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Article 170 - NY Criminal Procedure Law
PROCEEDINGS UPON INFORMATION, SIMPLIFIED TRAFFIC INFORMATION, PROSECUTOR`S INFORMATION AND MISDEMEANOR COMPLAINT FROM ARRAIGNMENT TO PLEA
Section |
Description |
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. |
170.15 | Removal of action from one local criminal court to another. |
170.20 | Divestiture of jurisdiction by indictment; removal of case to superior court at district attorney`s instance. |
170.25 | Divestiture of jurisdiction by indictment; removal of case to superior court at defendant`s instance. |
170.30 | Motion to dismiss information, simplified information, prosecutor`s information or misdemeanor complaint. |
170.35 | Motion to dismiss information, simplified information, prosecutor`s information or misdemeanor complaint;as defective. |
170.40 | Motion to dismiss information, simplified traffic information, prosecutor`s information or misdemeanor complaint; in furtherance of justice. |
170.45 | Motion to dismiss information, simplified traffic information, prosecutor`s information or misdemeanor complaint; procedure. |
170.50 | Motion in superior court to dismiss prosecutor`s information. |
170.55 | Adjournment in contemplation of dismissal. |
170.56 | Adjournment in contemplation of dismissal in cases involving marihuana. |
170.60 | Requirement of plea to information, simplified information or prosecutor`s information. |
170.65 | Replacement of misdemeanor complaint by information and waiver thereof. |
170.70 | Release of defendant upon failure to replace misdemeanor complaint by information. |
170.80 | Proceedings regarding certain prostitution charges; certain persons aged sixteen or seventeen. |
S 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.
1. Following the filing with a local criminal court of an information,
a simplified information, a prosecutor's information or a misdemeanor
complaint, the defendant must be arraigned thereon. The defendant must
appear personally at such arraignment except under the following
circumstances:
(a) In any case where a simplified information is filed and a
procedure is provided by law which is applicable to all offenses charged
in such simplified information and, if followed, would dispense with an
arraignment or personal appearance of the defendant, nothing contained
in this section affects the validity of such procedure or requires such
personal appearance;
(b) In any case in which the defendant's appearance is required by a
summons or an appearance ticket, the court in its discretion may, for
good cause shown, permit the defendant to appear by counsel instead of
in person.
2. Upon any arraignment at which the defendant is personally present,
the court must immediately inform him, or cause him to be informed in
its presence, of the charge or charges against him and must furnish him
with a copy of the accusatory instrument.
3. 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:
(a) To an adjournment for the purpose of obtaining counsel; and
(b) 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
(c) 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.
4. Except as provided in subdivision five, the court must inform the
defendant:
(a) Of his rights as prescribed in subdivision three; and the court
must not only accord him opportunity to exercise such rights but must
itself take such affirmative action as is necessary to effectuate them;
and
(b) Where a traffic infraction or a misdemeanor relating to traffic is
charged, that a judgment of conviction for such offense would in
addition to subjecting the defendant to the sentence provided therefor
render his license to drive a motor vehicle and his certificate of
registration subject to suspension and revocation as prescribed by law
and that a plea of guilty to such offense constitutes a conviction
thereof to the same extent as a verdict of guilty after trial; and
(c) Where the accusatory instrument is a simplified traffic
information, that the defendant has a right to have a supporting
deposition filed, as provided in section 100.25; and
(d) Where the accusatory instrument is a misdemeanor complaint, that
the defendant may not be prosecuted thereon or required to enter a plea
thereto unless he consents to the same, and that in the absence of such
consent such misdemeanor complaint will for prosecution purposes have to
be replaced and superseded by an information; and
(e) Where an information, a simplified information, a prosecutor's
information, a misdemeanor complaint, a felony complaint or an
indictment charges harassment in the second degree, as defined in
section 240.26 of the penal law, if there is a judgment of conviction
for such offense and such offense is determined to have been committed
against a member of the same family or household as the defendant, as
defined in subdivision one of section 530.11 of this chapter, the record
of such conviction shall be accessible for law enforcement purposes and
not sealed, as specified in paragraph (a) and subparagraph (vi) of
paragraph (d) of subdivision one of section 160.55 of this title; and
5. In any case in which a defendant has appeared for arraignment in
response to a summons or an appearance ticket, a printed statement upon
such process of any court instruction required by the provisions of
subdivision four, other than those specified in paragraphs (d) and (e)
thereof, constitutes compliance with such provisions with respect to the
instruction so printed.
