§ 210.45 — Motion to dismiss indictment; procedure

New York § 210.45

• Jurisdiction: New York
• Law CPL: Criminal Procedure
• Title I: Preliminary Proceedings In Superior Court
• Part 2: The Principal Proceedings
• Art. 210: Proceedings In Superior Court From Filing of Indictment to Plea

Text

§ 210.45 Motion to dismiss indictment; procedure.\n 1. A motion to dismiss an indictment pursuant to section 210.20 must\nbe made in writing and upon reasonable notice to the people. If the\nmotion is based upon the existence or occurrence of facts, the motion\npapers must contain sworn allegations thereof, whether by the defendant\nor by another person or persons. Such sworn allegations may be based\nupon personal knowledge of the affiant or upon information and belief,\nprovided that in the latter event the affiant must state the sources of\nsuch information and the grounds of such belief. The defendant may\nfurther submit documentary evidence supporting or tending to support the\nallegations of the moving papers.\n 2. The people may file with the court, and in such case must serve a\ncopy thereof upon the defendant or his counsel, an answer denying or\nadmitting any or all of the allegations of the moving papers, and may\nfurther submit documentary evidence refuting or tending to refute such\nallegations.\n 3. After all papers of both parties have been filed, and after all\ndocumentary evidence, if any, has been submitted, the court must\nconsider the same for the purpose of determining whether the motion is\ndeterminable without a hearing to resolve questions of fact.\n 4. The court must grant the motion without conducting a hearing if:\n (a) The moving papers allege a ground constituting legal basis for\nthe motion pursuant to subdivision one of section 210.20; and\n (b) Such ground, if based upon the existence or occurrence of facts,\nis supported by sworn allegations of all facts essential to support the\nmotion; and\n (c) The sworn allegations of fact essential to support the motion are\neither conceded by the people to be true or are conclusively\nsubstantiated by unquestionable documentary proof.\n 5. The court may deny the motion without conducting a hearing if:\n (a) The moving papers do not allege any ground constituting legal\nbasis for the motion pursuant to subdivision one of section 210.20; or\n (b) The motion is based upon the existence or occurrence of facts,\nand the moving papers do not contain sworn allegations supporting all\nthe essential facts; or\n (c) An allegation of fact essential to support the motion is\nconclusively refuted by unquestionable documentary proof.\n 6. If the court does not determine the motion pursuant to subdivision\nfour or five, it must conduct a hearing and make findings of fact\nessential to the determination thereof. The defendant has a right to be\npresent in person at such hearing but may waive such right.\n 7. Upon such a hearing, the defendant has the burden of proving by a\npreponderance of the evidence every fact essential to support the\nmotion.\n 8. When the court dismisses the entire indictment without authorizing\nresubmission of the charge or charges to a grand jury, it must order\nthat the defendant be discharged from custody if he is in the custody of\nthe sheriff, or if he is at liberty on bail it must exonerate the bail.\n 9. When the court dismisses the entire indictment but authorizes\nresubmission of the charge or charges to a grand jury, such\nauthorization is, for purposes of this subdivision, deemed to constitute\nan order holding the defendant for the action of a grand jury with\nrespect to such charge or charges. Such order must be accompanied by a\nsecuring order either releasing the defendant on his own recognizance or\nfixing bail or committing him to the custody of the sheriff pending\nresubmission of the case to the grand jury and the grand jury's\ndisposition thereof. Such securing order remains in effect until the\nfirst to occur of any of the following:\n (a) A statement to the court by the people that they do not intend to\nresubmit the case to a grand jury;\n (b) Arraignment of the defendant upon an indictment or prosecutor's\ninformation filed as a result of resubmission of the case to a grand\njury. Upon such arraignment, the arraigning court must issue a new\nsecuring order;\n (c) The filing with the court of a grand jury dismissal of the case\nfollowing resubmission thereof;\n (d) The expiration of a period of forty-five days from the date of\nissuance of the order; provided that such period may, for good cause\nshown, be extended by the court to a designated subsequent date if such\nbe necessary to accord the people reasonable opportunity to resubmit the\ncase to a grand jury.\n Upon the termination of the effectiveness of the securing order\npursuant to paragraph (a), (c) or (d), the court must immediately order\nthat the defendant be discharged from custody if he is in the custody of\nthe sheriff, or if he is at liberty on bail it must exonerate the bail.\nAlthough expiration of the period of time specified in paragraph (d)\nwithout any resubmission or grand jury disposition of the case\nterminates the effectiveness of the securing order, it does not\nterminate the effectiveness of the order authorizing resubmission.\n