New York Law

Article 170 - NY Criminal Procedure Law

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• Part 2 ›
• Title H ›
• Article 170

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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