6. If a defendant charged with a traffic infraction or infractions
only desires to proceed without the aid of counsel, the court must
permit him to do so. In all other cases, the court must permit the
defendant to proceed without the aid of counsel if it is satisfied that
he made such decision with knowledge of the significance thereof, but if
it is not so satisfied it may not proceed until the defendant is
provided with counsel, either of his own choosing or by assignment.
Regardless of the kind or nature of the charges, a defendant who
proceeds at the arraignment without counsel does not waive his right to
counsel, and the court must inform him that he continues to have such
right as well as all the rights specified in subdivision three which are
necessary to effectuate it, and that he may exercise such rights at any
stage of the action.
7. Upon the arraignment, the court, unless it intends to make a final
disposition of the action immediately thereafter, must, as provided in
subdivision one of section 530.20, issue a securing order either
releasing the defendant on his own recognizance or fixing bail for his
future appearance in the action; except that where a defendant appears
by counsel pursuant to paragraph (b) of subdivision one of this section,
the court must release the defendant on his own recognizance.
8. Notwithstanding any other provision of law to the contrary, a local
criminal court may not, at arraignment or within thirty days of
arraignment on a simplified traffic information charging a violation of
subdivision two, two-a, three, four or four-a of section eleven hundred
ninety-two of the vehicle and traffic law and upon which a notation has
been made pursuant to subdivision twelve of section eleven hundred
ninety-two of the vehicle and traffic law, accept a plea of guilty to a
violation of any subdivision of section eleven hundred ninety-two of the
vehicle and traffic law, nor to any other traffic infraction arising out
of the same incident, nor to any other traffic infraction, violation or
misdemeanor where the court is aware that such offense was charged
pursuant to an accident involving death or serious physical injury,
except upon written consent of the district attorney.
8-a. (a) Where an information, a simplified information, a
prosecutor's information, a misdemeanor complaint, a felony complaint or
an indictment charges harassment in the second degree as defined in
section 240.26 of the penal law, the people may serve upon the defendant
and file with the court a notice alleging that such offense was
committed against a member of the same family or household as the
defendant, as defined in subdivision one of section 530.11 of this
chapter. Such notice must be served within fifteen days after
arraignment on an information, a simplified information, a prosecutor's
information, a misdemeanor complaint, a felony complaint or an
indictment for such charge and before trial. Such notice must include
the name of the person alleged to be a member of the same family or
household as the defendant and specify the specific family or household
relationship as defined in subdivision one of section 530.11 of this
chapter.
(b) If a defendant, charged with harassment in the second degree as
defined in section 240.26 of the penal law stipulates, or admits in the
course of a plea disposition, that the person against whom the charged
offense is alleged to have been committed is a member of the same family
or household as the defendant, as defined in subdivision one of section
530.11 of this chapter, such allegation shall be deemed established for
purposes of paragraph (a) and subparagraph (vi) of paragraph (d) of
subdivision one of section 160.55 of this title. If the defendant denies
such allegation, the people may, by proof beyond a reasonable doubt,
prove as part of their case that the alleged victim of such offense was
a member of the same family or household as the defendant. In such
circumstances, the trier of fact shall make its determination with
respect to such allegation orally on the record or in writing.
9. Nothing contained in this section applies to the arraignment of
corporate defendants, which is governed generally by the provisions of
article six hundred.
S 170.15 Removal of action from one local criminal court to another.
Under circumstances prescribed in this section, a criminal action
based upon an information, a simplified information, a prosecutor's
information or a misdemeanor complaint may be removed from one local
criminal court to another:
1. When a defendant arrested by a police officer for an offense other
than a felony, allegedly committed in a city or town, has, owing to
special circumstances and pursuant to law, not been brought before the
particular local criminal court which by reason of the situs of such
offense has trial jurisdiction thereof, but, instead, before a local
criminal court which does not have trial jurisdiction thereof, and
therein stands charged with such offense by information, simplified
information or misdemeanor complaint, such local criminal court must
arraign him upon such accusatory instrument. If the defendant desires
to enter a plea of guilty thereto immediately following such
arraignment, such local criminal court must permit him to do so and must
thereafter conduct the action to judgment. Otherwise, it must remit the
action, together with all pertinent papers and documents, to the local
criminal court which has trial jurisdiction of the action, and the
latter court must then conduct such action to judgment or other final
disposition.
