New York State Codes - CPL - Criminal Procedure
(As of July 2023)
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Criminal Procedure
PART ONE -- GENERAL PROVISIONS
TITLE A--SHORT TITLE, APPLICABILITY AND DEFINITIONS
ARTICLE 1--SHORT TITLE, APPLICABILITY AND DEFINITIONS
Section 1.00 Short title.
1.10 Applicability of chapter to actions and matter occurring before and after effective date.
1.20 Definitions of terms of general use in this chapter.
§ 1.00 Short title.
This chapter shall be known as the criminal procedure law, and may be cited as "CPL".
1.10 Applicability of chapter to actions and matter occurring before and after effective date.
1.20 Definitions of terms of general use in this chapter.
§ 1.10 Applicability of chapter to actions and matter occurring before and after effective date.
1. The provisions of this chapter apply exclusively to:
(a) All criminal actions and proceedings commenced upon or after the effective date thereof and all appeals and other post-judgment proceedings relating or attaching thereto; and
(b) All matters of criminal procedure prescribed in this chapter which do not constitute a part of any particular action or case, occurring upon or after such effective date.
2. The provisions of this chapter apply to (a) all criminal actions and proceedings commenced prior to the effective date thereof but still pending on such date, and (b) all appeals and other post-judgment proceedings commenced upon or after such effective date which relate or attach to criminal actions and proceedings commenced or concluded prior to such effective date; provided that, if application of such provisions in any particular case would not be feasible or would work injustice, the provisions of the code of criminal procedure apply thereto.
3. The provisions of this chapter do not impair or render ineffectual any proceedings or procedural matters which occurred prior to the effective date thereof.
§ 1.20 Definitions of terms of general use in this chapter.
Except where different meanings are expressly specified in subsequent provisions of this chapter, the term definitions contained in section 10.00 of the penal law are applicable to this chapter, and, in addition, the following terms have the following meanings:
1. "Accusatory instrument" means: (a) an indictment, an indictment ordered reduced pursuant to subdivision one-a of section 210.20 of this chapter, an information, a simplified information, a prosecutor's information, a superior court information, a misdemeanor complaint or a felony complaint. Every accusatory instrument, regardless of the person designated therein as accuser, constitutes an accusation on behalf of the state as plaintiff and must be entitled "the people of the state of New York" against a designated person, known as the defendant; and
(b) an appearance ticket issued for a parking infraction when (i) such ticket is based on personal knowledge or information and belief of the police officer or other public servant who issues the ticket, (ii) the police officer or other public servant who issues such ticket verifies that false statements made therein are punishable as a class A misdemeanor, (iii) the infraction or infractions contained therein are stated in detail and not in conclusory terms so as to provide the defendant with sufficient notice including, but not limited, to the applicable provision of law allegedly violated, and the date, time and particular place of the alleged infraction, and (iv) such ticket contains: (1) the license plate designation of the ticketed vehicle, (2) the license plate type of the ticketed vehicle, (3) the expiration of the ticketed vehicle's registration, (4) the make or model of the ticketed vehicle, and (5) the body type of the ticketed vehicle, provided, however, that where the plate type or the expiration date are not shown on either the registration plates or sticker of a vehicle or where the registration sticker is covered, faded, defaced or mutilated so that it is unreadable, the plate type or the expiration date may be omitted, provided, further, however, that such condition must be so described and inserted on the instrument.
2. "Local criminal court accusatory instrument" means any accusatory instrument other than an indictment or a superior court information.
3. "Indictment" means a written accusation by a grand jury, more fully defined and described in article two hundred, filed with a superior court, which charges one or more defendants with the commission of one or more offenses, at least one of which is a crime, and which serves as a basis for prosecution thereof.
3-a. "Superior court information" means a written accusation by a district attorney more fully defined and described in articles one hundred ninety-five and two hundred, filed with a superior court pursuant to article one hundred ninety-five, which charges one or more defendants with the commission of one or more offenses, at least one of which is a crime, and which serves as a basis for prosecution thereof.
4. "Information" means a verified written accusation by a person, more fully defined and described in article one hundred, filed with a local criminal court, which charges one or more defendants with the commission of one or more offenses, none of which is a felony, and which may serve both to commence a criminal action and as a basis for prosecution thereof.
* 5. "Simplified traffic information" means a written accusation, more fully defined and described in article one hundred, by a police officer or other public servant authorized by law to issue same, filed with a local criminal court, which, being in a brief or simplified form prescribed by the commissioner of motor vehicles, charges a person with one or more traffic infractions or misdemeanors relating to traffic, and which may serve both to commence a criminal action for such offense and as a basis for prosecution thereof.
* NB There are 2 sb 5's -- cannot be put together
* 5. (a) "Simplified information" means a simplified traffic information, a simplified parks information, or a simplified environmental conservation information.
(b) "Simplified traffic information" means a written accusation by a police officer, or other public servant authorized by law to issue same, more fully defined and described in article one hundred, filed with a local criminal court, which, being in a brief or simplified form prescribed by the commissioner of motor vehicles, charges a person with one or more traffic infractions or misdemeanors relating to traffic, and which may serve both to commence a criminal action for such offense and as a basis for prosecution thereof.
(c) "Simplified parks information" means a written accusation by a police officer, or other public servant authorized by law to issue same, filed with a local criminal court, which, being in a brief or simplified form prescribed by the commissioner of parks and recreation, charges a person with one or more offenses, other than a felony, for which a uniform simplified parks information may be issued pursuant to the parks and recreation law and the navigation law, and which may serve both to commence a criminal action for such offense and as a basis for prosecution thereof.
(d) "Simplified environmental conservation information" means a written accusation by a police officer, or other public servant authorized by law to issue same, filed with a local criminal court, which being in a brief or simplified form prescribed by the commissioner of environmental conservation, charges a person with one or more offenses, other than a felony, for which a uniform simplified environmental conservation simplified information may be issued pursuant to the environmental conservation law, and which may serve both to commence a criminal action for such offense and as a basis for prosecution thereof.
* NB There are 2 sb 5's -- cannot be put together
6. "Prosecutor's information" means a written accusation by a district attorney, more fully defined and described in article one hundred, filed with a local criminal court, which charges one or more defendants with the commission of one or more offenses, none of which is a felony, and which serves as a basis for prosecution thereof.
7. "Misdemeanor complaint" means a verified written accusation by a person, more fully defined and described in article one hundred, filed with a local criminal court, which charges one or more defendants with the commission of one or more offenses, at least one of which is a misdemeanor and none of which is a felony, and which serves to commence a criminal action but which may not, except upon the defendant's consent, serve as a basis for prosecution of the offenses charged therein.
8. "Felony complaint" means a verified written accusation by a person, more fully defined and described in article one hundred, filed with a local criminal court, which charges one or more defendants with the commission of one or more felonies and which serves to commence a criminal action but not as a basis for prosecution thereof.
9. "Arraignment" means the occasion upon which a defendant against whom an accusatory instrument has been filed appears before the court in which the criminal action is pending for the purpose of having such court acquire and exercise control over his person with respect to such accusatory instrument and of setting the course of further proceedings in the action.
10. "Plea," in addition to its ordinary meaning as prescribed in sections 220.10 and 340.20, means, where appropriate, the occasion upon which a defendant enters such a plea to an accusatory instrument.
11. "Trial." A jury trial commences with the selection of the jury and includes all further proceedings through the rendition of a verdict. A non-jury trial commences with the first opening address, if there be any, and, if not, when the first witness is sworn, and includes all further proceedings through the rendition of a verdict.
12. "Verdict" means the announcement by a jury in the case of a jury trial, or by the court in the case of a non-jury trial, of its decision upon the defendant's guilt or innocence of the charges submitted to or considered by it.
13. "Conviction" means the entry of a plea of guilty to, or a verdict of guilty upon, an accusatory instrument other than a felony complaint, or to one or more counts of such instrument.
14. "Sentence" means the imposition and entry of sentence upon a conviction.
15. "Judgment." A judgment is comprised of a conviction and the sentence imposed thereon and is completed by imposition and entry of the sentence.
16. "Criminal action." A criminal action (a) commences with the filing of an accusatory instrument against a defendant in a criminal court, as specified in subdivision seventeen; (b) includes the filing of all further accusatory instruments directly derived from the initial one, and all proceedings, orders and motions conducted or made by a criminal court in the course of disposing of any such accusatory instrument, or which, regardless of the court in which they occurred or were made, could properly be considered as a part of the record of the case by an appellate court upon an appeal from a judgment of conviction; and (c) terminates with the imposition of sentence or some other final disposition in a criminal court of the last accusatory instrument filed in the case.
17. "Commencement of criminal action." A criminal action is commenced by the filing of an accusatory instrument against a defendant in a criminal court, and, if more than one accusatory instrument is filed in the course of the action, it commences when the first of such instruments is filed.
18. "Criminal proceeding" means any proceeding which (a) constitutes a part of a criminal action or (b) occurs in a criminal court and is related to a prospective, pending or completed criminal action, either of this state or of any other jurisdiction, or involves a criminal investigation.
19. "Criminal court" means any court defined as such by section 10.10.
20. "Superior court" means any court defined as such by subdivision two of section 10.10.
21. "Local criminal court" means any court defined as such by subdivision three of section 10.10.
22. "Intermediate appellate court" means any court possessing appellate jurisdiction, other than the court of appeals.
23. "Judge" means any judicial officer who is a member of or constitutes a court, whether referred to in another provision of law as a justice or by any other title.
24. "Trial jurisdiction." A criminal court has "trial jurisdiction" of an offense when an indictment or an information charging such offense may properly be filed with such court, and when such court has authority to accept a plea to, try or otherwise finally dispose of such accusatory instrument.
25. "Preliminary jurisdiction." A criminal court has "preliminary jurisdiction" of an offense when, regardless of whether it has trial jurisdiction thereof, a criminal action for such offense may be commenced therein, and when such court may conduct proceedings with respect thereto which lead or may lead to prosecution and final disposition of the action in a court having trial jurisdiction thereof.
26. "Appearance ticket" means a written notice issued by a public servant, more fully defined in section 150.10, requiring a person to appear before a local criminal court in connection with an accusatory instrument to be filed against him therein.
27. "Summons" means a process of a local criminal court or superior court, more fully defined in section 130.10, requiring a defendant to appear before such court for the purpose of arraignment upon an accusatory instrument filed therewith by which a criminal action against him has been commenced.
28. "Warrant of arrest" means a process of a local criminal court, more fully defined in section 120.10, directing a police officer to arrest a defendant and to bring him before such court for the purpose of arraignment upon an accusatory instrument filed therewith by which a criminal action against him has been commenced.
29. "Superior court warrant of arrest" means a process of a superior court directing a police officer to arrest a defendant and to bring him before such court for the purpose of arraignment upon an indictment filed therewith by which a criminal action against him has been commenced.
30. "Bench warrant" means a process of a criminal court in which a criminal action is pending, directing a police officer, or a uniformed court officer, pursuant to paragraph b of subdivision two of section 530.70 of this chapter, to take into custody a defendant in such action who has previously been arraigned upon the accusatory instrument by which the action was commenced, and to bring him before such court. The function of a bench warrant is to achieve the court appearance of a defendant in a pending criminal action for some purpose other than his initial arraignment in the action.
31. "Prosecutor" means a district attorney or any other public servant who represents the people in a criminal action.
32. "District attorney" means a district attorney, an assistant district attorney or a special district attorney, and, where appropriate, the attorney general, an assistant attorney general, a deputy attorney general, a special deputy attorney general, or the special prosecutor and inspector general for the protection of people with special needs or his or her assistants when acting pursuant to their duties in matters arising under article twenty of the executive law, or the inspector general of New York for transportation or his or her deputies when acting pursuant to article four-B of the executive law.
33. "Peace officer" means a person listed in section 2.10 of this chapter.
34. "Police officer." The following persons are police officers:
(a) A sworn member of the division of state police;
* (b) Sheriffs, under-sheriffs and deputy sheriffs of counties outside of New York City;
* NB Effective until October 16, 2023
* (b) Sheriffs, under-sheriffs and deputy sheriffs of counties outside of New York City where such department is certified in accordance with paragraph (d) of subdivision one of section eight hundred forty-six-h of the executive law;
* NB Effective October 16, 2023
* (c) A sworn officer of an authorized county or county parkway police department;
* NB Effective until October 16, 2023
* (c) A sworn officer of an authorized county or county parkway police department where such department is certified in accordance with paragraph (d) of subdivision one of section eight hundred forty-six-h of the executive law;
* NB Effective October 16, 2023
* (d) A sworn officer of an authorized police department or force of a city, town, village or police district;
* NB Effective until October 16, 2023
* (d) A sworn officer of an authorized police department or force of a city, town, village or police district where such department or force is certified in accordance with paragraph (d) of subdivision one of section eight hundred forty-six-h of the executive law;
* NB Effective October 16, 2023
* (e) A sworn officer of an authorized police department of an authority or a sworn officer of the state regional park police in the office of parks and recreation;
* NB Effective until October 16, 2023
* (e) A sworn officer of an authorized police department of an authority or a sworn officer of the state regional park police in the office of parks and recreation where such department or force is certified in accordance with paragraph (d) of subdivision one of section eight hundred forty-six-h of the executive law;
* NB Effective October 16, 2023
* (f) A sworn officer of the capital police force of the office of general services;
* NB Effective until October 16, 2023
* (f) A sworn officer of the capital police force of the office of general services where such force is certified in accordance with paragraph (d) of subdivision one of section eight hundred forty-six-h of the executive law;
* NB Effective October 16, 2023
(g) An investigator employed in the office of a district attorney;
(h) An investigator employed by a commission created by an interstate compact, or by section six of chapter eight hundred eighty-two of the laws of nineteen hundred fifty-three, constituting the waterfront commission act, as amended, who is, to a substantial extent, engaged in the enforcement of the criminal laws of this state;
(i) The chief and deputy fire marshals, the supervising fire marshals and the fire marshals of the bureau of fire investigation of the New York City fire department;
* (j) A sworn officer of the division of law enforcement in the department of environmental conservation;
* NB Effective until October 16, 2023
* (j) A sworn officer of the division of law enforcement in the department of environmental conservation where such division is certified in accordance with paragraph (d) of subdivision one of section eight hundred forty-six-h of the executive law;
* NB Effective October 16, 2023
* (k) A sworn officer of a police force of a public authority created by an interstate compact, or by section six of chapter eight hundred eighty-two of the laws of nineteen hundred fifty-three, constituting the waterfront commission act, as amended;
* NB Effective until October 16, 2023
* (k) A sworn officer of a police force of a public authority created by an interstate compact, or by section six of chapter eight hundred eighty-two of the laws of nineteen hundred fifty-three, constituting the waterfront commission act, as amended, where such force is certified in accordance with paragraph (d) of subdivision one of section eight hundred forty-six-h of the executive law;
* NB Effective October 16, 2023
(m) A special investigator employed in the statewide organized crime task force, while performing his assigned duties pursuant to section seventy-a of the executive law.
(n) A sworn officer of the Westchester county department of public safety services who, on or prior to June thirtieth, nineteen hundred seventy-nine was appointed as a sworn officer of the division of Westchester county parkway police or who was appointed on or after July first, nineteen hundred seventy-nine to the title of police officer, sergeant, lieutenant, captain or inspector or who, on or prior to January thirty-first, nineteen hundred eighty-three, was appointed as a Westchester county deputy sheriff.
* (o) A sworn officer of the water-supply police employed by the city of New York, appointed to protect the sources, works, and transmission of water supplied to the city of New York, and to protect persons on or in the vicinity of such water sources, works, and transmission.
* NB Effective until October 16, 2023
* (o) A sworn officer of the New York city department of environmental protection police, employed by the city of New York, appointed to protect the sources, works, and transmission of water supplied to the city of New York, and to protect persons on or in the vicinity of such water sources, works, and transmission where such department is certified in accordance with paragraph (d) of subdivision one of section eight hundred forty-six-h of the executive law;
* NB Effective October 16, 2023
* (p) Persons appointed as railroad police officers pursuant to section eighty-eight of the railroad law.
* NB Effective until October 16, 2023
* (p) Persons appointed as railroad police officers pursuant to section eighty-eight of the railroad law where such department or force is certified in accordance with paragraph (d) of subdivision one of section eight hundred forty-six-h of the executive law;
* NB Effective October 16, 2023
(q) An employee of the department of taxation and finance (i) assigned to enforcement of the taxes imposed under or pursuant to the authority of article twelve-A of the tax law and administered by the commissioner of taxation and finance, taxes imposed under or pursuant to the authority of article eighteen of the tax law and administered by the commissioner, taxes imposed under article twenty of the tax law, or sales or compensating use taxes relating to petroleum products or cigarettes imposed under article twenty-eight or pursuant to the authority of article twenty-nine of the tax law and administered by the commissioner or (ii) designated as a revenue crimes specialist and assigned to the enforcement of the taxes described in paragraph (c) of subdivision four of section 2.10 of this title, for the purpose of applying for and executing search warrants under article six hundred ninety of this chapter, for the purpose of acting as a claiming agent under article thirteen-A of the civil practice law and rules in connection with the enforcement of the taxes referred to above and for the purpose of executing warrants of arrest relating to the respective crimes specified in subdivision four of section 2.10 of this title.
(r) Any employee of the Suffolk county department of parks who is appointed as a Suffolk county park police officer.
* (s) A university police officer appointed by the state university pursuant to paragraph 1 of subdivision two of section three hundred fifty-five of the education law.
* NB Effective until October 16, 2023
* (s) A university police officer appointed by the state university pursuant to paragraph 1 of subdivision two of section three hundred fifty-five of the education law where such department or force is certified in accordance with paragraph (d) of subdivision one of section eight hundred forty-six-h of the executive law;
* NB Effective October 16, 2023
(t) A sworn officer of the department of public safety of the Buffalo municipal housing authority who has achieved or been granted the status of sworn police officer and has been certified by the division of criminal justice services as successfully completing an approved basic course for police officers.
* (u) Persons appointed as Indian police officers pursuant to section one hundred fourteen of the Indian law.
* NB Effective until October 16, 2023
* (u) Persons appointed as Indian police officers pursuant to section one hundred fourteen of the Indian law where such department or force is certified in accordance with paragraph (d) of subdivision one of section eight hundred forty-six-h of the executive law;
* NB Effective October 16, 2023
(v) Supervisor of forest ranger services; assistant supervisor of forest ranger services; forest ranger 3; forest ranger 2; forest ranger 1 employed by the state department of environmental conservation or sworn officer of the division of forest protection and fire management in the department of environmental conservation responsible for wild land search and rescue, wild land fire management in the state as prescribed in subdivision eighteen of section 9-0105 and title eleven of article nine of the environmental conservation law, exercising care, custody and control of state lands administered by the department of environmental conservation.
34-a. "Geographical area of employment." The "geographical area of employment" of certain police officers is as follows:
* (a) Except as provided in paragraph (d) of this subdivision, New York state constitutes the "geographical area of employment" of any police officer employed as such by an agency of the state or by an authority which functions throughout the state, or a police officer designated by the superintendent of state police pursuant to section two hundred twenty-three of the executive law;
* NB Effective until September 1, 2025
* (a) Except as provided in paragraph (d), New York state constitutes the "geographical area of employment" of any police officer employed as such by an agency of the state or by an authority which functions throughout the state;
* NB Effective September 1, 2025
(b) A county, city, town or village, as the case may be, constitutes the "geographical area of employment" of any police officer employed as such by an agency of such political subdivision or by an authority which functions only in such political subdivision; and
(c) Where an authority functions in more than one county, the "geographical area of employment" of a police officer employed thereby extends through all of such counties.
(d) The geographical area of employment of a police officer appointed by the state university is the campuses and other property of the state university, including any portion of a public highway which crosses or abuts such property.
(e) The geographical area of employment of a police officer appointed pursuant to section one hundred fourteen of the Indian law is within the county of Franklin, and within that county, only within the boundary of the St. Regis reservation, except that if the superintendent of state police has certified such officer with expanded jurisdiction within the county of Franklin, pursuant to subdivision eight-a of such section, the geographical area of employment of such police officer shall also include the area of expanded jurisdiction set forth in that subdivision.
35. "Commitment to the custody of the sheriff," when referring to an order of a court located in a county or city which has established a department of correction, means commitment to the commissioner of correction of such county or city.
36. "County" ordinarily means (a) any county outside of New York City or (b) New York City in its entirety. Unless the context requires a different construction, New York City, despite its five counties, is deemed a single county within the meaning of the provisions of this chapter in which that term appears.
37. "Lesser included offense." When it is impossible to commit a particular crime without concomitantly committing, by the same conduct, another offense of lesser grade or degree, the latter is, with respect to the former, a "lesser included offense." In any case in which it is legally possible to attempt to commit a crime, an attempt to commit such crime constitutes a lesser included offense with respect thereto.
38. "Oath" includes an affirmation and every other mode authorized by law of attesting to the truth of that which is stated.
39. "Petty offense" means a violation or a traffic infraction.
40. "Evidence in chief" means evidence, received at a trial or other criminal proceeding in which a defendant's guilt or innocence of an offense is in issue, which may be considered as a part of the quantum of substantive proof establishing or tending to establish the commission of such offense or an element thereof or the defendant's connection therewith.
41. "Armed felony" means any violent felony offense defined in section 70.02 of the penal law that includes as an element either:
(a) possession, being armed with or causing serious physical injury by means of a deadly weapon, if the weapon is a loaded weapon from which a shot, readily capable of producing death or other serious physical injury may be discharged; or
(b) display of what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm.
42. "Juvenile offender" means (1) a person, thirteen years old who is criminally responsible for acts constituting murder in the second degree as defined in subdivisions one and two of section 125.25 of the penal law, or such conduct as a sexually motivated felony, where authorized pursuant to section 130.91 of the penal law; and (2) a person fourteen or fifteen years old who is criminally responsible for acts constituting the crimes defined in subdivisions one and two of section 125.25 (murder in the second degree) and in subdivision three of such section provided that the underlying crime for the murder charge is one for which such person is criminally responsible; section 135.25 (kidnapping in the first degree); 150.20 (arson in the first degree); subdivisions one and two of section 120.10 (assault in the first degree); 125.20 (manslaughter in the first degree); subdivisions one and two of section 130.35 (rape in the first degree); subdivisions one and two of section 130.50 (criminal sexual act in the first degree); 130.70 (aggravated sexual abuse in the first degree); 140.30 (burglary in the first degree); subdivision one of section 140.25 (burglary in the second degree); 150.15 (arson in the second degree); 160.15 (robbery in the first degree); subdivision two of section 160.10 (robbery in the second degree) of the penal law; or section 265.03 of the penal law, where such machine gun or such firearm is possessed on school grounds, as that phrase is defined in subdivision fourteen of section 220.00 of the penal law; or defined in the penal law as an attempt to commit murder in the second degree or kidnapping in the first degree, or such conduct as a sexually motivated felony, where authorized pursuant to section 130.91 of the penal law.
43. "Judicial hearing officer" means a person so designated pursuant to provisions of article twenty-two of the judiciary law.
44. "Adolescent offender" means a person charged with a felony committed on or after October first, two thousand eighteen when he or she was sixteen years of age or on or after October first, two thousand nineteen, when he or she was seventeen years of age.
45. "Expunge" means, where an arrest and any enforcement activity connected with that arrest, including prosecution and any disposition in any New York state court, is deemed a nullity and the accused is restored, in contemplation of the law, to the status such individual occupied before the arrest, prosecution and/or disposition; that records of such arrest, prosecution and/or disposition shall be marked as expunged or shall be destroyed as set forth in section 160.50 of this chapter. Neither the arrest nor prosecution and/or disposition, if any, of a matter deemed a nullity shall operate as a disqualification of any person so accused to pursue or engage in any lawful activity, occupation, profession or calling. Except where specifically required or permitted by statute or upon specific authorization of a superior court, no such person shall be required to divulge information pertaining to the arrest, prosecution and/or disposition of such a matter.
ARTICLE 2 PEACE OFFICERS
Section 2.10 Persons designated as peace officers.
2.15 Federal law enforcement officers; powers.
2.16 Watershed protection and enforcement officers; powers, duties, jurisdiction for arrests.
2.20 Powers of peace officers.
2.30 Training requirements for peace officers.
§ 2.10 Persons designated as peace officers.
Notwithstanding the provisions of any general, special or local law or charter to the contrary, only the following persons shall have the powers of, and shall be peace officers:
1. Constables or police constables of a town or village, provided such designation is not inconsistent with local law.
2. The sheriff, undersheriff and deputy sheriffs of New York city and sworn officers of the Westchester county department of public safety services appointed after January thirty-first, nineteen hundred eighty-three to the title of public safety officer and who perform the functions previously performed by a Westchester county deputy sheriff on or prior to such date.
3. Investigators of the office of the state commission of investigation.
4. Employees of the department of taxation and finance designated by the commissioner of taxation and finance as peace officers and assigned by the commissioner of taxation and finance (a) to the enforcement of any of the criminal or seizure and forfeiture provisions of the tax law relating to (i) taxes imposed under or pursuant to the authority of article twelve-A of the tax law and administered by the commissioner, (ii) taxes imposed under or pursuant to the authority of article eighteen of the tax law and administered by the commissioner, (iii) taxes imposed under article twenty of the tax law, or (iv) sales or compensating use taxes relating to petroleum products or cigarettes imposed under article twenty-eight or pursuant to the authority of article twenty-nine of the tax law and administered by the commissioner or
(b) to the enforcement of any provision of the penal law relating to any of the taxes described in paragraph (a) of this subdivision and relating to crimes effected through the use of a statement or document filed with the department in connection with the administration of such taxes or
(c) as revenue crimes specialist and assigned to the enforcement of any of the criminal provisions of the tax law relating to taxes administered by the commissioner of taxation and finance other than those taxes set forth in paragraph (a) of this subdivision or any provision of the penal law relating to such taxes, and those provisions of the penal law (i) relating to any of the foregoing taxes and (ii) relating to crimes effected through the use of a statement or document filed with the department in connection with the administration of such foregoing taxes or
(d) to the enforcement of any provision of law which is subject to enforcement by criminal penalties and which relates to the performance by persons employed by the department of taxation and finance of the duties of their employment.
Provided, however, that nothing in this subdivision shall be deemed to authorize any such employee designated as a peace officer after November first, nineteen hundred eighty-five to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law, and further provided that, prior to such designation by the commissioner each such employee shall have successfully completed the training requirements specified in section 2.30 of this article. Provided, further, that any license issued to such employee pursuant to such peace officer designation by the commissioner shall relate only to the firearm issued to such employee by the department of taxation and finance and such permit shall not cover any other firearms. The foregoing sentence shall not be deemed to prohibit such peace officer from applying for a separate permit relating to non-departmental firearms.
5. Employees of the New York city department of finance assigned to enforcement of the tax on cigarettes imposed by title D of chapter forty-six of the administrative code of the city of New York by the commissioner of finance.
6. Confidential investigators and inspectors, as designated by the commissioner, of the department of agriculture and markets, pursuant to rules of the department.
7. Officers or agents of a duly incorporated society for the prevention of cruelty to animals.
* 7-a. Officers or agents of a duly incorporated society for the prevention of cruelty to children in Rockland county; provided, however, that nothing in this subdivision shall be deemed to authorize such officer or agent to carry, possess, repair, or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law; and provided further that such officer or agent shall exercise the powers of a peace officer only when he is acting pursuant to his special duties.
* NB Repealed August 11, 2025
8. Inspectors and officers of the New York city department of health when acting pursuant to their special duties as set forth in section 564-11.0 of the administrative code of the city of New York; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
9. Park rangers in Suffolk county, who shall be authorized to issue appearance tickets, simplified traffic informations, simplified parks informations and simplified environmental conservation informations.
10. Broome county park rangers who shall be authorized to issue appearance tickets, simplified traffic informations, simplified parks informations, and simplified environmental conservation informations; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
11. Park rangers in Onondaga and Cayuga counties, who shall be authorized to issue appearance tickets, simplified traffic informations, simplified parks informations and simplified environmental conservation informations, within the respective counties of Onondaga and Cayuga.
12. Special police officers designated by the commissioner and the directors of in-patient facilities in the office of mental health pursuant to section 7.25 of the mental hygiene law, and special police officers designated by the commissioner and the directors of facilities under his or her jurisdiction in the office for people with developmental disabilities pursuant to section 13.25 of the mental hygiene law; provided, however, that nothing in this subdivision shall be deemed to authorize such officers to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
13. Persons designated as special police officers by the director of a hospital in the department of health pursuant to section four hundred fifty-five of the public health law; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
15. Uniformed enforcement forces of the New York state thruway authority, when acting pursuant to subdivision two of section three hundred sixty-one of the public authorities law; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
16. Employees of the department of health designated pursuant to section thirty-three hundred eighty-five of the public health law; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
17. Uniformed housing guards of the Buffalo municipal housing authority.
18. Bay constable of the city of Rye, the villages of Mamaroneck, South Nyack and bay constables of the towns of East Hampton, Hempstead, Oyster Bay, Riverhead, Southampton, Southold, Islip, Shelter Island, Brookhaven, Babylon, Smithtown, Huntington and North Hempstead; provided, however, that nothing in this subdivision shall be deemed to authorize the bay constables in the city of Rye, the village of South Nyack or the towns of Brookhaven, Babylon, Southold, East Hampton, Riverhead, Islip, other than a bay constable of the town of Islip who prior to April third, nineteen hundred ninety-eight served as harbormaster for such town and whose position was reclassified as bay constable for such town prior to such date, Smithtown, Huntington and Shelter Island to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
19. Harbor masters appointed by a county, city, town or village.
20. Bridge and tunnel officers, sergeants and lieutenants of the Triborough bridge and tunnel authority.
21. a. Uniformed court officers of the unified court system.
b. Court clerks of the unified court system in the first and second departments.
c. Marshall, deputy marshall, clerk or uniformed court officer of a district court.
(d) Marshalls or deputy marshalls of a city court, provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
e. Uniformed court officers of the city of Mount Vernon.
f. Uniformed court officers of the city of Jamestown.
22. Patrolmen appointed by the Lake George park commission; provided however that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
23. Parole officers or warrant officers in the department of corrections and community supervision.
23-a. Parole revocation specialists in the department of corrections and community supervision; provided, however, that nothing in this subdivision shall be deemed to authorize such employee to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
24. Probation officers.
25. Officials, as designated by the commissioner of the department of corrections and community supervision pursuant to rules of the department, and correction officers of any state correctional facility or of any penal correctional institution.
26. Peace officers designated pursuant to the provisions of the New York state defense emergency act, as set forth in chapter seven hundred eighty-four of the laws of nineteen hundred fifty-one, as amended, when acting pursuant to their special duties during a period of attack or imminent attack by enemy forces, or during official drills called to combat natural or man-made disasters, or during official drills in preparation for an attack by enemy forces or in preparation for a natural or man-made disaster; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law; and provided further, that such officer shall have the powers set forth in section 2.20 of this article only during a period of imminent or actual attack by enemy forces and during drills authorized under section twenty-nine-b of article two-B of the executive law, providing for the use of civil defense forces in disasters. Notwithstanding any other provision of law, such officers shall have the power to direct and control traffic during official drills in preparation for an attack by enemy forces or in preparation for combating natural or man-made disasters; however, this grant does not include any of the other powers set forth in section 2.20 of this article.
27. New York city special patrolmen appointed by the police commissioner pursuant to subdivision c or e of section 434a-7.0 or subdivision c or e of section 14-106 of the administrative code of the city of New York; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law and the employer has authorized such officer to possess a firearm during any phase of the officers on-duty employment. Special patrolmen shall have the powers set forth in section 2.20 of this article only when they are acting pursuant to their special duties; provided, however, that the following categories of New York city special patrolmen shall have such powers whether or not they are acting pursuant to their special duties: school safety officers employed by the board of education of the city of New York; parking control specialists, taxi and limousine inspectors, urban park rangers and evidence and property control specialists employed by the city of New York; and further provided that, with respect to the aforementioned categories of New York city special patrolmen, where such a special patrolman has been appointed by the police commissioner and, upon the expiration of such appointment the police commissioner has neither renewed such appointment nor explicitly determined that such appointment shall not be renewed, such appointment shall remain in full force and effect indefinitely, until such time as the police commissioner expressly determines to either renew or terminate such appointment.
28. All officers and members of the uniformed force of the New York city fire department as set forth and subject to the limitations contained in section 487a-15.0 of the administrative code of the city of New York; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
29. Special police officers for horse racing, appointed pursuant to the provisions of the pari-mutuel revenue law as set forth in chapter two hundred fifty-four of the laws of nineteen hundred forty, as amended; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
30. Supervising fire inspectors, fire inspectors, the fire marshal and assistant fire marshals, all of whom are full-time employees of the county of Nassau fire marshal's office.
32. Investigators of the department of motor vehicles, pursuant to section three hundred ninety-two-b of the vehicle and traffic law; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
33. A city marshall of the city of New York who has received training in firearms handling from the federal bureau of investigation or in the New York city police academy, or in the absence of the available training programs from the federal bureau of investigation and the New York city police academy, from another law enforcement agency located in the state of New York, and who has received a firearms permit from the license division of the New York city police department.
34. Waterfront and airport investigators, pursuant to subdivision four of section ninety-nine hundred six of the unconsolidated laws; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
35. Special investigators appointed by the state board of elections, pursuant to secton 3-107 of the election law.
36. Investigators appointed by the state liquor authority, pursuant to section fifteen of the alcoholic beverage control law; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
37. Special patrolmen of a political subdivision, appointed pursuant to section two hundred nine-v of the general municipal law; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
38. A special investigator of the New York city department of investigation who has received training in firearms handling in the New York police academy and has received a firearms permit from the license division of the New York city police department.
39. Broome county special patrolman, appointed by the Broome county attorney; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
40. Special officers employed by the city of New York or by the New York city health and hospitals corporation; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law. The New York city health and hospitals corporation shall employ peace officers appointed pursuant to this subdivision to perform the patrol, investigation, and maintenance of the peace duties of special officer, senior special officer and hospital security officer, provided however that nothing in this subdivision shall prohibit managerial, supervisory, or state licensed or certified professional employees of the corporation from performing such duties where they are incidental to their usual duties, or shall prohibit police officers employed by the city of New York from performing these duties.
41. Fire police squads organized pursuant to section two hundred nine-c of the general municipal law, at such times as the fire department, fire company or an emergency rescue and first aid squad of the fire department or fire company are on duty, or when, on orders of the chief of the fire department or fire company of which they are members, they are separately engaged in response to a call for assistance pursuant to the provisions of section two hundred nine of the general municipal law; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
42. Special deputy sheriffs appointed by the sheriff of a county within which any part of the grounds of Cornell university or the grounds of any state institution constituting a part of the educational and research plants owned or under the supervision, administration or control of said university are located pursuant to section fifty-seven hundred nine of the education law; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
43. Housing patrolmen of the Mount Vernon housing authority, acting pursuant to rules of the Mount Vernon housing authority; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
44. The officers, employees and members of the New York city division of fire prevention, in the bureau of fire, as set forth and subject to the limitations contained in subdivision one of section 487a-1.0 of the administrative code of the city of New York; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
45. Persons appointed and designated as peace officers by the Niagara frontier transportation authority, pursuant to subdivision thirteen of section twelve hundred ninety-nine-e of the public authorities law.
46. Persons appointed as peace officers by the Sea Gate Association pursuant to the provisions of chapter three hundred ninety-one of the laws of nineteen hundred forty, provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
47. Employees of the department of financial services when designated as peace officers by the superintendent of financial services and acting pursuant to their special duties as set forth in article four of the financial services law; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
48. New York state air base security guards when they are designated as peace officers under military regulations promulgated by the chief of staff to the governor and when performing their duties as air base security guards pursuant to orders issued by appropriate military authority; provided, however, that nothing in this subdivision shall be deemed to authorize such guards to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
49. Members of the army national guard military police and air national guard security personnel belonging to the organized militia of the state of New York when they are designated as peace officers under military regulations promulgated by the adjutant general and when performing their duties as military police officers or air security personnel pursuant to orders issued by appropriate military authority; provided, however, that nothing in this subdivision shall be deemed to authorize such military police or air security personnel to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
50. Transportation supervisors in the city of White Plains appointed by the commissioner of public safety in the city of White Plains; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
51. Officers and members of the fire investigation division of the fire department of the city of Rochester, the city of Binghamton and the city of Utica, when acting pursuant to their special duties in matters arising under the laws relating to fires, the extinguishment thereof and fire perils; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
52. Security hospital treatment assistants, as so designated by the commissioner of the office of mental health while performing duties in or arising out of the course of their employment; provided, however, that nothing in this subdivision shall be deemed to authorize such employee to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
53. Authorized agents of the municipal directors of weights and measures in the counties of Suffolk, Nassau and Westchester when acting pursuant to their special duties as set forth in section one hundred eighty-one of the agriculture and markets law; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
54. Special police officers appointed pursuant to section one hundred fifty-eight of the town law; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
* 55. Special patrolmen for sports facilities in the performance of sporting events, pursuant to the provisions of section one hundred six-b of the alcoholic beverage control law; provided, however, that nothing in this section shall be deemed to authorize such officer to carry, possess, repair, or dispose of a firearm unless such officer is required pursuant to his status as a police officer within this state.
* NB Expired July 1, 1993
56. Dog control officers of the town of Brookhaven, who at the discretion of the town board may be designated as constables for the purpose of enforcing article twenty-six of the agriculture and markets law and for the purpose of issuing appearance tickets permitted under article seven of such law; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
57. Harbor Park rangers employed by the Snug Harbor cultural center in Richmond county and appointed as New York city special patrolmen by the police commissioner pursuant to subdivision c of section 14-106 of the administrative code of the city of New York. Notwithstanding any provision of law, rule or regulation, such officers shall be authorized to issue appearance tickets pursuant to section 150.20 of this chapter, and shall have such other powers as are specified in section 2.20 of this article only when acting pursuant to their special duties. Nothing in this subdivision shall be deemed to authorize such officers to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law and the employer has authorized such officer to possess a firearm during any phase of the officer's on-duty employment.
* 57-a. Seasonal park rangers of the Westchester county department of public safety while employed as authorized by the commissioner of public safety/sheriff of the county of Westchester; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
* NB There are 2 sub 57-a's
* 57-a. Officers of the Westchester county public safety emergency force, when activated by the commissioner of public safety/sheriff of the county of Westchester; provided, however that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
* NB There are 2 sub 57-a's
58. Uniformed members of the security force of the Troy housing authority provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
59. Officers and members of the sanitation police of the department of sanitation of the city of New York, duly appointed and designated as peace officers by such department; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law. Provided, further, that nothing in this subdivision shall be deemed to apply to officers and members of the sanitation police regularly and exclusively assigned to enforcement of such city's residential recycling laws.
61. Chief fire marshall, assistant chief fire marshall, fire marshall II and fire marshall I, all of whom are full-time employees of the Suffolk county department of fire, rescue and emergency services, when acting pursuant to their special duties in matters arising under the laws relating to fires, the extinguishment thereof and fire perils; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
* 62. Chief fire marshall, assistant chief fire marshall, fire marshall II and fire marshall I, all of whom are full-time employees of the town of Babylon, when acting pursuant to their special duties in matters arising under the laws relating to fires, the extinguishment thereof and fire perils; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
* NB There are 2 sub 62's
* 62. Employees of the division for youth assigned to transport and warrants units who are specifically designated by the director in accordance with section five hundred four-b of the executive law, provided, however, that nothing in this subdivision shall be deemed to authorize such employees to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
* NB There are 2 sub 62's
* 63. Uniformed members of the fire marshal's office in the town of Southampton and the town of Riverhead, when acting pursuant to their special duties in matters arising under the laws relating to fires, the extinguishment thereof and fire perils; provided, however that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
* NB There are 2 sub 63's
* 63. Employees of the town court of the town of Greenburgh serving as a security officer; provided, however, that nothing in this subdivision will be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law or to authorize such officer to carry or possess a firearm except while on duty.
* NB There are 2 sub 63's
64. Cell block attendants employed by the city of Buffalo police department; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
65. Chief fire marshall, assistant chief fire marshall, fire marshall II and fire marshall I, all of whom are full-time employees of the town of Brookhaven, when acting pursuant to their special duties in matters arising under the laws relating to fires, the extinguishment thereof and fire perils; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license thereof has been issued pursuant to section 400.00 of the penal law.
66. Employees of the village court of the village of Spring Valley serving as security officers at such village court; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
67. Employees of the town court of the town of Putnam Valley serving as a security officer; provided, however, that nothing in this subdivision will be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law or to authorize such officer to carry or possess a firearm except while on duty.
* 68. The state inspector general and investigators designated by the state inspector general; provided, however, that nothing in this subdivision shall be deemed to authorize the state inspector general or such investigators to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
* NB There are 5 sub 68's
* 68. Dog control officers of the town of Arcadia, who at the discretion of the town board may be designated as constables for the purpose of enforcing article twenty-six of the agriculture and markets law and for the purpose of issuing appearance tickets permitted under article seven of such law; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
* NB There are 5 sub 68's
* 68. Employees appointed by the sheriff of Livingston county, when acting pursuant to their special duties serving as uniformed marine patrol officers; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license has been issued pursuant to section 400.00 of the penal law or to authorize such officer to carry or possess a firearm except while on duty.
* NB There are 5 sub 68's
* 68. Employees of the town court of the town of Southampton serving as uniformed court officers at such town court; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
* NB There are 5 sub 68's
* 68. Persons employed by the Chautauqua county sheriff's office serving as court security officers; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
* NB There are 5 sub 68's
69. Employees of the village court of the village of Amityville serving as uniformed court officers at such village court; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
70. Employees appointed by the sheriff of Yates county, pursuant to their special duties serving as uniformed marine patrol officers; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license has been issued pursuant to section 400.00 of the penal law or to authorize such officer to carry or possess a firearm except while on duty.
71. Town of Smithtown fire marshalls when acting pursuant to their special duties in matters arising under the laws relating to fires, the extinguishment thereof and fire perils; provided, however, that nothing in this subdivision shall be deemed to authorize such officers to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
72. Persons employed by Canisius college as members of the security force of such college; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
73. Employees of the town court of the town of Newburgh serving as uniformed court officers at such town court; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
* 74. a. Special deputy sheriffs appointed by the sheriff of Tompkins county pursuant to paragraphs b and c of this subdivision; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
b. For the protection of the grounds, buildings and property of Ithaca college the prevention of crime and the enforcement of law and order, and for the enforcement of such rules and regulations as the board of trustees of Ithaca college shall from time to time make, the sheriff of Tompkins county may appoint and remove following consultation with Ithaca college such number of special deputy sheriffs as is determined by the sheriff to be necessary for the maintenance of public order at Ithaca college, such appointments to be made from persons nominated by the president of Ithaca college. Such special deputy sheriffs shall comply with requirements as established by the sheriff and shall act only within Tompkins county. Such special deputy sheriffs so appointed shall be employees of the college and subject to its supervision and control as outlined in the terms and conditions to be mutually agreed upon between the sheriff and Ithaca college. Such special deputy sheriffs shall have the powers of peace officers and shall act solely within the said grounds or premises owned or administered by Ithaca college, except in those rare and special situations when requested by the sheriff to provide assistance on any public highway which crosses or adjoins such property. Ithaca college will provide legal defense and indemnification, and hold harmless the county of Tompkins, its officers and employees and the Tompkins county sheriff, its officers and employees, from all claims arising out of conduct by or injury to, such personnel while carrying out their law enforcement functions except in those situations when they are acting under the direct supervision and control of the county or sheriff's department.
c. Every special deputy sheriff so appointed shall, before entering upon the duties of his or her office, take and subscribe the oath of office prescribed by article thirteen of the constitution of the state of New York which oath shall be filed in the office of the county clerk of Tompkins county. Every special deputy sheriff appointed under this subdivision when on regular duty shall wear conspicuously a metallic shield with a designating number and the words "Special Deputy Sheriff Ithaca College" thereon.
* NB There are 4 sub 74's
* 74. Parks and recreation forest rangers employed by the office of parks, recreation and historic preservation; provided, however, that nothing in this subdivision shall be deemed to authorize such individuals to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
* NB There are 4 sub 74's
* 74. Employees of the village court of the village of Quogue, town of Southampton serving as uniformed court officers at such village court; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
* NB There are 4 sub 74's
* 74. Employees of the town court of the town of East Hampton serving as uniformed court officers at such town court; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
* NB There are 4 sub 74's
* 75. Dog control officers of the town of Clarence, who at the discretion of the town board may be designated as constables for the purpose of enforcing article twenty-six of the agriculture and markets law and for the purpose of issuing appearance tickets permitted under article seven of the agriculture and markets law; provided, however, that nothing in this subdivision shall be deemed to authorize such officers to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
* NB There are 3 sub 75's
* 75. Airport security guards, senior airport security guards, airport security supervisors, retired police officers, and supervisors of same, who are designated by resolution of the town board of the town of Islip to provide security at Long Island MacArthur Airport when acting pursuant to their duties as such, and such authority being specifically limited to the grounds of the said airport. However, nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
* NB There are 3 sub 75's
* 75. Officers and members of the fire investigation unit of the fire department of the city of Buffalo when acting pursuant to their special duties in matters arising under the laws relating to fires, the extinguishment thereof and fire perils; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
* NB There are 3 sub 75's
* 76. Employees of the village court of the village of Southampton, town of Southampton serving as uniformed court officers at such village court; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
* NB There are 2 sub 76's
* 76. Animal control officers employed by the city of Peekskill; provided, however, that nothing in this subdivision shall be deemed to authorize such individuals to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
* NB There are 2 sub 76's
* 77. (a) Syracuse University peace officers appointed by the chief law enforcement officer of the city of Syracuse pursuant to paragraphs (b), (c) and (d) of this subdivision, who shall be authorized to issue appearance tickets and simplified traffic informations; provided, however, that nothing in this subdivision shall be deemed to authorize any such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
(b) For the protection of the grounds, buildings and property of Syracuse University, the prevention of crime and the enforcement of law and order, and for the enforcement of such rules and regulations as Syracuse University shall from time to time establish, the chief law enforcement officer of the city of Syracuse may appoint and remove, following consultations with Syracuse University; such number of Syracuse University peace officers as is determined by the chief law enforcement officer of the city of Syracuse to be necessary for the maintenance of public order at such university, such appointments to be made from persons nominated by the chancellor of Syracuse University. Such peace officers shall comply with such requirements as shall be established by the chief law enforcement officer of the city of Syracuse. Such Syracuse University peace officers so appointed shall be employees of such university, and subject to its supervision and control and the terms and conditions to be mutually agreed upon between the chief law enforcement officer of the city of Syracuse and Syracuse University. Nothing in this paragraph shall limit the authority of Syracuse University to remove such peace officers. Such Syracuse University peace officers shall have the powers of peace officers within the geographical area of employment of the grounds or premises owned, controlled or administrated by Syracuse University within the county of Onondaga, except in those situations when requested by the chief law enforcement officer of the city of Syracuse or his or her designee, including by means of written protocols agreed to by the chief law enforcement officer of the city of Syracuse and Syracuse University, to provide assistance on any public highway which crosses or adjoins such grounds or premises. Syracuse University shall provide legal defense and indemnification, and hold harmless the city of Syracuse, and its officers and employees from all claims arising out of conduct by or injury to, such peace officers while carrying out their law enforcement functions, except in those situations when they are acting under the direct supervision and control of the chief law enforcement officer of the city of Syracuse, or his or her designee.
(c) Every Syracuse University peace officer so appointed shall, before entering upon the duties of his or her office, take and subscribe the oath of office prescribed by article thirteen of the state constitution, which oath shall be filed in the office of the county clerk of the county of Onondaga. Every such peace officer appointed pursuant to this subdivision when on regular duty shall conspicuously wear a metallic shield with a designating number and the words "Syracuse University Peace Officer" engraved thereon.
(d) To become eligible for appointment as a Syracuse University peace officer a candidate shall, in addition to the training requirements as set forth in section 2.30 of this article, complete the course of instruction in public and private law enforcement established pursuant to paragraph (c) of subdivision five of section sixty-four hundred fifty of the education law.
* NB There are 2 sub 77's
* 77. Chief fire marshal, assistant chief fire marshal, and fire marshals, all of whom are full-time employees of the town of East Hampton, when acting pursuant to their special duties in matters arising under the laws relating to fires, the extinguishment thereof and fire perils; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
* NB There are 2 sub 77's
78. A security officer employed by a community college who is specifically designated as a peace officer by the board of trustees of a community college pursuant to subdivision five-a of section sixty-three hundred six of the education law, or by a community college regional board of trustees pursuant to subdivision four-a of section sixty-three hundred ten of the education law; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
* 79. Court security officers employed by the Wayne county sheriff's office; provided however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
* NB There are 4 sub 79's
* 79. Supervisors and members of the arson investigation bureau and fire inspection bureau of the office of fire prevention and control when acting pursuant to their special duties in matters arising under the laws relating to fires, their prevention, extinguishment, investigation thereof, and fire perils; provided, however, that nothing in this subdivision shall be deemed to authorize such employees to carry, possess, repair, or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
* NB There are 4 sub 79's
* 79. Peace officers appointed by the city university of New York pursuant to subdivision sixteen of section sixty-two hundred six of the education law, who shall have the powers set forth in section 2.20 of this article whether or not they are acting pursuant to their special duties; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
* NB There are 4 sub 79's
* 79. Animal control officers of the city of Elmira, who at the discretion of the city council of the city of Elmira may be designated as constables for the purpose of enforcing article twenty-six of the agriculture and markets law, and for the purpose of issuing appearance tickets permitted under article seven of such law; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
* NB There are 4 sub 79's
80. Employees of the Onondaga county sheriff's department serving as uniformed court security officers at Onondaga county court facilities; provided, however, that nothing in this subdivision shall be deemed to authorize such officers to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
* 81. Members of the security force employed by Erie County Medical Center; provided however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
* NB There are 6 sb 81's
* 81. Employees of the town of Riverhead serving as court officers at town of Riverhead court facilities; provided, however, that nothing in this subdivision shall be deemed to authorize such officers to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
* NB There are 6 sb 81's
* 81. Employees of the town court of the town of Southold serving as uniformed court officers at such town court; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
* NB There are 6 sb 81's
* 81. Commissioners of and court officers in the department of public safety for the town of Rye when acting pursuant to their special duties in matters arising under the laws relating to maintaining the safety and security of citizens, judges and court personnel in the town court, and effecting the safe and secure transport of persons under the custody of said department; provided, however, that nothing in this subdivision shall be deemed to authorize such employees to carry, possess, repair, or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
* NB There are 6 sb 81's
* 81. Employees of the town of Yorktown serving as court attendants at town of Yorktown court facilities; provided, however, that nothing in this subdivision shall be deemed to authorize such employees to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
* NB There are 6 sb 81's
* 81. Employees of the Lewis county sheriff's department serving as uniformed court security officers at Lewis county court facilities; provided, however, that nothing in this subdivision shall be deemed to authorize such officers to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
* NB There are 6 sb 81's
82. Employees of the New York city business integrity commission designated as peace officers by the chairperson of such commission; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
83. Members of the security force employed by Kaleida Health within and directly adjacent to the hospital buildings on the medical campus located between East North Street, Goodell Street, Main Street and Michigan Avenue. These officers shall only have the powers listed in paragraph (c) of subdivision one of section 2.20 of this article, as well as the power to detain an individual for a reasonable period of time while awaiting the arrival of law enforcement, provided that the officer has actual knowledge, or probable cause to believe, that such individual has committed an offense; provided however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
84. (a) Public safety officers employed by the University of Rochester who are designated as peace officers by the board of trustees of the University of Rochester pursuant to paragraphs (b), (c), and (d) of this subdivision; provided, however, that nothing in this subdivision shall be deemed to authorize any such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
(b) For the protection of the grounds, buildings and property of the University of Rochester, the prevention of crime and the enforcement of law and order, the board of trustees of the University of Rochester may appoint and remove such number of public safety officers designated as peace officers as is determined by the board of trustees to be necessary for the maintenance of public order consistent with this subdivision. Such peace officers shall comply with such requirements as shall be mutually agreed upon between the chief law enforcement officers of the applicable local law enforcement jurisdictions and the University of Rochester. Such University of Rochester peace officers so appointed shall be employees of the University of Rochester and subject to its supervision and control. Such University of Rochester peace officers shall have the powers of peace officers within the geographic area of employment of the grounds or premises owned, controlled or administered by the University of Rochester within the county of Monroe, on any public street and sidewalk that abuts the grounds, buildings or property of such university, and beyond such geographic area upon the request of the chief law enforcement officer of the local law enforcement jurisdiction or his or her designee, for the purpose of transporting an individual who has been arrested in accordance with section 140.27 of this chapter and when no local law enforcement officer is available for transporting such individual in a timely manner.
(c) The University of Rochester shall provide legal defense and indemnification to applicable municipality and its officers and employees, and hold them harmless, against all claims arising out of conduct by or injury to such peace officers while carrying out their special duties, except in those situations when they are acting as agents of the chief law enforcement officer of the applicable local law enforcement jurisdiction or his or her designee.
(d) To become eligible for designation as a University of Rochester peace officer, a candidate shall, in addition to the training requirements as set forth in section 2.30 of this article, complete the course of instruction in public and private law enforcement established pursuant to subdivision three of section sixty-four hundred thirty-five of the education law.
85. Uniformed members of the bureau of fire prevention of the town of Islip, when acting pursuant to their special duties in matters arising under laws relating to fires, the extinguishment thereof and fire perils; provided, however, that nothing in this subdivision shall be deemed to authorize such members to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
86. Investigators appointed by the cannabis control board, pursuant to section ten of the cannabis law; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair, or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
§ 2.15 Federal law enforcement officers; powers.
The following federal law enforcement officers shall have the powers set forth in paragraphs (a) (with the exception of the powers provided by paragraph (b) of subdivision one and paragraph (b) of subdivision three of section 140.25 of this chapter), (b), (c) and (h) of subdivision one of section 2.20 of this article:
1. Federal Bureau of Investigation special agents.
2. United States Secret Service special agents.
3. Immigration and Customs Enforcement special agents, deportation officers, and detention and deportation officers.
4. United States Marshals and Marshals Service deputies.
5. Drug Enforcement Administration special agents.
6. Federal Protective Officers, including law enforcement security officers, criminal investigators and police officers of the Federal Protective Service.
7. United States Customs and Border Protection Officers and United States Customs and Border Protection Border Patrol agents.
8. United States Postal Service police officers and inspectors.
9. United States park police; provided, however that, notwithstanding any provision of this section to the contrary, such park police shall also have the powers set forth in paragraph (b) of subdivision one of section 140.25 of this chapter and the powers set forth in paragraphs (d), (e) and (g) of subdivision one of section 2.20 of this article.
10. United States probation officers.
11. United States General Services Administration special agents.
12. United States Department of Agriculture special agents.
13. Bureau of Alcohol, Tobacco and Firearms special agents.
14. Internal Revenue Service special agents and inspectors.
15. Officers of the United States bureau of prisons.
16. United States Fish and Wildlife special agents.
17. United States Naval Investigative Service special agents.
18. United States Department of State special agents.
19. Special agents of the defense criminal investigative service of the United States department of defense.
20. United States Department of Commerce, Office of Export Enforcement, special agents.
21. United States Department of Veterans Administration police officers employed at the Veterans Administration Medical Center in Batavia.
22. Federal Reserve law enforcement officers.
23. Federal air marshal program special agents.
* 24. United States department of transportation federal police officers and police supervisors assigned to the United States Merchant Marine Academy in Kings Point, New York; provided, however that, notwithstanding any provision of this section to the contrary, such police shall also have the powers set forth in paragraph (b) of subdivision one of section 140.25 of this chapter and the powers set forth in paragraphs (d), (e) and (g) of subdivision one of section 2.20 of this article when acting pursuant to their special duties within the geographical area of their employment or within one hundred yards of such geographical area.
* NB There are 2 sb 24's
* 24. United States Coast Guard Investigative Service special agents.
* NB There are 2 sb 24's
25. United States Department of Commerce, special agents and enforcement officers of the National Oceanic and Atmospheric Administration's Fisheries Office for Law Enforcement.
26. Department of the Army special agents, detectives and police officers.
27. United States Department of Interior, park rangers with law enforcement authority.
28. United States Environmental Protection Agency special agents with law enforcement authority.
29. United States mint police.
§ 2.16 Watershed protection and enforcement officers; powers, duties, jurisdiction for arrests.
1. Watershed protection and enforcement officers appointed by the city of Peekskill shall have the powers set forth in paragraphs (a), (b), (c), (f), (g), and (h) of subdivision one of section 2.20 of this article; provided, however, that nothing in this section shall be deemed to authorize such officer to carry, possess, repair, or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law. Watershed protection and enforcement officers shall complete the training requirements set forth in section 2.30 of this article.
2. The city of Peekskill may appoint the following persons as watershed protection and enforcement officers:
(a) the water superintendent;
(b) the deputy assistant to the water superintendent; and
(c) the watershed inspector or inspectors.
3. The duties of the watershed protection and enforcement officers shall be to enforce those provisions of the environmental conservation law and the penal law which relate to the contamination of water in those areas of the Hollow Brook watershed located within the city of Peekskill, including its reservoirs, shoreline, and tributaries, and those areas of the Hollow Brook watershed and Wiccopee reservoir located outside of the city of Peekskill in the counties of Putnam and Westchester, including its reservoirs, shoreline, and tributaries.
4. Notwithstanding paragraph (b) of subdivision thirty-four-a of section 1.20 of this title and paragraph (b) of subdivision five of section 140.25 of this chapter, watershed protection and enforcement officers are authorized to make arrests and issue appearance tickets in those areas of the Hollow Brook watershed and Wiccopee reservoir located outside of the city of Peekskill in the counties of Putnam and Westchester, including along its reservoirs, shoreline, and tributaries.
§ 2.20 Powers of peace officers.
1. The persons designated in section 2.10 of this article shall have the following powers:
(a) The power to make warrantless arrests pursuant to section 140.25 of this chapter.
(b) The power to use physical force and deadly physical force in making an arrest or preventing an escape pursuant to section 35.30 of the penal law.
(c) The power to carry out warrantless searches whenever such searches are constitutionally permissible and acting pursuant to their special duties.
(d) The power to issue appearance tickets pursuant to subdivision three of section 150.20 of this chapter, when acting pursuant to their special duties. New York city special patrolmen shall have the power to issue an appearance ticket only when it is pursuant to rules and regulations of the police commissioner of the city of New York.
(e) The power to issue uniform appearance tickets pursuant to article twenty-seven of the parks, recreation and historic preservation law and to issue simplified traffic informations pursuant to section 100.25 of this chapter and section two hundred seven of the vehicle and traffic law whenever acting pursuant to their special duties.
(f) The power to issue a uniform navigation summons and/or complaint pursuant to section nineteen of the navigation law whenever acting pursuant to their special duties.
(g) The power to issue uniform appearance tickets pursuant to article seventy-one of the environmental conservation law, whenever acting pursuant to their special duties.
(h) The power to possess and take custody of firearms not owned by the peace officer, for the purpose of disposing, guarding, or any other lawful purpose, consistent with his duties as a peace officer.
(i) Any other power which a particular peace officer is otherwise authorized to exercise by any general, special or local law or charter whenever acting pursuant to his special duties, provided such power is not inconsistent with the provisions of the penal law or this chapter.
(j) Uniformed court officers shall have the power to issue traffic summonses and complaints for parking, standing, or stopping violations pursuant to the vehicle and traffic law whenever acting pursuant to their special duties.
2. For the purposes of this section a peace officer acts pursuant to his special duties when he performs the duties of his office, pursuant to the specialized nature of his particular employment, whereby he is required or authorized to enforce any general, special or local law or charter, rule, regulation, judgment or order.
3. A peace officer, whether or not acting pursuant to his special duties, who lawfully exercises any of the powers conferred upon him pursuant to this section, shall be deemed to be acting within the scope of his public employment for purposes of defense and indemnification rights and benefits that he may be otherwise entitled to under the provisions of section fifty-k of the general municipal law, section seventeen or eighteen of the public officers law, or any other applicable section of law.
§ 2.30 Training requirements for peace officers.
1. Every peace officer in the state of New York must successfully complete a training program, a portion of which shall be prescribed by the municipal police training council and a portion of which shall be prescribed by his or her employer. The portion prescribed by the municipal police training council shall be comprised of subjects, and the hours each is to be taught, that shall be required of all types or classes of peace officers. The hours of instruction required by the municipal police training council shall not exceed one hundred eighty, unless a greater amount is either required by law or regulation, or is requested by the employer.
The segment prescribed by the employer for its employees shall be comprised of subjects, and the hours each is to be taught, relating to the special nature of the duties of the peace officers employed by it provided, however, that when the subjects prescribed by the employer are identical to the subjects in the training program required by the municipal police training council, the employer shall not be required to provide duplicate training for those subjects.
2. Each state or local agency, unit of local government, state or local commission, or public authority, or public or private organization which employs peace officers shall provide the training mandated by this section, the cost of which will be borne by the employer. Each peace officer satisfactorily completing the course prescribed by the municipal police training council shall be awarded a certificate by the division of criminal justice services attesting to that effect, and no person appointed as a peace officer shall exercise the powers of a peace officer, unless he or she has received such certification within twelve months of appointment.
3. No employer shall allow any peace officer it employs to carry or use a weapon during any phase of the officer's official duties, which constitutes on-duty employment, unless the officer has satisfactorily completed a course of training approved by the municipal police training council in the use of deadly physical force and firearms and other weapons, and annually receives instruction in deadly physical force and the use of firearms and other weapons as approved by the municipal police training council.
4. Upon the failure or refusal to comply with the requirements of this section, the commissioner of the division of criminal justice services shall apply to the supreme court for an order directed to the person responsible requiring compliance. Upon such application, the court may issue such order as may be just, and a failure to comply with the order of the court shall be a contempt of court and punishable as such.
5. Every employer of peace officers shall report to the division of criminal justice services, in such form and at such time as the division may by regulation require, the names of all peace officers who have satisfactorily completed any of the training requirements prescribed by this section.
6. A certificate attesting to satisfactory completion of the training requirements imposed under this section awarded to any peace officer by the executive director of the municipal police training council pursuant to this section shall remain valid:
(a) during the holder's continuous service as a peace officer; and
(b) for two years after the date of the commencement of an interruption in such service where the holder had, immediately prior to such interruption, served as a peace officer for less than two consecutive years; or
(c) for four years after the date of the commencement of an interruption in such service where the holder had, immediately prior to such interruption, served as a peace officer for two consecutive years or longer.
As used in this subdivision, the term "interruption" shall mean a period of separation from employment as a peace officer by reason of such officer's leave of absence, resignation or removal, other than removal for cause.
TITLE B--THE CRIMINAL COURTS
ARTICLE 10--THE CRIMINAL COURTS
Section 10.10 The criminal courts; enumeration and definitions.
10.20 Superior courts; jurisdiction.
10.30 Local criminal courts; jurisdiction.
10.40 Chief administrator to prescribe forms and to authorize use of electronic filing.
§ 10.10 The criminal courts; enumeration and definitions.
1. The "criminal courts" of this state are comprised of the superior courts and the local criminal courts.
2. "Superior court" means:
(a) The supreme court; or
(b) A county court.
3. "Local criminal court" means:
(a) A district court; or
(b) The New York City criminal court; or
(c) A city court; or
(d) A town court; or
(e) A village court; or
(f) A supreme court justice sitting as a local criminal court; or
(g) A county judge sitting as a local criminal court.
4. "City court" means any court for a city, other than New York City, having trial jurisdiction of offenses of less than felony grade only committed within such city, whether such court is entitled a city court, a municipal court, a police court, a recorder's court or is known by any other name or title.
5. "Town court." A "town court" is comprised of all the town justices of a town.
6. "Village court." A "village court" is comprised of the justice of a village, or all the justices thereof if there be more than one, or, at a time when he or they are absent, an associate justice of a village who is authorized to perform the functions of a village justice during his absence.
7. Notwithstanding any other provision of this section, a court specified herein which possesses civil as well as criminal jurisdiction does not act as a criminal court when acting solely in the exercise of its civil jurisdiction, and an order or determination made by such a court in its civil capacity is not an order or determination of a criminal court even though it may terminate or otherwise control or affect a criminal action or proceeding.
§ 10.20 Superior courts; jurisdiction.
1. Superior courts have trial jurisdiction of all offenses. They have:
(a) Exclusive trial jurisdiction of felonies; and
(b) Trial jurisdiction of misdemeanors concurrent with that of the local criminal courts; and
(c) Trial jurisdiction of petty offenses, but only when such an offense is charged in an indictment which also charges a crime.
2. Superior courts have preliminary jurisdiction of all offenses, but they exercise such jurisdiction only by reason of and through the agency of their grand juries.
3. Superior court judges may, in their discretion, sit as local criminal courts for the following purposes:
(a) conducting arraignments, as provided in subdivision two of section 170.15 and subdivision two of section 180.20 of this chapter;
(b) issuing warrants of arrests, as provided in subdivision one of section 120.70 of this chapter; and
(c) issuing search warrants, as provided in article six hundred ninety of this chapter.
§ 10.30 Local criminal courts; jurisdiction.
1. Local criminal courts have trial jurisdiction of all offenses other than felonies. They have:
(a) Exclusive trial jurisdiction of petty offenses except for the superior court jurisdiction thereof prescribed in paragraph (c) of subdivision one of section 10.20; and
(b) Trial jurisdiction of misdemeanors concurrent with that of the superior courts but subject to divestiture thereof by the latter in any particular case.
2. Local criminal courts have preliminary jurisdiction of all offenses subject to divestiture thereof in any particular case by the superior courts and their grand juries.
3. Notwithstanding the provisions of subdivision one, a superior court judge sitting as a local criminal court does not have trial jurisdiction of any offense, but has preliminary jurisdiction only, as provided in subdivision two.
* § 10.40 Chief administrator to prescribe forms and to authorize use of electronic filing.
1. The chief administrator of the courts shall have the power to adopt, amend and rescind forms for the efficient and just administration of this chapter. Such forms shall include, without limitation, the forms described in paragraph (z-1) of subdivision two of section two hundred twelve of the judiciary law. A failure by any party to submit papers in compliance with forms authorized by this section shall not be grounds for that reason alone for denial or granting of any motion.
2. (a) Notwithstanding any other provision of law, the chief administrator, with the approval of the administrative board of the courts, may promulgate rules authorizing a program in the use of electronic means ("e-filing") in the supreme court and in the county court for (i) the filing with a court of an accusatory instrument for the purpose of commencement of a criminal action or proceeding in a superior court, as provided by articles one hundred ninety-five and two hundred of this chapter, and (ii) the filing and service of papers in pending criminal actions and proceedings. Provided, however, the chief administrator shall consult with the county clerk of a county outside the city of New York before the use of electronic means is to be authorized in the supreme court or county court of such county, afford him or her the opportunity to submit comments with respect thereto, consider any such comments and obtain the agreement thereto of such county clerk.
(b) (i) Except as otherwise provided in this paragraph, participation in this program shall be strictly voluntary and will take place only upon consent of all parties in the criminal action or proceeding; except that a party's failure to consent to participation shall not bar any other party to the action from filing and serving papers by electronic means upon the court or any other party to such action or proceeding who has consented to participation. Filing an accusatory instrument by electronic means with the court for the purpose of commencement of a criminal action or proceeding shall not require the consent of any other party; provided, however, that upon such filing any person who is the subject of such accusatory instrument and any attorney for such person shall be permitted to immediately review and obtain copies of such instrument if such person or attorney would have been authorized by law to review or copy such instrument if it had been filed with the court in paper form.
No party shall be compelled, directly or indirectly, to participate in e-filing. All parties shall be notified clearly, in plain language, about their options to participate in e-filing. Where a party is not represented by counsel, the clerk shall explain such party's options for electronic filing in plain language, including the option for expedited processing, and shall inquire whether he or she wishes to participate, provided however the unrepresented litigant may participate in the program only upon his or her request, which shall be documented in the case file, after said party has been presented with sufficient information in plain language concerning the program.
(ii) The chief administrator may eliminate the requirement of consent to participation in this program in supreme and county courts of not more than six counties provided he or she may not eliminate such requirement for a court without the consent of the district attorney, the consent of the criminal defense bar as defined in subdivision three of this section and the consent of the county clerk of the county in which such court presides.
Notwithstanding the foregoing provisions of this subparagraph, the chief administrator shall not eliminate the requirement of consent to participation in a county hereunder until he or she shall have provided all persons and organizations, or their representative or representatives, who regularly appear in criminal actions or proceedings in the superior court of such county with reasonable notice and opportunity to submit comments with respect thereto and shall have given due consideration to all such comments, nor until he or she shall have consulted with the members of the advisory committee specified in subparagraph (v) of paragraph (u) of subdivision two of section two hundred twelve of the judiciary law.
(c) Where the chief administrator eliminates the requirement of consent as provided in subparagraph (ii) of paragraph (b) of this subdivision, he or she shall afford counsel the opportunity to opt out of the program, via presentation of a prescribed form to be filed with the court where the criminal action is pending. Said form shall permit an attorney to opt out of participation in the program under any of the following circumstances, in which event, he or she will not be compelled to participate:
(i) Where the attorney certifies in good faith that he or she lacks appropriate computer hardware and/or connection to the internet and/or scanner or other device by which documents may be converted to an electronic format; or
(ii) Where the attorney certifies in good faith that he or she lacks the requisite knowledge in the operation of such computers and/or scanners necessary to participate. For the purposes of this subparagraph, the knowledge of any employee of an attorney, or any employee of the attorney's law firm, office or business who is subject to such attorney's direction, shall be imputed to the attorney.
Notwithstanding the foregoing provisions of this paragraph: (A) where a party is not represented by counsel, the clerk shall explain such party's options for electronic filing in plain language, including the option for expedited processing, and shall inquire whether he or she wishes to participate, provided however the unrepresented litigant may participate in the program only upon his or her request, which shall be documented in the case file, after said party has been presented with sufficient information in plain language concerning the program; (B) a party not represented by counsel who has chosen to participate in the program shall be afforded the opportunity to opt out of the program for any reason via presentation of a prescribed form to be filed with the clerk of the court where the proceeding is pending; and (C) a court may exempt any attorney from being required to participate in the program upon application for such exemption, showing good cause therefor.
(d)(i) Nothing in this section shall affect or change any existing laws governing the sealing and confidentiality of court records in criminal proceedings or access to court records by the parties to such proceedings, nor shall this section be construed to compel a party to file a sealed document by electronic means.
(ii) Notwithstanding any other provision of this section, no paper or document that is filed by electronic means in a criminal proceeding in supreme court or county court shall be available for public inspection on-line. Subject to the provisions of existing laws governing the sealing and confidentiality of court records, nothing herein shall prevent the unified court system from sharing statistical information that does not include any papers or documents filed with the action; and, provided further, that this paragraph shall not prohibit the chief administrator, in the exercise of his or her discretion, from posting papers or documents that have not been sealed pursuant to law on a public website maintained by the unified court system where: (A) the website is not the website established by the rules promulgated pursuant to paragraph (a) of this subdivision, and (B) to do so would be in the public interest. For purposes of this subparagraph, the chief administrator, in determining whether posting papers or documents on a public website is in the public interest, shall, at a minimum, take into account for each posting the following factors: (A) the type of case involved; (B) whether such posting would cause harm to any person, including especially a minor or crime victim; (C) whether such posting would include lewd or scandalous matters; and (D) the possibility that such papers or documents may ultimately be sealed.
(iii) Nothing in this section shall affect or change existing laws governing service of process, nor shall this section be construed to abrogate existing personal service requirements as set forth in the criminal procedure law.
3. For purposes of this section, the following terms shall have the following meanings:
(a) "Consent of the criminal defense bar" shall mean that consent has been obtained from all provider offices and/or organizations in the county that represented twenty-five percent or more of the persons represented by public defense providers pursuant to section seven hundred twenty-two of the county law, as shown in the most recent annual reports filed pursuant to subdivision one of section seven hundred twenty-two-f of the county law. Such consent, when given, must be expressed in a written document that is provided by a person who is authorized to consent on behalf of the relevant public defender organization, agency or office; and
(b) "Electronic means" shall be as defined in subdivision (f) of rule twenty-one hundred three of the civil practice law and rules; and
(c) The "filing and service of papers in pending criminal actions and proceedings" shall include the filing and service of a notice of appeal pursuant to section 460.10 of this chapter.
* NB Effective until September 1, 2027 * § 10.40 Chief administrator to prescribe forms.
The chief administrator of the courts shall have the power to adopt, amend and rescind forms for the efficient and just administration of this chapter. Such forms shall include, without limitation, the forms described in paragraph (z-1) of subdivision two of section two hundred twelve of the judiciary law. A failure by any party to submit papers in compliance with forms authorized by this section shall not be grounds for that reason alone for denial or granting of any motion.
* NB Effective September 1, 2027
TITLE C-GENERAL PRINCIPLES RELATING TO REQUIREMENTS FOR AND EXEMPTIONS FROM CRIMINAL PROSECUTION
ARTICLE 20--GEOGRAPHICAL JURISDICTION OF OFFENSES
Section 20.10 Geographical jurisdiction of offenses; definitions of terms.
20.20 Geographical jurisdiction of offenses; jurisdiction of state.
20.30 Geographical jurisdiction of offenses; effect of laws of other jurisdictions upon this state's jurisdiction.
20.40 Geographical jurisdiction of offenses; jurisdiction of counties.
20.50 Geographical jurisdiction of offenses; jurisdiction of cities, towns and villages.
20.60 Geographical jurisdiction of offenses; communications and transportation of property between jurisdictions.
§ 20.20 Geographical jurisdiction of offenses; jurisdiction of state.
Except as otherwise provided in this section and section 20.30, a person may be convicted in the criminal courts of this state of an offense defined by the laws of this state, committed either by his own conduct or by the conduct of another for which he is legally accountable pursuant to section 20.00 of the penal law, when:
1. Conduct occurred within this state sufficient to establish:
(a) An element of such offense; or
(b) An attempt to commit such offense; or
(c) A conspiracy or criminal solicitation to commit such offense, or otherwise to establish the complicity of at least one of the persons liable therefor; provided that the jurisdiction accorded by this paragraph extends only to conviction of those persons whose conspiratorial or other conduct of complicity occurred within this state; or
2. Even though none of the conduct constituting such offense may have occurred within this state:
(a) The offense committed was a result offense and the result occurred within this state. If the offense was one of homicide, it is presumed that the result, namely the death of the victim, occurred within this state if the victim's body or a part thereof was found herein; or
(b) The statute defining the offense is designed to prevent the occurrence of a particular effect in this state and the conduct constituting the offense committed was performed with intent that it would have such effect herein; or
(c) The offense committed was an attempt to commit a crime within this state; or
(d) The offense committed was conspiracy to commit a crime within this state and an overt act in furtherance of such conspiracy occurred within this state; or
3. The offense committed was one of omission to perform within this state a duty imposed by the laws of this state. In such case, it is immaterial whether such person was within or outside this state at the time of the omission.
§ 20.30 Geographical jurisdiction of offenses; effect of laws of other jurisdictions upon this state's jurisdiction.
1. Notwithstanding the provisions of section 20.20, the courts of this state do not have jurisdiction to convict a person of an alleged offense partly committed within this state but consummated in another jurisdiction, or an offense of criminal solicitation, conspiracy or attempt in this state to commit a crime in another jurisdiction, or an offense of criminal facilitation in this state of a felony committed in another jurisdiction, unless the conduct constituting the consummated offense or, as the case may be, the conduct constituting the crime solicited, conspiratorially contemplated or facilitated, constitutes an offense under the laws of such other jurisdiction as well as under the laws of this state.
2. The courts of this state are not deprived of the jurisdiction accorded them by section 20.20 to convict a person of an offense defined by the laws of this state, partly committed in another jurisdiction but consummated in this state, or an offense of attempt or conspiracy in another jurisdiction to commit in this state a crime defined by the laws of this state, by the circumstance that the conduct constituting the consummated offense or, as the case may be, the crime attempted or conspiratorially contemplated, does not constitute an offense under the laws of such other jurisdiction.
§ 20.40 Geographical jurisdiction of offenses; jurisdiction of counties.
A person may be convicted in an appropriate criminal court of a particular county, of an offense of which the criminal courts of this state have jurisdiction pursuant to section 20.20, committed either by his or her own conduct or by the conduct of another for which he or she is legally accountable pursuant to section 20.00 of the penal law, when:
1. Conduct occurred within such county sufficient to establish:
(a) An element of such offense; or
(b) An attempt or a conspiracy to commit such offense; or
2. Even though none of the conduct constituting such offense may have occurred within such county:
(a) The offense committed was a result offense and the result occurred in such county; or
(b) The offense committed was one of homicide and the victim's body or a part thereof was found in such county; or
(c) Such conduct had, or was likely to have, a particular effect upon such county or a political subdivision or part thereof, and was performed with intent that it would, or with knowledge that it was likely to, have such particular effect therein; or
(d) The offense committed was attempt, conspiracy or criminal solicitation to commit a crime in such county; or
(e) The offense committed was criminal facilitation of a felony committed in such county; or
3. The offense committed was one of omission to perform a duty imposed by law, which duty either was required to be or could properly have been performed in such county. In such case, it is immaterial whether such person was within or outside such county at the time of the omission; or
4. Jurisdiction of such offense is accorded to the courts of such county pursuant to any of the following rules:
(a) An offense of abandonment of a child or non-support of a child may be prosecuted in (i) any county in which such child resided during the period of abandonment or non-support, or (ii) any county in which such person resided during such period, or (iii) any county in which such person was present during such period, provided that he was arrested for such offense in such county or the criminal action therefor was commenced while he was present therein.
(b) An offense of bigamy may be prosecuted either in the county in which such offense was committed or in (i) any county in which bigamous cohabitation subsequently occurred, or (ii) any county in which such person was present after the commission of the offense, provided that he was arrested for such offense in such county or the criminal action therefor was commenced while he was present therein.
(c) An offense committed within five hundred yards of the boundary of a particular county, and in an adjoining county of this state, may be prosecuted in either such county.
(d) An offense committed anywhere on the Hudson river southward of the northern boundary of New York City, or anywhere on New York bay between Staten Island and Long Island, may be prosecuted in any of the five counties of New York City.
(e) An offense committed upon any bridge or in any tunnel having terminals in different counties may be prosecuted in any terminal county.
(f) An offense committed on board a railroad train, aircraft or omnibus operating as a common carrier may be prosecuted in any county through or over which such common carrier passed during the particular trip, or in any county in which such trip terminated or was scheduled to terminate.
(g) An offense committed in a private vehicle during a trip thereof extending through more than one county may be prosecuted in any county through which such vehicle passed in the course of such trip.
(h) An offense committed on board a vessel navigating or lying in any river, canal or lake flowing through or situated within this state, may be prosecuted in any county bordering upon such body of water, or in which it is located, or through which it passes; and if such offense was committed upon a vessel operating as a common carrier, it may be prosecuted in any county bordering upon any body of water upon which such vessel navigated or passed during the particular trip.
(i) An offense committed in the Atlantic Ocean within two nautical miles from the shore at high water mark may be prosecuted in an appropriate court of the county the shore line of which is closest to the point where the offense was committed. A crime committed more than two nautical miles from the shore but within the boundary of this state may be prosecuted in the supreme court of the county the shore line of which is closest to the point where the crime was committed.
(j) An offense of forgery may be prosecuted in any county in which the defendant, or another for whose conduct the defendant is legally accountable pursuant to section 20.00 of the penal law, possessed the instrument.
(k) An offense of offering of a false instrument for filing, or of larceny by means of a false pretense therein, may be prosecuted (i) in any county in which such instrument was executed, in whole or in part, or (ii) in any county in which any of the goods or services for which payment or reimbursement is sought by means of such instrument were purported to have been provided.
(l) An offense of identity theft or unlawful possession of personal identifying information and all criminal acts committed as part of the same criminal transaction as defined in subdivision two of section 40.10 of this chapter may be prosecuted (i) in any county in which part of the offense took place regardless of whether the defendant was actually present in such county, or (ii) in the county in which the person who suffers financial loss resided at the time of the commission of the offense, or (iii) in the county where the person whose personal identifying information was used in the commission of the offense resided at the time of the commission of the offense. The law enforcement agency of any such county shall take a police report of the matter and provide the complainant with a copy of such report at no charge.
(m) An offense under the tax law or the penal law of filing a false or fraudulent return, report, document, declaration, statement, or filing, or of tax evasion, fraud, or larceny resulting from the filing of a false or fraudulent return, report, document, declaration, or filing in connection with the payment of taxes to the state or a political subdivision of the state, may be prosecuted in any county in which an underlying transaction reflected, reported or required to be reflected or reported, in whole or part, on such return, report, document, declaration, statement, or filing occurred.
(n) (i) An organized retail theft crime, where the defendant knows that such crime is a part of a coordinated plan, scheme or venture of organized retail theft crimes committed by two or more persons, may be prosecuted in any county in which such defendant committed at least one such organized retail theft crime; provided, however, that the county of prosecution is contiguous to another county in which one or more of such other organized retail theft crimes was committed. Multiple organized retail theft crimes committed by the same defendant may be joined in one indictment if authorized and appropriate in accordance with the provisions of section 200.20 of this chapter, provided, however, that notwithstanding section 200.40 of this chapter, no more than one defendant may be charged in the same indictment or prosecuted as part of the same trial under this paragraph. For purposes of this paragraph, the five counties that comprise New York city shall be deemed contiguous with each other.
