§ 180.85 — Termination of prosecution

New York § 180.85

• Jurisdiction: New York
• Law CPL: Criminal Procedure
• Title H: Preliminary Proceedings In Local Criminal Court
• Part 2: The Principal Proceedings
• Art. 180: Proceedings Upon Felony Complaint From Arraignment Thereon Through Disposition Thereof

Text

§ 180.85 Termination of prosecution.\n 1. After arraignment of a defendant upon a felony complaint, other\nthan a felony complaint charging an offense defined in section 125.10,\n125.15, 125.20, 125.25, 125.26 or 125.27 of the penal law, either party\nor the local criminal court or superior court before which the action is\npending, on its own motion, may move in accordance with the provisions\nof this section for an order terminating prosecution of the charges\ncontained in such felony complaint on consent of the parties.\n 2. A motion to terminate a prosecution pursuant to this section may\nonly be made where the count or counts of the felony complaint have not\nbeen presented to a grand jury or otherwise disposed of in accordance\nwith this chapter. Such motion shall be filed in writing with the local\ncriminal court or superior court in which the felony complaint is\npending not earlier than twelve months following the date of arraignment\non such felony complaint. Upon the filing of such motion, the court\nshall fix a return date and provide the parties with at least thirty\ndays' written notice of the motion and return date.\n 3. Where, upon motion to terminate a prosecution pursuant to this\nsection, both parties consent to such termination, the court, on the\nreturn date of such motion, shall enter an order terminating such\nprosecution. For purposes of this subdivision, a party that is given\nwritten notice of a motion to terminate a prosecution shall be deemed to\nconsent to such termination unless, prior to the return date of such\nmotion, such party files a notice of opposition thereto with the court.\nExcept as otherwise provided in subdivision four, where such a notice of\nopposition is filed, the court, on the return date of the motion, shall\nenter an order denying the motion to terminate the prosecution.\n 4. Notwithstanding any other provision of this section, where the\npeople file a notice of opposition pursuant to subdivision three, the\ncourt, on the return date of the motion, may defer disposition of such\nmotion for a period of forty-five days. In such event, if the count or\ncounts of such felony complaint are presented to a grand jury or\notherwise disposed of within such period, the court, upon the expiration\nthereof, shall enter an order denying the motion to terminate the\nprosecution. If such count or counts are not presented to a grand jury\nor otherwise disposed of within such period, the court, upon the\nexpiration thereof, shall enter an order terminating the prosecution\nunless, within the forty-five day period, the people, on at least five\ndays' written notice to the defendant, show good cause for their failure\nto present or otherwise dispose of such count or counts. If such good\ncause is shown, the court, upon expiration of the forty-five day period,\nshall enter an order denying the motion to terminate the prosecution.\n 5. Notwithstanding any other provision of law, the defendant's\nappearance in court on the return date of the motion or on any other\ndate shall not be required as a prerequisite to entry of an order under\nthis section.\n 6. The period from the filing of a motion pursuant to this section\nuntil entry of an order disposing of such motion shall not, by reason of\nsuch motion, be considered a period of delay for purposes of subdivision\nfour of section 30.30, nor shall such period, by reason of such motion,\nbe excluded in computing the time within which the people must be ready\nfor trial pursuant to such section 30.30.\n 7. Where a prosecution is terminated pursuant to this section, nothing\ncontained herein shall preclude the people from subsequently filing an\nindictment charging the same count or counts provided such filing is in\naccordance with the provisions of this section, article thirty and any\nother relevant provisions of this chapter. Where the people indicate\ntheir intention to seek an indictment following the entry of an order\nterminating a prosecution pursuant to this section, the court shall,\nnotwithstanding any provision of section 160.50 to the contrary, stay\nsealing under that section for a reasonable period not to exceed thirty\ndays to permit the people an opportunity to pursue such indictment.\n 8. Where an order denying a party's motion to terminate a prosecution\nis entered pursuant to this section, such party may not file a\nsubsequent motion to terminate the prosecution pursuant to this section\nfor at least six months from the date on which such order is entered.\n 9. Notwithstanding any other provision of this section, where a motion\nto terminate a prosecution is filed with a local criminal court pursuant\nto subdivision two, and, prior to the determination thereof, such court\nis divested of jurisdiction by the filing of an indictment charging the\noffense or offenses contained in the felony complaint, such motion shall\nbe deemed to have been denied as of the date of such divestiture.\n 10. The chief administrator of the courts, in consultation with the\ndirector of the division of criminal justice services and\nrepresentatives of appropriate prosecutorial and criminal defense\norganizations in the state, shall adopt forms for the motion to\nterminate a prosecution authorized by subdivision one and for the notice\nof opposition specified in subdivision three.\n