2. When a defendant arrested by a police officer for an offense other
than a felony has been brought before a superior court judge sitting as
a local criminal court for arraignment upon an information, simplified
information or misdemeanor complaint charging such offense, such judge
must, as a local criminal court, arraign the defendant upon such
accusatory instrument. Such judge must then remit the action, together
with all pertinent papers and documents, to a local criminal court
having trial jurisdiction thereof. The latter court must then conduct
such action to judgment or other final disposition.
3. At any time within the period provided by section 255.20, where a
defendant is arraigned upon an information, a simplified information, a
prosecutor's information or a misdemeanor complaint pending in a city
court, town court or a village court having trial jurisdiction thereof,
a judge of the county court of the county in which such city court, town
court or village court is located may, upon motion of the defendant or
the people, order that the action be transferred for disposition from
the court in which the matter is pending to another designated local
criminal court of the county, upon the ground that disposition thereof
within a reasonable time in the court from which removal is sought is
unlikely owing to:
(a) Death, disability or other incapacity or disqualification of all
of the judges of such court; or
(b) Inability of such court to form a jury in a case, in which the
defendant is entitled to and has requested a jury trial.
4. Notwithstanding any provision of this section to the contrary, 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
pending in a local criminal court, such court may, upon motion of the
defendant and with the consent of the district attorney, order that the
action be removed from the court in which the matter is pending to
another local criminal court in the same county which has been
designated a drug court by the chief administrator of the courts, and
such drug court may then conduct such action to judgement or other final
disposition; provided, however, that an order of removal issued under
this subdivision shall not take effect until five days after the date
the order is issued unless, prior to such effective date, the drug court
notifies the court that issued the order that:
(a) it will not accept the action, in which event the order shall not
take effect, or
(b) it will accept the action on a date prior to such effective date,
in which event the order shall take effect upon such prior date.
Upon providing notification pursuant to paragraph (a) or (b) of this
subdivision, the drug court shall promptly give notice to the defendant,
his or her counsel and the district attorney.
S 170.20 Divestiture of jurisdiction by indictment; removal of case to
superior court at district attorney`s instance.
1. If at any time before entry of a plea of guilty to or commencement
of a trial of a local criminal court accusatory instrument containing a
charge of misdemeanor, an indictment charging the defendant with such
misdemeanor is filed in a superior court, the local criminal court is
thereby divested of jurisdiction of such misdemeanor charge and all
proceedings therein with respect thereto are terminated.
2. At any time before entry of a plea of guilty to or commencement of
a trial of an accusatory instrument specified in subdivision one, the
district attorney may apply for an adjournment of the proceedings in the
local criminal court upon the ground that he intends to present the
misdemeanor charge in question to a grand jury with a view to
prosecuting it by indictment in a superior court. In such case, the
local criminal court must adjourn the proceedings to a date which
affords the district attorney reasonable opportunity to pursue such
action, and may subsequently grant such further adjournments for that
purpose as are reasonable under the circumstances. Following the
granting of such adjournment or adjournments, the proceedings must be as
follows:
(a) If such charge is presented to a grand jury within the designated
period and either an indictment or a dismissal of such charge results,
the local criminal court is thereby divested of jurisdiction of such
charge, and all proceedings in the local criminal court with respect
thereto are terminated.
(b) If the misdemeanor charge is not presented to a grand jury within
the designated period, the proceedings in the local criminal court must
continue.
S 170.25 Divestiture of jurisdiction by indictment; removal of case to
superior court at defendant`s instance.
1. At any time before entry of a plea of guilty to or commencement of
a trial of a local criminal court accusatory instrument containing a
charge of misdemeanor, a superior court having jurisdiction to prosecute
such misdemeanor charge by indictment may, upon motion of the defendant
made upon notice to the district attorney, showing good cause to believe
that the interests of justice so require, order that such charge be
prosecuted by indictment and that the district attorney present it to
the grand jury for such purpose.
2. Such order stays the proceedings in the local criminal court
pending submission of the charge to the grand jury. Upon the subsequent
filing of an indictment in the superior court, the proceedings in the
local criminal court terminate and the defendant must be required to
appear for arraignment upon the indictment in the manner prescribed in
subdivisions one and two of section 210.10. Upon the subsequent filing
of a grand jury dismissal of the charge, the proceedings in the local
criminal court terminate and the superior court must, if the defendant
is not at liberty on his own recognizance, discharge him from custody or
exonerate his bail, as the case may be.