(ii) For purposes of this paragraph, "organized retail theft crime" shall mean the crime of larceny, including by trick, fraud, embezzlement, stealing or false pretenses, of retail merchandise in quantities that would not normally be purchased for personal use or consumption, for the purposes of reselling, trading, or otherwise reentering such retail merchandise in commerce.
§ 20.50 Geographical jurisdiction of offenses; jurisdiction of cities, towns and villages.
1. The principles prescribed in section 20.40, governing geographical jurisdiction over offenses as between counties of this state, are, where appropriate, applicable to the determination of geographical jurisdiction over offenses as between cities, towns and villages within a particular county unless a different determination is required by the provisions of some other express provision of statute.
2. Where an offense prosecutable in a local criminal court is committed in a city other than New York City, or in a town or village, but within one hundred yards of any other such political subdivision, it may be prosecuted in either such political subdivision.
§ 20.60 Geographical jurisdiction of offenses; communications and transportation of property between jurisdictions.
For purposes of this article:
1. An oral or written statement made by a person in one jurisdiction to a person in another jurisdiction by means of telecommunication, mail or any other method of communication is deemed to be made in each such jurisdiction.
2. A person who causes property to be transported from one jurisdiction to another by means of mail, common carrier or any other method is deemed to have personally transported it in each jurisdiction, and if delivery is made in the second jurisdiction he is deemed to have personally made such delivery therein.
3. A person who causes by any means the use of a computer or computer service in one jurisdiction from another jurisdiction is deemed to have personally used the computer or computer service in each jurisdiction.
ARTICLE 30--TIMELINESS OF PROSECUTIONS AND SPEEDY TRIAL
Section 30.10 Timeliness of prosecutions; periods of limitation.
30.20 Speedy trial; in general.
30.30 Speedy trial; time limitations.
§ 30.10 Timeliness of prosecutions; periods of limitation.
1. A criminal action must be commenced within the period of limitation prescribed in the ensuing subdivisions of this section.
2. Except as otherwise provided in subdivision three:
(a) A prosecution for a class A felony, or rape in the first degree as defined in section 130.35 of the penal law, or a crime defined or formerly defined in section 130.50 of the penal law, or aggravated sexual abuse in the first degree as defined in section 130.70 of the penal law, or course of sexual conduct against a child in the first degree as defined in section 130.75 of the penal law, or incest in the first degree as defined in section 255.27 of the penal law may be commenced at any time;
(a-1) A prosecution for rape in the second degree as defined in subdivision two of section 130.30 of the penal law, or criminal sexual act in the second degree as defined in subdivision two of section 130.45 of the penal law, or incest in the second degree as defined in section 255.26 of the penal law (where the crime committed is rape in the second degree as defined in subdivision two of section 130.30 of the penal law or criminal sexual act in the second degree as defined in subdivision two of section 130.45) must be commenced within twenty years after the commission thereof or within ten years from when the offense is first reported to law enforcement, whichever occurs earlier;
(a-2) A prosecution for rape in the third degree as defined in subdivision one or three of section 130.25 of the penal law, or criminal sexual act in the third degree as defined in subdivision one or three of section 130.40 of the penal law must be commenced within ten years after the commission thereof;
(b) A prosecution for any other felony must be commenced within five years after the commission thereof;
(c) A prosecution for a misdemeanor must be commenced within two years after the commission thereof;
(d) A prosecution for a petty offense must be commenced within one year after the commission thereof.
3. Notwithstanding the provisions of subdivision two, the periods of limitation for the commencement of criminal actions are extended as follows in the indicated circumstances:
(a) A prosecution for larceny committed by a person in violation of a fiduciary duty may be commenced within one year after the facts constituting such offense are discovered or, in the exercise of reasonable diligence, should have been discovered by the aggrieved party or by a person under a legal duty to represent him who is not himself implicated in the commission of the offense.
(b) A prosecution for any offense involving misconduct in public office by a public servant including, without limitation, an offense defined in article four hundred ninety-six of the penal law, may be commenced against a public servant, or any other person acting in concert with such public servant at any time during such public servant's service in such office or within five years after the termination of such service; provided however, that in no event shall the period of limitation be extended by more than five years beyond the period otherwise applicable under subdivision two of this section.
(c) A prosecution for any crime set forth in title twenty-seven or article seventy-one of the environmental conservation law may be commenced within four years after the facts constituting such crime are discovered or, in the exercise of reasonable diligence, should have been discovered by a public servant who has the responsibility to enforce the provisions of said title and article.
(d) A prosecution for any misdemeanor set forth in the tax law or chapter forty-six of the administrative code of the city of New York must be commenced within three years after the commission thereof.
(e) A prosecution for course of sexual conduct against a child in the second degree as defined in section 130.80 of the penal law may be commenced within five years of the commission of the most recent act of sexual conduct.
(f) For purposes of a prosecution involving a sexual offense as defined in article one hundred thirty of the penal law, other than a sexual offense delineated in paragraph (a) of subdivision two of this section, committed against a child less than eighteen years of age, incest in the first, second or third degree as defined in sections 255.27, 255.26 and 255.25 of the penal law committed against a child less than eighteen years of age, or use of a child in a sexual performance as defined in section 263.05 of the penal law, the period of limitation shall not begin to run until the child has reached the age of twenty-three or the offense is reported to a law enforcement agency or statewide central register of child abuse and maltreatment, whichever occurs earlier.
(g) A prosecution for any felony defined in article four hundred ninety of the penal law must be commenced within eight years after the commission thereof provided, however, that in a prosecution for a felony defined in article four hundred ninety of the penal law, if the commission of such felony offense resulted in, or created a foreseeable risk of, death or serious physical injury to another person, the prosecution may be commenced at any time; provided, however, that nothing in this paragraph shall be deemed to shorten or otherwise lessen the period, defined in any other applicable law, in which a prosecution for a felony designated in this paragraph may be commenced.
4. In calculating the time limitation applicable to commencement of a criminal action, the following periods shall not be included:
(a) Any period following the commission of the offense during which (i) the defendant was continuously outside this state or (ii) the whereabouts of the defendant were continuously unknown and continuously unascertainable by the exercise of reasonable diligence. However, in no event shall the period of limitation be extended by more than five years beyond the period otherwise applicable under subdivision two.
(b) When a prosecution for an offense is lawfully commenced within the prescribed period of limitation therefor, and when an accusatory instrument upon which such prosecution is based is subsequently dismissed by an authorized court under directions or circumstances permitting the lodging of another charge for the same offense or an offense based on the same conduct, the period extending from the commencement of the thus defeated prosecution to the dismissal of the accusatory instrument does not constitute a part of the period of limitation applicable to commencement of prosecution by a new charge.
§ 30.10 Timeliness of prosecutions; periods of limitation.
1. A criminal action must be commenced within the period of limitation prescribed in the ensuing subdivisions of this section.
2. Except as otherwise provided in subdivision three:
(a) A prosecution for a class A felony, or rape in the first degree as defined in section 130.35 of the penal law, or a crime defined or formerly defined in section 130.50 of the penal law, or aggravated sexual abuse in the first degree as defined in section 130.70 of the penal law, or course of sexual conduct against a child in the first degree as defined in section 130.75 of the penal law, or incest in the first degree as defined in section 255.27 of the penal law may be commenced at any time;
(a-1) A prosecution for rape in the second degree as defined in subdivision two of section 130.30 of the penal law, or criminal sexual act in the second degree as defined in subdivision two of section 130.45 of the penal law, or incest in the second degree as defined in section 255.26 of the penal law (where the crime committed is rape in the second degree as defined in subdivision two of section 130.30 of the penal law or criminal sexual act in the second degree as defined in subdivision two of section 130.45) must be commenced within twenty years after the commission thereof or within ten years from when the offense is first reported to law enforcement, whichever occurs earlier;
(a-2) A prosecution for rape in the third degree as defined in subdivision one or three of section 130.25 of the penal law, or criminal sexual act in the third degree as defined in subdivision one or three of section 130.40 of the penal law must be commenced within ten years after the commission thereof;
(b) A prosecution for any other felony must be commenced within five years after the commission thereof;
(c) A prosecution for a misdemeanor must be commenced within two years after the commission thereof;
(d) A prosecution for a petty offense must be commenced within one year after the commission thereof.
3. Notwithstanding the provisions of subdivision two, the periods of limitation for the commencement of criminal actions are extended as follows in the indicated circumstances:
(a) A prosecution for larceny committed by a person in violation of a fiduciary duty may be commenced within one year after the facts constituting such offense are discovered or, in the exercise of reasonable diligence, should have been discovered by the aggrieved party or by a person under a legal duty to represent him who is not himself implicated in the commission of the offense.
(b) A prosecution for any offense involving misconduct in public office by a public servant including, without limitation, an offense defined in article four hundred ninety-six of the penal law, may be commenced against a public servant, or any other person acting in concert with such public servant at any time during such public servant's service in such office or within five years after the termination of such service; provided however, that in no event shall the period of limitation be extended by more than five years beyond the period otherwise applicable under subdivision two of this section.
(c) A prosecution for any crime set forth in title twenty-seven or article seventy-one of the environmental conservation law may be commenced within four years after the facts constituting such crime are discovered or, in the exercise of reasonable diligence, should have been discovered by a public servant who has the responsibility to enforce the provisions of said title and article.
(d) A prosecution for any misdemeanor set forth in the tax law or chapter forty-six of the administrative code of the city of New York must be commenced within three years after the commission thereof.
(e) A prosecution for course of sexual conduct against a child in the second degree as defined in section 130.80 of the penal law may be commenced within five years of the commission of the most recent act of sexual conduct.
(f) For purposes of a prosecution involving a sexual offense as defined in article one hundred thirty of the penal law, other than a sexual offense delineated in paragraph (a) of subdivision two of this section, committed against a child less than eighteen years of age, incest in the first, second or third degree as defined in sections 255.27, 255.26 and 255.25 of the penal law committed against a child less than eighteen years of age, or use of a child in a sexual performance as defined in section 263.05 of the penal law, the period of limitation shall not begin to run until the child has reached the age of twenty-three or the offense is reported to a law enforcement agency or statewide central register of child abuse and maltreatment, whichever occurs earlier.
(g) A prosecution for any felony defined in article four hundred ninety of the penal law must be commenced within eight years after the commission thereof provided, however, that in a prosecution for a felony defined in article four hundred ninety of the penal law, if the commission of such felony offense resulted in, or created a foreseeable risk of, death or serious physical injury to another person, the prosecution may be commenced at any time; provided, however, that nothing in this paragraph shall be deemed to shorten or otherwise lessen the period, defined in any other applicable law, in which a prosecution for a felony designated in this paragraph may be commenced.
4. In calculating the time limitation applicable to commencement of a criminal action, the following periods shall not be included:
(a) Any period following the commission of the offense during which (i) the defendant was continuously outside this state or (ii) the whereabouts of the defendant were continuously unknown and continuously unascertainable by the exercise of reasonable diligence. However, in no event shall the period of limitation be extended by more than five years beyond the period otherwise applicable under subdivision two.
(b) When a prosecution for an offense is lawfully commenced within the prescribed period of limitation therefor, and when an accusatory instrument upon which such prosecution is based is subsequently dismissed by an authorized court under directions or circumstances permitting the lodging of another charge for the same offense or an offense based on the same conduct, the period extending from the commencement of the thus defeated prosecution to the dismissal of the accusatory instrument does not constitute a part of the period of limitation applicable to commencement of prosecution by a new charge.
§ 30.20 Speedy trial; in general.
1. After a criminal action is commenced, the defendant is entitled to a speedy trial.
2. Insofar as is practicable, the trial of a criminal action must be given preference over civil cases; and the trial of a criminal action where the defendant has been committed to the custody of the sheriff during the pendency of the criminal action must be given preference over other criminal actions.
§ 30.30 Speedy trial; time limitations.
1. Except as otherwise provided in subdivision three of this section, a motion made pursuant to paragraph (e) of subdivision one of section 170.30 or paragraph (g) of subdivision one of section 210.20 of this chapter must be granted where the people are not ready for trial within:
(a) six months of the commencement of a criminal action wherein a defendant is accused of one or more offenses, at least one of which is a felony;
(b) ninety days of the commencement of a criminal action wherein a defendant is accused of one or more offenses, at least one of which is a misdemeanor punishable by a sentence of imprisonment of more than three months and none of which is a felony;
(c) sixty days of the commencement of a criminal action wherein the defendant is accused of one or more offenses, at least one of which is a misdemeanor punishable by a sentence of imprisonment of not more than three months and none of which is a crime punishable by a sentence of imprisonment of more than three months; or
(d) thirty days of the commencement of a criminal action wherein the defendant is accused of one or more offenses, at least one of which is a violation and none of which is a crime.
(e) for the purposes of this subdivision, the term offense shall include vehicle and traffic law infractions.
2. Except as provided in subdivision three of this section, where a defendant has been committed to the custody of the sheriff or the office of children and family services in a criminal action he or she must be released on bail or on his or her own recognizance, upon such conditions as may be just and reasonable, if the people are not ready for trial in that criminal action within:
(a) ninety days from the commencement of his or her commitment to the custody of the sheriff or the office of children and family services in a criminal action wherein the defendant is accused of one or more offenses, at least one of which is a felony;
(b) thirty days from the commencement of his or her commitment to the custody of the sheriff or the office of children and family services in a criminal action wherein the defendant is accused of one or more offenses, at least one of which is a misdemeanor punishable by a sentence of imprisonment of more than three months and none of which is a felony;
(c) fifteen days from the commencement of his or her commitment to the custody of the sheriff or the office of children and family services in a criminal action wherein the defendant is accused of one or more offenses, at least one of which is a misdemeanor punishable by a sentence of imprisonment of not more than three months and none of which is a crime punishable by a sentence of imprisonment of more than three months; or
(d) five days from the commencement of his or her commitment to the custody of the sheriff or the office of children and family services in a criminal action wherein the defendant is accused of one or more offenses, at least one of which is a violation and none of which is a crime.
(e) for the purposes of this subdivision, the term offense shall include vehicle and traffic law infractions.
3. (a) Subdivisions one and two of this section do not apply to a criminal action wherein the defendant is accused of an offense defined in sections 125.10, 125.15, 125.20, 125.25, 125.26 and 125.27 of the penal law.
(b) A motion made pursuant to subdivisions one or two of this section upon expiration of the specified period may be denied where the people are not ready for trial if the people were ready for trial prior to the expiration of the specified period and their present unreadiness is due to some exceptional fact or circumstance, including, but not limited to, the sudden unavailability of evidence material to the people's case, when the district attorney has exercised due diligence to obtain such evidence and there are reasonable grounds to believe that such evidence will become available in a reasonable period.
(c) A motion made pursuant to subdivision two of this section shall not:
(i) apply to any defendant who is serving a term of imprisonment for another offense;
(ii) require the release from custody of any defendant who is also being held in custody pending trial of another criminal charge as to which the applicable period has not yet elapsed;
(iii) prevent the redetention of or otherwise apply to any defendant who, after being released from custody pursuant to this section or otherwise, is charged with another crime or violates the conditions on which he has been released, by failing to appear at a judicial proceeding at which his presence is required or otherwise.
4. In computing the time within which the people must be ready for trial pursuant to subdivisions one and two of this section, the following periods must be excluded:
(a) a reasonable period of delay resulting from other proceedings concerning the defendant, including but not limited to: proceedings for the determination of competency and the period during which defendant is incompetent to stand trial; demand to produce; request for a bill of particulars; pre-trial motions; appeals; trial of other charges; and the period during which such matters are under consideration by the court; or
(b) the period of delay resulting from a continuance granted by the court at the request of, or with the consent of, the defendant or his or her counsel. The court may grant such a continuance only if it is satisfied that postponement is in the interest of justice, taking into account the public interest in the prompt dispositions of criminal charges. A defendant without counsel must not be deemed to have consented to a continuance unless he or she has been advised by the court of his or her rights under these rules and the effect of his consent, which must be done on the record in open court; or
(c) (i) the period of delay resulting from the absence or unavailability of the defendant. A defendant must be considered absent whenever his location is unknown and he is attempting to avoid apprehension or prosecution, or his location cannot be determined by due diligence. A defendant must be considered unavailable whenever his location is known but his presence for trial cannot be obtained by due diligence; or
(ii) where the defendant has either escaped from custody or has failed to appear when required after having previously been released on bail or on his own recognizance, and provided the defendant is not in custody on another matter, the period extending from the day the court issues a bench warrant pursuant to section 530.70 of this chapter because of the defendant's failure to appear in court when required, to the day the defendant subsequently appears in the court pursuant to a bench warrant or voluntarily or otherwise; or
(d) a reasonable period of delay when the defendant is joined for trial with a co-defendant as to whom the time for trial pursuant to this section has not run and good cause is not shown for granting a severance; or
(e) the period of delay resulting from detention of the defendant in another jurisdiction provided the district attorney is aware of such detention and has been diligent and has made reasonable efforts to obtain the presence of the defendant for trial; or
(f) the period during which the defendant is without counsel through no fault of the court; except when the defendant is proceeding as his own attorney with the permission of the court; or
(g) other periods of delay occasioned by exceptional circumstances, including but not limited to, the period of delay resulting from a continuance granted at the request of a district attorney if (i) the continuance is granted because of the unavailability of evidence material to the people's case, when the district attorney has exercised due diligence to obtain such evidence and there are reasonable grounds to believe that such evidence will become available in a reasonable period; or (ii) the continuance is granted to allow the district attorney additional time to prepare the people's case and additional time is justified by the exceptional circumstances of the case. Any such exclusion when a statement of unreadiness has followed a statement of readiness made by the people must be evaluated by the court after inquiry on the record as to the reasons for the people's unreadiness and shall only be approved upon a showing of sufficient supporting facts; or
(h) the period during which an action has been adjourned in contemplation of dismissal pursuant to sections 170.55, 170.56 and 215.10 of this chapter; or
(i) the period prior to the defendant's actual appearance for arraignment in a situation in which the defendant has been directed to appear by the district attorney pursuant to subdivision three of section 120.20 or subdivision three of section 210.10 of this chapter; or
(j) the period during which a family offense is before a family court until such time as an accusatory instrument or indictment is filed against the defendant alleging a crime constituting a family offense, as such term is defined in section 530.11 of this chapter.
5. Whenever pursuant to this section a prosecutor states or otherwise provides notice that the people are ready for trial, the court shall make inquiry on the record as to their actual readiness. If, after conducting its inquiry, the court determines that the people are not ready to proceed to trial, the prosecutor's statement or notice of readiness shall not be valid for purposes of this section. Any statement of trial readiness must be accompanied or preceded by a certification of good faith compliance with the disclosure requirements of section 245.20 of this chapter and the defense shall be afforded an opportunity to be heard on the record as to whether the disclosure requirements have been met. This subdivision shall not apply to cases where the defense has waived disclosure requirements.
5-a. Upon a local criminal court accusatory instrument, a statement of readiness shall not be valid unless the prosecuting attorney certifies that all counts charged in the accusatory instrument meet the requirements of sections 100.15 and 100.40 of this chapter and those counts not meeting the requirements of sections 100.15 and 100.40 of this chapter have been dismissed.
6. An order finally denying a motion to dismiss pursuant to subdivision one of this section shall be reviewable upon an appeal from an ensuing judgment of conviction notwithstanding the fact that such judgment is entered upon a plea of guilty.
7. For purposes of this section, (a) where the defendant is to be tried following the withdrawal of the plea of guilty or is to be retried following a mistrial, an order for a new trial or an appeal or collateral attack, the criminal action and the commitment to the custody of the sheriff or the office of children and family services, if any, must be deemed to have commenced on the date the withdrawal of the plea of guilty or the date the order occasioning a retrial becomes final;
(b) where a defendant has been served with an appearance ticket, the criminal action must be deemed to have commenced on the date the defendant first appears in a local criminal court in response to the ticket;
(c) where a criminal action is commenced by the filing of a felony complaint, and thereafter, in the course of the same criminal action either the felony complaint is replaced with or converted to an information, prosecutor's information or misdemeanor complaint pursuant to article one hundred eighty of this chapter or a prosecutor's information is filed pursuant to section 190.70 of this chapter, the period applicable for the purposes of subdivision one must be the period applicable to the charges in the new accusatory instrument, calculated from the date of the filing of such new accusatory instrument; provided, however, that when the aggregate of such period and the period of time, excluding the periods provided in subdivision four, already elapsed from the date of the filing of the felony complaint to the date of the filing of the new accusatory instrument exceeds six months, the period applicable to the charges in the felony complaint must remain applicable and continue as if the new accusatory instrument had not been filed;
(d) where a criminal action is commenced by the filing of a felony complaint, and thereafter, in the course of the same criminal action either the felony complaint is replaced with or converted to an information, prosecutor's information or misdemeanor complaint pursuant to article one hundred eighty of this chapter or a prosecutor's information is filed pursuant to section 190.70 of this chapter, the period applicable for the purposes of subdivision two of this section must be the period applicable to the charges in the new accusatory instrument, calculated from the date of the filing of such new accusatory instrument; provided, however, that when the aggregate of such period and the period of time, excluding the periods provided in subdivision four of this section, already elapsed from the date of the filing of the felony complaint to the date of the filing of the new accusatory instrument exceeds ninety days, the period applicable to the charges in the felony complaint must remain applicable and continue as if the new accusatory instrument had not been filed.
(e) where a count of an indictment is reduced to charge only a misdemeanor or petty offense and a reduced indictment or a prosecutor's information is filed pursuant to subdivisions one-a and six of section 210.20 of this chapter, the period applicable for the purposes of subdivision one of this section must be the period applicable to the charges in the new accusatory instrument, calculated from the date of the filing of such new accusatory instrument; provided, however, that when the aggregate of such period and the period of time, excluding the periods provided in subdivision four of this section, already elapsed from the date of the filing of the indictment to the date of the filing of the new accusatory instrument exceeds six months, the period applicable to the charges in the indictment must remain applicable and continue as if the new accusatory instrument had not been filed;
(f) where a count of an indictment is reduced to charge only a misdemeanor or petty offense and a reduced indictment or a prosecutor's information is filed pursuant to subdivisions one-a and six of section 210.20 of this chapter, the period applicable for the purposes of subdivision two of this section must be the period applicable to the charges in the new accusatory instrument, calculated from the date of the filing of such new accusatory instrument; provided, however, that when the aggregate of such period and the period of time, excluding the periods provided in subdivision four of this section, already elapsed from the date of the filing of the indictment to the date of the filing of the new accusatory instrument exceeds ninety days, the period applicable to the charges in the indictment must remain applicable and continue as if the new accusatory instrument had not been filed.
8. The procedural rules prescribed in subdivisions one through seven of section 210.45 of this chapter with respect to a motion to dismiss an indictment are not applicable to a motion made pursuant to subdivision two of this section. If, upon oral argument, a time period is in dispute, the court must promptly conduct a hearing in which the people must prove that the time period is excludable.
ARTICLE 40--EXEMPTION FROM PROSECUTION BY REASON OF PREVIOUS PROSECUTION
Section 40.10 Previous prosecution; definitions of terms.
40.20 Previous prosecution; when a bar to second prosecution.
40.30 Previous prosecution; what constitutes.
40.40 Separate prosecution of jointly prosecutable offenses; when barred.
40.50 Previous prosecution; enterprise corruption.
40.51 Previous prosecution: presidential reprieve, pardon or other form of clemency.
§ 40.10 Previous prosecution; definitions of terms.
The following definitions are applicable to this article:
1. "Offense." An "offense" is committed whenever any conduct is performed which violates a statutory provision defining an offense; and when the same conduct or criminal transaction violates two or more such statutory provisions each such violation constitutes a separate and distinct offense. The same conduct or criminal transaction also establishes separate and distinct offenses when, though violating only one statutory provision, it results in death, injury, loss or other consequences to two or more victims, and such result is an element of the offense as defined. In such case, as many offenses are committed as there are victims.
2. "Criminal transaction" means conduct which establishes at least one offense, and which is comprised of two or more or a group of acts either (a) so closely related and connected in point of time and circumstance of commission as to constitute a single criminal incident, or (b) so closely related in criminal purpose or objective as to constitute elements or integral parts of a single criminal venture.
§ 40.20 Previous prosecution; when a bar to second prosecution.
1. A person may not be twice prosecuted for the same offense.
2. A person may not be separately prosecuted for two offenses based upon the same act or criminal transaction unless:
(a) The offenses as defined have substantially different elements and the acts establishing one offense are in the main clearly distinguishable from those establishing the other; or
(b) Each of the offenses as defined contains an element which is not an element of the other, and the statutory provisions defining such offenses are designed to prevent very different kinds of harm or evil; or
(c) One of such offenses consists of criminal possession of contraband matter and the other offense is one involving the use of such contraband matter, other than a sale thereof; or
(d) One of the offenses is assault or some other offense resulting in physical injury to a person, and the other offense is one of homicide based upon the death of such person from the same physical injury, and such death occurs after a prosecution for the assault or other non-homicide offense; or
(e) Each offense involves death, injury, loss or other consequence to a different victim; or
(f) One of the offenses consists of a violation of a statutory provision of another jurisdiction, which offense has been prosecuted in such other jurisdiction and has there been terminated by a court order expressly founded upon insufficiency of evidence to establish some element of such offense which is not an element of the other offense, defined by the laws of this state; or
(g) The present prosecution is for a consummated result offense, as defined in subdivision three of section 20.10, which occurred in this state and the offense was the result of a conspiracy, facilitation or solicitation prosecuted in another state.
(h) One of such offenses is enterprise corruption in violation of section 460.20 of the penal law, racketeering in violation of federal law or any comparable offense pursuant to the law of another state and a separate or subsequent prosecution is not barred by section 40.50 of this article.
(i) One of the offenses consists of a violation of 18 U.S.C. 371, where the object of the conspiracy is to attempt in any manner to evade or defeat any federal income tax or the payment thereof, or a violation of 26 U.S.C. 7201, 26 U.S.C. 7202, 26 U.S.C. 7203, 26 U.S.C. 7204, 26 U.S.C. 7205, 26 U.S.C. 7206 or 26 U.S.C. 7212(A), where the purpose is to evade or defeat any federal income tax or the payment thereof, and the other offense is committed for the purpose of evading or defeating any New York state or New York city income taxes and is defined in article one hundred fifty-five of the penal law, article one hundred seventy of the penal law, article one hundred seventy-five of the penal law, article thirty-seven of the tax law or chapter forty of title eleven of the administrative code of the city of New York.
§ 40.30 Previous prosecution; what constitutes.
1. Except as otherwise provided in this section, a person "is prosecuted" for an offense, within the meaning of section 40.20, when he is charged therewith by an accusatory instrument filed in a court of this state or of any jurisdiction within the United States, and when the action either:
(a) Terminates in a conviction upon a plea of guilty; or
(b) Proceeds to the trial stage and a jury has been impaneled and sworn or, in the case of a trial by the court without a jury, a witness is sworn.
2. Despite the occurrence of proceedings specified in subdivision one, a person is not deemed to have been prosecuted for an offense, within the meaning of section 40.20, when:
(a) Such prosecution occurred in a court which lacked jurisdiction over the defendant or the offense; or
(b) Such prosecution was for a lesser offense than could have been charged under the facts of the case, and the prosecution was procured by the defendant, without the knowledge of the appropriate prosecutor, for the purpose of avoiding prosecution for a greater offense.
3. Despite the occurrence of proceedings specified in subdivision one, if such proceedings are subsequently nullified by a court order which restores the action to its pre-pleading status or which directs a new trial of the same accusatory instrument, the nullified proceedings do not bar further prosecution of such offense under the same accusatory instrument.
4. Despite the occurrence of proceedings specified in subdivision one, if such proceedings are subsequently nullified by a court order which dismisses the accusatory instrument but authorizes the people to obtain a new accusatory instrument charging the same offense or an offense based upon the same conduct, the nullified proceedings do not bar further prosecution of such offense under any new accusatory instrument obtained pursuant to such court order or authorization.
§ 40.40 Separate prosecution of jointly prosecutable offenses; when barred.
1. Where two or more offenses are joinable in a single accusatory instrument against a person by reason of being based upon the same criminal transaction, pursuant to paragraph (a) of subdivision two of section 200.20, such person may not, under circumstances prescribed in this section, be separately prosecuted for such offenses even though such separate prosecutions are not otherwise barred by any other section of this article.
2. When (a) one of two or more joinable offenses of the kind specified in subdivision one is charged in an accusatory instrument, and (b) another is not charged therein, or in any other accusatory instrument filed in the same court, despite possession by the people of evidence legally sufficient to support a conviction of the defendant for such uncharged offense, and (c) either a trial of the existing accusatory instrument is commenced or the action thereon is disposed of by a plea of guilty, any subsequent prosecution for the uncharged offense is thereby barred.
3. When (a) two or more of such offenses are charged in separate accusatory instruments filed in the same court, and (b) an application by the defendant for consolidation thereof for trial purposes, pursuant to subdivision five of section 200.20 or section 100.45, is improperly denied, the commencement of a trial of one such accusatory instrument bars any subsequent prosecution upon any of the other accusatory instruments with respect to any such offense.
§ 40.50 Previous prosecution; enterprise corruption.
1. The following definitions are applicable to this section:
(a) A criminal act or offense is "specifically included" when a count of an accusatory instrument charging a person with enterprise corruption alleges a pattern of criminal activity and the act or offense is alleged to be a criminal act within such pattern.
(b) A criminal act is "a part of" a pattern of criminal activity alleged in a count of enterprise corruption when it is committed prior to commencement of the criminal action in which enterprise corruption is charged and was committed in furtherance of the same common scheme or plan or with intent to participate in or further the affairs of the same criminal enterprise to which the crimes specifically included in the pattern are connected.
(c) A person "is prosecuted" for an offense when he is prosecuted for it within the meaning of section 40.30 of this article or when an indictment or a count of an indictment charging that offense is dismissed pursuant to section 210.20 of this chapter without authorization to submit the charge to the same or another grand jury, or the indictment or the count of the indictment charging that offense is dismissed following the granting of a motion to suppress pursuant to article 710 of this chapter, unless an appeal from the order granting the motion to dismiss or suppress is pending.
(d) An offense was "not prosecutable" in an accusatory instrument in which a person was charged with enterprise corruption when there was no geographical jurisdiction of that offense in the county where the accusatory instrument was filed, or when the offense was prosecutable in the county and was not barred from prosecution by section 40.20 or 40.40 of this article or by any other provision of law but the prosecutor filing the accusatory instrument was not empowered by law to prosecute the offense.
2. A person who has been previously prosecuted for an offense may not be subsequently prosecuted for enterprise corruption based upon a pattern of criminal activity in which that prior offense, or another offense based upon the same act or criminal transaction, is specifically included unless:
(a) he was convicted of that prior offense; and
(b) the subsequent pattern of criminal activity in which he participated includes at least one criminal act for which he was not previously prosecuted, which was a felony, and which occurred after that prior conviction.
3. A person who has been previously prosecuted for enterprise corruption may not be subsequently prosecuted for an offense specifically included in the pattern of criminal activity upon which it was based, or another offense based upon the same act or criminal transaction, unless the offense is a class A felony and was not prosecutable in the accusatory instrument in which the person was charged with enterprise corruption.
4. A person may not be separately prosecuted for enterprise corruption and for an offense specifically included in the pattern of criminal activity upon which it is based or another offense based upon the same act or transaction, unless the offense is a class A felony and is not prosecutable in the accusatory instrument in which the person is charged with enterprise corruption.
5. A person who has been previously prosecuted for enterprise corruption may not be subsequently prosecuted for an offense which, while not specifically included in the pattern of criminal activity on which the prior charge of enterprise corruption was based, was nonetheless a part of that pattern, unless the offense was a class A or B felony and either the offense was not prosecutable in the accusatory instrument in which the person was charged with enterprise corruption or the people show, by clear and convincing evidence, that the prosecutor did not possess evidence legally sufficient to support a conviction of that offense at the time of the earlier prosecution and evidence of that offense was not presented as part of the case in chief in the earlier prosecution.
6. A person who has been previously prosecuted for enterprise corruption may not be subsequently prosecuted for enterprise corruption based upon a pattern of criminal activity that specifically includes a criminal act that was also specifically included in the pattern upon which the prior charge of enterprise corruption was based.
7. A person may not be separately prosecuted for enterprise corruption in two accusatory instruments based upon a pattern of criminal activity, alleged in either instrument, that specifically includes a criminal act that is also specifically included in the pattern upon which the other charge of enterprise corruption is based.
8. When a person is charged in an accusatory instrument with both one or more counts of enterprise corruption and with another offense or offenses specifically included in or otherwise a part of the pattern or patterns of criminal activity upon which the charge or charges of enterprise corruption is or are based, and the court orders that any of the counts be tried separately pursuant to subdivision one of section 200.40 of this chapter, this section shall not apply and subsequent prosecution of the remaining counts or offenses shall not be barred.
9. A person who has been previously prosecuted for racketeering pursuant to federal law, or any comparable offense pursuant to the law of another state may not be subsequently prosecuted for enterprise corruption based upon a pattern of criminal activity that specifically includes a criminal act that was also specifically included in the pattern of racketeering activity upon which the prior charge of racketeering was based provided, however, that this section shall not be construed to prohibit the subsequent prosecution of any other offense specifically included in or otherwise a part of a pattern of racketeering activity alleged in any such prior prosecution for racketeering or other comparable offense.
§ 40.51 Previous prosecution: presidential reprieve, pardon or other form of clemency.
When a person has been granted a reprieve, pardon or other form of clemency for an offense pursuant to the authority granted in section two of article two of the United States constitution, a separate or subsequent prosecution of an offense is not barred under this article when the people demonstrate, by clear and convincing evidence, that:
1. (a) such person served in or was employed by the executive branch of the government of the United States on the executive staff of the president, in the executive office of the president, or in an acting or confirmed capacity in a position subject to confirmation by the United States senate, at a time when the president granting such reprieve, pardon or other form of clemency served as president or vice-president of the United States; or (b) such person was directly or indirectly employed by, or acted as an agent of, the election, transition or re-election campaign of the president granting such reprieve, pardon or other form of clemency or any for-profit or not-for-profit entity owned or controlled by the president granting such reprieve, pardon or other form of clemency; or
2. such person was, at the time the president granted such reprieve, pardon or other form of clemency, related by consanguinity or affinity within the sixth degree to the president granting such reprieve, pardon or other form of clemency; or
3. such person bears accessorial liability, as defined in section 20.00 of the penal law, or conspiratorial liability, within the meaning of article one hundred five of the penal law, for such offense with one or more persons described in subdivision one or two of this section; or
4. the president who granted such reprieve, pardon or other form of clemency to such person (a) was thereby aided in avoiding potential prosecution or conviction; (b) knowingly obtained a benefit from such offense; or (c) knowingly obtained a tangible, material benefit from or on behalf of such person; or
5. such person possessed or possesses information material to the determination of any criminal or civil investigation, enforcement action or prosecution of the president granting such reprieve, pardon or other form of clemency, or of one or more persons described in subdivision one, two or three of this section.
ARTICLE 50--COMPULSION OF EVIDENCE BY OFFER OF IMMUNITY
Section 50.10 Compulsion of evidence by offer of immunity; definitions of terms.
50.20 Compulsion of evidence by offer of immunity.
50.30 Authority to confer immunity in criminal proceedings; court a competent authority.
§ 50.10 Compulsion of evidence by offer of immunity; definitions of terms.
The following definitions are applicable to this article:
1. "Immunity." A person who has been a witness in a legal proceeding, and who cannot, except as otherwise provided in this subdivision, be convicted of any offense or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which he gave evidence therein, possesses "immunity" from any such conviction, penalty or forfeiture. A person who possesses such immunity may nevertheless be convicted of perjury as a result of having given false testimony in such legal proceeding, and may be convicted of or adjudged in contempt as a result of having contumaciously refused to give evidence therein.
2. "Legal proceeding" means a proceeding in or before any court or grand jury, or before any body, agency or person authorized by law to conduct the same and to administer the oath or to cause it to be administered.
3. "Give evidence" means to testify or produce physical evidence.
§ 50.20 Compulsion of evidence by offer of immunity.
1. Any witness in a legal proceeding, other than a grand jury proceeding, may refuse to give evidence requested of him on the ground that it may tend to incriminate him and he may not, except as provided in subdivision two, be compelled to give such evidence.
2. Such a witness may be compelled to give evidence in such a proceeding notwithstanding an assertion of his privilege against self-incrimination if:
(a) The proceeding is one in which, by express provision of statute, a person conducting or connected therewith is declared a competent authority to confer immunity upon witnesses therein; and
(b) Such competent authority (i) orders such witness to give the requested evidence notwithstanding his assertion of his privilege against self-incrimination, and (ii) advises him that upon so doing he will receive immunity.
3. A witness who is ordered to give evidence pursuant to subdivision two and who complies with such order receives immunity. Such witness is not deprived of such immunity because such competent authority did not comply with statutory provisions requiring notice to a specified public servant of intention to confer immunity.
4. A witness who, without asserting his privilege against self-incrimination, gives evidence in a legal proceeding other than a grand jury proceeding does not receive immunity.
5. The rules governing the circumstances in which witnesses may be compelled to give evidence and in which they receive immunity therefor in a grand jury proceeding are prescribed in section 190.40.
§ 50.30 Authority to confer immunity in criminal proceedings; court a competent authority.
In any criminal proceeding, other than a grand jury proceeding, the court is a competent authority to confer immunity in accordance with the provisions of section 50.20, but only when expressly requested by the district attorney to do so.
TITLE D--RULES OF EVIDENCE, STANDARDS OF PROOF AND RELATED MATTERS
ARTICLE 60--RULES OF EVIDENCE AND RELATED MATTERS
Section 60.10 Rules of evidence; in general.
60.15 Rules of evidence; what witnesses may be called.
60.20 Rules of evidence; testimonial capacity; evidence given by children.
60.22 Rules of evidence; corroboration of accomplice testimony.
60.25 Rules of evidence; identification by means of previous recognition, in absence of present identification.
60.30 Rules of evidence; identification by means of previous recognition, in addition to present identification.
60.35 Rules of evidence; impeachment of own witness by proof of prior contradictory statement.
60.40 Rules of evidence; proof of previous conviction; when allowed.
60.42 Rules of evidence; admissibility of evidence of victim's sexual conduct in sex offense cases.
60.43 Rules of evidence; admissibility of evidence of victim's sexual conduct in non-sex offense cases.
60.44 Use of anatomically correct dolls.
60.45 Rules of evidence; admissibility of statements of defendants.
60.46 Rules of evidence; family offense proceedings in family court.
60.47 Possession of condoms; receipt into evidence.
60.48 Rules of evidence; admissibility of evidence of victim's manner of dress in sex offense cases.
60.49 Possession of opioid antagonists; receipt into evidence.
60.50 Rules of evidence; statements of defendants; corroboration.
60.55 Rules of evidence; psychiatric testimony in certain cases.
60.60 Rules of evidence; certificates concerning judgments of conviction and fingerprints.
60.70 Rules of evidence; dangerous drugs destroyed pursuant to court order.
60.75 Rules of evidence; chemical test evidence.
60.76 Rules of evidence; rape crisis counselor evidence in certain cases.
§ 60.10 Rules of evidence; in general.
Unless otherwise provided by statute or by judicially established rules of evidence applicable to criminal cases, the rules of evidence applicable to civil cases are, where appropriate, also applicable to criminal proceedings.
§ 60.15 Rules of evidence; what witnesses may be called.
1. Unless otherwise expressly provided, in any criminal proceeding involving a defendant in which evidence is or may be received, both the people and the defendant may as a matter of right call and examine witnesses, and each party may cross-examine every witness called by the other party.
2. A defendant may testify in his own behalf, but his failure to do so is not a factor from which any inference unfavorable to him may be drawn.
§ 60.20 Rules of evidence; testimonial capacity; evidence given by
children.
1. Any person may be a witness in a criminal proceeding unless the court finds that, by reason of infancy or mental disease or defect, he does not possess sufficient intelligence or capacity to justify the reception of his evidence.
2. Every witness more than nine years old may testify only under oath unless the court is satisfied that such witness cannot, as a result of mental disease or defect, understand the nature of an oath. A witness less than nine years old may not testify under oath unless the court is satisfied that he or she understands the nature of an oath. If under either of the above provisions, a witness is deemed to be ineligible to testify under oath, the witness may nevertheless be permitted to give unsworn evidence if the court is satisfied that the witness possesses sufficient intelligence and capacity to justify the reception thereof. A witness understands the nature of an oath if he or she appreciates the difference between truth and falsehood, the necessity for telling the truth, and the fact that a witness who testifies falsely may be punished.
3. A defendant may not be convicted of an offense solely upon unsworn evidence given pursuant to subdivision two.
§ 60.22 Rules of evidence; corroboration of accomplice testimony.
1. A defendant may not be convicted of any offense upon the testimony of an accomplice unsupported by corroborative evidence tending to connect the defendant with the commission of such offense.
2. An "accomplice" means a witness in a criminal action who, according to evidence adduced in such action, may reasonably be considered to have participated in:
(a) The offense charged; or
(b) An offense based upon the same or some of the same facts or conduct which constitute the offense charged.
3. A witness who is an accomplice as defined in subdivision two is no less such because a prosecution or conviction of himself would be barred or precluded by some defense or exemption, such as infancy, immunity or previous prosecution, amounting to a collateral impediment to such a prosecution or conviction, not affecting the conclusion that such witness engaged in the conduct constituting the offense with the mental state required for the commission thereof.
§ 60.25 Rules of evidence; identification by means of previous recognition,
in absence of present identification.
1. In any criminal proceeding in which the defendant's commission of an offense is in issue, testimony as provided in subdivision two may be given by a witness when:
(a) Such witness testifies that:
(i) He or she observed the person claimed by the people to be the defendant either at the time and place of the commission of the offense or upon some other occasion relevant to the case; and
(ii) On a subsequent occasion he or she observed, under circumstances consistent with such rights as an accused person may derive under the constitution of this state or of the United States, a person or, where the observation is made pursuant to a blind or blinded procedure as defined in paragraph (c) of this subdivision, a pictorial, photographic, electronic, filmed or video recorded reproduction of a person whom he or she recognized as the same person whom he or she had observed on the first or incriminating occasion; and
(iii) He or she is unable at the proceeding to state, on the basis of present recollection, whether or not the defendant is the person in question; and
(b) It is established that the defendant is in fact the person whom the witness observed and recognized or whose pictorial, photographic, electronic, filmed or video recorded reproduction the witness observed and recognized on the second occasion. Such fact may be established by testimony of another person or persons to whom the witness promptly declared his or her recognition on such occasion and by such pictorial, photographic, electronic, filmed or video recorded reproduction.
(c) For purposes of this section, a "blind or blinded procedure" is one in which the witness identifies a person in an array of pictorial, photographic, electronic, filmed or video recorded reproductions under circumstances where, at the time the identification is made, the public servant administering such procedure: (i) does not know which person in the array is the suspect, or (ii) does not know where the suspect is in the array viewed by the witness. The failure of a public servant to follow such a procedure shall be assessed solely for purposes of this article and shall result in the preclusion of testimony regarding the identification procedure as evidence in chief, but shall not constitute a legal basis to suppress evidence made pursuant to subdivision six of section 710.20 of this chapter. This article neither limits nor expands subdivision six of section 710.20 of this chapter.
2. Under circumstances prescribed in subdivision one of this section, such witness may testify at the criminal proceeding that the person whom he or she observed and recognized or whose pictorial, photographic, electronic, filmed or video recorded reproduction he or she observed and recognized on the second occasion is the same person whom he or she observed on the first or incriminating occasion. Such testimony, together with the evidence that the defendant is in fact the person whom the witness observed and recognized or whose pictorial, photographic, electronic, filmed or video recorded reproduction he or she observed and recognized on the second occasion, constitutes evidence in chief.
§ 60.22 Rules of evidence; corroboration of accomplice testimony.
1. A defendant may not be convicted of any offense upon the testimony of an accomplice unsupported by corroborative evidence tending to connect the defendant with the commission of such offense.
2. An "accomplice" means a witness in a criminal action who, according to evidence adduced in such action, may reasonably be considered to have participated in:
(a) The offense charged; or
(b) An offense based upon the same or some of the same facts or conduct which constitute the offense charged.
3. A witness who is an accomplice as defined in subdivision two is no less such because a prosecution or conviction of himself would be barred or precluded by some defense or exemption, such as infancy, immunity or previous prosecution, amounting to a collateral impediment to such a prosecution or conviction, not affecting the conclusion that such witness engaged in the conduct constituting the offense with the mental state required for the commission thereof.
§ 60.25 Rules of evidence; identification by means of previous recognition, in absence of present identification.
1. In any criminal proceeding in which the defendant's commission of an offense is in issue, testimony as provided in subdivision two may be given by a witness when:
(a) Such witness testifies that:
(i) He or she observed the person claimed by the people to be the defendant either at the time and place of the commission of the offense or upon some other occasion relevant to the case; and
(ii) On a subsequent occasion he or she observed, under circumstances consistent with such rights as an accused person may derive under the constitution of this state or of the United States, a person or, where the observation is made pursuant to a blind or blinded procedure as defined in paragraph (c) of this subdivision, a pictorial, photographic, electronic, filmed or video recorded reproduction of a person whom he or she recognized as the same person whom he or she had observed on the first or incriminating occasion; and
(iii) He or she is unable at the proceeding to state, on the basis of present recollection, whether or not the defendant is the person in question; and
(b) It is established that the defendant is in fact the person whom the witness observed and recognized or whose pictorial, photographic, electronic, filmed or video recorded reproduction the witness observed and recognized on the second occasion. Such fact may be established by testimony of another person or persons to whom the witness promptly declared his or her recognition on such occasion and by such pictorial, photographic, electronic, filmed or video recorded reproduction.
(c) For purposes of this section, a "blind or blinded procedure" is one in which the witness identifies a person in an array of pictorial, photographic, electronic, filmed or video recorded reproductions under circumstances where, at the time the identification is made, the public servant administering such procedure: (i) does not know which person in the array is the suspect, or (ii) does not know where the suspect is in the array viewed by the witness. The failure of a public servant to follow such a procedure shall be assessed solely for purposes of this article and shall result in the preclusion of testimony regarding the identification procedure as evidence in chief, but shall not constitute a legal basis to suppress evidence made pursuant to subdivision six of section 710.20 of this chapter. This article neither limits nor expands subdivision six of section 710.20 of this chapter.
2. Under circumstances prescribed in subdivision one of this section, such witness may testify at the criminal proceeding that the person whom he or she observed and recognized or whose pictorial, photographic, electronic, filmed or video recorded reproduction he or she observed and recognized on the second occasion is the same person whom he or she observed on the first or incriminating occasion. Such testimony, together with the evidence that the defendant is in fact the person whom the witness observed and recognized or whose pictorial, photographic, electronic, filmed or video recorded reproduction he or she observed and recognized on the second occasion, constitutes evidence in chief.
§ 60.30 Rules of evidence; identification by means of previous recognition, in addition to present identification.
In any criminal proceeding in which the defendant's commission of an offense is in issue, a witness who testifies that (a) he or she observed the person claimed by the people to be the defendant either at the time and place of the commission of the offense or upon some other occasion relevant to the case, and (b) on the basis of present recollection, the defendant is the person in question and (c) on a subsequent occasion he or she observed the defendant, or where the observation is made pursuant to a blind or blinded procedure, as defined in paragraph (c) of subdivision one of section 60.25 of this article, a pictorial, photographic, electronic, filmed or video recorded reproduction of the defendant, under circumstances consistent with such rights as an accused person may derive under the constitution of this state or of the United States, and then also recognized him or her or the pictorial, photographic, electronic, filmed or video recorded reproduction of him or her as the same person whom he or she had observed on the first or incriminating occasion, may, in addition to making an identification of the defendant at the criminal proceeding on the basis of present recollection as the person whom he or she observed on the first or incriminating occasion, also describe his or her previous recognition of the defendant and testify that the person whom he or she observed or whose pictorial, photographic, electronic, filmed or video recorded reproduction he or she observed on such second occasion is the same person whom he or she had observed on the first or incriminating occasion. Such testimony and such pictorial, photographic, electronic, filmed or video recorded reproduction constitutes evidence in chief.
§ 60.35 Rules of evidence; impeachment of own witness by proof of prior contradictory statement.
1. When, upon examination by the party who called him, a witness in a criminal proceeding gives testimony upon a material issue of the case which tends to disprove the position of such party, such party may introduce evidence that such witness has previously made either a written statement signed by him or an oral statement under oath contradictory to such testimony.
2. Evidence concerning a prior contradictory statement introduced pursuant to subdivision one may be received only for the purpose of impeaching the credibility of the witness with respect to his testimony upon the subject, and does not constitute evidence in chief. Upon receiving such evidence at a jury trial, the court must so instruct the jury.
3. When a witness has made a prior signed or sworn statement contradictory to his testimony in a criminal proceeding upon a material issue of the case, but his testimony does not tend to disprove the position of the party who called him and elicited such testimony, evidence that the witness made such prior statement is not admissible, and such party may not use such prior statement for the purpose of refreshing the recollection of the witness in a manner that discloses its contents to the trier of the facts.
§ 60.40 Rules of evidence; proof of previous conviction; when allowed.
1. If in the course of a criminal proceeding, any witness, including a defendant, is properly asked whether he was previously convicted of a specified offense and answers in the negative or in an equivocal manner, the party adverse to the one who called him may independently prove such conviction. If in response to proper inquiry whether he has ever been convicted of any offense the witness answers in the negative or in an equivocal manner, the adverse party may independently prove any previous conviction of the witness.
2. If a defendant in a criminal proceeding, through the testimony of a witness called by him, offers evidence of his good character, the people may independently prove any previous conviction of the defendant for an offense the commission of which would tend to negate any character trait or quality attributed to the defendant in such witness' testimony.
3. Subject to the limitations prescribed in section 200.60, the people may prove that a defendant has been previously convicted of an offense when the fact of such previous conviction constitutes an element of the offense charged, or proof thereof is otherwise essential to the establishment of a legally sufficient case.
§ 60.42 Rules of evidence; admissibility of evidence of victim's sexual conduct in sex offense cases.
Evidence of a victim's sexual conduct shall not be admissible in a prosecution for an offense or an attempt to commit an offense defined in article one hundred thirty or in section 230.34 of the penal law unless such evidence:
1. proves or tends to prove specific instances of the victim's prior sexual conduct with the accused; or
2. proves or tends to prove that the victim has been convicted of an offense under section 230.00 of the penal law within three years prior to the sex offense which is the subject of the prosecution; or
3. rebuts evidence introduced by the people of the victim's failure to engage in sexual intercourse, oral sexual conduct, anal sexual conduct or sexual contact during a given period of time; or
4. rebuts evidence introduced by the people which proves or tends to prove that the accused is the cause of pregnancy or disease of the victim, or the source of semen found in the victim; or
5. is determined by the court after an offer of proof by the accused outside the hearing of the jury, or such hearing as the court may require, and a statement by the court of its findings of fact essential to its determination, to be relevant and admissible in the interests of justice.
§ 60.43 Rules of evidence; admissibility of evidence of victim's sexual conduct in non-sex offense cases.
Evidence of the victim's sexual conduct, including the past sexual conduct of a deceased victim, may not be admitted in a prosecution for any offense, attempt to commit an offense or conspiracy to commit an offense defined in the penal law unless such evidence is determined by the court to be relevant and admissible in the interests of justice, after an offer of proof by the proponent of such evidence outside the hearing of the jury, or such hearing as the court may require, and a statement by the court of its findings of fact essential to its determination.
§ 60.44 Use of anatomically correct dolls.
Any person who is less than sixteen years old may in the discretion of the court and where helpful and appropriate, use an anatomically correct doll in testifying in a criminal proceeding based upon conduct prohibited by article one hundred thirty, article two hundred sixty or section 255.25, 255.26 or 255.27 of the penal law.
§ 60.45 Rules of evidence; admissibility of statements of defendants.
1. Evidence of a written or oral confession, admission, or other statement made by a defendant with respect to his participation or lack of participation in the offense charged, may not be received in evidence against him in a criminal proceeding if such statement was involuntarily made.
2. A confession, admission or other statement is "involuntarily made" by a defendant when it is obtained from him:
(a) By any person by the use or threatened use of physical force upon the defendant or another person, or by means of any other improper conduct or undue pressure which impaired the defendant's physical or mental condition to the extent of undermining his ability to make a choice whether or not to make a statement; or
(b) By a public servant engaged in law enforcement activity or by a person then acting under his direction or in cooperation with him:
(i) by means of any promise or statement of fact, which promise or statement creates a substantial risk that the defendant might falsely incriminate himself; or
(ii) in violation of such rights as the defendant may derive from the constitution of this state or of the United States.
3. (a) Where a person is subject to custodial interrogation by a public servant at a detention facility, the entire custodial interrogation, including the giving of any required advice of the rights of the individual being questioned, and the waiver of any rights by the individual, shall be recorded by an appropriate video recording device if the interrogation involves a class A-1 felony, except one defined in article two hundred twenty of the penal law; felony offenses defined in section 130.95 and 130.96 of the penal law; or a felony offense defined in article one hundred twenty-five or one hundred thirty of such law that is defined as a class B violent felony offense in section 70.02 of the penal law. For purposes of this paragraph, the term "detention facility" shall mean a police station, correctional facility, holding facility for prisoners, prosecutor's office or other facility where persons are held in detention in connection with criminal charges that have been or may be filed against them.
(b) No confession, admission or other statement shall be subject to a motion to suppress pursuant to subdivision three of section 710.20 of this chapter based solely upon the failure to video record such interrogation in a detention facility as defined in paragraph (a) of this subdivision. However, where the people offer into evidence a confession, admission or other statement made by a person in custody with respect to his or her participation or lack of participation in an offense specified in paragraph (a) of this subdivision, that has not been video recorded, the court shall consider the failure to record as a factor, but not as the sole factor, in accordance with paragraph (c) of this subdivision in determining whether such confession, admission or other statement shall be admissible.
(c) Notwithstanding the requirement of paragraph (a) of this subdivision, upon a showing of good cause by the prosecutor, the custodial interrogation need not be recorded. Good cause shall include, but not be limited to:
(i) If electronic recording equipment malfunctions.
(ii) If electronic recording equipment is not available because it was otherwise being used.
(iii) If statements are made in response to questions that are routinely asked during arrest processing.
(iv) If the statement is spontaneously made by the suspect and not in response to police questioning.
(v) If the statement is made during an interrogation that is conducted when the interviewer is unaware that a qualifying offense has occurred.
(vi) If the statement is made at a location other than the "interview room" because the suspect cannot be brought to such room, e.g., the suspect is in a hospital or the suspect is out of state and that state is not governed by a law requiring the recordation of an interrogation.
(vii) If the statement is made after a suspect has refused to participate in the interrogation if it is recorded, and appropriate effort to document such refusal is made.
(viii) If such statement is not recorded as a result of an inadvertent error or oversight, not the result of any intentional conduct by law enforcement personnel.
(ix) If it is law enforcement's reasonable belief that such recording would jeopardize the safety of any person or reveal the identity of a confidential informant.
(x) If such statement is made at a location not equipped with a video recording device and the reason for using that location is not to subvert the intent of the law. For purposes of this section, the term "location" shall include those locations specified in paragraph (b) of subdivision four of section 305.2 of the family court act.
(d) In the event the court finds that the people have not shown good cause for the non-recording of the confession, admission, or other statement, but determines that a non-recorded confession, admission or other statement is nevertheless admissible because it was voluntarily made then, upon request of the defendant, the court must instruct the jury that the people's failure to record the defendant's confession, admission or other statement as required by this section may be weighed as a factor, but not as the sole factor, in determining whether such confession, admission or other statement was voluntarily made, or was made at all.
(e) Video recording as required by this section shall be conducted in accordance with standards established by rule of the division of criminal justice services.
§ 60.46 Rules of evidence, family offense proceedings in family court.
Evidence of a written or oral admission or any testimony given by either party, or evidence derived therefrom, in a proceeding under article eight of the family court act without the benefit of counsel in such proceeding may not be received into evidence in a criminal proceeding except for the purposes of impeachment unless such party waives the right to counsel on the record. Nothing herein shall be deemed to prohibit any testimony or exhibits received into evidence in a criminal proceeding, or any orders, decisions or judgments arising from such proceeding from being received into evidence in any proceeding under article eight of the family court act.
§ 60.47 Possession of condoms; receipt into evidence.
Evidence that a person was in possession of one or more condoms may not be admitted at any trial, hearing, or other proceeding in a prosecution for section 230.00 of the penal law for the purpose of establishing probable cause for an arrest or proving any person's commission or attempted commission of such offense.
§ 60.48 Rules of evidence; admissibility of evidence of victim's manner of
dress in sex offense cases.
Evidence of the manner in which the victim was dressed at the time of the commission of an offense may not be admitted in a prosecution for any offense, or an attempt to commit an offense, defined in article one hundred thirty of the penal law, unless such evidence is determined by the court to be relevant and admissible in the interests of justice, after an offer of proof by the proponent of such evidence outside the hearing of the jury, or such hearing as the court may require, and a statement by the court of its findings of fact essential to its determination.
§ 60.49 Possession of opioid antagonists; receipt into evidence.
1. Evidence that a person was in possession of an opioid antagonist may not be admitted at any trial, hearing or other proceeding in a prosecution for any offense under sections 220.03, 220.06, 220.09, 220.16, 220.18, or 220.21 of the penal law for the purpose of establishing probable cause for an arrest or proving any person's commission of such offense.
2. For the purposes of this section, opioid antagonist is defined as a drug approved by the Food and Drug Administration that, when administered, negates or neutralizes in whole or in part the pharmacological effects of an opioid in the body and shall be limited to naloxone and other medications approved by the department of health for such purpose.
§ 60.50 Rules of evidence; statements of defendants; corroboration.
A person may not be convicted of any offense solely upon evidence of a confession or admission made by him without additional proof that the offense charged has been committed.
§ 60.55 Rules of evidence; psychiatric testimony in certain cases.
1. When, in connection with the affirmative defense of lack of criminal responsibility by reason of mental disease or defect, a psychiatrist or licensed psychologist testifies at a trial concerning the defendant's mental condition at the time of the conduct charged to constitute a crime, he must be permitted to make a statement as to the nature of any examination of the defendant, the diagnosis of the mental condition of the defendant and his opinion as to the extent, if any, to which the capacity of the defendant to know or appreciate the nature and consequence of such conduct, or its wrongfulness, was impaired as a result of mental disease or defect at that time.
The psychiatrist or licensed psychologist must be permitted to make any explanation reasonably serving to clarify his diagnosis and opinion, and may be cross-examined as to any matter bearing on his competency or credibility or the validity of his diagnosis or opinion.
2. Any statement made by the defendant to a psychiatrist or licensed psychologist during his examination of the defendant shall be inadmissible in evidence on any issue other than that of the affirmative defense of lack of criminal responsibility, by reason of mental disease or defect. The statement shall, however, be admissible upon the issue of the affirmative defense of lack of criminal responsibility by reason of mental disease or defect, whether or not it would otherwise be deemed a privileged communication. Upon receiving the statement in evidence, the court must instruct the jury that the statement is to be considered only on the issue of such affirmative defense and may not be considered by it in its determination of whether the defendant committed the act constituting the crime charged.
§ 60.60 Rules of evidence; certificates concerning judgments of conviction and fingerprints.
1. A certificate issued by a criminal court, or the clerk thereof, certifying that a judgment of conviction against a designated defendant has been entered in such court, constitutes presumptive evidence of the facts stated in such certificate.
2. A report of a public servant charged with the custody of official fingerprint records which contains a certification that the fingerprints of a designated person who has previously been convicted of an offense are identical with those of a defendant in a criminal action, constitutes presumptive evidence of the fact that such defendant has previously been convicted of such offense.
§ 60.70 Rules of evidence; dangerous drugs destroyed pursuant to court order.
The destruction of dangerous drugs pursuant to the provisions of article seven hundred fifteen hereof shall not preclude the admission on trial or in a proceeding in connection therewith of testimony or evidence where such testimony or evidence would otherwise have been admissible if such drugs had not been destroyed.
§ 60.75 Rules of evidence; chemical test evidence.
In any prosecution where two or more offenses against the same defendant are properly joined in one indictment or charged in two accusatory instruments properly consolidated for trial purposes and where one such offense charges a violation of any subdivision of section eleven hundred ninety-two of the vehicle and traffic law, chemical test evidence properly admissible as evidence of intoxication under subdivision one of section eleven hundred ninety-five of such law shall also, if relevant, be received in evidence with regard to the remaining charges in the indictments.
§ 60.76 Rules of evidence; rape crisis counselor evidence in certain cases.
Where disclosure of a communication which would have been privileged pursuant to section forty-five hundred ten of the civil practice law and rules is sought on the grounds that the privilege has been waived or that disclosure is required pursuant to the constitution of this state or the United States, the party seeking disclosure must file a written motion supported by an affidavit containing specific factual allegations providing grounds that disclosure is required. Upon the filing of such motion and affidavit, the court shall conduct an in camera review of the communication outside the presence of the jury and of counsel for all parties in order to determine whether disclosure of any portion of the communication is required.
* ARTICLE 65
USE OF CLOSED-CIRCUIT TELEVISION FOR CERTAIN CHILD WITNESSES
Section 65.00 Definitions.
65.10 Closed-circuit television; general rule; declaration of vulnerability.
65.20 Closed-circuit television; procedure for application and grounds for determination.
65.30 Closed-circuit television; special testimonial procedure.
* NB Repealed September 1, 2025
* § 65.00 Definitions.
As used in this article:
1. "Child witness" means a person fourteen years old or less who is or will be called to testify in a criminal proceeding, other than a grand jury proceeding, concerning an offense defined in article one hundred thirty of the penal law or section 255.25, 255.26 or 255.27 of such law which is the subject of such criminal proceeding.
2. "Vulnerable child witness" means a child witness whom a court has declared to be vulnerable.
3. "Testimonial room" means any room, separate and apart from the courtroom, which is furnished comfortably and less formally than a courtroom and from which the testimony of a vulnerable child witness can be transmitted to the courtroom by means of live, two-way closed-circuit television.
4. "Live, two-way closed-circuit television" means a simultaneous transmission, by closed-circuit television, or other electronic means, between the courtroom and the testimonial room in accordance with the provisions of section 65.30.
5. "Operator" means the individual authorized by the court to operate the closed-circuit television equipment used in accordance with the provisions of this article.
6. A person occupies "a position of authority with respect to a child" when he or she is a parent, guardian or other person responsible for the custody or care of the child at the relevant time or is any other person who maintains an ongoing personal relationship with such parent, guardian or other person responsible for custody or care, which relationship involves his or her living, or his or her frequent and repeated presence, in the same household or premises as the child.
* NB Repealed September 1, 2025
* § 65.10 Closed-circuit television; general rule; declaration of vulnerability.
1. A child witness shall be declared vulnerable when the court, in accordance with the provisions of section 65.20, determines by clear and convincing evidence that it is likely that such child witness will suffer serious mental or emotional harm if required to testify at a criminal proceeding without the use of live, two-way closed-circuit television and that the use of such live, two-way closed-circuit television will diminish the likelihood or extent of, such harm.
2. When the court declares a child witness to be vulnerable, it shall, except as provided in subdivision four of section 65.30, authorize the taking of the testimony of the vulnerable child witness from the testimonial room by means of live, two-way closed-circuit television. Under no circumstances shall the provisions of this article be construed to authorize a closed-circuit television system by which events in the courtroom are not transmitted to the testimonial room during the testimony of the vulnerable child witness.
3. Nothing herein shall be contrued to preclude the court from exercising its power to close the courtroom or from exercising any authority it otherwise may have to protect the well-being of a witness and the rights of the defendant.
* NB Repealed September 1, 2025
* § 65.20 Closed-circuit television; procedure for application and grounds for determination.
1. Prior to the commencement of a criminal proceeding; other than a grand jury proceeding, either party may apply to the court for an order declaring that a child witness is vulnerable.
2. A child witness should be declared vulnerable when the court, in accordance with the provisions of this section, determines by clear and convincing evidence that the child witness would suffer serious mental or emotional harm that would substantially impair the child witness' ability to communicate with the finder of fact without the use of live, two-way closed-circuit television.
3. A motion pursuant to subdivision one of this section must be made in writing at least eight days before the commencement of trial or other criminal proceeding upon reasonable notice to the other party and with an opportunity to be heard.
4. The motion papers must state the basis for the motion and must contain sworn allegations of fact which, if true, would support a determination by the court that the child witness is vulnerable. Such allegations may be based upon the personal knowledge of the deponent or upon information and belief, provided that, in the latter event, the sources of such information and the grounds for such belief are stated.
5. The answering papers may admit or deny any of the alleged facts and may, in addition, contain sworn allegations of fact relevant to the motion, including the rights of the defendant, the need to protect the child witness and the integrity of the truth-finding function of the trier of fact.
6. Unless all material facts alleged in support of the motion made pursuant to subdivision one of this section are conceded, the court shall, in addition to examining the papers and hearing oral argument, conduct an appropriate hearing for the purpose of making findings of fact essential to the determination of the motion. Except as provided in subdivision six of this section, it may subpoena or call and examine witnesses, who must either testify under oath or be permitted to give unsworn testimony pursuant to subdivision two of section 60.20 and must authorize the attorneys for the parties to do the same.
7. Notwithstanding any other provision of law, the child witness who is alleged to be vulnerable may not be compelled to testify at such hearing or to submit to any psychological or psychiatric examination. The failure of the child witness to testify at such hearing shall not be a ground for denying a motion made pursuant to subdivision one of this section. Prior statements made by the child witness relating to any allegations of conduct constituting an offense defined in article one hundred thirty of the penal law or incest as defined in section 255.25, 255.26 or 255.27 of such law or to any allegation of words or conduct constituting an attempt to prevent, impede or deter the child witness from cooperating in the investigation or prosecution of the offense shall be admissible at such hearing, provided, however, that a declaration that a child witness is vulnerable may not be based solely upon such prior statements.
8. (a) Notwithstanding any of the provisions of article forty-five of the civil practice law and rules, any physician, psychologist, nurse or social worker who has treated a child witness may testify at a hearing conducted pursuant to subdivision five of this section concerning the treatment of such child witness as such treatment relates to the issue presented at the hearing, provided that any otherwise applicable statutory privileges concerning communications between the child witness and such physician, psychologist, nurse or social worker in connection with such treatment shall not be deemed waived by such testimony alone, except to the limited extent of permitting the court alone to examine in camera reports, records or documents, if any, prepared by such physician, psychologist, nurse or social worker. If upon such examination the court determines that such reports, records or documents, or any one or portion thereof, contain information material and relevant to the issue of whether the child witness is a vulnerable child witness, the court shall disclose such information to both the attorney for the defendant and the district attorney.
(b) At any time after a motion has been made pursuant to subdivision one of this section, upon the demand of the other party the moving party must furnish the demanding party with a copy of any and all of such records, reports or other documents in the possession of such other party and must, in addition, supply the court with a copy of all such reports, records or other documents which are the subject of the demand. At any time after a demand has been made pursuant to this paragraph, the moving party may demand that property of the same kind or character in possession of the party that originally made such demand be furnished to the moving party and, if so furnished, be supplied, in addition, to the court.
9. (a) Prior to the commencement of the hearing conducted pursuant to subdivision six of this section, the district attorney shall, subject to a protective order, comply with the provisions of subdivision one of section 245.20 of this chapter as they concern any witness whom the district attorney intends to call at the hearing and the child witness.
(b) Before a defendant calls a witness at such hearing, he or she must, subject to a protective order, comply with the provisions of subdivision four of section 245.20 of this chapter as they concern all the witnesses the defendant intends to call at such hearing.
10. The court may consider, in determining whether there are factors which would cause the child witness to suffer serious mental or emotional harm, a finding that any one or more of the following circumstances have been established by clear and convincing evidence:
(a) The manner of the commission of the offense of which the defendant is accused was particularly heinous or was characterized by aggravating circumstances.
(b) The child witness is particularly young or otherwise particularly subject to psychological harm on account of a physical or mental condition which existed before the alleged commission of the offense.
(c) At the time of the alleged offense, the defendant occupied a position of authority with respect to the child witness.
(d) The offense or offenses charged were part of an ongoing course of conduct committed by the defendant against the child witness over an extended period of time.
(e) A deadly weapon or dangerous instrument was allegedly used during the commission of the crime.
(f) The defendant has inflicted serious physical injury upon the child witness.
(g) A threat, express or implied, of physical violence to the child witness or a third person if the child witness were to report the incident to any person or communicate information to or cooperate with a court, grand jury, prosecutor, police officer or peace officer concerning the incident has been made by or on behalf of the defendant.
(h) A threat, express or implied, of the incarceration of a parent or guardian of the child witness, the removal of the child witness from the family or the dissolution of the family of the child witness if the child witness were to report the incident to any person or communicate information to or cooperate with a court, grand jury, prosecutor, police officer or peace officer concerning the incident has been made by or on behalf of the defendant.
(i) A witness other than the child witness has received a threat of physical violence directed at such witness or to a third person by or on behalf of the defendant.
(j) The defendant, at the time of the inquiry, (i) is living in the same household with the child witness, (ii) has ready access to the child witness or (iii) is providing substantial financial support for the child witness.
(k) The child witness has previously been the victim of an offense defined in article one hundred thirty of the penal law or incest as defined in section 255.25, 255.26 or 255.27 of such law.
(l) According to expert testimony, the child witness would be particularly suceptible to psychological harm if required to testify in open court or in the physical presence of the defendant.
11. Irrespective of whether a motion was made pursuant to subdivision one of this section, the court, at the request of either party or on its own motion, may decide that a child witness may be vulnerable based on its own observations that a child witness who has been called to testify at a criminal proceeding is suffering severe mental or emotional harm and therefore is physically or mentally unable to testify or to continue to testify in open court or in the physical presence of the defendant and that the use of live, two-way closed-circuit television is necessary to enable the child witness to testify. If the court so decides, it must conduct the same hearing that subdivision five of this section requires when a motion is made pursuant to subdivision one of this section, and it must make findings of fact pursuant to subdivisions nine and eleven of this section, before determining that the child witness is vulnerable.
12. In deciding whether a child witness is vulnerable, the court shall make findings of fact which reflect the causal relationship between the existence of any one or more of the factors set forth in subdivision nine of this section or other relevant factors which the court finds are established and the determination that the child witness is vulnerable. If the court is satisfied that the child witness is vulnerable and that, under the facts and circumstances of the particular case, the defendant's constitutional rights to an impartial jury or of confrontation will not be impaired, it may enter an order granting the application for the use of live, two-way closed-circuit television.
13. When the court has determined that a child witness is a vulnerable child witness, it shall make a specific finding as to whether placing the defendant and the child witness in the same room during the testimony of the child witness will contribute to the likelihood that the child witness will suffer severe mental or emotional harm. If the court finds that placing the defendant and the child witness in the same room during the testimony of the child witness will contribute to the likelihood that the child witness will suffer severe mental or emotional harm, the order entered pursuant to subdivision eleven of this section shall direct that the defendant remain in the courtroom during the testimony of the vulnerable child witness.
* NB Repealed September 1, 2025
* § 65.30 Closed-circuit television; special testimonial procedures.
1. When the court has entered an order pursuant to section 65.20, the testimony of the vulnerable child witness shall be taken in the testimonial room and the image and voice of the vulnerable child witness, as well as the image of all other persons other than the operator present in the testimonial room, shall be transmitted live by means of closed-circuit television to the courtroom. The courtroom shall be equipped with monitors sufficient to permit the judge, jury, defendant and attorneys to observe the demeanor of the vulnerable child witness during his or her testimony. Unless the courtroom has been closed pursuant to court order, the public shall also be permitted to hear the testimony and view the image of the vulnerable child witness.
2. In all instances, the image of the jury shall be simultaneously transmitted to the vulnerable child witness in the testimonial room. If the court order issued pursuant to section 65.20 specifies that the vulnerable child witness shall testify outside the physical presence of the defendant, the image of the defendant and the image and voice of the person examining the vulnerable child witness shall also be simultaneously transmitted to the vulnerable child witness in the testimonial room.
3. The operator shall place herself or himself and the closed-circuit television equipment in a position that permits the entire testimony of the vulnerable child witness to be transmitted to the courtroom but limits the ability of the vulnerable child witness to see or hear the operator or the equipment.
4. Notwithstanding any provision of this article, if the court in a particular case involving a vulnerable child witness determines that there is no live, two-way closed-circuit television equipment available in the court or another court in the county or which can be transported to the court from another county or that such equipment, if available, is technologically inadequate to protect the constitutional rights of the defendant, it shall not permit the use of the closed-circuit television procedures authorized by this article.
5. If the order of the court entered pursuant to section 65.20 requires that the defendant remain in the courtroom, the attorney for the defendant and the district attorney shall also remain in the courtroom unless the court is satisfied that their presence in the testimonial room will not impede full and private communication between the defendant and his or her attorney and will not encourage the jury to draw an inference adverse to the interest of the defendant.
6. Upon request of the defendant, the court shall instruct the jury that they are to draw no inference from the use of live, two-way closed-circuit television in the examination of the vulnerable child witness.
7. The vulnerable child witness shall testify under oath except as specified in subdivision two of section 60.20. The examination and cross-examination of the vulnerable child witness shall, in all other respects, be conducted in the same manner as if the vulnerable child witness had testified in the courtroom.
8. When the testimony of the vulnerable child witness is transmitted from the testimonial room into the courtroom, the court stenographer shall record the textimony in the same manner as if the vulnerable child witness had testified in the courtroom.
* NB Repealed September 1, 2025
ARTICLE 70--STANDARDS OF PROOF
Section 70.10 Standards of proof; definitions of terms.
70.20 Standards of proof for conviction.
§ 70.10 Standards of proof; definitions of terms.
The following definitions are applicable to this chapter:
1. "Legally sufficient evidence" means competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant's commission thereof; except that such evidence is not legally sufficient when corroboration required by law is absent.
2. "Reasonable cause to believe that a person has committed an offense" exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it. Except as otherwise provided in this chapter, such apparently reliable evidence may include or consist of hearsay.
§ 70.20 Standards of proof for conviction.
No conviction of an offense by verdict is valid unless based upon trial evidence which is legally sufficient and which establishes beyond a reasonable doubt every element of such offense and the defendant's commission thereof.
PART TWO--THE PRINCIPAL PROCEEDINGS
TITLE H--PRELIMINARY PROCEEDINGS IN LOCAL CRIMINAL COURT
* ARTICLE 95
PRE-CRIMINAL PROCEEDING SETTLEMENTS Section 95.00 Pre-criminal proceeding settlement.
* NB Repealed March 31, 2025
* § 95.00 Pre-criminal proceeding settlement.
When a county district attorney of a county located in a city of one million or more recovers monies before the filing of an accusatory instrument as defined in subdivision one of section 1.20 of this chapter, after injured parties have been appropriately compensated, the district attorney's office shall retain a percentage of the remaining such monies in recognition that such monies were recovered as a result of investigations undertaken by such office. For each recovery the total amount of such monies to be retained by the county district attorney's office shall equal ten percent of the first twenty-five million dollars received by such office, plus seven and one-half percent of such monies received by such office in excess of twenty-five million dollars but less than fifty million dollars, plus five percent of any such monies received by such office in excess of fifty million dollars but less than one hundred million dollars, plus one percent of such monies received by such office in excess of one hundred million dollars. The remainder of such monies shall be paid by the district attorney's office to the state and to the county in equal amounts within thirty days of receipt, where disposition of such monies is not otherwise prescribed by law. Monies distributed to a county district attorney's office pursuant to this section shall be used to enhance law enforcement efforts within the state of New York. On December first of each year, every district attorney shall provide the governor, temporary president of the senate and speaker of the assembly with an annual report detailing the total amount of monies received as described herein by his or her office, a description of how and where such funds, and an itemization of funds received in the previous ten years, were distributed by his or her office but shall not include a description of the distribution of monies where the disclosure of such information would interfere with a law enforcement investigation or a judicial proceeding, and the current total balance of monies held on deposit for state sanctioned deferred prosecution agreements. The report shall include a detailed description of any entity to which funds are distributed, including but not limited to, whether it is a profit or not-for-profit entity, where it is located, and the intended use of the monies distributed, and shall state the law enforcement purpose.
* NB Repealed March 31, 2025
ARTICLE 100--COMMENCEMENT OF ACTION IN LOCAL CRIMINAL COURT OR YOUTH PART OF A SUPERIOR COURT--ACCUSATORY INSTRUMENTS
Section 100.05 Commencement of action; in general.
100.07 Commencement of action; effect of family court proceeding.
100.10 Local criminal court and youth part of the superior court accusatory instruments; definitions thereof.
100.15 Information, misdemeanor complaint and felony complaint; form and content.
100.20 Supporting deposition; definition, form and content.
100.25 Simplified information; form and content; defendant's right to supporting deposition; notice requirement.
100.30 Information, misdemeanor complaint, felony complaint, supporting deposition and proof of service of supporting deposition; verification.
100.35 Prosecutor's information; form and content.
100.40 Local criminal court and youth part of the superior court accusatory instruments; sufficiency on face.
100.45 Information, prosecutor's information, misdemeanor complaint; severance, consolidation, amendment, bill of particulars.
100.50 Superseding informations and prosecutor's informations.
100.55 Local criminal court accusatory instruments; in what courts filed.
100.60 Youth part of the superior court accusatory instruments; in what courts filed.
§ 100.05 Commencement of action; in general.
A criminal action is commenced by the filing of an accusatory instrument with a criminal court, or, in the case of a juvenile offender or adolescent offender, other than an adolescent offender charged with only a violation or traffic infraction, the youth part of the superior court, and if more than one such instrument is filed in the course of the same criminal action, such action commences when the first of such instruments is filed. The only way in which a criminal action can be commenced in a superior court, other than a criminal action against a juvenile offender or adolescent offender is by the filing therewith by a grand jury of an indictment against a defendant who has never been held by a local criminal court for the action of such grand jury with respect to any charge contained in such indictment. Otherwise, a criminal action can be commenced only in a local criminal court, by the filing therewith of a local criminal court accusatory instrument, namely:
1. An information; or
2. A simplified information; or
3. A prosecutor's information; or
4. A misdemeanor complaint; or
5. A felony complaint.
§ 100.07 Commencement of action; effect of family court proceeding.
A criminal court shall have concurrent jurisdiction over cognizable family offenses, as defined in subdivision one of section 530.11 of this chapter and in subdivision one of section eight hundred twelve of the family court act, notwithstanding the fact that a family court has or may be exercising jurisdiction over a petition under article eight of the family court act containing substantially the same allegations as are set forth in the accusatory instrument or indictment.
§ 100.10 Local criminal court and youth part of the superior court
accusatory instruments; definitions thereof.
1. An "information" is a verified written accusation by a person, filed with a local criminal court, charging one or more other persons with the commission of one or more offenses, none of which is a felony. It may serve as a basis both for the commencement of a criminal action and for the prosecution thereof in a local criminal court.
2. (a) A "simplified traffic information" is a written accusation by a police officer, or other public servant authorized by law to issue same, filed with a local criminal court, which charges a person with the commission of one or more traffic infractions and/or misdemeanors relating to traffic, and which, being in a brief or simplified form prescribed by the commissioner of motor vehicles, designates the offense or offenses charged but contains no factual allegations of an evidentiary nature supporting such charge or charges. It serves as a basis for commencement of a criminal action for such traffic offenses, alternative to the charging thereof by a regular information, and, under circumstances prescribed in section 100.25, it may serve, either in whole or in part, as a basis for prosecution of such charges.
(b) A "simplified parks information" is a written accusation by a police officer or other public servant authorized by law to issue same, filed with a local criminal court, which charges a person with the commission of one or more offenses, other than a felony, for which a uniform simplified parks information may be issued pursuant to the parks and recreation law and navigation law, and which being in a brief or simplified form prescribed by the commissioner of parks and recreation, designates the offense or offenses charged but contains no factual allegations of an evidentiary nature supporting such charge or charges. It serves as a basis for commencement of a criminal action for such offenses, alternative to the charging thereof by a regular information, and, under circumstances parescribed in section 100.25, it may serve, either in whole or in part, as a basis for prosecution of such charges.
(c) A "simplified environmental conservation information" is a written accusation by a police officer or other public servant authorized by law to issue same, filed with a local criminal court, which charges a person with the commission of one or more offenses, other than a felony, for which a uniform simplified environmental conservation information may be issued pursuant to the environmental conservation law, and which being in a brief or simplified form prescribed by the commissioner of environmental conservation, designates the offense or offenses charged but contains no factual allegations of an evidentiary nature supporting such charge or charges. It serves as a basis for commencement of a criminal action for such offenses, alternative to the charging thereof by a regular information, and, under circumstances prescribed in section 100.25, it may serve, either in whole or in part, as a basis for prosecution of such charges.
