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This entry was published on 2014-09-22
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SECTION 180.85
Termination of prosecution
Criminal Procedure (CPL) CHAPTER 11-A, PART 2, TITLE H, ARTICLE 180
§ 180.85 Termination of prosecution.

1. After arraignment of a defendant upon a felony complaint, other
than a felony complaint charging an offense defined in section 125.10,
125.15, 125.20, 125.25, 125.26 or 125.27 of the penal law, either party
or the local criminal court or superior court before which the action is
pending, on its own motion, may move in accordance with the provisions
of this section for an order terminating prosecution of the charges
contained in such felony complaint on consent of the parties.

2. A motion to terminate a prosecution pursuant to this section may
only be made where the count or counts of the felony complaint have not
been presented to a grand jury or otherwise disposed of in accordance
with this chapter. Such motion shall be filed in writing with the local
criminal court or superior court in which the felony complaint is
pending not earlier than twelve months following the date of arraignment
on such felony complaint. Upon the filing of such motion, the court
shall fix a return date and provide the parties with at least thirty
days' written notice of the motion and return date.

3. Where, upon motion to terminate a prosecution pursuant to this
section, both parties consent to such termination, the court, on the
return date of such motion, shall enter an order terminating such
prosecution. For purposes of this subdivision, a party that is given
written notice of a motion to terminate a prosecution shall be deemed to
consent to such termination unless, prior to the return date of such
motion, such party files a notice of opposition thereto with the court.
Except as otherwise provided in subdivision four, where such a notice of
opposition is filed, the court, on the return date of the motion, shall
enter an order denying the motion to terminate the prosecution.

4. Notwithstanding any other provision of this section, where the
people file a notice of opposition pursuant to subdivision three, the
court, on the return date of the motion, may defer disposition of such
motion for a period of forty-five days. In such event, if the count or
counts of such felony complaint are presented to a grand jury or
otherwise disposed of within such period, the court, upon the expiration
thereof, shall enter an order denying the motion to terminate the
prosecution. If such count or counts are not presented to a grand jury
or otherwise disposed of within such period, the court, upon the
expiration thereof, shall enter an order terminating the prosecution
unless, within the forty-five day period, the people, on at least five
days' written notice to the defendant, show good cause for their failure
to present or otherwise dispose of such count or counts. If such good
cause is shown, the court, upon expiration of the forty-five day period,
shall enter an order denying the motion to terminate the prosecution.

5. Notwithstanding any other provision of law, the defendant's
appearance in court on the return date of the motion or on any other
date shall not be required as a prerequisite to entry of an order under
this section.

6. The period from the filing of a motion pursuant to this section
until entry of an order disposing of such motion shall not, by reason of
such motion, be considered a period of delay for purposes of subdivision
four of section 30.30, nor shall such period, by reason of such motion,
be excluded in computing the time within which the people must be ready
for trial pursuant to such section 30.30.

7. Where a prosecution is terminated pursuant to this section, nothing
contained herein shall preclude the people from subsequently filing an
indictment charging the same count or counts provided such filing is in
accordance with the provisions of this section, article thirty and any
other relevant provisions of this chapter. Where the people indicate
their intention to seek an indictment following the entry of an order
terminating a prosecution pursuant to this section, the court shall,
notwithstanding any provision of section 160.50 to the contrary, stay
sealing under that section for a reasonable period not to exceed thirty
days to permit the people an opportunity to pursue such indictment.

8. Where an order denying a party's motion to terminate a prosecution
is entered pursuant to this section, such party may not file a
subsequent motion to terminate the prosecution pursuant to this section
for at least six months from the date on which such order is entered.

9. Notwithstanding any other provision of this section, where a motion
to terminate a prosecution is filed with a local criminal court pursuant
to subdivision two, and, prior to the determination thereof, such court
is divested of jurisdiction by the filing of an indictment charging the
offense or offenses contained in the felony complaint, such motion shall
be deemed to have been denied as of the date of such divestiture.

10. The chief administrator of the courts, in consultation with the
director of the division of criminal justice services and
representatives of appropriate prosecutorial and criminal defense
organizations in the state, shall adopt forms for the motion to
terminate a prosecution authorized by subdivision one and for the notice
of opposition specified in subdivision three.