3. At any time before entry of a plea of guilty to or commencement of
a trial of or within thirty days of arraignment on an accusatory
instrument specified in subdivision one, whichever occurs first, the
defendant may apply to the local criminal court for an adjournment of
the proceedings therein upon the ground that he intends to make a motion
in a superior court, pursuant to subdivision one, for an order that the
misdemeanor charge be prosecuted by indictment. In such case, the local
criminal court must adjourn the proceedings to a date which affords the
defendant reasonable opportunity to pursue such action, and may
subsequently grant such further adjournments for that purpose as are
reasonable under the circumstances. Following the granting of such
adjournment or adjournments, the proceedings must be as follows:
(a) If a motion in a superior court is not made by the defendant
within the designated period, the proceedings in the local criminal
court must continue.
(b) If a motion in a superior court is made by the defendant within
the designated period, such motion stays the proceedings in the local
criminal court until the entry of an order determining such motion.
(c) If the superior court enters an order granting the motion, such
order stays the proceedings in the local criminal court as provided in
subdivision two; and upon a subsequent indictment or dismissal of such
charge by the grand jury, the proceedings in the local criminal court
terminate as provided in subdivision two.
(d) If the superior court enters an order denying the motion, the
proceedings in the local criminal court must continue.
4. Upon application of a defendant who on the basis of an order
issued by a superior court pursuant to subdivision one is awaiting grand
jury action, and who, at the time of such order or subsequent thereto,
has been committed to the custody of the sheriff pending grand jury
action, and who has been confined in such custody for a period of more
than forty-five days without the occurrence of any grand jury action or
disposition, the superior court which issued such order must release him
on his own recognizance unless:
(a) The lack of a grand jury disposition during such period of
confinement was due to the defendant's request, action or condition, or
occurred with his consent; or
(b) The people have shown good cause why such order of release should
not be issued. Such good cause must consist of some compelling fact or
circumstance which precluded grand jury action within the prescribed
period or rendered the same against the interest of justice.
S 170.30 Motion to dismiss information, simplified information,
prosecutor`s information or misdemeanor complaint.
1. After arraignment upon an information, a simplified information, a
prosecutor's information or a misdemeanor complaint, the local criminal
court may, upon motion of the defendant, dismiss such instrument or any
count thereof upon the ground that:
(a) It is defective, within the meaning of section 170.35; or
(b) The defendant has received immunity from prosecution for the
offense charged, pursuant to sections 50.20 or 190.40; or
(c) The prosecution is barred by reason of a previous prosecution,
pursuant to section 40.20; or
(d) The prosecution is untimely, pursuant to section 30.10; or
(e) The defendant has been denied the right to a speedy trial; or
(f) There exists some other jurisdictional or legal impediment to
conviction of the defendant for the offense charged; or
(g) Dismissal is required in furtherance of justice, within the
meaning of section 170.40.
2. A motion pursuant to this section, except a motion pursuant to
paragraph (e) of subdivision one, should be made within the period
provided by section 255.20. A motion made pursuant to paragraph (e) of
subdivision one should be made prior to the commencement of trial or
entry of a plea of guilty.
3. Upon the motion, a defendant who is in a position adequately to
raise more than one ground in support thereof should raise every such
ground upon which he intends to challenge the accusatory instrument. A
subsequent motion based upon such a ground not so raised may be
summarily denied, although the court, in the interest of justice and for
good cause shown, may in its discretion entertain and dispose of such a
motion on the merits notwithstanding.
4. After arraignment upon an information, a simplified information, a
prosecutor's information or misdemeanor complaint on a charge of
prostitution pursuant to section 230.00 of the penal law or loitering
for the purposes of prostitution pursuant to subdivision two of section
240.37 of the penal law, provided that the person does not stand charged
with loitering for the purpose of patronizing a prostitute, where such
offense allegedly occurred when the person was sixteen or seventeen
years of age, 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.
S 170.35 Motion to dismiss information, simplified information,
prosecutor`s information or misdemeanor complaint; as defective.
1. An information, a simplified information, a prosecutor's
information or a misdemeanor complaint, or a count thereof, is defective
within the meaning of paragraph (a) of subdivision one of section 170.30
when:
(a) It is not sufficient on its face pursuant to the requirements of
section 100.40; provided that such an instrument or count may not be
dismissed as defective, but must instead be amended, where the defect or
irregularity is of a kind that may be cured by amendment and where the
people move to so amend; or
(b) The allegations demonstrate that the court does not have
jurisdiction of the offense charged; or
(c) The statute defining the offense charged is unconstitutional or
otherwise invalid.