3. A "prosecutor's information" is a written accusation by a district attorney, filed with a local criminal court, either (a) at the direction of a grand jury pursuant to section 190.70, or (b) at the direction of a local criminal court pursuant to section 180.50 or 180.70, or (c) at the district attorney's own instance pursuant to subdivision two of section 100.50, or (d) at the direction of a superior court pursuant to subdivision one-a of section 210.20, charging one or more persons with the commission of one or more offenses, none of which is a felony. It serves as a basis for the prosecution of a criminal action, but it commences a criminal action only where it results from a grand jury direction issued in a case not previously commenced in a local criminal court.
4. A "misdemeanor complaint" is a verified written accusation by a person, filed with a local criminal court, charging one or more other persons with the commission of one or more offenses, at least one of which is a misdemeanor and none of which is a felony. It serves as a basis for the commencement of a criminal action, but it may serve as a basis for prosecution thereof only where a defendant has waived prosecution by information pursuant to subdivision three of section 170.65.
5. A "felony complaint" is a verified written accusation by a person, filed with a local criminal court, or youth part of the superior court, charging one or more other persons with the commission of one or more felonies. It serves as a basis for the commencement of a criminal action, but not as a basis for prosecution thereof.
§ 100.15 Information, misdemeanor complaint and felony complaint; form and
content.
1. An information, a misdemeanor complaint and a felony complaint must each specify the name of the court with which it is filed and the title of the action, and must be subscribed and verified by a person known as the "complainant." The complainant may be any person having knowledge, whether personal or upon information and belief, of the commission of the offense or offenses charged. Each instrument must contain an accusatory part and a factual part. The complainant's verification of the instrument is deemed to apply only to the factual part thereof and not to the accusatory part.
2. The accusatory part of each such instrument must designate the offense or offenses charged. As in the case of an indictment, and subject to the rules of joinder applicable to indictments, two or more offenses may be charged in separate counts. Also as in the case of an indictment, such instrument may charge two or more defendants provided that all such defendants are jointly charged with every offense alleged therein.
3. The factual part of such instrument must contain a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges. Where more than one offense is charged, the factual part should consist of a single factual account applicable to all the counts of the accusatory part. The factual allegations may be based either upon personal knowledge of the complainant or upon information and belief. Nothing contained in this section, however, limits or affects the requirement, prescribed in subdivision one of section 100.40, that in order for an information or a count thereof to be sufficient on its face, every element of the offense charged and the defendant's commission thereof must be supported by non-hearsay allegations of such information and/or any supporting depositions.
4. Where a felony complaint charges a violent felony offense defined in section 70.02 of the penal law and such offense is an armed felony as defined in subdivision forty-one of section 1.20,
(a) the accusatory part of the instrument must designate the offense as an armed felony, and (b) the factual part of the instrument must allege facts of an evidentiary character supporting or tending to support such designation.
§ 100.20 Supporting deposition; definition, form and content.
A supporting deposition is a written instrument accompanying or filed in connection with an information, a simplified information, a misdemeanor complaint or a felony complaint, subscribed and verified by a person other than the complainant of such accusatory instrument, and containing factual allegations of an evidentiary character, based either upon personal knowledge or upon information and belief, which supplement those of the accusatory instrument and support or tend to support the charge or charges contained therein.
§ 100.25 Simplified information; form and content; defendant's right to
supporting deposition; notice requirement.
1. A simplified information must be substantially in the form prescribed by the commissioner of motor vehicles, the commissioner of parks and recreation, or the commissioner of environmental conservation, as the case may be.
2. A defendant charged by a simplified information is, upon a timely request, entitled as a matter of right to have filed with the court and served upon him, or if he is represented by an attorney, upon his attorney, a supporting deposition of the complainant police officer or public servant, containing allegations of fact, based either upon personal knowledge or upon information and belief, providing reasonable cause to believe that the defendant committed the offense or offenses charged. To be timely, such a request must, except as otherwise provided herein and in subdivision three of this section, be made before entry of a plea of guilty to the charge specified and before commencement of a trial thereon, but not later than thirty days after the date the defendant is directed to appear in court as such date appears upon the simplified information and upon the appearance ticket issued pursuant thereto. If the defendant's request is mailed to the court, the request must be mailed within such thirty day period. Upon such a request, the court must order the complainant police officer or public servant to serve a copy of such supporting deposition upon the defendant or his attorney, within thirty days of the date such request is received by the court, or at least five days before trial, whichever is earlier, and to file such supporting deposition with the court together with proof of service thereof. Notwithstanding any provision to the contrary, where a defendant is issued an appearance ticket in conjunction with the offense charged in the simplified information and the appearance ticket fails to conform with the requirements of subdivision two of section 150.10, a request is timely when made not later than thirty days after (a) entry of the defendant's plea of not guilty when he or she has been arraigned in person, or (b) written notice to the defendant of his or her right to receive a supporting deposition when a plea of not guilty has been submitted by mail.
3. When at least one of the offenses charged in a simplified information is a misdemeanor, the court may, upon motion of the defendant, for good cause shown and consistent with the interest of justice, permit the defendant to request a supporting deposition beyond the thirty day request period set forth in subdivision two of this section provided, however, that no motion may be brought under this subdivision after ninety days has elapsed from the date the defendant is directed to appear in court as such date appears upon the simplified information and upon the appearance ticket issued pursuant thereto.
4. Notwithstanding any provision of law to the contrary, where a person is charged by a simplified information and is served with an appearance ticket as defined in section 150.10, such appearance ticket shall contain the following language: "NOTICE: YOU ARE ENTITLED TO RECEIVE A SUPPORTING DEPOSITION FURTHER EXPLAINING THE CHARGES PROVIDED YOU REQUEST SUCH SUPPORTING DEPOSITION WITHIN THIRTY DAYS FROM THE DATE YOU ARE DIRECTED TO APPEAR IN COURT AS SET FORTH ON THIS APPEARANCE TICKET. DO YOU REQUEST A SUPPORTING DEPOSITION? [ ] YES [ ] NO"
§ 100.30 Information, misdemeanor complaint, felony complaint, supporting deposition and proof of service of supporting deposition; verification.
1. An information, a misdemeanor complaint, a felony complaint, a supporting deposition, and proof of service of a supporting deposition may be verified in any of the following manners:
(a) Such instrument may be sworn to before the court with which it is filed.
(b) Such instrument may be sworn to before a desk officer in charge at a police station or police headquarters or any of his superior officers.
(c) Where such instrument is filed by any public servant following the issuance and service of an appearance ticket, and where by express provision of law another designated public servant is authorized to administer the oath with respect to such instrument, it may be sworn to before such public servant.
(d) Such instrument may bear a form notice that false statements made therein are punishable as a class A misdemeanor pursuant to section 210.45 of the penal law, and such form notice together with the subscription of the deponent constitute a verification of the instrument.
(e) Such instrument may be sworn to before a notary public.
2. An instrument specified in subdivision one may be verified in any manner prescribed therein unless in a particular case the court expressly directs verification in a particular manner prescribed in said subdivision one.
§ 100.35 Prosecutor's information; form and content.
A prosecutor's information must contain the name of the local criminal court with which it is filed and the title of the action, and must be subscribed by the district attorney by whom it is filed. Otherwise it should be in the form prescribed for an indictment, pursuant to section 200.50, and must, in one or more counts, allege the offense or offenses charged and a plain and concise statement of the conduct constituting each such offense. The rules prescribed in sections 200.20 and 200.40 governing joinder of different offenses and defendants in a single indictment are also applicable to a prosecutor's information.
§ 100.40 Local criminal court and youth part of the superior court accusatory instruments; sufficiency on face.
1. An information, or a count thereof, is sufficient on its face when:
(a) It substantially conforms to the requirements prescribed in section 100.15; and
(b) The allegations of the factual part of the information, together with those of any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information; and
(c) Non-hearsay allegations of the factual part of the information and/or of any supporting depositions establish, if true, every element of the offense charged and the defendant's commission thereof.
2. A simplified information is sufficient on its face when, as provided by subdivision one of section 100.25, it substantially conforms to the requirement therefor prescribed by or pursuant to law; provided that when the filing of a supporting deposition is ordered by the court pursuant to subdivision two of said section 100.25, a failure of the complainant police officer or public servant to comply with such order within the time provided by subdivision two of said section 100.25 renders the simplified information insufficient on its face.
3. A prosecutor's information, or a count thereof, is sufficient on its face when it substantially conforms to the requirements prescribed in section 100.35.
4. A misdemeanor complaint or a felony complaint, or a count thereof, is sufficient on its face when:
(a) It substantially conforms to the requirements prescribed in section 100.15; and
(b) The allegations of the factual part of such accusatory instrument and/or any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of such instrument.
§ 100.45 Information, prosecutor's information, misdemeanor complaint; severance, consolidation, amendment, bill of particulars.
1. Where appropriate, the provisions of sections 200.20 and 200.40 and paragraph (n) of subdivision four of section 20.40 of this chapter, governing severance of counts of an indictment and severance of defendants for trial purposes, and governing consolidation of indictments for trial purposes, apply to informations, to prosecutor's informations and to misdemeanor complaints.
2. The provisions of section 200.70 governing amendment of indictments apply to prosecutor's informations.
3. At any time before the entry of a plea of guilty to or the commencement of a trial of an information, the court may, upon application of the people and with notice to the defendant and opportunity to be heard, order the amendment of the accusatory part of such information by addition of a count charging an offense supported by the allegations of the factual part of such information and/or any supporting depositions which may accompany it. In such case, the defendant must be accorded any reasonable adjournment necessitated by the amendment.
4. The provisions of section 200.95, governing bills of particulars with respect to indictments, apply to informations, to misdemeanor complaints and to prosecutor's informations.
§ 100.50 Superseding informations and prosecutor's informations.
1. If at any time before entry of a plea of guilty to or commencement of a trial of an information or a prosecutor's information, another information or, as the case may be, another prosecutor's information is filed with the same local criminal court charging the defendant with an offense charged in the first instrument, the first such instrument is, with respect to such offense, superseded by the second and, upon the defendant's arraignment upon the latter, the count of the first instrument charging such offense must be dismissed by the court. The first instrument is not, however, superseded with respect to any count contained therein which charges an offense not charged in the second instrument.
2. At any time before entry of a plea of guilty to or commencement of a trial of an information, the district attorney may file with the local criminal court a prosecutor's information charging any offenses supported, pursuant to the standards prescribed in subdivision one of section 100.40, by the allegations of the factual part of the original information and/or any supporting depositions which may accompany it. In such case, the original information is superseded by the prosecutor's information and, upon the defendant's arraignment upon the latter, is deemed dismissed.
3. A misdemeanor complaint must or may be replaced and superseded by an information pursuant to the provisions of section 170.65.
§ 100.55 Local criminal court accusatory instruments; in what courts filed.
1. Any local criminal court accusatory instrument may be filed with a district court of a particular county when an offense charged therein was allegedly committed in such county or that part thereof over which such court has jurisdiction.
2. Any local criminal court accusatory instrument may be filed with the New York City criminal court when an offense charged therein was allegedly committed in New York City.
3. Any local criminal court accusatory instrument may be filed with a city court of a particular city when an offense charged therein was allegedly committed in such city.
4. An information, a simplified information, a prosecutor's information or a misdemeanor complaint may be filed with a town court of a particular town when an offense charged therein was allegedly committed anywhere in such town other than in a village thereof having a village court.
5. An information, a simplified information, a prosecutor's information or a misdemeanor complaint may be filed with a village court of a particular village when an offense charged therein was allegedly committed in such village.
6. A felony complaint may be filed with any town court or village court of a particular county when a felony charged therein was allegedly committed in some town of such county. Such court need not be that of the town or village in which such felony was allegedly committed.
7. An information, a simplified information, a misdemeanor complaint or a felony complaint may be filed with a judge of a superior court sitting as a local criminal court when an offense charged therein was allegedly committed in a county in which such judge is then present and in which he either resides or is currently holding, or has been assigned to hold, a term of a superior court.
8. Where it is otherwise expressly provided by law that a particular kind of accusatory instrument may under given circumstances be filed with a local criminal court other than one authorized by this section, nothing contained in this section precludes the filing of such accusatory instrument accordingly.
9. In any case where each of two or more local criminal courts is authorized as a proper court with which to file an accusatory instrument, such an instrument may, in the absence of an express provision of law to the contrary, be filed with any one of such courts but not with more than one.
10. For purposes of this section, an offense is "committed in" a particular county, city, town, village or other specified political subdivision or area, not only when it is in fact committed therein but also when it is, for other reasons specified in sections 20.40 and 20.50, prosecutable in the criminal courts having geographical jurisdiction over such political subdivision or area.
11. Notwithstanding any provision of law to the contrary, a local criminal court accusatory instrument may be filed with a local criminal court while it is operating an off-hours arraignment part designated in accordance with paragraph (w) of subdivision one of section two hundred twelve of the judiciary law provided that an offense charged therein was allegedly committed in the county in which the local criminal court is located.
§ 100.60 Youth part of the superior court accusatory instruments; in what courts filed.
Any youth part of the superior court accusatory instrument may be filed with the youth part of the superior court of a particular county when an offense charged therein was allegedly committed in such county or that part thereof over which such court has jurisdiction.
ARTICLE 110--REQUIRING DEFENDANT'S APPEARANCE IN LOCAL CRIMINAL COURT OR YOUTH PART OF SUPERIOR COURT FOR ARRAIGNMENT
Section 110.10 Methods of requiring defendant's appearance in local criminal court or youth part of the superior court for arraignment; in general.
110.20 Local criminal court or youth part of the superior court accusatory instruments; notice thereof to district attorney.
§ 110.10 Methods of requiring defendant's appearance in local criminal court or youth part of the superior court for arraignment; in general.
1. After a criminal action has been commenced in a local criminal court or youth part of the superior court by the filing of an accusatory instrument therewith, a defendant who has not been arraigned in the action and has not come under the control of the court may under certain circumstances be compelled or required to appear for arraignment upon such accusatory instrument by:
(a) The issuance and execution of a warrant of arrest, as provided in article one hundred twenty; or
(b) The issuance and service upon him of a summons, as provided in article one hundred thirty; or
(c) Procedures provided in articles five hundred sixty, five hundred seventy, five hundred eighty, five hundred ninety and six hundred for securing attendance of defendants in criminal actions who are not at liberty within the state.
2. Although no criminal action against a person has been commenced in any court, he may under certain circumstances be compelled or required to appear in a local criminal court or youth part of a superior court for arraignment upon an accusatory instrument to be filed therewith at or before the time of his appearance by:
(a) An arrest made without a warrant, as provided in article one hundred forty; or
(b) The issuance and service upon him of an appearance ticket, as provided in article one hundred fifty.
§ 110.20 Local criminal court or youth part of the superior court accusatory instruments; notice thereof to district attorney.
When a criminal action in which a crime is charged is commenced in a local criminal court, or youth part of the superior court other than the criminal court of the city of New York, a copy of the accusatory instrument shall be promptly transmitted to the appropriate district attorney upon or prior to the arraignment of the defendant on the accusatory instrument. If a police officer or a peace officer is the complainant or the filer of a simplified information, or has arrested the defendant or brought him before the local criminal court or youth part of the superior court on behalf of an arresting person pursuant to subdivision one of section 140.20, such officer or his agency shall transmit the copy of the accusatory instrument to the appropriate district attorney. In all other cases, the clerk of the court in which the defendant is arraigned shall so transmit it.
ARTICLE 120--WARRANT OF ARREST
Section 120.10 Warrant of arrest; definition, function, form and content.
120.20 Warrant of arrest; when issuable.
120.30 Warrant of arrest; by what courts issuable and in what courts returnable.
120.40 Warrant of arrest; attaching accusatory instrument to warrant of town court, village court or city court.
120.50 Warrant of arrest; to what police officers addressed.
120.55 Warrant of arrest; defendant under parole or probation supervision.
120.60 Warrant of arrest; what police officers may execute.
120.70 Warrant of arrest; where executable.
120.80 Warrant of arrest; when and how executed.
120.90 Warrant of arrest; procedure after arrest.
§ 120.10 Warrant of arrest; definition, function, form and content.
1. A warrant of arrest is a process issued by a local criminal court directing a police officer to arrest a defendant designated in an accusatory instrument filed with such court and to bring him before such court in connection with such instrument. The sole function of a warrant of arrest is to achieve a defendant's court appearance in a criminal action for the purpose of arraignment upon the accusatory instrument by which such action was commenced.
2. A warrant of arrest must be subscribed by the issuing judge and must state or contain (a) the name of the issuing court, and (b) the date of issuance of the warrant, and (c) the name or title of an offense charged in the underlying accusatory instrument, and (d) the name of the defendant to be arrested or, if such be unknown, any name or description by which he can be identified with reasonable certainty, and (e) the police officer or officers to whom the warrant is addressed, and (f) a direction that such officer arrest the defendant and bring him before the issuing court.
3. A warrant of arrest may be addressed to a classification of police officers, or to two or more classifications thereof, as well as to a designated individual police officer or officers. Multiple copies of such a warrant may be issued.
§ 120.20 Warrant of arrest; when issuable.
1. When a criminal action has been commenced in a local criminal court or youth part of the superior court by the filing therewith of an accusatory instrument, other than a simplified traffic information, against a defendant who has not been arraigned upon such accusatory instrument and has not come under the control of the court with respect thereto:
(a) such court may, if such accusatory instrument is sufficient on its face, issue a warrant for such defendant's arrest; or
(b) if such accusatory instrument is not sufficient on its face as prescribed in section 100.40, and if the court is satisfied that on the basis of the available facts or evidence it would be impossible to draw and file an accusatory instrument that is sufficient on its face, the court must dismiss the accusatory instrument.
2. Even though such accusatory instrument is sufficient on its face, the court may refuse to issue a warrant of arrest based thereon until it has further satisfied itself, by inquiry or examination of witnesses, that there is reasonable cause to believe that the defendant committed an offense charged. Upon such inquiry or examination, the court may examine, under oath or otherwise, any available person whom it believes may possess knowledge concerning the subject matter of the charge.
3. Notwithstanding the provisions of subdivision one, if a summons may be issued in lieu of a warrant of arrest pursuant to section 130.20, and if the court is satisfied that the defendant will respond thereto, it may not issue a warrant of arrest. Upon the request of the district attorney, in lieu of a warrant of arrest or summons, the court may instead authorize the district attorney to direct the defendant to appear for arraignment on a designated date if it is satisfied that the defendant will so appear.
§ 120.30 Warrant of arrest; by what courts issuable and in what courts returnable.
1. A warrant of arrest may be issued only by the local criminal court or youth part of the superior court with which the underlying accusatory instrument has been filed, and it may be made returnable in such issuing court only.
2. The particular local criminal court or courts or youth part of the superior court with which any particular local criminal court or youth part of the superior court accusatory instrument may be filed for the purpose of obtaining a warrant of arrest are determined, generally, by the provisions of section 100.55 or 100.60 of this title. If, however, a particular accusatory instrument may pursuant to said section 100.55 be filed with a particular town court and such town court is not available at the time such instrument is sought to be filed and a warrant obtained, such accusatory instrument may be filed with the town court of any adjoining town of the same county. If such instrument may be filed pursuant to said section 100.55 with a particular village court and such village court is not available at the time, it may be filed with the town court of the town embracing such village, or if such town court is not available either, with the town court of any adjoining town of the same county.
§ 120.40 Warrant of arrest; attaching accusatory instrument to warrant of town court, village court or city court.
A town court, village court or city court which issues a warrant of arrest may attach thereto a duplicate copy of the underlying accusatory instrument. If one or more duplicate copies of the warrant are issued, such court may attach as many copies of such accusatory instrument to copies of such warrant as it chooses. In any case where, pursuant to subdivision five of section 120.90, a defendant arrested upon such a warrant of arrest is brought before a local criminal court other than the town court, village court or city court in which the warrant is returnable, a copy of the accusatory instrument constitutes a valid basis for arraignment, as provided in subdivision one of section 170.15.
§ 120.50 Warrant of arrest; to what police officers addressed.
A warrant of arrest may be addressed to any police officer or classification of police officers whose geographical area of employment embraces either the place where the offense charged was allegedly committed or the locality of the court by which the warrant is issued.
§ 120.55 Warrant of arrest; defendant under parole or probation supervision.
If the defendant named within a warrant of arrest issued by a local criminal court or youth part of the superior court pursuant to the provisions of this article, or by a superior court issued pursuant to subdivision three of section 210.10 of this chapter, is under the supervision of the state department of corrections and community supervision or a local or state probation department, then a warrant for his or her arrest may be executed by a parole officer or probation officer, when authorized by his or her probation director, within his or her geographical area of employment. The execution of the warrant by a parole officer or probation officer shall be upon the same conditions and conducted in the same manner as provided for execution of a warrant by a police officer.
§ 120.60 Warrant of arrest; what police officers may execute.
1. A warrant of arrest may be executed by (a) any police officer to whom it is addressed, or (b) any other police officer delegated to execute it under circumstances prescribed in subdivisions two and three.
2. A police officer to whom a warrant of arrest is addressed may delegate another officer to whom it is not addressed to execute such warrant as his agent when:
(a) He has reasonable cause to believe that the defendant is in a particular county other than the one in which the warrant is returnable; and
(b) The warrant is, pursuant to section 120.70, executable in such other county without endorsement by a local criminal court thereof; and
(c) The geographical area of employment of the delegated police officer embraces the locality where the arrest is to be made.
3. Under circumstances specified in subdivision two, the police officer to whom the warrant is addressed may inform the delegated officer, by telecommunication, mail or any other means, of the issuance of the warrant, of the offense charged in the underlying accusatory instrument and of all other pertinent details, and may request him to act as his agent in arresting the defendant pursuant to such warrant. Upon such request, the delegated police officer is to the same extent as the delegating officer, authorized to make such arrest pursuant to the warrant within the geographical area of such delegated officer's employment. Upon so arresting the defendant, he must proceed as provided in subdivisions two and four of section 120.90.
§ 120.70 Warrant of arrest; where executable.
1. A warrant of arrest issued by a district court, by the New York City criminal court, the youth part of a superior court or by a superior court judge sitting as a local criminal court may be executed anywhere in the state.
2. A warrant of arrest issued by a city court, a town court or a village court may be executed:
(a) In the county of issuance or in any adjoining county; or
(b) Anywhere else in the state upon the written endorsement thereon of a local criminal court of the county in which the arrest is to be made. When so endorsed, the warrant is deemed the process of the endorsing court as well as that of the issuing court.
§ 120.80 Warrant of arrest; when and how executed.
1. A warrant of arrest may be executed on any day of the week and at any hour of the day or night.
2. Unless encountering physical resistance, flight or other factors rendering normal procedure impractical, the arresting police officer must inform the defendant that a warrant for his arrest for the offense designated therein has been issued. Upon request of the defendant, the officer must show him the warrant if he has it in his possession. The officer need not have the warrant in his possession, and, if he has not, he must show it to the defendant upon request as soon after the arrest as possible.
3. In order to effect the arrest, the police officer may use such physical force as is justifiable pursuant to section 35.30 of the penal law.
4. In order to effect the arrest, the police officer may, under circumstances and in the manner prescribed in this subdivision, enter any premises in which he reasonably believes the defendant to be present; provided, however, that where the premises in which the officer reasonably believes the defendant to be present is the dwelling of a third party who is not the subject of the arrest warrant, the officer shall proceed in the manner specified in article 690 of this chapter. Before such entry, he must give, or make reasonable effort to give, notice of his authority and purpose to an occupant thereof, unless there is reasonable cause to believe that the giving of such notice will:
(a) Result in the defendant escaping or attempting to escape; or
(b) Endanger the life or safety of the officer or another person; or
(c) Result in the destruction, damaging or secretion of material evidence.
5. If the officer is authorized to enter premises without giving notice of his authority and purpose, or if after giving such notice he is not admitted, he may enter such premises, and by a breaking if necessary.
§ 120.90 Warrant of arrest; procedure after arrest.
1. Upon arresting a defendant for any offense pursuant to a warrant of arrest in the county in which the warrant is returnable or in any adjoining county, or upon so arresting him or her for a felony in any other county, a police officer, if he or she be one to whom the warrant is addressed, must without unnecessary delay bring the defendant before the local criminal court or youth part of the superior court in which such warrant is returnable, provided that, where a local criminal court or youth part of the superior court in the county in which the warrant is returnable hereunder is operating an off-hours arraignment part designated in accordance with paragraph (w) of subdivision one of section two hundred twelve of the judiciary law at the time of defendant's return, such police officer may bring the defendant before such local criminal court or youth part of the superior court.
2. Upon arresting a defendant for any offense pursuant to a warrant of arrest in a county adjoining the county in which the warrant is returnable, or upon so arresting him for a felony in any other county, a police officer, if he be one delegated to execute the warrant pursuant to section 120.60, must without unnecessary delay deliver the defendant or cause him to be delivered to the custody of the officer by whom he was so delegated, and the latter must then proceed as provided in subdivision one.
3. Upon arresting a defendant for an offense other than a felony pursuant to a warrant of arrest in a county other than the one in which the warrant is returnable or one adjoining it, a police officer, if he be one to whom the warrant is addressed, must inform the defendant that he has a right to appear before a local criminal court of the county of arrest for the purpose of being released on his own recognizance or having bail fixed. If the defendant does not desire to avail himself of such right, the officer must request him to endorse such fact upon the warrant, and upon such endorsement the officer must without unnecessary delay bring him before the court in which the warrant is returnable. If the defendant does desire to avail himself of such right, or if he refuses to make the aforementioned endorsement, the officer must without unnecessary delay bring him before a local criminal court of the county of arrest. Such court must release the defendant on his own recognizance or fix bail for his appearance on a specified date in the court in which the warrant is returnable. If the defendant is in default of bail, the officer must without unnecessary delay bring him before the court in which the warrant is returnable.
4. Upon arresting a defendant for an offense other than a felony pursuant to a warrant of arrest in a county other than the one in which the warrant is returnable or one adjoining it, a police officer, if he be one delegated to execute the warrant pursuant to section 120.60, may hold the defendant in custody in the county of arrest for a period not exceeding two hours for the purpose of delivering him to the custody of the officer by whom he was delegated to execute such warrant. If the delegating officer receives custody of the defendant during such period, he must proceed as provided in subdivision three. Otherwise, the delegated officer must inform the defendant that he has a right to appear before a local criminal court for the purpose of being released on his own recognizance or having bail fixed. If the defendant does not desire to avail himself of such right, the officer must request him to make, sign and deliver to him a written statement of such fact, and if the defendant does so, the officer must retain custody of him but must without unnecessary delay deliver him or cause him to be delivered to the custody of the delegating police officer. If the defendant does desire to avail himself of such right, or if he refuses to make and deliver the aforementioned statement, the delegated or arresting officer must without unnecessary delay bring him before a local criminal court of the county of arrest and must submit to such court a written statement reciting the material facts concerning the issuance of the warrant, the offense involved, and all other essential matters relating thereto. Upon the submission of such statement, such court must release the defendant on his own recognizance or fix bail for his appearance on a specified date in the court in which the warrant is returnable. If the defendant is in default of bail, the officer must retain custody of him but must without unnecessary delay deliver him or cause him to be delivered to the custody of the delegating officer. Upon receiving such custody, the latter must without unnecessary delay bring the defendant before the court in which the warrant is returnable.
5. Whenever a police officer is required pursuant to this section to bring an arrested defendant before a town court in which a warrant of arrest is returnable, and if such town court is not available at the time, such officer must, if a copy of the underlying accusatory instrument has been attached to the warrant pursuant to section 120.40, instead bring such defendant before any village court embraced, in whole or in part, by such town, or any local criminal court of an adjoining town or city of the same county or any village court embraced, in whole or in part, by such adjoining town. When the court in which the warrant is returnable is a village court which is not available at the time, the officer must in such circumstances bring the defendant before the town court of the town embracing such village or any other village court within such town or, if such town court or village court is not available either, before the local criminal court of any town or city of the same county which adjoins such embracing town or, before the local criminal court of any village embraced in whole or in part by such adjoining town. When the court in which the warrant is returnable is a city court which is not available at the time, the officer must in such circumstances bring the defendant before the local criminal court of any adjoining town or village embraced in whole or in part by such adjoining town of the same county.
5-a. Whenever a police officer is required, pursuant to this section, to bring an arrested defendant before a youth part of a superior court in which a warrant of arrest is returnable, and if such court is not in session, such officer must bring such defendant before the most accessible magistrate designated by the appellate division of the supreme court in the applicable department to act as a youth part.
6. Before bringing a defendant arrested pursuant to a warrant before the local criminal court or youth part of a superior court in which such warrant is returnable, a police officer must without unnecessary delay perform all fingerprinting and other preliminary police duties required in the particular case. In any case in which the defendant is not brought by a police officer before such court but, following his arrest in another county for an offense specified in subdivision one of section 160.10, is released by a local criminal court of such other county on his own recognizance or on bail for his appearance on a specified date before the local criminal court before which the warrant is returnable, the latter court must, upon arraignment of the defendant before it, direct that he be fingerprinted by the appropriate officer or agency, and that he appear at an appropriate designated time and place for such purpose.
7. Upon arresting a juvenile offender or adolescent offender, the police officer shall immediately notify the parent or other person legally responsible for his care or the person with whom he is domiciled, that the juvenile offender or adolescent offender has been arrested, and the location of the facility where he is being detained.
8. Upon arresting a defendant, other than a juvenile offender, for any offense pursuant to a warrant of arrest, a police officer shall, upon the defendant's request, permit the defendant to communicate by telephone provided by the law enforcement facility where the defendant is held to a phone number located anywhere 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 arrested, unless granting the call will compromise an ongoing investigation or the prosecution of the defendant.
ARTICLE 130--THE SUMMONS
Section 130.10 Summons; definition, function, form and content.
130.20 Summons; by what courts issuable and in what courts returnable.
130.30 Summons; when issuable.
130.40 Summons; service.
130.50 Summons; defendant's failure to appear.
130.60 Summons; fingerprinting of defendant.
§ 130.10 Summons; definition, function, form and content.
1. A summons is a process issued by a local criminal court directing a defendant designated in an information, a prosecutor's information, a felony complaint or a misdemeanor complaint filed with such court, or a youth part of a superior court directing a defendant designated in a felony complaint, or by a superior court directing a defendant designated in an indictment filed with such court, to appear before it at a designated future time in connection with such accusatory instrument. The sole function of a summons is to achieve a defendant's court appearance in a criminal action for the purpose of arraignment upon the accusatory instrument by which such action was commenced.
2. A summons must be subscribed by the issuing judge and must state or contain (a) the name of the issuing court, and (b) the name of the defendant to whom it is addressed, and (c) the name or title of an offense charged in the underlying accusatory instrument, and (d) the date of issuance of the summons, and (e) the date and time when it is returnable, and (f) a direction that the defendant appear before the issuing court at such time.
§ 130.20 Summons; by what courts issuable and in what courts returnable.
A summons may be issued only by the local criminal court or superior court with which the accusatory instrument underlying it has been filed, and it may be made returnable in such issuing court only.
§ 130.30 Summons; when issuable.
A local criminal court or youth part of the superior court may issue a summons in any case in which, pursuant to section 120.20, it is authorized to issue a warrant of arrest based upon an information, a prosecutor's information, a felony complaint or a misdemeanor complaint. If such information, prosecutor's information, felony complaint or misdemeanor complaint is not sufficient on its face as prescribed in section 100.40, and if the court is satisfied that on the basis of the available facts or evidence it would be impossible to draw and file an authorized accusatory instrument that is sufficient on its face, the court must dismiss the accusatory instrument. A superior court may issue a summons in any case in which, pursuant to section 210.10, it is authorized to issue a warrant of arrest based upon an indictment.
§ 130.40 Summons; service.
1. A summons may be served by a police officer, or by a complainant at least eighteen years old or by any other person at least eighteen years old designated by the court.
2. A summons may be served anywhere in the county of issuance or anywhere in an adjoining county.
§ 130.50 Summons; defendant's failure to appear.
If after the service of a summons the defendant does not appear in the designated local criminal court or superior court at the time such summons is returnable, the court may issue a warrant of arrest.
§ 130.60 Summons; fingerprinting of defendant.
1. Upon the arraignment of a defendant whose court attendance has been secured by the issuance and service of a summons, based upon an indictment, a prosecutor's information or upon an information, felony complaint or misdemeanor complaint filed by a complainant who is a police officer, the court must, if an offense charged in the accusatory instrument is one specified in subdivision one of section 160.10, direct that the defendant be fingerprinted by the appropriate police officer or agency, and that he or she appear at an appropriate designated time and place for such purpose.
2. Upon the arraignment of a defendant whose court attendance has been secured by the issuance and service of a summons based upon an information or misdemeanor complaint filed by a complainant who is not a police officer, and who has not previously been fingerprinted, the court may, if it finds reasonable cause to believe that the defendant has committed an offense specified in subdivision one of section 160.10, direct that the defendant be fingerprinted by the appropriate police officer or agency and that he appear at an appropriate designated time and place for such purpose. A defendant whose court appearance has been secured by the issuance and service of a criminal summons based upon a misdemeanor complaint or information filed by a complainant who is not a police officer, must be directed by the court, upon conviction of the defendant, to be fingerprinted by the appropriate police officer or agency and the court must also direct that the defendant appear at an appropriate designated time and place for such purpose, if the defendant is convicted of any offense specified in subdivision one of section 160.10.
ARTICLE 140--ARREST WITHOUT A WARRANT
Section 140.05 Arrest without a warrant; in general.
140.10 Arrest without a warrant; by police officer; when and where authorized.
140.15 Arrest without a warrant; when and how made by police officer.
140.20 Arrest without a warrant; procedure after arrest by police officer.
140.25 Arrest without a warrant; by peace officer.
140.27 Arrest without a warrant; when and how made; procedure after arrest by peace officer.
140.30 Arrest without a warrant; by any person; when and where authorized.
140.35 Arrest without a warrant; by person acting other than as a police officer or a peace officer; when and how made.
140.40 Arrest without a warrant; by person acting other than as a police officer or a peace officer; procedure after arrest.
140.45 Arrest without a warrant; dismissal of insufficient local criminal court accusatory instrument.
140.50 Temporary questioning of persons in public places; search for weapons.
140.55 Arrest without a warrant; by peace officers of other states for offense committed outside state; uniform close pursuit act.
§ 140.05 Arrest without a warrant; in general.
A person who has committed or is believed to have committed an offense and who is at liberty within the state may, under circumstances prescribed in this article, be arrested for such offense although no warrant of arrest therefor has been issued and although no criminal action therefor has yet been commenced in any criminal court.
§ 140.10 Arrest without a warrant; by police officer; when and where authorized.
1. Subject to the provisions of subdivision two, a police officer may arrest a person for:
(a) Any offense when he or she has reasonable cause to believe that such person has committed such offense in his or her presence; and
(b) A crime when he or she has reasonable cause to believe that such person has committed such crime, whether in his or her presence or otherwise.
2. A police officer may arrest a person for a petty offense, pursuant to subdivision one, only when:
(a) Such offense was committed or believed by him or her to have been committed within the geographical area of such police officer's employment or within one hundred yards of such geographical area; and
(b) Such arrest is made in the county in which such offense was committed or believed to have been committed or in an adjoining county; except that the police officer may follow such person in continuous close pursuit, commencing either in the county in which the offense was or is believed to have been committed or in an adjoining county, in and through any county of the state, and may arrest him or her in any county in which he or she apprehends him or her.
3. A police officer may arrest a person for a crime, pursuant to subdivision one, whether or not such crime was committed within the geographical area of such police officer's employment, and he or she may make such arrest within the state, regardless of the situs of the commission of the crime. In addition, he or she may, if necessary, pursue such person outside the state and may arrest him or her in any state the laws of which contain provisions equivalent to those of section 140.55.
3-a. A police officer may not arrest any person for any legally protected health activity within this state as defined in section 570.17 of this chapter.
3-b. A police officer may not arrest any person for performing or aiding in the performance of gender-affirming care within this state, or in procuring or aiding in the procurement of gender-affirming care in this state, if the gender-affirming care is performed in accordance with the provisions of any other applicable law of this state.
* 4. Notwithstanding any other provisions of this section, a police officer shall arrest a person, and shall not attempt to reconcile the parties or mediate, where such officer has reasonable cause to believe that:
(a) a felony, other than subdivision three, four, nine or ten of section 155.30 of the penal law, has been committed by such person against a member of the same family or household, as member of the same family or household is defined in subdivision one of section 530.11 of this chapter; or
(b) a duly served order of protection or special order of conditions issued pursuant to subparagraph (i) or (ii) of paragraph (o) of subdivision one of section 330.20 of this chapter is in effect, or an order of which the respondent or defendant has actual knowledge because he or she was present in court when such order was issued, where the order appears to have been issued by a court of competent jurisdiction of this or another state, territorial or tribal jurisdiction; and
(i) Such order directs that the respondent or defendant stay away from persons on whose behalf the order of protection or special order of conditions has been issued and the respondent or defendant committed an act or acts in violation of such "stay away" provision of such order; or
(ii) The respondent or defendant commits a family offense as defined in subdivision one of section eight hundred twelve of the family court act or subdivision one of section 530.11 of this chapter in violation of such order of protection or special order of conditions.
The provisions of this subdivision shall apply only to orders of protection issued pursuant to sections two hundred forty and two hundred fifty-two of the domestic relations law, articles four, five, six and eight of the family court act and section 530.12 of this chapter, special orders of conditions issued pursuant to subparagraph (i) or (ii) of paragraph (o) of subdivision one of section 330.20 of this chapter insofar as they involve a victim or victims of domestic violence as defined by subdivision one of section four hundred fifty-nine-a of the social services law or a designated witness or witnesses to such domestic violence, and to orders of protection issued by courts of competent jurisdiction in another state, territorial or tribal jurisdiction. In determining whether reasonable cause exists to make an arrest for a violation of an order issued by a court of another state, territorial or tribal jurisdiction, the officer shall consider, among other factors, whether the order, if available, appears to be valid on its face or whether a record of the order exists on the statewide registry of orders of protection and warrants established pursuant to section two hundred twenty-one-a of the executive law or the protection order file maintained by the national crime information center; provided, however, that entry of the order of protection or special order of conditions into the statewide registry or the national protection order file shall not be required for enforcement of the order. When a special order of conditions is in effect and a defendant or respondent has been taken into custody pursuant to this paragraph, nothing contained in this paragraph shall restrict or impair a police officer from acting pursuant to section 9.41 of the mental hygiene law; or
(c) a misdemeanor constituting a family offense, as described in subdivision one of section 530.11 of this chapter and section eight hundred twelve of the family court act, has been committed by such person against such family or household member, unless the victim requests otherwise. The officer shall neither inquire as to whether the victim seeks an arrest of such person nor threaten the arrest of any person for the purpose of discouraging requests for police intervention. Notwithstanding the foregoing, when an officer has reasonable cause to believe that more than one family or household member has committed such a misdemeanor, the officer is not required to arrest each such person. In such circumstances, the officer shall attempt to identify and arrest the primary physical aggressor after considering: (i) the comparative extent of any injuries inflicted by and between the parties; (ii) whether any such person is threatening or has threatened future harm against another party or another family or household member; (iii) whether any such person has a prior history of domestic violence that the officer can reasonably ascertain; and (iv) whether any such person acted defensively to protect himself or herself from injury. The officer shall evaluate each complaint separately to determine who is the primary physical aggressor and shall not base the decision to arrest or not to arrest on the willingness of a person to testify or otherwise participate in a judicial proceeding.
The protected party in whose favor the order of protection or temporary order of protection is issued may not be held to violate an order issued in his or her favor nor may such protected party be arrested for violating such order.
Nothing contained in this subdivision shall be deemed to (a) require the arrest of any person when the officer reasonably believes the person's conduct is justifiable under article thirty-five of title C of the penal law; or (b) restrict or impair the authority of any municipality, political subdivision, or the division of state police from promulgating rules, regulations and policies requiring the arrest of persons in additional circumstances where domestic violence has allegedly occurred.
No cause of action for damages shall arise in favor of any person by reason of any arrest made by a police officer pursuant to this subdivision, except as provided in sections seventeen and eighteen of the public officers law and sections fifty-k, fifty-l, fifty-m and fifty-n of the general municipal law, as appropriate.
* NB Repealed September 1, 2025
5. Upon investigating a report of a crime or offense between members of the same family or household as such terms are defined in section 530.11 of this chapter and section eight hundred twelve of the family court act, a law enforcement officer shall prepare, file, and translate, in accordance with section two hundred fourteen-b or eight hundred forty of the executive law, a written report of the incident, on a form promulgated pursuant to section eight hundred thirty-seven of the executive law, including statements made by the victim and by any witnesses, and make any additional reports required by local law enforcement policy or regulations. Such report shall be prepared and filed, whether or not an arrest is made as a result of the officers' investigation, and shall be retained by the law enforcement agency for a period of not less than four years. Where the reported incident involved an offense committed against a person who is sixty-five years of age or older a copy of the report required by this subdivision shall be sent to the New York state committee for the coordination of police services to elderly persons established pursuant to section eight hundred forty-four-b of the executive law. Where the reported incident involved an offense committed by an individual known by the law enforcement officer to be under probation or parole supervision, he or she shall transmit a copy of the report as soon as practicable to the supervising probation department or the department of corrections and community supervision.
6. (a) A police officer who responds to a report of a family offense as defined in section 530.11 of this chapter and section eight hundred twelve of the family court act may take temporary custody of any firearm, rifle, electronic dart gun, electronic stun gun, disguised gun, imitation weapon, shotgun, antique firearm, black powder rifle, black powder shotgun, or muzzle-loading firearm that is in plain sight or is discovered pursuant to a consensual or other lawful search, and shall take temporary custody of any such weapon that is in the possession of any person arrested for the commission of such family offense or suspected of its commission. An officer who takes custody of any weapon pursuant to this paragraph shall also take custody of any license to carry, possess, repair, and dispose of such weapon issued to the person arrested or suspected of such family offense. The officer shall deliver such weapon and/or license to the appropriate law enforcement officer as provided in subparagraph (f) of paragraph one of subdivision a of section 265.20 of the penal law.
(b) Upon taking custody of weapons or a license described in paragraph (a) of this subdivision, the responding officer shall give the owner or person in possession of such weapons or license a receipt describing such weapons and/or license and indicating any identification or serial number on such weapons. Such receipt shall indicate where the weapons and/or license can be recovered and describe the process for recovery provided in paragraph (e) of this subdivision.
(c) Not less than forty-eight hours after effecting such seizure, and in the absence of (i) an order of protection, an extreme risk protection order, or other court order prohibiting the owner from possessing such a weapon and/or license, or (ii) a pending criminal charge or conviction which prohibits such owner from possessing such a weapon and/or license, and upon a written finding that there is no legal impediment to the owner's possession of such a weapon and/or license, the court or, if no court is involved, licensing authority or custodian of the weapon shall direct return of a weapon not otherwise disposed of in accordance with subdivision one of section 400.05 of the penal law and/or such license taken into custody pursuant to this section.
(d) If any other person demonstrates that such person is the lawful owner of any weapon taken into custody pursuant to this section, and provided that the court or, if no court is involved, licensing authority or custodian of the weapon has made a written finding that there is no legal impediment to the person's possession of such a weapon, such court, licensing authority or custodian of the weapon, as the case may be, shall direct that such weapon be returned to such lawful owner.
(e) All weapons in the possession of a law enforcement official pursuant to this section shall be subject to the provisions of applicable law, including but not limited to subdivision six of section 400.05 of the penal law; provided, however, that any such weapon shall be retained and not disposed of by the law enforcement agency for at least two years unless legally transferred by the owner to an individual permitted by law to own and possess such weapon.
§ 140.15 Arrest without a warrant; when and how made by police officer.
1. A police officer may arrest a person for an offense, pursuant to section 140.10, at any hour of any day or night.
2. The arresting police officer must inform such person of his authority and purpose and of the reason for such arrest unless he encounters physical resistance, flight or other factors rendering such procedure impractical.
3. In order to effect such an arrest, such police officer may use such physical force as is justifiable pursuant to section 35.30 of the penal law.
4. In order to effect such an arrest, a police officer may enter premises in which he reasonably believes such person to be present, under the same circumstances and in the same manner as would be authorized, by the provisions of subdivisions four and five of section 120.80, if he were attempting to make such arrest pursuant to a warrant of arrest.
§ 140.20 Arrest without a warrant; procedure after arrest by police officer.
1. Upon arresting a person without a warrant, a police officer, after performing without unnecessary delay all recording, fingerprinting and other preliminary police duties required in the particular case, must except as otherwise provided in this section, without unnecessary delay bring the arrested person or cause him to be brought before a local criminal court and file therewith an appropriate accusatory instrument charging him with the offense or offenses in question. The arrested person must be brought to the particular local criminal court, or to one of them if there be more than one, designated in section 100.55 as an appropriate court for commencement of the particular action; except that:
(a) If the arrest is for an offense other than a class A, B, C or D felony or a violation of section 130.25, 130.40, 205.10, 205.17, 205.19 or 215.56 of the penal law committed in a town, but not in a village thereof having a village court, and the town court of such town is not available at the time, the arrested person may be brought before the local criminal court of any village within such town or, any adjoining town, village embraced in whole or in part by such adjoining town, or city of the same county; and
(b) If the arrest is for an offense other than a class A, B, C or D felony or a violation of section 130.25, 130.40, 205.10, 205.17, 205.19 or 215.56 of the penal law committed in a village having a village court and such court is not available at the time, the arrested person may be brought before the town court of the town embracing such village or any other village court within such town, or, if such town or village court is not available either, before the local criminal court of any adjoining town, village embraced in whole or in part by such adjoining town, or city of the same county; and
(c) If the arrest is for an offense committed in a city, and the city court thereof is not available at the time, the arrested person may be brought before the local criminal court of any adjoining town or village, or village court embraced by an adjoining town, within the same county as such city; and
(d) If the arrest is for a traffic infraction or for a misdemeanor relating to traffic, the police officer may, instead of bringing the arrested person before the local criminal court of the political subdivision or locality in which the offense was allegedly committed, bring him or her before the local criminal court of the same county nearest available by highway travel to the point of arrest; and
(e) Notwithstanding any other provision of this section, where a local criminal court in the county in which the defendant is arrested is operating an off-hours arraignment part designated in accordance with paragraph (w) of subdivision one of section two hundred twelve of the judiciary law at the time of defendant's arrest, the arrested person may be brought before such local criminal court.
2. If the arrest is for an offense other than a class A, B, C or D felony or a violation of section 130.25, 130.40, 205.10, 205.17, 205.19 or 215.56 of the penal law, or other than where an arrest is required to be made pursuant to subdivision four of section 140.10 of this article, the arrested person need not be brought before a local criminal court as provided in subdivision one, and the procedure may instead be as follows:
(a) A police officer may issue and serve an appearance ticket upon the arrested person and release him from custody, as prescribed in subdivision two of section 150.20 of this title; or
(b) The desk officer in charge at a police station, county jail or police headquarters, or any of his superior officers, may, in such place fix pre-arraignment bail and, upon deposit thereof, issue and serve an appearance ticket upon the arrested person and release him from custody.
3. Other than where an arrest is required to be made pursuant to subdivision four of section 140.10 of this article, if (a) the arrest is for an offense other than a class A, B, C or D felony or a violation of section 130.25, 130.40, 205.10, 205.17, 205.19 or 215.56 of the penal law, and (b) owing to unavailability of a local criminal court the arresting police officer is unable to bring the arrested person before such a court with reasonable promptness, either an appearance ticket must be served unconditionally upon the arrested person or pre-arraignment bail must be fixed, as prescribed in subdivision two. If pre-arraignment bail is fixed but not posted, such arrested person may be temporarily held in custody but must be brought before a local criminal court without unnecessary delay. Nothing contained in this subdivision requires a police officer to serve an appearance ticket upon an arrested person or release him from custody at a time when such person appears to be under the influence of alcohol, narcotics or other drug to the degree that he may endanger himself or other persons.
4. If after arresting a person, for any offense, a police officer upon further investigation or inquiry determines or is satisfied that there is not reasonable cause to believe that the arrested person committed such offense or any other offense based upon the conduct in question, he need not follow any of the procedures prescribed in subdivisions one, two and three, but must immediately release such person from custody.
5. Before service of an appearance ticket upon an arrested person pursuant to subdivision two or three, the issuing police officer must, if the offense designated in such appearance ticket is one of those specified in subdivision one of section 160.10, cause such person to be fingerprinted in the same manner as would be required were no appearance ticket to be issued or served.
6. Upon arresting a juvenile offender or a person sixteen or commencing October first, two thousand nineteen, seventeen years of age without a warrant, the police officer shall immediately notify the parent or other person legally responsible for his or her care or the person with whom he or she is domiciled, that such offender or person has been arrested, and the location of the facility where he or she is being detained. If the officer determines that it is necessary to question a juvenile offender or such person, the officer must take him or her to a facility designated by the chief administrator of the courts as a suitable place for the questioning of children or, upon the consent of a parent or other person legally responsible for the care of the juvenile or such person, to his or her residence and there question him or her for a reasonable period of time. A juvenile or such person shall not be questioned pursuant to this section unless he or she and a person required to be notified pursuant to this subdivision, if present, have been advised:
(a) of the juvenile offender's or such person's right to remain silent;
(b) that the statements made by him or her may be used in a court of law;
(c) of his or her right to have an attorney present at such questioning; and
(d) of his or her right to have an attorney provided for him or her without charge if he or she is unable to afford counsel.
In determining the suitability of questioning and determining the reasonable period of time for questioning such a juvenile offender or person, his or her age, the presence or absence of his or her parents or other persons legally responsible for his or her care and notification pursuant to this subdivision shall be included among relevant considerations.
7. Upon arresting a person, other than a juvenile offender, for any offense without a warrant, a police officer shall, upon the arrested person's request, permit him or her to communicate 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 arrested, unless granting the call will compromise an ongoing investigation or the prosecution of the defendant.
8. If the arrest is for a juvenile offender or adolescent offender other than an arrest for a violation or a traffic infraction, such offender shall be brought before the youth part of the superior court. If the youth part is not in session, such offender shall be brought before the most accessible magistrate designated by the appellate division of the supreme court in the applicable department to act as a youth part.
§ 140.25 Arrest without a warrant; by peace officer.
1. A peace officer, acting pursuant to his special duties, may arrest a person for:
(a) Any offense when he has reasonable cause to believe that such person has committed such offense in his presence; and
(b) A crime when he has reasonable cause to believe that such person has committed such crime, whether in his presence or otherwise.
2. A peace officer acts "pursuant to his special duties" in making an arrest only when the arrest is for:
(a) An offense defined by a statute which such peace officer, by reason of the specialized nature of his particular employment or by express provision of law, is required or authorized to enforce; or
(b) An offense committed or reasonably believed by him to have been committed in such manner or place as to render arrest of the offender by such peace officer under the particular circumstances an integral part of his specialized duties.
3. A peace officer, whether or not he is acting pursuant to his special duties, may arrest a person for an offense committed or believed by him to have been committed within the geographical area of such peace officer's employment, as follows:
(a) He may arrest such person for any offense when such person has in fact committed such offense in his presence; and
(b) He may arrest such person for a felony when he has reasonable cause to believe that such person has committed such felony, whether in his presence or otherwise.
4. A peace officer, when outside the geographical area of his employment, may, anywhere in the state, arrest a person for a felony when he has reasonable cause to believe that such person has there committed such felony in his presence, provided that such arrest is made during or immediately after the allegedly criminal conduct or during the alleged perpetrator's immediate flight therefrom.
5. For the purposes of this section, the "geographical area of employment" of a peace officer is as follows:
(a) The "geographical area of employment" of any peace officer employed as such by any agency of the state consists of the entire state;
(b) The "geographical area of employment" of any peace officer employed as such by an agency of a county, city, town or village consists of (i) such county, city, town or village, as the case may be, and (ii) any other place where he is, at a particular time, acting in the course of his particular duties or employment;
(c) The "geographical area of employment" of any peace officer employed as such by any private organization consists of any place in the state where he is, at a particular time, acting in the course of his particular duties or employment.
§ 140.27 Arrest without a warrant; when and how made; procedure after arrest by peace officer.
1. The rules governing the manner in which a peace officer may make an arrest, pursuant to section 140.25, are the same as those governing arrests by police officers, as prescribed in section 140.15.
2. Upon arresting a person without a warrant, a peace officer, except as otherwise provided in subdivision three or three-a, must without unnecessary delay bring him or cause him to be brought before a local criminal court, as provided in section 100.55 and subdivision one of section 140.20, and must without unnecessary delay file or cause to be filed therewith an appropriate accusatory instrument. If the offense which is the subject of the arrest is one of those specified in subdivision one of section 160.10, the arrested person must be fingerprinted and photographed as therein provided. In order to execute the required post-arrest functions, such arresting peace officer may perform such functions himself or he may enlist the aid of a police officer for the performance thereof in the manner provided in subdivision one of section 140.20.
3. If (a) the arrest is for an offense other than a class A, B, C or D felony or a violation of section 130.25, 130.40, 205.10, 205.17, 205.19 or 215.56 of the penal law and (b) owing to unavailability of a local criminal court such peace officer is unable to bring or cause the arrested person to be brought before such a court with reasonable promptness, the arrested person must be brought to an appropriate police station, county jail or police headquarters where he must be dealt with in the manner prescribed in subdivision three of section 140.20, as if he had been arrested by a police officer.
3-a. If the arrest is for a juvenile offender or adolescent offender other than an arrest for violations or traffic infractions, such offender shall be brought before the youth part of the superior court. If the youth part is not in session, such offender shall be brought before the most accessible magistrate designated by the appellate division of the supreme court in the applicable department to act as a youth part.
4. If the arrest is for an offense other than a class A, B, C or D felony or a violation of section 130.25, 130.40, 205.10, 205.17, 205.19 or 215.56 of the penal law, the arrested person need not be brought before a local criminal court as provided in subdivision two, and the procedure may instead be as follows:
(a) The arresting peace officer, where he is specially authorized by law to issue and serve an appearance ticket, may issue and serve an appearance ticket upon the arrested person and release him from custody; or
(b) The arresting peace officer, where he is not specially authorized by law to issue and serve an appearance ticket, may enlist the aid of a police officer and request that such officer issue and serve an appearance ticket upon the arrested person, and upon such issuance and service the latter must be released from custody.
5. Upon arresting a juvenile offender or a person sixteen or commencing October first, two thousand nineteen, seventeen years of age without a warrant, the peace officer shall immediately notify the parent or other person legally responsible for his or her care or the person with whom he or she is domiciled, that such offender or person has been arrested, and the location of the facility where he or she is being detained. If the officer determines that it is necessary to question a juvenile offender or such person, the officer must take him or her to a facility designated by the chief administrator of the courts as a suitable place for the questioning of children or, upon the consent of a parent or other person legally responsible for the care of a juvenile offender or such person, to his or her residence and there question him or her for a reasonable period of time. A juvenile offender or such person shall not be questioned pursuant to this section unless the juvenile offender or such person and a person required to be notified pursuant to this subdivision, if present, have been advised:
(a) of his or her right to remain silent;
(b) that the statements made by the juvenile offender or such person may be used in a court of law;
(c) of his or her right to have an attorney present at such questioning; and
(d) of his or her right to have an attorney provided for him or her without charge if he or she is unable to afford counsel.
In determining the suitability of questioning and determining the reasonable period of time for questioning such a juvenile offender or such person, his or her age, the presence or absence of his or her parents or other persons legally responsible for his or her care and notification pursuant to this subdivision shall be included among relevant considerations.
§ 140.30 Arrest without a warrant; by any person; when and where authorized.
1. Subject to the provisions of subdivision two, any person may arrest another person (a) for a felony when the latter has in fact committed such felony, and (b) for any offense when the latter has in fact committed such offense in his presence.
2. Such an arrest, if for a felony, may be made anywhere in the state. If the arrest is for an offense other than a felony, it may be made only in the county in which such offense was committed.
§ 140.35 Arrest without a warrant; by person acting other than as a police officer or a peace officer; when and how made.
1. A person may arrest another person for an offense pursuant to section 140.30 at any hour of any day or night.
2. Such person must inform the person whom he is arresting of the reason for such arrest unless he encounters physical resistance, flight or other factors rendering such procedure impractical.
3. In order to effect such an arrest, such person may use such physical force as is justifiable pursuant to subdivision four of section 35.30 of the penal law.
§ 140.40 Arrest without a warrant; by person acting other than as a police
officer or a peace officer; procedure after arrest.
1. A person making an arrest pursuant to section 140.30 must without unnecessary delay deliver or attempt to deliver the person arrested to the custody of an appropriate police officer, as defined in subdivision five. For such purpose, he may solicit the aid of any police officer and the latter, if he is not himself an appropriate police officer, must assist in delivering the arrested person to an appropriate officer. If the arrest is for a felony, the appropriate police officer must, upon receiving custody of the arrested person, perform all recording, fingerprinting and other preliminary police duties required in the particular case. In any case, the appropriate police officer, upon receiving custody of the arrested person, except as otherwise provided in subdivisions two and three, must bring him, on behalf of the arresting person, before an appropriate local criminal court, as defined in subdivision five, and the arresting person must without unnecessary delay file an appropriate accusatory instrument with such court.
2. If (a) the arrest is for an offense other than a class A, B, C or D felony or a violation of section 130.25, 130.40, 205.10, 205.17, 205.19 or 215.56 of the penal law and (b) owing to unavailability of a local criminal court the appropriate police officer having custody of the arrested person is unable to bring him before such a court with reasonable promptness, the arrested person must be dealt with in the manner prescribed in subdivision three of section 140.20, as if he had been arrested by a police officer.
3. If the arrest is for an offense other than a class A, B, C or D felony or a violation of section 130.25, 130.40, 205.10, 205.17, 205.19 or 215.56 of the penal law, the arrested person need not be brought before a local criminal court, as provided in subdivision one, and the procedure may instead be as follows:
(a) An appropriate police officer may issue and serve an appearance ticket upon the arrested person and release him from custody, as prescribed in subdivision two of section 150.20; or
(b) The desk officer in charge at the appropriate police officer's station, county jail or police headquarters, or any of his superior officers, may, in such place, fix pre-arraignment bail and, upon deposit thereof, issue and serve an appearance ticket upon the arrested person and release him from custody, as prescribed in section 150.30.
4. Notwithstanding any other provision of this section, a police officer is not required to take an arrested person into custody or to take any other action prescribed in this section on behalf of the arresting person if he has reasonable cause to believe that the arrested person did not commit the alleged offense or that the arrest was otherwise unauthorized.
5. If a police officer takes an arrested juvenile offender or a person sixteen or commencing October first, two thosuand nineteen, seventeen years of age into custody, the police officer shall immediately notify the parent or other person legally responsible for his or her care or the person with whom he or she is domiciled, that such offender or person has been arrested, and the location of the facility where he or she is being detained. If the officer determines that it is necessary to question a juvenile offender or such person the officer must take him or her to a facility designated by the chief administrator of the courts as a suitable place for the questioning of children or, upon the consent of a parent or other person legally responsible for the care of the juvenile offender or such person, to his or her residence and there question him or her for a reasonable period of time. A juvenile offender or such person shall not be questioned pursuant to this section unless he or she and a person required to be notified pursuant to this subdivision, if present, have been advised:
(a) of his or her right to remain silent;
(b) that the statements made by the juvenile offender or such person may be used in a court of law;
(c) of his or her right to have an attorney present at such questioning; and
(d) of his or her right to have an attorney provided for him or her without charge if he or she is unable to afford counsel.
In determining the suitability of questioning and determining the reasonable period of time for questioning such a juvenile offender or such person, his or her age, the presence or absence of his or her parents or other persons legally responsible for his or her care and notification pursuant to this subdivision shall be included among relevant considerations.
6. As used in this section:
(a) An "appropriate police officer" means one who would himself be authorized to make the arrest in question as a police officer pursuant to section 140.10;
(b) An "appropriate local criminal court" means one with which an accusatory instrument charging the offense in question may properly be filed pursuant to the provisions of section 100.55.
§ 140.45 Arrest without a warrant; dismissal of insufficient local criminal court accusatory instrument.
If a local criminal court accusatory instrument filed with a local criminal court pursuant to section 140.20, 140.25 or 140.40 is not sufficient on its face, as prescribed in section 100.40, and if the court is satisfied that on the basis of the available facts or evidence it would be impossible to draw and file an accusatory instrument which is sufficient on its face, it must dismiss such accusatory instrument and discharge the defendant.
§ 140.50 Temporary questioning of persons in public places; search for weapons.
1. In addition to the authority provided by this article for making an arrest without a warrant, a police officer may stop a person in a public place located within the geographical area of such officer's employment when he reasonably suspects that such person is committing, has committed or is about to commit either (a) a felony or (b) a misdemeanor defined in the penal law, and may demand of him his name, address and an explanation of his conduct.
2. Any person who is a peace officer and who provides security services for any court of the unified court system may stop a person in or about the courthouse to which he is assigned when he reasonably suspects that such person is committing, has committed or is about to commit either (a) a felony or (b) a misdemeanor defined in the penal law, and may demand of him his name, address and an explanation of his conduct.
3. When upon stopping a person under circumstances prescribed in subdivisions one and two a police officer or court officer, as the case may be, reasonably suspects that he is in danger of physical injury, he may search such person for a deadly weapon or any instrument, article or substance readily capable of causing serious physical injury and of a sort not ordinarily carried in public places by law-abiding persons. If he finds such a weapon or instrument, or any other property possession of which he reasonably believes may constitute the commission of a crime, he may take it and keep it until the completion of the questioning, at which time he shall either return it, if lawfully possessed, or arrest such person.
4. In cities with a population of one million or more, information that establishes the personal identity of an individual who has been stopped, questioned and/or frisked by a police officer or peace officer, such as the name, address or social security number of such person, shall not be recorded in a computerized or electronic database if that individual is released without further legal action; provided, however, that this subdivision shall not prohibit police officers or peace officers from including in a computerized or electronic database generic characteristics of an individual, such as race and gender, who has been stopped, questioned and/or frisked by a police officer or peace officer.
§ 140.55 Arrest without a warrant; by peace officers of other states for offense committed outside state; uniform close pursuit act.
1. As used in this section, the word "state" shall include the District of Columbia.
2. Any peace officer of another state of the United States, who enters this state in close pursuit and continues within this state in such close pursuit of a person in order to arrest him, shall have the same authority to arrest and hold in custody such person on the ground that he has committed a crime in another state which is a crime under the laws of the state of New York, as police officers of this state have to arrest and hold in custody a person on the ground that he has committed a crime in this state.
3. If an arrest is made in this state by an officer of another state in accordance with the provisions of subdivision two, he shall without unnecessary delay take the person arrested before a local criminal court which shall conduct a hearing for the sole purpose of determining if the arrest was in accordance with the provisions of subdivision two, and not of determining the guilt or innocence of the arrested person. If such court determines that the arrest was in accordance with such subdivision, it shall commit the person arrested to the custody of the officer making the arrest, who shall without unnecessary delay take him to the state from which he fled. If such court determines that the arrest was unlawful, it shall discharge the person arrested.
4. This section shall not be construed so as to make unlawful any arrest in this state which would otherwise be lawful.
5. Upon the taking effect of this section it shall be the duty of the secretary of state to certify a copy of this section to the executive department of each of the states of the United States.
6. This section shall apply only to peace officers of a state which by its laws has made similar provision for the arrest and custody of persons closely pursued within the territory thereof.
7. If any part of this section is for any reason declared void, it is declared to be the intent of this section that such invalidity shall not affect the validity of the remaining portions of this section.
8. This section may be cited as the uniform act on close pursuit.
ARTICLE 150--THE APPEARANCE TICKET
Section 150.10 Appearance ticket; definition, form and content.
150.20 Appearance ticket; when and by whom issuable.
150.30 Appearance ticket; issuance and service thereof after arrest upon posting of pre-arraignment bail.
150.40 Appearance ticket; where returnable; how and where served.
150.50 Appearance ticket; filing a local criminal court accusatory instrument; dismissal of insufficient instrument.
150.60 Appearance ticket; defendant's failure to appear.
150.70 Appearance ticket; fingerprinting of defendant.
150.75 Appearance ticket; certain cases.
150.80 Court appearance reminders.
§ 150.10 Appearance ticket; definition, form and content.
1. An appearance ticket is a written notice issued and subscribed by a police officer or other public servant authorized by state law or local law enacted pursuant to the provisions of the municipal home rule law to issue the same, directing a designated person to appear in a designated local criminal court at a designated future time in connection with his alleged commission of a designated offense. A notice conforming to such definition constitutes an appearance ticket regardless of whether it is referred to in some other provision of law as a summons or by any other name or title.
2. When an appearance ticket as defined in subdivision one of this section is issued to a person in conjunction with an offense charged in a simplified information, said appearance ticket shall contain the language, set forth in subdivision four of section 100.25, notifying the defendant of his right to receive a supporting deposition.
3. Before issuing an appearance ticket a police officer or other public servant must inform the arrestee that they may provide their contact information for the purposes of receiving a court notification to remind them of their court appearance date from the court or a certified pretrial services agency. Such contact information may include one or more phone numbers, a residential address or address at which the arrestee receives mail, or an email address. The contact information shall be recorded and be transmitted to the local criminal court as required by section 150.80 of this article.
§ 150.20 Appearance ticket; when and by whom issuable.
1. (a) Whenever a police officer is authorized pursuant to section 140.10 of this title to arrest a person without a warrant for an offense other than a class A, B, C or D felony or a violation of section 130.25, 130.40, 205.10, 205.17, 205.19 or 215.56 of the penal law, or other than where an arrest is required to be made pursuant to subdivision four of section 140.10 of this title, the officer shall, except as set out in paragraph (b) of this subdivision, subject to the provisions of subdivisions three and four of section 150.40 of this title, instead issue to and serve upon such person an appearance ticket.
(b) An officer is not required to issue an appearance ticket if:
(i) the person has one or more outstanding local criminal court or superior court warrants;
(ii) the person has failed to appear in court proceedings in the last two years;
(iii) the person has been given a reasonable opportunity to make their verifiable identity and a method of contact known, and has been unable or unwilling to do so, so that a custodial arrest is necessary to subject the individual to the jurisdiction of the court. For the purposes of this section, an officer may rely on various factors to determine a person's identity, including but not limited to personal knowledge of such person, such person's self-identification, or photographic identification. There is no requirement that a person present photographic identification in order to be issued an appearance ticket in lieu of arrest where the person's identity is otherwise verifiable; however, if offered by such person, an officer shall accept as evidence of identity the following: a valid driver's license or non-driver identification card issued by the commissioner of motor vehicles, the federal government, any United States territory, commonwealth or possession, the District of Columbia, a state government or municipal government within the United States or a provincial government of the dominion of Canada; a valid passport issued by the United States government or any other country; an identification card issued by the armed forces of the United States; a public benefit card, as defined in paragraph (a) of subdivision one of section 158.00 of the penal law;
(iv) the person is charged with a crime between members of the same family or household, as defined in subdivision one of section 530.11 of this chapter;
(v) the person is charged with a crime defined in article 130 of the penal law;
(vi) it reasonably appears the person should be brought before the court for consideration of issuance of an order of protection, pursuant to section 530.13 of this chapter, based on the facts of the crime or offense that the officer has reasonable cause to believe occurred;
(vii) the person is charged with a crime for which the court may suspend or revoke his or her driver license;
(viii) it reasonably appears to the officer, based on the observed behavior of the individual in the present contact with the officer and facts regarding the person's condition that indicates a sign of distress to such a degree that the person would face harm without immediate medical or mental health care, that bringing the person before the court would be in such person's interest in addressing that need; provided, however, that before making the arrest, the officer shall make all reasonable efforts to assist the person in securing appropriate services;
(ix) the person is eighteen years of age or older and charged with criminal possession of a weapon on school grounds as defined in section 265.01-a of the penal law;
(x) the person is eighteen years of age or older and charged with a hate crime as defined in section 485.05 of the penal law; or
(xi) the offense is a qualifying offense pursuant to paragraph (t) of subdivision four of section 510.10 of this chapter, or pursuant to paragraph (t) of subdivision four of section 530.40 of this chapter.
2. (a) Whenever, pursuant to section 140.10 of this title, a police officer has arrested a person without a warrant for an offense other than a class A, B, C or D felony or a violation of section 130.25, 130.40, 205.10, 205.17, 205.19 or 215.56 of the penal law or other than where an arrest was required to be made pursuant to subdivision four of section 140.10 of this title, or (b) whenever a peace officer, who is not authorized by law to issue an appearance ticket, has arrested a person for an offense other than a class A, B, C or D felony or a violation of section 130.25, 130.40, 205.10, 205.17, 205.19 or 215.56 of the penal law pursuant to section 140.25 of this title, and such peace officer has requested a police officer to issue and serve upon such arrested person an appearance ticket pursuant to subdivision four of section 140.27 of this title, or (c) whenever a person has been arrested for an offense other than a class A, B, C or D felony or a violation of section 130.25, 130.40, 205.10, 205.17, 205.19 or 215.56 of the penal law and such person has been delivered to the custody of an appropriate police officer pursuant to section 140.40 of this title, such police officer may, instead of bringing such person before a local criminal court and promptly filing or causing the arresting peace officer or arresting person to file a local criminal court accusatory instrument therewith, issue to and serve upon such person an appearance ticket.
3. A public servant other than a police officer, who is specially authorized by state law or local law enacted pursuant to the provisions of the municipal home rule law to issue and serve appearance tickets with respect to designated offenses other than class A, B, C or D felonies or violations of section 130.25, 130.40, 205.10, 205.17, 205.19 or 215.56 of the penal law, may in such cases issue and serve upon a person an appearance ticket when he has reasonable cause to believe that such person has committed a crime, or has committed a petty offense in his presence.
§ 150.40 Appearance ticket; where returnable; how and where served.
1. An appearance ticket must be made returnable at a date as soon as possible, but in no event later than twenty days from the date of issuance; or at the next scheduled session of the appropriate local criminal court if such session is scheduled to occur more than twenty days from the date of issuance; or at a later date, with the court's permission due to enrollment in a pre-arraignment diversion program. The appearance ticket shall be made returnable in a local criminal court designated in section 100.55 of this title as one with which an information for the offense in question may be filed.
2. An appearance ticket, other than one issued for a traffic infraction relating to parking, must be served personally, except that an appearance ticket issued for the violation of a local zoning ordinance or local zoning law, or of a building or sanitation code may be served in any manner authorized for service under section three hundred eight of the civil practice law and rules.
3. An appearance ticket may be served anywhere in the county in which the designated offense was allegedly committed or in any adjoining county, and may be served elsewhere as prescribed in subdivision four.
4. A police officer may, for the purpose of serving an appearance ticket upon a person, follow him in continuous close pursuit, commencing either in the county in which the alleged offense was committed or in an adjoining county, in and through any county of the state, and may serve such appearance ticket upon him in any county in which he overtakes him.
§ 150.50 Appearance ticket; filing a local criminal court accusatory
instrument; dismissal of insufficient instrument.
1. A police officer or other public servant who has issued and served an appearance ticket must, at or before the time such appearance ticket is returnable, file or cause to be filed with the local criminal court in which it is returnable a local criminal court accusatory instrument charging the person named in such appearance ticket with the offense specified therein; provided, however, that no separate accusatory instrument shall be required to be filed for an appearance ticket issued for a parking infraction which conforms to the requirements set forth in paragraph (b) of subdivision one of section 1.20 of this chapter. Nothing herein contained shall authorize the use of a simplified information when not authorized by law.
2. If such accusatory instrument is not sufficient on its face, as prescribed in section 100.40, and if the court is satisfied that on the basis of the available facts or evidence it would be impossible to draw and file an accusatory instrument which is sufficient on its face, it must dismiss such accusatory instrument.
§ 150.60 Appearance ticket; defendant's failure to appear.
If after the service of an appearance ticket and the filing of a local criminal court accusatory instrument charging the offense designated therein, the defendant does not appear in the designated local criminal court at the time such appearance ticket is returnable, the court may issue a summons or a warrant of arrest based upon the local criminal court accusatory instrument filed.
§ 150.70 Appearance ticket; fingerprinting of defendant.
Upon the arraignment of a defendant who has not been arrested and whose court attendance has been secured by the issuance and service of an appearance ticket pursuant to subdivision one of section 150.20, the court must, if an offense charged in the accusatory instrument is one specified in subdivision one of section 160.10, direct that the defendant be fingerprinted by the appropriate police officer or agency, and that he appear at an appropriate designated time and place for such purpose.
§ 150.75 Appearance ticket; certain cases.
1. The provisions of this section shall apply in any case wherein the defendant is alleged to have committed an offense defined in section 221.05 of the penal law, and no other offense is alleged, notwithstanding any provision of this chapter or any other law to the contrary.
2. Whenever the defendant is arrested without a warrant, an appearance ticket shall promptly be issued and served upon him, as provided in this article. The issuance and service of the appearance ticket may be made conditional upon the posting of pre-arraignment bail as provided in section 150.30 of this chapter but only if the appropriate police officer (a) is unable to ascertain the defendant's identity or residence address; or (b) reasonably suspects that the identification or residence address given by the defendant is not accurate; or (c) reasonably suspects that the defendant does not reside within the state. No warrant of arrest shall be issued unless the defendant has failed to appear in court as required by the terms of the appearance ticket or by the court.
§ 150.80 Court appearance reminders.
1. A police officer or other public servant who has issued and served an appearance ticket must, within twenty-four hours of issuance, file or cause to be filed with the local criminal court the appearance ticket and any contact information made available pursuant to subdivision three of section 150.10 of this article.
2. Upon receipt of the appearance ticket and any contact information made available pursuant to subdivision three of section 150.10 of this article, the local criminal court shall issue a court appearance reminder and notify the arrestee of their court appearances by text message, telephone call, electronic mail, or first class mail. The local criminal court may partner with a certified pretrial services agency or agencies in that county to provide such notification and shall include a copy of the appearance ticket.
3. A local criminal court is not required to issue a court appearance reminder if the appearance ticket requires the arrestee's appearance within seventy-two hours of its issuance, or no contact information has been provided.
ARTICLE 160--FINGERPRINTING AND PHOTOGRAPHING OF DEFENDANT AFTER ARREST--CRIMINAL IDENTIFICATION RECORDS AND STATISTICS
Section 160.10 Fingerprinting; duties of police with respect thereto.
160.20 Fingerprinting; forwarding of fingerprints.
160.30 Fingerprinting; duties of division of criminal justice services.
160.40 Fingerprinting; transmission of report received by police.
160.45 Polygraph tests; prohibition against.
160.50 Order upon termination of criminal action in favor of the accused.
160.55 Order upon termination of criminal action by conviction for noncriminal offense; entry of waiver; administrative findings.
160.58 Conditional sealing of certain controlled substance, marihuana or specified offense convictions.
160.59 Sealing of certain convictions.
160.60 Effect of termination of criminal actions in favor of the accused.
§ 160.10 Fingerprinting; duties of police with respect thereto.
1. Following an arrest, or following the arraignment upon a local criminal court accusatory instrument of a defendant whose court attendance has been secured by a summons or an appearance ticket under circumstances described in sections 130.60 and 150.70, the arresting or other appropriate police officer or agency must take or cause to be taken fingerprints of the arrested person or defendant if an offense which is the subject of the arrest or which is charged in the accusatory instrument filed is:
(a) A felony; or
(b) A misdemeanor defined in the penal law; or
(c) A misdemeanor defined outside the penal law which would constitute a felony if such person had a previous judgment of conviction for a crime.
2. In addition, a police officer who makes an arrest for any offense, either with or without a warrant, may take or cause to be taken the fingerprints of the arrested person if such police officer:
(a) Is unable to ascertain such person's identity; or
(b) Reasonably suspects that the identification given by such person is not accurate; or
(c) Reasonably suspects that such person is being sought by law enforcement officials for the commission of some other offense.
3. Whenever fingerprints are required to be taken pursuant to subdivision one or permitted to be taken pursuant to subdivision two, the photograph and palmprints of the arrested person or the defendant, as the case may be, may also be taken.
4. The taking of fingerprints as prescribed in this section and the submission of available information concerning the arrested person or the defendant and the facts and circumstances of the crime charged must be in accordance with the standards established by the commissioner of the division of criminal justice services.
§ 160.20 Fingerprinting; forwarding of fingerprints.
Upon the taking of fingerprints of an arrested person or defendant as prescribed in section 160.10, the appropriate police officer or agency must without unnecessary delay forward two copies of such fingerprints to the division of criminal justice services.
§ 160.30 Fingerprinting; duties of division of criminal justice services.
1. Upon receiving fingerprints from a police officer or agency pursuant to section 160.20 of this chapter, the division of criminal justice services must, except as provided in subdivision two of this section, classify them and search its records for information concerning a previous record of the defendant, including any adjudication as a juvenile delinquent pursuant to article three of the family court act, or as a youthful offender pursuant to article seven hundred twenty of this chapter, and promptly transmit to such forwarding police officer or agency a report containing all information on file with respect to such defendant's previous record, if any, or stating that the defendant has no previous record according to its files. Such a report, if certified, constitutes presumptive evidence of the facts so certified.
2. If the fingerprints so received are not sufficiently legible to permit accurate and complete classification, they must be returned to the forwarding police officer or agency with an explanation of the defects and a request that the defendant's fingerprints be retaken if possible.
§ 160.40 Fingerprinting; transmission of report received by police.
1. Upon receipt of a report of the division of criminal justice services as provided in section 160.30, the recipient police officer or agency must promptly transmit such report or a copy thereof to the district attorney of the county and two copies thereof to the court in which the action is pending.
2. Upon receipt of such report the court shall furnish a copy thereof to counsel for the defendant or, if the defendant is not represented by counsel, to the defendant.
§ 160.45 Polygraph tests; prohibition against.
1. No district attorney, police officer or employee of any law enforcement agency shall request or require any victim of a sexual assault crime to submit to any polygraph test or psychological stress evaluator examination.
2. As used in this section, "victim of a sexual assault crime" means any person alleged to have sustained an offense under article one hundred thirty or section 255.25, 255.26 or 255.27 of the penal law.
§ 160.50 Order upon termination of criminal action in favor of the accused.
1. Upon the termination of a criminal action or proceeding against a person in favor of such person, as defined in subdivision three of this section, unless the district attorney upon motion with not less than five days notice to such person or his or her attorney demonstrates to the satisfaction of the court that the interests of justice require otherwise, or the court on its own motion with not less than five days notice to such person or his or her attorney determines that the interests of justice require otherwise and states the reasons for such determination on the record, the record of such action or proceeding shall be sealed and the clerk of the court wherein such criminal action or proceeding was terminated shall immediately notify the commissioner of the division of criminal justice services and the heads of all appropriate police departments and other law enforcement agencies that the action has been terminated in favor of the accused, and unless the court has directed otherwise, that the record of such action or proceeding shall be sealed. Upon receipt of notification of such termination and sealing:
(a) every photograph of such person and photographic plate or proof, and all palmprints and fingerprints taken or made of such person pursuant to the provisions of this article in regard to the action or proceeding terminated, except a dismissal pursuant to section 170.56 or 210.46 of this chapter, and all duplicates and copies thereof, except a digital fingerprint image where authorized pursuant to paragraph (e) of this subdivision, shall forthwith be, at the discretion of the recipient agency, either destroyed or returned to such person, or to the attorney who represented such person at the time of the termination of the action or proceeding, at the address given by such person or attorney during the action or proceeding, by the division of criminal justice services and by any police department or law enforcement agency having any such photograph, photographic plate or proof, palmprint or fingerprints in its possession or under its control;
(b) any police department or law enforcement agency, including the division of criminal justice services, which transmitted or otherwise forwarded to any agency of the United States or of any other state or of any other jurisdiction outside the state of New York copies of any such photographs, photographic plates or proofs, palmprints and fingerprints, including those relating to actions or proceedings which were dismissed pursuant to section 170.56 or 210.46 of this chapter, shall forthwith formally request in writing that all such copies be destroyed or returned to the police department or law enforcement agency which transmitted or forwarded them, and, if returned, such department or agency shall, at its discretion, either destroy or return them as provided herein, except that those relating to dismissals pursuant to section 170.56 or 210.46 of this chapter shall not be destroyed or returned by such department or agency;
(c) all official records and papers, including judgments and orders of a court but not including published court decisions or opinions or records and briefs on appeal, relating to the arrest or prosecution, including all duplicates and copies thereof, on file with the division of criminal justice services, any court, police agency, or prosecutor's office shall be sealed and not made available to any person or public or private agency;
(d) such records shall be made available to the person accused or to such person's designated agent, and shall be made available to (i) a prosecutor in any proceeding in which the accused has moved for an order pursuant to section 170.56 or 210.46 of this chapter, or (ii) a law enforcement agency upon ex parte motion in any superior court, or in any district court, city court or the criminal court of the city of New York provided that such court sealed the record, if such agency demonstrates to the satisfaction of the court that justice requires that such records be made available to it, or (iii) any state or local officer or agency with responsibility for the issuance of licenses to possess guns, when the accused has made application for such a license, or (iv) the New York state department of corrections and community supervision when the accused is on parole supervision as a result of conditional release or a parole release granted by the New York state board of parole, and the arrest which is the subject of the inquiry is one which occurred while the accused was under such supervision, or (v) any prospective employer of a police officer or peace officer as those terms are defined in subdivisions thirty-three and thirty-four of section 1.20 of this chapter, in relation to an application for employment as a police officer or peace officer; provided, however, that every person who is an applicant for the position of police officer or peace officer shall be furnished with a copy of all records obtained under this paragraph and afforded an opportunity to make an explanation thereto, or (vi) the probation department responsible for supervision of the accused when the arrest which is the subject of the inquiry is one which occurred while the accused was under such supervision; and
(e) where fingerprints subject to the provisions of this section have been received by the division of criminal justice services and have been filed by the division as digital images, such images may be retained, provided that a fingerprint card of the individual is on file with the division which was not sealed pursuant to this section or section 160.55 of this article.
