted and the defendant is waiting for more than FORTY-FIVE (45) DAYS, while being incarcerated without any grand jury action, the Superior court must release him on his own recognizance 170.30 - Motion to dismiss information, simplified information, prosecutor's information or misdemeanor complaint After arraignment the defendant may move to dismiss the accusatory instrument upon the following grounds: 1. It is defective (170.35) 2. The defendant has received immunity 3. Double Jeopardy (previous prosecution) 4. Prosecution is untimely (30.10) 5. The defendant has been denied right to Speedy Trial 6. Jurisdictional or legal impediment to conviction of the defendant 7. Dismissal is required in the furtherance of justice (170.40) In general, these motions should be made within FORTY-FIVE (45) DAYS from arraignment and before commencement of trial as indicated in CPL 255.20 If the defendant is in a position to raise more than one ground, he should bring a motion containing all such grounds at once. CPL - 36  Raising a different ground latter on may end up being summarily denied After arraignment upon an information, a simplified information, a prosecutor's information or misdemeanor complaint on a charge of prostitution the local criminal court may dismiss such charge in its discretion in the interest of justice on the ground that a defendant participated in services provided to him or her. What does that mean? I have no idea. 170.35 - Motion to dismiss (as defective) A Local Criminal Court accusatory instrument is defective when: It is not sufficient on its face The court does not have jurisdiction The statute defining the offense is unconstitutional or invalid 170.40 - Motion to dismiss in the furtherance of justice Motion to dismiss in the interest of justice can be made by the court itself, the people or the defendant Such motion may be brought when there is no basis for dismissal as a matter of law, but such dismissal is required as a matter of judicial discretion due to some compelling factor or circumstance that demonstrates that the conviction or prosecution of the defendant will result in an injustice. The court must consider many factors before granting such a motion 170.45 - Motion to dismiss information, simplified traffic information, prosecutor's information or misdemeanor complaint; procedure The rules for bringing a motion to dismiss an indictment in 210.45 are also applicable for motions to dismiss accusatory instruments in LCC 170.50 - Motion in superior court to dismiss prosecutor's information Any time after arraignment upon a prosecutor's information filed at the direction of the grand jury and before the entry of a plea of guilty or commencement of a trial, the defendant may bring a motion to dismiss upon the ground that: The evidence before the grand jury was not legally sufficient to support the charge The grand jury proceeding was defective CPL - 37 170.55 - Adjournment in contemplation of dismissal "ACOD" Upon or after arraignment on a violation or misdemeanor, but before the entry of a plea of guilty or commencement of a trial, the court MAY upon motion of THE PEOPLE OR THE DEFENDANT and with the CONSENT of the other party, or on THE COURT'S own motion with the CONSENT of both the PEOPLE AND THE DEFENDANT, order that the action be adjourned in contemplation of dismissal An ACOD is an adjournment of an action without a date with a view of dismissal in the furtherance of justice. Upon issuing an ACOD, the court MUST RELEASE THE DEFENDANT on his own recognizance. Upon the application of the PEOPLE made within SIX (6) MONTHS or in the case of a family offense ONE (1) YEAR, the court may restore the case if it is determined that a dismissal would not be in the interests of justice. If the case is not restored within such period it is deemed dismissed An order of protection may be issued in conjunction with an ACOD. For family offenses the defendant may be required to participate in an educational program addressing spousal abuse and family violence. The defendant may be required to participate in dispute resolution, community service, attend an alcohol awareness program all as a condition of the ACOD An ACOD is not an admission of guilt or a conviction. Upon the ultimate dismissal of the accusatory instrument, the arrest and prosecution shall be deemed a NULLITY and the defendant is restored to the status he occupied before his arrest and prosecution 170.56 - Adjournment in contemplation of dismissal in cases involving marihuana Mostly a repeat of 170.55 except for cases with the sole remaining count being marihuana. There are some restrictions like no prior 170.56 being granted or prior drug convictions. The period of adjournment cannot exceed TWELVE (12) MONTHS. Why not just say one year? Nobody knows… nobody knows…. Nobody…. Knows… The court may order an ACOD based upon a finding of exceptional circumstances. For purposes of this subdivision, exceptional circumstances exist when, regardless of the ultimate disposition of the case, the entry of a plea of guilty is likely to result in severe or ongoing consequences, including, but not limited to, potential or actual immigration consequences. CPL - 38 170.60 - Requirement of plea to information, simplified information or prosecutor's information A defendant must enter a plea to an information, simplified information or prosecutor's information if it is not dismissed or terminated 170.65 - Replacement of misdemeanor complaint by information and waiver thereof It is not required for a defendant to enter a plea to a Misdemeanor Complaint. Misdemeanor Complaints must be replaced by an Information for the prosecution of the matter to take place. Generally, supplementing a complaint with a supporting deposition satisfies the requirements, and the complaint is deemed to be converted to an Information An information, which replaces a misdemeanor complaint, need not charge the same offense or offenses, but at least ONE (1) count must charge an offense that was the subject of the misdemeanor complaint A defendant MAY waive prosecution by Information and consent to be prosecuted by Misdemeanor Complaint. If this takes place, then the defendant must enter a plea to the Misdemeanor Complaint either at the time of the waiver or subsequent thereto. 170.70 - Release of defendant upon failure to replace misdemeanor complaint by information Upon application of the defendant who is committed to the custody of the Sheriff upon a Misdemeanor Complaint, the court MUST release the defendant for failure to convert Misdemeanor Complaint to Information if the defendant has been held in custody since arraignment for a period of more than FIVE (5) DAYS excluding Sunday. There are TWO (2) exceptions: Defendant consents to prosecution of misdemeanor complaint Good cause shown why defendant should not be released 170.80 - Proceedings regarding certain prostitution charges; certain persons aged sixteen or seventeen At any time at or after arraignment on a charge of prostitution, after consultation with counsel, a knowing and voluntary plea of guilty has been entered to such charge, any judge or justice hearing any stage of such case may, upon consent of the defendant after consultation with counsel: 1. Conditionally convert such charge to a PINS (Person in need of supervision) petition pursuant to Article 7 of the Family Court Act and retain it, and/or CPL - 39  2. Order the provision of any of the Specialized Services in Article 6 of the Social Services Law In the event the defendant has already been convicted, by plea or verdict, for such prostitution charge, the court MUST find that the person is a Y.O. (Youthful Offender) and proceed in accordance with article 720 of the CPL. The sentence imposed shall be a sentence for a Violation only and the records of the investigation and proceedings shall be sealed. Not sure what a sentence for a violation is? Do not pass go. Return to the Penal Law Article 10 section 3 and start all over. When the court exercises the option above and converts the matter to a PINS proceeding, the defendant shall be deemed a "sexually exploited child" If the defendant does not remain in compliance with the conditions of the conversion, upon written application of the people prior to the individuals 18th birthday, the court may restore the accusatory instrument The defendant shall be entitled to be heard with regard to his or her non- compliance and