2. An information is also defective when it is filed in replacement
of a misdemeanor complaint pursuant to section 170.65 but without
satisfying the requirements stated therein.
3. A prosecutor's information is also defective when:
(a) It is filed at the direction of a grand jury, pursuant to section
190.70, and the offense or offenses charged are not among those
authorized by such grand jury direction; or
(b) It is filed by the district attorney at his own instance,
pursuant to subdivision two of section 100.50, and the factual
allegations of the original information underlying it and any supporting
depositions are not legally sufficient to support the charge in the
prosecutor's information.
S 170.40 Motion to dismiss information, simplified traffic information,
prosecutor`s information or misdemeanor complaint; in
furtherance of justice.
1. An information, a simplified traffic information, a prosecutor's
information or a misdemeanor complaint, or any count thereof, may be
dismissed in the interest of justice, as provided in paragraph (g) of
subdivision one of section 170.30 when, even though there may be no
basis for dismissal as a matter of law upon any ground specified in
paragraphs (a) through (f) of said subdivision one of section 170.30,
such dismissal is required as a matter of judicial discretion by the
existence of some compelling factor, consideration or circumstance
clearly demonstrating that conviction or prosecution of the defendant
upon such accusatory instrument or count would constitute or result in
injustice. In determining whether such compelling factor, consideration,
or circumstance exists, the court must, to the extent applicable,
examine and consider, individually and collectively, the following:
(a) the seriousness and circumstances of the offense;
(b) the extent of harm caused by the offense;
(c) the evidence of guilt, whether admissible or inadmissible at
trial;
(d) the history, character and condition of the defendant;
(e) any exceptionally serious misconduct of law enforcement personnel
in the investigation, arrest and prosecution of the defendant;
(f) the purpose and effect of imposing upon the defendant a sentence
authorized for the offense;
(g) the impact of a dismissal on the safety or welfare of the
community;
(h) the impact of a dismissal upon the confidence of the public in
the criminal justice system;
(i) where the court deems it appropriate, the attitude of the
complainant or victim with respect to the motion;
(j) any other relevant fact indicating that a judgment of conviction
would serve no useful purpose.
2. An order dismissing an accusatory instrument specified in
subdivision one in the interest of justice may be issued upon motion of
the people or of the court itself as well as upon that of the defendant.
Upon issuing such an order, the court must set forth its reasons
therefor upon the record.
S 170.45 Motion to dismiss information, simplified traffic information,
prosecutor`s information or misdemeanor complaint; procedure.
The procedural rules prescribed in section 210.45 with respect to the
making, consideration and disposition of a motion to dismiss an
indictment are also applicable to a motion to dismiss an information, a
simplified traffic information, a prosecutor`s information or a
misdemeanor complaint.
S 170.50 Motion in superior court to dismiss prosecutor`s information.
1. At any time after arraignment in a local criminal court upon a
prosecutor's information filed at the direction of a grand jury and
before entry of a plea of guilty thereto or commencement of a trial
thereof, the local criminal court wherein the prosecutor's information
is filed may, upon motion of the defendant, dismiss such prosecutor's
information or a count thereof upon the ground that:
(a) The evidence before the grand jury was not legally sufficient to
support the charge; or
(b) The grand jury proceeding resulting in the filing of such
prosecutor's information was defective.
2. The criteria and procedures for consideration and disposition of
such motion are the same as those prescribed in sections 210.30 and
210.35, governing consideration and disposition of a motion to dismiss
an indictment on the ground of insufficiency of grand jury evidence or
of a defective grand jury proceeding; and, where appropriate, the
general procedural rules prescribed in section 210.45 for consideration
and disposition of a motion to dismiss an indictment are also
applicable.
3. Upon dismissing a prosecutor's information or a count thereof
pursuant to this section, the court may, upon application of the people,
in its discretion authorize the people to resubmit the charge or charges
to the same or another grand jury. In the absence of such
authorization, such charge or charges may not be resubmitted to a grand
jury. The rules prescribed in subdivisions eight and nine of section
210.45 concerning the discharge of a defendant from custody or
exoneration of bail in the absence of an authorization to resubmit an
indictment to a grand jury, and concerning the issuance of a securing
order and the effective period thereof where such an authorization is
issued, apply equally where a prosecutor's information is dismissed
pursuant to this section.
