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New York Criminal Procedure - Article 210 - § 210.45 Motion to Dismiss Indictment; Procedure

Legal Research Home > New York Laws > Criminal Procedure > New York Criminal Procedure - Article 210 - § 210.45 Motion to Dismiss Indictment; Procedure


Criminal Procedure 
 
  § 210.45  Motion to dismiss indictment; procedure.
    1.   A motion to dismiss an indictment pursuant to section 210.20 must
  be made in writing and upon reasonable notice to the  people.    If  the
  motion  is  based  upon the existence or occurrence of facts, the motion
  papers must contain sworn allegations thereof, whether by the  defendant
  or  by  another  person or persons.  Such sworn allegations may be based
  upon personal knowledge of the affiant or upon information  and  belief,
  provided  that in the latter event the affiant must state the sources of
  such information and the grounds of such  belief.    The  defendant  may
  further submit documentary evidence supporting or tending to support the
  allegations of the moving papers.
    2.   The people may file with the court, and in such case must serve a
  copy thereof upon the defendant or his counsel,  an  answer  denying  or
  admitting  any  or  all of the allegations of the moving papers, and may
  further submit documentary evidence refuting or tending to  refute  such
  allegations.
    3.    After  all papers of both parties have been filed, and after all
  documentary evidence,  if  any,  has  been  submitted,  the  court  must
  consider  the  same for the purpose of determining whether the motion is
  determinable without a hearing to resolve questions of fact.
    4.  The court must grant the motion without conducting a hearing if:
    (a)  The moving papers allege a ground constituting  legal  basis  for
  the motion pursuant to subdivision one of section 210.20; and
    (b)   Such ground, if based upon the existence or occurrence of facts,
  is supported by sworn allegations of all facts essential to support  the
  motion; and
    (c)  The sworn allegations of fact essential to support the motion are
  either   conceded   by  the  people  to  be  true  or  are  conclusively
  substantiated by unquestionable documentary proof.
    5.  The court may deny the motion without conducting a hearing if:
    (a)  The moving papers do not allege  any  ground  constituting  legal
  basis for the motion pursuant to subdivision one of section 210.20; or
    (b)    The  motion is based upon the existence or occurrence of facts,
  and the moving papers do not contain sworn  allegations  supporting  all
  the essential facts; or
    (c)    An  allegation  of  fact  essential  to  support  the motion is
  conclusively refuted by unquestionable documentary proof.
    6.  If the court does not determine the motion pursuant to subdivision
  four or five, it must conduct  a  hearing  and  make  findings  of  fact
  essential to the determination thereof.  The defendant has a right to be
  present in person at such hearing but may waive such right.
    7.   Upon such a hearing, the defendant has the burden of proving by a
  preponderance of the  evidence  every  fact  essential  to  support  the
  motion.
    8.  When the court dismisses the entire indictment without authorizing
  resubmission  of  the  charge  or charges to a grand jury, it must order
  that the defendant be discharged from custody if he is in the custody of
  the sheriff, or if he is at liberty on bail it must exonerate the bail.
    9.   When the court dismisses the  entire  indictment  but  authorizes
  resubmission   of   the   charge  or  charges  to  a  grand  jury,  such
  authorization is, for purposes of this subdivision, deemed to constitute
  an order holding the defendant for the  action  of  a  grand  jury  with
  respect  to such charge or charges.  Such order must be accompanied by a
  securing order either releasing the defendant on his own recognizance or
  fixing bail or committing him to the  custody  of  the  sheriff  pending
  resubmission  of  the  case  to  the  grand  jury  and  the grand jury's
  disposition thereof.  Such securing order remains in  effect  until  the
  first to occur of any of the following:

    (a)  A statement to the court by the people that they do not intend to
  resubmit the case to a grand jury;
    (b)    Arraignment of the defendant upon an indictment or prosecutor's
  information filed as a result of resubmission of the  case  to  a  grand
  jury.    Upon  such  arraignment,  the arraigning court must issue a new
  securing order;
    (c)  The filing with the court of a grand jury dismissal of  the  case
  following resubmission thereof;
    (d)    The  expiration of a period of forty-five days from the date of
  issuance of the order; provided that such period  may,  for  good  cause
  shown,  be extended by the court to a designated subsequent date if such
  be necessary to accord the people reasonable opportunity to resubmit the
  case to a grand jury.
    Upon the termination  of  the  effectiveness  of  the  securing  order
  pursuant  to paragraph (a), (c) or (d), the court must immediately order
  that the defendant be discharged from custody if he is in the custody of
  the sheriff, or if he is at liberty on bail it must exonerate the  bail.
  Although  expiration  of  the  period of time specified in paragraph (d)
  without  any  resubmission  or  grand  jury  disposition  of  the   case
  terminates  the  effectiveness  of  the  securing  order,  it  does  not
  terminate the effectiveness of the order authorizing resubmission.
Section:  Previous  Article 210  210.05  210.10  210.15  210.16  210.20  210.25  210.30  210.35  210.40  210.43  210.45  210.46  210.47  210.50  Next

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Last modified: February 15, 2014