Legislation

Search OpenLegislation Statutes
This entry was published on 2014-09-22
The selection dates indicate all change milestones for the entire volume, not just the location being viewed. Specifying a milestone date will retrieve the most recent version of the location before that date.
SECTION 170.25
Divestiture of jurisdiction by indictment; removal of case to superior court at defendant's instance
Criminal Procedure (CPL) CHAPTER 11-A, PART 2, TITLE H, ARTICLE 170
§ 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.