S 170.55 Adjournment in contemplation of dismissal.
1. Upon or after arraignment in a local criminal court upon an
information, a simplified information, a prosecutor's information or a
misdemeanor complaint, and before entry of a plea of guilty thereto or
commencement of a trial thereof, the court may, upon motion of the
people or the defendant and with the consent of the other party, or upon
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," as prescribed in subdivision two.
2. An adjournment in contemplation of dismissal is an adjournment of
the action without date ordered with a view to ultimate dismissal of the
accusatory instrument in furtherance of justice. Upon issuing such an
order, the court must release the defendant on his own recognizance.
Upon application of the people, made at any time not more than six
months, or in the case of a family offense as defined in subdivision one
of section 530.11 of this chapter, one year, after the issuance of such
order, the court may restore the case to the calendar upon a
determination that dismissal of the accusatory instrument would not be
in furtherance of justice, and the action must thereupon proceed. If the
case is not so restored within such six months or one year period, the
accusatory instrument is, at the expiration of such period, deemed to
have been dismissed by the court in furtherance of justice.
3. In conjunction with an adjournment in contemplation of dismissal
the court may issue a temporary order of protection pursuant to section
530.12 or 530.13 of this chapter, requiring the defendant to observe
certain specified conditions of conduct.
4. Where the local criminal court information, simplified information,
prosecutor's information, or misdemeanor complaint charges a crime or
violation between spouses or between parent and child, or between
members of the same family or household, as the term "members of the
same family or household" is defined in subdivision one of section
530.11 of this chapter, the court may as a condition of an adjournment
in contemplation of dismissal order, require that the defendant
participate in an educational program addressing the issues of spousal
abuse and family violence.
5. The court may grant an adjournment in contemplation of dismissal on
condition that the defendant participate in dispute resolution and
comply with any award or settlement resulting therefrom.
6. The court may as a condition of an adjournment in contemplation of
dismissal order, require the defendant to perform services for a public
or not-for-profit corporation, association, institution or agency. Such
condition may only be imposed where the defendant has consented to the
amount and conditions of such service. The court may not impose such
conditions in excess of the length of the adjournment.
6-a. The court may, as a condition of an authorized adjournment in
contemplation of dismissal, where the defendant has been charged with an
offense and the elements of such offense meet the criteria of an
"eligible offense" and such person qualified as an "eligible person" as
such terms are defined in section four hundred fifty-eight-l of the
social services law, require the defendant to participate in an
education reform program in accordance with section four hundred
fifty-eight-l of the social services law.
7. The court may, as a condition of an adjournment in contemplation of
dismissal order, where a defendant is under twenty-one years of age and
is charged with (a) a misdemeanor or misdemeanors other than section
eleven hundred ninety-two of the vehicle and traffic law, in which the
record indicates the consumption of alcohol by the defendant may have
been a contributing factor, or (b) a violation of paragraph (a) of
subdivision one of section sixty-five-b of the alcoholic beverage
control law, require the defendant to attend an alcohol awareness
program established pursuant to subdivision (a) of section 19.07 of the
mental hygiene law.
8. The granting of an adjournment in contemplation of dismissal shall
not be deemed to be a conviction or an admission of guilt. No person
shall suffer any disability or forfeiture as a result of such an order.
Upon the dismissal of the accusatory instrument pursuant to this
section, the arrest and prosecution shall be deemed a nullity and the
defendant shall be restored, in contemplation of law, to the status he
occupied before his arrest and prosecution.
9. Notwithstanding any other provision of this section, a court may
not issue an order adjourning an action in contemplation of dismissal if
the offense is for a violation of the vehicle and traffic law related to
the operation of a motor vehicle (except one related to parking,
stopping or standing), or a violation of a local law, rule or ordinance
related to the operation of a motor vehicle (except one related to
parking, stopping or standing), if such offense was committed by the
holder of a commercial driver's license or was committed in a commercial
motor vehicle, as defined in subdivision four of section five hundred
one-a of the vehicle and traffic law.
S 170.56 Adjournment in contemplation of dismissal in cases involving marihuana.
