§ 170.25 — Divestiture of jurisdiction by indictment; removal of case to superior court at defendant's instance

New York § 170.25

• Jurisdiction: New York
• Law CPL: Criminal Procedure
• Title H: Preliminary Proceedings In Local Criminal Court
• Part 2: The Principal Proceedings
• Art. 170: Proceedings Upon Information, Simplified Traffic Information, Prosecutor's Information and Misdemeanor Complaint From Arraignment to Plea

Text

§ 170.25 Divestiture of jurisdiction by indictment; removal of case to\n superior court at defendant's instance.\n 1. At any time before entry of a plea of guilty to or commencement of\na trial of a local criminal court accusatory instrument containing a\ncharge of misdemeanor, a superior court having jurisdiction to prosecute\nsuch misdemeanor charge by indictment may, upon motion of the defendant\nmade upon notice to the district attorney, showing good cause to believe\nthat the interests of justice so require, order that such charge be\nprosecuted by indictment and that the district attorney present it to\nthe grand jury for such purpose.\n 2. Such order stays the proceedings in the local criminal court\npending submission of the charge to the grand jury. Upon the subsequent\nfiling of an indictment in the superior court, the proceedings in the\nlocal criminal court terminate and the defendant must be required to\nappear for arraignment upon the indictment in the manner prescribed in\nsubdivisions one and two of section 210.10. Upon the subsequent filing\nof a grand jury dismissal of the charge, the proceedings in the local\ncriminal court terminate and the superior court must, if the defendant\nis not at liberty on his own recognizance, discharge him from custody or\nexonerate his bail, as the case may be.\n 3. At any time before entry of a plea of guilty to or commencement of\na trial of or within thirty days of arraignment on an accusatory\ninstrument specified in subdivision one, whichever occurs first, the\ndefendant may apply to the local criminal court for an adjournment of\nthe proceedings therein upon the ground that he intends to make a motion\nin a superior court, pursuant to subdivision one, for an order that the\nmisdemeanor charge be prosecuted by indictment. In such case, the local\ncriminal court must adjourn the proceedings to a date which affords the\ndefendant reasonable opportunity to pursue such action, and may\nsubsequently grant such further adjournments for that purpose as are\nreasonable under the circumstances. Following the granting of such\nadjournment or adjournments, the proceedings must be as follows:\n (a) If a motion in a superior court is not made by the defendant\nwithin the designated period, the proceedings in the local criminal\ncourt must continue.\n (b) If a motion in a superior court is made by the defendant within\nthe designated period, such motion stays the proceedings in the local\ncriminal court until the entry of an order determining such motion.\n (c) If the superior court enters an order granting the motion, such\norder stays the proceedings in the local criminal court as provided in\nsubdivision two; and upon a subsequent indictment or dismissal of such\ncharge by the grand jury, the proceedings in the local criminal court\nterminate as provided in subdivision two.\n (d) If the superior court enters an order denying the motion, the\nproceedings in the local criminal court must continue.\n 4. Upon application of a defendant who on the basis of an order\nissued by a superior court pursuant to subdivision one is awaiting grand\njury action, and who, at the time of such order or subsequent thereto,\nhas been committed to the custody of the sheriff pending grand jury\naction, and who has been confined in such custody for a period of more\nthan forty-five days without the occurrence of any grand jury action or\ndisposition, the superior court which issued such order must release him\non his own recognizance unless:\n (a) The lack of a grand jury disposition during such period of\nconfinement was due to the defendant's request, action or condition, or\noccurred with his consent; or\n (b) The people have shown good cause why such order of release should\nnot be issued. Such good cause must consist of some compelling fact or\ncircumstance which precluded grand jury action within the prescribed\nperiod or rendered the same against the interest of justice.\n