2. A report of the termination of the action or proceeding in favor of the accused shall be sufficient notice of sealing to the commissioner of the division of criminal justice services unless the report also indicates that the court directed that the record not be sealed in the interests of justice. Where the court has determined pursuant to subdivision one of this section that sealing is not in the interest of justice, the clerk of the court shall include notification of that determination in any report to such division of the disposition of the action or proceeding.
3. For the purposes of subdivision one of this section, a criminal action or proceeding against a person shall be considered terminated in favor of such person where:
(a) an order dismissing the entire accusatory instrument against such person pursuant to article four hundred seventy was entered; or
(b) an order to dismiss the entire accusatory instrument against such person pursuant to section 170.30, 170.50, 170.55, 170.56, 180.70, 210.20, 210.46 or 210.47 of this chapter was entered or deemed entered, or an order terminating the prosecution against such person was entered pursuant to section 180.85 of this chapter, and the people have not appealed from such order or the determination of an appeal or appeals by the people from such order has been against the people; or
(c) a verdict of complete acquittal was made pursuant to section 330.10 of this chapter; or
(d) a trial order of dismissal of the entire accusatory instrument against such person pursuant to section 290.10 or 360.40 of this chapter was entered and the people have not appealed from such order or the determination of an appeal or appeals by the people from such order has been against the people; or
(e) an order setting aside a verdict pursuant to section 330.30 or 370.10 of this chapter was entered and the people have not appealed from such order or the determination of an appeal or appeals by the people from such order has been against the people and no new trial has been ordered; or
(f) an order vacating a judgment pursuant to section 440.10 of this chapter was entered and the people have not appealed from such order or the determination of an appeal or appeals by the people from such order has been against the people, and no new trial has been ordered; or
(g) an order of discharge pursuant to article seventy of the civil practice law and rules was entered on a ground which invalidates the conviction and the people have not appealed from such order or the determination of an appeal or appeals by the people from such order has been against the people; or
(h) where all charges against such person are dismissed pursuant to section 190.75 of this chapter. In such event, the clerk of the court which empaneled the grand jury shall serve a certification of such disposition upon the division of criminal justice services and upon the appropriate police department or law enforcement agency which upon receipt thereof, shall comply with the provisions of paragraphs (a), (b), (c) and (d) of subdivision one of this section in the same manner as is required thereunder with respect to an order of a court entered pursuant to said subdivision one; or
(i) prior to the filing of an accusatory instrument in a local criminal court against such person, the prosecutor elects not to prosecute such person. In such event, the prosecutor shall serve a certification of such disposition upon the division of criminal justice services and upon the appropriate police department or law enforcement agency which, upon receipt thereof, shall comply with the provisions of paragraphs (a), (b), (c) and (d) of subdivision one of this section in the same manner as is required thereunder with respect to an order of a court entered pursuant to said subdivision one.
(j) following the arrest of such person, the arresting police agency, prior to the filing of an accusatory instrument in a local criminal court but subsequent to the forwarding of a copy of the fingerprints of such person to the division of criminal justice services, elects not to proceed further. In such event, the head of the arresting police agency shall serve a certification of such disposition upon the division of criminal justice services which, upon receipt thereof, shall comply with the provisions of paragraphs (a), (b), (c) and (d) of subdivision one of this section in the same manner as is required thereunder with respect to an order of a court entered pursuant to said subdivision one.
(k) (i) The conviction was for a violation of article two hundred twenty or section 240.36 of the penal law prior to the effective date of article two hundred twenty-one of the penal law, and the sole controlled substance involved was marihuana and the conviction was only for a misdemeanor and/or violation; or
(ii) the conviction is for an offense defined in section 221.05 or 221.10 of the penal law prior to the effective date of chapter one hundred thirty-two of the laws of two thousand nineteen; or
(iii) the conviction is for an offense defined in former section 221.05 221.10, 221.15, 221.20, 221.35, or 221.40 of the penal law; or
(iv) the conviction was for an offense defined in section 240.37 of the penal law; or
(v) the conviction was for a violation of section 220.03 or 220.06 of the penal law prior to the effective date of the chapter of the laws of two thousand twenty-one that amended this paragraph, and the sole controlled substance involved was concentrated cannabis; or
(vi) the conviction was for an offense defined in section 222.10, 222.15, 222.25 or 222.45 of the penal law.
No defendant shall be required or permitted to waive eligibility for sealing or expungement pursuant to this section as part of a plea of guilty, sentence or any agreement related to a conviction for a violation of section 222.10, 222.15, 222.25 or 222.45 of the penal law and any such waiver shall be deemed void and wholly unenforceable.
(l) An order dismissing an action pursuant to section 215.40 of this chapter was entered.
4. A person in whose favor a criminal action or proceeding was terminated, as defined in paragraph (a) through (h) of subdivision two of this section, prior to the effective date of this section, may upon motion apply to the court in which such termination occurred, upon not less than twenty days notice to the district attorney, for an order granting to such person the relief set forth in subdivision one of this section, and such order shall be granted unless the district attorney demonstrates to the satisfaction of the court that the interests of justice require otherwise. A person in whose favor a criminal action or proceeding was terminated, as defined in paragraph (i) or (j) of subdivision two of this section, prior to the effective date of this section, may apply to the appropriate prosecutor or police agency for a certification as described in said paragraph (i) or (j) granting to such person the relief set forth therein, and such certification shall be granted by such prosecutor or police agency.
5. (a) Expungement of certain marihuana-related records. A conviction for an offense described in paragraph (k) of subdivision three of this section shall, on and after the effective date of this paragraph, in accordance with the provisions of this paragraph, be vacated and dismissed, and all records of such conviction or convictions and related to such conviction or convictions shall be expunged, as described in subdivision forty-five of section 1.20 of this chapter, and the matter shall be considered terminated in favor of the accused and deemed a nullity, having been rendered by this paragraph legally invalid. All such records for an offense described in this paragraph where the conviction was entered on or before the effective date of the chapter of the laws of 2019 that amended this paragraph shall be expunged promptly and, in any event, no later than one year after such effective date.
(b) Duties of certain state officials and law enforcement agencies. Commencing upon the effective date of this paragraph:
(i) the chief administrator of the courts shall promptly notify the commissioner of the division of criminal justice services and the heads of all appropriate police departments, district attorney's offices and other law enforcement agencies of all convictions that have been vacated and dismissed pursuant to paragraph (a) of this subdivision and that all records related to such convictions shall be expunged and the matter shall be considered terminated in favor of the accused and deemed a nullity, having been rendered legally invalid. Upon receipt of notification of such vacatur, dismissal and expungement, all records relating to such conviction or convictions, or the criminal action or proceeding, as the case may be, shall be marked as expunged by conspicuously indicating on the face of the record and on each page or at the beginning of the digitized file of the record that the record has been designated as expunged. Upon the written request of the individual whose case has been expunged or their designated agent, such records shall be destroyed. Such records and papers shall not be made available to any person, except the individual whose case has been expunged or such person's designated agent; and
(ii) where automatic vacatur, dismissal, and expungement, including record destruction if requested, is required by this subdivision but any record of the court system in this state has not yet been updated to reflect same (A) notwithstanding any other provision of law except as provided in paragraph (d) of subdivision one of this section and paragraph (e) of subdivision four of section eight hundred thirty-seven of the executive law: (1) when the division of criminal justice services conducts a search of its criminal history records, maintained pursuant to subdivision six of section eight hundred thirty-seven of the executive law, and returns a report thereon, all references to a conviction for an offense described in paragraph (k) of subdivision three of this section shall be excluded from such report; and (2) the chief administrator of the courts shall develop and promulgate rules as may be necessary to ensure that no written or electronic report of a criminal history record search conducted by the office of court administration contains information relating to a conviction for an offense described in paragraph (k) of subdivision three of this section; and (B) where court records relevant to such matter cannot be located or have been destroyed, and a person or the person's attorney presents to an appropriate court employee a fingerprint record of the New York state division of criminal justice services, or a copy of a court disposition record or other relevant court record, which indicates that a criminal action or proceeding against such person was terminated by conviction of an offense described in paragraph (k) of subdivision three of this section, then promptly, and in any event within thirty days after such notice to such court employee, the chief administrator of the courts or his or her designee shall assure that such vacatur, dismissal, and expungement, including record destruction if requested, have been completed in accordance with subparagraph (i) of this paragraph.
(c) Vacatur, dismissal and expungement as set forth in this subdivision is without prejudice to any person or such person's attorney seeking further relief pursuant to article four hundred forty of this chapter or any other law. Nothing in this section is intended or shall be interpreted to diminish or abrogate any right or remedy otherwise available to any person.
(d) The office of court administration, in conjunction with the division of criminal justice services, shall develop an affirmative information campaign and widely disseminate to the public, through its website, public service announcements and other means, in multiple languages and through multiple outlets, information concerning the expungement, vacatur and resentencing of marihuana convictions established by the chapter of the laws of two thousand nineteen that added this paragraph, including, but not limited to, the automatic expungement of certain past convictions, the means by which an individual may file a motion for vacatur, dismissal and expungement of certain past convictions, and the impact of such changes on such person's criminal history records.
§ 160.55 Order upon termination of criminal action by conviction for
noncriminal offense; entry of waiver; administrative findings.
1. Regardless of the class of offense for which a person is initially charged, upon the termination of a criminal action or proceeding against a person by the conviction of such person of a traffic infraction or a violation, other than the violation of operating a motor vehicle while ability impaired as described in subdivision one of section eleven hundred ninety-two of the vehicle and traffic law, unless the district attorney upon motion with not less than five days' notice to such person or his or her attorney demonstrates to the satisfaction of the court that the interests of justice require otherwise, or the court on its own motion with not less than five days' notice to such person or his or her attorney determines that the interests of justice require otherwise and states the reasons for such determination on the record, the clerk of the court wherein such criminal action or proceeding was terminated shall immediately notify the commissioner of the division of criminal justice services and the heads of all appropriate police departments and other law enforcement agencies that the action has been terminated by such conviction. Upon receipt of notification of such termination:
(a) every photograph of such person and photographic plate or proof, and all palmprints and fingerprints taken or made of such person pursuant to the provisions of this article in regard to the action or proceeding terminated, and all duplicates and copies thereof, except a digital fingerprint image where authorized pursuant to paragraph (e) of this subdivision, except for the palmprints and fingerprints concerning a disposition of harassment in the second degree as defined in section 240.26 of the penal law, 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, and determined pursuant to subdivision eight-a of section 170.10 of this title, shall forthwith be, at the discretion of the recipient agency, either destroyed or returned to such person, or to the attorney who represented such person at the time of the termination of the action or proceeding, at the address given by such person or attorney during the action or proceeding, by the division of criminal justice services and by any police department or law enforcement agency having any such photograph, photographic plate or proof, palmprints or fingerprints in its possession or under its control;
(b) any police department or law enforcement agency, including the division of criminal justice services, which transmitted or otherwise forwarded to any agency of the United States or of any other state or of any other jurisdiction outside the state of New York copies of any such photographs, photographic plates or proofs, palmprints and fingerprints, shall forthwith formally request in writing that all such copies be destroyed or returned to the police department or law enforcement agency which transmitted or forwarded them, and upon such return such department or agency shall, at its discretion, either destroy or return them as provided herein;
(c) all official records and papers relating to the arrest or prosecution, including all duplicates and copies thereof, on file with the division of criminal justice services, police agency, or prosecutor's office shall be sealed and not made available to any person or public or private agency;
(d) the records referred to in paragraph (c) of this subdivision shall be made available to the person accused or to such person's designated agent, and shall be made available to (i) a prosecutor in any proceeding in which the accused has moved for an order pursuant to section 170.56 or 210.46 of this chapter, or (ii) a law enforcement agency upon ex parte motion in any superior court, or in any district court, city court or the criminal court of the city of New York provided that such court sealed the record, if such agency demonstrates to the satisfaction of the court that justice requires that such records be made available to it, or (iii) any state or local officer or agency with responsibility for the issuance of licenses to possess guns, when the accused has made application for such a license, or (iv) the New York state department of corrections and community supervision when the accused is under parole supervision as a result of conditional release or parole release granted by the New York state board of parole and the arrest which is the subject of the inquiry is one which occurred while the accused was under such supervision, or (v) the probation department responsible for supervision of the accused when the arrest which is the subject of the inquiry is one which occurred while the accused was under such supervision, or (vi) a police agency, probation department, sheriff's office, district attorney's office, department of correction of any municipality and parole department, for law enforcement purposes, upon arrest in instances in which the individual stands convicted of harassment in the second degree, as defined in section 240.26 of the penal law, 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, and determined pursuant to subdivision eight-a of section 170.10 of this title; and
(e) where fingerprints subject to the provisions of this section have been received by the division of criminal justice services and have been filed by the division as digital images, such images may be retained, provided that a fingerprint card of the individual is on file with the division which was not sealed pursuant to this section or section 160.50 of this article.
2. A report of the termination of the action or proceeding by conviction of a traffic violation or a violation other than the violation of operating a motor vehicle while ability impaired as described in subdivision one of section eleven hundred ninety-two of the vehicle and traffic law, shall be sufficient notice of sealing to the commissioner of the division of criminal justice services unless the report also indicates that the court directed that the record not be sealed in the interests of justice. Where the court has determined pursuant to subdivision one of this section that sealing is not in the interests of justice, the clerk of the court shall include notification of that determination in any report to such division of the disposition of the action or proceeding. When the defendant has been found guilty of a violation of harassment in the second degree and it was determined pursuant to subdivision eight-a of section 170.10 of this title that such violation was committed against a member of the same family or household as the defendant, the clerk of the court shall include notification of that determination in any report to such division of the disposition of the action or proceeding for purposes of paragraph (a) and subparagraph (vi) of paragraph (d) of subdivision one of this section.
3. A person against whom a criminal action or proceeding was terminated by such person's conviction of a traffic infraction or violation other than the violation of operating a motor vehicle while ability impaired as described in subdivision one of section eleven hundred ninety-two of the vehicle and traffic law, prior to the effective date of this section, may upon motion apply to the court in which such termination occurred, upon not less than twenty days notice to the district attorney, for an order granting to such person the relief set forth in subdivision one of this section, and such order shall be granted unless the district attorney demonstrates to the satisfaction of the court that the interests of justice require otherwise.
4. This section shall not apply to an action terminated in a manner described in paragraph (k) of subdivision two of section 160.50 of this chapter.
5. (a) When a criminal action or proceeding is terminated against a person by the entry of a waiver of a hearing pursuant to paragraph (c) of subdivision ten of section eleven hundred ninety-two of the vehicle and traffic law or section forty-nine-b of the navigation law, the record of the criminal action shall be sealed in accordance with this subdivision. Upon the entry of such waiver, the court or the clerk of the court shall immediately notify the commissioner of the division of criminal justice services and the heads of all appropriate police departments and other law enforcement agencies that a waiver has been entered and that the record of the action shall be sealed when the person reaches the age of twenty-one or three years from the date of commission of the offense, whichever is the greater period of time. At the expiration of such period, the commissioner of the division of criminal justice services and the heads of all appropriate police departments and other law enforcement agencies shall take the actions required by paragraphs (a), (b) and (c) of subdivision one of section 160.50 of this article.
(b) Where a person under the age of twenty-one is referred by the police to the department of motor vehicles for action pursuant to section eleven hundred ninety-two-a or eleven hundred ninety-four-a of the vehicle and traffic law, or section forty-nine-b of the navigation law and a finding in favor of the motorist or operator is rendered, the commissioner of the department of motor vehicles shall, as soon as practicable, but not later than three years from the date of commission of the offense or when such person reaches the age of twenty-one, whichever is the greater period of time, notify the commissioner of the division of criminal justice services and the heads of all appropriate police departments and other law enforcement agencies that such finding in favor of the motorist or operator was rendered. Upon receipt of such notification, the commissioner of the division of criminal justice services and the heads of such police departments and other law enforcement agencies shall take the actions required by paragraphs (a), (b) and (c) of subdivision one of section 160.50 of this article.
(c) Where a person under the age of twenty-one is referred by the police to the department of motor vehicles for action pursuant to section eleven hundred ninety-two-a or eleven hundred ninety-four-a of the vehicle and traffic law, or section forty-nine-b of the navigation law, and no notification is received by the commissioner of the division of criminal justice services and the heads of all appropriate police departments and other law enforcement agencies pursuant to paragraph (b) of this subdivision, such commissioner of the division of criminal justice services and such heads of police departments and other law enforcement agencies shall, after three years from the date of commission of the offense or when the person reaches the age of twenty-one, whichever is the greater period of time, take the actions required by paragraphs (a), (b) and (c) of subdivision one of section 160.50 of this article.
§ 160.58 Conditional sealing of certain controlled substance, marihuana or
specified offense convictions.
1. A defendant convicted of any offense defined in article two hundred twenty or two hundred twenty-one of the penal law or a specified offense defined in subdivision five of section 410.91 of this chapter who has successfully completed a judicial diversion program under article two hundred sixteen of this chapter, or one of the programs heretofore known as drug treatment alternative to prison or another judicially sanctioned drug treatment program of similar duration, requirements and level of supervision, and has completed the sentence imposed for the offense or offenses, is eligible to have such offense or offenses sealed pursuant to this section.
2. The court that sentenced the defendant to a judicially sanctioned drug treatment program may on its own motion, or on the defendant's motion, order that all official records and papers relating to the arrest, prosecution and conviction which resulted in the defendant's participation in the judicially sanctioned drug treatment program be conditionally sealed. In such case, the court may also conditionally seal the arrest, prosecution and conviction records for no more than three of the defendant's prior eligible misdemeanors, which for purposes of this subdivision shall be limited to misdemeanor offenses defined in article two hundred twenty or two hundred twenty-one of the penal law. The court may only seal the records of the defendant's arrests, prosecutions and convictions when:
(a) the sentencing court has requested and received from the division of criminal justice services or the Federal Bureau of Investigation a fingerprint based criminal history record of the defendant, including any sealed or suppressed information. The division of criminal justice services shall also include a criminal history report, if any, from the Federal Bureau of Investigation regarding any criminal history information that occurred in other jurisdictions. The division is hereby authorized to receive such information from the Federal Bureau of Investigation for this purpose. The parties shall be permitted to examine these records;
(b) the defendant or court has identified the misdemeanor conviction or convictions for which relief may be granted;
(c) the court has received documentation that the sentences imposed on the eligible misdemeanor convictions have been completed, or if no such documentation is reasonably available, a sworn affidavit that the sentences imposed on the prior misdemeanors have been completed; and
(d) the court has notified the district attorney of each jurisdiction in which the defendant has been convicted of an offense with respect to which sealing is sought, and the court or courts of record for such offenses, that the court is considering sealing the records of the defendant's eligible misdemeanor convictions. Both the district attorney and the court shall be given a reasonable opportunity, which shall not be less than thirty days, in which to comment and submit materials to aid the court in making such a determination.
3. At the request of the defendant or the district attorney of a county in which the defendant committed a crime that is the subject of the sealing application, the court may conduct a hearing to consider and review any relevant evidence offered by either party that would aid the court in its decision whether to seal the records of the defendant's arrests, prosecutions and convictions. In making such a determination, the court shall consider any relevant factors, including but not limited to: (i) the circumstances and seriousness of the offense or offenses that resulted in the conviction or convictions; (ii) the character of the defendant, including his or her completion of the judicially sanctioned treatment program as described in subdivision one of this section; (iii) the defendant's criminal history; and (iv) the impact of sealing the defendant's records upon his or her rehabilitation and his or her successful and productive reentry and reintegration into society, and on public safety.
4. When a court orders sealing pursuant to this section, all official records and papers relating to the arrests, prosecutions, and convictions, including all duplicates and copies thereof, on file with the division of criminal justice services or any court shall be sealed and not made available to any person or public or private agency; provided, however, the division shall retain any fingerprints, palmprints and photographs, or digital images of the same.
5. When the court orders sealing pursuant to this section, the clerk of such court shall immediately notify the commissioner of the division of criminal justice services, and any court that sentenced the defendant for an offense which has been conditionally sealed, regarding the records that shall be sealed pursuant to this section.
6. Records sealed pursuant to this subdivision shall be made available to:
(a) the defendant or the defendant's designated agent;
(b) qualified agencies, as defined in subdivision nine of section eight hundred thirty-five of the executive law, and federal and state law enforcement agencies, when acting within the scope of their law enforcement duties; or
(c) any state or local officer or agency with responsibility for the issuance of licenses to possess guns, when the person has made application for such a license; or
(d) any prospective employer of a police officer or peace officer as those terms are defined in subdivisions thirty-three and thirty-four of section 1.20 of this chapter, in relation to an application for employment as a police officer or peace officer; provided, however, that every person who is an applicant for the position of police officer or peace officer shall be furnished with a copy of all records obtained under this paragraph and afforded an opportunity to make an explanation thereto.
7. The court shall not seal the defendant's record pursuant to this section while any charged offense is pending.
8. If, subsequent to the sealing of records pursuant to this subdivision, the person who is the subject of such records is arrested for or formally charged with any misdemeanor or felony offense, such records shall be unsealed immediately and remain unsealed; provided, however, that if such new misdemeanor or felony arrest results in a termination in favor of the accused as defined in subdivision three of section 160.50 of this article or by conviction for a non criminal offense as described in section 160.55 of this article, such unsealed records shall be conditionally sealed pursuant to this section.
§ 160.59 Sealing of certain convictions.
1. Definitions: As used in this section, the following terms shall have the following meanings:
(a) "Eligible offense" shall mean any crime defined in the laws of this state other than a sex offense defined in article one hundred thirty of the penal law, an offense defined in article two hundred sixty-three of the penal law, a felony offense defined in article one hundred twenty-five of the penal law, a violent felony offense defined in section 70.02 of the penal law, a class A felony offense defined in the penal law, a felony offense defined in article one hundred five of the penal law where the underlying offense is not an eligible offense, an attempt to commit an offense that is not an eligible offense if the attempt is a felony, or an offense for which registration as a sex offender is required pursuant to article six-C of the correction law. For the purposes of this section, where the defendant is convicted of more than one eligible offense, committed as part of the same criminal transaction as defined in subdivision two of section 40.10 of this chapter, those offenses shall be considered one eligible offense.
(b) "Sentencing judge" shall mean the judge who pronounced sentence upon the conviction under consideration, or if that judge is no longer sitting in a court in the jurisdiction in which the conviction was obtained, any other judge who is sitting in the criminal court where the judgment of conviction was entered.
1-a. The chief administrator of the courts shall, pursuant to section 10.40 of this chapter, prescribe a form application which may be used by a defendant to apply for sealing pursuant to this section. Such form application shall include all the essential elements required by this section to be included in an application for sealing. Nothing in this subdivision shall be read to require a defendant to use such form application to apply for sealing.
2. (a) A defendant who has been convicted of up to two eligible offenses but not more than one felony offense may apply to the court in which he or she was convicted of the most serious offense to have such conviction or convictions sealed. If all offenses are offenses with the same classification, the application shall be made to the court in which the defendant was last convicted.
(b) An application shall contain (i) a copy of a certificate of disposition or other similar documentation for any offense for which the defendant has been convicted, or an explanation of why such certificate or other documentation is not available; (ii) a sworn statement of the defendant as to whether he or she has filed, or then intends to file, any application for sealing of any other eligible offense; (iii) a copy of any other such application that has been filed; (iv) a sworn statement as to the conviction or convictions for which relief is being sought; and (v) a sworn statement of the reason or reasons why the court should, in its discretion, grant such sealing, along with any supporting documentation.
(c) A copy of any application for such sealing shall be served upon the district attorney of the county in which the conviction, or, if more than one, the convictions, was or were obtained. The district attorney shall notify the court within forty-five days if he or she objects to the application for sealing.
(d) When such application is filed with the court, it shall be assigned to the sentencing judge unless more than one application is filed in which case the application shall be assigned to the county court or the supreme court of the county in which the criminal court is located, who shall request and receive from the division of criminal justice services a fingerprint based criminal history record of the defendant, including any sealed or suppressed records. The division of criminal justice services also shall include a criminal history report, if any, from the federal bureau of investigation regarding any criminal history information that occurred in other jurisdictions. The division is hereby authorized to receive such information from the federal bureau of investigation for this purpose, and to make such information available to the court, which may make this information available to the district attorney and the defendant.
3. The sentencing judge, or county or supreme court shall summarily deny the defendant's application when:
(a) the defendant is required to register as a sex offender pursuant to article six-C of the correction law; or
(b) the defendant has previously obtained sealing of the maximum number of convictions allowable under section 160.58 of the criminal procedure law; or
(c) the defendant has previously obtained sealing of the maximum number of convictions allowable under subdivision four of this section; or
(d) the time period specified in subdivision five of this section has not yet been satisfied; or
(e) the defendant has an undisposed arrest or charge pending; or
(f) the defendant was convicted of any crime after the date of the entry of judgement of the last conviction for which sealing is sought; or
(g) the defendant has failed to provide the court with the required sworn statement of the reasons why the court should grant the relief requested; or
(h) the defendant has been convicted of two or more felonies or more than two crimes.
4. Provided that the application is not summarily denied for the reasons set forth in subdivision three of this section, a defendant who stands convicted of up to two eligible offenses, may obtain sealing of no more than two eligible offenses but not more than one felony offense.
5. Any eligible offense may be sealed only after at least ten years have passed since the imposition of the sentence on the defendant's latest conviction or, if the defendant was sentenced to a period of incarceration, including a period of incarceration imposed in conjunction with a sentence of probation, the defendant's latest release from incarceration. In calculating the ten year period under this subdivision, any period of time the defendant spent incarcerated after the conviction for which the application for sealing is sought, shall be excluded and such ten year period shall be extended by a period or periods equal to the time served under such incarceration.
6. Upon determining that the application is not subject to mandatory denial pursuant to subdivision three of this section and that the application is opposed by the district attorney, the sentencing judge or county or supreme court shall conduct a hearing on the application in order to consider any evidence offered by either party that would aid the sentencing judge in his or her decision whether to seal the records of the defendant's convictions. No hearing is required if the district attorney does not oppose the application.
7. In considering any such application, the sentencing judge or county or supreme court shall consider any relevant factors, including but not limited to:
(a) the amount of time that has elapsed since the defendant's last conviction;
(b) the circumstances and seriousness of the offense for which the defendant is seeking relief, including whether the arrest charge was not an eligible offense;
(c) the circumstances and seriousness of any other offenses for which the defendant stands convicted;
(d) the character of the defendant, including any measures that the defendant has taken toward rehabilitation, such as participating in treatment programs, work, or schooling, and participating in community service or other volunteer programs;
(e) any statements made by the victim of the offense for which the defendant is seeking relief;
(f) the impact of sealing the defendant's record upon his or her rehabilitation and upon his or her successful and productive reentry and reintegration into society; and
(g) the impact of sealing the defendant's record on public safety and upon the public's confidence in and respect for the law.
8. When a sentencing judge or county or supreme court orders sealing pursuant to this section, all official records and papers relating to the arrests, prosecutions, and convictions, including all duplicates and copies thereof, on file with the division of criminal justice services or any court shall be sealed and not made available to any person or public or private agency except as provided for in subdivision nine of this section; provided, however, the division shall retain any fingerprints, palmprints and photographs, or digital images of the same. The clerk of such court shall immediately notify the commissioner of the division of criminal justice services regarding the records that shall be sealed pursuant to this section. The clerk also shall notify any court in which the defendant has stated, pursuant to paragraph (b) of subdivision two of this section, that he or she has filed or intends to file an application for sealing of any other eligible offense.
9. Records sealed pursuant to this section shall be made available to:
(a) the defendant or the defendant's designated agent;
(b) qualified agencies, as defined in subdivision nine of section eight hundred thirty-five of the executive law, and federal and state law enforcement agencies, when acting within the scope of their law enforcement duties; or
(c) any state or local officer or agency with responsibility for the issuance of licenses to possess guns, when the person has made application for such a license; or
(d) any prospective employer of a police officer or peace officer as those terms are defined in subdivisions thirty-three and thirty-four of section 1.20 of this chapter, in relation to an application for employment as a police officer or peace officer; provided, however, that every person who is an applicant for the position of police officer or peace officer shall be furnished with a copy of all records obtained under this paragraph and afforded an opportunity to make an explanation thereto; or
(e) the criminal justice information services division of the federal bureau of investigation, for the purposes of responding to queries to the national instant criminal background check system regarding attempts to purchase or otherwise take possession of firearms, as defined in 18 USC 921 (a) (3).
10. A conviction which is sealed pursuant to this section is included within the definition of a conviction for the purposes of any criminal proceeding in which the fact of a prior conviction would enhance a penalty or is an element of the offense charged.
11. No defendant shall be required or permitted to waive eligibility for sealing pursuant to this section as part of a plea of guilty, sentence or any agreement related to a conviction for an eligible offense and any such waiver shall be deemed void and wholly unenforceable.
§ 160.60 Effect of termination of criminal actions in favor of the accused.
Upon the termination of a criminal action or proceeding against a person in favor of such person, as defined in subdivision two of section 160.50 of this chapter, the arrest and prosecution shall be deemed a nullity and the accused shall be restored, in contemplation of law, to the status he occupied before the arrest and prosecution. The arrest or prosecution shall not operate as a disqualification of any person so accused to pursue or engage in any lawful activity, occupation, profession, or calling. Except where specifically required or permitted by statute or upon specific authorization of a superior court, no such person shall be required to divulge information pertaining to the arrest or prosecution.
ARTICLE 170--PROCEEDINGS UPON INFORMATION, SIMPLIFIED TRAFFIC INFORMATION, PROSECUTOR'S INFORMATION AND MISDEMEANOR COMPLAINT
FROM ARRAIGNMENT TO PLEA
Section 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.
§ 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.
10. Notwithstanding any contrary provision of this section, when an off-hours arraignment part designated in accordance with paragraph (w) of subdivision one of section two hundred twelve of the judiciary law is in operation in the county in which the court is located, the court must adjourn the proceedings before it, and direct that the proceedings be continued in such off-hours part when the defendant has appeared before the court without counsel and no counsel is otherwise available at the time of such appearance to aid the defendant, unless the defendant desires to proceed without the aid of counsel and the court is satisfied, pursuant to subdivision six of this section, that the defendant made such decision with knowledge of the significance thereof.
§ 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 after giving the district attorney an opportunity to be heard, 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 court formed to address a matter of special concern based upon the status of the defendant or the victim, commonly known as a "problem solving court," including, but not limited to, drug court, domestic violence court, youth court, mental health court, and veterans court, by the chief administrator of the courts, and such problem solving court may then conduct such action to judgment 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 problem solving 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 problem solving court shall promptly give notice to the defendant, his or her counsel and the district attorney.
5. (a) 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 after giving the district attorney an opportunity to be heard, order that the action be removed from the court in which the matter is pending to another local criminal court in the same county, or with consent of the district attorney and the district attorney of the adjoining county to another court in such adjoining county, that has been designated as a human trafficking court or veterans treatment court by the chief administrator of the courts, and such human trafficking court or veterans treatment court may then conduct such action to judgment or other final deposition; provided, however, that no court may order removal pursuant to this subdivision to a veterans treatment court of a family offense charge described in subdivision one of section 530.11 of this chapter where the accused and the person alleged to be the victim of such offense charged are members of the same family or household as defined in such subdivision one of section 530.11; and provided further 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 human trafficking court or veterans treatment court notifies the court that issued the order that:
i. it will not accept the action, in which event the order shall not take effect; or
ii. 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.
(b) Upon providing notification pursuant to subparagraph i or ii of paragraph (a) of this subdivision, the human trafficking court or veterans treatment court shall promptly give notice to the defendant, his or her counsel, and the district attorney.
§ 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.
§ 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.
§ 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 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.
§ 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.
§ 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.
§ 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.
§ 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.
§ 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 learner's permit or 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.
§ 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 222.10, 222.15, 222.25, 222.30, 222.45 or 222.50 of the penal law, or upon summons for a nuisance offense under section sixty-five-c of the alcoholic beverage control 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. Notwithstanding the limitations set forth in this subdivision, the court may order that all proceedings be suspended and the action adjourned in contemplation of dismissal based upon a finding of exceptional circumstances. For purposes of this subdivision, exceptional circumstances exist when, regardless of the ultimate disposition of the case, the entry of a plea of guilty is likely to result in severe or ongoing consequences, including, but not limited to, potential or actual immigration consequences.
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.
§ 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.
§ 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.
§ 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.
§ 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, 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.
ARTICLE 180--PROCEEDINGS UPON FELONY COMPLAINT FROM ARRAIGNMENT THEREON THROUGH DISPOSITION THEREOF
Section 180.10 Proceedings upon felony complaint; arraignment; defendant's rights, court's instructions and bail matters.
180.20 Proceedings upon felony complaint; removal of action from one local criminal court to another.
180.30 Proceedings upon felony complaint; waiver of hearing; action to be taken.
180.40 Proceedings upon felony complaint; application in superior court following hearing or waiver of hearing.
180.50 Proceedings upon felony complaint; reduction of charge.
180.60 Proceedings upon felony complaint; the hearing; conduct thereof.
180.70 Proceedings upon felony complaint; disposition of felony complaint after hearing.
180.75 Proceedings upon felony complaint; juvenile offender.
180.80 Proceedings upon felony complaint; release of defendant from custody upon failure of timely disposition.
180.85 Termination of prosecution.
§ 180.10 Proceedings upon felony complaint; arraignment; defendant's rights, court's instructions and bail matters.
1. Upon the defendant's arraignment before a local criminal court upon a felony complaint, the court must immediately inform him, or cause him to be informed in its presence, of the charge or charges against him and that the primary purpose of the proceedings upon such felony complaint is to determine whether the defendant is to be held for the action of a grand jury with respect to the charges contained therein. The court must furnish the defendant with a copy of the felony complaint.
2. The defendant has a right to a prompt hearing upon the issue of whether there is sufficient evidence to warrant the court in holding him for the action of a grand jury, but he may waive such right.
3. The defendant has a right to the aid of counsel at the arraignment and at every subsequent stage of the action, and, if he appears upon such arraignment without counsel, 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 purpose 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 in any case where he is financially unable to obtain the same.
4. The court must inform the defendant of all rights specified in subdivisions two and three. The court must accord the defendant opportunity to exercise such rights and must itself take such affirmative action as is necessary to effectuate them.
5. If the defendant desires to proceed without the aid of counsel, the court must permit him to do so 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. 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.
6. Upon the arraignment, the court, unless it intends immediately thereafter to dismiss the felony complaint and terminate the action, must issue a securing order which, as provided in subdivision two of section 530.20, either releases the defendant on his own recognizance or fixes bail or commits him to the custody of the sheriff for his future appearance in such action.
7. Notwithstanding any contrary provision of this section, when an off-hours arraignment part designated in accordance with paragraph (w) of subdivision one of section two hundred twelve of the judiciary law is in operation in the county in which the court is located, the court must adjourn the proceedings before it, and direct that the proceedings be continued in such off-hours part when the defendant has appeared before the court without counsel and no counsel is otherwise available at the time of such appearance to aid the defendant.
§ 180.20 Proceedings upon felony complaint; removal of action from one local criminal court to another.
Under circumstances prescribed in this section, a criminal action based upon a pending felony complaint may be removed from one local criminal court to another:
1. When a defendant arrested by a police officer for a felony allegedly committed in a town has not been brought before the town court of the town, or as the case may be before the village court of the village, in which the felony charged was allegedly committed, but, instead, to another local criminal court of the county and there stands charged with such offense by felony complaint, such latter court must arraign him upon such felony complaint. Such court must then either:
(a) Dispose of the felony complaint pursuant to this article. If such disposition results in a reduction of the felony charge and the filing of an information or prosecutor's information charging a misdemeanor or a petty offense pursuant to section 180.50 or subdivision two or three of section 180.70, such court must conduct the action to judgment or other final disposition; or
(b) Remit the action upon the felony complaint, together with all pertinent papers and documents, to the town court of the town, or as the case may be to the village court of the village, in which the felony charged was allegedly committed. In such case, the latter court must dispose of the felony complaint pursuant to this article.
1-a. When a defendant arrested by a police officer for a felony allegedly committed in a city has not been brought before the city court of such city but, instead, to the local criminal court of an adjoining town or village of the same county and there stands charged with such offense by felony complaint, such latter court must arraign him upon such felony complaint. Such court must then either:
(a) Dispose of the felony complaint pursuant to this article. If such disposition results in a reduction of the felony charge and the filing of an information or prosecutor's information charging a misdemeanor or a petty offense pursuant to section 180.50 or subdivision two or three of section 180.70 of this article, such court must conduct the action to judgment or other final disposition; or
(b) Remit the action upon the felony complaint, together with all pertinent papers and documents, to the city court of the city in which the felony charged was allegedly committed. In such case, the latter court must dispose of the felony complaint pursuant to this article.
2. When a defendant arrested by a police officer for a felony has been brought before a superior court judge sitting as a local criminal court for arraignment upon a felony complaint charging such felony, such judge must, as a local criminal court, arraign the defendant upon such felony complaint. Such court must then either:
(a) Dispose of the felony complaint pursuant to this article. If however, such disposition results in a reduction of the charge and the filing of an information or prosecutor's information charging a misdemeanor or a petty offense, such judge, after arraigning the defendant upon such accusatory instrument, must remit the action, together with all pertinent papers and documents, to a local criminal court having trial jurisdiction of the offense charged, and the latter court must then conduct the action to judgment or other final disposition; or
(b) Remit the action upon the felony complaint, together with all pertinent papers and documents, to a local criminal court having geographical jurisdiction over the area in which the felony charged was allegedly committed. In such case, such latter court must dispose of the felony complaint pursuant to this article.
3. 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 a felony complaint pending in a local criminal court having preliminary jurisdiction thereof, 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 dispose of such felony complaint pursuant to this article; 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.
4. (a) 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 a felony complaint pending in a local criminal court having preliminary jurisdiction thereof, such court may, upon motion of the defendant and after giving the district attorney an opportunity to be heard, order that the action be removed from the court in which the matter is pending to another local criminal court in the same county, or with consent of the district attorney and the district attorney of the adjoining county to another court in such adjoining county, that has been designated as a human trafficking court or veterans treatment court by the chief administrator of the courts, and such human trafficking court or veterans treatment court may then conduct such action to judgment or other final disposition; provided, however, that no court may order removal pursuant to this subdivision to a veterans treatment court of a family offense charge described in subdivision one of section 530.11 of this chapter where the accused and the person alleged to be the victim of such offense charged are members of the same family or household as defined in such subdivision one of section 530.11; and provided further 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 human trafficking court or veterans treatment court notifies the court that issued the order that:
i. it will not accept the action, in which event the order shall not take effect; or
ii. 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.
(b) Upon providing notification pursuant to subparagraph i or ii of paragraph (a) of this subdivision, the human trafficking court or veterans treatment court shall promptly give notice to the defendant, his or her counsel and the district attorney.
§ 180.30 Proceedings upon felony complaint; waiver of hearing; action to be taken.
If the defendant waives a hearing upon the felony complaint, the court must either:
1. Order that the defendant be held for the action of a grand jury of the appropriate superior court with respect to the charge or charges contained in the felony complaint. In such case, the court must promptly transmit to such superior court the order, the felony complaint, the supporting depositions and all other pertinent documents. Until such papers are received by the superior court, the action is deemed to be still pending in the local criminal court; or
2. Make inquiry, pursuant to section 180.50, for the purpose of determining whether the felony complaint should be dismissed and an information, a prosecutor's information or a misdemeanor complaint filed with the court in lieu thereof.
§ 180.40 Proceedings upon felony complaint; application in superior court following hearing or waiver of hearing.
Where the local criminal court has held a defendant for the action of a grand jury, the district attorney may, at any time before such matter is submitted to the grand jury, apply, ex parte, to the appropriate superior court for an order directing that the felony complaint and other papers transmitted to such court pursuant to subdivision one of section 180.30 be returned to the local criminal court for reconsideration of the action to be taken. The superior court may issue such an order if it is satisfied that the felony complaint is defective or that such action is required in the interest of justice.
§ 180.50 Proceedings upon felony complaint; reduction of charge.
1. Whether or not the defendant waives a hearing upon the felony complaint, the local criminal court may, upon consent of the district attorney, make inquiry for the purpose of determining whether (a) the available facts and evidence relating to the conduct underlying the felony complaint provide a basis for charging the defendant with an offense other than a felony, and (b) if so, whether the charge should, in the manner prescribed in subdivision three, be reduced from one for a felony to one for a non-felony offense. Upon such inquiry, the court may question any person who it believes may possess information relevant to the matter, including the defendant if he wishes to be questioned.
2. If after such inquiry the court is satisfied that there is reasonable cause to believe that the defendant committed an offense other than a felony, it may order the indicated reduction as follows:
(a) If there is not reasonable cause to believe that the defendant committed a felony in addition to the non-felony offense in question, the court may as a matter of right order a reduction of the charge to one for the non-felony offense;
(b) If there is reasonable cause to believe that the defendant committed a felony in addition to the non-felony offense, the court may order a reduction of the charge to one for the non-felony offense only if (i) it is satisfied that such reduction is in the interest of justice, and (ii) the district attorney consents thereto; provided, however, that the court may not order such reduction where there is reasonable cause to believe that the defendant committed a class A felony, other than those defined in article two hundred twenty of the penal law, or any armed felony as defined in subdivision forty-one of section 1.20.
3. A charge is "reduced" from a felony to a non-felony offense, within the meaning of this section, by replacing the felony complaint with, or converting it to, another local criminal court accusatory instrument, as follows:
(a) If the factual allegations of the felony complaint and/or any supporting depositions are legally sufficient to support the charge that the defendant committed the non-felony offense in question, the court may:
(i) Direct the district attorney to file with the court a prosecutor's information charging the defendant with such non-felony offense; or
(ii) Request the complainant of the felony complaint to file with the court an information charging the defendant with such non-felony offense. If such an information is filed, any supporting deposition supporting or accompanying the felony complaint is deemed also to support or accompanying the replacing information; or
(iii) Convert the felony complaint, or a copy thereof, into an information by notations upon or attached thereto which make the necessary and appropriate changes in the title of the instrument and in the names of the offense or offenses charged. In case of such conversion, any supporting deposition supporting or accompanying the felony complaint is deemed also to support or accompany the information to which it has been converted;
(b) If the non-felony offense in question is a misdemeanor, and if the factual allegations of the felony complaint together with those of any supporting depositions, though providing reasonable cause to believe that the defendant committed such misdemeanor are not legally sufficient to support such misdemeanor charge, the court may cause such felony complaint to be replaced by or converted to a misdemeanor complaint charging the misdemeanor in question, in the manner prescribed in subparagraphs two and three of paragraph (a) of this subdivision.
(c) An information, a prosecutor's information or a misdemeanor complaint filed pursuant to this section may, pursuant to the ordinary rules of joinder, charge two or more offenses, and it may jointly charge with each offense any two or more defendants originally so charged in the felony complaint;
(d) Upon the filing of an information, a prosecutor's information or a misdemeanor complaint pursuant to this section, the court must dismiss the felony complaint from which such accusatory instrument is derived. It must then arraign the defendant upon the new accusatory instrument and inform him of his rights in connection therewith in the manner provided in section 170.10.
4. Upon making any finding other than that specified in subdivision two, the court must conduct a hearing upon the felony complaint, unless the defendant has waived the same. In the case of such waiver the court must order that the defendant be held for the action of a grand jury.
§ 180.60 Proceedings upon felony complaint; the hearing; conduct thereof.
A hearing upon a felony complaint must be conducted as follows:
1. The district attorney must conduct such hearing on behalf of the people.
2. The defendant may as a matter of right be present at such hearing.
3. The court must read to the defendant the felony complaint and any supporting depositions unless the defendant waives such reading.
4. Each witness, whether called by the people or by the defendant, must, unless he would be authorized to give unsworn evidence at a trial, testify under oath. Each witness, including any defendant testifying in his own behalf, may be cross-examined.
5. The people must call and examine witnesses and offer evidence in support of the charge.
6. The defendant may, as a matter of right, testify in his own behalf.
7. Upon request of the defendant, the court may, as a matter of discretion, permit him to call and examine other witnesses or to produce other evidence in his behalf.
8. Upon such a hearing, only non-hearsay evidence is admissible to demonstrate reasonable cause to believe that the defendant committed a felony; except that reports of experts and technicians in professional and scientific fields and sworn statements of the kinds specified in subdivisions two and three of section 190.30 are admissible to the same extent as in a grand jury proceeding, unless the court determines, upon application of the defendant, that such hearsay evidence is, under the particular circumstances of the case, not sufficiently reliable, in which case the court shall require that the witness testify in person and be subject to cross-examination.
9. The court may, upon application of the defendant, exclude the public from the hearing and direct that no disclosure be made of the proceedings.
10. Such hearing should be completed at one session. In the interest of justice, however, it may be adjourned by the court but, in the absence of a showing of good cause therefor, no such adjournment may be for more than one day.
§ 180.70 Proceedings upon felony complaint; disposition of felony complaint after hearing.
At the conclusion of a hearing, the court must dispose of the felony complaint as follows:
1. If there is reasonable cause to believe that the defendant committed a felony, the court must, except as provided in subdivision three, order that the defendant be held for the action of a grand jury of the appropriate superior court, and it must promptly transmit to such superior court the order, the felony complaint, the supporting depositions and all other pertinent documents. Until such papers are received by the superior court, the action is deemed to be still pending in the local criminal court.
2. If there is not reasonable cause to believe that the defendant committed a felony but there is reasonable cause to believe that he committed an offense other than a felony, the court may, by means of procedures prescribed in subdivision three of section 180.50, reduce the charge to one for such non-felony offense.
3. If there is reasonable cause to believe that the defendant committed a felony in addition to a non-felony offense, the court may, instead of ordering the defendant held for the action of a grand jury as provided in subdivision one, reduce the charge to one for such non-felony offense as provided in subdivision two, if (a) it is satisfied that such reduction is in the interest of justice, and (b) the district attorney consents thereto; provided, however, that the court may not order such reduction where there is reasonable cause to believe the defendant committed a class A felony, other than those defined in article two hundred twenty of the penal law, or any armed felony as defined in subdivision forty-one of section 1.20.
4. If there is not reasonable cause to believe that the defendant committed any offense, the court must dismiss the felony complaint and discharge the defendant from custody if he is in custody, or, if he is at liberty on bail, it must exonerate the bail.
§ 180.75 Proceedings upon felony complaint; juvenile offender.
1. When a juvenile offender or adolescent offender is arraigned before the youth part of a superior court or the most accessible magistrate designated by the appellate division of the supreme court in the applicable department to act as a youth part, the provisions of article seven hundred twenty-two of this chapter shall apply in lieu of the provisions of sections 180.30, 180.50 and 180.70 of this article.
§ 180.80 Proceedings upon felony complaint; release of defendant from custody upon failure of timely disposition.
Upon application of a defendant against whom a felony complaint has been filed with a local criminal court or the youth part of a superior court, and who, since the time of his arrest or subsequent thereto, has been held in custody pending disposition of such felony complaint, and who has been confined in such custody for a period of more than one hundred twenty hours or, in the event that a Saturday, Sunday or legal holiday occurs during such custody, one hundred forty-four hours, without either a disposition of the felony complaint or commencement of a hearing thereon, the court must release him on his own recognizance unless:
1. The failure to dispose of the felony complaint or to commence a hearing thereon during such period of confinement was due to the defendant's request, action or condition, or occurred with his consent; or
2. Prior to the application:
(a) The district attorney files with the court a written certification that an indictment has been voted; or
(b) An indictment or a direction to file a prosecutor's information charging an offense based upon conduct alleged in the felony complaint was filed by a grand jury; or
3. The court is satisfied that 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 disposition of the felony complaint within the prescribed period or rendered such action against the interest of justice.
§ 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.
* ARTICLE 182
ALTERNATE METHOD OF COURT APPEARANCE
Section 182.10 Definition of terms.
182.20 Electronic appearance; general rule.
182.30 Electronic appearance; conditions and limitations.
182.40 Approval by the chief administrator of the courts.
* NB Repealed September 1, 2025
* § 182.10 Definition of terms.
As used in this article:
1. "Independent audio-visual system" means an electronic system for the transmission and receiving of audio and visual signals, encompassing encoded signals, frequency domain multiplexing or other suitable means to preclude the unauthorized reception and decoding of the signals by commercially available television receivers, channel converters, or other available receiving devices.
2. "Electronic appearance" means an appearance in which various participants, including the defendant, are not present in the court, but in which, by means of an independent audio-visual system, (a) all of the participants are simultaneously able to see and hear reproductions of the voices and images of the judge, counsel, defendant, police officer, and any other appropriate participant, and (b) counsel is present with the defendant, or if the defendant waives the presence of counsel on the record, the defendant and his or her counsel are able to see and hear each other and engage in private conversation.
* NB Repealed September 1, 2025
* § 182.20 Electronic appearance; general rule.
1. Notwithstanding any other provision of law and except as provided in section 182.30 of this article, the court, in its discretion, may dispense with the personal appearance of the defendant, except an appearance at a hearing or trial, and conduct an electronic appearance in connection with a criminal action pending in Albany, Bronx, Broome, Erie, Kings, New York, Niagara, Oneida, Onondaga, Ontario, Orange, Putnam, Queens, Richmond, Rockland, Saratoga, St. Lawrence, Seneca, Steuben, Tompkins, Chautauqua, Cattaraugus, Clinton, Essex, Montgomery, Rensselaer, Sullivan, Warren, Westchester, Suffolk, Herkimer, Franklin, Chemung, Schuyler, or Yates county, provided that the chief administrator of the courts has authorized the use of electronic appearance and the defendant, after consultation with counsel, consents on the record. Such consent shall be required at the commencement of each electronic appearance to such electronic appearance.
2. If, for any reason, the court determines on its own motion or on the motion of any party that the conduct of an electronic appearance may impair the legal rights of the defendant, it shall not permit the electronic appearance to proceed. If, for any other articulated reason, either party requests at any time during the electronic appearance that such appearance be terminated, the court shall grant such request and adjourn the proceeding to a date certain. Upon the adjourned date the proceeding shall be recommenced from the point at which the request for termination of the electronic appearance had been granted.
3. The electronic appearance shall be conducted in accordance with rules issued by the chief administrator of the courts.
4. When the defendant makes an electronic appearance, the court stenographer shall record any statements in the same manner as if the defendant had made a personal appearance. No electronic recording of any electronic appearance may be made, viewed or inspected except as may be authorized by the rules issued by the chief administrator of the courts.
* NB Repealed September 1, 2025
* § 182.30 Electronic appearance; conditions and limitations.
The following conditions and limitations apply to all electronic appearances:
1. The defendant may not enter a plea of guilty to, or be sentenced upon a conviction of, a felony.
2. The defendant may not enter a plea of not responsible by reason of mental disease or defect.
3. The defendant may not be committed to the state department of mental hygiene pursuant to article seven hundred thirty of this chapter.
4. The defendant may not enter a plea of guilty to a misdemeanor conditioned upon a promise of incarceration unless such incarceration will be imposed only in the event that the defendant fails to comply with a term or condition imposed under the original sentence.
5. A defendant who has been convicted of a misdemeanor may not be sentenced to a period of incarceration which exceeds the time the defendant has already served when sentence is imposed.
* NB Repealed September 1, 2025
* § 182.40 Approval by the chief administrator of the courts.
1. The appropriate administrative judge shall submit to the chief administrator of the courts a written proposal for the use of electronic appearance in his or her jurisdiction. If the chief administrator of the courts approves the proposal, installation of an independent audio-visual system may begin.
2. Upon completion of the installation of an independent audio-visual system, the commission on cable television shall inspect, test, and examine the independent audio-visual system and certify to the chief administrator of the courts whether the system complies with the definition of an independent audio-visual system and is technically suitable for the conducting of electronic appearances as intended.
3. The chief administrator of the courts shall issue rules governing the use of electronic appearances.
* NB Repealed September 1, 2025
* ARTICLE 185 - ALTERNATE METHOD OF ARRAIGNMENT
Section 185.10 Definition of terms.
185.20 Electronic arraignment.
185.30 Conditions and limitations on electronic arraignment. 185.40 Approval by the chief administrator of the courts.
* NB Expired September 1, 1983
* § 185.10 Definition of terms.
As used in this article:
1. "Independent audio-visual system" shall mean an electronic system for the transmission and receiving of audio and visual signals, encompassing encoded signals, frequency domain multiplexing or other suitable means to preclude the unauthorized reception and decoding of the signals by commercially available television receivers, channel converters, or other available receiving devices.
2. "Electronic arraignment" means an arraignment in which various participants, including the defendant, are not personally present in the court but in which all of the participants are simultaneously able to see and hear reproductions of the voices and images of the judge, counsels, defendant, police officer and any other appropriate participant, by means of an independent audio-visual system. * NB Expired September 1, 1983
* § 185.20 Electronic arraignment.
Notwithstanding the provisions of subdivision nine of section 1.20, sections 110.10, 120.10, 120.40, 120.90, 140.20, 140.27, 140.40, 170.10 and 180.10 of this chapter or any other provision of law as they pertain to a defendant's personal appearance at arraignment, in Suffolk county, the court in its discretion may dispense with the defendant's personal appearance at the arraignment and conduct an electronic arraignment, provided that:
1. The defendant has waived in writing his right to personally appear at his arraignment and has consented to be arraigned by the electronic arraignment process;
2. The district attorney has consented to the electronic arraignment process for the defendant;
3. The personal appearance of the defendant at the arraignment would result in an unreasonable delay in the preliminary proceeding; and
4. The chief administrator of the courts has authorized the use of electronic arraignments for the court, pursuant to the provisions of section 185.40 of this article.
* NB Expired September 1, 1983
* § 185.30 Conditions and limitations on electronic arraignment.
Whenever a person is arraigned by means of an electronic arraignment, the following conditions and limitations shall apply:
1. The defendant may not enter a plea of guilty;
2. The electronic arraignment process may be used only when the accusatory instrument does not charge a felony;
3. No electronic recording of an electronic arraignment may be made, viewed or inspected except as may be authorized by rules of the chief administrator of the courts; and
4. Stenographic recording of the arraignment shall be made to the same extent as if it were an ordinary arraignment rather than an electronic arraignment.
* NB Expired September 1, 1983
* § 185.40 Approval by the chief administrator of the courts.
1. The appropriate administrative judge shall submit to the chief administrator of the courts a written proposal for the use of electronic arraignments for a particular court and the precincts under the jurisdiction of that court. If the chief administrator of the courts approves the proposal, installation of an independent audio-visual system may begin.
2. Upon completion of the installation of an independent audio-visual system, the commission on cable television shall inspect, test and examine the independent audio-visual system and certify to the chief administrator of the courts whether the system complies with the definition of an independent audio-visual system and is technically suitable for the conducting of electronic arraignments as intended.
3. The use by a court of an approved independent audio-visual system for the purpose of authorized electronic arraignments, shall be for a period of two years from the date of authorization by the chief administrator of the courts.
4. The chief administrator of the courts may withdraw approval of the authorization at any time.
* NB Expired September 1, 1983
TITLE I--PRELIMINARY PROCEEDINGS IN SUPERIOR COURT
ARTICLE 190--THE GRAND JURY AND ITS PROCEEDINGS
Section 190.05 Grand jury; definition and general functions.
190.10 Grand jury; for what courts drawn.
190.15 Grand jury; duration of term and discharge.
190.20 Grand jury; formation, organization and other matters preliminary to assumption of duties.
190.25 Grand jury; proceedings and operation in general.
190.30 Grand jury; rules of evidence.
190.32 Videotaped examination; definitions, application, order and procedure.
190.35 Grand jury; definitions of terms.
190.40 Grand jury; witnesses, compulsion of evidence and immunity.
190.45 Grand jury; waiver of immunity.
190.50 Grand jury; who may call witnesses; defendant as witness.
190.52 Grand jury; attorney for witness.
190.55 Grand jury; matters to be heard and examined; duties and authority of district attorney.
190.60 Grand jury; action to be taken.
190.65 Grand jury; when indictment is authorized.
190.70 Grand jury; direction to file prosecutor's information and related matters.
190.71 Grand jury; direction to file request for removal to family court.
190.75 Grand jury; dismissal of charge.
190.80 Grand jury; release of defendant upon failure of timely grand jury action.
190.85 Grand jury; grand jury reports.
190.90 Grand jury; appeal from order concerning grand jury reports.
§ 190.05 Grand jury; definition and general functions.
A grand jury is a body consisting of not less than sixteen nor more than twenty-three persons, impaneled by a superior court and constituting a part of such court, the functions of which are to hear and examine evidence concerning offenses and concerning misconduct, nonfeasance and neglect in public office, whether criminal or otherwise, and to take action with respect to such evidence as provided in section 190.60.
§ 190.10 Grand jury; for what courts drawn.
The appellate division of each judicial department shall adopt rules governing the number and the terms for which grand juries shall be drawn and impaneled by the superior courts within its department; provided, however, that a grand jury may be drawn and impaneled for any extraordinary term of the supreme court upon the order of a justice assigned to hold such term.
§ 190.15 Grand jury; duration of term and discharge.
1. A term of a superior court for which a grand jury has been impaneled remains in existence at least until and including the opening date of the next term of such court for which a grand jury has been designated. Upon such date, or within five days preceding it, the court may, upon declaration of both the grand jury and the district attorney that such grand jury has not yet completed or will be unable to complete certain business before it, extend the term of court and the existence of such grand jury to a specified future date, and may subsequently order further extensions for such purpose.
2. At any time when a grand jury is in recess and no other appropriate grand jury is in existence in the county, the court may, upon application of the district attorney or of a defendant held by a local criminal court for the action of a grand jury, order such grand jury reconvened for the purpose of dealing with a matter requiring grand jury action.
§ 190.20 Grand jury; formation, organization and other matters preliminary to assumption of duties.
1. The mode of selecting grand jurors and of drawing and impaneling grand juries is governed by the judiciary law.
2. Neither the grand jury panel nor any individual grand juror may be challenged, but the court may:
(a) At any time before a grand jury is sworn, discharge the panel and summon another panel if it finds that the original panel does not substantially conform to the requirements of the judiciary law; or
(b) At any time after a grand juror is drawn, refuse to swear him, or discharge him after he has been sworn, upon a finding that he is disqualified from service pursuant to the judiciary law, or incapable of performing his duties because of bias or prejudice, or guilty of misconduct in the performance of his duties such as to impair the proper functioning of the grand jury.
3. After a grand jury has been impaneled, the court must appoint one of the grand jurors as foreman and another to act as foreman during any absence or disability of the foreman. At some time before commencement of their duties, the grand jurors must appoint one of their number as secretary to keep records material to the conduct of the grand jury's business.
4. The grand jurors must be sworn by the court. The oath may be in any form or language which requires the grand jurors to perform their duties faithfully.
5. After a grand jury has been sworn, the court must deliver or cause to be delivered to each grand juror a printed copy of all the provisions of this article, and the court may, in addition, give the grand jurors any oral and written instructions relating to the proper performance of their duties as it deems necessary or appropriate.
6. If two or more grand juries are impaneled at the same court term, the court may thereafter, for good cause, transfer grand jurors from one panel to another, and any grand juror so transferred is deemed to have been sworn as a member of the panel to which he has been transferred.
§ 190.25 Grand jury; proceedings and operation in general.
1. Proceedings of a grand jury are not valid unless at least sixteen of its members are present. The finding of an indictment, a direction to file a prosecutor's information, a decision to submit a grand jury report and every other affirmative official action or decision requires the concurrence of at least twelve members thereof.
2. The foreman or any other grand juror may administer an oath to any witness appearing before the grand jury.
3. Except as provided in subdivision three-a of this section, during the deliberations and voting of a grand jury, only the grand jurors may be present in the grand jury room. During its other proceedings, the following persons, in addition to witnesses, may, as the occasion requires, also be present:
(a) The district attorney;
(b) A clerk or other public servant authorized to assist the grand jury in the administrative conduct of its proceedings;
(c) A stenographer authorized to record the proceedings of the grand jury;
(d) An interpreter. Upon request of the grand jury, the prosecutor must provide an interpreter to interpret the testimony of any witness who does not speak the English language well enough to be readily understood. Such interpreter must, if he has not previously taken the constitutional oath of office, first take an oath before the grand jury that he will faithfully interpret the testimony of the witness and that he will keep secret all matters before such grand jury within his knowledge;
(e) A public servant holding a witness in custody. When a person held in official custody is a witness before a grand jury, a public servant assigned to guard him during his grand jury appearance may accompany him in the grand jury room. Such public servant must, if he has not previously taken the constitutional oath of office, first take an oath before the grand jury that he will keep secret all matters before it within his knowledge.
(f) An attorney representing a witness pursuant to section 190.52 of this chapter while that witness is present.
(g) An operator, as that term is defined in section 190.32 of this chapter, while the videotaped examination of either a special witness or a child witness is being played.
(h) A social worker, rape crisis counselor, psychologist or other professional providing emotional support to a child witness twelve years old or younger, or a social worker or informal caregiver, as provided in subdivision two of section two hundred six of the elder law, for a vulnerable elderly person as provided in subdivision three of section 260.31 of the penal law, who is called to give evidence in a grand jury proceeding concerning a crime defined in article one hundred twenty-one, article one hundred thirty, article two hundred sixty, section 120.10, 125.10, 125.15, 125.20, 125.25, 125.26, 125.27, 255.25, 255.26 or 255.27 of the penal law provided that the district attorney consents. Such support person shall not provide the witness with an answer to any question or otherwise participate in such proceeding and shall first take an oath before the grand jury that he or she will keep secret all matters before such grand jury within his or her knowledge.
3-a. Upon the request of a deaf or hearing-impaired grand juror, the prosecutor shall provide a sign language interpreter for such juror. Such interpreter shall be present during all proceedings of the grand jury which the deaf or hearing-impaired grand juror attends, including deliberation and voting. The interpreter shall, if he or she has not previously taken the constitutional oath of office, first take an oath before the grand jury that he or she will faithfully interpret the testimony of the witnesses and the statements of the prosecutor, judge and grand jurors; keep secret all matters before such grand jury within his or her knowledge; and not seek to influence the deliberations and voting of such grand jury.
4. (a) Grand jury proceedings are secret, and no grand juror, or other person specified in subdivision three of this section or section 215.70 of the penal law, may, except in the lawful discharge of his duties or upon written order of the court, disclose the nature or substance of any grand jury testimony, evidence, or any decision, result or other matter attending a grand jury proceeding. For the purpose of assisting the grand jury in conducting its investigation, evidence obtained by a grand jury may be independently examined by the district attorney, members of his staff, police officers specifically assigned to the investigation, and such other persons as the court may specifically authorize. Such evidence may not be disclosed to other persons without a court order. Nothing contained herein shall prohibit a witness from disclosing his own testimony.
(b) When a district attorney obtains evidence during a grand jury proceeding which provides reasonable cause to suspect that a child has been abused or maltreated, as those terms are defined by section ten hundred twelve of the family court act, he must apply to the court supervising the grand jury for an order permitting disclosure of such evidence to the state central register of child abuse and maltreatment. A district attorney need not apply to the court for such order if he has previously made or caused a report to be made to the state central register of child abuse and maltreatment pursuant to section four hundred thirteen of the social services law and the evidence obtained during the grand jury proceeding, or substantially similar information, was included in such report. The district attorney's application to the court shall be made ex parte and in camera. The court must grant the application and permit the district attorney to disclose the evidence to the state central register of child abuse and maltreatment unless the court finds that such disclosure would jeopardize the life or safety of any person or interfere with a continuing grand jury proceeding.
5. The grand jury is the exclusive judge of the facts with respect to any matter before it.
6. The legal advisors of the grand jury are the court and the district attorney, and the grand jury may not seek or receive legal advice from any other source. Where necessary or appropriate, the court or the district attorney, or both, must instruct the grand jury concerning the law with respect to its duties or any matter before it, and such instructions must be recorded in the minutes.
§ 190.30 Grand jury; rules of evidence.
1. Except as otherwise provided in this section, the provisions of article sixty, governing rules of evidence and related matters with respect to criminal proceedings in general, are, where appropriate, applicable to grand jury proceedings.
2. A report or a copy of a report made by a public servant or by a person employed by a public servant or agency who is a physicist, chemist, coroner or medical examiner, firearms identification expert, examiner of questioned documents, fingerprint technician, or an expert or technician in some comparable scientific or professional field, concerning the results of an examination, comparison or test performed by him in connection with a case which is the subject of a grand jury proceeding, may, when certified by such person as a report made by him or as a true copy thereof, be received in such grand jury proceeding as evidence of the facts stated therein.
2-a. When the electronic transmission of a certified report, or certified copy thereof, of the kind described in subdivision two or three-a of this section or a sworn statement or copy thereof, of the kind described in subdivision three of this section results in a written document, such written document may be received in such grand jury proceeding provided that: (a) a transmittal memorandum completed by the person sending the report contains a certification that the report has not been altered and a description of the report specifying the number of pages; and (b) the person who receives the electronically transmitted document certifies that such document and transmittal memorandum were so received; and (c) a certified report or a certified copy or sworn statement or sworn copy thereof is filed with the court within twenty days following arraignment upon the indictment; and (d) where such written document is a sworn statement or sworn copy thereof of the kind described in subdivision three of this section, such sworn statement or sworn copy thereof is also provided to the defendant or his counsel within twenty days following arraignment upon the indictment.
3. A written or oral statement, under oath, by a person attesting to one or more of the following matters may be received in such grand jury proceeding as evidence of the facts stated therein:
(a) that person's ownership or lawful custody of, or license to occupy, premises, as defined in section 140.00 of the penal law, and of the defendant's lack of license or privilege to enter or remain thereupon;
(b) that person's ownership of, or possessory right in, property, the nature and monetary amount of any damage thereto and the defendant's lack of right to damage or tamper with the property;
(c) that person's ownership or lawful custody of, or license to possess property, as defined in section 155.00 of the penal law, including an automobile or other vehicle, its value and the defendant's lack of superior or equal right to possession thereof;
(d) that person's ownership of a vehicle and the absence of his consent to the defendant's taking, operating, exercising control over or using it;
(e) that person's qualifications as a dealer or other expert in appraising or evaluating a particular type of property, his expert opinion as to the value of a certain item or items of property of that type, and the basis for his opinion;
(f) that person's identity as an ostensible maker, drafter, drawer, endorser or other signator of a written instrument and its falsity within the meaning of section 170.00 of the penal law;
(g) that person's ownership of, or possessory right in, a credit card account number or debit card account number, and the defendant's lack of superior or equal right to use or possession thereof.
Provided, however, that no such statement shall be admitted when an adversarial examination of such person has been previously ordered pursuant to subdivision 8 of section 180.60, unless a transcript of such examination is admitted.
3-a. A sex offender registration form, sex offender registration continuation/supplemental form, sex offender registry address verification form, sex offender change of address form or a copy of such form maintained by the division of criminal justice services concerning an individual who is the subject of a grand jury proceeding, may, when certified by a person designated by the commissioner of the division of criminal justice services as the person to certify such records, as a true copy thereof, be received in such grand jury proceeding as evidence of the facts stated therein.
4. An examination of a child witness or a special witness by the district attorney videotaped pursuant to section 190.32 of this chapter may be received in evidence in such grand jury proceeding as the testimony of such witness.
5. Nothing in subdivisions two, three or four of this section shall be construed to limit the power of the grand jury to cause any person to be called as a witness pursuant to subdivision three of section 190.50.
6. Wherever it is provided in article sixty that the court in a criminal proceeding must rule upon the competency of a witness to testify or upon the admissibility of evidence, such ruling may in an equivalent situation in a grand jury proceeding, be made by the district attorney.
7. Wherever it is provided in article sixty that a court presiding at a jury trial must instruct the jury with respect to the significance, legal effect or evaluation of evidence, the district attorney, in an equivalent situation in a grand jury proceeding, may so instruct the grand jury.
8. (a) A business record may be received in such grand jury proceedings as evidence of the following facts and similar facts stated therein:
(i) a person's use of, subscription to and charges and payments for communication equipment and services including but not limited to equipment or services provided by telephone companies and internet service providers, but not including recorded conversations or images communicated thereby; and
(ii) financial transactions, and a person's ownership or possessory interest in any account, at a bank, insurance company, brokerage, exchange or banking organization as defined in section two of the banking law.
(b) Any business record offered for consideration by a grand jury pursuant to paragraph (a) of this subdivision must be accompanied by a written statement, under oath, that (i) contains a list or description of the records it accompanies, (ii) attests in substance that the person making the statement is a duly authorized custodian of the records or other employee or agent of the business who is familiar with such records, and (iii) attests in substance that such records were made in the regular course of business and that it was the regular course of such business to make such records at the time of the recorded act, transaction, occurrence or event, or within a reasonable time thereafter. Such written statement may also include a statement identifying the name and job description of the person making the statement, specifying the matters set forth in subparagraph (ii) of this paragraph and attesting that the business has made a diligent search and does not possess a particular record or records addressing a matter set forth in paragraph (a) of this subdivision, and such statement may be received at grand jury proceedings as evidence of the fact that the business does not possess such record or records. When records of a business are accompanied by more than one sworn written statement of its employees or agents, such statements may be considered together in determining the admissibility of the records under this subdivision. For the purpose of this subdivision, the term "business records" does not include any records prepared by law enforcement agencies or prepared by any entity in anticipation of litigation.
(c) Any business record offered to a grand jury pursuant to paragraph (a) of this subdivision that includes material beyond that described in such paragraph (a) shall be redacted to exclude such additional material, or received subject to a limiting instruction that the grand jury shall not consider such additional material in support of any criminal charge.
(d) No such records shall be admitted when an adversarial examination of such a records custodian or other employee of such business who was familiar with such records has been previously ordered pursuant to subdivision eight of section 180.60 of this chapter, unless a transcript of such examination is admitted.
(e) Nothing in this subdivision shall affect the admissibility of business records in the grand jury on any basis other than that set forth in this subdivision.
§ 190.32 Videotaped examination; definitions, application, order and procedure.
1. Definitions. As used in this section:
(a) "Child witness" means a person twelve years old or less whom the people intend to call as witness in a grand jury proceeding to give evidence concerning any crime defined in article one hundred thirty or two hundred sixty or section 255.25, 255.26 or 255.27 of the penal law of which the person was a victim.
(b) "Special witness" means a person whom the people intend to call as a witness in a grand jury proceeding and who is either:
(i) Unable to attend and testify in person in the grand jury proceeding because the person is either physically ill or incapacitated; or
(ii) More than twelve years old and who is likely to suffer very severe emotional or mental stress if required to testify in person concerning any crime defined in article one hundred thirty or two hundred sixty or section 255.25, 255.26 or 255.27 of the penal law to which the person was a witness or of which the person was a victim.
(c) "Operator" means a person employed by the district attorney who operates the video camera to record the examination of a child witness or a special witness.
2. In lieu of requiring a witness who is a child witness to appear in person and give evidence in a grand jury proceeding, the district attorney may cause the examination of such witness to be videotaped in accordance with the provisions of subdivision five of this section.
3. Whenever the district attorney has reason to believe that a witness is a special witness, he may make an ex parte application to the court for an order authorizing the videotaping of an examination of such special witness and the subsequent introduction in evidence in a grand jury proceeding of that videotape in lieu of the live testimony of such special witness. The application must be in writing, must state the grounds of the application and must contain sworn allegations of fact, whether of the district attorney or another person or persons, supporting such grounds. Such allegations may be based upon personal knowledge of the deponent or upon information and belief, provided, that in the latter event, the sources of such information and the grounds for such belief are stated.
4. If the court is satisfied that a witness is a special witness, it shall issue an order authorizing the videotaping of such special witness in accordance with the provisions of subdivision five of this section. The court order and the application and all supporting papers shall not be disclosed to any person except upon further court order.
5. The videotaping of an examination either of a child witness or a special witness shall proceed as follows:
(a) An examination of a child witness or a special witness which is to be videotaped pursuant to this section may be conducted anywhere and at any time provided that the operator begins the videotape by recording a statement by the district attorney of the date, time and place of the examination. In addition, the district attorney shall identify himself, the operator and all other persons present.
(b) An accurate clock with a sweep second hand shall be placed next to or behind the witness in such position as to enable the operator to videotape the clock and the witness together during the entire examination. In the alternative, a date and time generator shall be used to superimpose the day, hour, minute and second over the video portion of the recording during the entire examination.
(c) A social worker, rape crisis counselor, psychologist or other professional providing emotional support to a child witness or to a special witness, as defined in subparagraph (ii) of paragraph (b) of subdivision one of this section, or any of those persons enumerated in paragraphs (a), (b), (c), (d), (e), (f) and (g) of subdivision three of section 190.25 may be present during the videotaping except that a doctor, nurse or other medical assistant also may be present if required by the attendant circumstances. Each person present, except the witness, must, if he has not previously taken a constitutional oath of office or an oath that he will keep secret all matters before a grand jury, must take an oath on the record that he will keep secret the videotaped examination.
(d) The district attorney shall state for the record the name of the witness, and the caption and the grand jury number, if any, of the case. If the witness to be examined is a child witness, the date of the witness' birth must be recorded. If the witness to be examined is a special witness, the date of the order authorizing the videotaped examination and the name of the justice who issued the order shall be recorded.
(e) If the witness will give sworn testimony, the administration of the oath must be recorded. If the witness will give unsworn testimony, a statement that the testimony is not under oath must be recorded.
(f) If the examination requires the use of more than one tape, the operator shall record a statement of the district attorney at the end of each tape declaring that such tape has ended and referring to the succeeding tape. At the beginning of such succeeding tape, the operator shall record a statement of the district attorney identifying himself, the witness being examined and the number of tapes which have been used to record the examination of such witness. At the conclusion of the examination the operator shall record a statement of the district attorney certifying that the recording has been completed, the number of tapes on which the recording has been made and that such tapes constitute a complete and accurate record of the examination of the witness.
(g) A videotape of an examination conducted pursuant to this section shall not be edited unless upon further order of the court.
6. When the videotape is introduced in evidence and played in the grand jury, the grand jury stenographer shall record the examination in the same manner as if the witness had testified in person.
7. Custody of the videotape shall be maintained in the same manner as custody of the grand jury minutes.
§ 190.35 Grand jury; definitions of terms.
The term definitions contained in section 50.10 are applicable to sections 190.40, 190.45 and 190.50.
§ 190.40 Grand jury; witnesses, compulsion of evidence and immunity.
1. Every witness in a grand jury proceeding must give any evidence legally requested of him regardless of any protest or belief on his part that it may tend to incriminate him.
2. A witness who gives evidence in a grand jury proceeding receives immunity unless:
(a) He has effectively waived such immunity pursuant to section 190.45; or
(b) Such evidence is not responsive to any inquiry and is gratuitously given or volunteered by the witness with knowledge that it is not responsive.
(c) The evidence given by the witness consists only of books, papers, records or other physical evidence of an enterprise, as defined in subdivision one of section 175.00 of the penal law, the production of which is required by a subpoena duces tecum, and the witness does not possess a privilege against self-incrimination with respect to the production of such evidence. Any further evidence given by the witness entitles the witness to immunity except as provided in subparagraph (a) and (b) of this subdivision.
§ 190.45 Grand jury; waiver of immunity.
1. A waiver of immunity is a written instrument subscribed by a person who is or is about to become a witness in a grand jury proceeding, stipulating that he waives his privilege against self-incrimination and any possible or prospective immunity to which he would otherwise become entitled, pursuant to section 190.40, as a result of giving evidence in such proceeding.
2. A waiver of immunity is not effective unless and until it is sworn to before the grand jury conducting the proceeding in which the subscriber has been called as a witness.
3. A person who is called by the people as a witness in a grand jury proceeding and requested by the district attorney to subscribe and swear to a waiver of immunity before giving evidence has a right to confer with counsel before deciding whether he will comply with such request, and, if he desires to avail himself of such right, he must be accorded a reasonable time in which to obtain and confer with counsel for such purpose. The district attorney must inform the witness of all such rights before obtaining his execution of such a waiver of immunity. Any waiver obtained, subscribed or sworn to in violation of the provisions of this subdivision is invalid and ineffective.
4. If a grand jury witness subscribes and swears to a waiver of immunity upon a written agreement with the district attorney that the interrogation will be limited to certain specified subjects, matters or areas of conduct, and if after the commencement of his testimony he is interrogated and testifies concerning another subject, matter or area of conduct not included in such written agreement, he receives immunity with respect to any further testimony which he may give concerning such other subject, matter or area of conduct and the waiver of immunity is to that extent ineffective.
§ 190.50 Grand jury; who may call witnesses; defendant as witness.
1. Except as provided in this section, no person has a right to call a witness or appear as a witness in a grand jury proceeding.
2. The people may call as a witness in a grand jury proceeding any person believed by the district attorney to possess relevant information or knowledge.
3. The grand jury may cause to be called as a witness any person believed by it to possess relevant information or knowledge. If the grand jury desires to hear any such witness who was not called by the people, it may direct the district attorney to issue and serve a subpoena upon such witness, and the district attorney must comply with such direction. At any time after such a direction, however, or at any time after the service of a subpoena pursuant to such a direction and before the return date thereof, the people may apply to the court which impaneled the grand jury for an order vacating or modifying such direction or subpoena on the ground that such is in the public interest. Upon such application, the court may in its discretion vacate the direction or subpoena, attach reasonable conditions thereto, or make other appropriate qualification thereof.
4. Notwithstanding the provisions of subdivision three, the district attorney may demand that any witness thus called at the instance of the grand jury sign a waiver of immunity pursuant to section 190.45 before being sworn, and upon such demand no oath may be administered to such witness unless and until he complies therewith.
5. Although not called as a witness by the people or at the instance of the grand jury, a person has a right to be a witness in a grand jury proceeding under circumstances prescribed in this subdivision:
(a) When a criminal charge against a person is being or is about to be or has been submitted to a grand jury, such person has a right to appear before such grand jury as a witness in his own behalf if, prior to the filing of any indictment or any direction to file a prosecutor's information in the matter, he serves upon the district attorney of the county a written notice making such request and stating an address to which communications may be sent. The district attorney is not obliged to inform such a person that such a grand jury proceeding against him is pending, in progress or about to occur unless such person is a defendant who has been arraigned in a local criminal court upon a currently undisposed of felony complaint charging an offense which is a subject of the prospective or pending grand jury proceeding. In such case, the district attorney must notify the defendant or his attorney of the prospective or pending grand jury proceeding and accord the defendant a reasonable time to exercise his right to appear as a witness therein;
(b) Upon service upon the district attorney of a notice requesting appearance before a grand jury pursuant to paragraph (a), the district attorney must notify the foreman of the grand jury of such request, and must subsequently serve upon the applicant, at the address specified by him, a notice that he will be heard by the grand jury at a given time and place. Upon appearing at such time and place, and upon signing and submitting to the grand jury a waiver of immunity pursuant to section 190.45, such person must be permitted to testify before the grand jury and to give any relevant and competent evidence concerning the case under consideration. Upon giving such evidence, he is subject to examination by the people.
(c) Any indictment or direction to file a prosecutor's information obtained or filed in violation of the provisions of paragraph (a) or (b) is invalid and, upon a motion made pursuant to section 170.50 or section 210.20, must be dismissed; provided that a motion based upon such ground must be made not more than five days after the defendant has been arraigned upon the indictment or, as the case may be, upon the prosecutor's information resulting from the grand jury's direction to file the same. If the contention is not so asserted in timely fashion, it is waived and the indictment or prosecutor's information may not thereafter be challenged on such ground.
6. A defendant or person against whom a criminal charge is being or is about to be brought in a grand jury proceeding may request the grand jury, either orally or in writing, to cause a person designated by him to be called as a witness in such proceeding. The grand jury may as a matter of discretion grant such request and cause such witness to be called pursuant to subdivision three.
7. Where a subpoena is made pursuant to this section, all papers and proceedings relating to the subpoena and any motion to quash, fix conditions, modify or compel compliance shall be kept secret and not disclosed to the public by any public officer or public employee or any other individual described in section 215.70 of the penal law. This subdivision shall not apply where the person subpoenaed and the prosecutor waive the provisions of this subdivision.
This subdivision shall not prevent the publication of decisions and orders made in connection with such proceedings or motions, provided the caption and content of the decision are written or altered by the court to reasonably preclude identification of the person subpoenaed.
§ 190.52 Grand jury; attorney for witness.
1. Any person who appears as a witness and has signed a waiver of immunity in a grand jury proceeding, has a right to an attorney as provided in this section. Such a witness may appear with a retained attorney, or if he is financially unable to obtain counsel, an attorney who shall be assigned by the superior court which impaneled the grand jury. Such assigned attorney shall be assigned pursuant to the same plan and in the same manner as counsel are provided to persons charged with crime pursuant to section seven hundred twenty-two of the county law.
2. The attorney for such witness may be present with the witness in the grand jury room. The attorney may advise the witness, but may not otherwise take any part in the proceeding.
3. The superior court which impaneled the grand jury shall have the same power to remove an attorney from the grand jury room as such court has with respect to an attorney in a courtroom.