1. Upon or after arraignment in a local criminal court upon an
information, a prosecutor's information or a misdemeanor complaint,
where the sole remaining count or counts charge a violation or
violations of section 221.05, 221.10, 221.15, 221.35 or 221.40 of the
penal law and before the entry of a plea of guilty thereto or
commencement of a trial thereof, the court, upon motion of a defendant,
may order that all proceedings be suspended and the action adjourned in
contemplation of dismissal, or upon a finding that adjournment would not
be necessary or appropriate and the setting forth in the record of the
reasons for such findings, may dismiss in furtherance of justice the
accusatory instrument; provided, however, that the court may not order
such adjournment in contemplation of dismissal or dismiss the accusatory
instrument if: (a) the defendant has previously been granted such
adjournment in contemplation of dismissal, or (b) the defendant has
previously been granted a dismissal under this section, or (c) the
defendant has previously been convicted of any offense involving
controlled substances, or (d) the defendant has previously been
convicted of a crime and the district attorney does not consent or (e)
the defendant has previously been adjudicated a youthful offender on the
basis of any act or acts involving controlled substances and the
district attorney does not consent.
2. Upon ordering the action adjourned in contemplation of dismissal,
the court must set and specify such conditions for the adjournment as
may be appropriate, and such conditions may include placing the
defendant under the supervision of any public or private agency. At any
time prior to dismissal the court may modify the conditions or extend or
reduce the term of the adjournment, except that the total period of
adjournment shall not exceed twelve months. Upon violation of any
condition fixed by the court, the court may revoke its order and restore
the case to the calendar and the prosecution thereupon must proceed. If
the case is not so restored to the calendar during the period fixed by
the court, the accusatory instrument is, at the expiration of such
period, deemed to have been dismissed in the furtherance of justice.
3. Upon or after dismissal of such charges against a defendant not
previously convicted of a crime, the court shall order that all official
records and papers, relating to the defendant's arrest and prosecution,
whether on file with the court, a police agency, or the New York state
division of criminal justice services, be sealed and, except as
otherwise provided in paragraph (d) of subdivision one of section 160.50
of this chapter, not made available to any person or public or private
agency; except, such records shall be made available under order of a
court for the purpose of determining whether, in subsequent proceedings,
such person qualifies under this section for a dismissal or adjournment
in contemplation of dismissal of the accusatory instrument.
4. Upon the granting of an order pursuant to subdivision three, the
arrest and prosecution shall be deemed a nullity and the defendant shall
be restored, in contemplation of law, to the status he occupied before
his arrest and prosecution.
S 170.60 Requirement of plea to information, simplified information or
prosecutor`s information.
Unless an information, a simplified information or a prosecutor`s
information is dismissed or the criminal action thereon terminated or
abated pursuant to a provision of this article or some other provision
of law, the defendant must be required to enter a plea thereto.
S 170.65 Replacement of misdemeanor complaint by information and waiver thereof.
1. A defendant against whom a misdemeanor complaint is pending is not
required to enter a plea thereto. For purposes of prosecution, such
instrument must, except as provided in subdivision three, be replaced by
an information, and the defendant must be arraigned thereon. If the
misdemeanor complaint is supplemented by a supporting deposition and
such instruments taken together satisfy the requirements for a valid
information, such misdemeanor complaint is deemed to have been converted
to and to constitute a replacing information.
2. An information which replaces a misdemeanor complaint need not
charge the same offense or offenses, but at least one count thereof must
charge the commission by the defendant of an offense based upon conduct
which was the subject of the misdemeanor complaint. In addition, the
information may, subject to the rules of joinder, charge any other
offense which the factual allegations thereof or of any supporting
depositions accompanying it are legally sufficient to support, even
though such offense is not based upon conduct which was the subject of
the misdemeanor complaint.
3. A defendant who has been arraigned upon a misdemeanor complaint
may waive prosecution by information and consent to be prosecuted upon
the misdemeanor complaint. In such case, the defendant must be
required, either upon the date of the waiver or subsequent thereto, to
enter a plea to the misdemeanor complaint.
S 170.70 Release of defendant upon failure to replace misdemeanor
complaint by information.
Upon application of a defendant against whom a misdemeanor complaint
is pending in a local criminal court, and who, either at the time of his
arraignment thereon or subsequent thereto, has been committed to the
custody of the sheriff pending disposition of the action, and who has
been confined in such custody for a period of more than five days, not
including Sunday, without any information having been filed in
replacement of such misdemeanor complaint, the criminal court must
release the defendant on his own recognizance unless:
1. The defendant has waived prosecution by information and consented
to be prosecuted upon the misdemeanor complaint, pursuant to subdivision
three of section 170.65; or
2. The court is satisfied that there is good cause why such order of
release should not be issued. Such good cause must consist of some
compelling fact or circumstance which precluded replacement of the
misdemeanor complaint by an information or a prosecutor's information
within the prescribed period.