§ 190.55 Grand jury; matters to be heard and examined; duties and authority of district attorney.
1. A grand jury may hear and examine evidence concerning the alleged commission of any offense prosecutable in the courts of the county, and concerning any misconduct, nonfeasance or neglect in public office by a public servant, whether criminal or otherwise.
2. District attorneys are required or authorized to submit evidence to grand juries under the following circumstances:
(a) A district attorney must submit to a grand jury evidence concerning a felony allegedly committed by a defendant who, on the basis of a felony complaint filed with a local criminal court of the county, has been held for the action of a grand jury of such county, except where indictment has been waived by the defendant pursuant to article one hundred ninety-five.
(b) A district attorney must submit to a grand jury evidence concerning a misdemeanor allegedly committed by a defendant who has been charged therewith by a local criminal court accusatory instrument, in any case where a superior court of the county has, pursuant to subdivision one of section 170.25, ordered that such misdemeanor charge be prosecuted by indictment in a superior court.
(c) A district attorney may submit to a grand jury any available evidence concerning an offense prosecutable in the courts of the county, or concerning misconduct, nonfeasance or neglect in public office by a public servant, whether criminal or otherwise.
§ 190.60 Grand jury; action to be taken.
After hearing and examining evidence as prescribed in section 190.55, a grand jury may:
1. Indict a person for an offense, as provided in section 190.65;
2. Direct the district attorney to file a prosecutor's information with a local criminal court, as provided in section 190.70;
3. Direct the district attorney to file a request for removal to the family court, as provided in section 190.71 of this article.
4. Dismiss the charge before it, as provided in section 190.75;
5. Submit a grand jury report, as provided in section 190.85.
§ 190.65 Grand jury; when indictment is authorized.
1. Subject to the rules prescribing the kinds of offenses which may be charged in an indictment, a grand jury may indict a person for an offense when (a) the evidence before it is legally sufficient to establish that such person committed such offense provided, however, such evidence is not legally sufficient when corroboration that would be required, as a matter of law, to sustain a conviction for such offense is absent, and (b) competent and admissible evidence before it provides reasonable cause to believe that such person committed such offense.
2. The offense or offenses for which a grand jury may indict a person in any particular case are not limited to that or those which may have been designated, at the commencement of the grand jury proceeding, to be the subject of the inquiry; and even in a case submitted to it upon a court order, pursuant to the provisions of section 170.25, directing that a misdemeanor charge pending in a local criminal court be prosecuted by indictment, the grand jury may indict the defendant for a felony if the evidence so warrants.
3. Upon voting to indict a person, a grand jury must, through its foreman or acting foreman, file an indictment with the court by which it was impaneled.
§ 190.70 Grand jury; direction to file prosecutor's information and related matters.
1. Except in a case submitted to it pursuant to the provisions of section 170.25, a grand jury may direct the district attorney to file in a local criminal court a prosecutor's information charging a person with an offense other than a felony when (a) the evidence before it is legally sufficient to establish that such person committed such offense, and (b) competent and admissible evidence before it provides reasonable cause to believe that such person committed such offense. In such case, the grand jury must, through its foreman or acting foreman, file such direction with the court by which it was impaneled.
2. Such direction must be signed by the foreman or acting foreman. It must contain a plain and concise statement of the conduct constituting the offense to be charged, equivalent in content and precision to the factual statement required to be contained in an indictment pursuant to subdivision seven of section 200.50. Subject to the rules prescribed in sections 200.20 and 200.40 governing joinder in a single indictment of multiple offenses and multiple defendants, such grand jury direction may, where appropriate, specify multiple offenses of less than felony grade and multiple defendants, and may direct that the prospective prosecutor's information charge a single defendant with multiple offenses, or multiple defendants jointly with either a single offense or multiple offenses.
3. Upon the filing of such grand jury direction, the court must, unless such direction is insufficient on its face, issue an order approving such direction and ordering the district attorney to file such a prosecutor's information in a designated local criminal court having trial jurisdiction of the offense or offenses in question.
§ 190.71 Grand jury; direction to file request for removal to family court.
(a) Except as provided in subdivision six of section 200.20 of this chapter, a grand jury may not indict (i) a person thirteen years of age for any conduct or crime other than conduct constituting a crime defined in subdivisions one and two of section 125.25 (murder in the second degree) or such conduct as a sexually motivated felony, where authorized pursuant to section 130.91 of the penal law; (ii) a person fourteen or fifteen years of age for any conduct or crime other than conduct constituting a crime defined in subdivisions one and two of section 125.25 (murder in the second degree) and in subdivision three of such section provided that the underlying crime for the murder charge is one for which such person is criminally responsible; 135.25 (kidnapping in the first degree); 150.20 (arson in the first degree); subdivisions one and two of section 120.10 (assault in the first degree); 125.20 (manslaughter in the first degree); subdivisions one and two of section 130.35 (rape in the first degree); subdivisions one and two of section 130.50 (criminal sexual act in the first degree); 130.70 (aggravated sexual abuse in the first degree); 140.30 (burglary in the first degree); subdivision one of section 140.25 (burglary in the second degree); 150.15 (arson in the second degree); 160.15 (robbery in the first degree); subdivision two of section 160.10 (robbery in the second degree) of the penal law; subdivision four of section 265.02 of the penal law, where such firearm is possessed on school grounds, as that phrase is defined in subdivision fourteen of section 220.00 of the penal law; or section 265.03 of the penal law, where such machine gun or such firearm is possessed on school grounds, as that phrase is defined in subdivision fourteen of section 220.00 of the penal law; or defined in the penal law as an attempt to commit murder in the second degree or kidnapping in the first degree, or such conduct as a sexually motivated felony, where authorized pursuant to section 130.91 of the penal law.
(b) A grand jury may vote to file a request to remove a charge to the family court if it finds that a person sixteen, or commencing October first, two thousand nineteen, seventeen years of age or younger did an act which, if done by a person over the age of sixteen, or commencing October first, two thousand nineteen, seventeen, would constitute a crime provided (1) such act is one for which it may not indict; (2) it does not indict such person for a crime; and (3) the evidence before it is legally sufficient to establish that such person did such act and competent and admissible evidence before it provides reasonable cause to believe that such person did such act.
(c) Upon voting to remove a charge to the family court pursuant to subdivision (b) of this section, the grand jury must, through its foreman or acting foreman, file a request to transfer such charge to the family court. Such request shall be filed with the court by which it was impaneled. It must (1) allege that a person named therein did any act which, if done by a person over the age of sixteen, would constitute a crime; (2) specify the act and the time and place of its commission; and (3) be signed by the foreman or the acting foreman.
(d) Upon the filing of such grand jury request, the court must, unless such request is improper or insufficient on its face, issue an order approving such request and direct that the charge be removed to the family court in accordance with the provisions of article seven hundred twenty-five of this chapter.
§ 190.75 Grand jury; dismissal of charge.
1. If upon a charge that a designated person committed a crime, either (a) the evidence before the grand jury is not legally sufficient to establish that such person committed such crime or any other offense, or (b) the grand jury is not satisfied that there is reasonable cause to believe that such person committed such crime or any other offense, it must dismiss the charge. In such case, the grand jury must, through its foreman or acting foreman, file its finding of dismissal with the court by which it was impaneled.
2. If the defendant was previously held for the action of the grand jury by a local criminal court, the superior court to which such dismissal is presented must order the defendant released from custody if he is in the custody of the sheriff, or, if he is at liberty on bail, it must exonerate the bail.
3. When a charge has been so dismissed, it may not again be submitted to a grand jury unless the court in its discretion authorizes or directs the people to resubmit such charge to the same or another grand jury. If in such case the charge is again dismissed, it may not again be submitted to a grand jury.
4. Whenever all charges against a designated person have been so dismissed, the district attorney must within ninety days of the filing of the finding of such dismissal, notify that person of the dismissal by regular mail to his last known address unless resubmission has been permitted pursuant to subdivision three of this section or an order of postponement of such service is obtained upon a showing of good cause and exigent circumstances.
§ 190.80 Grand jury; release of defendant upon failure of timely grand jury action.
Upon application of a defendant who on the basis of a felony complaint has been held by a local criminal court for the action of a grand jury, and who, at the time of such order or subsequent thereto, has been committed to the custody of the sheriff pending such grand jury action, and who has been confined in such custody for a period of more than forty-five days, or, in the case of a juvenile offender or adolescent offender, thirty days, without the occurrence of any grand jury action or disposition pursuant to subdivision one, two or three of section 190.60, the superior court by which such grand jury was or is to be impaneled 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.
§ 190.85 Grand jury; grand jury reports.
1. The grand jury may submit to the court by which it was impaneled, a report:
(a) Concerning misconduct, non-feasance or neglect in public office by a public servant as the basis for a recommendation of removal or disciplinary action; or
(b) Stating that after investigation of a public servant it finds no misconduct, non-feasance or neglect in office by him provided that such public servant has requested the submission of such report; or
(c) Proposing recommendations for legislative, executive or administrative action in the public interest based upon stated findings.
2. The court to which such report is submitted shall examine it and the minutes of the grand jury and, except as otherwise provided in subdivision four, shall make an order accepting and filing such report as a public record only if the court is satisfied that it complies with the provisions of subdivision one and that:
(a) The report is based upon facts revealed in the course of an investigation authorized by section 190.55 and is supported by the preponderance of the credible and legally admissible evidence; and
(b) When the report is submitted pursuant to paragraph (a) of subdivision one, that each person named therein was afforded an opportunity to testify before the grand jury prior to the filing of such report, and when the report is submitted pursuant to paragraph (b) or (c) of subdivision one, it is not critical of an identified or identifiable person.
3. The order accepting a report pursuant to paragraph (a) of subdivision one, and the report itself, must be sealed by the court and may not be filed as a public record, or be subject to subpoena or otherwise be made public until at least thirty-one days after a copy of the order and the report are served upon each public servant named therein, or if an appeal is taken pursuant to section 190.90, until the affirmance of the order accepting the report, or until reversal of the order sealing the report, or until dismissal of the appeal of the named public servant by the appellate division, whichever occurs later. Such public servant may file with the clerk of the court an answer to such report, not later than twenty days after service of the order and report upon him. Such an answer shall plainly and concisely state the facts and law constituting the defense of the public servant to the charges in said report, and, except for those parts of the answer which the court may determine to be scandalously or prejudicially and unnecessarily inserted therein, shall become an appendix to the report. Upon the expiration of the time set forth in this subdivision, the district attorney shall deliver a true copy of such report, and the appendix if any, for appropriate action, to each public servant or body having removal or disciplinary authority over each public servant named therein.
4. Upon the submission of a report pursuant to subdivision one, if the court finds that the filing of such report as a public record, may prejudice fair consideration of a pending criminal matter, it must order such report sealed and such report may not be subject to subpoena or public inspection during the pendency of such criminal matter, except upon order of the court.
5. Whenever the court to which a report is submitted pursuant to paragraph (a) of subdivision one is not satisfied that the report complies with the provisions of subdivision two, it may direct that additional testimony be taken before the same grand jury, or it must make an order sealing such report, and the report may not be filed as a public record, or be subject to subpoena or otherwise be made public.
§ 190.90 Grand jury; appeal from order concerning grand jury reports.
1. When a court makes an order accepting a report of a grand jury pursuant to paragraph (a) of subdivision one of section 190.85, any public servant named therein may appeal the order; and when a court makes an order sealing a report of a grand jury pursuant to subdivision five of section 190.85, the district attorney or other attorney designated by the grand jury may appeal the order.
2. When a court makes an order sealing a report of a grand jury pursuant to subdivision five of section 190.85, the district attorney or other attorney designated by the grand jury may, within ten days after service of a copy of the order and report upon each public servant named in the report, appeal the order to the appellate division of the department in which the order was made, by filing in duplicate a notice of appeal from the order with the clerk of the court in which the order was made and by serving a copy of such notice of appeal upon each such public servant. Notwithstanding any contrary provision of section 190.85, a true copy of the report of the grand jury shall be served, together with such notice of appeal, upon each such public servant.
3. The mode of and time for perfecting an appeal pursuant to this section, and the mode of and procedure for the argument thereof, are determined by the rules of the appellate division of the department in which the appeal is brought. Such rules shall prescribe the matters referred to in subdivision one of section 460.70 and in section 460.80, except that such appeal is a preferred cause and the appellate division of each department shall promulgate rules to effectuate such preference.
4. The record and all other presentations on appeal shall remain sealed, except that upon reversal of the order sealing the report or dismissal of the appeal of the named public servant by the appellate division, the report of the grand jury, with the appendix, if any, shall be filed as a public record as provided in subdivision three of section 190.85.
5. The procedure provided for in this section shall be the exclusive manner of reviewing an order made pursuant to section 190.85 and the appellate division of the supreme court shall be the sole court having jurisdiction of such an appeal. The order of the appellate division finally determining such appeal shall not be subject to review in any other court or proceeding.
6. The grand jury in an appeal pursuant to this section shall be represented by the district attorney unless the report relates to him or his office, in which event the grand jury may designate another attorney.
ARTICLE 195 WAIVER OF INDICTMENT
Section 195.10 Waiver of indictment; in general.
195.20 Waiver of indictment; written instrument.
195.30 Waiver of indictment; approval of waiver by the court.
195.40 Waiver of indictment; filing of superior court information.
§ 195.10 Waiver of indictment; in general.
1. A defendant may waive indictment and consent to be prosecuted by superior court information when:
(a) a local criminal court has held the defendant for the action of a grand jury; and
(b) the defendant is not charged with a class A felony punishable by death or life imprisonment; and
(c) the district attorney consents to the waiver.
2. A defendant may waive indictment pursuant to subdivision one in either:
(a) the local criminal court in which the order was issued holding the defendant for action of a grand jury, at the time such order is issued; or
(b) the appropriate superior court, at any time prior to the filing of an indictment by the grand jury.
§ 195.20 Waiver of indictment; written instrument.
A waiver of indictment shall be evidenced by a written instrument, which shall contain the name of the court in which it is executed, the title of the action, and the name, date and approximate time and place of each offense to be charged in the superior court information to be filed by the district attorney pursuant to section 195.40. The offenses named may include any offense for which the defendant was held for action of a grand jury and any offense or offenses properly joinable therewith pursuant to sections 200.20 and 200.40. The written waiver shall also contain a statement by the defendant that he is aware that:
(a) under the constitution of the state of New York he has the right to be prosecuted by indictment filed by a grand jury;
(b) he waives such right and consents to be prosecuted by superior court information to be filed by the district attorney;
(c) the superior court information to be filed by the district attorney will charge the offenses named in the written waiver; and
(d) the superior court information to be filed by the district attorney will have the same force and effect as an indictment filed by a grand jury.
The written waiver shall be signed by the defendant in open court in the presence of his attorney. The consent of the district attorney shall be endorsed thereon.
§ 195.30 Waiver of indictment; approval of waiver by the court.
The court shall determine whether the waiver of indictment complies with the provisions of sections 195.10 and 195.20. If satisfied that the waiver complies with such provisions, the court shall approve the waiver and execute a written order to that effect. When the waiver is approved by a local criminal court, the local criminal court shall promptly transmit to the appropriate superior court the written waiver and order approving the waiver, along with all other documents pertinent to the action. Until such papers are received by the superior court, the action is deemed to be pending in the local criminal court.
§ 195.40 Waiver of indictment; filing of superior court information.
When indictment is waived in a superior court the district attorney shall file a superior court information in such court at the time the waiver is executed. When indictment is waived in a local criminal court the district attorney shall file a superior court information in the appropriate superior court within ten days of the execution of the court order approving the waiver. Upon application of a defendant whose waiver of indictment has been approved by the court, and who, at the time of such approval 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 ten days from the date of approval without the filing by the district attorney of a superior court information, the superior court must release him on his own recognizance unless:
(a) The failure of the district attorney to file a superior court information during such period of confinement was due to 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 the filing of the superior court information within the prescribed period.
ARTICLE 200
INDICTMENT AND RELATED INSTRUMENTS
Section 200.10 Indictment; definition.
200.15 Superior court information; definition.
200.20 Indictment; what offenses may be charged; joinder of offenses and consolidation of indictments.
200.30 Indictment; duplicitous counts prohibited.
200.40 Indictment; joinder of defendants and consolidation of indictments against different defendants.
200.50 Indictment; form and content.
200.60 Indictment; allegations of previous convictions prohibited.
200.61 Indictment; special information for operators of for-hire vehicles.
200.62 Indictment; special information for child sexual assault offender.
200.63 Indictment; special information for aggravated family offense.
200.65 Indictment; special information for enterprise corruption and criminal possession or use of a biological weapon or chemical weapon.
200.70 Indictment; amendment of.
200.80 Indictment; superseding indictments.
200.95 Indictment; bill of particulars.
§ 200.10 Indictment; definition.
An indictment is a written accusation by a grand jury, filed with a superior court, charging a person, or two or more persons jointly, with the commission of a crime, or with the commission of two or more offenses at least one of which is a crime. Except as used in Article 190, the term indictment shall include a superior court information.
§ 200.15 Superior court information; definition.
A superior court information is a written accusation by a district attorney filed in a superior court pursuant to article one hundred ninety-five, charging a person, or two or more persons jointly, with the commission of a crime, or with the commission of two or more offenses, at least one of which is a crime. A superior court information may include any offense for which the defendant was held for action of a grand jury and any offense or offenses properly joinable therewith pursuant to sections 200.20 and 200.40, but shall not include an offense not named in the written waiver of indictment executed pursuant to section 195.20. A superior court information has the same force and effect as an indictment and all procedures and provisions of law applicable to indictments are also applicable to superior court informations, except where otherwise expressly provided.
§ 200.20 Indictment; what offenses may be charged; joinder of offenses and consolidation of indictments.
1. An indictment must charge at least one crime and may, in addition, charge in separate counts one or more other offenses, including petty offenses, provided that all such offenses are joinable pursuant to the principles prescribed in subdivision two.
2. Two offenses are "joinable" when:
(a) They are based upon the same act or upon the same criminal transaction, as that term is defined in subdivision two of section 40.10; or
(b) Even though based upon different criminal transactions, such offenses, or the criminal transactions underlying them, are of such nature that either proof of the first offense would be material and admissible as evidence in chief upon a trial of the second, or proof of the second would be material and admissible as evidence in chief upon a trial of the first; or
(c) Even though based upon different criminal transactions, and even though not joinable pursuant to paragraph (b), such offenses are defined by the same or similar statutory provisions and consequently are the same or similar in law; or
(d) Though not directly joinable with each other pursuant to paragraph (a), (b) or (c), each is so joinable with a third offense contained in the indictment. In such case, each of the three offenses may properly be joined not only with each of the other two but also with any further offense joinable with either of the other two, and the chain of joinder may be further extended accordingly.
3. In any case where two or more offenses or groups of offenses charged in an indictment are based upon different criminal transactions, and where their joinability rests solely upon the fact that such offenses, or as the case may be at least one offense of each group, are the same or similar in law, as prescribed in paragraph (c) of subdivision two, the court, in the interest of justice and for good cause shown, may, upon application of either a defendant or the people, in its discretion, order that any such offenses be tried separately from the other or others thereof. Good cause shall include but not be limited to situations where there is:
(a) Substantially more proof on one or more such joinable offenses than on others and there is a substantial likelihood that the jury would be unable to consider separately the proof as it relates to each offense.
(b) A convincing showing that a defendant has both important testimony to give concerning one count and a genuine need to refrain from testifying on the other, which satisfies the court that the risk of prejudice is substantial.
(i) Good cause, under this paragraph (b), may be established in writing or upon oral representation of counsel on the record. Any written or oral representation may be based upon information and belief, provided the sources of such information and the grounds of such belief are set forth.
(ii) Upon the request of counsel, any written or recorded showing concerning the defendant's genuine need to refrain from testifying shall be ex parte and in camera. The in camera showing shall be sealed but a court for good cause may order unsealing. Any statements made by counsel in the course of an application under this paragraph (b) may not be offered against the defendant in any criminal action for impeachment purposes or otherwise.
4. When two or more indictments against the same defendant or defendants charge different offenses of a kind that are joinable in a single indictment pursuant to subdivision two, the court may, upon application of either the people or a defendant, order that such indictments be consolidated and treated as a single indictment for trial purposes. If such indictments, in addition to charging offenses which are so joinable charge other offenses which are not so joinable, they may nevertheless be consolidated for the limited purpose of jointly trying the joinable offenses. In such case, such indictments remain in existence with respect to any nonjoinable offenses and may be prosecuted accordingly. Nothing herein precludes the consolidation of an indictment with a superior court information.
5. A court's determination of an application for consolidation pursuant to subdivision four is discretionary; except that where an application by the defendant seeks consolidation with respect to offenses which are, pursuant to paragraph (a) of subdivision two, of a kind that are joinable in a single indictment by reason of being based upon the same act or criminal transaction, the court must order such consolidation unless good cause to the contrary be shown.
6. Where an indictment charges at least one offense against a defendant who was under the age of seventeen, or commencing October first, two thousand nineteen, eighteen at the time of the commission of the crime and who did not lack criminal responsibility for such crime by reason of infancy, the indictment may, in addition, charge in separate counts one or more other offenses for which such person would not have been criminally responsible by reason of infancy, if:
(a) the offense for which the defendant is criminally responsible and the one or more other offenses for which he or she would not have been criminally responsible by reason of infancy are based upon the same act or upon the same criminal transaction, as that term is defined in subdivision two of section 40.10 of this chapter; or
(b) the offenses are of such nature that either proof of the first offense would be material and admissible as evidence in chief upon a trial of the second, or proof of the second would be material and admissible as evidence in chief upon a trial of the first.
§ 200.30 Indictment; duplicitous counts prohibited.
1. Each count of an indictment may charge one offense only.
2. For purpose of this section, a statutory provision which defines the offense named in the title thereof by providing, in different subdivisions or paragraphs, different ways in which such named offense may be committed, defines a separate offense in each such subdivision or paragraph, and a count of an indictment charging such named offense which, without specifying or clearly indicating the particular subdivision or paragraph of the statutory provision, alleges facts which would support a conviction under more than one such subdivision or paragraph, charges more than one offense.
§ 200.40 Indictment; joinder of defendants and consolidation of indictments against different defendants.
1. Two or more defendants may be jointly charged in a single indictment provided that:
(a) all such defendants are jointly charged with every offense alleged therein; or
(b) all the offenses charged are based upon a common scheme or plan; or
(c) all the offenses charged are based upon the same criminal transaction as that term is defined in subdivision two of section 40.10; or
(d) if the indictment includes a count charging enterprise corruption:
(i) all the defendants are jointly charged with every count of enterprise corruption alleged therein; and
(ii) every offense, other than a count alleging enterprise corruption, is a criminal act specifically included in the pattern of criminal activity on which the charge or charges of enterprise corruption is or are based; and
(iii) each such defendant could have been jointly charged with at least one of the other defendants, absent an enterprise corruption count, under the provisions of paragraph (a), (b) or (c) of this subdivision, in an accusatory instrument charging at least one such specifically included criminal act. For purposes of this subparagraph, joinder shall not be precluded on the ground that a specifically included criminal act which is necessary to permit joinder is not currently prosecutable, when standing alone, by reason of previous prosecution or lack of geographical jurisdiction.
Even in such case, the court, upon motion of a defendant or the people made within the period provided by section 255.20, may for good cause shown order in its discretion that any defendant be tried separately from the other or from one or more or all of the others. Good cause shall include, but not be limited to, a finding that a defendant or the people will be unduly prejudiced by a joint trial or, in the case of a prosecution involving a charge of enterprise corruption, a finding that proof of one or more criminal acts alleged to have been committed by one defendant but not one or more of the others creates a likelihood that the jury may not be able to consider separately the proof as it relates to each defendant, or in such a case, given the scope of the pattern of criminal activity charged against all the defendants, a particular defendant's comparatively minor role in it creates a likelihood of prejudice to him. Upon such a finding of prejudice, the court may order counts to be tried separately, grant a severance of defendants or provide whatever other relief justice requires.
2. When two or more defendants are charged in separate indictments with an offense or offenses but could have been so charged in a single indictment under subdivision one above, the court may, upon application of the people, order that such indictments be consolidated and the charges be heard in a single trial. If such indictments also charge offenses not properly the subject of a single indictment under subdivision one above, those offenses shall not be consolidated, but shall remain in existence and may be separately prosecuted. Nothing herein precludes the consolidation of an indictment with a superior court information.
§ 200.50 Indictment; form and content.
An indictment must contain:
1. The name of the superior court in which it is filed; and
2. The title of the action and, where the defendant is a juvenile offender, a statement in the title that the defendant is charged as a juvenile offender; and
3. A separate accusation or count addressed to each offense charged, if there be more than one; and
4. A statement in each count that the grand jury, or, where the accusatory instrument is a superior court information, the district attorney, accuses the defendant or defendants of a designated offense, provided that in any prosecution under article four hundred eighty-five of the penal law, the designated offense shall be the specified offense, as defined in subdivision three of section 485.05 of the penal law, followed by the phrase "as a hate crime", and provided further that in any prosecution under section 490.25 of the penal law, the designated offense shall be the specified offense, as defined in subdivision three of section 490.05 of the penal law, followed by the phrase "as a crime of terrorism"; and provided further that in any prosecution under section 130.91 of the penal law, the designated offense shall be the specified offense, as defined in subdivision two of section 130.91 of the penal law, followed by the phrase "as a sexually motivated felony"; and provided further that in any prosecution under section 496.06 of the penal law, the designated offense shall be the specified offense, as defined in subdivision two of such section, followed by the phrase "as a public corruption crime"; and
5. A statement in each count that the offense charged therein was committed in a designated county; and
6. A statement in each count that the offense charged therein was committed on, or on or about, a designated date, or during a designated period of time; and
7. A plain and concise factual statement in each count which, without allegations of an evidentiary nature,
(a) asserts facts supporting every element of the offense charged and the defendant's or defendants' commission thereof with sufficient precision to clearly apprise the defendant or defendants of the conduct which is the subject of the accusation; and
(b) in the case of any armed felony, as defined in subdivision forty-one of section 1.20, states that such offense is an armed felony and specifies the particular implement the defendant or defendants possessed, were armed with, used or displayed or, in the case of an implement displayed, specifies what the implement appeared to be; and
(c) in the case of any hate crime, as defined in section 485.05 of the penal law, specifies, as applicable, that the defendant or defendants intentionally selected the person against whom the offense was committed or intended to be committed; or intentionally committed the act or acts constituting the offense, in whole or in substantial part because of a belief or perception regarding the race, color, national origin, ancestry, gender, gender identity or expression, religion, religious practice, age, disability or sexual orientation of a person; and
(d) in the case of a crime of terrorism, as defined in section 490.25 of the penal law, specifies, as applicable, that the defendant or defendants acted with intent to intimidate or coerce a civilian population, influence the policy of a unit of government by intimidation or coercion, or affect the conduct of a unit of government by murder, assassination or kidnapping; and
(e) in the case of a sexually motivated felony, as defined in section 130.91 of the penal law, asserts facts supporting the allegation that the offense was sexually motivated; and
8. The signature of the foreman or acting foreman of the grand jury, except where the indictment has been ordered reduced pursuant to subdivision one-a of section 210.20 of this chapter or the accusatory instrument is a superior court information; and
9. The signature of the district attorney.
§ 200.60 Indictment; allegations of previous convictions prohibited.
1. When the fact that the defendant has been previously convicted of an offense raises an offense of lower grade to one of higher grade and thereby becomes an element of the latter, an indictment for such higher offense may not allege such previous conviction. If a reference to previous conviction is contained in the statutory name or title of such an offense, such name or title may not be used in the indictment, but an improvised name or title must be used which, by means of the phrase "as a felony" or in some other manner, labels and distinguishes the offense without reference to a previous conviction. This subdivision does not apply to an indictment or a count thereof that charges escape in the second degree pursuant to subdivision two of section 205.10 of the penal law, or escape in the first degree pursuant to section 205.15 thereof.
2. An indictment for such an offense must be accompanied by a special information, filed by the district attorney with the court, charging that the defendant was previously convicted of a specified offense. Except as provided in subdivision three, the people may not refer to such special information during the trial nor adduce any evidence concerning the previous conviction alleged therein.
3. After commencement of the trial and before the close of the people's case, the court, in the absence of the jury, must arraign the defendant upon such special information, and must advise him that he may admit the previous conviction alleged, deny it or remain mute. Depending upon the defendant's response, the trial of the indictment must then proceed as follows:
(a) If the defendant admits the previous conviction, that element of the offense charged in the indictment is deemed established, no evidence in support thereof may be adduced by the people, and the court must submit the case to the jury without reference thereto and as if the fact of such previous conviction were not an element of the offense. The court may not submit to the jury any lesser included offense which is distinguished from the offense charged solely by the fact that a previous conviction is not an element thereof.
(b) If the defendant denies the previous conviction or remains mute, the people may prove that element of the offense charged before the jury as a part of their case. In any prosecution under subparagraph (ix) of paragraph (a) of subdivision one of section 125.27 of the penal law, if the defendant denies the previous murder conviction or remains mute, the people may prove that element of the offense only after the jury has first found the defendant guilty of intentionally causing the death of a person as charged in the indictment, in which case the court shall then permit the people and the defendant to offer evidence and argument consistent with the relevant provisions of section 260.30 of this chapter with respect to the previous murder conviction.
4. Nothing contained in this section precludes the people from proving a prior conviction before a grand jury or relieves them from the obligation or necessity of so doing in order to submit a legally sufficient case.
§ 200.61 Indictment; special information for operators of for-hire vehicles.
1. The provisions of this section shall govern the procedures for determining whether a defendant is eligible to receive the sentence set forth in subdivision one of section 60.07 of the penal law upon conviction of a specified offense as defined in subdivision two of such section 60.07.
2. To receive the sentence set forth in subdivision one of section 60.07 of the penal law, an indictment for such specified offense must be accompanied by a special information, filed by the district attorney with the court, alleging that the victim of such offense was operating a for-hire vehicle in the course of providing for-hire vehicle services at the time of the commission of such offense.
3. Prior to the commencement of the trial, the court, in the absence of the jury, must arraign the defendant upon such special information, and must advise him that he may admit that the alleged victim of such offense was operating a for-hire vehicle in the course of providing for-hire vehicle services at the time of the alleged commission of such offense, deny such allegation or remain mute. Depending upon the defendant's response, the trial of the indictment must proceed as follows:
(a) If the defendant admits that the alleged victim of such specified offense charged was operating a for-hire vehicle in the course of providing for-hire vehicle services at the time of the commission of such alleged offense, such allegation, and only such allegation, shall be deemed established for purposes of eligibility, if the defendant is convicted of the underlying specified offense, for a sentence pursuant to subdivision one of section 60.07 of the penal law.
(b) If the defendant denies such allegation or remains mute, the people may, by proof beyond a reasonable doubt, prove as part of their case before the jury or, where the defendant has waived a jury trial, the court, that the alleged victim of such offense was operating a for-hire vehicle in the course of providing for-hire vehicle services at the time of the commission of the offense.
4. Where a jury, pursuant to paragraph (b) of subdivision three of this section, is charged with determining whether the alleged victim of such specified offense was operating a for-hire vehicle in the course of providing for-hire vehicle services, such jury shall consider and render its verdict on such matter only if it convicts the defendant of such specified offense or specified offenses charged.
5. For purposes of this section, the terms "for-hire vehicle", "for-hire vehicle services" and "specified offense" shall have the meanings set forth in section 60.07 of the penal law.
§ 200.62 Indictment; special information for child sexual assault offender.
1. Whenever a person is charged with the commission or attempted commission of an offense defined in article one hundred thirty of the penal law which constitutes a felony and it appears that the victim of such offense was less than fifteen years old, an indictment for such offense may be accompanied by a special information, filed by the district attorney with the court, alleging that the victim was less than fifteen years old at the time of the commission of the offense; provided, however, that such an information need not be filed when the age of the victim is an element of the offense.
2. Prior to trial, or after the commencement of the trial but before the close of the people's case, the court, in the absence of the jury, must arraign the defendant upon such information and advise him or her that he or she may admit such allegation, deny it or remain mute. Depending upon the defendant's response, the trial of the indictment must proceed as follows:
(a) If the defendant admits that the alleged victim was less than fifteen years old at the time of the commission or attempted commission of the offense, that allegation shall be deemed established for all subsequent purposes, including sentencing pursuant to section 70.07 of the penal law.
(b) If the defendant denies such allegation or remains mute, the people may, by proof beyond a reasonable doubt, prove before the jury or, where the defendant has waived a jury trial, the court, that the alleged victim was less than fifteen years old at the time of the commission or attempted commission of the offense.
(c) Nothing in this subdivision shall prevent the people, in a trial before the court or a jury, from making reference to and introducing evidence of the victim's age.
3. Where a jury, pursuant to paragraph (b) of subdivision two of this section, makes the determination of whether the alleged victim of the offense was less than fifteen years old, such jury shall consider and render its verdict on such issue only after rendering its verdict with regard to the offense.
4. A determination pursuant to this section that the victim was less than fifteen years old at the time of the commission of the offense shall be binding in any future proceeding in which the issue may arise unless the underlying conviction or determination is vacated or reversed.
§ 200.63 Indictment; special information for aggravated family offense.
1. Whenever a person is charged with the commission or attempted commission of an aggravated family offense as defined in section 240.75 of the penal law, an indictment or information for such offense shall be accompanied by a special information, filed by the district attorney with the court, alleging that the defendant was previously convicted of a specified offense as defined in subdivision two of section 240.75 of the penal law, that at the time of the previous offense the defendant and the person against whom the offense was committed were members of the same family or household as defined in subdivision one of section 530.11 of this chapter, and that such previous conviction took place within the time period specified in subdivision one of section 240.75 of the penal law. Except as provided herein, the people may not refer to such special information during trial nor adduce any evidence concerning the allegations therein.
2. Prior to the commencement of the trial, the court, in the absence of the jury, must arraign the defendant upon such information and advise him or her that he or she may admit each such allegation, deny any such allegation or remain mute with respect to any such allegation. Depending upon the defendant's response, the trial of the indictment or information must then proceed as follows:
(a)(i) If the previous conviction is for an aggravated family offense as defined in section 240.75 of the penal law, and the defendant admits the previous conviction or that it took place within the time period specified in subdivision one of section 240.75 of the penal law, such admitted allegation or allegations shall be deemed established for the purposes of the present prosecution, including sentencing pursuant to section 70.00 of the penal law. The court must submit the case to the jury as if such admitted allegation or allegations were not elements of the offense.
(ii) If the defendant denies the previous conviction or remains mute with respect to it, the people may prove, beyond a reasonable doubt, that element of the offense before the jury as a part of their case.
(iii) If the defendant denies that the previous conviction took place within the time period specified in subdivision one of section 240.75 of the penal law, or remains mute with respect to that matter, the people may prove, beyond a reasonable doubt, before the jury as part of their case, that the previous conviction took place within the time period specified.
(b)(i) If the previous conviction is for a specified offense as defined in subdivision two of section 240.75 of the penal law, other than an aggravated family offense, and the defendant admits such previous conviction, that it took place within the time period specified in subdivision one of section 240.75 of the penal law, or that the defendant and the person against whom the offense was committed were members of the same family or household as defined in subdivision one of section 530.11 of this chapter, such admitted allegation or allegations shall be deemed established for the purposes of the present prosecution, including sentencing pursuant to section 70.00 of the penal law. The court must submit the case to the jury as if the admitted allegation or allegations were not elements of the offense.
(ii) If the defendant denies the previous conviction or remains mute with respect to it, the people may prove, beyond a reasonable doubt, that element of the offense before the jury as a part of their case.
(iii) If the defendant denies that the previous conviction took place within the time period specified in subdivision one of section 240.75 of the penal law, or remains mute with respect to that matter, the people may prove, beyond a reasonable doubt, before the jury as part of their case, that the previous conviction took place within the time period specified.
(iv) If the defendant denies that the defendant and the person against whom the previous offense was committed were members of the same family or household as defined in subdivision one of section 530.11 of this chapter, or remains mute with respect to that matter, the people may prove, beyond a reasonable doubt, that element of the offense before the jury as a part of their case.
§ 200.65 Indictment; special information for enterprise corruption and criminal possession or use of a biological weapon or chemical weapon.
When filing an indictment which charges enterprise corruption in violation of article four hundred sixty of the penal law, criminal possession of a chemical weapon or biological weapon in violation of section 490.37, 490.40, or 490.45 of the penal law, or criminal use of a chemical weapon or biological weapon in violation of section 490.47, 490.50, or 490.55 of the penal law, the district attorney must submit a statement to the court attesting that he or she has reviewed the substance of the evidence presented to the grand jury and concurs in the judgment that the charge is consistent with legislative findings in article four hundred sixty or four hundred ninety of the penal law, as applicable. For purposes of this section only, "district attorney" means the district attorney of the county, the attorney general, or the deputy attorney general in charge of the organized crime task force, or where such person is actually absent or disabled, the person authorized to act in his or her stead.
§ 200.70 Indictment; amendment of.
1. At any time before or during trial, the court may, upon application of the people and with notice to the defendant and opportunity to be heard, order the amendment of an indictment with respect to defects, errors or variances from the proof relating to matters of form, time, place, names of persons and the like, when such an amendment does not change the theory or theories of the prosecution as reflected in the evidence before the grand jury which filed such indictment, or otherwise tend to prejudice the defendant on the merits. Where the accusatory instrument is a superior court information, such an amendment may be made when it does not tend to prejudice the defendant on the merits. Upon permitting such an amendment, the court must, upon application of the defendant, order any adjournment of the proceedings which may, by reason of such amendment, be necessary to accord the defendant adequate opportunity to prepare his defense.
2. An indictment may not be amended in any respect which changes the theory or theories of the prosecution as reflected in the evidence before the grand jury which filed it; nor may an indictment or superior court information be amended for the purpose of curing:
(a) A failure thereof to charge or state an offense; or
(b) Legal insufficiency of the factual allegations; or
(c) A misjoinder of offenses; or
(d) A misjoinder of defendants.
§ 200.80 Indictment; superseding indictments.
If at any time before entry of a plea of guilty to an indictment or commencement of a trial thereof another indictment is filed in the same court charging the defendant with an offense charged in the first indictment, the first indictment is, with respect to such offense, superseded by the second and, upon the defendant's arraignment upon the second indictment, the count of the first indictment charging such offense must be dismissed by the court. The first indictment is not, however, superseded with respect to any count contained therein which charges an offense not charged in the second indictment. Nothing herein precludes the filing of a superseding indictment when the first accusatory instrument is a superior court information.
§ 200.95 Indictment; bill of particulars.
1. Definitions. (a) "Bill of particulars" is a written statement by the prosecutor specifying, as required by this section, items of factual information which are not recited in the indictment and which pertain to the offense charged and including the substance of each defendant's conduct encompassed by the charge which the people intend to prove at trial on their direct case, and whether the people intend to prove that the defendant acted as principal or accomplice or both, and items of factual information which are not recited in a special forfeiture information or prosecutor's forfeiture information containing one or more forfeiture counts and which pertain to the substance of each defendant's conduct giving rise to the forfeiture claim, the approximate value of property for which forfeiture is sought, the nature and extent of the defendant's interest in such property, and the extent of the defendant's gain, if any, from the offense charged. However, the prosecutor shall not be required to include in the bill of particulars matters of evidence relating to how the people intend to prove the elements of the offense charged or how the people intend to prove any item of factual information included in the bill of particulars.
(b) "Request for a bill of particulars" is a written request served by defendant upon the people, without leave of the court, requesting a bill of particulars, specifying the items of factual information desired, and alleging that defendant cannot adequately prepare or conduct his defense without the information requested.
2. Bill of particulars upon request. Upon a timely request for a bill of particulars by a defendant against whom an indictment is pending, the prosecutor shall within fifteen days of the service of the request or as soon thereafter as is practicable, serve upon the defendant or his attorney, and file with the court, the bill of particulars, except to the extent the prosecutor shall have refused to comply with the request pursuant to subdivision four of this section.
3. Timeliness of request. A request for a bill of particulars shall be timely if made within thirty days after arraignment and before the commencement of trial. If the defendant is not represented by counsel, and has requested an adjournment to obtain counsel or to have counsel assigned, the thirty day period shall commence, for the purposes of a request for a bill of particulars by the defendant, on the date counsel initially appears on his behalf. However, the court may direct compliance with a request for a bill of particulars that, for good cause shown, could not have been made within the time specified.
4. Request refused. The prosecutor may refuse to comply with the request for a bill of particulars or any portion of the request for a bill of particulars to the extent he reasonably believes that the item of factual information requested is not authorized to be included in a bill of particulars, or that such information is not necessary to enable the defendant adequately to prepare or conduct his defense, or that a protective order would be warranted or that the demand is untimely. Such refusal shall be made in a writing, which shall set forth the grounds of such belief as fully as possible, consistent with the reason for the refusal. Within fifteen days of the request or as soon thereafter as practicable, the refusal shall be served upon the defendant and a copy shall be filed with the court.
5. Court ordered bill of particulars. Where a prosecutor has timely served a written refusal pursuant to subdivision four of this section and upon motion, made in writing, of a defendant, who has made a request for a bill of particulars and whose request has not been complied with in whole or in part, the court must, to the extent a protective order is not warranted, order the prosecutor to comply with the request if it is satisfied that the items of factual information requested are authorized to be included in a bill of particulars, and that such information is necessary to enable the defendant adequately to prepare or conduct his defense and, if the request was untimely, a finding of good cause for the delay. Where a prosecutor has not timely served a written refusal pursuant to subdivision four of this section the court must, unless it is satisfied that the people have shown good cause why such an order should not be issued, issue an order requiring the prosecutor to comply or providing for any other order authorized by section 245.80 of this part.
6. Motion procedure. A motion for a bill of particulars shall be made as prescribed in section 255.20. Upon an order granting a motion pursuant to this section, the prosecutor must file with the court a bill of particulars, reciting every item of information designated in the order, and serve a copy thereof upon the defendant. Pending such filing and service, the proceedings are stayed.
7. Protective order. (a) The court in which the criminal action is pending may, upon motion of the prosecutor, or of any affected person, or upon determination of a motion of defendant for a court ordered bill of particulars, or upon its own initiative, issue a protective order denying, limiting, conditioning, delaying or regulating the bill of particulars for good cause, including constitutional limitations, danger to the integrity of physical evidence or a substantial risk of physical harm, intimidation, economic reprisal, bribery or unjustified annoyance or embarrassment to any person or an adverse effect upon the legitimate needs of law enforcement, including the protection of the confidentiality of informants, or any other factor or set of factors which outweighs the need for the bill of particulars.
(b) An order limiting, conditioning, delaying or regulating the bill of particulars may, among other things, require that any material copied or derived therefrom be maintained in the exclusive possession of the attorney for the defendant and be used for the exclusive purpose of preparing for the defense of the criminal action.
8. Amendment. At any time before commencement of trial, the prosecutor may, without leave of the court, serve upon defendant and file with the court an amended bill of particulars. At any time during trial, upon application of the prosecutor and with notice to the defendant and an opportunity for him to be heard, the court must, upon finding that no undue prejudice will accrue to defendant and that the prosecutor has acted in good faith, permit the prosecutor to amend the bill of particulars. Upon any amendment of the bill of particulars, the court must, upon application of defendant, order an adjournment of the proceedings or any other action it deems appropriate which may, by reason of the amendment, be necessary to accord the defendant an adequate opportunity to defend.
ARTICLE 210--PROCEEDINGS IN SUPERIOR COURT FROM FILING OF INDICTMENT TO PLEA
Section 210.05 Indictment and superior court information exclusive methods of prosecution.
210.10 Requirement of and methods of securing defendant's appearance for arraignment upon indictment.
210.15 Arraignment upon indictment; defendant's rights, court's instructions and bail matters.
210.16 Requirement of HIV related testing in certain cases.
210.20 Motion to dismiss or reduce indictment.
210.25 Motion to dismiss indictment; as defective.
210.30 Motion to dismiss or reduce indictment on ground of insufficiency of grand jury evidence; motion to inspect grand jury minutes.
210.35 Motion to dismiss indictment; defective grand jury proceeding.
210.40 Motion to dismiss indictment; in furtherance of justice.
210.45 Motion to dismiss indictment; procedure.
210.46 Adjournment in contemplation of dismissal in marihuana cases in a superior court.
210.47 Adjournment in contemplation of dismissal in misdemeanor cases in superior court.
210.50 Requirement of plea.
§ 210.05 Indictment and superior court information exclusive methods of prosecution.
The only methods of prosecuting an offense in a superior court are by an indictment filed therewith by a grand jury or by a superior court information filed therewith by a district attorney.
§ 210.10 Requirement of and methods of securing defendant's appearance for arraignment upon indictment.
After an indictment has been filed with a superior court, the defendant must be arraigned thereon. He must appear personally at such arraignment, and his appearance may be secured as follows: 1. If the defendant was previously held by a local criminal court for the action of the grand jury, and if he is confined in the custody of the sheriff pursuant to a previous court order issued in the same criminal action, the superior court must direct the sheriff to produce the defendant for arraignment on a specified date and the sheriff must comply with such direction. The court must give at least two days notice of the time and place of the arraignment to an attorney, if any, who has previously filed a notice of appearance in behalf of the defendant with such superior court, or if no such notice of appearance has been filed, to an attorney, if any, who filed a notice of appearance in behalf of the defendant with the local criminal court.
2. If a felony complaint against the defendant was pending in a local criminal court or if the defendant was previously held by a local criminal court for the action of the grand jury, and if the defendant is at liberty on his or her own recognizance or on bail pursuant to a previous court order issued in the same criminal action, the superior court must, upon at least two days notice to the defendant and his or her surety, to any person other than the defendant who posted cash bail and to any attorney who would be entitled to notice under circumstances prescribed in subdivision one, direct the defendant to appear before the superior court for arraignment on a specified date. If the defendant fails to appear on such date, the court may issue a bench warrant and, in addition, may forfeit the bail, if any. Upon taking the defendant into custody pursuant to such bench warrant, the executing police officer must without unnecessary delay bring the defendant before such superior court for arraignment. If such superior court is not available, the executing police officer may bring the defendant to the local correctional facility of the county in which such superior court sits, to be detained there until not later than the commencement of the next session of such court occurring on the next business day.
3. If the defendant has not previously been held by a local criminal court for the action of the grand jury and the filing of the indictment constituted the commencement of the criminal action, the superior court must order the indictment to be filed as a sealed instrument until the defendant is produced or appears for arraignment, and must issue a superior court warrant of arrest. Upon the request of the district attorney, in lieu of a superior court warrant of arrest, the court may issue a summons if it is satisfied that the defendant will respond thereto. Upon the request of the district attorney, in lieu of a warrant of arrest or summons, the court may instead authorize the district attorney to direct the defendant to appear for arraignment on a designated date if it is satisfied that the defendant will so appear. A superior court warrant of arrest is executable anywhere in the state. Such warrant may be addressed to any police officer whose geographical area of employment embraces either the place where the offense charged was allegedly committed or the locality of the court by which the warrant is issued. It must be executed in the same manner as an ordinary warrant of arrest, as provided in section 120.80, and following the arrest the executing police officer must without unnecessary delay perform all recording, fingerprinting, photographing and other preliminary police duties required in the particular case, and bring the defendant before the superior court. If such superior court is not available, the executing police officer may bring the defendant to the local correctional facility of the county in which such superior court sits, to be detained there until not later than the commencement of the next session of such court occurring on the next business day.
4. A superior court warrant of arrest may be executed by (a) any police officer to whom it is addressed or (b) any other police officer delegated to execute it under circumstances prescribed in subdivisions five and six.
5. The issuing court may authorize the delegation of such warrant. Where the issuing court has so authorized, a police officer to whom a superior court warrant of arrest is addressed may delegate another police officer to whom it is not addressed to execute such warrant as his agent when:
(a) He has reasonable cause to believe that the defendant is in a particular county other than the one in which the warrant is returnable; and
(b) The geographical area of employment of the delegated police officer embraces the locality where the arrest is to be made.
6. Under circumstances specified in subdivision five, the police officer to whom the warrant is addressed may inform the delegated officer, by telecommunication, mail or any other means, of the issuance of the warrant, of the offense charged in the underlying accusatory instrument and of all other pertinent details, and may request such officer to act as his or her agent in arresting the defendant pursuant to such warrant. Upon such request, the delegated police officer is to the same extent as the delegating officer, authorized to make such arrest pursuant to the warrant within the geographical area of such delegated officer's employment. Upon so arresting the defendant, he or she must without unnecessary delay deliver the defendant or cause the defendant to be delivered to the custody of the police officer by whom he or she was so delegated, and the latter must then without unnecessary delay bring the defendant before a court in which such warrant is returnable. If such court is not available, the delegating officer may bring the defendant to the local correctional facility of the county in which such court sits, to be detained there until not later than the commencement of the next session of such court occurring on the next business day.
§ 210.15 Arraignment upon indictment; defendant's rights, court's instructions and bail matters.
1. Upon the defendant's arraignment before a superior court upon an indictment, the court must immediately inform him, or cause him to be informed in its presence, of the charge or charges against him, and the district attorney must cause him to be furnished with a copy of the indictment.
2. The defendant has a right to the aid of counsel at the arraignment and at every subsequent stage of the action, and, if he appears upon such arraignment without counsel, 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 in any case where he is financially unable to obtain the same.
3. The court must inform the defendant of all rights specified in subdivision two. The court must accord the defendant opportunity to exercise such rights and must itself take such affirmative action as is necessary to effectuate them.
5. If the defendant desires to proceed without the aid of counsel, the court must permit him to do so 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. 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 two which are necessary to effectuate it, and that he may exercise such rights at any stage of the action.
6. Upon the arraignment, the court, unless it intends to make a final disposition of the action immediately thereafter, must, as provided in section 530.40, issue a securing order, releasing the defendant on his own recognizance or fixing bail or committing him to the custody of the sheriff for his future appearance in such action.
§ 210.16 Requirement of HIV related testing in certain cases.
1. (a) In a case where an indictment or a superior court information has been filed with a superior court which charges the defendant with a felony offense enumerated in any section of article one hundred thirty of the penal law where an act of "sexual intercourse", "oral sexual conduct" or "anal sexual conduct," as those terms are defined in section 130.00 of the penal law, is required as an essential element for the commission thereof, the court shall, upon a request of the victim within six months of the date of the crimes charged, order that the defendant submit to human immunodeficiency virus (HIV) related testing. Testing of a defendant shall be ordered when the result would provide medical benefit to the victim or a psychological benefit to the victim. Medical benefit shall be found when the following elements are satisfied: (i) a decision is pending about beginning, continuing, or discontinuing a medical intervention for the victim; and (ii) the result of an HIV test of the accused could affect that decision, and could provide relevant information beyond that which would be provided by an HIV test of the victim. If testing the defendant would provide medical benefit to the victim or a psychological benefit to the victim, then the testing is to be conducted by a state, county, or local public health officer designated by the order. Test results, which shall not be disclosed to the court, shall be communicated to the defendant and the victim named in the order in accordance with the provisions of section twenty-seven hundred eighty-five-a of the public health law.
(b) For the purposes of this section, the terms "victim" and "applicant" mean the person with whom the defendant is charged to have engaged in an act of "sexual intercourse", "oral sexual conduct" or "anal sexual conduct", as those terms are defined in section 130.00 of the penal law, where such conduct with such victim was the basis for charging the defendant with an offense specified in paragraph (a) of this subdivision.
2. Any request made by the victim pursuant to this section must be in writing, filed with the court within six months of the date of the crimes charged, and provided by the court to the defendant or his or her counsel. The request must be filed with the court prior to or within forty-eight hours after the indictment or superior court information has been filed with the superior court; provided however that, for good cause shown, the court may permit such request to be filed at a later stage of the action within six months of the date of the crimes charged.
3. At any stage in the action within six months of the date of the crimes charged, prior to the final disposition of the indictment or superior court information and while the defendant is charged with an offense specified in paragraph (a) of subdivision one of this section, the victim may request that the defendant submit to a follow-up HIV related test. Such request must be in writing, filed with the court and provided by the court to the defendant or his or her counsel. Upon a finding that the follow-up HIV related test is medically appropriate the court must order that the defendant submit to such test. The court shall not make such finding of medical appropriateness unless the follow-up HIV related test is to be administered a sufficient time after the charged offense to be consistent with guidelines that may be issued by the commissioner of health. There shall be no more than one follow-up HIV related test absent a showing of extraordinary circumstances.
4. Any requests, related papers and orders made or filed pursuant to this section, together with any papers or proceedings related thereto, shall be sealed by the court and not made available for any purpose, except as may be necessary for the conduct of judicial proceedings directly related to the provisions of this section. All proceedings on such requests shall be held in camera.
5. The application for an order to compel a defendant to undergo an HIV related test may be made by the victim but, if the victim is an infant or incompetent person, the application may also be made by a representative as defined in section twelve hundred one of the civil practice law and rules. The application must state that: (a) the applicant was the victim of the offense enumerated in paragraph (a) of subdivision one of this section of which the defendant is charged; and (b) the applicant has been offered pre-HIV test counseling and post-HIV test counseling by a public health officer in accordance with article twenty-seven-F of the public health law and has been advised, in accordance with any guidelines that may be issued by the commissioner of health, of (i) the limitations on the information to be obtained through an HIV test on the proposed subject; (ii) current scientific assessments of the risk of transmission of HIV from the exposure he or she may have experienced; and (iii) the need for the applicant to undergo HIV related testing to definitively determine his or her HIV status.
6. The court shall conduct a hearing only if necessary to determine if the applicant is the victim of the offense of which the defendant is charged or to determine whether a follow-up test is medically appropriate. The court ordered test must be performed within forty-eight hours of the date on which the court ordered the test, provided, however, that whenever the defendant is not tested within the period prescribed by the court, the court must again order that the defendant undergo an HIV related test. The defendant shall be advised of information as to HIV testing and medical treatment in accordance with any guidelines that may be issued by the commissioner of health.
7. (a) Test results shall be disclosed subject to the following limitations, which shall be specified in any order issued pursuant to this section:
(i) disclosure of confidential HIV related information shall be limited to that information which is necessary to fulfill the purpose for which the order is granted; and
(ii) disclosure of confidential HIV related information shall be made to the defendant upon his or her request, and disclosure to a person other than the defendant shall be limited to the person making the application; redisclosure shall be permitted only to the victim, the victim's immediate family, guardian, physicians, attorneys, medical or mental health providers and to his or her past and future contacts to whom there was or is a reasonable risk of HIV transmission and shall not be permitted to any other person or the court.
(b) Unless inconsistent with this section, the court's order shall direct compliance with and conform to the provisions of article twenty-seven-F of the public health law. Such order shall include measures to protect against disclosure to others of the identity and HIV status of the applicant and of the person tested and may include such other measures as the court deems necessary to protect confidential information.
8. Any failure to comply with the provisions of this section or section twenty-seven hundred eighty-five-a of the public health law shall not impair or affect the validity of any proceeding upon the indictment or superior court information.
9. No information obtained as a result of a consent, hearing or court order for testing issued pursuant to this section nor any information derived therefrom may be used as evidence in any criminal or civil proceeding against the defendant which relates to events that were the basis for charging the defendant with an offense enumerated in paragraph (a) of subdivision one of this section, provided however that nothing in this section shall prevent prosecution of a witness testifying in any court hearing held pursuant to this section for perjury pursuant to article two hundred ten of the penal law.
§ 210.20 Motion to dismiss or reduce indictment.
1. After arraignment upon an indictment, the superior court may, upon motion of the defendant, dismiss such indictment or any count thereof upon the ground that:
(a) Such indictment or count is defective, within the meaning of section 210.25; or
(b) The evidence before the grand jury was not legally sufficient to establish the offense charged or any lesser included offense; or
(c) The grand jury proceeding was defective, within the meaning of section 210.35; or
(d) The defendant has immunity with respect to the offense charged, pursuant to section 50.20 or 190.40; or
(e) The prosecution is barred by reason of a previous prosecution, pursuant to section 40.20; or
(f) The prosecution is untimely, pursuant to section 30.10; or
(g) The defendant has been denied the right to a speedy trial; or
(h) There exists some other jurisdictional or legal impediment to conviction of the defendant for the offense charged; or
(i) Dismissal is required in the interest of justice, pursuant to section 210.40.
1-a. After arraignment upon an indictment, if the superior court, upon motion of the defendant pursuant to this subdivision or paragraph b of subdivision one of this section challenging the legal sufficiency of the evidence before the grand jury, finds that the evidence before the grand jury was not legally sufficient to establish the commission by the defendant of the offense charged in any count contained within the indictment, but was legally sufficient to establish the commission of a lesser included offense, it shall order the count or counts of the indictment with respect to which the finding is made reduced to allege the most serious lesser included offense with respect to which the evidence before the grand jury was sufficient, except that where the most serious lesser included offense thus found is a petty offense, and the court does not find evidence of the commission of any crime in any other count of the indictment, it shall order the indictment dismissed and a prosecutor's information charging the petty offense filed in the appropriate local criminal court. The motion to dismiss or reduce any count of an indictment based on legal insufficiency to establish the offense charged shall be made in accordance with the procedure set forth in subdivisions one through seven of section 210.45, provided however, the court shall state on the record the basis for its determination. Upon entering an order pursuant to this subdivision, the court shall consider the appropriateness of any securing order issued pursuant to article 510 of this chapter.
2. A motion pursuant to this section, except a motion pursuant to paragraph (g) of subdivision one, should be made within the period provided in section 255.20. A motion made pursuant to paragraph (g) of subdivision one must 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 indictment. A subsequent motion based upon any such 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. Upon dismissing an indictment or a count thereof upon any of the grounds specified in paragraphs (a), (b), (c) and (i) of subdivision one, or, upon dismissing a superior court information or a count thereof upon any of the grounds specified in paragraphs (a) or (i) of subdivision one, the court may, upon application of the people, in its discretion authorize the people to submit the charge or charges to the same or another grand jury. When the dismissal is based upon some other ground, such authorization may not be granted. In the absence of authorization to submit or resubmit, the order of dismissal constitutes a bar to any further prosecution of such charge or charges, by indictment or otherwise, in any criminal court within the county.
5. If the court dismisses one or more counts of an indictment, against a defendant who was under the age of sixteen at the time of the commission of the crime and who did not lack criminal responsibility for such crime by reason of infancy, and one or more other counts of the indictment having been joined in the indictment solely with the dismissed count pursuant to subdivision six of section 200.20 is not dismissed, the court must direct that such count be removed to the family court in accordance with article seven hundred twenty-five of this chapter.
6. The effectiveness of an order reducing a count or counts of an indictment or dismissing an indictment and directing the filing of a prosecutor's information or dismissing a count or counts of an indictment charging murder in the first degree shall be stayed for thirty days following the entry of such order unless such stay is otherwise waived by the people. On or before the conclusion of such thirty-day period, the people shall exercise one of the following options:
(a) Accept the court's order by filing a reduced indictment, by dismissing the indictment and filing a prosecutor's information, or by filing an indictment containing any count or counts remaining after dismissal of the count or counts charging murder in the first degree, as appropriate;
(b) Resubmit the subject count or counts to the same or a different grand jury within thirty days of the entry of the order or such additional time as the court may permit upon a showing of good cause; provided, however, that if in such case an order is again entered with respect to such count or counts pursuant to subdivision one-a of this section, such count or counts may not again be submitted to a grand jury. Where the people exercise this option, the effectiveness of the order further shall be stayed pending a determination by the grand jury and the filing of a new indictment, if voted, charging the resubmitted count or counts;
(c) Appeal the order pursuant to subdivision one or one-a of section 450.20. Where the people exercise this option, the effectiveness of the order further shall be stayed in accordance with the provisions of subdivision two of section 460.40.
If the people fail to exercise one of the foregoing options, the court's order shall take effect and the people shall comply with paragraph (a) of this subdivision.
§ 210.25 Motion to dismiss indictment; as defective.
An indictment or a count thereof is defective within the meaning of paragraph (a) of subdivision one of section 210.20 when:
1. It does not substantially conform to the requirements stated in article two hundred; provided that an indictment 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, pursuant to section 200.70, and where the people move to so amend; or
2. The allegations demonstrate that the court does not have jurisdiction of the offense charged; or
3. The statute defining the offense charged is unconstitutional or otherwise invalid.
§ 210.30 Motion to dismiss or reduce indictment on ground of insufficiency of grand jury evidence; motion to inspect grand jury minutes.
1. A motion to dismiss an indictment or a count thereof pursuant to paragraph (b) of subdivision one of section 210.20 or a motion to reduce a count or counts of an indictment pursuant to subdivision one-a of section 210.20 must be preceded or accompanied by a motion to inspect the grand jury minutes, as prescribed in subdivision two of this section.
2. A motion to inspect grand jury minutes is a motion by a defendant requesting an examination by the court and the defendant of the stenographic minutes of a grand jury proceeding resulting in an indictment for the purpose of determining whether the evidence before the grand jury was legally sufficient to support the charges or a charge contained in such indictment.
3. Unless good cause exists to deny the motion to inspect the grand jury minutes, the court must grant the motion. It must then proceed to examine the minutes and to determine the motion to dismiss or reduce the indictment. If the court, after examining the minutes, finds that release of the minutes, or certain portions thereof, to the parties is necessary to assist the court in making its determination on the motion, it may release the minutes or such portions thereof to the parties. Provided, however, such release shall be limited to that grand jury testimony which is relevant to a determination of whether the evidence before the grand jury was legally sufficient to support a charge or charges contained in such indictment. Prior to such release the district attorney shall be given an opportunity to present argument to the court that the release of the minutes, or any portion thereof, would not be in the public interest. For purposes of this section, the minutes shall include any materials submitted to the grand jury pursuant to subdivision eight of section 190.30 of this chapter.
4. If the court determines that there is not reasonable cause to believe that the evidence before the grand jury may have been legally insufficient, it may in its discretion either (a) deny both the motion to inspect and the motion to dismiss or reduce, or (b) grant the motion to inspect notwithstanding and proceed to examine the minutes and to determine the motion to dismiss or reduce.
5. In any case, the court must place on the record its ruling upon the motion to inspect.
6. The validity of an order denying any motion made pursuant to this section is not reviewable upon an appeal from an ensuing judgment of conviction based upon legally sufficient trial evidence.
7. Notwithstanding any other provision of law, where the indictment is filed against a juvenile offender or adolescent offender, the court shall dismiss the indictment or count thereof where the evidence before the grand jury was not legally sufficient to establish the offense charged or any lesser included offense for which the defendant is criminally responsible. Upon such dismissal, unless the court shall authorize the people to resubmit the charge to a subsequent grand jury, and upon a finding that there was sufficient evidence to believe defendant is a juvenile delinquent as defined in subdivision (a) of section seven hundred twelve of the family court act and upon specifying the act or acts it found sufficient evidence to believe defendant committed, the court may direct that such matter be removed to family court in accordance with the provisions of article seven hundred twenty-five of this chapter.
§ 210.35 Motion to dismiss indictment; defective grand jury proceeding.
A grand jury proceeding is defective within the meaning of paragraph (c) of subdivision one of section 210.20 when:
1. The grand jury was illegally constituted; or
2. The proceeding is conducted before fewer than sixteen grand jurors; or
3. Fewer than twelve grand jurors concur in the finding of the indictment; or
4. The defendant is not accorded an opportunity to appear and testify before the grand jury in accordance with the provisions of section 190.50; or
5. The proceeding otherwise fails to conform to the requirements of article one hundred ninety to such degree that the integrity thereof is impaired and prejudice to the defendant may result.
§ 210.40 Motion to dismiss indictment; in furtherance of justice.
1. An indictment or any count thereof may be dismissed in furtherance of justice, as provided in paragraph (i) of subdivision one of section 210.20, when, even though there may be no basis for dismissal as a matter of law upon any ground specified in paragraphs (a) through (h) of said subdivision one of section 210.20, 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 indictment 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 upon the confidence of the public in the criminal justice system;
(h) the impact of a dismissal on the safety or welfare of the community;
(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. In addition to the grounds specified in subdivision one of this section, a count alleging enterprise corruption in violation of article four hundred sixty of the penal law may be dismissed in the interest of justice where prosecution of that count is inconsistent with the stated legislative findings in said article. Upon a motion pursuant to this section, the court must inspect the evidence before the grand jury and such other evidence or information as it may deem proper.
3. An order dismissing an indictment 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.
§ 210.45 Motion to dismiss indictment; procedure.
1. A motion to dismiss an indictment pursuant to section 210.20 must be made in writing and upon reasonable notice to the people. If the motion is based upon the existence or occurrence of facts, the motion papers must contain sworn allegations thereof, whether by the defendant or by another person or persons. Such sworn allegations may be based upon personal knowledge of the affiant or upon information and belief, provided that in the latter event the affiant must state the sources of such information and the grounds of such belief. The defendant may further submit documentary evidence supporting or tending to support the allegations of the moving papers.
2. The people may file with the court, and in such case must serve a copy thereof upon the defendant or his counsel, an answer denying or admitting any or all of the allegations of the moving papers, and may further submit documentary evidence refuting or tending to refute such allegations.
3. After all papers of both parties have been filed, and after all documentary evidence, if any, has been submitted, the court must consider the same for the purpose of determining whether the motion is determinable without a hearing to resolve questions of fact.
4. The court must grant the motion without conducting a hearing if:
(a) The moving papers allege a ground constituting legal basis for the motion pursuant to subdivision one of section 210.20; and
(b) Such ground, if based upon the existence or occurrence of facts, is supported by sworn allegations of all facts essential to support the motion; and
(c) The sworn allegations of fact essential to support the motion are either conceded by the people to be true or are conclusively substantiated by unquestionable documentary proof.
5. The court may deny the motion without conducting a hearing if:
(a) The moving papers do not allege any ground constituting legal basis for the motion pursuant to subdivision one of section 210.20; or
(b) The motion is based upon the existence or occurrence of facts, and the moving papers do not contain sworn allegations supporting all the essential facts; or
(c) An allegation of fact essential to support the motion is conclusively refuted by unquestionable documentary proof.
6. If the court does not determine the motion pursuant to subdivision four or five, it must conduct a hearing and make findings of fact essential to the determination thereof. The defendant has a right to be present in person at such hearing but may waive such right.
7. Upon such a hearing, the defendant has the burden of proving by a preponderance of the evidence every fact essential to support the motion.
8. When the court dismisses the entire indictment without authorizing resubmission of the charge or charges to a grand jury, it must order that the defendant be discharged from custody if he is in the custody of the sheriff, or if he is at liberty on bail it must exonerate the bail.
9. When the court dismisses the entire indictment but authorizes resubmission of the charge or charges to a grand jury, such authorization is, for purposes of this subdivision, deemed to constitute an order holding the defendant for the action of a grand jury with respect to such charge or charges. Such order must be accompanied by a securing order either releasing the defendant on his own recognizance or fixing bail or committing him to the custody of the sheriff pending resubmission of the case to the grand jury and the grand jury's disposition thereof. Such securing order remains in effect until the first to occur of any of the following:
(a) A statement to the court by the people that they do not intend to resubmit the case to a grand jury;
(b) Arraignment of the defendant upon an indictment or prosecutor's information filed as a result of resubmission of the case to a grand jury. Upon such arraignment, the arraigning court must issue a new securing order;
(c) The filing with the court of a grand jury dismissal of the case following resubmission thereof;
(d) The expiration of a period of forty-five days from the date of issuance of the order; provided that such period may, for good cause shown, be extended by the court to a designated subsequent date if such be necessary to accord the people reasonable opportunity to resubmit the case to a grand jury.
Upon the termination of the effectiveness of the securing order pursuant to paragraph (a), (c) or (d), the court must immediately order that the defendant be discharged from custody if he is in the custody of the sheriff, or if he is at liberty on bail it must exonerate the bail. Although expiration of the period of time specified in paragraph (d) without any resubmission or grand jury disposition of the case terminates the effectiveness of the securing order, it does not terminate the effectiveness of the order authorizing resubmission.
§ 210.46 Adjournment in contemplation of dismissal in marihuana cases in a superior court.
Upon or after arraignment in a superior court upon an indictment 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 may dismiss the indictment in furtherance of justice, in accordance with the provisions of section 170.56 of this chapter.
§ 210.47 Adjournment in contemplation of dismissal in misdemeanor cases in superior court.
Upon or after the arraignment in a superior court upon an indictment where the sole remaining count or counts charge a misdemeanor offense, and before the entry of a plea of guilty thereto or commencement of a trial thereof, the court, 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, may order that all proceedings be suspended and the action adjourned in contemplation of dismissal, in accordance with the provisions of section 170.55 of this chapter.
§ 210.50 Requirement of plea.
Unless an indictment is dismissed or the criminal action thereon terminated or abated pursuant to the provisions of this article or some other provision of law, the defendant must be required to enter a plea thereto.
ARTICLE 215
ADJOURNMENT IN CONTEMPLATION OF DISMISSAL FOR PURPOSES OF REFERRING SELECTED FELONIES TO DISPUTE RESOLUTION
Section 215.10 Referral of selected felonies to dispute resolution.
215.20 Victim; definition.
215.30 Adjournment in contemplation of dismissal; restoration to calendar; dismissal of action.
215.40 Dismissal of action; effect thereof; records.
§ 215.10 Referral of selected felonies to dispute resolution.
Upon or after arraignment in a local criminal court upon a felony complaint, or upon or after arraignment in a superior court upon an indictment or superior court information, and before final disposition thereof, the court, with the consent of the people and of the defendant, and with reasonable notice to the victim and an opportunity for the victim to be heard, may order that the action be adjourned in contemplation of dismissal, for the purpose of referring the action to a community dispute center established pursuant to article twenty-one-A of the judiciary law. Provided, however, that the court may not order any action adjourned in contemplation of dismissal if the defendant is charged therein with: (i) a class A felony, or (ii) a violent felony offense as defined in section 70.02 of the penal law, or (iii) any drug offense as defined in article two hundred twenty of the penal law, or (iv) a felony upon the conviction of which defendant must be sentenced as a second felony offender, a second violent felony offender, or a persistent violent felony offender pursuant to sections 70.06, 70.04 and 70.08 of the penal law, or a felony upon the conviction of which defendant may be sentenced as a persistent felony offender pursuant to section 70.10 of such law.
§ 215.20 Victim; definition.
For purposes of section 215.10 of this article, "victim" means any person alleged to have sustained physical or financial injury to person or property as a direct result of the crime or crimes charged in a felony complaint, superior court information, or indictment.
§ 215.30 Adjournment in contemplation of dismissal; restoration to calendar; dismissal of action.
Upon issuing an order adjourning an action in contemplation of dismissal pursuant to section 215.10 of this article, the court must release the defendant on his own recognizance and refer the action to a dispute resolution center established pursuant to article twenty-one-A of the judiciary law. No later than forty-five days after an action has been referred to a dispute resolution center, such center must advise the district attorney as to whether the charges against defendant have been resolved. Thereafter, if defendant has agreed to pay a fine, restitution or reparation, the district attorney must be advised every thirty days as to the status of such fine, restitution or reparation. Upon application of the people, made at any time not more than six months after the issuance of an order adjourning an action in contemplation of dismissal, the court may restore the action 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. Notwithstanding the foregoing, where defendant has agreed to pay a fine, restitution, or reparation, but has not paid such fine, restitution or reparation, upon application of the people, made at any time not more than one year after the issuance of an order adjourning an action in contemplation of dismissal, the court may restore the action to the calendar upon a determination that defendant has failed to pay such fine, restitution, or reparation, and the action must thereupon proceed.
§ 215.40 Dismissal of action; effect thereof; records.
If an action has not been restored to the calendar within six months, or where the defendant has agreed to pay a fine, restitution or reparation but has not paid such fine, restitution or reparation, within one year, of the issuance of an order adjourning the action in contemplation of dismissal, the accusatory instrument shall be deemed to have been dismissed by the court in furtherance of justice at the expiration of such six month or one year period, as the case may be. Upon dismissal of an action, the arrest and prosecution shall be deemed a nullity, and defendant shall be restored to the status he or she occupied before his or her arrest and prosecution. All papers and records relating to an action that has been dismissed pursuant to this section shall be subject to the sealing provisions of section 160.50 of this chapter.
ARTICLE 216
JUDICIAL DIVERSION PROGRAM FOR CERTAIN FELONY OFFENDERS
Section 216.00 Definitions.
216.05 Judicial diversion program; court procedures.
§ 216.00 Definitions.
The following definitions are applicable to this article:
1. * "Eligible defendant" means any person who stands charged in an indictment or a superior court information with a class B, C, D or E felony offense defined in article one hundred seventy-nine, two hundred twenty or two hundred twenty-two of the penal law, an offense defined in sections 105.10 and 105.13 of the penal law provided that the underlying crime for the conspiracy charge is a class B, C, D or E felony offense defined in article one hundred seventy-nine, two hundred twenty or two hundred twenty-two of the penal law, auto stripping in the second degree as defined in section 165.10 of the penal law, auto stripping in the first degree as defined in section 165.11 of the penal law, identity theft in the second degree as defined in section 190.79 of the penal law, identity theft in the first degree as defined in section 190.80 of the penal law, or any other specified offense as defined in subdivision five of section 410.91 of this chapter, provided, however, a defendant is not an "eligible defendant" if he or she:
* NB Effective until July 5, 2028
* "Eligible defendant" means any person who stands charged in an indictment or a superior court information with a class B, C, D or E felony offense defined in article two hundred twenty or two hundred twenty-two of the penal law, an offense defined in sections 105.10 and 105.13 of the penal law provided that the underlying crime for the conspiracy charge is a class B, C, D or E felony offense defined in article two hundred twenty or two hundred twenty-two of the penal law, auto stripping in the second degree as defined in section 165.10 of the penal law, auto stripping in the first degree as defined in section 165.11 of the penal law, identity theft in the second degree as defined in section 190.79 of the penal law, identity theft in the first degree as defined in section 190.80 of the penal law, or any other specified offense as defined in subdivision five of section 410.91 of this chapter, provided, however, a defendant is not an "eligible defendant" if he or she:
* NB Effective July 5, 2028
(a) within the preceding ten years, excluding any time during which the offender was incarcerated for any reason between the time of commission of the previous felony and the time of commission of the present felony, has previously been convicted of: (i) a violent felony offense as defined in section 70.02 of the penal law or (ii) any other offense for which a merit time allowance is not available pursuant to subparagraph (ii) of paragraph (d) of subdivision one of section eight hundred three of the correction law, or (iii) a class A felony offense defined in article two hundred twenty of the penal law; or
(b) has previously been adjudicated a second violent felony offender pursuant to section 70.04 of the penal law or a persistent violent felony offender pursuant to section 70.08 of the penal law.
A defendant who also stands charged with a violent felony offense as defined in section 70.02 of the penal law or an offense for which merit time allowance is not available pursuant to subparagraph (ii) of paragraph (d) of subdivision one of section eight hundred three of the correction law for which the court must, upon the defendant's conviction thereof, sentence the defendant to incarceration in state prison is not an eligible defendant while such charges are pending. A defendant who is excluded from the judicial diversion program pursuant to this paragraph or paragraph (a) or (b) of this subdivision may become an eligible defendant upon the prosecutor's consent.
2. "Alcohol and substance use evaluation" means a written assessment and report by a court-approved entity or licensed health care professional experienced in the treatment of alcohol and substance use disorder, or by an addiction and substance abuse counselor credentialed by the office of addiction services and supports pursuant to section 19.07 of the mental hygiene law, which shall include:
(a) an evaluation as to whether the defendant has a history of alcohol or substance use disorder, as such terms are defined in the diagnostic and statistical manual of mental disorders, fifth edition, and a co-occurring mental disorder or mental illness and the relationship between such use and mental disorder or mental illness, if any;
(b) a recommendation as to whether the defendant's alcohol or substance use, if any, could be effectively addressed by judicial diversion in accordance with this article;
(c) a recommendation as to the treatment modality, level of care and length of any proposed treatment to effectively address the defendant's alcohol or substance use and any co-occurring mental disorder or illness; and
(d) any other information, factor, circumstance, or recommendation deemed relevant by the assessing entity or specifically requested by the court.
§ 216.05 Judicial diversion program; court procedures.
1. At any time after the arraignment of an eligible defendant, but prior to the entry of a plea of guilty or the commencement of trial, the court at the request of the eligible defendant, may order an alcohol and substance use evaluation. An eligible defendant may decline to participate in such an evaluation at any time. The defendant shall provide a written authorization, in compliance with the requirements of any applicable state or federal laws, rules or regulations authorizing disclosure of the results of the assessment to the defendant's attorney, the prosecutor, the local probation department, the court, authorized court personnel and other individuals specified in such authorization for the sole purpose of determining whether the defendant should be offered judicial diversion for treatment for substance use, alcohol use and any co-occurring mental disorder or mental illness.
2. Upon receipt of the completed alcohol and substance use evaluation report, the court shall provide a copy of the report to the eligible defendant and the prosecutor.
3. (a) Upon receipt of the evaluation report either party may request a hearing on the issue of whether the eligible defendant should be offered alcohol or substance use treatment pursuant to this article. At such a proceeding, which shall be held as soon as practicable so as to facilitate early intervention in the event that the defendant is found to need alcohol or substance use treatment, the court may consider oral and written arguments, may take testimony from witnesses offered by either party, and may consider any relevant evidence including, but not limited to, evidence that:
(i) the defendant had within the preceding ten years (excluding any time during which the offender was incarcerated for any reason between the time of the acts that led to the youthful offender adjudication and the time of commission of the present offense) been adjudicated a youthful offender for: (A) a violent felony offense as defined in section 70.02 of the penal law; or (B) any offense for which a merit time allowance is not available pursuant to subparagraph (ii) of paragraph (d) of subdivision one of section eight hundred three of the correction law; and
(ii) in the case of a felony offense defined in subdivision five of section 410.91 of this chapter, or section 165.10, 165.11, 190.79 or 190.80 of the penal law, any statement of or submitted by the victim, as defined in paragraph (a) of subdivision two of section 380.50 of this chapter.
(b) Upon completion of such a proceeding, the court shall consider and make findings of fact with respect to whether:
(i) the defendant is an eligible defendant as defined in subdivision one of section 216.00 of this article;
(ii) the defendant has a history of alcohol or substance use;
(iii) such alcohol or substance use is a contributing factor to the defendant's criminal behavior;
(iv) the defendant's participation in judicial diversion could effectively address such use; and
(v) institutional confinement of the defendant is or may not be necessary for the protection of the public.
4. When an authorized court determines, pursuant to paragraph (b) of subdivision three of this section, that an eligible defendant should be offered alcohol or substance use treatment, or when the parties and the court agree to an eligible defendant's participation in alcohol or substance use treatment, an eligible defendant may be allowed to participate in the judicial diversion program offered by this article. Prior to the court's issuing an order granting judicial diversion, the eligible defendant shall be required to enter a plea of guilty to the charge or charges; provided, however, that no such guilty plea shall be required when:
(a) the people and the court consent to the entry of such an order without a plea of guilty; or
(b) based on a finding of exceptional circumstances, the court determines that a plea of guilty shall not be required. For purposes of this subdivision, exceptional circumstances exist when, regardless of the ultimate disposition of the case, the entry of a plea of guilty is likely to result in severe collateral consequences.
5. The defendant shall agree on the record or in writing to abide by the release conditions set by the court, which, shall include: participation in a specified period of alcohol or substance use treatment at a specified program or programs identified by the court, which may include periods of detoxification, residential or outpatient treatment, or both, as determined after taking into account the views of the health care professional who conducted the alcohol and substance use evaluation and any health care professionals responsible for providing such treatment or monitoring the defendant's progress in such treatment; and may include: (i) periodic court appearances, which may include periodic urinalysis; (ii) a requirement that the defendant refrain from engaging in criminal behaviors; (iii) if the defendant needs treatment for opioid use, that he or she may participate in and receive medically prescribed drug treatments under the care of a health care professional licensed or certified under title eight of the education law, acting within his or her lawful scope of practice, provided that no court shall require the use of any specified type or brand of drug during the course of medically prescribed drug treatments.
6. Upon an eligible defendant's agreement to abide by the conditions set by the court, the court shall issue a securing order providing for bail or release on the defendant's own recognizance and conditioning any release upon the agreed upon conditions. The period of alcohol or substance use treatment shall begin as specified by the court and as soon as practicable after the defendant's release, taking into account the availability of treatment, so as to facilitate early intervention with respect to the defendant's substance use or condition and the effectiveness of the treatment program. In the event that a treatment program is not immediately available or becomes unavailable during the course of the defendant's participation in the judicial diversion program, the court may release the defendant pursuant to the securing order.
7. When participating in judicial diversion treatment pursuant to this article, any resident of this state who is covered under a private health insurance policy or contract issued for delivery in this state pursuant to article thirty-two, forty-three or forty-seven of the insurance law or article forty-four of the public health law, or who is covered by a self-funded plan which provides coverage for the diagnosis and treatment of chemical abuse and chemical dependence however defined in such policy; shall first seek reimbursement for such treatment in accordance with the provisions of such policy or contract.
8. During the period of a defendant's participation in the judicial diversion program, the court shall retain jurisdiction of the defendant, provided, however, that the court may allow such defendant to (i) reside in another jurisdiction, or (ii) participate in alcohol and substance use treatment and other programs in the jurisdiction where the defendant resides or in any other jurisdiction, while participating in a judicial diversion program under conditions set by the court and agreed to by the defendant pursuant to subdivisions five and six of this section. The court may require the defendant to appear in court at any time to enable the court to monitor the defendant's progress in alcohol or substance use treatment. The court shall provide notice, reasonable under the circumstances, to the people, the treatment provider, the defendant and the defendant's counsel whenever it orders or otherwise requires the appearance of the defendant in court. Failure to appear as required without reasonable cause therefor shall constitute a violation of the conditions of the court's agreement with the defendant.
9. (a) If at any time during the defendant's participation in the judicial diversion program, the court has reasonable grounds to believe that the defendant has violated a release condition in an important respect or has willfully failed to appear before the court as requested, the court except as provided in subdivision two of section 510.50 of this chapter regarding a failure to appear, shall direct the defendant to appear or issue a bench warrant to a police officer or an appropriate peace officer directing him or her to take the defendant into custody and bring the defendant before the court without unnecessary delay; provided, however, that under no circumstances shall a defendant who requires treatment for opioid use be deemed to have violated a release condition on the basis of his or her participation in medically prescribed drug treatments under the care of a health care professional licensed or certified under title eight of the education law, acting within his or her lawful scope of practice. The relevant provisions of section 530.60 of this chapter relating to issuance of securing orders shall apply to such proceedings under this subdivision.
(b) In determining whether a defendant violated a condition of his or her release under the judicial diversion program, the court may conduct a summary hearing consistent with due process and sufficient to satisfy the court that the defendant has, in fact, violated the condition.
(c) If the court determines that the defendant has violated a condition of his or her release under the judicial diversion program, the court may modify the conditions thereof, reconsider the order of recognizance or bail pursuant to subdivision two of section 510.30 of this chapter, or terminate the defendant's participation in the judicial diversion program; and when applicable proceed with the defendant's sentencing in accordance with the agreement. Notwithstanding any provision of law to the contrary, the court may impose any sentence authorized for the crime of conviction in accordance with the plea agreement, or any lesser sentence authorized to be imposed on a felony drug offender pursuant to paragraph (b) or (c) of subdivision two of section 70.70 of the penal law taking into account the length of time the defendant spent in residential treatment and how best to continue treatment while the defendant is serving that sentence. In determining what action to take for a violation of a release condition, the court shall consider all relevant circumstances, including the views of the prosecutor, the defense and the alcohol or substance use treatment provider, and the extent to which persons who ultimately successfully complete a drug treatment regimen sometimes relapse by not abstaining from alcohol or substance use or by failing to comply fully with all requirements imposed by a treatment program. The court shall also consider using a system of graduated and appropriate responses or sanctions designed to address such inappropriate behaviors, protect public safety and facilitate, where possible, successful completion of the alcohol or substance use treatment program.
(d) Nothing in this subdivision shall be construed as preventing a court from terminating a defendant's participation in the judicial diversion program for violating a release condition when such a termination is necessary to preserve public safety. Nor shall anything in this subdivision be construed as precluding the prosecution of a defendant for the commission of a different offense while participating in the judicial diversion program.
(e) A defendant may at any time advise the court that he or she wishes to terminate participation in the judicial diversion program, at which time the court shall proceed with the case and, where applicable, shall impose sentence in accordance with the plea agreement. Notwithstanding any provision of law to the contrary, the court may impose any sentence authorized for the crime of conviction in accordance with the plea agreement, or any lesser sentence authorized to be imposed on a felony drug offender pursuant to paragraph (b) or (c) of subdivision two of section 70.70 of the penal law taking into account the length of time the defendant spent in residential treatment and how best to continue treatment while the defendant is serving that sentence.
10. Upon the court's determination that the defendant has successfully completed the required period of alcohol or substance use treatment and has otherwise satisfied the conditions required for successful completion of the judicial diversion program, the court shall comply with the terms and conditions it set for final disposition when it accepted the defendant's agreement to participate in the judicial diversion program. Such disposition may include, but is not limited to: (a) requiring the defendant to undergo a period of interim probation supervision and, upon the defendant's successful completion of the interim probation supervision term, notwithstanding the provision of any other law, permitting the defendant to withdraw his or her guilty plea and dismissing the indictment; or (b) requiring the defendant to undergo a period of interim probation supervision and, upon successful completion of the interim probation supervision term, notwithstanding the provision of any other law, permitting the defendant to withdraw his or her guilty plea, enter a guilty plea to a misdemeanor offense and sentencing the defendant as promised in the plea agreement, which may include a period of probation supervision pursuant to section 65.00 of the penal law; or (c) allowing the defendant to withdraw his or her guilty plea and dismissing the indictment.
11. Nothing in this article shall be construed as restricting or prohibiting courts or district attorneys from using other lawful procedures or models for placing appropriate persons into alcohol or substance use treatment.
TITLE J--PROSECUTION OF INDICTMENTS IN SUPERIOR COURTS--PLEA TO SENTENCE
ARTICLE 220--THE PLEA
Section 220.10 Plea; kinds of pleas.
220.15 Plea; plea of not responsible by reason of mental disease or defect.
220.20 Plea; meaning of lesser included offense for plea purposes.
220.30 Plea; plea of guilty to part of indictment; plea covering other indictments.
220.35 Hearing on predicate felony conviction.
220.40 Plea; plea of not guilty; meaning.
220.50 Plea; entry of plea.
220.51 Notice before entry of plea or trial involving a public official.
220.60 Plea; change of plea.
§ 220.10 Plea; kinds of pleas.
The only kinds of pleas which may be entered to an indictment are those specified in this section:
1. The defendant may as a matter of right enter a plea of "not guilty" to the indictment.
2. Except as provided in subdivision five, the defendant may as a matter of right enter a plea of "guilty" to the entire indictment.
3. Except as provided in subdivision five, where the indictment charges but one crime, the defendant may, with both the permission of the court and the consent of the people, enter a plea of guilty of a lesser included offense.
4. Except as provided in subdivision five, where the indictment charges two or more offenses in separate counts, the defendant may, with both the permission of the court and the consent of the people, enter a plea of:
(a) Guilty of one or more but not all of the offenses charged; or
(b) Guilty of a lesser included offense with respect to any or all of the offenses charged; or
(c) Guilty of any combination of offenses charged and lesser offenses included within other offenses charged.
5. (a) (i) Where the indictment charges one of the class A felonies defined in article two hundred twenty of the penal law or the attempt to commit any such class A felony, then any plea of guilty entered pursuant to subdivision three or four of this section must be or must include at least a plea of guilty of a class B felony.
(iii) Where the indictment charges one of the class B felonies defined in article two hundred twenty of the penal law then any plea of guilty entered pursuant to subdivision three or four must be or must include at least a plea of guilty of a class D felony.
(b) Where the indictment charges any class B felony, other than a class B felony defined in article two hundred twenty of the penal law or a class B violent felony offense as defined in subdivision one of section 70.02 of the penal law, then any plea of guilty entered pursuant to subdivision three or four must be or must include at least a plea of guilty of a felony.
(c) Where the indictment charges a felony, other than a class A felony or class B felony defined in article two hundred twenty of the penal law or class B or class C violent felony offense as defined in subdivision one of section 70.02 of the penal law, and it appears that the defendant has previously been subjected to a predicate felony conviction as defined in penal law section 70.06 then any plea of guilty entered pursuant to subdivision three or four must be or must include at least a plea of guilty of a felony.
(d) Where the indictment charges a class A felony, other than those defined in article two hundred twenty of the penal law, or charges a class B or class C violent felony offense as defined in subdivision one of section 70.02 of the penal law, then a plea of guilty entered pursuant to subdivision three or four must be as follows:
(i) Where the indictment charges a class A felony offense or a class B violent felony offense which is also an armed felony offense then a plea of guilty must include at least a plea of guilty to a class C violent felony offense;
(ii) Except as provided in subparagraph (i) of this paragraph, where the indictment charges a class B violent felony offense or a class C violent felony offense, then a plea of guilty must include at least a plea of guilty to a class D violent felony offense;
(iii) Where the indictment charges the class D violent felony offense of criminal possession of a weapon in the third degree as defined in subdivision four of section 265.02 of the penal law, and the defendant has not been previously convicted of a class A misdemeanor defined in the penal law in the five years preceding the commission of the offense, then a plea of guilty must be either to the class E violent felony offense of attempted criminal possession of a weapon in the third degree or to the class A misdemeanor of criminal possession of a weapon in the fourth degree as defined in subdivision one of section 265.01 of the penal law;
(iv) Where the indictment charges the class D violent felony offenses of criminal possession of a weapon in the third degree as defined in subdivision four of section 265.02 of the penal law and the provisions of subparagraph (iii) of this paragraph do not apply, or subdivision five, seven or eight of section 265.02 of the penal law, then a plea of guilty must include at least a plea of guilty to a class E violent felony offense.
(e) A defendant may not enter a plea of guilty to the crime of murder in the first degree as defined in section 125.27 of the penal law; provided, however, that a defendant may enter such a plea with both the permission of the court and the consent of the people when the agreed upon sentence is either life imprisonment without parole or a term of imprisonment for the class A-I felony of murder in the first degree other than a sentence of life imprisonment without parole.
(f) The provisions of this subdivision shall apply irrespective of whether the defendant is thereby precluded from entering a plea of guilty of any lesser included offense.
(g) Where the defendant is a juvenile offender, the provisions of paragraphs (a), (b), (c) and (d) of this subdivision shall not apply and any plea entered pursuant to subdivision three or four of this section, must be as follows:
(i) If the indictment charges a person fourteen or fifteen years old with the crime of murder in the second degree any plea of guilty entered pursuant to subdivision three or four must be a plea of guilty of a crime for which the defendant is criminally responsible;
(ii) If the indictment does not charge a crime specified in subparagraph (i) of this paragraph, then any plea of guilty entered pursuant to subdivision three or four of this section must be a plea of guilty of a crime for which the defendant is criminally responsible unless a plea of guilty is accepted pursuant to subparagraph (iii) of this paragraph;
(iii) Where the indictment does not charge a crime specified in subparagraph (i) of this paragraph, the district attorney may recommend removal of the action to the family court. Upon making such recommendation the district attorney shall submit a subscribed memorandum setting forth: (1) a recommendation that the interests of justice would best be served by removal of the action to the family court; and (2) if the indictment charges a thirteen year old with the crime of murder in the second degree, or a fourteen or fifteen year old with the crimes of rape in the first degree as defined in subdivision one of section 130.35 of the penal law, or criminal sexual act in the first degree as defined in subdivision one of section 130.50 of the penal law, or an armed felony as defined in paragraph (a) of subdivision forty-one of section 1.20 of this chapter specific factors, one or more of which reasonably supports the recommendation, showing, (i) mitigating circumstances that bear directly upon the manner in which the crime was committed, or (ii) where the defendant was not the sole participant in the crime, that the defendant's participation was relatively minor although not so minor as to constitute a defense to the prosecution, or (iii) possible deficiencies in proof of the crime, or (iv) where the juvenile offender has no previous adjudications of having committed a designated felony act, as defined in subdivision eight of section 301.2 of the family court act, regardless of the age of the offender at the time of commission of the act, that the criminal act was not part of a pattern of criminal behavior and, in view of the history of the offender, is not likely to be repeated.
If the court is of the opinion based on specific factors set forth in the district attorney's memorandum that the interests of justice would best be served by removal of the action to the family court, a plea of guilty of a crime or act for which the defendant is not criminally responsible may be entered pursuant to subdivision three or four of this section, except that a thirteen year old charged with the crime of murder in the second degree may only plead to a designated felony act, as defined in subdivision eight of section 301.2 of the family court act.
Upon accepting any such plea, the court must specify upon the record the portion or portions of the district attorney's statement the court is relying upon as the basis of its opinion and that it believes the interests of justice would best be served by removal of the proceeding to the family court. Such plea shall then be deemed to be a juvenile delinquency fact determination and the court upon entry thereof must direct that the action be removed to the family court in accordance with the provisions of article seven hundred twenty-five of this chapter.
(g-1) Where a defendant is an adolescent offender, the provisions of paragraphs (a), (b), (c) and (d) of this subdivision shall not apply. Where the plea is to an offense constituting a misdemeanor, the plea shall be deemed replaced by an order of fact-finding in a juvenile delinquency proceeding, pursuant to section 346.1 of the family court act, and the action shall be removed to the family court in accordance with article seven hundred twenty-five of this chapter. Where the plea is to an offense constituting a felony, the court may remove the action to the family court in accordance with section 722.23 and article seven hundred twenty-five of this chapter.
(h) Where the indictment charges the class E felony offense of aggravated harassment of an employee by an incarcerated individual as defined in section 240.32 of the penal law, then a plea of guilty must include at least a plea of guilty to a class E felony.
6. The defendant may, with both the permission of the court and the consent of the people, enter a plea of not responsible by reason of mental disease or defect to the indictment in the manner prescribed in section 220.15 of this chapter.
§ 220.15 Plea; plea of not responsible by reason of mental disease or defect.
1. The defendant may, with both the permission of the court and the consent of the people, enter a plea of not responsible by reason of mental disease or defect to the entire indictment. The district attorney must state to the court either orally on the record or in a writing filed with the court that the people consent to the entry of such plea and that the people are satisfied that the affirmative defense of lack of criminal responsibility by reason of mental disease or defect would be proven by the defendant at a trial by a preponderance of the evidence. The district attorney must further state to the court in detail the evidence available to the people with respect to the offense or offenses charged in the indictment, including all psychiatric evidence available or known to the people. If necessary, the court may conduct a hearing before accepting such plea. The district attorney must further state to the court the reasons for recommending such plea. The reasons shall be stated in detail and not in conclusory terms.
2. Counsel for the defendant must state that in his opinion defendant has the capacity to understand the proceedings and to assist in his own defense and that the defendant understands the consequences of a plea of not responsible by reason of mental disease or defect. Counsel for the defendant must further state whether in his opinion defendant has any viable defense to the offense or offenses charged in the indictment other than the affirmative defense of lack of criminal responsibility by reason of mental disease or defect. Counsel for the defendant must further state in detail the psychiatric evidence available to the defendant with respect to such latter affirmative defense.
3. Before accepting a plea of not responsible by reason of mental disease or defect, the court must address the defendant in open court and determine that he understands each of the following:
(a) The nature of the charge to which the plea is offered, and the consequences of such plea;
(b) That he has the right to plead not guilty or to persist in that plea if it has already been entered;
(c) That he has the right to be tried by a jury, the right to the assistance of counsel, the right to confront and cross-examine witnesses against him, and the right not to be compelled to incriminate himself;
(d) That if he pleads not responsible by reason of mental disease or defect there will be no trial with respect to the charges contained in the indictment, so that by offering such plea he waives the right to such trial;
(e) That if he pleads not responsible by reason of mental disease or defect the court will ask him questions about the offense or offenses charged in the indictment and that he will thereby waive his right not to be compelled to incriminate himself; and
(f) That the acceptance of a plea of not responsible by reason of mental disease or defect is the equivalent of a verdict of not responsible by reason of mental disease or defect after trial.
4. The court shall not accept a plea of not responsible by reason of mental disease or defect without first determining that there is a factual basis for such plea. The court must address the defendant personally in open court and determine that the plea is voluntary, knowingly made, and not the result of force, threats, or promises. The court must inquire whether the defendant's willingness to plead results from prior discussions between the district attorney and counsel for the defendant. The court must be satisfied that the defendant understands the proceedings against him, has sufficient capacity to assist in his own defense and understands the consequences of a plea of not responsible by reason of mental disease or defect. The court may make such inquiry as it deems necessary or appropriate for the purpose of making the determinations required by this section.
5. Before accepting a plea of not responsible by reason of mental disease or defect, the court must find and state each of the following on the record in detail and not in conclusory terms:
(a) That it is satisfied that each element of the offense or offenses charged in the indictment would be established beyond a reasonable doubt at a trial;
(b) That the affirmative defense of lack of criminal responsibility by reason of mental disease or defect would be proven by the defendant at a trial by a preponderance of the evidence;
(c) That the defendant has the capacity to understand the proceedings against him and to assist in his own defense;
(d) That such plea by the defendant is knowingly and voluntarily made and that there is a factual basis for the plea;
(e) That the acceptance of such plea is required in the interest of the public in the effective administration of justice.
6. When a plea of not responsible by reason of mental disease or defect is accepted by the court and recorded upon the minutes, the provisions of section 330.20 of this chapter shall govern all subsequent proceedings against the defendant.
§ 220.20 Plea; meaning of lesser included offense for plea purposes.
1. A "lesser included offense," within the meaning of subdivisions four and five of section 220.10 relating to the entry of a plea of guilty to an offense of lesser grade than one charged in a count of an indictment, means not only a "lesser included offense" as that term is defined in subdivision thirty-seven of section 1.20, but also one which is deemed to be such pursuant to the following rules:
(a) Where the only culpable mental state required for the crime charged is that the proscribed conduct be performed intentionally, any lesser offense consisting of reckless or criminally negligent, instead of intentional, performance of the same conduct is deemed to constitute a lesser included offense;
(b) Where the only culpable mental state required for the crime charged is that the proscribed conduct be performed recklessly, any lesser offense consisting of criminally negligent, instead of reckless, performance of the same conduct is deemed to constitute a lesser included offense;
(c) Where according to the allegations of a count a defendant's participation in the crime charged consisted in whole or in part of solicitation of another person to engage in the proscribed conduct, the offense of criminal solicitation, in any appropriate degree, is, with respect to such defendant, deemed to constitute a lesser included offense;
(d) Where according to the allegations of a count a defendant's participation in the crime charged consisted in whole or in part of conspiratorial agreement or conduct with another person to engage in the proscribed conduct, the crime of conspiracy, in any appropriate degree, is, with respect to such defendant, deemed to constitute a lesser included offense;
(e) Where according to the allegations of a count charging a felony a defendant's participation in such felony consisted in whole or in part of providing another person with means or opportunity for engaging in the proscribed conduct, the crime of criminal facilitation, in any appropriate degree, is, with respect to such defendant, deemed to constitute a lesser included offense;
(f) Where the crime charged is assault or attempted assault, in any degree, allegedly committed by intentionally causing or attempting to cause physical injury to a person by the immediate use of physical force against him, or where the crime charged is menacing, as defined in section 120.15 of the penal law, the offense of harassment, as defined in subdivision one of section 240.25 of the penal law, is deemed to constitute a lesser included offense;
(g) Where the crime charged is murder in the second degree as defined in subdivision three of section 125.25 of the penal law, allegedly committed in the course of the commission or attempted commission of a designated one of the underlying felonies enumerated in said subdivision, or during immediate flight therefrom, such designated underlying felony or attempted felony is deemed to constitute a lesser included offense. If such designated underlying felony is alleged to be robbery, burglary, kidnapping, or arson, without specification of the degree thereof, or an attempt to commit the same, a plea of guilty may be entered to the lowest degree thereof only, or as the case may be to attempted commission of such felony in its lowest degree, unless the allegations of the count clearly indicate the existence of all the elements of a higher degree;
(h) Where the crime charged is criminal sale of a controlled substance, any offense of criminal sale or possession of a controlled substance, in any degree, is deemed to constitute a lesser included offense.
(i) Where the crime charged is criminal possession of a controlled substance, any offense of criminal possession of a controlled substance, in any degree, is deemed to constitute a lesser included offense.
(j) Where the offense charged is unlawful disposal of hazardous wastes in violation of section 27-0914 of the environmental conservation law, any offense of unlawful disposal or possession of hazardous wastes as set forth in sections 71-2707, 71-2709, 71-2711 and 71-2713 of such law, in any degree, is deemed to constitute a lesser included offense;
(k) Where the offense charged is unlawful possession of hazardous wastes in violation of section 27-0914 of the environmental conservation law, any offense of unlawful possession of hazardous wastes as set forth in sections 71-2707 and 71-2709 of such law, in any degree, is deemed to constitute a lesser included offense.
2. An offense is deemed to be a lesser included offense with respect to a crime charged in an indictment, pursuant to the provisions of subdivision one, only for purposes of conviction upon a plea of guilty and not for purposes of conviction by verdict. For the latter purpose, an offense constitutes a lesser included one only when it conforms to the definition of that term contained in subdivision thirty-seven of section 1.20.
§ 220.30 Plea; plea of guilty to part of indictment; plea covering other indictments.
1. A plea of guilty not embracing the entire indictment, entered pursuant to the provisions of subdivision four or five of section 220.10, is a "plea of guilty to part of the indictment."
2. The entry and acceptance of a plea of guilty to part of the indictment constitutes a disposition of the entire indictment.
3. (a) (i) Except as provided in paragraph (b), or in paragraph (c) dealing with juvenile offenders, a plea of guilty, whether to the entire indictment or to part of the indictment, may, with both the permission of the court and the consent of the people, be entered and accepted upon the condition that it constitutes a complete disposition of one or more other indictments against the defendant then pending.
(ii) If the other indictment or indictments are pending in a different court or courts, they shall not be disposed of under this subdivision unless the other courts and the appropriate prosecutors also transmit their written permission and consent as provided in subdivision four of section 220.50 of this article; in such a case the court in which the plea is entered shall so notify the other courts which, upon such notice, shall dismiss the appropriate indictments pending therein.
(b) (i) A plea of guilty, whether to the entire indictment or to part of the indictment for any crime other than a class A felony, may not be accepted on the condition that it constitutes a complete disposition of one or more other indictments against the defendant wherein is charged a class A-I felony as defined in article two hundred twenty of the penal law or the attempt to commit any such class A-I felony, except that an eligible youth, as defined in subdivision two of section 720.10, may plea to a class B felony, upon consent of the district attorney, for purposes of adjudication as a youthful offender.
(ii) Where it appears that the defendant has previously been subjected to a predicate felony conviction as defined in paragraph (b) of subdivision (1) of section 70.06 of the penal law, a plea of guilty, whether to the entire indictment or to part of the indictment, of any offense other than a felony may not be accepted on the condition that it constitutes a complete disposition of one or more other indictments against the defendant wherein is charged a felony, other than a class A felony or a class B or class C violent felony offense as defined in subdivision one of section 70.02 of the penal law.
(iii) A plea of guilty, whether to the entire indictment or part of the indictment for any crime other than a class A felony or a class B or class C violent felony offense as defined in subdivision one of section 70.02 of the penal law, may not be accepted on the condition that it constitutes a complete disposition of one or more other indictments against the defendant wherein is charged a class A felony, other than those defined in article two hundred twenty of the penal law, or a class B violent felony offense which is also an armed felony offense.
(iv) Except as provided in subparagraph (iii) of this paragraph, a plea of guilty, whether to the entire indictment or part of the indictment, for any crime other than a class A felony or a class B, C, or D violent felony offense as defined in subdivision one of section 70.02 of the penal law, may not be accepted on the condition that it constitutes a complete disposition of one or more other indictments against the defendant wherein is charged a class B or class C violent felony offense as defined in subdivision one of section 70.02 of the penal law,
(v) A plea of guilty, whether to the entire indictment or part of the indictment, for any crime other than a violent felony offense as defined in section 70.02 of the penal law, may not be accepted on the condition that it constitutes a complete disposition of one or more other indictments against the defendant wherein is charged the class D violent felony offenses of criminal possession of a weapon in the third degree as defined in subdivision four, five, seven or eight of section 265.02 of the penal law; provided, however, a plea of guilty, whether to the entire indictment or part of the indictment, for the class A misdemeanor of criminal possession of a weapon in the fourth degree as defined in subdivision one of section 265.01 of the penal law may be accepted on the condition that it constitutes a complete disposition of one or more other indictments against the defendant wherein is charged the class D violent felony offense of criminal possession of a weapon in the third degree as defined in subdivision four of section 265.02 of the penal law when the defendant has not been previously convicted of a class A misdemeanor defined in the penal law in the five years preceding the commission of the offense.
(vi) A plea of guilty, whether to the entire indictment or to part of the indictment for any crime other than a felony, may not be accepted on the condition that it constitutes a complete disposition of one or more other indictments against the defendant wherein is charged a class B felony other than a class B violent felony offense as defined in subdivision one of section 70.02 of the penal law.
(vii) A defendant may not enter a plea of guilty to the crime of murder in the first degree as defined in section 125.27 of the penal law; provided, however, that a defendant may enter such a plea with both the permission of the court and the consent of the people when the agreed upon sentence is either life imprisonment without parole or a term of imprisonment for the class A-I felony of murder in the first degree other than a sentence of life imprisonment without parole.
(viii) A plea of guilty, whether to the entire indictment or to part of the indictment for any crime other than a class A or class B felony may not be accepted on condition that it constitutes a complete disposition of one or more other indictments against the defendant wherein is charged a class A-II felony defined in article two hundred twenty of the penal law or the attempt to commit any such felony.
(ix) A plea of guilty, whether to the entire indictment or to part of the indictment for any crime other than a class B, a class C, or a class D felony, may not be accepted on condition that it constitutes a complete disposition of one or more other indictments against the defendant wherein is charged a class B felony defined in article two hundred twenty of the penal law.
(c) Where the defendant is a juvenile offender, a plea of guilty, whether to the entire indictment or to part of the indictment, of any offense other than one for which the defendant is criminally responsible may not be accepted on the condition that it constitutes a complete disposition of one or more other indictments against the defendant.
§ 220.35 Hearing on predicate felony conviction.
In any case where the defendant offers to enter a plea of guilty of a misdemeanor to constitute a disposition of the entire indictment or to constitute a complete disposition of one or more other indictments, or both, and the permission of the court and the consent of the people must be withheld solely upon the ground that it appears the defendant has previously been subjected to a predicate felony conviction as defined in paragraph (b) of subdivision one of section 70.06 of the penal law the court, if the defendant does not admit such predicate felony conviction, may conduct the hearing required by section 400.21 for the purpose of determining whether the plea may be entered or must be rejected. The finding upon any such hearing shall also be binding upon the defendant for the purpose of sentence.
§ 220.40 Plea; plea of not guilty; meaning.
A plea of not guilty constitutes a denial of every allegation of the indictment.
§ 220.50 Plea; entry of plea.
1. A plea to an indictment, other than one against a corporation, must be entered orally by the defendant in person; except that a plea to an indictment which does not charge a felony may, with the permission of the court, be entered by counsel upon submission by him of written authorization of the defendant.
2. A plea to an indictment against a corporation must be entered by counsel.
3. If a defendant who is required to enter a plea to an indictment refuses to do so or remains mute, the court must enter a plea of not guilty to the indictment in his behalf.
4. Where the permission of the court and the consent of the people are a prerequisite to the entry of a plea of guilty, the court and the prosecutor must either orally on the record or in a writing filed with the indictment state their reason for granting permission or consenting, as the case may be, to entry of the plea of guilty.
5. When a sentence is agreed upon by the prosecutor and a defendant as a predicate to entry of a plea of guilty, the court or the prosecutor must orally on the record, or in writing filed with the court, state the sentence agreed upon as a condition of such plea.
6. Where the defendant consents to a plea of guilty to the indictment, or part of the indictment, or consents to be prosecuted by superior court information as set forth in section 195.20 of this chapter, and if the defendant and prosecutor agree that as a condition of the plea or the superior court information certain property shall be forfeited by the defendant, the description and present estimated monetary value of the property shall be stated in court by the prosecutor at the time of plea. Within thirty days of the acceptance of the plea or superior court information by the court, the prosecutor shall send to the commissioner of the division of criminal justice services a document containing the name of the defendant, the description and present estimated monetary value of the property, any other demographic data as required by the division of criminal justice services and the date the plea or superior court information was accepted. Any property forfeited by the defendant as a condition to a plea of guilty to an indictment, or a part thereof, or to a superior court information, shall be disposed of in accordance with the provisions of section thirteen hundred forty-nine of the civil practice law and rules.
* 7. Prior to accepting a defendant's plea of guilty to a count or counts of an indictment or a superior court information charging a felony offense, the court must advise the defendant on the record, that if the defendant is not a citizen of the United States, the defendant's plea of guilty and the court's acceptance thereof may result in the defendant's deportation, exclusion from admission to the United States or denial of naturalization pursuant to the laws of the United States. Where the plea of guilty is to a count or counts of an indictment charging a felony offense other than a violent felony offense as defined in section 70.02 of the penal law or an A-I felony offense other than an A-I felony as defined in article two hundred twenty of the penal law, the court must also, prior to accepting such plea, advise the defendant that, if the defendant is not a citizen of the United States and is or becomes the subject of a final order of deportation issued by the United States Immigration and Naturalization Service, the defendant may be paroled to the custody of the Immigration and Naturalization Service for deportation purposes at any time subsequent to the commencement of any indeterminate or determinate prison sentence imposed as a result of the defendant's plea. The failure to advise the defendant pursuant to this subdivision shall not be deemed to affect the voluntariness of a plea of guilty or the validity of a conviction, nor shall it afford a defendant any rights in a subsequent proceeding relating to such defendant's deportation, exclusion or denial of naturalization.
* NB Repealed September 1, 2025
8. Prior to accepting a defendant's plea of guilty to a count or counts of an indictment or a superior court information charging a felony offense, the court must advise the defendant on the record that conviction will result in loss of the right to vote while the defendant is serving a felony sentence in a correctional facility and that the right to vote will be restored upon the defendant's release.
§ 220.51 Notice before entry of plea or trial involving a public official.
Prior to trial, and before accepting a defendant's plea to a count or counts of an indictment or a superior court information charging a felony offense, the court must individually advise the defendant, on the record, that if at the time of the alleged felony crime the defendant was a public official, as defined in subdivision six of section one hundred fifty-six of the retirement and social security law, the defendant's plea of guilty and the court's acceptance thereof or conviction after trial may result in proceedings for the reduction or revocation of such defendant's pension pursuant to article three-B of the retirement and social security law.
§ 220.60 Plea; change of plea.
1. A defendant who has entered a plea of not guilty to an indictment may as a matter of right withdraw such plea at any time before rendition of a verdict and enter a plea of guilty to the entire indictment pursuant to subdivision two, but subject to the limitation in subdivision five of section 220.10.
2. A defendant who has entered a plea of not guilty to an indictment may, with both the permission of the court and the consent of the people, withdraw such plea at any time before the rendition of a verdict and enter: (a) a plea of guilty to part of the indictment pursuant to subdivision three or four but subject to the limitation in subdivision five of section 220.10, or (b) a plea of not responsible by reason of mental disease or defect to the indictment pursuant to section 220.15 of this chapter.
3. At any time before the imposition of sentence, the court in its discretion may permit a defendant who has entered a plea of guilty to the entire indictment or to part of the indictment, or a plea of not responsible by reason of mental disease or defect, to withdraw such plea, and in such event the entire indictment, as it existed at the time of such plea, is restored.
4. When a special information has been filed pursuant to section 200.61 or 200.62 of this chapter, a defendant may enter a plea of guilty to the count or counts of the indictment to which the special information applies without admitting the allegations of the special information. Whenever a defendant enters a plea of guilty to the count or counts of the indictment to which the special information applies without admitting the allegations of the special information, the court must, unless the people consent otherwise, conduct a hearing in accordance with paragraph (b) of subdivision two of section 200.62 or paragraph (b) of subdivision three of section 200.61 of this chapter, whichever is applicable.
ARTICLE 230--REMOVAL OF ACTION
Section 230.10 Removal of action; from supreme court to county court and from county court to supreme court; at instance of court.
230.11 Removal of action to certain courts within a county.
230.20 Removal of action; removal from county court to supreme court and change of venue; upon motion of party.
230.21 Removal of action to certain courts in an adjoining county.
230.30 Removal of action; stay of trial pending motion therefor.
230.40 Removal of action; determinations and rulings before and after removal; by which courts made.
§ 230.10 Removal of action; from supreme court to county court and from county court to supreme court; at instance of court.
Upon order of an appropriate court or judge, made at its or his own instance pursuant to rules established by the appellate division of the appropriate department, (a) an indictment filed with the supreme court at a term held in a particular county outside of New York City may, prior to entry of a plea of guilty thereto or commencement of a trial thereof, be removed to the county court of such county, and (b) an indictment filed in a county court may similarly be removed to the supreme court at a term held or to be held in the same county. Each of the appellate divisions of the second, third and fourth departments may establish rules authorizing such removals with respect to the superior courts within its department, and prescribing the courts or judges who may order such removals and other procedural matters involved therein.
§ 230.11 Removal of action to certain courts within a county.
1. In any county outside a city having a population of one million or more, upon or after arraignment of a defendant on an indictment pending in a superior court having jurisdiction thereof, such court may, upon motion of the defendant and after giving the district attorney an opportunity to be heard, order that the action be removed from the court in which the matter is pending to another court in the same county that has been designated as a human trafficking court or veterans treatment court by the chief administrator of the courts, and such human trafficking court or veterans treatment court may then conduct such action to judgment or other final disposition; provided, however, that no court may order removal pursuant to this section to a veterans treatment court of a family offense charge described in subdivision one of section 530.11 of this chapter where the accused and the person alleged to be the victim of such offense charged are members of the same family or household as defined in such subdivision one of section 530.11; and provided further 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 human trafficking court or veterans treatment 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.
2. Upon providing notification pursuant to paragraph (a) or (b) of subdivision one of this section, the human trafficking court or veterans treatment court shall promptly give notice to the defendant, his or her counsel and the district attorney.
§ 230.20 Removal of action; removal from county court to supreme court and change of venue; upon motion of party.
1. At any time within the period provided by section 255.20, the appellate division of the department embracing the county, upon motion of either the defendant or the people, may, for good cause shown, order that the indictment and action be removed from the county court to the supreme court at a term held or to be held in the same county.
2. At any time within the period provided by section 255.20, the appellate division of the department embracing the county in which the superior court is located may, upon motion of either the defendant or the people demonstrating reasonable cause to believe that a fair and impartial trial cannot be had in such county, order either:
(a) that the indictment and a
PART ONE -- GENERAL PROVISIONS
TITLE A--SHORT TITLE, APPLICABILITY AND DEFINITIONS
ARTICLE 1--SHORT TITLE, APPLICABILITY AND DEFINITIONS
Section 1.00 Short title.
1.10 Applicability of chapter to actions and matter occurring before and after effective date.
1.20 Definitions of terms of general use in this chapter.
§ 1.00 Short title.
This chapter shall be known as the criminal procedure law, and may be cited as "CPL".
1.10 Applicability of chapter to actions and matter occurring before and after effective date.
1.20 Definitions of terms of general use in this chapter.
§ 1.10 Applicability of chapter to actions and matter occurring before and after effective date.
1. The provisions of this chapter apply exclusively to:
(a) All criminal actions and proceedings commenced upon or after the effective date thereof and all appeals and other post-judgment proceedings relating or attaching thereto; and
(b) All matters of criminal procedure prescribed in this chapter which do not constitute a part of any particular action or case, occurring upon or after such effective date.
2. The provisions of this chapter apply to (a) all criminal actions and proceedings commenced prior to the effective date thereof but still pending on such date, and (b) all appeals and other post-judgment proceedings commenced upon or after such effective date which relate or attach to criminal actions and proceedings commenced or concluded prior to such effective date; provided that, if application of such provisions in any particular case would not be feasible or would work injustice, the provisions of the code of criminal procedure apply thereto.
3. The provisions of this chapter do not impair or render ineffectual any proceedings or procedural matters which occurred prior to the effective date thereof.
§ 1.20 Definitions of terms of general use in this chapter.
Except where different meanings are expressly specified in subsequent provisions of this chapter, the term definitions contained in section 10.00 of the penal law are applicable to this chapter, and, in addition, the following terms have the following meanings:
1. "Accusatory instrument" means: (a) an indictment, an indictment ordered reduced pursuant to subdivision one-a of section 210.20 of this chapter, an information, a simplified information, a prosecutor's information, a superior court information, a misdemeanor complaint or a felony complaint. Every accusatory instrument, regardless of the person designated therein as accuser, constitutes an accusation on behalf of the state as plaintiff and must be entitled "the people of the state of New York" against a designated person, known as the defendant; and
(b) an appearance ticket issued for a parking infraction when (i) such ticket is based on personal knowledge or information and belief of the police officer or other public servant who issues the ticket, (ii) the police officer or other public servant who issues such ticket verifies that false statements made therein are punishable as a class A misdemeanor, (iii) the infraction or infractions contained therein are stated in detail and not in conclusory terms so as to provide the defendant with sufficient notice including, but not limited, to the applicable provision of law allegedly violated, and the date, time and particular place of the alleged infraction, and (iv) such ticket contains: (1) the license plate designation of the ticketed vehicle, (2) the license plate type of the ticketed vehicle, (3) the expiration of the ticketed vehicle's registration, (4) the make or model of the ticketed vehicle, and (5) the body type of the ticketed vehicle, provided, however, that where the plate type or the expiration date are not shown on either the registration plates or sticker of a vehicle or where the registration sticker is covered, faded, defaced or mutilated so that it is unreadable, the plate type or the expiration date may be omitted, provided, further, however, that such condition must be so described and inserted on the instrument.
2. "Local criminal court accusatory instrument" means any accusatory instrument other than an indictment or a superior court information.
3. "Indictment" means a written accusation by a grand jury, more fully defined and described in article two hundred, filed with a superior court, which charges one or more defendants with the commission of one or more offenses, at least one of which is a crime, and which serves as a basis for prosecution thereof.
3-a. "Superior court information" means a written accusation by a district attorney more fully defined and described in articles one hundred ninety-five and two hundred, filed with a superior court pursuant to article one hundred ninety-five, which charges one or more defendants with the commission of one or more offenses, at least one of which is a crime, and which serves as a basis for prosecution thereof.
4. "Information" means a verified written accusation by a person, more fully defined and described in article one hundred, filed with a local criminal court, which charges one or more defendants with the commission of one or more offenses, none of which is a felony, and which may serve both to commence a criminal action and as a basis for prosecution thereof.
* 5. "Simplified traffic information" means a written accusation, more fully defined and described in article one hundred, by a police officer or other public servant authorized by law to issue same, filed with a local criminal court, which, being in a brief or simplified form prescribed by the commissioner of motor vehicles, charges a person with one or more traffic infractions or misdemeanors relating to traffic, and which may serve both to commence a criminal action for such offense and as a basis for prosecution thereof.
* NB There are 2 sb 5's -- cannot be put together
* 5. (a) "Simplified information" means a simplified traffic information, a simplified parks information, or a simplified environmental conservation information.
(b) "Simplified traffic information" means a written accusation by a police officer, or other public servant authorized by law to issue same, more fully defined and described in article one hundred, filed with a local criminal court, which, being in a brief or simplified form prescribed by the commissioner of motor vehicles, charges a person with one or more traffic infractions or misdemeanors relating to traffic, and which may serve both to commence a criminal action for such offense and as a basis for prosecution thereof.
(c) "Simplified parks information" means a written accusation by a police officer, or other public servant authorized by law to issue same, filed with a local criminal court, which, being in a brief or simplified form prescribed by the commissioner of parks and recreation, charges a person with one or more offenses, other than a felony, for which a uniform simplified parks information may be issued pursuant to the parks and recreation law and the navigation law, and which may serve both to commence a criminal action for such offense and as a basis for prosecution thereof.
(d) "Simplified environmental conservation information" means a written accusation by a police officer, or other public servant authorized by law to issue same, filed with a local criminal court, which being in a brief or simplified form prescribed by the commissioner of environmental conservation, charges a person with one or more offenses, other than a felony, for which a uniform simplified environmental conservation simplified information may be issued pursuant to the environmental conservation law, and which may serve both to commence a criminal action for such offense and as a basis for prosecution thereof.
* NB There are 2 sb 5's -- cannot be put together
6. "Prosecutor's information" means a written accusation by a district attorney, more fully defined and described in article one hundred, filed with a local criminal court, which charges one or more defendants with the commission of one or more offenses, none of which is a felony, and which serves as a basis for prosecution thereof.
7. "Misdemeanor complaint" means a verified written accusation by a person, more fully defined and described in article one hundred, filed with a local criminal court, which charges one or more defendants with the commission of one or more offenses, at least one of which is a misdemeanor and none of which is a felony, and which serves to commence a criminal action but which may not, except upon the defendant's consent, serve as a basis for prosecution of the offenses charged therein.
8. "Felony complaint" means a verified written accusation by a person, more fully defined and described in article one hundred, filed with a local criminal court, which charges one or more defendants with the commission of one or more felonies and which serves to commence a criminal action but not as a basis for prosecution thereof.
9. "Arraignment" means the occasion upon which a defendant against whom an accusatory instrument has been filed appears before the court in which the criminal action is pending for the purpose of having such court acquire and exercise control over his person with respect to such accusatory instrument and of setting the course of further proceedings in the action.
10. "Plea," in addition to its ordinary meaning as prescribed in sections 220.10 and 340.20, means, where appropriate, the occasion upon which a defendant enters such a plea to an accusatory instrument.
11. "Trial." A jury trial commences with the selection of the jury and includes all further proceedings through the rendition of a verdict. A non-jury trial commences with the first opening address, if there be any, and, if not, when the first witness is sworn, and includes all further proceedings through the rendition of a verdict.
12. "Verdict" means the announcement by a jury in the case of a jury trial, or by the court in the case of a non-jury trial, of its decision upon the defendant's guilt or innocence of the charges submitted to or considered by it.
13. "Conviction" means the entry of a plea of guilty to, or a verdict of guilty upon, an accusatory instrument other than a felony complaint, or to one or more counts of such instrument.
14. "Sentence" means the imposition and entry of sentence upon a conviction.
15. "Judgment." A judgment is comprised of a conviction and the sentence imposed thereon and is completed by imposition and entry of the sentence.
16. "Criminal action." A criminal action (a) commences with the filing of an accusatory instrument against a defendant in a criminal court, as specified in subdivision seventeen; (b) includes the filing of all further accusatory instruments directly derived from the initial one, and all proceedings, orders and motions conducted or made by a criminal court in the course of disposing of any such accusatory instrument, or which, regardless of the court in which they occurred or were made, could properly be considered as a part of the record of the case by an appellate court upon an appeal from a judgment of conviction; and (c) terminates with the imposition of sentence or some other final disposition in a criminal court of the last accusatory instrument filed in the case.
17. "Commencement of criminal action." A criminal action is commenced by the filing of an accusatory instrument against a defendant in a criminal court, and, if more than one accusatory instrument is filed in the course of the action, it commences when the first of such instruments is filed.
18. "Criminal proceeding" means any proceeding which (a) constitutes a part of a criminal action or (b) occurs in a criminal court and is related to a prospective, pending or completed criminal action, either of this state or of any other jurisdiction, or involves a criminal investigation.
19. "Criminal court" means any court defined as such by section 10.10.
20. "Superior court" means any court defined as such by subdivision two of section 10.10.
21. "Local criminal court" means any court defined as such by subdivision three of section 10.10.
22. "Intermediate appellate court" means any court possessing appellate jurisdiction, other than the court of appeals.
23. "Judge" means any judicial officer who is a member of or constitutes a court, whether referred to in another provision of law as a justice or by any other title.
24. "Trial jurisdiction." A criminal court has "trial jurisdiction" of an offense when an indictment or an information charging such offense may properly be filed with such court, and when such court has authority to accept a plea to, try or otherwise finally dispose of such accusatory instrument.
25. "Preliminary jurisdiction." A criminal court has "preliminary jurisdiction" of an offense when, regardless of whether it has trial jurisdiction thereof, a criminal action for such offense may be commenced therein, and when such court may conduct proceedings with respect thereto which lead or may lead to prosecution and final disposition of the action in a court having trial jurisdiction thereof.
26. "Appearance ticket" means a written notice issued by a public servant, more fully defined in section 150.10, requiring a person to appear before a local criminal court in connection with an accusatory instrument to be filed against him therein.
27. "Summons" means a process of a local criminal court or superior court, more fully defined in section 130.10, requiring a defendant to appear before such court for the purpose of arraignment upon an accusatory instrument filed therewith by which a criminal action against him has been commenced.
28. "Warrant of arrest" means a process of a local criminal court, more fully defined in section 120.10, directing a police officer to arrest a defendant and to bring him before such court for the purpose of arraignment upon an accusatory instrument filed therewith by which a criminal action against him has been commenced.
29. "Superior court warrant of arrest" means a process of a superior court directing a police officer to arrest a defendant and to bring him before such court for the purpose of arraignment upon an indictment filed therewith by which a criminal action against him has been commenced.
30. "Bench warrant" means a process of a criminal court in which a criminal action is pending, directing a police officer, or a uniformed court officer, pursuant to paragraph b of subdivision two of section 530.70 of this chapter, to take into custody a defendant in such action who has previously been arraigned upon the accusatory instrument by which the action was commenced, and to bring him before such court. The function of a bench warrant is to achieve the court appearance of a defendant in a pending criminal action for some purpose other than his initial arraignment in the action.
31. "Prosecutor" means a district attorney or any other public servant who represents the people in a criminal action.
32. "District attorney" means a district attorney, an assistant district attorney or a special district attorney, and, where appropriate, the attorney general, an assistant attorney general, a deputy attorney general, a special deputy attorney general, or the special prosecutor and inspector general for the protection of people with special needs or his or her assistants when acting pursuant to their duties in matters arising under article twenty of the executive law, or the inspector general of New York for transportation or his or her deputies when acting pursuant to article four-B of the executive law.
33. "Peace officer" means a person listed in section 2.10 of this chapter.
34. "Police officer." The following persons are police officers:
(a) A sworn member of the division of state police;
* (b) Sheriffs, under-sheriffs and deputy sheriffs of counties outside of New York City;
* NB Effective until October 16, 2023
* (b) Sheriffs, under-sheriffs and deputy sheriffs of counties outside of New York City where such department is certified in accordance with paragraph (d) of subdivision one of section eight hundred forty-six-h of the executive law;
* NB Effective October 16, 2023
* (c) A sworn officer of an authorized county or county parkway police department;
* NB Effective until October 16, 2023
* (c) A sworn officer of an authorized county or county parkway police department where such department is certified in accordance with paragraph (d) of subdivision one of section eight hundred forty-six-h of the executive law;
* NB Effective October 16, 2023
* (d) A sworn officer of an authorized police department or force of a city, town, village or police district;
* NB Effective until October 16, 2023
* (d) A sworn officer of an authorized police department or force of a city, town, village or police district where such department or force is certified in accordance with paragraph (d) of subdivision one of section eight hundred forty-six-h of the executive law;
* NB Effective October 16, 2023
* (e) A sworn officer of an authorized police department of an authority or a sworn officer of the state regional park police in the office of parks and recreation;
* NB Effective until October 16, 2023
* (e) A sworn officer of an authorized police department of an authority or a sworn officer of the state regional park police in the office of parks and recreation where such department or force is certified in accordance with paragraph (d) of subdivision one of section eight hundred forty-six-h of the executive law;
* NB Effective October 16, 2023
* (f) A sworn officer of the capital police force of the office of general services;
* NB Effective until October 16, 2023
* (f) A sworn officer of the capital police force of the office of general services where such force is certified in accordance with paragraph (d) of subdivision one of section eight hundred forty-six-h of the executive law;
* NB Effective October 16, 2023
(g) An investigator employed in the office of a district attorney;
(h) An investigator employed by a commission created by an interstate compact, or by section six of chapter eight hundred eighty-two of the laws of nineteen hundred fifty-three, constituting the waterfront commission act, as amended, who is, to a substantial extent, engaged in the enforcement of the criminal laws of this state;
(i) The chief and deputy fire marshals, the supervising fire marshals and the fire marshals of the bureau of fire investigation of the New York City fire department;
* (j) A sworn officer of the division of law enforcement in the department of environmental conservation;
* NB Effective until October 16, 2023
* (j) A sworn officer of the division of law enforcement in the department of environmental conservation where such division is certified in accordance with paragraph (d) of subdivision one of section eight hundred forty-six-h of the executive law;
* NB Effective October 16, 2023
* (k) A sworn officer of a police force of a public authority created by an interstate compact, or by section six of chapter eight hundred eighty-two of the laws of nineteen hundred fifty-three, constituting the waterfront commission act, as amended;
* NB Effective until October 16, 2023
* (k) A sworn officer of a police force of a public authority created by an interstate compact, or by section six of chapter eight hundred eighty-two of the laws of nineteen hundred fifty-three, constituting the waterfront commission act, as amended, where such force is certified in accordance with paragraph (d) of subdivision one of section eight hundred forty-six-h of the executive law;
* NB Effective October 16, 2023
(m) A special investigator employed in the statewide organized crime task force, while performing his assigned duties pursuant to section seventy-a of the executive law.
(n) A sworn officer of the Westchester county department of public safety services who, on or prior to June thirtieth, nineteen hundred seventy-nine was appointed as a sworn officer of the division of Westchester county parkway police or who was appointed on or after July first, nineteen hundred seventy-nine to the title of police officer, sergeant, lieutenant, captain or inspector or who, on or prior to January thirty-first, nineteen hundred eighty-three, was appointed as a Westchester county deputy sheriff.
* (o) A sworn officer of the water-supply police employed by the city of New York, appointed to protect the sources, works, and transmission of water supplied to the city of New York, and to protect persons on or in the vicinity of such water sources, works, and transmission.
* NB Effective until October 16, 2023
* (o) A sworn officer of the New York city department of environmental protection police, employed by the city of New York, appointed to protect the sources, works, and transmission of water supplied to the city of New York, and to protect persons on or in the vicinity of such water sources, works, and transmission where such department is certified in accordance with paragraph (d) of subdivision one of section eight hundred forty-six-h of the executive law;
* NB Effective October 16, 2023
* (p) Persons appointed as railroad police officers pursuant to section eighty-eight of the railroad law.
* NB Effective until October 16, 2023
* (p) Persons appointed as railroad police officers pursuant to section eighty-eight of the railroad law where such department or force is certified in accordance with paragraph (d) of subdivision one of section eight hundred forty-six-h of the executive law;
* NB Effective October 16, 2023
(q) An employee of the department of taxation and finance (i) assigned to enforcement of the taxes imposed under or pursuant to the authority of article twelve-A of the tax law and administered by the commissioner of taxation and finance, taxes imposed under or pursuant to the authority of article eighteen of the tax law and administered by the commissioner, taxes imposed under article twenty of the tax law, or sales or compensating use taxes relating to petroleum products or cigarettes imposed under article twenty-eight or pursuant to the authority of article twenty-nine of the tax law and administered by the commissioner or (ii) designated as a revenue crimes specialist and assigned to the enforcement of the taxes described in paragraph (c) of subdivision four of section 2.10 of this title, for the purpose of applying for and executing search warrants under article six hundred ninety of this chapter, for the purpose of acting as a claiming agent under article thirteen-A of the civil practice law and rules in connection with the enforcement of the taxes referred to above and for the purpose of executing warrants of arrest relating to the respective crimes specified in subdivision four of section 2.10 of this title.
(r) Any employee of the Suffolk county department of parks who is appointed as a Suffolk county park police officer.
* (s) A university police officer appointed by the state university pursuant to paragraph 1 of subdivision two of section three hundred fifty-five of the education law.
* NB Effective until October 16, 2023
* (s) A university police officer appointed by the state university pursuant to paragraph 1 of subdivision two of section three hundred fifty-five of the education law where such department or force is certified in accordance with paragraph (d) of subdivision one of section eight hundred forty-six-h of the executive law;
* NB Effective October 16, 2023
(t) A sworn officer of the department of public safety of the Buffalo municipal housing authority who has achieved or been granted the status of sworn police officer and has been certified by the division of criminal justice services as successfully completing an approved basic course for police officers.
* (u) Persons appointed as Indian police officers pursuant to section one hundred fourteen of the Indian law.
* NB Effective until October 16, 2023
* (u) Persons appointed as Indian police officers pursuant to section one hundred fourteen of the Indian law where such department or force is certified in accordance with paragraph (d) of subdivision one of section eight hundred forty-six-h of the executive law;
* NB Effective October 16, 2023
(v) Supervisor of forest ranger services; assistant supervisor of forest ranger services; forest ranger 3; forest ranger 2; forest ranger 1 employed by the state department of environmental conservation or sworn officer of the division of forest protection and fire management in the department of environmental conservation responsible for wild land search and rescue, wild land fire management in the state as prescribed in subdivision eighteen of section 9-0105 and title eleven of article nine of the environmental conservation law, exercising care, custody and control of state lands administered by the department of environmental conservation.
34-a. "Geographical area of employment." The "geographical area of employment" of certain police officers is as follows:
* (a) Except as provided in paragraph (d) of this subdivision, New York state constitutes the "geographical area of employment" of any police officer employed as such by an agency of the state or by an authority which functions throughout the state, or a police officer designated by the superintendent of state police pursuant to section two hundred twenty-three of the executive law;
* NB Effective until September 1, 2025
* (a) Except as provided in paragraph (d), New York state constitutes the "geographical area of employment" of any police officer employed as such by an agency of the state or by an authority which functions throughout the state;
* NB Effective September 1, 2025
(b) A county, city, town or village, as the case may be, constitutes the "geographical area of employment" of any police officer employed as such by an agency of such political subdivision or by an authority which functions only in such political subdivision; and
(c) Where an authority functions in more than one county, the "geographical area of employment" of a police officer employed thereby extends through all of such counties.
(d) The geographical area of employment of a police officer appointed by the state university is the campuses and other property of the state university, including any portion of a public highway which crosses or abuts such property.
(e) The geographical area of employment of a police officer appointed pursuant to section one hundred fourteen of the Indian law is within the county of Franklin, and within that county, only within the boundary of the St. Regis reservation, except that if the superintendent of state police has certified such officer with expanded jurisdiction within the county of Franklin, pursuant to subdivision eight-a of such section, the geographical area of employment of such police officer shall also include the area of expanded jurisdiction set forth in that subdivision.
35. "Commitment to the custody of the sheriff," when referring to an order of a court located in a county or city which has established a department of correction, means commitment to the commissioner of correction of such county or city.
36. "County" ordinarily means (a) any county outside of New York City or (b) New York City in its entirety. Unless the context requires a different construction, New York City, despite its five counties, is deemed a single county within the meaning of the provisions of this chapter in which that term appears.
37. "Lesser included offense." When it is impossible to commit a particular crime without concomitantly committing, by the same conduct, another offense of lesser grade or degree, the latter is, with respect to the former, a "lesser included offense." In any case in which it is legally possible to attempt to commit a crime, an attempt to commit such crime constitutes a lesser included offense with respect thereto.
38. "Oath" includes an affirmation and every other mode authorized by law of attesting to the truth of that which is stated.
39. "Petty offense" means a violation or a traffic infraction.
40. "Evidence in chief" means evidence, received at a trial or other criminal proceeding in which a defendant's guilt or innocence of an offense is in issue, which may be considered as a part of the quantum of substantive proof establishing or tending to establish the commission of such offense or an element thereof or the defendant's connection therewith.
41. "Armed felony" means any violent felony offense defined in section 70.02 of the penal law that includes as an element either:
(a) possession, being armed with or causing serious physical injury by means of a deadly weapon, if the weapon is a loaded weapon from which a shot, readily capable of producing death or other serious physical injury may be discharged; or
(b) display of what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm.
42. "Juvenile offender" means (1) a person, thirteen years old who is criminally responsible for acts constituting murder in the second degree as defined in subdivisions one and two of section 125.25 of the penal law, or such conduct as a sexually motivated felony, where authorized pursuant to section 130.91 of the penal law; and (2) a person fourteen or fifteen years old who is criminally responsible for acts constituting the crimes defined in subdivisions one and two of section 125.25 (murder in the second degree) and in subdivision three of such section provided that the underlying crime for the murder charge is one for which such person is criminally responsible; section 135.25 (kidnapping in the first degree); 150.20 (arson in the first degree); subdivisions one and two of section 120.10 (assault in the first degree); 125.20 (manslaughter in the first degree); subdivisions one and two of section 130.35 (rape in the first degree); subdivisions one and two of section 130.50 (criminal sexual act in the first degree); 130.70 (aggravated sexual abuse in the first degree); 140.30 (burglary in the first degree); subdivision one of section 140.25 (burglary in the second degree); 150.15 (arson in the second degree); 160.15 (robbery in the first degree); subdivision two of section 160.10 (robbery in the second degree) of the penal law; or section 265.03 of the penal law, where such machine gun or such firearm is possessed on school grounds, as that phrase is defined in subdivision fourteen of section 220.00 of the penal law; or defined in the penal law as an attempt to commit murder in the second degree or kidnapping in the first degree, or such conduct as a sexually motivated felony, where authorized pursuant to section 130.91 of the penal law.
43. "Judicial hearing officer" means a person so designated pursuant to provisions of article twenty-two of the judiciary law.
44. "Adolescent offender" means a person charged with a felony committed on or after October first, two thousand eighteen when he or she was sixteen years of age or on or after October first, two thousand nineteen, when he or she was seventeen years of age.
45. "Expunge" means, where an arrest and any enforcement activity connected with that arrest, including prosecution and any disposition in any New York state court, is deemed a nullity and the accused is restored, in contemplation of the law, to the status such individual occupied before the arrest, prosecution and/or disposition; that records of such arrest, prosecution and/or disposition shall be marked as expunged or shall be destroyed as set forth in section 160.50 of this chapter. Neither the arrest nor prosecution and/or disposition, if any, of a matter deemed a nullity shall operate as a disqualification of any person so accused to pursue or engage in any lawful activity, occupation, profession or calling. Except where specifically required or permitted by statute or upon specific authorization of a superior court, no such person shall be required to divulge information pertaining to the arrest, prosecution and/or disposition of such a matter.
ARTICLE 2 PEACE OFFICERS
Section 2.10 Persons designated as peace officers.
2.15 Federal law enforcement officers; powers.
2.16 Watershed protection and enforcement officers; powers, duties, jurisdiction for arrests.
2.20 Powers of peace officers.
2.30 Training requirements for peace officers.
§ 2.10 Persons designated as peace officers.
Notwithstanding the provisions of any general, special or local law or charter to the contrary, only the following persons shall have the powers of, and shall be peace officers:
1. Constables or police constables of a town or village, provided such designation is not inconsistent with local law.
2. The sheriff, undersheriff and deputy sheriffs of New York city and sworn officers of the Westchester county department of public safety services appointed after January thirty-first, nineteen hundred eighty-three to the title of public safety officer and who perform the functions previously performed by a Westchester county deputy sheriff on or prior to such date.
3. Investigators of the office of the state commission of investigation.
4. Employees of the department of taxation and finance designated by the commissioner of taxation and finance as peace officers and assigned by the commissioner of taxation and finance (a) to the enforcement of any of the criminal or seizure and forfeiture provisions of the tax law relating to (i) taxes imposed under or pursuant to the authority of article twelve-A of the tax law and administered by the commissioner, (ii) taxes imposed under or pursuant to the authority of article eighteen of the tax law and administered by the commissioner, (iii) taxes imposed under article twenty of the tax law, or (iv) sales or compensating use taxes relating to petroleum products or cigarettes imposed under article twenty-eight or pursuant to the authority of article twenty-nine of the tax law and administered by the commissioner or
(b) to the enforcement of any provision of the penal law relating to any of the taxes described in paragraph (a) of this subdivision and relating to crimes effected through the use of a statement or document filed with the department in connection with the administration of such taxes or
(c) as revenue crimes specialist and assigned to the enforcement of any of the criminal provisions of the tax law relating to taxes administered by the commissioner of taxation and finance other than those taxes set forth in paragraph (a) of this subdivision or any provision of the penal law relating to such taxes, and those provisions of the penal law (i) relating to any of the foregoing taxes and (ii) relating to crimes effected through the use of a statement or document filed with the department in connection with the administration of such foregoing taxes or
(d) to the enforcement of any provision of law which is subject to enforcement by criminal penalties and which relates to the performance by persons employed by the department of taxation and finance of the duties of their employment.
Provided, however, that nothing in this subdivision shall be deemed to authorize any such employee designated as a peace officer after November first, nineteen hundred eighty-five to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law, and further provided that, prior to such designation by the commissioner each such employee shall have successfully completed the training requirements specified in section 2.30 of this article. Provided, further, that any license issued to such employee pursuant to such peace officer designation by the commissioner shall relate only to the firearm issued to such employee by the department of taxation and finance and such permit shall not cover any other firearms. The foregoing sentence shall not be deemed to prohibit such peace officer from applying for a separate permit relating to non-departmental firearms.
5. Employees of the New York city department of finance assigned to enforcement of the tax on cigarettes imposed by title D of chapter forty-six of the administrative code of the city of New York by the commissioner of finance.
6. Confidential investigators and inspectors, as designated by the commissioner, of the department of agriculture and markets, pursuant to rules of the department.
7. Officers or agents of a duly incorporated society for the prevention of cruelty to animals.
* 7-a. Officers or agents of a duly incorporated society for the prevention of cruelty to children in Rockland county; provided, however, that nothing in this subdivision shall be deemed to authorize such officer or agent to carry, possess, repair, or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law; and provided further that such officer or agent shall exercise the powers of a peace officer only when he is acting pursuant to his special duties.
* NB Repealed August 11, 2025
8. Inspectors and officers of the New York city department of health when acting pursuant to their special duties as set forth in section 564-11.0 of the administrative code of the city of New York; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
9. Park rangers in Suffolk county, who shall be authorized to issue appearance tickets, simplified traffic informations, simplified parks informations and simplified environmental conservation informations.
10. Broome county park rangers who shall be authorized to issue appearance tickets, simplified traffic informations, simplified parks informations, and simplified environmental conservation informations; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
11. Park rangers in Onondaga and Cayuga counties, who shall be authorized to issue appearance tickets, simplified traffic informations, simplified parks informations and simplified environmental conservation informations, within the respective counties of Onondaga and Cayuga.
12. Special police officers designated by the commissioner and the directors of in-patient facilities in the office of mental health pursuant to section 7.25 of the mental hygiene law, and special police officers designated by the commissioner and the directors of facilities under his or her jurisdiction in the office for people with developmental disabilities pursuant to section 13.25 of the mental hygiene law; provided, however, that nothing in this subdivision shall be deemed to authorize such officers to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
13. Persons designated as special police officers by the director of a hospital in the department of health pursuant to section four hundred fifty-five of the public health law; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
15. Uniformed enforcement forces of the New York state thruway authority, when acting pursuant to subdivision two of section three hundred sixty-one of the public authorities law; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
16. Employees of the department of health designated pursuant to section thirty-three hundred eighty-five of the public health law; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
17. Uniformed housing guards of the Buffalo municipal housing authority.
18. Bay constable of the city of Rye, the villages of Mamaroneck, South Nyack and bay constables of the towns of East Hampton, Hempstead, Oyster Bay, Riverhead, Southampton, Southold, Islip, Shelter Island, Brookhaven, Babylon, Smithtown, Huntington and North Hempstead; provided, however, that nothing in this subdivision shall be deemed to authorize the bay constables in the city of Rye, the village of South Nyack or the towns of Brookhaven, Babylon, Southold, East Hampton, Riverhead, Islip, other than a bay constable of the town of Islip who prior to April third, nineteen hundred ninety-eight served as harbormaster for such town and whose position was reclassified as bay constable for such town prior to such date, Smithtown, Huntington and Shelter Island to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
19. Harbor masters appointed by a county, city, town or village.
20. Bridge and tunnel officers, sergeants and lieutenants of the Triborough bridge and tunnel authority.
21. a. Uniformed court officers of the unified court system.
b. Court clerks of the unified court system in the first and second departments.
c. Marshall, deputy marshall, clerk or uniformed court officer of a district court.
(d) Marshalls or deputy marshalls of a city court, provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
e. Uniformed court officers of the city of Mount Vernon.
f. Uniformed court officers of the city of Jamestown.
22. Patrolmen appointed by the Lake George park commission; provided however that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
23. Parole officers or warrant officers in the department of corrections and community supervision.
23-a. Parole revocation specialists in the department of corrections and community supervision; provided, however, that nothing in this subdivision shall be deemed to authorize such employee to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
24. Probation officers.
25. Officials, as designated by the commissioner of the department of corrections and community supervision pursuant to rules of the department, and correction officers of any state correctional facility or of any penal correctional institution.
26. Peace officers designated pursuant to the provisions of the New York state defense emergency act, as set forth in chapter seven hundred eighty-four of the laws of nineteen hundred fifty-one, as amended, when acting pursuant to their special duties during a period of attack or imminent attack by enemy forces, or during official drills called to combat natural or man-made disasters, or during official drills in preparation for an attack by enemy forces or in preparation for a natural or man-made disaster; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law; and provided further, that such officer shall have the powers set forth in section 2.20 of this article only during a period of imminent or actual attack by enemy forces and during drills authorized under section twenty-nine-b of article two-B of the executive law, providing for the use of civil defense forces in disasters. Notwithstanding any other provision of law, such officers shall have the power to direct and control traffic during official drills in preparation for an attack by enemy forces or in preparation for combating natural or man-made disasters; however, this grant does not include any of the other powers set forth in section 2.20 of this article.
27. New York city special patrolmen appointed by the police commissioner pursuant to subdivision c or e of section 434a-7.0 or subdivision c or e of section 14-106 of the administrative code of the city of New York; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law and the employer has authorized such officer to possess a firearm during any phase of the officers on-duty employment. Special patrolmen shall have the powers set forth in section 2.20 of this article only when they are acting pursuant to their special duties; provided, however, that the following categories of New York city special patrolmen shall have such powers whether or not they are acting pursuant to their special duties: school safety officers employed by the board of education of the city of New York; parking control specialists, taxi and limousine inspectors, urban park rangers and evidence and property control specialists employed by the city of New York; and further provided that, with respect to the aforementioned categories of New York city special patrolmen, where such a special patrolman has been appointed by the police commissioner and, upon the expiration of such appointment the police commissioner has neither renewed such appointment nor explicitly determined that such appointment shall not be renewed, such appointment shall remain in full force and effect indefinitely, until such time as the police commissioner expressly determines to either renew or terminate such appointment.
28. All officers and members of the uniformed force of the New York city fire department as set forth and subject to the limitations contained in section 487a-15.0 of the administrative code of the city of New York; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
29. Special police officers for horse racing, appointed pursuant to the provisions of the pari-mutuel revenue law as set forth in chapter two hundred fifty-four of the laws of nineteen hundred forty, as amended; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
30. Supervising fire inspectors, fire inspectors, the fire marshal and assistant fire marshals, all of whom are full-time employees of the county of Nassau fire marshal's office.
32. Investigators of the department of motor vehicles, pursuant to section three hundred ninety-two-b of the vehicle and traffic law; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
33. A city marshall of the city of New York who has received training in firearms handling from the federal bureau of investigation or in the New York city police academy, or in the absence of the available training programs from the federal bureau of investigation and the New York city police academy, from another law enforcement agency located in the state of New York, and who has received a firearms permit from the license division of the New York city police department.
34. Waterfront and airport investigators, pursuant to subdivision four of section ninety-nine hundred six of the unconsolidated laws; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
35. Special investigators appointed by the state board of elections, pursuant to secton 3-107 of the election law.
36. Investigators appointed by the state liquor authority, pursuant to section fifteen of the alcoholic beverage control law; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
37. Special patrolmen of a political subdivision, appointed pursuant to section two hundred nine-v of the general municipal law; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
38. A special investigator of the New York city department of investigation who has received training in firearms handling in the New York police academy and has received a firearms permit from the license division of the New York city police department.
39. Broome county special patrolman, appointed by the Broome county attorney; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
40. Special officers employed by the city of New York or by the New York city health and hospitals corporation; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law. The New York city health and hospitals corporation shall employ peace officers appointed pursuant to this subdivision to perform the patrol, investigation, and maintenance of the peace duties of special officer, senior special officer and hospital security officer, provided however that nothing in this subdivision shall prohibit managerial, supervisory, or state licensed or certified professional employees of the corporation from performing such duties where they are incidental to their usual duties, or shall prohibit police officers employed by the city of New York from performing these duties.
41. Fire police squads organized pursuant to section two hundred nine-c of the general municipal law, at such times as the fire department, fire company or an emergency rescue and first aid squad of the fire department or fire company are on duty, or when, on orders of the chief of the fire department or fire company of which they are members, they are separately engaged in response to a call for assistance pursuant to the provisions of section two hundred nine of the general municipal law; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
42. Special deputy sheriffs appointed by the sheriff of a county within which any part of the grounds of Cornell university or the grounds of any state institution constituting a part of the educational and research plants owned or under the supervision, administration or control of said university are located pursuant to section fifty-seven hundred nine of the education law; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
43. Housing patrolmen of the Mount Vernon housing authority, acting pursuant to rules of the Mount Vernon housing authority; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
44. The officers, employees and members of the New York city division of fire prevention, in the bureau of fire, as set forth and subject to the limitations contained in subdivision one of section 487a-1.0 of the administrative code of the city of New York; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
45. Persons appointed and designated as peace officers by the Niagara frontier transportation authority, pursuant to subdivision thirteen of section twelve hundred ninety-nine-e of the public authorities law.
46. Persons appointed as peace officers by the Sea Gate Association pursuant to the provisions of chapter three hundred ninety-one of the laws of nineteen hundred forty, provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
47. Employees of the department of financial services when designated as peace officers by the superintendent of financial services and acting pursuant to their special duties as set forth in article four of the financial services law; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
48. New York state air base security guards when they are designated as peace officers under military regulations promulgated by the chief of staff to the governor and when performing their duties as air base security guards pursuant to orders issued by appropriate military authority; provided, however, that nothing in this subdivision shall be deemed to authorize such guards to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
49. Members of the army national guard military police and air national guard security personnel belonging to the organized militia of the state of New York when they are designated as peace officers under military regulations promulgated by the adjutant general and when performing their duties as military police officers or air security personnel pursuant to orders issued by appropriate military authority; provided, however, that nothing in this subdivision shall be deemed to authorize such military police or air security personnel to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
50. Transportation supervisors in the city of White Plains appointed by the commissioner of public safety in the city of White Plains; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
51. Officers and members of the fire investigation division of the fire department of the city of Rochester, the city of Binghamton and the city of Utica, when acting pursuant to their special duties in matters arising under the laws relating to fires, the extinguishment thereof and fire perils; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
52. Security hospital treatment assistants, as so designated by the commissioner of the office of mental health while performing duties in or arising out of the course of their employment; provided, however, that nothing in this subdivision shall be deemed to authorize such employee to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
53. Authorized agents of the municipal directors of weights and measures in the counties of Suffolk, Nassau and Westchester when acting pursuant to their special duties as set forth in section one hundred eighty-one of the agriculture and markets law; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
54. Special police officers appointed pursuant to section one hundred fifty-eight of the town law; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
* 55. Special patrolmen for sports facilities in the performance of sporting events, pursuant to the provisions of section one hundred six-b of the alcoholic beverage control law; provided, however, that nothing in this section shall be deemed to authorize such officer to carry, possess, repair, or dispose of a firearm unless such officer is required pursuant to his status as a police officer within this state.
* NB Expired July 1, 1993
56. Dog control officers of the town of Brookhaven, who at the discretion of the town board may be designated as constables for the purpose of enforcing article twenty-six of the agriculture and markets law and for the purpose of issuing appearance tickets permitted under article seven of such law; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
57. Harbor Park rangers employed by the Snug Harbor cultural center in Richmond county and appointed as New York city special patrolmen by the police commissioner pursuant to subdivision c of section 14-106 of the administrative code of the city of New York. Notwithstanding any provision of law, rule or regulation, such officers shall be authorized to issue appearance tickets pursuant to section 150.20 of this chapter, and shall have such other powers as are specified in section 2.20 of this article only when acting pursuant to their special duties. Nothing in this subdivision shall be deemed to authorize such officers to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law and the employer has authorized such officer to possess a firearm during any phase of the officer's on-duty employment.
* 57-a. Seasonal park rangers of the Westchester county department of public safety while employed as authorized by the commissioner of public safety/sheriff of the county of Westchester; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
* NB There are 2 sub 57-a's
* 57-a. Officers of the Westchester county public safety emergency force, when activated by the commissioner of public safety/sheriff of the county of Westchester; provided, however that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
* NB There are 2 sub 57-a's
58. Uniformed members of the security force of the Troy housing authority provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
59. Officers and members of the sanitation police of the department of sanitation of the city of New York, duly appointed and designated as peace officers by such department; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law. Provided, further, that nothing in this subdivision shall be deemed to apply to officers and members of the sanitation police regularly and exclusively assigned to enforcement of such city's residential recycling laws.
61. Chief fire marshall, assistant chief fire marshall, fire marshall II and fire marshall I, all of whom are full-time employees of the Suffolk county department of fire, rescue and emergency services, when acting pursuant to their special duties in matters arising under the laws relating to fires, the extinguishment thereof and fire perils; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
* 62. Chief fire marshall, assistant chief fire marshall, fire marshall II and fire marshall I, all of whom are full-time employees of the town of Babylon, when acting pursuant to their special duties in matters arising under the laws relating to fires, the extinguishment thereof and fire perils; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
* NB There are 2 sub 62's
* 62. Employees of the division for youth assigned to transport and warrants units who are specifically designated by the director in accordance with section five hundred four-b of the executive law, provided, however, that nothing in this subdivision shall be deemed to authorize such employees to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
* NB There are 2 sub 62's
* 63. Uniformed members of the fire marshal's office in the town of Southampton and the town of Riverhead, when acting pursuant to their special duties in matters arising under the laws relating to fires, the extinguishment thereof and fire perils; provided, however that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
* NB There are 2 sub 63's
* 63. Employees of the town court of the town of Greenburgh serving as a security officer; provided, however, that nothing in this subdivision will be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law or to authorize such officer to carry or possess a firearm except while on duty.
* NB There are 2 sub 63's
64. Cell block attendants employed by the city of Buffalo police department; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
65. Chief fire marshall, assistant chief fire marshall, fire marshall II and fire marshall I, all of whom are full-time employees of the town of Brookhaven, when acting pursuant to their special duties in matters arising under the laws relating to fires, the extinguishment thereof and fire perils; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license thereof has been issued pursuant to section 400.00 of the penal law.
66. Employees of the village court of the village of Spring Valley serving as security officers at such village court; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
67. Employees of the town court of the town of Putnam Valley serving as a security officer; provided, however, that nothing in this subdivision will be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law or to authorize such officer to carry or possess a firearm except while on duty.
* 68. The state inspector general and investigators designated by the state inspector general; provided, however, that nothing in this subdivision shall be deemed to authorize the state inspector general or such investigators to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
* NB There are 5 sub 68's
* 68. Dog control officers of the town of Arcadia, who at the discretion of the town board may be designated as constables for the purpose of enforcing article twenty-six of the agriculture and markets law and for the purpose of issuing appearance tickets permitted under article seven of such law; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
* NB There are 5 sub 68's
* 68. Employees appointed by the sheriff of Livingston county, when acting pursuant to their special duties serving as uniformed marine patrol officers; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license has been issued pursuant to section 400.00 of the penal law or to authorize such officer to carry or possess a firearm except while on duty.
* NB There are 5 sub 68's
* 68. Employees of the town court of the town of Southampton serving as uniformed court officers at such town court; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
* NB There are 5 sub 68's
* 68. Persons employed by the Chautauqua county sheriff's office serving as court security officers; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
* NB There are 5 sub 68's
69. Employees of the village court of the village of Amityville serving as uniformed court officers at such village court; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
70. Employees appointed by the sheriff of Yates county, pursuant to their special duties serving as uniformed marine patrol officers; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license has been issued pursuant to section 400.00 of the penal law or to authorize such officer to carry or possess a firearm except while on duty.
71. Town of Smithtown fire marshalls when acting pursuant to their special duties in matters arising under the laws relating to fires, the extinguishment thereof and fire perils; provided, however, that nothing in this subdivision shall be deemed to authorize such officers to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
72. Persons employed by Canisius college as members of the security force of such college; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
73. Employees of the town court of the town of Newburgh serving as uniformed court officers at such town court; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
* 74. a. Special deputy sheriffs appointed by the sheriff of Tompkins county pursuant to paragraphs b and c of this subdivision; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
b. For the protection of the grounds, buildings and property of Ithaca college the prevention of crime and the enforcement of law and order, and for the enforcement of such rules and regulations as the board of trustees of Ithaca college shall from time to time make, the sheriff of Tompkins county may appoint and remove following consultation with Ithaca college such number of special deputy sheriffs as is determined by the sheriff to be necessary for the maintenance of public order at Ithaca college, such appointments to be made from persons nominated by the president of Ithaca college. Such special deputy sheriffs shall comply with requirements as established by the sheriff and shall act only within Tompkins county. Such special deputy sheriffs so appointed shall be employees of the college and subject to its supervision and control as outlined in the terms and conditions to be mutually agreed upon between the sheriff and Ithaca college. Such special deputy sheriffs shall have the powers of peace officers and shall act solely within the said grounds or premises owned or administered by Ithaca college, except in those rare and special situations when requested by the sheriff to provide assistance on any public highway which crosses or adjoins such property. Ithaca college will provide legal defense and indemnification, and hold harmless the county of Tompkins, its officers and employees and the Tompkins county sheriff, its officers and employees, from all claims arising out of conduct by or injury to, such personnel while carrying out their law enforcement functions except in those situations when they are acting under the direct supervision and control of the county or sheriff's department.
c. Every special deputy sheriff so appointed shall, before entering upon the duties of his or her office, take and subscribe the oath of office prescribed by article thirteen of the constitution of the state of New York which oath shall be filed in the office of the county clerk of Tompkins county. Every special deputy sheriff appointed under this subdivision when on regular duty shall wear conspicuously a metallic shield with a designating number and the words "Special Deputy Sheriff Ithaca College" thereon.
* NB There are 4 sub 74's
* 74. Parks and recreation forest rangers employed by the office of parks, recreation and historic preservation; provided, however, that nothing in this subdivision shall be deemed to authorize such individuals to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
* NB There are 4 sub 74's
* 74. Employees of the village court of the village of Quogue, town of Southampton serving as uniformed court officers at such village court; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
* NB There are 4 sub 74's
* 74. Employees of the town court of the town of East Hampton serving as uniformed court officers at such town court; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
* NB There are 4 sub 74's
* 75. Dog control officers of the town of Clarence, who at the discretion of the town board may be designated as constables for the purpose of enforcing article twenty-six of the agriculture and markets law and for the purpose of issuing appearance tickets permitted under article seven of the agriculture and markets law; provided, however, that nothing in this subdivision shall be deemed to authorize such officers to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
* NB There are 3 sub 75's
* 75. Airport security guards, senior airport security guards, airport security supervisors, retired police officers, and supervisors of same, who are designated by resolution of the town board of the town of Islip to provide security at Long Island MacArthur Airport when acting pursuant to their duties as such, and such authority being specifically limited to the grounds of the said airport. However, nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
* NB There are 3 sub 75's
* 75. Officers and members of the fire investigation unit of the fire department of the city of Buffalo when acting pursuant to their special duties in matters arising under the laws relating to fires, the extinguishment thereof and fire perils; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
* NB There are 3 sub 75's
* 76. Employees of the village court of the village of Southampton, town of Southampton serving as uniformed court officers at such village court; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
* NB There are 2 sub 76's
* 76. Animal control officers employed by the city of Peekskill; provided, however, that nothing in this subdivision shall be deemed to authorize such individuals to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
* NB There are 2 sub 76's
* 77. (a) Syracuse University peace officers appointed by the chief law enforcement officer of the city of Syracuse pursuant to paragraphs (b), (c) and (d) of this subdivision, who shall be authorized to issue appearance tickets and simplified traffic informations; provided, however, that nothing in this subdivision shall be deemed to authorize any such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
(b) For the protection of the grounds, buildings and property of Syracuse University, the prevention of crime and the enforcement of law and order, and for the enforcement of such rules and regulations as Syracuse University shall from time to time establish, the chief law enforcement officer of the city of Syracuse may appoint and remove, following consultations with Syracuse University; such number of Syracuse University peace officers as is determined by the chief law enforcement officer of the city of Syracuse to be necessary for the maintenance of public order at such university, such appointments to be made from persons nominated by the chancellor of Syracuse University. Such peace officers shall comply with such requirements as shall be established by the chief law enforcement officer of the city of Syracuse. Such Syracuse University peace officers so appointed shall be employees of such university, and subject to its supervision and control and the terms and conditions to be mutually agreed upon between the chief law enforcement officer of the city of Syracuse and Syracuse University. Nothing in this paragraph shall limit the authority of Syracuse University to remove such peace officers. Such Syracuse University peace officers shall have the powers of peace officers within the geographical area of employment of the grounds or premises owned, controlled or administrated by Syracuse University within the county of Onondaga, except in those situations when requested by the chief law enforcement officer of the city of Syracuse or his or her designee, including by means of written protocols agreed to by the chief law enforcement officer of the city of Syracuse and Syracuse University, to provide assistance on any public highway which crosses or adjoins such grounds or premises. Syracuse University shall provide legal defense and indemnification, and hold harmless the city of Syracuse, and its officers and employees from all claims arising out of conduct by or injury to, such peace officers while carrying out their law enforcement functions, except in those situations when they are acting under the direct supervision and control of the chief law enforcement officer of the city of Syracuse, or his or her designee.
(c) Every Syracuse University peace officer so appointed shall, before entering upon the duties of his or her office, take and subscribe the oath of office prescribed by article thirteen of the state constitution, which oath shall be filed in the office of the county clerk of the county of Onondaga. Every such peace officer appointed pursuant to this subdivision when on regular duty shall conspicuously wear a metallic shield with a designating number and the words "Syracuse University Peace Officer" engraved thereon.