S 170.80 Proceedings regarding certain prostitution charges; certain
persons aged sixteen or seventeen.
1. Notwithstanding any other provision of law, at any time at or after
arraignment on a charge of prostitution pursuant to section 230.00 of
the penal law or loitering for the purposes of prostitution pursuant to
subdivision two of section 240.37 of the penal law, provided that the
person does not stand charged with loitering for the purpose of
patronizing a prostitute, where such offense allegedly occurred when the
person was sixteen or seventeen years of age except where, 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:
(a) conditionally convert such charge in accordance with subdivision
three of this section and retain it as a person in need of supervision
proceeding for all purposes, and shall make such proceeding fully
subject to the provisions and grant any relief available under article
seven of the family court act; and/or
(b) order the provision of any of the specialized services enumerated
in title eight-A of article six of the social services law, as may be
reasonably available.
2. In the event of a conviction by plea or verdict to such charge or
charges of prostitution or loitering for the purposes of prostitution as
described in subdivision one of this section, the court must find that
the person is a youthful offender for the purpose of such charge and
proceed in accordance with article seven hundred twenty of this chapter,
provided, however, that the available sentence shall be the sentence
that may be imposed for a violation as defined in subdivision three of
section 10.00 of the penal law. In such case, the records of the
investigation and proceedings relating to such charge shall be sealed in
accordance with section 720.35 of this chapter.
3. (a) When a charge of prostitution or loitering for the purposes of
prostitution has been conditionally converted to a person in need of
supervision proceeding pursuant to subdivision one of this section, the
defendant shall be deemed a "sexually exploited child" as defined in
subdivision one of section four hundred forty-seven-a of the social
services law and therefore shall not be considered an adult for purposes
related to the charges in the person in need of supervision proceeding.
Sections seven hundred eighty-one, seven hundred eighty-two, seven
hundred eighty-two-a, seven hundred eighty-three and seven hundred
eighty-four of the family court act shall apply to any proceeding
conditionally converted under this section.
(b) The court after hearing from the parties shall state the condition
or conditions of such conversion, which may include the individual's
participation in specialized services provided pursuant to title eight-A
of article six of the social services law and other appropriate services
available to persons in need of supervision in accordance with article
seven of the family court act.
(c)(i) The court may, upon written application by the people at any
time during the pendency of the person in need of supervision proceeding
or during any disposition thereof, but in no event later than the
individual's eighteenth birthday, restore the accusatory instrument if
the court is satisfied by competent proof that the individual, without
just cause, is not in substantial compliance with the condition or
conditions of the conversion.
(ii) Notice of such an application to restore an accusatory instrument
shall be served on the person and his or her counsel by the court. The
notice shall include a statement setting forth a reasonable description
of why the person is not in substantial compliance with the condition or
conditions of the conversion and a date upon which such person shall
appear before the court. The court shall afford the person the right to
counsel and the right to be heard. Upon such appearance, the court must
advise the person of the contents of the notice and the consequences of
a finding of failure to substantially comply with the conditions of
conversion. At the time of such appearance the court must ask the person
whether he or she wishes to make any statement with respect to such
alleged failure to substantially comply. In determining whether such
person has failed to substantially comply with the terms of the
conversion, the court shall conduct a hearing at which time such person
may cross-examine witnesses and present evidence on his or her own
behalf. Any findings the court shall make, shall be made on the court
record. If the court finds that such person did not substantially
comply, it may restore the accusatory instrument pursuant to
subparagraph (i) of this paragraph, modify the terms of conversion in
accordance with this section or otherwise continue such terms as in its
discretion it deems just and proper.
(iii) If such accusatory instrument is restored pursuant to
subparagraph (i) of this paragraph, the proceeding shall continue in
accordance with subdivision two of this section. If the individual does
not comply with services or does not return to court, the individual
shall be returned in accordance with the provisions of article seven of
the family court act.
4. At the conclusion of a person in need of supervision proceeding
pursuant to this section, all records of the investigation and
proceedings relating to such proceedings, including records created
before the charge was conditionally converted, shall be sealed in
accordance with section 720.35 of this chapter.
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