(d) To become eligible for appointment as a Syracuse University peace officer a candidate shall, in addition to the training requirements as set forth in section 2.30 of this article, complete the course of instruction in public and private law enforcement established pursuant to paragraph (c) of subdivision five of section sixty-four hundred fifty of the education law.
* NB There are 2 sub 77's
* 77. Chief fire marshal, assistant chief fire marshal, and fire marshals, all of whom are full-time employees of the town of East Hampton, when acting pursuant to their special duties in matters arising under the laws relating to fires, the extinguishment thereof and fire perils; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
* NB There are 2 sub 77's
78. A security officer employed by a community college who is specifically designated as a peace officer by the board of trustees of a community college pursuant to subdivision five-a of section sixty-three hundred six of the education law, or by a community college regional board of trustees pursuant to subdivision four-a of section sixty-three hundred ten of the education law; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
* 79. Court security officers employed by the Wayne county sheriff's office; provided however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
* NB There are 4 sub 79's
* 79. Supervisors and members of the arson investigation bureau and fire inspection bureau of the office of fire prevention and control when acting pursuant to their special duties in matters arising under the laws relating to fires, their prevention, extinguishment, investigation thereof, and fire perils; provided, however, that nothing in this subdivision shall be deemed to authorize such employees to carry, possess, repair, or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
* NB There are 4 sub 79's
* 79. Peace officers appointed by the city university of New York pursuant to subdivision sixteen of section sixty-two hundred six of the education law, who shall have the powers set forth in section 2.20 of this article whether or not they are acting pursuant to their special duties; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
* NB There are 4 sub 79's
* 79. Animal control officers of the city of Elmira, who at the discretion of the city council of the city of Elmira may be designated as constables for the purpose of enforcing article twenty-six of the agriculture and markets law, and for the purpose of issuing appearance tickets permitted under article seven of such law; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
* NB There are 4 sub 79's
80. Employees of the Onondaga county sheriff's department serving as uniformed court security officers at Onondaga county court facilities; provided, however, that nothing in this subdivision shall be deemed to authorize such officers to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
* 81. Members of the security force employed by Erie County Medical Center; provided however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
* NB There are 6 sb 81's
* 81. Employees of the town of Riverhead serving as court officers at town of Riverhead court facilities; provided, however, that nothing in this subdivision shall be deemed to authorize such officers to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
* NB There are 6 sb 81's
* 81. Employees of the town court of the town of Southold serving as uniformed court officers at such town court; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
* NB There are 6 sb 81's
* 81. Commissioners of and court officers in the department of public safety for the town of Rye when acting pursuant to their special duties in matters arising under the laws relating to maintaining the safety and security of citizens, judges and court personnel in the town court, and effecting the safe and secure transport of persons under the custody of said department; provided, however, that nothing in this subdivision shall be deemed to authorize such employees to carry, possess, repair, or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
* NB There are 6 sb 81's
* 81. Employees of the town of Yorktown serving as court attendants at town of Yorktown court facilities; provided, however, that nothing in this subdivision shall be deemed to authorize such employees to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
* NB There are 6 sb 81's
* 81. Employees of the Lewis county sheriff's department serving as uniformed court security officers at Lewis county court facilities; provided, however, that nothing in this subdivision shall be deemed to authorize such officers to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
* NB There are 6 sb 81's
82. Employees of the New York city business integrity commission designated as peace officers by the chairperson of such commission; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
83. Members of the security force employed by Kaleida Health within and directly adjacent to the hospital buildings on the medical campus located between East North Street, Goodell Street, Main Street and Michigan Avenue. These officers shall only have the powers listed in paragraph (c) of subdivision one of section 2.20 of this article, as well as the power to detain an individual for a reasonable period of time while awaiting the arrival of law enforcement, provided that the officer has actual knowledge, or probable cause to believe, that such individual has committed an offense; provided however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
84. (a) Public safety officers employed by the University of Rochester who are designated as peace officers by the board of trustees of the University of Rochester pursuant to paragraphs (b), (c), and (d) of this subdivision; provided, however, that nothing in this subdivision shall be deemed to authorize any such officer to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
(b) For the protection of the grounds, buildings and property of the University of Rochester, the prevention of crime and the enforcement of law and order, the board of trustees of the University of Rochester may appoint and remove such number of public safety officers designated as peace officers as is determined by the board of trustees to be necessary for the maintenance of public order consistent with this subdivision. Such peace officers shall comply with such requirements as shall be mutually agreed upon between the chief law enforcement officers of the applicable local law enforcement jurisdictions and the University of Rochester. Such University of Rochester peace officers so appointed shall be employees of the University of Rochester and subject to its supervision and control. Such University of Rochester peace officers shall have the powers of peace officers within the geographic area of employment of the grounds or premises owned, controlled or administered by the University of Rochester within the county of Monroe, on any public street and sidewalk that abuts the grounds, buildings or property of such university, and beyond such geographic area upon the request of the chief law enforcement officer of the local law enforcement jurisdiction or his or her designee, for the purpose of transporting an individual who has been arrested in accordance with section 140.27 of this chapter and when no local law enforcement officer is available for transporting such individual in a timely manner.
(c) The University of Rochester shall provide legal defense and indemnification to applicable municipality and its officers and employees, and hold them harmless, against all claims arising out of conduct by or injury to such peace officers while carrying out their special duties, except in those situations when they are acting as agents of the chief law enforcement officer of the applicable local law enforcement jurisdiction or his or her designee.
(d) To become eligible for designation as a University of Rochester peace officer, a candidate shall, in addition to the training requirements as set forth in section 2.30 of this article, complete the course of instruction in public and private law enforcement established pursuant to subdivision three of section sixty-four hundred thirty-five of the education law.
85. Uniformed members of the bureau of fire prevention of the town of Islip, when acting pursuant to their special duties in matters arising under laws relating to fires, the extinguishment thereof and fire perils; provided, however, that nothing in this subdivision shall be deemed to authorize such members to carry, possess, repair or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
86. Investigators appointed by the cannabis control board, pursuant to section ten of the cannabis law; provided, however, that nothing in this subdivision shall be deemed to authorize such officer to carry, possess, repair, or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law.
§ 2.15 Federal law enforcement officers; powers.
The following federal law enforcement officers shall have the powers set forth in paragraphs (a) (with the exception of the powers provided by paragraph (b) of subdivision one and paragraph (b) of subdivision three of section 140.25 of this chapter), (b), (c) and (h) of subdivision one of section 2.20 of this article:
1. Federal Bureau of Investigation special agents.
2. United States Secret Service special agents.
3. Immigration and Customs Enforcement special agents, deportation officers, and detention and deportation officers.
4. United States Marshals and Marshals Service deputies.
5. Drug Enforcement Administration special agents.
6. Federal Protective Officers, including law enforcement security officers, criminal investigators and police officers of the Federal Protective Service.
7. United States Customs and Border Protection Officers and United States Customs and Border Protection Border Patrol agents.
8. United States Postal Service police officers and inspectors.
9. United States park police; provided, however that, notwithstanding any provision of this section to the contrary, such park police shall also have the powers set forth in paragraph (b) of subdivision one of section 140.25 of this chapter and the powers set forth in paragraphs (d), (e) and (g) of subdivision one of section 2.20 of this article.
10. United States probation officers.
11. United States General Services Administration special agents.
12. United States Department of Agriculture special agents.
13. Bureau of Alcohol, Tobacco and Firearms special agents.
14. Internal Revenue Service special agents and inspectors.
15. Officers of the United States bureau of prisons.
16. United States Fish and Wildlife special agents.
17. United States Naval Investigative Service special agents.
18. United States Department of State special agents.
19. Special agents of the defense criminal investigative service of the United States department of defense.
20. United States Department of Commerce, Office of Export Enforcement, special agents.
21. United States Department of Veterans Administration police officers employed at the Veterans Administration Medical Center in Batavia.
22. Federal Reserve law enforcement officers.
23. Federal air marshal program special agents.
* 24. United States department of transportation federal police officers and police supervisors assigned to the United States Merchant Marine Academy in Kings Point, New York; provided, however that, notwithstanding any provision of this section to the contrary, such police shall also have the powers set forth in paragraph (b) of subdivision one of section 140.25 of this chapter and the powers set forth in paragraphs (d), (e) and (g) of subdivision one of section 2.20 of this article when acting pursuant to their special duties within the geographical area of their employment or within one hundred yards of such geographical area.
* NB There are 2 sb 24's
* 24. United States Coast Guard Investigative Service special agents.
* NB There are 2 sb 24's
25. United States Department of Commerce, special agents and enforcement officers of the National Oceanic and Atmospheric Administration's Fisheries Office for Law Enforcement.
26. Department of the Army special agents, detectives and police officers.
27. United States Department of Interior, park rangers with law enforcement authority.
28. United States Environmental Protection Agency special agents with law enforcement authority.
29. United States mint police.
§ 2.16 Watershed protection and enforcement officers; powers, duties, jurisdiction for arrests.
1. Watershed protection and enforcement officers appointed by the city of Peekskill shall have the powers set forth in paragraphs (a), (b), (c), (f), (g), and (h) of subdivision one of section 2.20 of this article; provided, however, that nothing in this section shall be deemed to authorize such officer to carry, possess, repair, or dispose of a firearm unless the appropriate license therefor has been issued pursuant to section 400.00 of the penal law. Watershed protection and enforcement officers shall complete the training requirements set forth in section 2.30 of this article.
2. The city of Peekskill may appoint the following persons as watershed protection and enforcement officers:
(a) the water superintendent;
(b) the deputy assistant to the water superintendent; and
(c) the watershed inspector or inspectors.
3. The duties of the watershed protection and enforcement officers shall be to enforce those provisions of the environmental conservation law and the penal law which relate to the contamination of water in those areas of the Hollow Brook watershed located within the city of Peekskill, including its reservoirs, shoreline, and tributaries, and those areas of the Hollow Brook watershed and Wiccopee reservoir located outside of the city of Peekskill in the counties of Putnam and Westchester, including its reservoirs, shoreline, and tributaries.
4. Notwithstanding paragraph (b) of subdivision thirty-four-a of section 1.20 of this title and paragraph (b) of subdivision five of section 140.25 of this chapter, watershed protection and enforcement officers are authorized to make arrests and issue appearance tickets in those areas of the Hollow Brook watershed and Wiccopee reservoir located outside of the city of Peekskill in the counties of Putnam and Westchester, including along its reservoirs, shoreline, and tributaries.
§ 2.20 Powers of peace officers.
1. The persons designated in section 2.10 of this article shall have the following powers:
(a) The power to make warrantless arrests pursuant to section 140.25 of this chapter.
(b) The power to use physical force and deadly physical force in making an arrest or preventing an escape pursuant to section 35.30 of the penal law.
(c) The power to carry out warrantless searches whenever such searches are constitutionally permissible and acting pursuant to their special duties.
(d) The power to issue appearance tickets pursuant to subdivision three of section 150.20 of this chapter, when acting pursuant to their special duties. New York city special patrolmen shall have the power to issue an appearance ticket only when it is pursuant to rules and regulations of the police commissioner of the city of New York.
(e) The power to issue uniform appearance tickets pursuant to article twenty-seven of the parks, recreation and historic preservation law and to issue simplified traffic informations pursuant to section 100.25 of this chapter and section two hundred seven of the vehicle and traffic law whenever acting pursuant to their special duties.
(f) The power to issue a uniform navigation summons and/or complaint pursuant to section nineteen of the navigation law whenever acting pursuant to their special duties.
(g) The power to issue uniform appearance tickets pursuant to article seventy-one of the environmental conservation law, whenever acting pursuant to their special duties.
(h) The power to possess and take custody of firearms not owned by the peace officer, for the purpose of disposing, guarding, or any other lawful purpose, consistent with his duties as a peace officer.
(i) Any other power which a particular peace officer is otherwise authorized to exercise by any general, special or local law or charter whenever acting pursuant to his special duties, provided such power is not inconsistent with the provisions of the penal law or this chapter.
(j) Uniformed court officers shall have the power to issue traffic summonses and complaints for parking, standing, or stopping violations pursuant to the vehicle and traffic law whenever acting pursuant to their special duties.
2. For the purposes of this section a peace officer acts pursuant to his special duties when he performs the duties of his office, pursuant to the specialized nature of his particular employment, whereby he is required or authorized to enforce any general, special or local law or charter, rule, regulation, judgment or order.
3. A peace officer, whether or not acting pursuant to his special duties, who lawfully exercises any of the powers conferred upon him pursuant to this section, shall be deemed to be acting within the scope of his public employment for purposes of defense and indemnification rights and benefits that he may be otherwise entitled to under the provisions of section fifty-k of the general municipal law, section seventeen or eighteen of the public officers law, or any other applicable section of law.
§ 2.30 Training requirements for peace officers.
1. Every peace officer in the state of New York must successfully complete a training program, a portion of which shall be prescribed by the municipal police training council and a portion of which shall be prescribed by his or her employer. The portion prescribed by the municipal police training council shall be comprised of subjects, and the hours each is to be taught, that shall be required of all types or classes of peace officers. The hours of instruction required by the municipal police training council shall not exceed one hundred eighty, unless a greater amount is either required by law or regulation, or is requested by the employer.
The segment prescribed by the employer for its employees shall be comprised of subjects, and the hours each is to be taught, relating to the special nature of the duties of the peace officers employed by it provided, however, that when the subjects prescribed by the employer are identical to the subjects in the training program required by the municipal police training council, the employer shall not be required to provide duplicate training for those subjects.
2. Each state or local agency, unit of local government, state or local commission, or public authority, or public or private organization which employs peace officers shall provide the training mandated by this section, the cost of which will be borne by the employer. Each peace officer satisfactorily completing the course prescribed by the municipal police training council shall be awarded a certificate by the division of criminal justice services attesting to that effect, and no person appointed as a peace officer shall exercise the powers of a peace officer, unless he or she has received such certification within twelve months of appointment.
3. No employer shall allow any peace officer it employs to carry or use a weapon during any phase of the officer's official duties, which constitutes on-duty employment, unless the officer has satisfactorily completed a course of training approved by the municipal police training council in the use of deadly physical force and firearms and other weapons, and annually receives instruction in deadly physical force and the use of firearms and other weapons as approved by the municipal police training council.
4. Upon the failure or refusal to comply with the requirements of this section, the commissioner of the division of criminal justice services shall apply to the supreme court for an order directed to the person responsible requiring compliance. Upon such application, the court may issue such order as may be just, and a failure to comply with the order of the court shall be a contempt of court and punishable as such.
5. Every employer of peace officers shall report to the division of criminal justice services, in such form and at such time as the division may by regulation require, the names of all peace officers who have satisfactorily completed any of the training requirements prescribed by this section.
6. A certificate attesting to satisfactory completion of the training requirements imposed under this section awarded to any peace officer by the executive director of the municipal police training council pursuant to this section shall remain valid:
(a) during the holder's continuous service as a peace officer; and
(b) for two years after the date of the commencement of an interruption in such service where the holder had, immediately prior to such interruption, served as a peace officer for less than two consecutive years; or
(c) for four years after the date of the commencement of an interruption in such service where the holder had, immediately prior to such interruption, served as a peace officer for two consecutive years or longer.
As used in this subdivision, the term "interruption" shall mean a period of separation from employment as a peace officer by reason of such officer's leave of absence, resignation or removal, other than removal for cause.
TITLE B--THE CRIMINAL COURTS
ARTICLE 10--THE CRIMINAL COURTS
Section 10.10 The criminal courts; enumeration and definitions.
10.20 Superior courts; jurisdiction.
10.30 Local criminal courts; jurisdiction.
10.40 Chief administrator to prescribe forms and to authorize use of electronic filing.
§ 10.10 The criminal courts; enumeration and definitions.
1. The "criminal courts" of this state are comprised of the superior courts and the local criminal courts.
2. "Superior court" means:
(a) The supreme court; or
(b) A county court.
3. "Local criminal court" means:
(a) A district court; or
(b) The New York City criminal court; or
(c) A city court; or
(d) A town court; or
(e) A village court; or
(f) A supreme court justice sitting as a local criminal court; or
(g) A county judge sitting as a local criminal court.
4. "City court" means any court for a city, other than New York City, having trial jurisdiction of offenses of less than felony grade only committed within such city, whether such court is entitled a city court, a municipal court, a police court, a recorder's court or is known by any other name or title.
5. "Town court." A "town court" is comprised of all the town justices of a town.
6. "Village court." A "village court" is comprised of the justice of a village, or all the justices thereof if there be more than one, or, at a time when he or they are absent, an associate justice of a village who is authorized to perform the functions of a village justice during his absence.
7. Notwithstanding any other provision of this section, a court specified herein which possesses civil as well as criminal jurisdiction does not act as a criminal court when acting solely in the exercise of its civil jurisdiction, and an order or determination made by such a court in its civil capacity is not an order or determination of a criminal court even though it may terminate or otherwise control or affect a criminal action or proceeding.
§ 10.20 Superior courts; jurisdiction.
1. Superior courts have trial jurisdiction of all offenses. They have:
(a) Exclusive trial jurisdiction of felonies; and
(b) Trial jurisdiction of misdemeanors concurrent with that of the local criminal courts; and
(c) Trial jurisdiction of petty offenses, but only when such an offense is charged in an indictment which also charges a crime.
2. Superior courts have preliminary jurisdiction of all offenses, but they exercise such jurisdiction only by reason of and through the agency of their grand juries.
3. Superior court judges may, in their discretion, sit as local criminal courts for the following purposes:
(a) conducting arraignments, as provided in subdivision two of section 170.15 and subdivision two of section 180.20 of this chapter;
(b) issuing warrants of arrests, as provided in subdivision one of section 120.70 of this chapter; and
(c) issuing search warrants, as provided in article six hundred ninety of this chapter.
§ 10.30 Local criminal courts; jurisdiction.
1. Local criminal courts have trial jurisdiction of all offenses other than felonies. They have:
(a) Exclusive trial jurisdiction of petty offenses except for the superior court jurisdiction thereof prescribed in paragraph (c) of subdivision one of section 10.20; and
(b) Trial jurisdiction of misdemeanors concurrent with that of the superior courts but subject to divestiture thereof by the latter in any particular case.
2. Local criminal courts have preliminary jurisdiction of all offenses subject to divestiture thereof in any particular case by the superior courts and their grand juries.
3. Notwithstanding the provisions of subdivision one, a superior court judge sitting as a local criminal court does not have trial jurisdiction of any offense, but has preliminary jurisdiction only, as provided in subdivision two.
* § 10.40 Chief administrator to prescribe forms and to authorize use of electronic filing.
1. The chief administrator of the courts shall have the power to adopt, amend and rescind forms for the efficient and just administration of this chapter. Such forms shall include, without limitation, the forms described in paragraph (z-1) of subdivision two of section two hundred twelve of the judiciary law. A failure by any party to submit papers in compliance with forms authorized by this section shall not be grounds for that reason alone for denial or granting of any motion.
2. (a) Notwithstanding any other provision of law, the chief administrator, with the approval of the administrative board of the courts, may promulgate rules authorizing a program in the use of electronic means ("e-filing") in the supreme court and in the county court for (i) the filing with a court of an accusatory instrument for the purpose of commencement of a criminal action or proceeding in a superior court, as provided by articles one hundred ninety-five and two hundred of this chapter, and (ii) the filing and service of papers in pending criminal actions and proceedings. Provided, however, the chief administrator shall consult with the county clerk of a county outside the city of New York before the use of electronic means is to be authorized in the supreme court or county court of such county, afford him or her the opportunity to submit comments with respect thereto, consider any such comments and obtain the agreement thereto of such county clerk.
(b) (i) Except as otherwise provided in this paragraph, participation in this program shall be strictly voluntary and will take place only upon consent of all parties in the criminal action or proceeding; except that a party's failure to consent to participation shall not bar any other party to the action from filing and serving papers by electronic means upon the court or any other party to such action or proceeding who has consented to participation. Filing an accusatory instrument by electronic means with the court for the purpose of commencement of a criminal action or proceeding shall not require the consent of any other party; provided, however, that upon such filing any person who is the subject of such accusatory instrument and any attorney for such person shall be permitted to immediately review and obtain copies of such instrument if such person or attorney would have been authorized by law to review or copy such instrument if it had been filed with the court in paper form.
No party shall be compelled, directly or indirectly, to participate in e-filing. All parties shall be notified clearly, in plain language, about their options to participate in e-filing. Where a party is not represented by counsel, the clerk shall explain such party's options for electronic filing in plain language, including the option for expedited processing, and shall inquire whether he or she wishes to participate, provided however the unrepresented litigant may participate in the program only upon his or her request, which shall be documented in the case file, after said party has been presented with sufficient information in plain language concerning the program.
(ii) The chief administrator may eliminate the requirement of consent to participation in this program in supreme and county courts of not more than six counties provided he or she may not eliminate such requirement for a court without the consent of the district attorney, the consent of the criminal defense bar as defined in subdivision three of this section and the consent of the county clerk of the county in which such court presides.
Notwithstanding the foregoing provisions of this subparagraph, the chief administrator shall not eliminate the requirement of consent to participation in a county hereunder until he or she shall have provided all persons and organizations, or their representative or representatives, who regularly appear in criminal actions or proceedings in the superior court of such county with reasonable notice and opportunity to submit comments with respect thereto and shall have given due consideration to all such comments, nor until he or she shall have consulted with the members of the advisory committee specified in subparagraph (v) of paragraph (u) of subdivision two of section two hundred twelve of the judiciary law.
(c) Where the chief administrator eliminates the requirement of consent as provided in subparagraph (ii) of paragraph (b) of this subdivision, he or she shall afford counsel the opportunity to opt out of the program, via presentation of a prescribed form to be filed with the court where the criminal action is pending. Said form shall permit an attorney to opt out of participation in the program under any of the following circumstances, in which event, he or she will not be compelled to participate:
(i) Where the attorney certifies in good faith that he or she lacks appropriate computer hardware and/or connection to the internet and/or scanner or other device by which documents may be converted to an electronic format; or
(ii) Where the attorney certifies in good faith that he or she lacks the requisite knowledge in the operation of such computers and/or scanners necessary to participate. For the purposes of this subparagraph, the knowledge of any employee of an attorney, or any employee of the attorney's law firm, office or business who is subject to such attorney's direction, shall be imputed to the attorney.
Notwithstanding the foregoing provisions of this paragraph: (A) where a party is not represented by counsel, the clerk shall explain such party's options for electronic filing in plain language, including the option for expedited processing, and shall inquire whether he or she wishes to participate, provided however the unrepresented litigant may participate in the program only upon his or her request, which shall be documented in the case file, after said party has been presented with sufficient information in plain language concerning the program; (B) a party not represented by counsel who has chosen to participate in the program shall be afforded the opportunity to opt out of the program for any reason via presentation of a prescribed form to be filed with the clerk of the court where the proceeding is pending; and (C) a court may exempt any attorney from being required to participate in the program upon application for such exemption, showing good cause therefor.
(d)(i) Nothing in this section shall affect or change any existing laws governing the sealing and confidentiality of court records in criminal proceedings or access to court records by the parties to such proceedings, nor shall this section be construed to compel a party to file a sealed document by electronic means.
(ii) Notwithstanding any other provision of this section, no paper or document that is filed by electronic means in a criminal proceeding in supreme court or county court shall be available for public inspection on-line. Subject to the provisions of existing laws governing the sealing and confidentiality of court records, nothing herein shall prevent the unified court system from sharing statistical information that does not include any papers or documents filed with the action; and, provided further, that this paragraph shall not prohibit the chief administrator, in the exercise of his or her discretion, from posting papers or documents that have not been sealed pursuant to law on a public website maintained by the unified court system where: (A) the website is not the website established by the rules promulgated pursuant to paragraph (a) of this subdivision, and (B) to do so would be in the public interest. For purposes of this subparagraph, the chief administrator, in determining whether posting papers or documents on a public website is in the public interest, shall, at a minimum, take into account for each posting the following factors: (A) the type of case involved; (B) whether such posting would cause harm to any person, including especially a minor or crime victim; (C) whether such posting would include lewd or scandalous matters; and (D) the possibility that such papers or documents may ultimately be sealed.
(iii) Nothing in this section shall affect or change existing laws governing service of process, nor shall this section be construed to abrogate existing personal service requirements as set forth in the criminal procedure law.
3. For purposes of this section, the following terms shall have the following meanings:
(a) "Consent of the criminal defense bar" shall mean that consent has been obtained from all provider offices and/or organizations in the county that represented twenty-five percent or more of the persons represented by public defense providers pursuant to section seven hundred twenty-two of the county law, as shown in the most recent annual reports filed pursuant to subdivision one of section seven hundred twenty-two-f of the county law. Such consent, when given, must be expressed in a written document that is provided by a person who is authorized to consent on behalf of the relevant public defender organization, agency or office; and
(b) "Electronic means" shall be as defined in subdivision (f) of rule twenty-one hundred three of the civil practice law and rules; and
(c) The "filing and service of papers in pending criminal actions and proceedings" shall include the filing and service of a notice of appeal pursuant to section 460.10 of this chapter.
* NB Effective until September 1, 2027 * § 10.40 Chief administrator to prescribe forms.
The chief administrator of the courts shall have the power to adopt, amend and rescind forms for the efficient and just administration of this chapter. Such forms shall include, without limitation, the forms described in paragraph (z-1) of subdivision two of section two hundred twelve of the judiciary law. A failure by any party to submit papers in compliance with forms authorized by this section shall not be grounds for that reason alone for denial or granting of any motion.
* NB Effective September 1, 2027
TITLE C-GENERAL PRINCIPLES RELATING TO REQUIREMENTS FOR AND EXEMPTIONS FROM CRIMINAL PROSECUTION
ARTICLE 20--GEOGRAPHICAL JURISDICTION OF OFFENSES
Section 20.10 Geographical jurisdiction of offenses; definitions of terms.
20.20 Geographical jurisdiction of offenses; jurisdiction of state.
20.30 Geographical jurisdiction of offenses; effect of laws of other jurisdictions upon this state's jurisdiction.
20.40 Geographical jurisdiction of offenses; jurisdiction of counties.
20.50 Geographical jurisdiction of offenses; jurisdiction of cities, towns and villages.
20.60 Geographical jurisdiction of offenses; communications and transportation of property between jurisdictions.
§ 20.20 Geographical jurisdiction of offenses; jurisdiction of state.
Except as otherwise provided in this section and section 20.30, a person may be convicted in the criminal courts of this state of an offense defined by the laws of this state, committed either by his own conduct or by the conduct of another for which he is legally accountable pursuant to section 20.00 of the penal law, when:
1. Conduct occurred within this state sufficient to establish:
(a) An element of such offense; or
(b) An attempt to commit such offense; or
(c) A conspiracy or criminal solicitation to commit such offense, or otherwise to establish the complicity of at least one of the persons liable therefor; provided that the jurisdiction accorded by this paragraph extends only to conviction of those persons whose conspiratorial or other conduct of complicity occurred within this state; or
2. Even though none of the conduct constituting such offense may have occurred within this state:
(a) The offense committed was a result offense and the result occurred within this state. If the offense was one of homicide, it is presumed that the result, namely the death of the victim, occurred within this state if the victim's body or a part thereof was found herein; or
(b) The statute defining the offense is designed to prevent the occurrence of a particular effect in this state and the conduct constituting the offense committed was performed with intent that it would have such effect herein; or
(c) The offense committed was an attempt to commit a crime within this state; or
(d) The offense committed was conspiracy to commit a crime within this state and an overt act in furtherance of such conspiracy occurred within this state; or
3. The offense committed was one of omission to perform within this state a duty imposed by the laws of this state. In such case, it is immaterial whether such person was within or outside this state at the time of the omission.
§ 20.30 Geographical jurisdiction of offenses; effect of laws of other jurisdictions upon this state's jurisdiction.
1. Notwithstanding the provisions of section 20.20, the courts of this state do not have jurisdiction to convict a person of an alleged offense partly committed within this state but consummated in another jurisdiction, or an offense of criminal solicitation, conspiracy or attempt in this state to commit a crime in another jurisdiction, or an offense of criminal facilitation in this state of a felony committed in another jurisdiction, unless the conduct constituting the consummated offense or, as the case may be, the conduct constituting the crime solicited, conspiratorially contemplated or facilitated, constitutes an offense under the laws of such other jurisdiction as well as under the laws of this state.
2. The courts of this state are not deprived of the jurisdiction accorded them by section 20.20 to convict a person of an offense defined by the laws of this state, partly committed in another jurisdiction but consummated in this state, or an offense of attempt or conspiracy in another jurisdiction to commit in this state a crime defined by the laws of this state, by the circumstance that the conduct constituting the consummated offense or, as the case may be, the crime attempted or conspiratorially contemplated, does not constitute an offense under the laws of such other jurisdiction.
§ 20.40 Geographical jurisdiction of offenses; jurisdiction of counties.
A person may be convicted in an appropriate criminal court of a particular county, of an offense of which the criminal courts of this state have jurisdiction pursuant to section 20.20, committed either by his or her own conduct or by the conduct of another for which he or she is legally accountable pursuant to section 20.00 of the penal law, when:
1. Conduct occurred within such county sufficient to establish:
(a) An element of such offense; or
(b) An attempt or a conspiracy to commit such offense; or
2. Even though none of the conduct constituting such offense may have occurred within such county:
(a) The offense committed was a result offense and the result occurred in such county; or
(b) The offense committed was one of homicide and the victim's body or a part thereof was found in such county; or
(c) Such conduct had, or was likely to have, a particular effect upon such county or a political subdivision or part thereof, and was performed with intent that it would, or with knowledge that it was likely to, have such particular effect therein; or
(d) The offense committed was attempt, conspiracy or criminal solicitation to commit a crime in such county; or
(e) The offense committed was criminal facilitation of a felony committed in such county; or
3. The offense committed was one of omission to perform a duty imposed by law, which duty either was required to be or could properly have been performed in such county. In such case, it is immaterial whether such person was within or outside such county at the time of the omission; or
4. Jurisdiction of such offense is accorded to the courts of such county pursuant to any of the following rules:
(a) An offense of abandonment of a child or non-support of a child may be prosecuted in (i) any county in which such child resided during the period of abandonment or non-support, or (ii) any county in which such person resided during such period, or (iii) any county in which such person was present during such period, provided that he was arrested for such offense in such county or the criminal action therefor was commenced while he was present therein.
(b) An offense of bigamy may be prosecuted either in the county in which such offense was committed or in (i) any county in which bigamous cohabitation subsequently occurred, or (ii) any county in which such person was present after the commission of the offense, provided that he was arrested for such offense in such county or the criminal action therefor was commenced while he was present therein.
(c) An offense committed within five hundred yards of the boundary of a particular county, and in an adjoining county of this state, may be prosecuted in either such county.
(d) An offense committed anywhere on the Hudson river southward of the northern boundary of New York City, or anywhere on New York bay between Staten Island and Long Island, may be prosecuted in any of the five counties of New York City.
(e) An offense committed upon any bridge or in any tunnel having terminals in different counties may be prosecuted in any terminal county.
(f) An offense committed on board a railroad train, aircraft or omnibus operating as a common carrier may be prosecuted in any county through or over which such common carrier passed during the particular trip, or in any county in which such trip terminated or was scheduled to terminate.
(g) An offense committed in a private vehicle during a trip thereof extending through more than one county may be prosecuted in any county through which such vehicle passed in the course of such trip.
(h) An offense committed on board a vessel navigating or lying in any river, canal or lake flowing through or situated within this state, may be prosecuted in any county bordering upon such body of water, or in which it is located, or through which it passes; and if such offense was committed upon a vessel operating as a common carrier, it may be prosecuted in any county bordering upon any body of water upon which such vessel navigated or passed during the particular trip.
(i) An offense committed in the Atlantic Ocean within two nautical miles from the shore at high water mark may be prosecuted in an appropriate court of the county the shore line of which is closest to the point where the offense was committed. A crime committed more than two nautical miles from the shore but within the boundary of this state may be prosecuted in the supreme court of the county the shore line of which is closest to the point where the crime was committed.
(j) An offense of forgery may be prosecuted in any county in which the defendant, or another for whose conduct the defendant is legally accountable pursuant to section 20.00 of the penal law, possessed the instrument.
(k) An offense of offering of a false instrument for filing, or of larceny by means of a false pretense therein, may be prosecuted (i) in any county in which such instrument was executed, in whole or in part, or (ii) in any county in which any of the goods or services for which payment or reimbursement is sought by means of such instrument were purported to have been provided.
(l) An offense of identity theft or unlawful possession of personal identifying information and all criminal acts committed as part of the same criminal transaction as defined in subdivision two of section 40.10 of this chapter may be prosecuted (i) in any county in which part of the offense took place regardless of whether the defendant was actually present in such county, or (ii) in the county in which the person who suffers financial loss resided at the time of the commission of the offense, or (iii) in the county where the person whose personal identifying information was used in the commission of the offense resided at the time of the commission of the offense. The law enforcement agency of any such county shall take a police report of the matter and provide the complainant with a copy of such report at no charge.
(m) An offense under the tax law or the penal law of filing a false or fraudulent return, report, document, declaration, statement, or filing, or of tax evasion, fraud, or larceny resulting from the filing of a false or fraudulent return, report, document, declaration, or filing in connection with the payment of taxes to the state or a political subdivision of the state, may be prosecuted in any county in which an underlying transaction reflected, reported or required to be reflected or reported, in whole or part, on such return, report, document, declaration, statement, or filing occurred.
(n) (i) An organized retail theft crime, where the defendant knows that such crime is a part of a coordinated plan, scheme or venture of organized retail theft crimes committed by two or more persons, may be prosecuted in any county in which such defendant committed at least one such organized retail theft crime; provided, however, that the county of prosecution is contiguous to another county in which one or more of such other organized retail theft crimes was committed. Multiple organized retail theft crimes committed by the same defendant may be joined in one indictment if authorized and appropriate in accordance with the provisions of section 200.20 of this chapter, provided, however, that notwithstanding section 200.40 of this chapter, no more than one defendant may be charged in the same indictment or prosecuted as part of the same trial under this paragraph. For purposes of this paragraph, the five counties that comprise New York city shall be deemed contiguous with each other.
(ii) For purposes of this paragraph, "organized retail theft crime" shall mean the crime of larceny, including by trick, fraud, embezzlement, stealing or false pretenses, of retail merchandise in quantities that would not normally be purchased for personal use or consumption, for the purposes of reselling, trading, or otherwise reentering such retail merchandise in commerce.
§ 20.50 Geographical jurisdiction of offenses; jurisdiction of cities, towns and villages.
1. The principles prescribed in section 20.40, governing geographical jurisdiction over offenses as between counties of this state, are, where appropriate, applicable to the determination of geographical jurisdiction over offenses as between cities, towns and villages within a particular county unless a different determination is required by the provisions of some other express provision of statute.
2. Where an offense prosecutable in a local criminal court is committed in a city other than New York City, or in a town or village, but within one hundred yards of any other such political subdivision, it may be prosecuted in either such political subdivision.
§ 20.60 Geographical jurisdiction of offenses; communications and transportation of property between jurisdictions.
For purposes of this article:
1. An oral or written statement made by a person in one jurisdiction to a person in another jurisdiction by means of telecommunication, mail or any other method of communication is deemed to be made in each such jurisdiction.
2. A person who causes property to be transported from one jurisdiction to another by means of mail, common carrier or any other method is deemed to have personally transported it in each jurisdiction, and if delivery is made in the second jurisdiction he is deemed to have personally made such delivery therein.
3. A person who causes by any means the use of a computer or computer service in one jurisdiction from another jurisdiction is deemed to have personally used the computer or computer service in each jurisdiction.
ARTICLE 30--TIMELINESS OF PROSECUTIONS AND SPEEDY TRIAL
Section 30.10 Timeliness of prosecutions; periods of limitation.
30.20 Speedy trial; in general.
30.30 Speedy trial; time limitations.
§ 30.10 Timeliness of prosecutions; periods of limitation.
1. A criminal action must be commenced within the period of limitation prescribed in the ensuing subdivisions of this section.
2. Except as otherwise provided in subdivision three:
(a) A prosecution for a class A felony, or rape in the first degree as defined in section 130.35 of the penal law, or a crime defined or formerly defined in section 130.50 of the penal law, or aggravated sexual abuse in the first degree as defined in section 130.70 of the penal law, or course of sexual conduct against a child in the first degree as defined in section 130.75 of the penal law, or incest in the first degree as defined in section 255.27 of the penal law may be commenced at any time;
(a-1) A prosecution for rape in the second degree as defined in subdivision two of section 130.30 of the penal law, or criminal sexual act in the second degree as defined in subdivision two of section 130.45 of the penal law, or incest in the second degree as defined in section 255.26 of the penal law (where the crime committed is rape in the second degree as defined in subdivision two of section 130.30 of the penal law or criminal sexual act in the second degree as defined in subdivision two of section 130.45) must be commenced within twenty years after the commission thereof or within ten years from when the offense is first reported to law enforcement, whichever occurs earlier;
(a-2) A prosecution for rape in the third degree as defined in subdivision one or three of section 130.25 of the penal law, or criminal sexual act in the third degree as defined in subdivision one or three of section 130.40 of the penal law must be commenced within ten years after the commission thereof;
(b) A prosecution for any other felony must be commenced within five years after the commission thereof;
(c) A prosecution for a misdemeanor must be commenced within two years after the commission thereof;
(d) A prosecution for a petty offense must be commenced within one year after the commission thereof.
3. Notwithstanding the provisions of subdivision two, the periods of limitation for the commencement of criminal actions are extended as follows in the indicated circumstances:
(a) A prosecution for larceny committed by a person in violation of a fiduciary duty may be commenced within one year after the facts constituting such offense are discovered or, in the exercise of reasonable diligence, should have been discovered by the aggrieved party or by a person under a legal duty to represent him who is not himself implicated in the commission of the offense.
(b) A prosecution for any offense involving misconduct in public office by a public servant including, without limitation, an offense defined in article four hundred ninety-six of the penal law, may be commenced against a public servant, or any other person acting in concert with such public servant at any time during such public servant's service in such office or within five years after the termination of such service; provided however, that in no event shall the period of limitation be extended by more than five years beyond the period otherwise applicable under subdivision two of this section.
(c) A prosecution for any crime set forth in title twenty-seven or article seventy-one of the environmental conservation law may be commenced within four years after the facts constituting such crime are discovered or, in the exercise of reasonable diligence, should have been discovered by a public servant who has the responsibility to enforce the provisions of said title and article.
(d) A prosecution for any misdemeanor set forth in the tax law or chapter forty-six of the administrative code of the city of New York must be commenced within three years after the commission thereof.
(e) A prosecution for course of sexual conduct against a child in the second degree as defined in section 130.80 of the penal law may be commenced within five years of the commission of the most recent act of sexual conduct.
(f) For purposes of a prosecution involving a sexual offense as defined in article one hundred thirty of the penal law, other than a sexual offense delineated in paragraph (a) of subdivision two of this section, committed against a child less than eighteen years of age, incest in the first, second or third degree as defined in sections 255.27, 255.26 and 255.25 of the penal law committed against a child less than eighteen years of age, or use of a child in a sexual performance as defined in section 263.05 of the penal law, the period of limitation shall not begin to run until the child has reached the age of twenty-three or the offense is reported to a law enforcement agency or statewide central register of child abuse and maltreatment, whichever occurs earlier.
(g) A prosecution for any felony defined in article four hundred ninety of the penal law must be commenced within eight years after the commission thereof provided, however, that in a prosecution for a felony defined in article four hundred ninety of the penal law, if the commission of such felony offense resulted in, or created a foreseeable risk of, death or serious physical injury to another person, the prosecution may be commenced at any time; provided, however, that nothing in this paragraph shall be deemed to shorten or otherwise lessen the period, defined in any other applicable law, in which a prosecution for a felony designated in this paragraph may be commenced.
4. In calculating the time limitation applicable to commencement of a criminal action, the following periods shall not be included:
(a) Any period following the commission of the offense during which (i) the defendant was continuously outside this state or (ii) the whereabouts of the defendant were continuously unknown and continuously unascertainable by the exercise of reasonable diligence. However, in no event shall the period of limitation be extended by more than five years beyond the period otherwise applicable under subdivision two.
(b) When a prosecution for an offense is lawfully commenced within the prescribed period of limitation therefor, and when an accusatory instrument upon which such prosecution is based is subsequently dismissed by an authorized court under directions or circumstances permitting the lodging of another charge for the same offense or an offense based on the same conduct, the period extending from the commencement of the thus defeated prosecution to the dismissal of the accusatory instrument does not constitute a part of the period of limitation applicable to commencement of prosecution by a new charge.
§ 30.10 Timeliness of prosecutions; periods of limitation.
1. A criminal action must be commenced within the period of limitation prescribed in the ensuing subdivisions of this section.
2. Except as otherwise provided in subdivision three:
(a) A prosecution for a class A felony, or rape in the first degree as defined in section 130.35 of the penal law, or a crime defined or formerly defined in section 130.50 of the penal law, or aggravated sexual abuse in the first degree as defined in section 130.70 of the penal law, or course of sexual conduct against a child in the first degree as defined in section 130.75 of the penal law, or incest in the first degree as defined in section 255.27 of the penal law may be commenced at any time;
(a-1) A prosecution for rape in the second degree as defined in subdivision two of section 130.30 of the penal law, or criminal sexual act in the second degree as defined in subdivision two of section 130.45 of the penal law, or incest in the second degree as defined in section 255.26 of the penal law (where the crime committed is rape in the second degree as defined in subdivision two of section 130.30 of the penal law or criminal sexual act in the second degree as defined in subdivision two of section 130.45) must be commenced within twenty years after the commission thereof or within ten years from when the offense is first reported to law enforcement, whichever occurs earlier;
(a-2) A prosecution for rape in the third degree as defined in subdivision one or three of section 130.25 of the penal law, or criminal sexual act in the third degree as defined in subdivision one or three of section 130.40 of the penal law must be commenced within ten years after the commission thereof;
(b) A prosecution for any other felony must be commenced within five years after the commission thereof;
(c) A prosecution for a misdemeanor must be commenced within two years after the commission thereof;
(d) A prosecution for a petty offense must be commenced within one year after the commission thereof.
3. Notwithstanding the provisions of subdivision two, the periods of limitation for the commencement of criminal actions are extended as follows in the indicated circumstances:
(a) A prosecution for larceny committed by a person in violation of a fiduciary duty may be commenced within one year after the facts constituting such offense are discovered or, in the exercise of reasonable diligence, should have been discovered by the aggrieved party or by a person under a legal duty to represent him who is not himself implicated in the commission of the offense.
(b) A prosecution for any offense involving misconduct in public office by a public servant including, without limitation, an offense defined in article four hundred ninety-six of the penal law, may be commenced against a public servant, or any other person acting in concert with such public servant at any time during such public servant's service in such office or within five years after the termination of such service; provided however, that in no event shall the period of limitation be extended by more than five years beyond the period otherwise applicable under subdivision two of this section.
(c) A prosecution for any crime set forth in title twenty-seven or article seventy-one of the environmental conservation law may be commenced within four years after the facts constituting such crime are discovered or, in the exercise of reasonable diligence, should have been discovered by a public servant who has the responsibility to enforce the provisions of said title and article.
(d) A prosecution for any misdemeanor set forth in the tax law or chapter forty-six of the administrative code of the city of New York must be commenced within three years after the commission thereof.
(e) A prosecution for course of sexual conduct against a child in the second degree as defined in section 130.80 of the penal law may be commenced within five years of the commission of the most recent act of sexual conduct.
(f) For purposes of a prosecution involving a sexual offense as defined in article one hundred thirty of the penal law, other than a sexual offense delineated in paragraph (a) of subdivision two of this section, committed against a child less than eighteen years of age, incest in the first, second or third degree as defined in sections 255.27, 255.26 and 255.25 of the penal law committed against a child less than eighteen years of age, or use of a child in a sexual performance as defined in section 263.05 of the penal law, the period of limitation shall not begin to run until the child has reached the age of twenty-three or the offense is reported to a law enforcement agency or statewide central register of child abuse and maltreatment, whichever occurs earlier.
(g) A prosecution for any felony defined in article four hundred ninety of the penal law must be commenced within eight years after the commission thereof provided, however, that in a prosecution for a felony defined in article four hundred ninety of the penal law, if the commission of such felony offense resulted in, or created a foreseeable risk of, death or serious physical injury to another person, the prosecution may be commenced at any time; provided, however, that nothing in this paragraph shall be deemed to shorten or otherwise lessen the period, defined in any other applicable law, in which a prosecution for a felony designated in this paragraph may be commenced.
4. In calculating the time limitation applicable to commencement of a criminal action, the following periods shall not be included:
(a) Any period following the commission of the offense during which (i) the defendant was continuously outside this state or (ii) the whereabouts of the defendant were continuously unknown and continuously unascertainable by the exercise of reasonable diligence. However, in no event shall the period of limitation be extended by more than five years beyond the period otherwise applicable under subdivision two.
(b) When a prosecution for an offense is lawfully commenced within the prescribed period of limitation therefor, and when an accusatory instrument upon which such prosecution is based is subsequently dismissed by an authorized court under directions or circumstances permitting the lodging of another charge for the same offense or an offense based on the same conduct, the period extending from the commencement of the thus defeated prosecution to the dismissal of the accusatory instrument does not constitute a part of the period of limitation applicable to commencement of prosecution by a new charge.
§ 30.20 Speedy trial; in general.
1. After a criminal action is commenced, the defendant is entitled to a speedy trial.
2. Insofar as is practicable, the trial of a criminal action must be given preference over civil cases; and the trial of a criminal action where the defendant has been committed to the custody of the sheriff during the pendency of the criminal action must be given preference over other criminal actions.
§ 30.30 Speedy trial; time limitations.
1. Except as otherwise provided in subdivision three of this section, a motion made pursuant to paragraph (e) of subdivision one of section 170.30 or paragraph (g) of subdivision one of section 210.20 of this chapter must be granted where the people are not ready for trial within:
(a) six months of the commencement of a criminal action wherein a defendant is accused of one or more offenses, at least one of which is a felony;
(b) ninety days of the commencement of a criminal action wherein a defendant is accused of one or more offenses, at least one of which is a misdemeanor punishable by a sentence of imprisonment of more than three months and none of which is a felony;
(c) sixty days of the commencement of a criminal action wherein the defendant is accused of one or more offenses, at least one of which is a misdemeanor punishable by a sentence of imprisonment of not more than three months and none of which is a crime punishable by a sentence of imprisonment of more than three months; or
(d) thirty days of the commencement of a criminal action wherein the defendant is accused of one or more offenses, at least one of which is a violation and none of which is a crime.
(e) for the purposes of this subdivision, the term offense shall include vehicle and traffic law infractions.
2. Except as provided in subdivision three of this section, where a defendant has been committed to the custody of the sheriff or the office of children and family services in a criminal action he or she must be released on bail or on his or her own recognizance, upon such conditions as may be just and reasonable, if the people are not ready for trial in that criminal action within:
(a) ninety days from the commencement of his or her commitment to the custody of the sheriff or the office of children and family services in a criminal action wherein the defendant is accused of one or more offenses, at least one of which is a felony;
(b) thirty days from the commencement of his or her commitment to the custody of the sheriff or the office of children and family services in a criminal action wherein the defendant is accused of one or more offenses, at least one of which is a misdemeanor punishable by a sentence of imprisonment of more than three months and none of which is a felony;
(c) fifteen days from the commencement of his or her commitment to the custody of the sheriff or the office of children and family services in a criminal action wherein the defendant is accused of one or more offenses, at least one of which is a misdemeanor punishable by a sentence of imprisonment of not more than three months and none of which is a crime punishable by a sentence of imprisonment of more than three months; or
(d) five days from the commencement of his or her commitment to the custody of the sheriff or the office of children and family services in a criminal action wherein the defendant is accused of one or more offenses, at least one of which is a violation and none of which is a crime.
(e) for the purposes of this subdivision, the term offense shall include vehicle and traffic law infractions.
3. (a) Subdivisions one and two of this section do not apply to a criminal action wherein the defendant is accused of an offense defined in sections 125.10, 125.15, 125.20, 125.25, 125.26 and 125.27 of the penal law.
(b) A motion made pursuant to subdivisions one or two of this section upon expiration of the specified period may be denied where the people are not ready for trial if the people were ready for trial prior to the expiration of the specified period and their present unreadiness is due to some exceptional fact or circumstance, including, but not limited to, the sudden unavailability of evidence material to the people's case, when the district attorney has exercised due diligence to obtain such evidence and there are reasonable grounds to believe that such evidence will become available in a reasonable period.
(c) A motion made pursuant to subdivision two of this section shall not:
(i) apply to any defendant who is serving a term of imprisonment for another offense;
(ii) require the release from custody of any defendant who is also being held in custody pending trial of another criminal charge as to which the applicable period has not yet elapsed;
(iii) prevent the redetention of or otherwise apply to any defendant who, after being released from custody pursuant to this section or otherwise, is charged with another crime or violates the conditions on which he has been released, by failing to appear at a judicial proceeding at which his presence is required or otherwise.
4. In computing the time within which the people must be ready for trial pursuant to subdivisions one and two of this section, the following periods must be excluded:
(a) a reasonable period of delay resulting from other proceedings concerning the defendant, including but not limited to: proceedings for the determination of competency and the period during which defendant is incompetent to stand trial; demand to produce; request for a bill of particulars; pre-trial motions; appeals; trial of other charges; and the period during which such matters are under consideration by the court; or
(b) the period of delay resulting from a continuance granted by the court at the request of, or with the consent of, the defendant or his or her counsel. The court may grant such a continuance only if it is satisfied that postponement is in the interest of justice, taking into account the public interest in the prompt dispositions of criminal charges. A defendant without counsel must not be deemed to have consented to a continuance unless he or she has been advised by the court of his or her rights under these rules and the effect of his consent, which must be done on the record in open court; or
(c) (i) the period of delay resulting from the absence or unavailability of the defendant. A defendant must be considered absent whenever his location is unknown and he is attempting to avoid apprehension or prosecution, or his location cannot be determined by due diligence. A defendant must be considered unavailable whenever his location is known but his presence for trial cannot be obtained by due diligence; or
(ii) where the defendant has either escaped from custody or has failed to appear when required after having previously been released on bail or on his own recognizance, and provided the defendant is not in custody on another matter, the period extending from the day the court issues a bench warrant pursuant to section 530.70 of this chapter because of the defendant's failure to appear in court when required, to the day the defendant subsequently appears in the court pursuant to a bench warrant or voluntarily or otherwise; or
(d) a reasonable period of delay when the defendant is joined for trial with a co-defendant as to whom the time for trial pursuant to this section has not run and good cause is not shown for granting a severance; or
(e) the period of delay resulting from detention of the defendant in another jurisdiction provided the district attorney is aware of such detention and has been diligent and has made reasonable efforts to obtain the presence of the defendant for trial; or
(f) the period during which the defendant is without counsel through no fault of the court; except when the defendant is proceeding as his own attorney with the permission of the court; or
(g) other periods of delay occasioned by exceptional circumstances, including but not limited to, the period of delay resulting from a continuance granted at the request of a district attorney if (i) the continuance is granted because of the unavailability of evidence material to the people's case, when the district attorney has exercised due diligence to obtain such evidence and there are reasonable grounds to believe that such evidence will become available in a reasonable period; or (ii) the continuance is granted to allow the district attorney additional time to prepare the people's case and additional time is justified by the exceptional circumstances of the case. Any such exclusion when a statement of unreadiness has followed a statement of readiness made by the people must be evaluated by the court after inquiry on the record as to the reasons for the people's unreadiness and shall only be approved upon a showing of sufficient supporting facts; or
(h) the period during which an action has been adjourned in contemplation of dismissal pursuant to sections 170.55, 170.56 and 215.10 of this chapter; or
(i) the period prior to the defendant's actual appearance for arraignment in a situation in which the defendant has been directed to appear by the district attorney pursuant to subdivision three of section 120.20 or subdivision three of section 210.10 of this chapter; or
(j) the period during which a family offense is before a family court until such time as an accusatory instrument or indictment is filed against the defendant alleging a crime constituting a family offense, as such term is defined in section 530.11 of this chapter.
5. Whenever pursuant to this section a prosecutor states or otherwise provides notice that the people are ready for trial, the court shall make inquiry on the record as to their actual readiness. If, after conducting its inquiry, the court determines that the people are not ready to proceed to trial, the prosecutor's statement or notice of readiness shall not be valid for purposes of this section. Any statement of trial readiness must be accompanied or preceded by a certification of good faith compliance with the disclosure requirements of section 245.20 of this chapter and the defense shall be afforded an opportunity to be heard on the record as to whether the disclosure requirements have been met. This subdivision shall not apply to cases where the defense has waived disclosure requirements.
5-a. Upon a local criminal court accusatory instrument, a statement of readiness shall not be valid unless the prosecuting attorney certifies that all counts charged in the accusatory instrument meet the requirements of sections 100.15 and 100.40 of this chapter and those counts not meeting the requirements of sections 100.15 and 100.40 of this chapter have been dismissed.
6. An order finally denying a motion to dismiss pursuant to subdivision one of this section shall be reviewable upon an appeal from an ensuing judgment of conviction notwithstanding the fact that such judgment is entered upon a plea of guilty.
7. For purposes of this section, (a) where the defendant is to be tried following the withdrawal of the plea of guilty or is to be retried following a mistrial, an order for a new trial or an appeal or collateral attack, the criminal action and the commitment to the custody of the sheriff or the office of children and family services, if any, must be deemed to have commenced on the date the withdrawal of the plea of guilty or the date the order occasioning a retrial becomes final;
(b) where a defendant has been served with an appearance ticket, the criminal action must be deemed to have commenced on the date the defendant first appears in a local criminal court in response to the ticket;
(c) where a criminal action is commenced by the filing of a felony complaint, and thereafter, in the course of the same criminal action either the felony complaint is replaced with or converted to an information, prosecutor's information or misdemeanor complaint pursuant to article one hundred eighty of this chapter or a prosecutor's information is filed pursuant to section 190.70 of this chapter, the period applicable for the purposes of subdivision one must be the period applicable to the charges in the new accusatory instrument, calculated from the date of the filing of such new accusatory instrument; provided, however, that when the aggregate of such period and the period of time, excluding the periods provided in subdivision four, already elapsed from the date of the filing of the felony complaint to the date of the filing of the new accusatory instrument exceeds six months, the period applicable to the charges in the felony complaint must remain applicable and continue as if the new accusatory instrument had not been filed;
(d) where a criminal action is commenced by the filing of a felony complaint, and thereafter, in the course of the same criminal action either the felony complaint is replaced with or converted to an information, prosecutor's information or misdemeanor complaint pursuant to article one hundred eighty of this chapter or a prosecutor's information is filed pursuant to section 190.70 of this chapter, the period applicable for the purposes of subdivision two of this section must be the period applicable to the charges in the new accusatory instrument, calculated from the date of the filing of such new accusatory instrument; provided, however, that when the aggregate of such period and the period of time, excluding the periods provided in subdivision four of this section, already elapsed from the date of the filing of the felony complaint to the date of the filing of the new accusatory instrument exceeds ninety days, the period applicable to the charges in the felony complaint must remain applicable and continue as if the new accusatory instrument had not been filed.
(e) where a count of an indictment is reduced to charge only a misdemeanor or petty offense and a reduced indictment or a prosecutor's information is filed pursuant to subdivisions one-a and six of section 210.20 of this chapter, the period applicable for the purposes of subdivision one of this section must be the period applicable to the charges in the new accusatory instrument, calculated from the date of the filing of such new accusatory instrument; provided, however, that when the aggregate of such period and the period of time, excluding the periods provided in subdivision four of this section, already elapsed from the date of the filing of the indictment to the date of the filing of the new accusatory instrument exceeds six months, the period applicable to the charges in the indictment must remain applicable and continue as if the new accusatory instrument had not been filed;
(f) where a count of an indictment is reduced to charge only a misdemeanor or petty offense and a reduced indictment or a prosecutor's information is filed pursuant to subdivisions one-a and six of section 210.20 of this chapter, the period applicable for the purposes of subdivision two of this section must be the period applicable to the charges in the new accusatory instrument, calculated from the date of the filing of such new accusatory instrument; provided, however, that when the aggregate of such period and the period of time, excluding the periods provided in subdivision four of this section, already elapsed from the date of the filing of the indictment to the date of the filing of the new accusatory instrument exceeds ninety days, the period applicable to the charges in the indictment must remain applicable and continue as if the new accusatory instrument had not been filed.
8. The procedural rules prescribed in subdivisions one through seven of section 210.45 of this chapter with respect to a motion to dismiss an indictment are not applicable to a motion made pursuant to subdivision two of this section. If, upon oral argument, a time period is in dispute, the court must promptly conduct a hearing in which the people must prove that the time period is excludable.
ARTICLE 40--EXEMPTION FROM PROSECUTION BY REASON OF PREVIOUS PROSECUTION
Section 40.10 Previous prosecution; definitions of terms.
40.20 Previous prosecution; when a bar to second prosecution.
40.30 Previous prosecution; what constitutes.
40.40 Separate prosecution of jointly prosecutable offenses; when barred.
40.50 Previous prosecution; enterprise corruption.
40.51 Previous prosecution: presidential reprieve, pardon or other form of clemency.
§ 40.10 Previous prosecution; definitions of terms.
The following definitions are applicable to this article:
1. "Offense." An "offense" is committed whenever any conduct is performed which violates a statutory provision defining an offense; and when the same conduct or criminal transaction violates two or more such statutory provisions each such violation constitutes a separate and distinct offense. The same conduct or criminal transaction also establishes separate and distinct offenses when, though violating only one statutory provision, it results in death, injury, loss or other consequences to two or more victims, and such result is an element of the offense as defined. In such case, as many offenses are committed as there are victims.
2. "Criminal transaction" means conduct which establishes at least one offense, and which is comprised of two or more or a group of acts either (a) so closely related and connected in point of time and circumstance of commission as to constitute a single criminal incident, or (b) so closely related in criminal purpose or objective as to constitute elements or integral parts of a single criminal venture.
§ 40.20 Previous prosecution; when a bar to second prosecution.
1. A person may not be twice prosecuted for the same offense.
2. A person may not be separately prosecuted for two offenses based upon the same act or criminal transaction unless:
(a) The offenses as defined have substantially different elements and the acts establishing one offense are in the main clearly distinguishable from those establishing the other; or
(b) Each of the offenses as defined contains an element which is not an element of the other, and the statutory provisions defining such offenses are designed to prevent very different kinds of harm or evil; or
(c) One of such offenses consists of criminal possession of contraband matter and the other offense is one involving the use of such contraband matter, other than a sale thereof; or
(d) One of the offenses is assault or some other offense resulting in physical injury to a person, and the other offense is one of homicide based upon the death of such person from the same physical injury, and such death occurs after a prosecution for the assault or other non-homicide offense; or
(e) Each offense involves death, injury, loss or other consequence to a different victim; or
(f) One of the offenses consists of a violation of a statutory provision of another jurisdiction, which offense has been prosecuted in such other jurisdiction and has there been terminated by a court order expressly founded upon insufficiency of evidence to establish some element of such offense which is not an element of the other offense, defined by the laws of this state; or
(g) The present prosecution is for a consummated result offense, as defined in subdivision three of section 20.10, which occurred in this state and the offense was the result of a conspiracy, facilitation or solicitation prosecuted in another state.
(h) One of such offenses is enterprise corruption in violation of section 460.20 of the penal law, racketeering in violation of federal law or any comparable offense pursuant to the law of another state and a separate or subsequent prosecution is not barred by section 40.50 of this article.
(i) One of the offenses consists of a violation of 18 U.S.C. 371, where the object of the conspiracy is to attempt in any manner to evade or defeat any federal income tax or the payment thereof, or a violation of 26 U.S.C. 7201, 26 U.S.C. 7202, 26 U.S.C. 7203, 26 U.S.C. 7204, 26 U.S.C. 7205, 26 U.S.C. 7206 or 26 U.S.C. 7212(A), where the purpose is to evade or defeat any federal income tax or the payment thereof, and the other offense is committed for the purpose of evading or defeating any New York state or New York city income taxes and is defined in article one hundred fifty-five of the penal law, article one hundred seventy of the penal law, article one hundred seventy-five of the penal law, article thirty-seven of the tax law or chapter forty of title eleven of the administrative code of the city of New York.
§ 40.30 Previous prosecution; what constitutes.
1. Except as otherwise provided in this section, a person "is prosecuted" for an offense, within the meaning of section 40.20, when he is charged therewith by an accusatory instrument filed in a court of this state or of any jurisdiction within the United States, and when the action either:
(a) Terminates in a conviction upon a plea of guilty; or
(b) Proceeds to the trial stage and a jury has been impaneled and sworn or, in the case of a trial by the court without a jury, a witness is sworn.
2. Despite the occurrence of proceedings specified in subdivision one, a person is not deemed to have been prosecuted for an offense, within the meaning of section 40.20, when:
(a) Such prosecution occurred in a court which lacked jurisdiction over the defendant or the offense; or
(b) Such prosecution was for a lesser offense than could have been charged under the facts of the case, and the prosecution was procured by the defendant, without the knowledge of the appropriate prosecutor, for the purpose of avoiding prosecution for a greater offense.
3. Despite the occurrence of proceedings specified in subdivision one, if such proceedings are subsequently nullified by a court order which restores the action to its pre-pleading status or which directs a new trial of the same accusatory instrument, the nullified proceedings do not bar further prosecution of such offense under the same accusatory instrument.
4. Despite the occurrence of proceedings specified in subdivision one, if such proceedings are subsequently nullified by a court order which dismisses the accusatory instrument but authorizes the people to obtain a new accusatory instrument charging the same offense or an offense based upon the same conduct, the nullified proceedings do not bar further prosecution of such offense under any new accusatory instrument obtained pursuant to such court order or authorization.
§ 40.40 Separate prosecution of jointly prosecutable offenses; when barred.
1. Where two or more offenses are joinable in a single accusatory instrument against a person by reason of being based upon the same criminal transaction, pursuant to paragraph (a) of subdivision two of section 200.20, such person may not, under circumstances prescribed in this section, be separately prosecuted for such offenses even though such separate prosecutions are not otherwise barred by any other section of this article.
2. When (a) one of two or more joinable offenses of the kind specified in subdivision one is charged in an accusatory instrument, and (b) another is not charged therein, or in any other accusatory instrument filed in the same court, despite possession by the people of evidence legally sufficient to support a conviction of the defendant for such uncharged offense, and (c) either a trial of the existing accusatory instrument is commenced or the action thereon is disposed of by a plea of guilty, any subsequent prosecution for the uncharged offense is thereby barred.
3. When (a) two or more of such offenses are charged in separate accusatory instruments filed in the same court, and (b) an application by the defendant for consolidation thereof for trial purposes, pursuant to subdivision five of section 200.20 or section 100.45, is improperly denied, the commencement of a trial of one such accusatory instrument bars any subsequent prosecution upon any of the other accusatory instruments with respect to any such offense.
§ 40.50 Previous prosecution; enterprise corruption.
1. The following definitions are applicable to this section:
(a) A criminal act or offense is "specifically included" when a count of an accusatory instrument charging a person with enterprise corruption alleges a pattern of criminal activity and the act or offense is alleged to be a criminal act within such pattern.
(b) A criminal act is "a part of" a pattern of criminal activity alleged in a count of enterprise corruption when it is committed prior to commencement of the criminal action in which enterprise corruption is charged and was committed in furtherance of the same common scheme or plan or with intent to participate in or further the affairs of the same criminal enterprise to which the crimes specifically included in the pattern are connected.
(c) A person "is prosecuted" for an offense when he is prosecuted for it within the meaning of section 40.30 of this article or when an indictment or a count of an indictment charging that offense is dismissed pursuant to section 210.20 of this chapter without authorization to submit the charge to the same or another grand jury, or the indictment or the count of the indictment charging that offense is dismissed following the granting of a motion to suppress pursuant to article 710 of this chapter, unless an appeal from the order granting the motion to dismiss or suppress is pending.
(d) An offense was "not prosecutable" in an accusatory instrument in which a person was charged with enterprise corruption when there was no geographical jurisdiction of that offense in the county where the accusatory instrument was filed, or when the offense was prosecutable in the county and was not barred from prosecution by section 40.20 or 40.40 of this article or by any other provision of law but the prosecutor filing the accusatory instrument was not empowered by law to prosecute the offense.
2. A person who has been previously prosecuted for an offense may not be subsequently prosecuted for enterprise corruption based upon a pattern of criminal activity in which that prior offense, or another offense based upon the same act or criminal transaction, is specifically included unless:
(a) he was convicted of that prior offense; and
(b) the subsequent pattern of criminal activity in which he participated includes at least one criminal act for which he was not previously prosecuted, which was a felony, and which occurred after that prior conviction.
3. A person who has been previously prosecuted for enterprise corruption may not be subsequently prosecuted for an offense specifically included in the pattern of criminal activity upon which it was based, or another offense based upon the same act or criminal transaction, unless the offense is a class A felony and was not prosecutable in the accusatory instrument in which the person was charged with enterprise corruption.
4. A person may not be separately prosecuted for enterprise corruption and for an offense specifically included in the pattern of criminal activity upon which it is based or another offense based upon the same act or transaction, unless the offense is a class A felony and is not prosecutable in the accusatory instrument in which the person is charged with enterprise corruption.
5. A person who has been previously prosecuted for enterprise corruption may not be subsequently prosecuted for an offense which, while not specifically included in the pattern of criminal activity on which the prior charge of enterprise corruption was based, was nonetheless a part of that pattern, unless the offense was a class A or B felony and either the offense was not prosecutable in the accusatory instrument in which the person was charged with enterprise corruption or the people show, by clear and convincing evidence, that the prosecutor did not possess evidence legally sufficient to support a conviction of that offense at the time of the earlier prosecution and evidence of that offense was not presented as part of the case in chief in the earlier prosecution.
6. A person who has been previously prosecuted for enterprise corruption may not be subsequently prosecuted for enterprise corruption based upon a pattern of criminal activity that specifically includes a criminal act that was also specifically included in the pattern upon which the prior charge of enterprise corruption was based.
7. A person may not be separately prosecuted for enterprise corruption in two accusatory instruments based upon a pattern of criminal activity, alleged in either instrument, that specifically includes a criminal act that is also specifically included in the pattern upon which the other charge of enterprise corruption is based.
8. When a person is charged in an accusatory instrument with both one or more counts of enterprise corruption and with another offense or offenses specifically included in or otherwise a part of the pattern or patterns of criminal activity upon which the charge or charges of enterprise corruption is or are based, and the court orders that any of the counts be tried separately pursuant to subdivision one of section 200.40 of this chapter, this section shall not apply and subsequent prosecution of the remaining counts or offenses shall not be barred.
9. A person who has been previously prosecuted for racketeering pursuant to federal law, or any comparable offense pursuant to the law of another state may not be subsequently prosecuted for enterprise corruption based upon a pattern of criminal activity that specifically includes a criminal act that was also specifically included in the pattern of racketeering activity upon which the prior charge of racketeering was based provided, however, that this section shall not be construed to prohibit the subsequent prosecution of any other offense specifically included in or otherwise a part of a pattern of racketeering activity alleged in any such prior prosecution for racketeering or other comparable offense.
§ 40.51 Previous prosecution: presidential reprieve, pardon or other form of clemency.
When a person has been granted a reprieve, pardon or other form of clemency for an offense pursuant to the authority granted in section two of article two of the United States constitution, a separate or subsequent prosecution of an offense is not barred under this article when the people demonstrate, by clear and convincing evidence, that:
1. (a) such person served in or was employed by the executive branch of the government of the United States on the executive staff of the president, in the executive office of the president, or in an acting or confirmed capacity in a position subject to confirmation by the United States senate, at a time when the president granting such reprieve, pardon or other form of clemency served as president or vice-president of the United States; or (b) such person was directly or indirectly employed by, or acted as an agent of, the election, transition or re-election campaign of the president granting such reprieve, pardon or other form of clemency or any for-profit or not-for-profit entity owned or controlled by the president granting such reprieve, pardon or other form of clemency; or
2. such person was, at the time the president granted such reprieve, pardon or other form of clemency, related by consanguinity or affinity within the sixth degree to the president granting such reprieve, pardon or other form of clemency; or
3. such person bears accessorial liability, as defined in section 20.00 of the penal law, or conspiratorial liability, within the meaning of article one hundred five of the penal law, for such offense with one or more persons described in subdivision one or two of this section; or
4. the president who granted such reprieve, pardon or other form of clemency to such person (a) was thereby aided in avoiding potential prosecution or conviction; (b) knowingly obtained a benefit from such offense; or (c) knowingly obtained a tangible, material benefit from or on behalf of such person; or
5. such person possessed or possesses information material to the determination of any criminal or civil investigation, enforcement action or prosecution of the president granting such reprieve, pardon or other form of clemency, or of one or more persons described in subdivision one, two or three of this section.
ARTICLE 50--COMPULSION OF EVIDENCE BY OFFER OF IMMUNITY
Section 50.10 Compulsion of evidence by offer of immunity; definitions of terms.
50.20 Compulsion of evidence by offer of immunity.
50.30 Authority to confer immunity in criminal proceedings; court a competent authority.
§ 50.10 Compulsion of evidence by offer of immunity; definitions of terms.
The following definitions are applicable to this article:
1. "Immunity." A person who has been a witness in a legal proceeding, and who cannot, except as otherwise provided in this subdivision, be convicted of any offense or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which he gave evidence therein, possesses "immunity" from any such conviction, penalty or forfeiture. A person who possesses such immunity may nevertheless be convicted of perjury as a result of having given false testimony in such legal proceeding, and may be convicted of or adjudged in contempt as a result of having contumaciously refused to give evidence therein.
2. "Legal proceeding" means a proceeding in or before any court or grand jury, or before any body, agency or person authorized by law to conduct the same and to administer the oath or to cause it to be administered.
3. "Give evidence" means to testify or produce physical evidence.
§ 50.20 Compulsion of evidence by offer of immunity.
1. Any witness in a legal proceeding, other than a grand jury proceeding, may refuse to give evidence requested of him on the ground that it may tend to incriminate him and he may not, except as provided in subdivision two, be compelled to give such evidence.
2. Such a witness may be compelled to give evidence in such a proceeding notwithstanding an assertion of his privilege against self-incrimination if:
(a) The proceeding is one in which, by express provision of statute, a person conducting or connected therewith is declared a competent authority to confer immunity upon witnesses therein; and
(b) Such competent authority (i) orders such witness to give the requested evidence notwithstanding his assertion of his privilege against self-incrimination, and (ii) advises him that upon so doing he will receive immunity.
3. A witness who is ordered to give evidence pursuant to subdivision two and who complies with such order receives immunity. Such witness is not deprived of such immunity because such competent authority did not comply with statutory provisions requiring notice to a specified public servant of intention to confer immunity.
4. A witness who, without asserting his privilege against self-incrimination, gives evidence in a legal proceeding other than a grand jury proceeding does not receive immunity.
5. The rules governing the circumstances in which witnesses may be compelled to give evidence and in which they receive immunity therefor in a grand jury proceeding are prescribed in section 190.40.
§ 50.30 Authority to confer immunity in criminal proceedings; court a competent authority.
In any criminal proceeding, other than a grand jury proceeding, the court is a competent authority to confer immunity in accordance with the provisions of section 50.20, but only when expressly requested by the district attorney to do so.
TITLE D--RULES OF EVIDENCE, STANDARDS OF PROOF AND RELATED MATTERS
ARTICLE 60--RULES OF EVIDENCE AND RELATED MATTERS
Section 60.10 Rules of evidence; in general.
60.15 Rules of evidence; what witnesses may be called.
60.20 Rules of evidence; testimonial capacity; evidence given by children.
60.22 Rules of evidence; corroboration of accomplice testimony.
60.25 Rules of evidence; identification by means of previous recognition, in absence of present identification.
60.30 Rules of evidence; identification by means of previous recognition, in addition to present identification.
60.35 Rules of evidence; impeachment of own witness by proof of prior contradictory statement.
60.40 Rules of evidence; proof of previous conviction; when allowed.
60.42 Rules of evidence; admissibility of evidence of victim's sexual conduct in sex offense cases.
60.43 Rules of evidence; admissibility of evidence of victim's sexual conduct in non-sex offense cases.
60.44 Use of anatomically correct dolls.
60.45 Rules of evidence; admissibility of statements of defendants.
60.46 Rules of evidence; family offense proceedings in family court.
60.47 Possession of condoms; receipt into evidence.
60.48 Rules of evidence; admissibility of evidence of victim's manner of dress in sex offense cases.
60.49 Possession of opioid antagonists; receipt into evidence.
60.50 Rules of evidence; statements of defendants; corroboration.
60.55 Rules of evidence; psychiatric testimony in certain cases.
60.60 Rules of evidence; certificates concerning judgments of conviction and fingerprints.
60.70 Rules of evidence; dangerous drugs destroyed pursuant to court order.
60.75 Rules of evidence; chemical test evidence.
60.76 Rules of evidence; rape crisis counselor evidence in certain cases.
§ 60.10 Rules of evidence; in general.
Unless otherwise provided by statute or by judicially established rules of evidence applicable to criminal cases, the rules of evidence applicable to civil cases are, where appropriate, also applicable to criminal proceedings.
§ 60.15 Rules of evidence; what witnesses may be called.
1. Unless otherwise expressly provided, in any criminal proceeding involving a defendant in which evidence is or may be received, both the people and the defendant may as a matter of right call and examine witnesses, and each party may cross-examine every witness called by the other party.
2. A defendant may testify in his own behalf, but his failure to do so is not a factor from which any inference unfavorable to him may be drawn.
§ 60.20 Rules of evidence; testimonial capacity; evidence given by
children.
1. Any person may be a witness in a criminal proceeding unless the court finds that, by reason of infancy or mental disease or defect, he does not possess sufficient intelligence or capacity to justify the reception of his evidence.
2. Every witness more than nine years old may testify only under oath unless the court is satisfied that such witness cannot, as a result of mental disease or defect, understand the nature of an oath. A witness less than nine years old may not testify under oath unless the court is satisfied that he or she understands the nature of an oath. If under either of the above provisions, a witness is deemed to be ineligible to testify under oath, the witness may nevertheless be permitted to give unsworn evidence if the court is satisfied that the witness possesses sufficient intelligence and capacity to justify the reception thereof. A witness understands the nature of an oath if he or she appreciates the difference between truth and falsehood, the necessity for telling the truth, and the fact that a witness who testifies falsely may be punished.
3. A defendant may not be convicted of an offense solely upon unsworn evidence given pursuant to subdivision two.
§ 60.22 Rules of evidence; corroboration of accomplice testimony.
1. A defendant may not be convicted of any offense upon the testimony of an accomplice unsupported by corroborative evidence tending to connect the defendant with the commission of such offense.
2. An "accomplice" means a witness in a criminal action who, according to evidence adduced in such action, may reasonably be considered to have participated in:
(a) The offense charged; or
(b) An offense based upon the same or some of the same facts or conduct which constitute the offense charged.
3. A witness who is an accomplice as defined in subdivision two is no less such because a prosecution or conviction of himself would be barred or precluded by some defense or exemption, such as infancy, immunity or previous prosecution, amounting to a collateral impediment to such a prosecution or conviction, not affecting the conclusion that such witness engaged in the conduct constituting the offense with the mental state required for the commission thereof.
§ 60.25 Rules of evidence; identification by means of previous recognition,
in absence of present identification.
1. In any criminal proceeding in which the defendant's commission of an offense is in issue, testimony as provided in subdivision two may be given by a witness when:
(a) Such witness testifies that:
(i) He or she observed the person claimed by the people to be the defendant either at the time and place of the commission of the offense or upon some other occasion relevant to the case; and
(ii) On a subsequent occasion he or she observed, under circumstances consistent with such rights as an accused person may derive under the constitution of this state or of the United States, a person or, where the observation is made pursuant to a blind or blinded procedure as defined in paragraph (c) of this subdivision, a pictorial, photographic, electronic, filmed or video recorded reproduction of a person whom he or she recognized as the same person whom he or she had observed on the first or incriminating occasion; and
(iii) He or she is unable at the proceeding to state, on the basis of present recollection, whether or not the defendant is the person in question; and
(b) It is established that the defendant is in fact the person whom the witness observed and recognized or whose pictorial, photographic, electronic, filmed or video recorded reproduction the witness observed and recognized on the second occasion. Such fact may be established by testimony of another person or persons to whom the witness promptly declared his or her recognition on such occasion and by such pictorial, photographic, electronic, filmed or video recorded reproduction.
(c) For purposes of this section, a "blind or blinded procedure" is one in which the witness identifies a person in an array of pictorial, photographic, electronic, filmed or video recorded reproductions under circumstances where, at the time the identification is made, the public servant administering such procedure: (i) does not know which person in the array is the suspect, or (ii) does not know where the suspect is in the array viewed by the witness. The failure of a public servant to follow such a procedure shall be assessed solely for purposes of this article and shall result in the preclusion of testimony regarding the identification procedure as evidence in chief, but shall not constitute a legal basis to suppress evidence made pursuant to subdivision six of section 710.20 of this chapter. This article neither limits nor expands subdivision six of section 710.20 of this chapter.
2. Under circumstances prescribed in subdivision one of this section, such witness may testify at the criminal proceeding that the person whom he or she observed and recognized or whose pictorial, photographic, electronic, filmed or video recorded reproduction he or she observed and recognized on the second occasion is the same person whom he or she observed on the first or incriminating occasion. Such testimony, together with the evidence that the defendant is in fact the person whom the witness observed and recognized or whose pictorial, photographic, electronic, filmed or video recorded reproduction he or she observed and recognized on the second occasion, constitutes evidence in chief.
§ 60.22 Rules of evidence; corroboration of accomplice testimony.
1. A defendant may not be convicted of any offense upon the testimony of an accomplice unsupported by corroborative evidence tending to connect the defendant with the commission of such offense.
2. An "accomplice" means a witness in a criminal action who, according to evidence adduced in such action, may reasonably be considered to have participated in:
(a) The offense charged; or
(b) An offense based upon the same or some of the same facts or conduct which constitute the offense charged.
3. A witness who is an accomplice as defined in subdivision two is no less such because a prosecution or conviction of himself would be barred or precluded by some defense or exemption, such as infancy, immunity or previous prosecution, amounting to a collateral impediment to such a prosecution or conviction, not affecting the conclusion that such witness engaged in the conduct constituting the offense with the mental state required for the commission thereof.
§ 60.25 Rules of evidence; identification by means of previous recognition, in absence of present identification.
1. In any criminal proceeding in which the defendant's commission of an offense is in issue, testimony as provided in subdivision two may be given by a witness when:
(a) Such witness testifies that:
(i) He or she observed the person claimed by the people to be the defendant either at the time and place of the commission of the offense or upon some other occasion relevant to the case; and
(ii) On a subsequent occasion he or she observed, under circumstances consistent with such rights as an accused person may derive under the constitution of this state or of the United States, a person or, where the observation is made pursuant to a blind or blinded procedure as defined in paragraph (c) of this subdivision, a pictorial, photographic, electronic, filmed or video recorded reproduction of a person whom he or she recognized as the same person whom he or she had observed on the first or incriminating occasion; and
(iii) He or she is unable at the proceeding to state, on the basis of present recollection, whether or not the defendant is the person in question; and
(b) It is established that the defendant is in fact the person whom the witness observed and recognized or whose pictorial, photographic, electronic, filmed or video recorded reproduction the witness observed and recognized on the second occasion. Such fact may be established by testimony of another person or persons to whom the witness promptly declared his or her recognition on such occasion and by such pictorial, photographic, electronic, filmed or video recorded reproduction.
(c) For purposes of this section, a "blind or blinded procedure" is one in which the witness identifies a person in an array of pictorial, photographic, electronic, filmed or video recorded reproductions under circumstances where, at the time the identification is made, the public servant administering such procedure: (i) does not know which person in the array is the suspect, or (ii) does not know where the suspect is in the array viewed by the witness. The failure of a public servant to follow such a procedure shall be assessed solely for purposes of this article and shall result in the preclusion of testimony regarding the identification procedure as evidence in chief, but shall not constitute a legal basis to suppress evidence made pursuant to subdivision six of section 710.20 of this chapter. This article neither limits nor expands subdivision six of section 710.20 of this chapter.
2. Under circumstances prescribed in subdivision one of this section, such witness may testify at the criminal proceeding that the person whom he or she observed and recognized or whose pictorial, photographic, electronic, filmed or video recorded reproduction he or she observed and recognized on the second occasion is the same person whom he or she observed on the first or incriminating occasion. Such testimony, together with the evidence that the defendant is in fact the person whom the witness observed and recognized or whose pictorial, photographic, electronic, filmed or video recorded reproduction he or she observed and recognized on the second occasion, constitutes evidence in chief.
§ 60.30 Rules of evidence; identification by means of previous recognition, in addition to present identification.
In any criminal proceeding in which the defendant's commission of an offense is in issue, a witness who testifies that (a) he or she observed the person claimed by the people to be the defendant either at the time and place of the commission of the offense or upon some other occasion relevant to the case, and (b) on the basis of present recollection, the defendant is the person in question and (c) on a subsequent occasion he or she observed the defendant, or where the observation is made pursuant to a blind or blinded procedure, as defined in paragraph (c) of subdivision one of section 60.25 of this article, a pictorial, photographic, electronic, filmed or video recorded reproduction of the defendant, under circumstances consistent with such rights as an accused person may derive under the constitution of this state or of the United States, and then also recognized him or her or the pictorial, photographic, electronic, filmed or video recorded reproduction of him or her as the same person whom he or she had observed on the first or incriminating occasion, may, in addition to making an identification of the defendant at the criminal proceeding on the basis of present recollection as the person whom he or she observed on the first or incriminating occasion, also describe his or her previous recognition of the defendant and testify that the person whom he or she observed or whose pictorial, photographic, electronic, filmed or video recorded reproduction he or she observed on such second occasion is the same person whom he or she had observed on the first or incriminating occasion. Such testimony and such pictorial, photographic, electronic, filmed or video recorded reproduction constitutes evidence in chief.
§ 60.35 Rules of evidence; impeachment of own witness by proof of prior contradictory statement.
1. When, upon examination by the party who called him, a witness in a criminal proceeding gives testimony upon a material issue of the case which tends to disprove the position of such party, such party may introduce evidence that such witness has previously made either a written statement signed by him or an oral statement under oath contradictory to such testimony.
2. Evidence concerning a prior contradictory statement introduced pursuant to subdivision one may be received only for the purpose of impeaching the credibility of the witness with respect to his testimony upon the subject, and does not constitute evidence in chief. Upon receiving such evidence at a jury trial, the court must so instruct the jury.
3. When a witness has made a prior signed or sworn statement contradictory to his testimony in a criminal proceeding upon a material issue of the case, but his testimony does not tend to disprove the position of the party who called him and elicited such testimony, evidence that the witness made such prior statement is not admissible, and such party may not use such prior statement for the purpose of refreshing the recollection of the witness in a manner that discloses its contents to the trier of the facts.
§ 60.40 Rules of evidence; proof of previous conviction; when allowed.
1. If in the course of a criminal proceeding, any witness, including a defendant, is properly asked whether he was previously convicted of a specified offense and answers in the negative or in an equivocal manner, the party adverse to the one who called him may independently prove such conviction. If in response to proper inquiry whether he has ever been convicted of any offense the witness answers in the negative or in an equivocal manner, the adverse party may independently prove any previous conviction of the witness.
2. If a defendant in a criminal proceeding, through the testimony of a witness called by him, offers evidence of his good character, the people may independently prove any previous conviction of the defendant for an offense the commission of which would tend to negate any character trait or quality attributed to the defendant in such witness' testimony.
3. Subject to the limitations prescribed in section 200.60, the people may prove that a defendant has been previously convicted of an offense when the fact of such previous conviction constitutes an element of the offense charged, or proof thereof is otherwise essential to the establishment of a legally sufficient case.
§ 60.42 Rules of evidence; admissibility of evidence of victim's sexual conduct in sex offense cases.
Evidence of a victim's sexual conduct shall not be admissible in a prosecution for an offense or an attempt to commit an offense defined in article one hundred thirty or in section 230.34 of the penal law unless such evidence:
1. proves or tends to prove specific instances of the victim's prior sexual conduct with the accused; or
2. proves or tends to prove that the victim has been convicted of an offense under section 230.00 of the penal law within three years prior to the sex offense which is the subject of the prosecution; or
3. rebuts evidence introduced by the people of the victim's failure to engage in sexual intercourse, oral sexual conduct, anal sexual conduct or sexual contact during a given period of time; or
4. rebuts evidence introduced by the people which proves or tends to prove that the accused is the cause of pregnancy or disease of the victim, or the source of semen found in the victim; or
5. is determined by the court after an offer of proof by the accused outside the hearing of the jury, or such hearing as the court may require, and a statement by the court of its findings of fact essential to its determination, to be relevant and admissible in the interests of justice.
§ 60.43 Rules of evidence; admissibility of evidence of victim's sexual conduct in non-sex offense cases.
Evidence of the victim's sexual conduct, including the past sexual conduct of a deceased victim, may not be admitted in a prosecution for any offense, attempt to commit an offense or conspiracy to commit an offense defined in the penal law unless such evidence is determined by the court to be relevant and admissible in the interests of justice, after an offer of proof by the proponent of such evidence outside the hearing of the jury, or such hearing as the court may require, and a statement by the court of its findings of fact essential to its determination.
§ 60.44 Use of anatomically correct dolls.
Any person who is less than sixteen years old may in the discretion of the court and where helpful and appropriate, use an anatomically correct doll in testifying in a criminal proceeding based upon conduct prohibited by article one hundred thirty, article two hundred sixty or section 255.25, 255.26 or 255.27 of the penal law.
§ 60.45 Rules of evidence; admissibility of statements of defendants.
1. Evidence of a written or oral confession, admission, or other statement made by a defendant with respect to his participation or lack of participation in the offense charged, may not be received in evidence against him in a criminal proceeding if such statement was involuntarily made.
2. A confession, admission or other statement is "involuntarily made" by a defendant when it is obtained from him:
(a) By any person by the use or threatened use of physical force upon the defendant or another person, or by means of any other improper conduct or undue pressure which impaired the defendant's physical or mental condition to the extent of undermining his ability to make a choice whether or not to make a statement; or
(b) By a public servant engaged in law enforcement activity or by a person then acting under his direction or in cooperation with him:
(i) by means of any promise or statement of fact, which promise or statement creates a substantial risk that the defendant might falsely incriminate himself; or
(ii) in violation of such rights as the defendant may derive from the constitution of this state or of the United States.
3. (a) Where a person is subject to custodial interrogation by a public servant at a detention facility, the entire custodial interrogation, including the giving of any required advice of the rights of the individual being questioned, and the waiver of any rights by the individual, shall be recorded by an appropriate video recording device if the interrogation involves a class A-1 felony, except one defined in article two hundred twenty of the penal law; felony offenses defined in section 130.95 and 130.96 of the penal law; or a felony offense defined in article one hundred twenty-five or one hundred thirty of such law that is defined as a class B violent felony offense in section 70.02 of the penal law. For purposes of this paragraph, the term "detention facility" shall mean a police station, correctional facility, holding facility for prisoners, prosecutor's office or other facility where persons are held in detention in connection with criminal charges that have been or may be filed against them.
(b) No confession, admission or other statement shall be subject to a motion to suppress pursuant to subdivision three of section 710.20 of this chapter based solely upon the failure to video record such interrogation in a detention facility as defined in paragraph (a) of this subdivision. However, where the people offer into evidence a confession, admission or other statement made by a person in custody with respect to his or her participation or lack of participation in an offense specified in paragraph (a) of this subdivision, that has not been video recorded, the court shall consider the failure to record as a factor, but not as the sole factor, in accordance with paragraph (c) of this subdivision in determining whether such confession, admission or other statement shall be admissible.
(c) Notwithstanding the requirement of paragraph (a) of this subdivision, upon a showing of good cause by the prosecutor, the custodial interrogation need not be recorded. Good cause shall include, but not be limited to:
(i) If electronic recording equipment malfunctions.
(ii) If electronic recording equipment is not available because it was otherwise being used.
(iii) If statements are made in response to questions that are routinely asked during arrest processing.
(iv) If the statement is spontaneously made by the suspect and not in response to police questioning.
(v) If the statement is made during an interrogation that is conducted when the interviewer is unaware that a qualifying offense has occurred.
(vi) If the statement is made at a location other than the "interview room" because the suspect cannot be brought to such room, e.g., the suspect is in a hospital or the suspect is out of state and that state is not governed by a law requiring the recordation of an interrogation.
(vii) If the statement is made after a suspect has refused to participate in the interrogation if it is recorded, and appropriate effort to document such refusal is made.
(viii) If such statement is not recorded as a result of an inadvertent error or oversight, not the result of any intentional conduct by law enforcement personnel.
(ix) If it is law enforcement's reasonable belief that such recording would jeopardize the safety of any person or reveal the identity of a confidential informant.
(x) If such statement is made at a location not equipped with a video recording device and the reason for using that location is not to subvert the intent of the law. For purposes of this section, the term "location" shall include those locations specified in paragraph (b) of subdivision four of section 305.2 of the family court act.
(d) In the event the court finds that the people have not shown good cause for the non-recording of the confession, admission, or other statement, but determines that a non-recorded confession, admission or other statement is nevertheless admissible because it was voluntarily made then, upon request of the defendant, the court must instruct the jury that the people's failure to record the defendant's confession, admission or other statement as required by this section may be weighed as a factor, but not as the sole factor, in determining whether such confession, admission or other statement was voluntarily made, or was made at all.
(e) Video recording as required by this section shall be conducted in accordance with standards established by rule of the division of criminal justice services.
§ 60.46 Rules of evidence, family offense proceedings in family court.
Evidence of a written or oral admission or any testimony given by either party, or evidence derived therefrom, in a proceeding under article eight of the family court act without the benefit of counsel in such proceeding may not be received into evidence in a criminal proceeding except for the purposes of impeachment unless such party waives the right to counsel on the record. Nothing herein shall be deemed to prohibit any testimony or exhibits received into evidence in a criminal proceeding, or any orders, decisions or judgments arising from such proceeding from being received into evidence in any proceeding under article eight of the family court act.
§ 60.47 Possession of condoms; receipt into evidence.
Evidence that a person was in possession of one or more condoms may not be admitted at any trial, hearing, or other proceeding in a prosecution for section 230.00 of the penal law for the purpose of establishing probable cause for an arrest or proving any person's commission or attempted commission of such offense.
§ 60.48 Rules of evidence; admissibility of evidence of victim's manner of
dress in sex offense cases.
Evidence of the manner in which the victim was dressed at the time of the commission of an offense may not be admitted in a prosecution for any offense, or an attempt to commit an offense, defined in article one hundred thirty of the penal law, unless such evidence is determined by the court to be relevant and admissible in the interests of justice, after an offer of proof by the proponent of such evidence outside the hearing of the jury, or such hearing as the court may require, and a statement by the court of its findings of fact essential to its determination.
§ 60.49 Possession of opioid antagonists; receipt into evidence.
1. Evidence that a person was in possession of an opioid antagonist may not be admitted at any trial, hearing or other proceeding in a prosecution for any offense under sections 220.03, 220.06, 220.09, 220.16, 220.18, or 220.21 of the penal law for the purpose of establishing probable cause for an arrest or proving any person's commission of such offense.
2. For the purposes of this section, opioid antagonist is defined as a drug approved by the Food and Drug Administration that, when administered, negates or neutralizes in whole or in part the pharmacological effects of an opioid in the body and shall be limited to naloxone and other medications approved by the department of health for such purpose.
§ 60.50 Rules of evidence; statements of defendants; corroboration.
A person may not be convicted of any offense solely upon evidence of a confession or admission made by him without additional proof that the offense charged has been committed.
§ 60.55 Rules of evidence; psychiatric testimony in certain cases.
1. When, in connection with the affirmative defense of lack of criminal responsibility by reason of mental disease or defect, a psychiatrist or licensed psychologist testifies at a trial concerning the defendant's mental condition at the time of the conduct charged to constitute a crime, he must be permitted to make a statement as to the nature of any examination of the defendant, the diagnosis of the mental condition of the defendant and his opinion as to the extent, if any, to which the capacity of the defendant to know or appreciate the nature and consequence of such conduct, or its wrongfulness, was impaired as a result of mental disease or defect at that time.
The psychiatrist or licensed psychologist must be permitted to make any explanation reasonably serving to clarify his diagnosis and opinion, and may be cross-examined as to any matter bearing on his competency or credibility or the validity of his diagnosis or opinion.
2. Any statement made by the defendant to a psychiatrist or licensed psychologist during his examination of the defendant shall be inadmissible in evidence on any issue other than that of the affirmative defense of lack of criminal responsibility, by reason of mental disease or defect. The statement shall, however, be admissible upon the issue of the affirmative defense of lack of criminal responsibility by reason of mental disease or defect, whether or not it would otherwise be deemed a privileged communication. Upon receiving the statement in evidence, the court must instruct the jury that the statement is to be considered only on the issue of such affirmative defense and may not be considered by it in its determination of whether the defendant committed the act constituting the crime charged.
§ 60.60 Rules of evidence; certificates concerning judgments of conviction and fingerprints.
1. A certificate issued by a criminal court, or the clerk thereof, certifying that a judgment of conviction against a designated defendant has been entered in such court, constitutes presumptive evidence of the facts stated in such certificate.
2. A report of a public servant charged with the custody of official fingerprint records which contains a certification that the fingerprints of a designated person who has previously been convicted of an offense are identical with those of a defendant in a criminal action, constitutes presumptive evidence of the fact that such defendant has previously been convicted of such offense.
§ 60.70 Rules of evidence; dangerous drugs destroyed pursuant to court order.
The destruction of dangerous drugs pursuant to the provisions of article seven hundred fifteen hereof shall not preclude the admission on trial or in a proceeding in connection therewith of testimony or evidence where such testimony or evidence would otherwise have been admissible if such drugs had not been destroyed.
§ 60.75 Rules of evidence; chemical test evidence.
In any prosecution where two or more offenses against the same defendant are properly joined in one indictment or charged in two accusatory instruments properly consolidated for trial purposes and where one such offense charges a violation of any subdivision of section eleven hundred ninety-two of the vehicle and traffic law, chemical test evidence properly admissible as evidence of intoxication under subdivision one of section eleven hundred ninety-five of such law shall also, if relevant, be received in evidence with regard to the remaining charges in the indictments.
§ 60.76 Rules of evidence; rape crisis counselor evidence in certain cases.
Where disclosure of a communication which would have been privileged pursuant to section forty-five hundred ten of the civil practice law and rules is sought on the grounds that the privilege has been waived or that disclosure is required pursuant to the constitution of this state or the United States, the party seeking disclosure must file a written motion supported by an affidavit containing specific factual allegations providing grounds that disclosure is required. Upon the filing of such motion and affidavit, the court shall conduct an in camera review of the communication outside the presence of the jury and of counsel for all parties in order to determine whether disclosure of any portion of the communication is required.
* ARTICLE 65
USE OF CLOSED-CIRCUIT TELEVISION FOR CERTAIN CHILD WITNESSES
Section 65.00 Definitions.
65.10 Closed-circuit television; general rule; declaration of vulnerability.
65.20 Closed-circuit television; procedure for application and grounds for determination.
65.30 Closed-circuit television; special testimonial procedure.
* NB Repealed September 1, 2025
* § 65.00 Definitions.
As used in this article:
1. "Child witness" means a person fourteen years old or less who is or will be called to testify in a criminal proceeding, other than a grand jury proceeding, concerning an offense defined in article one hundred thirty of the penal law or section 255.25, 255.26 or 255.27 of such law which is the subject of such criminal proceeding.
2. "Vulnerable child witness" means a child witness whom a court has declared to be vulnerable.
3. "Testimonial room" means any room, separate and apart from the courtroom, which is furnished comfortably and less formally than a courtroom and from which the testimony of a vulnerable child witness can be transmitted to the courtroom by means of live, two-way closed-circuit television.
4. "Live, two-way closed-circuit television" means a simultaneous transmission, by closed-circuit television, or other electronic means, between the courtroom and the testimonial room in accordance with the provisions of section 65.30.
5. "Operator" means the individual authorized by the court to operate the closed-circuit television equipment used in accordance with the provisions of this article.
6. A person occupies "a position of authority with respect to a child" when he or she is a parent, guardian or other person responsible for the custody or care of the child at the relevant time or is any other person who maintains an ongoing personal relationship with such parent, guardian or other person responsible for custody or care, which relationship involves his or her living, or his or her frequent and repeated presence, in the same household or premises as the child.
* NB Repealed September 1, 2025
* § 65.10 Closed-circuit television; general rule; declaration of vulnerability.
1. A child witness shall be declared vulnerable when the court, in accordance with the provisions of section 65.20, determines by clear and convincing evidence that it is likely that such child witness will suffer serious mental or emotional harm if required to testify at a criminal proceeding without the use of live, two-way closed-circuit television and that the use of such live, two-way closed-circuit television will diminish the likelihood or extent of, such harm.
2. When the court declares a child witness to be vulnerable, it shall, except as provided in subdivision four of section 65.30, authorize the taking of the testimony of the vulnerable child witness from the testimonial room by means of live, two-way closed-circuit television. Under no circumstances shall the provisions of this article be construed to authorize a closed-circuit television system by which events in the courtroom are not transmitted to the testimonial room during the testimony of the vulnerable child witness.
3. Nothing herein shall be contrued to preclude the court from exercising its power to close the courtroom or from exercising any authority it otherwise may have to protect the well-being of a witness and the rights of the defendant.
* NB Repealed September 1, 2025
* § 65.20 Closed-circuit television; procedure for application and grounds for determination.
1. Prior to the commencement of a criminal proceeding; other than a grand jury proceeding, either party may apply to the court for an order declaring that a child witness is vulnerable.
2. A child witness should be declared vulnerable when the court, in accordance with the provisions of this section, determines by clear and convincing evidence that the child witness would suffer serious mental or emotional harm that would substantially impair the child witness' ability to communicate with the finder of fact without the use of live, two-way closed-circuit television.
3. A motion pursuant to subdivision one of this section must be made in writing at least eight days before the commencement of trial or other criminal proceeding upon reasonable notice to the other party and with an opportunity to be heard.
4. The motion papers must state the basis for the motion and must contain sworn allegations of fact which, if true, would support a determination by the court that the child witness is vulnerable. Such allegations may be based upon the personal knowledge of the deponent or upon information and belief, provided that, in the latter event, the sources of such information and the grounds for such belief are stated.
5. The answering papers may admit or deny any of the alleged facts and may, in addition, contain sworn allegations of fact relevant to the motion, including the rights of the defendant, the need to protect the child witness and the integrity of the truth-finding function of the trier of fact.
6. Unless all material facts alleged in support of the motion made pursuant to subdivision one of this section are conceded, the court shall, in addition to examining the papers and hearing oral argument, conduct an appropriate hearing for the purpose of making findings of fact essential to the determination of the motion. Except as provided in subdivision six of this section, it may subpoena or call and examine witnesses, who must either testify under oath or be permitted to give unsworn testimony pursuant to subdivision two of section 60.20 and must authorize the attorneys for the parties to do the same.
7. Notwithstanding any other provision of law, the child witness who is alleged to be vulnerable may not be compelled to testify at such hearing or to submit to any psychological or psychiatric examination. The failure of the child witness to testify at such hearing shall not be a ground for denying a motion made pursuant to subdivision one of this section. Prior statements made by the child witness relating to any allegations of conduct constituting an offense defined in article one hundred thirty of the penal law or incest as defined in section 255.25, 255.26 or 255.27 of such law or to any allegation of words or conduct constituting an attempt to prevent, impede or deter the child witness from cooperating in the investigation or prosecution of the offense shall be admissible at such hearing, provided, however, that a declaration that a child witness is vulnerable may not be based solely upon such prior statements.
8. (a) Notwithstanding any of the provisions of article forty-five of the civil practice law and rules, any physician, psychologist, nurse or social worker who has treated a child witness may testify at a hearing conducted pursuant to subdivision five of this section concerning the treatment of such child witness as such treatment relates to the issue presented at the hearing, provided that any otherwise applicable statutory privileges concerning communications between the child witness and such physician, psychologist, nurse or social worker in connection with such treatment shall not be deemed waived by such testimony alone, except to the limited extent of permitting the court alone to examine in camera reports, records or documents, if any, prepared by such physician, psychologist, nurse or social worker. If upon such examination the court determines that such reports, records or documents, or any one or portion thereof, contain information material and relevant to the issue of whether the child witness is a vulnerable child witness, the court shall disclose such information to both the attorney for the defendant and the district attorney.
(b) At any time after a motion has been made pursuant to subdivision one of this section, upon the demand of the other party the moving party must furnish the demanding party with a copy of any and all of such records, reports or other documents in the possession of such other party and must, in addition, supply the court with a copy of all such reports, records or other documents which are the subject of the demand. At any time after a demand has been made pursuant to this paragraph, the moving party may demand that property of the same kind or character in possession of the party that originally made such demand be furnished to the moving party and, if so furnished, be supplied, in addition, to the court.
9. (a) Prior to the commencement of the hearing conducted pursuant to subdivision six of this section, the district attorney shall, subject to a protective order, comply with the provisions of subdivision one of section 245.20 of this chapter as they concern any witness whom the district attorney intends to call at the hearing and the child witness.
(b) Before a defendant calls a witness at such hearing, he or she must, subject to a protective order, comply with the provisions of subdivision four of section 245.20 of this chapter as they concern all the witnesses the defendant intends to call at such hearing.
10. The court may consider, in determining whether there are factors which would cause the child witness to suffer serious mental or emotional harm, a finding that any one or more of the following circumstances have been established by clear and convincing evidence:
(a) The manner of the commission of the offense of which the defendant is accused was particularly heinous or was characterized by aggravating circumstances.
(b) The child witness is particularly young or otherwise particularly subject to psychological harm on account of a physical or mental condition which existed before the alleged commission of the offense.
(c) At the time of the alleged offense, the defendant occupied a position of authority with respect to the child witness.
(d) The offense or offenses charged were part of an ongoing course of conduct committed by the defendant against the child witness over an extended period of time.
(e) A deadly weapon or dangerous instrument was allegedly used during the commission of the crime.
(f) The defendant has inflicted serious physical injury upon the child witness.
(g) A threat, express or implied, of physical violence to the child witness or a third person if the child witness were to report the incident to any person or communicate information to or cooperate with a court, grand jury, prosecutor, police officer or peace officer concerning the incident has been made by or on behalf of the defendant.
(h) A threat, express or implied, of the incarceration of a parent or guardian of the child witness, the removal of the child witness from the family or the dissolution of the family of the child witness if the child witness were to report the incident to any person or communicate information to or cooperate with a court, grand jury, prosecutor, police officer or peace officer concerning the incident has been made by or on behalf of the defendant.
(i) A witness other than the child witness has received a threat of physical violence directed at such witness or to a third person by or on behalf of the defendant.
(j) The defendant, at the time of the inquiry, (i) is living in the same household with the child witness, (ii) has ready access to the child witness or (iii) is providing substantial financial support for the child witness.
(k) The child witness has previously been the victim of an offense defined in article one hundred thirty of the penal law or incest as defined in section 255.25, 255.26 or 255.27 of such law.
(l) According to expert testimony, the child witness would be particularly suceptible to psychological harm if required to testify in open court or in the physical presence of the defendant.
11. Irrespective of whether a motion was made pursuant to subdivision one of this section, the court, at the request of either party or on its own motion, may decide that a child witness may be vulnerable based on its own observations that a child witness who has been called to testify at a criminal proceeding is suffering severe mental or emotional harm and therefore is physically or mentally unable to testify or to continue to testify in open court or in the physical presence of the defendant and that the use of live, two-way closed-circuit television is necessary to enable the child witness to testify. If the court so decides, it must conduct the same hearing that subdivision five of this section requires when a motion is made pursuant to subdivision one of this section, and it must make findings of fact pursuant to subdivisions nine and eleven of this section, before determining that the child witness is vulnerable.
12. In deciding whether a child witness is vulnerable, the court shall make findings of fact which reflect the causal relationship between the existence of any one or more of the factors set forth in subdivision nine of this section or other relevant factors which the court finds are established and the determination that the child witness is vulnerable. If the court is satisfied that the child witness is vulnerable and that, under the facts and circumstances of the particular case, the defendant's constitutional rights to an impartial jury or of confrontation will not be impaired, it may enter an order granting the application for the use of live, two-way closed-circuit television.
13. When the court has determined that a child witness is a vulnerable child witness, it shall make a specific finding as to whether placing the defendant and the child witness in the same room during the testimony of the child witness will contribute to the likelihood that the child witness will suffer severe mental or emotional harm. If the court finds that placing the defendant and the child witness in the same room during the testimony of the child witness will contribute to the likelihood that the child witness will suffer severe mental or emotional harm, the order entered pursuant to subdivision eleven of this section shall direct that the defendant remain in the courtroom during the testimony of the vulnerable child witness.
* NB Repealed September 1, 2025
* § 65.30 Closed-circuit television; special testimonial procedures.
1. When the court has entered an order pursuant to section 65.20, the testimony of the vulnerable child witness shall be taken in the testimonial room and the image and voice of the vulnerable child witness, as well as the image of all other persons other than the operator present in the testimonial room, shall be transmitted live by means of closed-circuit television to the courtroom. The courtroom shall be equipped with monitors sufficient to permit the judge, jury, defendant and attorneys to observe the demeanor of the vulnerable child witness during his or her testimony. Unless the courtroom has been closed pursuant to court order, the public shall also be permitted to hear the testimony and view the image of the vulnerable child witness.
2. In all instances, the image of the jury shall be simultaneously transmitted to the vulnerable child witness in the testimonial room. If the court order issued pursuant to section 65.20 specifies that the vulnerable child witness shall testify outside the physical presence of the defendant, the image of the defendant and the image and voice of the person examining the vulnerable child witness shall also be simultaneously transmitted to the vulnerable child witness in the testimonial room.
3. The operator shall place herself or himself and the closed-circuit television equipment in a position that permits the entire testimony of the vulnerable child witness to be transmitted to the courtroom but limits the ability of the vulnerable child witness to see or hear the operator or the equipment.
4. Notwithstanding any provision of this article, if the court in a particular case involving a vulnerable child witness determines that there is no live, two-way closed-circuit television equipment available in the court or another court in the county or which can be transported to the court from another county or that such equipment, if available, is technologically inadequate to protect the constitutional rights of the defendant, it shall not permit the use of the closed-circuit television procedures authorized by this article.
5. If the order of the court entered pursuant to section 65.20 requires that the defendant remain in the courtroom, the attorney for the defendant and the district attorney shall also remain in the courtroom unless the court is satisfied that their presence in the testimonial room will not impede full and private communication between the defendant and his or her attorney and will not encourage the jury to draw an inference adverse to the interest of the defendant.
6. Upon request of the defendant, the court shall instruct the jury that they are to draw no inference from the use of live, two-way closed-circuit television in the examination of the vulnerable child witness.
7. The vulnerable child witness shall testify under oath except as specified in subdivision two of section 60.20. The examination and cross-examination of the vulnerable child witness shall, in all other respects, be conducted in the same manner as if the vulnerable child witness had testified in the courtroom.
8. When the testimony of the vulnerable child witness is transmitted from the testimonial room into the courtroom, the court stenographer shall record the textimony in the same manner as if the vulnerable child witness had testified in the courtroom.
* NB Repealed September 1, 2025
ARTICLE 70--STANDARDS OF PROOF
Section 70.10 Standards of proof; definitions of terms.
70.20 Standards of proof for conviction.
§ 70.10 Standards of proof; definitions of terms.
The following definitions are applicable to this chapter:
1. "Legally sufficient evidence" means competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant's commission thereof; except that such evidence is not legally sufficient when corroboration required by law is absent.
2. "Reasonable cause to believe that a person has committed an offense" exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it. Except as otherwise provided in this chapter, such apparently reliable evidence may include or consist of hearsay.
§ 70.20 Standards of proof for conviction.
No conviction of an offense by verdict is valid unless based upon trial evidence which is legally sufficient and which establishes beyond a reasonable doubt every element of such offense and the defendant's commission thereof.
PART TWO--THE PRINCIPAL PROCEEDINGS
TITLE H--PRELIMINARY PROCEEDINGS IN LOCAL CRIMINAL COURT
* ARTICLE 95
PRE-CRIMINAL PROCEEDING SETTLEMENTS Section 95.00 Pre-criminal proceeding settlement.
* NB Repealed March 31, 2025
* § 95.00 Pre-criminal proceeding settlement.
When a county district attorney of a county located in a city of one million or more recovers monies before the filing of an accusatory instrument as defined in subdivision one of section 1.20 of this chapter, after injured parties have been appropriately compensated, the district attorney's office shall retain a percentage of the remaining such monies in recognition that such monies were recovered as a result of investigations undertaken by such office. For each recovery the total amount of such monies to be retained by the county district attorney's office shall equal ten percent of the first twenty-five million dollars received by such office, plus seven and one-half percent of such monies received by such office in excess of twenty-five million dollars but less than fifty million dollars, plus five percent of any such monies received by such office in excess of fifty million dollars but less than one hundred million dollars, plus one percent of such monies received by such office in excess of one hundred million dollars. The remainder of such monies shall be paid by the district attorney's office to the state and to the county in equal amounts within thirty days of receipt, where disposition of such monies is not otherwise prescribed by law. Monies distributed to a county district attorney's office pursuant to this section shall be used to enhance law enforcement efforts within the state of New York. On December first of each year, every district attorney shall provide the governor, temporary president of the senate and speaker of the assembly with an annual report detailing the total amount of monies received as described herein by his or her office, a description of how and where such funds, and an itemization of funds received in the previous ten years, were distributed by his or her office but shall not include a description of the distribution of monies where the disclosure of such information would interfere with a law enforcement investigation or a judicial proceeding, and the current total balance of monies held on deposit for state sanctioned deferred prosecution agreements. The report shall include a detailed description of any entity to which funds are distributed, including but not limited to, whether it is a profit or not-for-profit entity, where it is located, and the intended use of the monies distributed, and shall state the law enforcement purpose.
* NB Repealed March 31, 2025
ARTICLE 100--COMMENCEMENT OF ACTION IN LOCAL CRIMINAL COURT OR YOUTH PART OF A SUPERIOR COURT--ACCUSATORY INSTRUMENTS
Section 100.05 Commencement of action; in general.
100.07 Commencement of action; effect of family court proceeding.
100.10 Local criminal court and youth part of the superior court accusatory instruments; definitions thereof.
100.15 Information, misdemeanor complaint and felony complaint; form and content.
100.20 Supporting deposition; definition, form and content.
100.25 Simplified information; form and content; defendant's right to supporting deposition; notice requirement.
100.30 Information, misdemeanor complaint, felony complaint, supporting deposition and proof of service of supporting deposition; verification.
100.35 Prosecutor's information; form and content.
100.40 Local criminal court and youth part of the superior court accusatory instruments; sufficiency on face.
100.45 Information, prosecutor's information, misdemeanor complaint; severance, consolidation, amendment, bill of particulars.
100.50 Superseding informations and prosecutor's informations.
100.55 Local criminal court accusatory instruments; in what courts filed.
100.60 Youth part of the superior court accusatory instruments; in what courts filed.
§ 100.05 Commencement of action; in general.
A criminal action is commenced by the filing of an accusatory instrument with a criminal court, or, in the case of a juvenile offender or adolescent offender, other than an adolescent offender charged with only a violation or traffic infraction, the youth part of the superior court, and if more than one such instrument is filed in the course of the same criminal action, such action commences when the first of such instruments is filed. The only way in which a criminal action can be commenced in a superior court, other than a criminal action against a juvenile offender or adolescent offender is by the filing therewith by a grand jury of an indictment against a defendant who has never been held by a local criminal court for the action of such grand jury with respect to any charge contained in such indictment. Otherwise, a criminal action can be commenced only in a local criminal court, by the filing therewith of a local criminal court accusatory instrument, namely:
1. An information; or
2. A simplified information; or
3. A prosecutor's information; or
4. A misdemeanor complaint; or
5. A felony complaint.
§ 100.07 Commencement of action; effect of family court proceeding.
A criminal court shall have concurrent jurisdiction over cognizable family offenses, as defined in subdivision one of section 530.11 of this chapter and in subdivision one of section eight hundred twelve of the family court act, notwithstanding the fact that a family court has or may be exercising jurisdiction over a petition under article eight of the family court act containing substantially the same allegations as are set forth in the accusatory instrument or indictment.
§ 100.10 Local criminal court and youth part of the superior court
accusatory instruments; definitions thereof.
1. An "information" is a verified written accusation by a person, filed with a local criminal court, charging one or more other persons with the commission of one or more offenses, none of which is a felony. It may serve as a basis both for the commencement of a criminal action and for the prosecution thereof in a local criminal court.
2. (a) A "simplified traffic information" is a written accusation by a police officer, or other public servant authorized by law to issue same, filed with a local criminal court, which charges a person with the commission of one or more traffic infractions and/or misdemeanors relating to traffic, and which, being in a brief or simplified form prescribed by the commissioner of motor vehicles, designates the offense or offenses charged but contains no factual allegations of an evidentiary nature supporting such charge or charges. It serves as a basis for commencement of a criminal action for such traffic offenses, alternative to the charging thereof by a regular information, and, under circumstances prescribed in section 100.25, it may serve, either in whole or in part, as a basis for prosecution of such charges.
(b) A "simplified parks information" is a written accusation by a police officer or other public servant authorized by law to issue same, filed with a local criminal court, which charges a person with the commission of one or more offenses, other than a felony, for which a uniform simplified parks information may be issued pursuant to the parks and recreation law and navigation law, and which being in a brief or simplified form prescribed by the commissioner of parks and recreation, designates the offense or offenses charged but contains no factual allegations of an evidentiary nature supporting such charge or charges. It serves as a basis for commencement of a criminal action for such offenses, alternative to the charging thereof by a regular information, and, under circumstances parescribed in section 100.25, it may serve, either in whole or in part, as a basis for prosecution of such charges.
(c) A "simplified environmental conservation information" is a written accusation by a police officer or other public servant authorized by law to issue same, filed with a local criminal court, which charges a person with the commission of one or more offenses, other than a felony, for which a uniform simplified environmental conservation information may be issued pursuant to the environmental conservation law, and which being in a brief or simplified form prescribed by the commissioner of environmental conservation, designates the offense or offenses charged but contains no factual allegations of an evidentiary nature supporting such charge or charges. It serves as a basis for commencement of a criminal action for such offenses, alternative to the charging thereof by a regular information, and, under circumstances prescribed in section 100.25, it may serve, either in whole or in part, as a basis for prosecution of such charges.
3. A "prosecutor's information" is a written accusation by a district attorney, filed with a local criminal court, either (a) at the direction of a grand jury pursuant to section 190.70, or (b) at the direction of a local criminal court pursuant to section 180.50 or 180.70, or (c) at the district attorney's own instance pursuant to subdivision two of section 100.50, or (d) at the direction of a superior court pursuant to subdivision one-a of section 210.20, charging one or more persons with the commission of one or more offenses, none of which is a felony. It serves as a basis for the prosecution of a criminal action, but it commences a criminal action only where it results from a grand jury direction issued in a case not previously commenced in a local criminal court.
4. A "misdemeanor complaint" is a verified written accusation by a person, filed with a local criminal court, charging one or more other persons with the commission of one or more offenses, at least one of which is a misdemeanor and none of which is a felony. It serves as a basis for the commencement of a criminal action, but it may serve as a basis for prosecution thereof only where a defendant has waived prosecution by information pursuant to subdivision three of section 170.65.
5. A "felony complaint" is a verified written accusation by a person, filed with a local criminal court, or youth part of the superior court, charging one or more other persons with the commission of one or more felonies. It serves as a basis for the commencement of a criminal action, but not as a basis for prosecution thereof.
§ 100.15 Information, misdemeanor complaint and felony complaint; form and
content.
1. An information, a misdemeanor complaint and a felony complaint must each specify the name of the court with which it is filed and the title of the action, and must be subscribed and verified by a person known as the "complainant." The complainant may be any person having knowledge, whether personal or upon information and belief, of the commission of the offense or offenses charged. Each instrument must contain an accusatory part and a factual part. The complainant's verification of the instrument is deemed to apply only to the factual part thereof and not to the accusatory part.
2. The accusatory part of each such instrument must designate the offense or offenses charged. As in the case of an indictment, and subject to the rules of joinder applicable to indictments, two or more offenses may be charged in separate counts. Also as in the case of an indictment, such instrument may charge two or more defendants provided that all such defendants are jointly charged with every offense alleged therein.
3. The factual part of such instrument must contain a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges. Where more than one offense is charged, the factual part should consist of a single factual account applicable to all the counts of the accusatory part. The factual allegations may be based either upon personal knowledge of the complainant or upon information and belief. Nothing contained in this section, however, limits or affects the requirement, prescribed in subdivision one of section 100.40, that in order for an information or a count thereof to be sufficient on its face, every element of the offense charged and the defendant's commission thereof must be supported by non-hearsay allegations of such information and/or any supporting depositions.
4. Where a felony complaint charges a violent felony offense defined in section 70.02 of the penal law and such offense is an armed felony as defined in subdivision forty-one of section 1.20,
(a) the accusatory part of the instrument must designate the offense as an armed felony, and (b) the factual part of the instrument must allege facts of an evidentiary character supporting or tending to support such designation.
§ 100.20 Supporting deposition; definition, form and content.
A supporting deposition is a written instrument accompanying or filed in connection with an information, a simplified information, a misdemeanor complaint or a felony complaint, subscribed and verified by a person other than the complainant of such accusatory instrument, and containing factual allegations of an evidentiary character, based either upon personal knowledge or upon information and belief, which supplement those of the accusatory instrument and support or tend to support the charge or charges contained therein.
§ 100.25 Simplified information; form and content; defendant's right to
supporting deposition; notice requirement.
1. A simplified information must be substantially in the form prescribed by the commissioner of motor vehicles, the commissioner of parks and recreation, or the commissioner of environmental conservation, as the case may be.
2. A defendant charged by a simplified information is, upon a timely request, entitled as a matter of right to have filed with the court and served upon him, or if he is represented by an attorney, upon his attorney, a supporting deposition of the complainant police officer or public servant, containing allegations of fact, based either upon personal knowledge or upon information and belief, providing reasonable cause to believe that the defendant committed the offense or offenses charged. To be timely, such a request must, except as otherwise provided herein and in subdivision three of this section, be made before entry of a plea of guilty to the charge specified and before commencement of a trial thereon, but not later than thirty days after the date the defendant is directed to appear in court as such date appears upon the simplified information and upon the appearance ticket issued pursuant thereto. If the defendant's request is mailed to the court, the request must be mailed within such thirty day period. Upon such a request, the court must order the complainant police officer or public servant to serve a copy of such supporting deposition upon the defendant or his attorney, within thirty days of the date such request is received by the court, or at least five days before trial, whichever is earlier, and to file such supporting deposition with the court together with proof of service thereof. Notwithstanding any provision to the contrary, where a defendant is issued an appearance ticket in conjunction with the offense charged in the simplified information and the appearance ticket fails to conform with the requirements of subdivision two of section 150.10, a request is timely when made not later than thirty days after (a) entry of the defendant's plea of not guilty when he or she has been arraigned in person, or (b) written notice to the defendant of his or her right to receive a supporting deposition when a plea of not guilty has been submitted by mail.
3. When at least one of the offenses charged in a simplified information is a misdemeanor, the court may, upon motion of the defendant, for good cause shown and consistent with the interest of justice, permit the defendant to request a supporting deposition beyond the thirty day request period set forth in subdivision two of this section provided, however, that no motion may be brought under this subdivision after ninety days has elapsed from the date the defendant is directed to appear in court as such date appears upon the simplified information and upon the appearance ticket issued pursuant thereto.
4. Notwithstanding any provision of law to the contrary, where a person is charged by a simplified information and is served with an appearance ticket as defined in section 150.10, such appearance ticket shall contain the following language: "NOTICE: YOU ARE ENTITLED TO RECEIVE A SUPPORTING DEPOSITION FURTHER EXPLAINING THE CHARGES PROVIDED YOU REQUEST SUCH SUPPORTING DEPOSITION WITHIN THIRTY DAYS FROM THE DATE YOU ARE DIRECTED TO APPEAR IN COURT AS SET FORTH ON THIS APPEARANCE TICKET. DO YOU REQUEST A SUPPORTING DEPOSITION? [ ] YES [ ] NO"
§ 100.30 Information, misdemeanor complaint, felony complaint, supporting deposition and proof of service of supporting deposition; verification.
1. An information, a misdemeanor complaint, a felony complaint, a supporting deposition, and proof of service of a supporting deposition may be verified in any of the following manners:
(a) Such instrument may be sworn to before the court with which it is filed.
(b) Such instrument may be sworn to before a desk officer in charge at a police station or police headquarters or any of his superior officers.
(c) Where such instrument is filed by any public servant following the issuance and service of an appearance ticket, and where by express provision of law another designated public servant is authorized to administer the oath with respect to such instrument, it may be sworn to before such public servant.
(d) Such instrument may bear a form notice that false statements made therein are punishable as a class A misdemeanor pursuant to section 210.45 of the penal law, and such form notice together with the subscription of the deponent constitute a verification of the instrument.
(e) Such instrument may be sworn to before a notary public.
2. An instrument specified in subdivision one may be verified in any manner prescribed therein unless in a particular case the court expressly directs verification in a particular manner prescribed in said subdivision one.
§ 100.35 Prosecutor's information; form and content.
A prosecutor's information must contain the name of the local criminal court with which it is filed and the title of the action, and must be subscribed by the district attorney by whom it is filed. Otherwise it should be in the form prescribed for an indictment, pursuant to section 200.50, and must, in one or more counts, allege the offense or offenses charged and a plain and concise statement of the conduct constituting each such offense. The rules prescribed in sections 200.20 and 200.40 governing joinder of different offenses and defendants in a single indictment are also applicable to a prosecutor's information.
§ 100.40 Local criminal court and youth part of the superior court accusatory instruments; sufficiency on face.
1. An information, or a count thereof, is sufficient on its face when:
(a) It substantially conforms to the requirements prescribed in section 100.15; and
(b) The allegations of the factual part of the information, together with those of any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information; and
(c) Non-hearsay allegations of the factual part of the information and/or of any supporting depositions establish, if true, every element of the offense charged and the defendant's commission thereof.
2. A simplified information is sufficient on its face when, as provided by subdivision one of section 100.25, it substantially conforms to the requirement therefor prescribed by or pursuant to law; provided that when the filing of a supporting deposition is ordered by the court pursuant to subdivision two of said section 100.25, a failure of the complainant police officer or public servant to comply with such order within the time provided by subdivision two of said section 100.25 renders the simplified information insufficient on its face.
3. A prosecutor's information, or a count thereof, is sufficient on its face when it substantially conforms to the requirements prescribed in section 100.35.
4. A misdemeanor complaint or a felony complaint, or a count thereof, is sufficient on its face when:
(a) It substantially conforms to the requirements prescribed in section 100.15; and
(b) The allegations of the factual part of such accusatory instrument and/or any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of such instrument.
§ 100.45 Information, prosecutor's information, misdemeanor complaint; severance, consolidation, amendment, bill of particulars.
1. Where appropriate, the provisions of sections 200.20 and 200.40 and paragraph (n) of subdivision four of section 20.40 of this chapter, governing severance of counts of an indictment and severance of defendants for trial purposes, and governing consolidation of indictments for trial purposes, apply to informations, to prosecutor's informations and to misdemeanor complaints.
2. The provisions of section 200.70 governing amendment of indictments apply to prosecutor's informations.
3. At any time before the entry of a plea of guilty to or the commencement of a trial of an information, the court may, upon application of the people and with notice to the defendant and opportunity to be heard, order the amendment of the accusatory part of such information by addition of a count charging an offense supported by the allegations of the factual part of such information and/or any supporting depositions which may accompany it. In such case, the defendant must be accorded any reasonable adjournment necessitated by the amendment.
4. The provisions of section 200.95, governing bills of particulars with respect to indictments, apply to informations, to misdemeanor complaints and to prosecutor's informations.
§ 100.50 Superseding informations and prosecutor's informations.
1. If at any time before entry of a plea of guilty to or commencement of a trial of an information or a prosecutor's information, another information or, as the case may be, another prosecutor's information is filed with the same local criminal court charging the defendant with an offense charged in the first instrument, the first such instrument is, with respect to such offense, superseded by the second and, upon the defendant's arraignment upon the latter, the count of the first instrument charging such offense must be dismissed by the court. The first instrument is not, however, superseded with respect to any count contained therein which charges an offense not charged in the second instrument.
2. At any time before entry of a plea of guilty to or commencement of a trial of an information, the district attorney may file with the local criminal court a prosecutor's information charging any offenses supported, pursuant to the standards prescribed in subdivision one of section 100.40, by the allegations of the factual part of the original information and/or any supporting depositions which may accompany it. In such case, the original information is superseded by the prosecutor's information and, upon the defendant's arraignment upon the latter, is deemed dismissed.
3. A misdemeanor complaint must or may be replaced and superseded by an information pursuant to the provisions of section 170.65.
§ 100.55 Local criminal court accusatory instruments; in what courts filed.
1. Any local criminal court accusatory instrument may be filed with a district court of a particular county when an offense charged therein was allegedly committed in such county or that part thereof over which such court has jurisdiction.
2. Any local criminal court accusatory instrument may be filed with the New York City criminal court when an offense charged therein was allegedly committed in New York City.
3. Any local criminal court accusatory instrument may be filed with a city court of a particular city when an offense charged therein was allegedly committed in such city.
4. An information, a simplified information, a prosecutor's information or a misdemeanor complaint may be filed with a town court of a particular town when an offense charged therein was allegedly committed anywhere in such town other than in a village thereof having a village court.
5. An information, a simplified information, a prosecutor's information or a misdemeanor complaint may be filed with a village court of a particular village when an offense charged therein was allegedly committed in such village.
6. A felony complaint may be filed with any town court or village court of a particular county when a felony charged therein was allegedly committed in some town of such county. Such court need not be that of the town or village in which such felony was allegedly committed.
7. An information, a simplified information, a misdemeanor complaint or a felony complaint may be filed with a judge of a superior court sitting as a local criminal court when an offense charged therein was allegedly committed in a county in which such judge is then present and in which he either resides or is currently holding, or has been assigned to hold, a term of a superior court.
8. Where it is otherwise expressly provided by law that a particular kind of accusatory instrument may under given circumstances be filed with a local criminal court other than one authorized by this section, nothing contained in this section precludes the filing of such accusatory instrument accordingly.
9. In any case where each of two or more local criminal courts is authorized as a proper court with which to file an accusatory instrument, such an instrument may, in the absence of an express provision of law to the contrary, be filed with any one of such courts but not with more than one.
10. For purposes of this section, an offense is "committed in" a particular county, city, town, village or other specified political subdivision or area, not only when it is in fact committed therein but also when it is, for other reasons specified in sections 20.40 and 20.50, prosecutable in the criminal courts having geographical jurisdiction over such political subdivision or area.
11. Notwithstanding any provision of law to the contrary, a local criminal court accusatory instrument may be filed with a local criminal court while it is operating an off-hours arraignment part designated in accordance with paragraph (w) of subdivision one of section two hundred twelve of the judiciary law provided that an offense charged therein was allegedly committed in the county in which the local criminal court is located.
§ 100.60 Youth part of the superior court accusatory instruments; in what courts filed.
Any youth part of the superior court accusatory instrument may be filed with the youth part of the superior court of a particular county when an offense charged therein was allegedly committed in such county or that part thereof over which such court has jurisdiction.
ARTICLE 110--REQUIRING DEFENDANT'S APPEARANCE IN LOCAL CRIMINAL COURT OR YOUTH PART OF SUPERIOR COURT FOR ARRAIGNMENT
Section 110.10 Methods of requiring defendant's appearance in local criminal court or youth part of the superior court for arraignment; in general.
110.20 Local criminal court or youth part of the superior court accusatory instruments; notice thereof to district attorney.
§ 110.10 Methods of requiring defendant's appearance in local criminal court or youth part of the superior court for arraignment; in general.
1. After a criminal action has been commenced in a local criminal court or youth part of the superior court by the filing of an accusatory instrument therewith, a defendant who has not been arraigned in the action and has not come under the control of the court may under certain circumstances be compelled or required to appear for arraignment upon such accusatory instrument by:
(a) The issuance and execution of a warrant of arrest, as provided in article one hundred twenty; or
(b) The issuance and service upon him of a summons, as provided in article one hundred thirty; or
(c) Procedures provided in articles five hundred sixty, five hundred seventy, five hundred eighty, five hundred ninety and six hundred for securing attendance of defendants in criminal actions who are not at liberty within the state.
2. Although no criminal action against a person has been commenced in any court, he may under certain circumstances be compelled or required to appear in a local criminal court or youth part of a superior court for arraignment upon an accusatory instrument to be filed therewith at or before the time of his appearance by:
(a) An arrest made without a warrant, as provided in article one hundred forty; or
(b) The issuance and service upon him of an appearance ticket, as provided in article one hundred fifty.
§ 110.20 Local criminal court or youth part of the superior court accusatory instruments; notice thereof to district attorney.
When a criminal action in which a crime is charged is commenced in a local criminal court, or youth part of the superior court other than the criminal court of the city of New York, a copy of the accusatory instrument shall be promptly transmitted to the appropriate district attorney upon or prior to the arraignment of the defendant on the accusatory instrument. If a police officer or a peace officer is the complainant or the filer of a simplified information, or has arrested the defendant or brought him before the local criminal court or youth part of the superior court on behalf of an arresting person pursuant to subdivision one of section 140.20, such officer or his agency shall transmit the copy of the accusatory instrument to the appropriate district attorney. In all other cases, the clerk of the court in which the defendant is arraigned shall so transmit it.
ARTICLE 120--WARRANT OF ARREST
Section 120.10 Warrant of arrest; definition, function, form and content.
120.20 Warrant of arrest; when issuable.
120.30 Warrant of arrest; by what courts issuable and in what courts returnable.
120.40 Warrant of arrest; attaching accusatory instrument to warrant of town court, village court or city court.
120.50 Warrant of arrest; to what police officers addressed.
120.55 Warrant of arrest; defendant under parole or probation supervision.
120.60 Warrant of arrest; what police officers may execute.
120.70 Warrant of arrest; where executable.
120.80 Warrant of arrest; when and how executed.
120.90 Warrant of arrest; procedure after arrest.
§ 120.10 Warrant of arrest; definition, function, form and content.
1. A warrant of arrest is a process issued by a local criminal court directing a police officer to arrest a defendant designated in an accusatory instrument filed with such court and to bring him before such court in connection with such instrument. The sole function of a warrant of arrest is to achieve a defendant's court appearance in a criminal action for the purpose of arraignment upon the accusatory instrument by which such action was commenced.
2. A warrant of arrest must be subscribed by the issuing judge and must state or contain (a) the name of the issuing court, and (b) the date of issuance of the warrant, and (c) the name or title of an offense charged in the underlying accusatory instrument, and (d) the name of the defendant to be arrested or, if such be unknown, any name or description by which he can be identified with reasonable certainty, and (e) the police officer or officers to whom the warrant is addressed, and (f) a direction that such officer arrest the defendant and bring him before the issuing court.
3. A warrant of arrest may be addressed to a classification of police officers, or to two or more classifications thereof, as well as to a designated individual police officer or officers. Multiple copies of such a warrant may be issued.
§ 120.20 Warrant of arrest; when issuable.
1. When a criminal action has been commenced in a local criminal court or youth part of the superior court by the filing therewith of an accusatory instrument, other than a simplified traffic information, against a defendant who has not been arraigned upon such accusatory instrument and has not come under the control of the court with respect thereto:
(a) such court may, if such accusatory instrument is sufficient on its face, issue a warrant for such defendant's arrest; or
(b) if such accusatory instrument is not sufficient on its face as prescribed in section 100.40, and if the court is satisfied that on the basis of the available facts or evidence it would be impossible to draw and file an accusatory instrument that is sufficient on its face, the court must dismiss the accusatory instrument.
2. Even though such accusatory instrument is sufficient on its face, the court may refuse to issue a warrant of arrest based thereon until it has further satisfied itself, by inquiry or examination of witnesses, that there is reasonable cause to believe that the defendant committed an offense charged. Upon such inquiry or examination, the court may examine, under oath or otherwise, any available person whom it believes may possess knowledge concerning the subject matter of the charge.
3. Notwithstanding the provisions of subdivision one, if a summons may be issued in lieu of a warrant of arrest pursuant to section 130.20, and if the court is satisfied that the defendant will respond thereto, it may not issue a warrant of arrest. Upon the request of the district attorney, in lieu of a warrant of arrest or summons, the court may instead authorize the district attorney to direct the defendant to appear for arraignment on a designated date if it is satisfied that the defendant will so appear.
§ 120.30 Warrant of arrest; by what courts issuable and in what courts returnable.
1. A warrant of arrest may be issued only by the local criminal court or youth part of the superior court with which the underlying accusatory instrument has been filed, and it may be made returnable in such issuing court only.
2. The particular local criminal court or courts or youth part of the superior court with which any particular local criminal court or youth part of the superior court accusatory instrument may be filed for the purpose of obtaining a warrant of arrest are determined, generally, by the provisions of section 100.55 or 100.60 of this title. If, however, a particular accusatory instrument may pursuant to said section 100.55 be filed with a particular town court and such town court is not available at the time such instrument is sought to be filed and a warrant obtained, such accusatory instrument may be filed with the town court of any adjoining town of the same county. If such instrument may be filed pursuant to said section 100.55 with a particular village court and such village court is not available at the time, it may be filed with the town court of the town embracing such village, or if such town court is not available either, with the town court of any adjoining town of the same county.
§ 120.40 Warrant of arrest; attaching accusatory instrument to warrant of town court, village court or city court.
A town court, village court or city court which issues a warrant of arrest may attach thereto a duplicate copy of the underlying accusatory instrument. If one or more duplicate copies of the warrant are issued, such court may attach as many copies of such accusatory instrument to copies of such warrant as it chooses. In any case where, pursuant to subdivision five of section 120.90, a defendant arrested upon such a warrant of arrest is brought before a local criminal court other than the town court, village court or city court in which the warrant is returnable, a copy of the accusatory instrument constitutes a valid basis for arraignment, as provided in subdivision one of section 170.15.
§ 120.50 Warrant of arrest; to what police officers addressed.
A warrant of arrest may be addressed to any police officer or classification of police officers whose geographical area of employment embraces either the place where the offense charged was allegedly committed or the locality of the court by which the warrant is issued.
§ 120.55 Warrant of arrest; defendant under parole or probation supervision.
If the defendant named within a warrant of arrest issued by a local criminal court or youth part of the superior court pursuant to the provisions of this article, or by a superior court issued pursuant to subdivision three of section 210.10 of this chapter, is under the supervision of the state department of corrections and community supervision or a local or state probation department, then a warrant for his or her arrest may be executed by a parole officer or probation officer, when authorized by his or her probation director, within his or her geographical area of employment. The execution of the warrant by a parole officer or probation officer shall be upon the same conditions and conducted in the same manner as provided for execution of a warrant by a police officer.
§ 120.60 Warrant of arrest; what police officers may execute.
1. A warrant of arrest may be executed by (a) any police officer to whom it is addressed, or (b) any other police officer delegated to execute it under circumstances prescribed in subdivisions two and three.
2. A police officer to whom a warrant of arrest is addressed may delegate another officer to whom it is not addressed to execute such warrant as his agent when:
(a) He has reasonable cause to believe that the defendant is in a particular county other than the one in which the warrant is returnable; and
(b) The warrant is, pursuant to section 120.70, executable in such other county without endorsement by a local criminal court thereof; and
(c) The geographical area of employment of the delegated police officer embraces the locality where the arrest is to be made.
3. Under circumstances specified in subdivision two, the police officer to whom the warrant is addressed may inform the delegated officer, by telecommunication, mail or any other means, of the issuance of the warrant, of the offense charged in the underlying accusatory instrument and of all other pertinent details, and may request him to act as his agent in arresting the defendant pursuant to such warrant. Upon such request, the delegated police officer is to the same extent as the delegating officer, authorized to make such arrest pursuant to the warrant within the geographical area of such delegated officer's employment. Upon so arresting the defendant, he must proceed as provided in subdivisions two and four of section 120.90.
§ 120.70 Warrant of arrest; where executable.
1. A warrant of arrest issued by a district court, by the New York City criminal court, the youth part of a superior court or by a superior court judge sitting as a local criminal court may be executed anywhere in the state.
2. A warrant of arrest issued by a city court, a town court or a village court may be executed:
(a) In the county of issuance or in any adjoining county; or
(b) Anywhere else in the state upon the written endorsement thereon of a local criminal court of the county in which the arrest is to be made. When so endorsed, the warrant is deemed the process of the endorsing court as well as that of the issuing court.
§ 120.80 Warrant of arrest; when and how executed.
1. A warrant of arrest may be executed on any day of the week and at any hour of the day or night.
2. Unless encountering physical resistance, flight or other factors rendering normal procedure impractical, the arresting police officer must inform the defendant that a warrant for his arrest for the offense designated therein has been issued. Upon request of the defendant, the officer must show him the warrant if he has it in his possession. The officer need not have the warrant in his possession, and, if he has not, he must show it to the defendant upon request as soon after the arrest as possible.
3. In order to effect the arrest, the police officer may use such physical force as is justifiable pursuant to section 35.30 of the penal law.
4. In order to effect the arrest, the police officer may, under circumstances and in the manner prescribed in this subdivision, enter any premises in which he reasonably believes the defendant to be present; provided, however, that where the premises in which the officer reasonably believes the defendant to be present is the dwelling of a third party who is not the subject of the arrest warrant, the officer shall proceed in the manner specified in article 690 of this chapter. Before such entry, he must give, or make reasonable effort to give, notice of his authority and purpose to an occupant thereof, unless there is reasonable cause to believe that the giving of such notice will:
(a) Result in the defendant escaping or attempting to escape; or
(b) Endanger the life or safety of the officer or another person; or
(c) Result in the destruction, damaging or secretion of material evidence.
5. If the officer is authorized to enter premises without giving notice of his authority and purpose, or if after giving such notice he is not admitted, he may enter such premises, and by a breaking if necessary.
§ 120.90 Warrant of arrest; procedure after arrest.
1. Upon arresting a defendant for any offense pursuant to a warrant of arrest in the county in which the warrant is returnable or in any adjoining county, or upon so arresting him or her for a felony in any other county, a police officer, if he or she be one to whom the warrant is addressed, must without unnecessary delay bring the defendant before the local criminal court or youth part of the superior court in which such warrant is returnable, provided that, where a local criminal court or youth part of the superior court in the county in which the warrant is returnable hereunder is operating an off-hours arraignment part designated in accordance with paragraph (w) of subdivision one of section two hundred twelve of the judiciary law at the time of defendant's return, such police officer may bring the defendant before such local criminal court or youth part of the superior court.
2. Upon arresting a defendant for any offense pursuant to a warrant of arrest in a county adjoining the county in which the warrant is returnable, or upon so arresting him for a felony in any other county, a police officer, if he be one delegated to execute the warrant pursuant to section 120.60, must without unnecessary delay deliver the defendant or cause him to be delivered to the custody of the officer by whom he was so delegated, and the latter must then proceed as provided in subdivision one.
3. Upon arresting a defendant for an offense other than a felony pursuant to a warrant of arrest in a county other than the one in which the warrant is returnable or one adjoining it, a police officer, if he be one to whom the warrant is addressed, must inform the defendant that he has a right to appear before a local criminal court of the county of arrest for the purpose of being released on his own recognizance or having bail fixed. If the defendant does not desire to avail himself of such right, the officer must request him to endorse such fact upon the warrant, and upon such endorsement the officer must without unnecessary delay bring him before the court in which the warrant is returnable. If the defendant does desire to avail himself of such right, or if he refuses to make the aforementioned endorsement, the officer must without unnecessary delay bring him before a local criminal court of the county of arrest. Such court must release the defendant on his own recognizance or fix bail for his appearance on a specified date in the court in which the warrant is returnable. If the defendant is in default of bail, the officer must without unnecessary delay bring him before the court in which the warrant is returnable.
4. Upon arresting a defendant for an offense other than a felony pursuant to a warrant of arrest in a county other than the one in which the warrant is returnable or one adjoining it, a police officer, if he be one delegated to execute the warrant pursuant to section 120.60, may hold the defendant in custody in the county of arrest for a period not exceeding two hours for the purpose of delivering him to the custody of the officer by whom he was delegated to execute such warrant. If the delegating officer receives custody of the defendant during such period, he must proceed as provided in subdivision three. Otherwise, the delegated officer must inform the defendant that he has a right to appear before a local criminal court for the purpose of being released on his own recognizance or having bail fixed. If the defendant does not desire to avail himself of such right, the officer must request him to make, sign and deliver to him a written statement of such fact, and if the defendant does so, the officer must retain custody of him but must without unnecessary delay deliver him or cause him to be delivered to the custody of the delegating police officer. If the defendant does desire to avail himself of such right, or if he refuses to make and deliver the aforementioned statement, the delegated or arresting officer must without unnecessary delay bring him before a local criminal court of the county of arrest and must submit to such court a written statement reciting the material facts concerning the issuance of the warrant, the offense involved, and all other essential matters relating thereto. Upon the submission of such statement, such court must release the defendant on his own recognizance or fix bail for his appearance on a specified date in the court in which the warrant is returnable. If the defendant is in default of bail, the officer must retain custody of him but must without unnecessary delay deliver him or cause him to be delivered to the custody of the delegating officer. Upon receiving such custody, the latter must without unnecessary delay bring the defendant before the court in which the warrant is returnable.
5. Whenever a police officer is required pursuant to this section to bring an arrested defendant before a town court in which a warrant of arrest is returnable, and if such town court is not available at the time, such officer must, if a copy of the underlying accusatory instrument has been attached to the warrant pursuant to section 120.40, instead bring such defendant before any village court embraced, in whole or in part, by such town, or any local criminal court of an adjoining town or city of the same county or any village court embraced, in whole or in part, by such adjoining town. When the court in which the warrant is returnable is a village court which is not available at the time, the officer must in such circumstances bring the defendant before the town court of the town embracing such village or any other village court within such town or, if such town court or village court is not available either, before the local criminal court of any town or city of the same county which adjoins such embracing town or, before the local criminal court of any village embraced in whole or in part by such adjoining town. When the court in which the warrant is returnable is a city court which is not available at the time, the officer must in such circumstances bring the defendant before the local criminal court of any adjoining town or village embraced in whole or in part by such adjoining town of the same county.
5-a. Whenever a police officer is required, pursuant to this section, to bring an arrested defendant before a youth part of a superior court in which a warrant of arrest is returnable, and if such court is not in session, such officer must bring such defendant before the most accessible magistrate designated by the appellate division of the supreme court in the applicable department to act as a youth part.
6. Before bringing a defendant arrested pursuant to a warrant before the local criminal court or youth part of a superior court in which such warrant is returnable, a police officer must without unnecessary delay perform all fingerprinting and other preliminary police duties required in the particular case. In any case in which the defendant is not brought by a police officer before such court but, following his arrest in another county for an offense specified in subdivision one of section 160.10, is released by a local criminal court of such other county on his own recognizance or on bail for his appearance on a specified date before the local criminal court before which the warrant is returnable, the latter court must, upon arraignment of the defendant before it, direct that he be fingerprinted by the appropriate officer or agency, and that he appear at an appropriate designated time and place for such purpose.
7. Upon arresting a juvenile offender or adolescent offender, the police officer shall immediately notify the parent or other person legally responsible for his care or the person with whom he is domiciled, that the juvenile offender or adolescent offender has been arrested, and the location of the facility where he is being detained.
8. Upon arresting a defendant, other than a juvenile offender, for any offense pursuant to a warrant of arrest, a police officer shall, upon the defendant's request, permit the defendant to communicate by telephone provided by the law enforcement facility where the defendant is held to a phone number located anywhere 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 arrested, unless granting the call will compromise an ongoing investigation or the prosecution of the defendant.
ARTICLE 130--THE SUMMONS
Section 130.10 Summons; definition, function, form and content.
130.20 Summons; by what courts issuable and in what courts returnable.
130.30 Summons; when issuable.
130.40 Summons; service.
130.50 Summons; defendant's failure to appear.
130.60 Summons; fingerprinting of defendant.
§ 130.10 Summons; definition, function, form and content.
1. A summons is a process issued by a local criminal court directing a defendant designated in an information, a prosecutor's information, a felony complaint or a misdemeanor complaint filed with such court, or a youth part of a superior court directing a defendant designated in a felony complaint, or by a superior court directing a defendant designated in an indictment filed with such court, to appear before it at a designated future time in connection with such accusatory instrument. The sole function of a summons is to achieve a defendant's court appearance in a criminal action for the purpose of arraignment upon the accusatory instrument by which such action was commenced.
2. A summons must be subscribed by the issuing judge and must state or contain (a) the name of the issuing court, and (b) the name of the defendant to whom it is addressed, and (c) the name or title of an offense charged in the underlying accusatory instrument, and (d) the date of issuance of the summons, and (e) the date and time when it is returnable, and (f) a direction that the defendant appear before the issuing court at such time.
§ 130.20 Summons; by what courts issuable and in what courts returnable.
A summons may be issued only by the local criminal court or superior court with which the accusatory instrument underlying it has been filed, and it may be made returnable in such issuing court only.
§ 130.30 Summons; when issuable.
A local criminal court or youth part of the superior court may issue a summons in any case in which, pursuant to section 120.20, it is authorized to issue a warrant of arrest based upon an information, a prosecutor's information, a felony complaint or a misdemeanor complaint. If such information, prosecutor's information, felony complaint or misdemeanor complaint is not sufficient on its face as prescribed in section 100.40, and if the court is satisfied that on the basis of the available facts or evidence it would be impossible to draw and file an authorized accusatory instrument that is sufficient on its face, the court must dismiss the accusatory instrument. A superior court may issue a summons in any case in which, pursuant to section 210.10, it is authorized to issue a warrant of arrest based upon an indictment.
§ 130.40 Summons; service.
1. A summons may be served by a police officer, or by a complainant at least eighteen years old or by any other person at least eighteen years old designated by the court.
2. A summons may be served anywhere in the county of issuance or anywhere in an adjoining county.
§ 130.50 Summons; defendant's failure to appear.
If after the service of a summons the defendant does not appear in the designated local criminal court or superior court at the time such summons is returnable, the court may issue a warrant of arrest.
§ 130.60 Summons; fingerprinting of defendant.
1. Upon the arraignment of a defendant whose court attendance has been secured by the issuance and service of a summons, based upon an indictment, a prosecutor's information or upon an information, felony complaint or misdemeanor complaint filed by a complainant who is a police officer, the court must, if an offense charged in the accusatory instrument is one specified in subdivision one of section 160.10, direct that the defendant be fingerprinted by the appropriate police officer or agency, and that he or she appear at an appropriate designated time and place for such purpose.
2. Upon the arraignment of a defendant whose court attendance has been secured by the issuance and service of a summons based upon an information or misdemeanor complaint filed by a complainant who is not a police officer, and who has not previously been fingerprinted, the court may, if it finds reasonable cause to believe that the defendant has committed an offense specified in subdivision one of section 160.10, direct that the defendant be fingerprinted by the appropriate police officer or agency and that he appear at an appropriate designated time and place for such purpose. A defendant whose court appearance has been secured by the issuance and service of a criminal summons based upon a misdemeanor complaint or information filed by a complainant who is not a police officer, must be directed by the court, upon conviction of the defendant, to be fingerprinted by the appropriate police officer or agency and the court must also direct that the defendant appear at an appropriate designated time and place for such purpose, if the defendant is convicted of any offense specified in subdivision one of section 160.10.
ARTICLE 140--ARREST WITHOUT A WARRANT
Section 140.05 Arrest without a warrant; in general.
140.10 Arrest without a warrant; by police officer; when and where authorized.
140.15 Arrest without a warrant; when and how made by police officer.
140.20 Arrest without a warrant; procedure after arrest by police officer.
140.25 Arrest without a warrant; by peace officer.
140.27 Arrest without a warrant; when and how made; procedure after arrest by peace officer.
140.30 Arrest without a warrant; by any person; when and where authorized.
140.35 Arrest without a warrant; by person acting other than as a police officer or a peace officer; when and how made.
140.40 Arrest without a warrant; by person acting other than as a police officer or a peace officer; procedure after arrest.
140.45 Arrest without a warrant; dismissal of insufficient local criminal court accusatory instrument.
140.50 Temporary questioning of persons in public places; search for weapons.
140.55 Arrest without a warrant; by peace officers of other states for offense committed outside state; uniform close pursuit act.
§ 140.05 Arrest without a warrant; in general.
A person who has committed or is believed to have committed an offense and who is at liberty within the state may, under circumstances prescribed in this article, be arrested for such offense although no warrant of arrest therefor has been issued and although no criminal action therefor has yet been commenced in any criminal court.
§ 140.10 Arrest without a warrant; by police officer; when and where authorized.
1. Subject to the provisions of subdivision two, a police officer may arrest a person for:
(a) Any offense when he or she has reasonable cause to believe that such person has committed such offense in his or her presence; and
(b) A crime when he or she has reasonable cause to believe that such person has committed such crime, whether in his or her presence or otherwise.
2. A police officer may arrest a person for a petty offense, pursuant to subdivision one, only when:
(a) Such offense was committed or believed by him or her to have been committed within the geographical area of such police officer's employment or within one hundred yards of such geographical area; and
(b) Such arrest is made in the county in which such offense was committed or believed to have been committed or in an adjoining county; except that the police officer may follow such person in continuous close pursuit, commencing either in the county in which the offense was or is believed to have been committed or in an adjoining county, in and through any county of the state, and may arrest him or her in any county in which he or she apprehends him or her.
3. A police officer may arrest a person for a crime, pursuant to subdivision one, whether or not such crime was committed within the geographical area of such police officer's employment, and he or she may make such arrest within the state, regardless of the situs of the commission of the crime. In addition, he or she may, if necessary, pursue such person outside the state and may arrest him or her in any state the laws of which contain provisions equivalent to those of section 140.55.
3-a. A police officer may not arrest any person for any legally protected health activity within this state as defined in section 570.17 of this chapter.
3-b. A police officer may not arrest any person for performing or aiding in the performance of gender-affirming care within this state, or in procuring or aiding in the procurement of gender-affirming care in this state, if the gender-affirming care is performed in accordance with the provisions of any other applicable law of this state.
* 4. Notwithstanding any other provisions of this section, a police officer shall arrest a person, and shall not attempt to reconcile the parties or mediate, where such officer has reasonable cause to believe that:
(a) a felony, other than subdivision three, four, nine or ten of section 155.30 of the penal law, has been committed by such person against a member of the same family or household, as member of the same family or household is defined in subdivision one of section 530.11 of this chapter; or
(b) a duly served order of protection or special order of conditions issued pursuant to subparagraph (i) or (ii) of paragraph (o) of subdivision one of section 330.20 of this chapter is in effect, or an order of which the respondent or defendant has actual knowledge because he or she was present in court when such order was issued, where the order appears to have been issued by a court of competent jurisdiction of this or another state, territorial or tribal jurisdiction; and
(i) Such order directs that the respondent or defendant stay away from persons on whose behalf the order of protection or special order of conditions has been issued and the respondent or defendant committed an act or acts in violation of such "stay away" provision of such order; or
(ii) The respondent or defendant commits a family offense as defined in subdivision one of section eight hundred twelve of the family court act or subdivision one of section 530.11 of this chapter in violation of such order of protection or special order of conditions.
The provisions of this subdivision shall apply only to orders of protection issued pursuant to sections two hundred forty and two hundred fifty-two of the domestic relations law, articles four, five, six and eight of the family court act and section 530.12 of this chapter, special orders of conditions issued pursuant to subparagraph (i) or (ii) of paragraph (o) of subdivision one of section 330.20 of this chapter insofar as they involve a victim or victims of domestic violence as defined by subdivision one of section four hundred fifty-nine-a of the social services law or a designated witness or witnesses to such domestic violence, and to orders of protection issued by courts of competent jurisdiction in another state, territorial or tribal jurisdiction. In determining whether reasonable cause exists to make an arrest for a violation of an order issued by a court of another state, territorial or tribal jurisdiction, the officer shall consider, among other factors, whether the order, if available, appears to be valid on its face or whether a record of the order exists on the statewide registry of orders of protection and warrants established pursuant to section two hundred twenty-one-a of the executive law or the protection order file maintained by the national crime information center; provided, however, that entry of the order of protection or special order of conditions into the statewide registry or the national protection order file shall not be required for enforcement of the order. When a special order of conditions is in effect and a defendant or respondent has been taken into custody pursuant to this paragraph, nothing contained in this paragraph shall restrict or impair a police officer from acting pursuant to section 9.41 of the mental hygiene law; or
(c) a misdemeanor constituting a family offense, as described in subdivision one of section 530.11 of this chapter and section eight hundred twelve of the family court act, has been committed by such person against such family or household member, unless the victim requests otherwise. The officer shall neither inquire as to whether the victim seeks an arrest of such person nor threaten the arrest of any person for the purpose of discouraging requests for police intervention. Notwithstanding the foregoing, when an officer has reasonable cause to believe that more than one family or household member has committed such a misdemeanor, the officer is not required to arrest each such person. In such circumstances, the officer shall attempt to identify and arrest the primary physical aggressor after considering: (i) the comparative extent of any injuries inflicted by and between the parties; (ii) whether any such person is threatening or has threatened future harm against another party or another family or household member; (iii) whether any such person has a prior history of domestic violence that the officer can reasonably ascertain; and (iv) whether any such person acted defensively to protect himself or herself from injury. The officer shall evaluate each complaint separately to determine who is the primary physical aggressor and shall not base the decision to arrest or not to arrest on the willingness of a person to testify or otherwise participate in a judicial proceeding.
The protected party in whose favor the order of protection or temporary order of protection is issued may not be held to violate an order issued in his or her favor nor may such protected party be arrested for violating such order.
Nothing contained in this subdivision shall be deemed to (a) require the arrest of any person when the officer reasonably believes the person's conduct is justifiable under article thirty-five of title C of the penal law; or (b) restrict or impair the authority of any municipality, political subdivision, or the division of state police from promulgating rules, regulations and policies requiring the arrest of persons in additional circumstances where domestic violence has allegedly occurred.
No cause of action for damages shall arise in favor of any person by reason of any arrest made by a police officer pursuant to this subdivision, except as provided in sections seventeen and eighteen of the public officers law and sections fifty-k, fifty-l, fifty-m and fifty-n of the general municipal law, as appropriate.
* NB Repealed September 1, 2025
5. Upon investigating a report of a crime or offense between members of the same family or household as such terms are defined in section 530.11 of this chapter and section eight hundred twelve of the family court act, a law enforcement officer shall prepare, file, and translate, in accordance with section two hundred fourteen-b or eight hundred forty of the executive law, a written report of the incident, on a form promulgated pursuant to section eight hundred thirty-seven of the executive law, including statements made by the victim and by any witnesses, and make any additional reports required by local law enforcement policy or regulations. Such report shall be prepared and filed, whether or not an arrest is made as a result of the officers' investigation, and shall be retained by the law enforcement agency for a period of not less than four years. Where the reported incident involved an offense committed against a person who is sixty-five years of age or older a copy of the report required by this subdivision shall be sent to the New York state committee for the coordination of police services to elderly persons established pursuant to section eight hundred forty-four-b of the executive law. Where the reported incident involved an offense committed by an individual known by the law enforcement officer to be under probation or parole supervision, he or she shall transmit a copy of the report as soon as practicable to the supervising probation department or the department of corrections and community supervision.
6. (a) A police officer who responds to a report of a family offense as defined in section 530.11 of this chapter and section eight hundred twelve of the family court act may take temporary custody of any firearm, rifle, electronic dart gun, electronic stun gun, disguised gun, imitation weapon, shotgun, antique firearm, black powder rifle, black powder shotgun, or muzzle-loading firearm that is in plain sight or is discovered pursuant to a consensual or other lawful search, and shall take temporary custody of any such weapon that is in the possession of any person arrested for the commission of such family offense or suspected of its commission. An officer who takes custody of any weapon pursuant to this paragraph shall also take custody of any license to carry, possess, repair, and dispose of such weapon issued to the person arrested or suspected of such family offense. The officer shall deliver such weapon and/or license to the appropriate law enforcement officer as provided in subparagraph (f) of paragraph one of subdivision a of section 265.20 of the penal law.
(b) Upon taking custody of weapons or a license described in paragraph (a) of this subdivision, the responding officer shall give the owner or person in possession of such weapons or license a receipt describing such weapons and/or license and indicating any identification or serial number on such weapons. Such receipt shall indicate where the weapons and/or license can be recovered and describe the process for recovery provided in paragraph (e) of this subdivision.
(c) Not less than forty-eight hours after effecting such seizure, and in the absence of (i) an order of protection, an extreme risk protection order, or other court order prohibiting the owner from possessing such a weapon and/or license, or (ii) a pending criminal charge or conviction which prohibits such owner from possessing such a weapon and/or license, and upon a written finding that there is no legal impediment to the owner's possession of such a weapon and/or license, the court or, if no court is involved, licensing authority or custodian of the weapon shall direct return of a weapon not otherwise disposed of in accordance with subdivision one of section 400.05 of the penal law and/or such license taken into custody pursuant to this section.
(d) If any other person demonstrates that such person is the lawful owner of any weapon taken into custody pursuant to this section, and provided that the court or, if no court is involved, licensing authority or custodian of the weapon has made a written finding that there is no legal impediment to the person's possession of such a weapon, such court, licensing authority or custodian of the weapon, as the case may be, shall direct that such weapon be returned to such lawful owner.
(e) All weapons in the possession of a law enforcement official pursuant to this section shall be subject to the provisions of applicable law, including but not limited to subdivision six of section 400.05 of the penal law; provided, however, that any such weapon shall be retained and not disposed of by the law enforcement agency for at least two years unless legally transferred by the owner to an individual permitted by law to own and possess such weapon.
§ 140.15 Arrest without a warrant; when and how made by police officer.
1. A police officer may arrest a person for an offense, pursuant to section 140.10, at any hour of any day or night.
2. The arresting police officer must inform such person of his authority and purpose and of the reason for such arrest unless he encounters physical resistance, flight or other factors rendering such procedure impractical.
3. In order to effect such an arrest, such police officer may use such physical force as is justifiable pursuant to section 35.30 of the penal law.
4. In order to effect such an arrest, a police officer may enter premises in which he reasonably believes such person to be present, under the same circumstances and in the same manner as would be authorized, by the provisions of subdivisions four and five of section 120.80, if he were attempting to make such arrest pursuant to a warrant of arrest.
§ 140.20 Arrest without a warrant; procedure after arrest by police officer.
1. Upon arresting a person without a warrant, a police officer, after performing without unnecessary delay all recording, fingerprinting and other preliminary police duties required in the particular case, must except as otherwise provided in this section, without unnecessary delay bring the arrested person or cause him to be brought before a local criminal court and file therewith an appropriate accusatory instrument charging him with the offense or offenses in question. The arrested person must be brought to the particular local criminal court, or to one of them if there be more than one, designated in section 100.55 as an appropriate court for commencement of the particular action; except that:
(a) If the arrest is for an offense other than a class A, B, C or D felony or a violation of section 130.25, 130.40, 205.10, 205.17, 205.19 or 215.56 of the penal law committed in a town, but not in a village thereof having a village court, and the town court of such town is not available at the time, the arrested person may be brought before the local criminal court of any village within such town or, any adjoining town, village embraced in whole or in part by such adjoining town, or city of the same county; and
(b) If the arrest is for an offense other than a class A, B, C or D felony or a violation of section 130.25, 130.40, 205.10, 205.17, 205.19 or 215.56 of the penal law committed in a village having a village court and such court is not available at the time, the arrested person may be brought before the town court of the town embracing such village or any other village court within such town, or, if such town or village court is not available either, before the local criminal court of any adjoining town, village embraced in whole or in part by such adjoining town, or city of the same county; and
(c) If the arrest is for an offense committed in a city, and the city court thereof is not available at the time, the arrested person may be brought before the local criminal court of any adjoining town or village, or village court embraced by an adjoining town, within the same county as such city; and
(d) If the arrest is for a traffic infraction or for a misdemeanor relating to traffic, the police officer may, instead of bringing the arrested person before the local criminal court of the political subdivision or locality in which the offense was allegedly committed, bring him or her before the local criminal court of the same county nearest available by highway travel to the point of arrest; and
(e) Notwithstanding any other provision of this section, where a local criminal court in the county in which the defendant is arrested is operating an off-hours arraignment part designated in accordance with paragraph (w) of subdivision one of section two hundred twelve of the judiciary law at the time of defendant's arrest, the arrested person may be brought before such local criminal court.
2. If the arrest is for an offense other than a class A, B, C or D felony or a violation of section 130.25, 130.40, 205.10, 205.17, 205.19 or 215.56 of the penal law, or other than where an arrest is required to be made pursuant to subdivision four of section 140.10 of this article, the arrested person need not be brought before a local criminal court as provided in subdivision one, and the procedure may instead be as follows:
(a) A police officer may issue and serve an appearance ticket upon the arrested person and release him from custody, as prescribed in subdivision two of section 150.20 of this title; or
(b) The desk officer in charge at a police station, county jail or police headquarters, or any of his superior officers, may, in such place fix pre-arraignment bail and, upon deposit thereof, issue and serve an appearance ticket upon the arrested person and release him from custody.
3. Other than where an arrest is required to be made pursuant to subdivision four of section 140.10 of this article, if (a) the arrest is for an offense other than a class A, B, C or D felony or a violation of section 130.25, 130.40, 205.10, 205.17, 205.19 or 215.56 of the penal law, and (b) owing to unavailability of a local criminal court the arresting police officer is unable to bring the arrested person before such a court with reasonable promptness, either an appearance ticket must be served unconditionally upon the arrested person or pre-arraignment bail must be fixed, as prescribed in subdivision two. If pre-arraignment bail is fixed but not posted, such arrested person may be temporarily held in custody but must be brought before a local criminal court without unnecessary delay. Nothing contained in this subdivision requires a police officer to serve an appearance ticket upon an arrested person or release him from custody at a time when such person appears to be under the influence of alcohol, narcotics or other drug to the degree that he may endanger himself or other persons.
4. If after arresting a person, for any offense, a police officer upon further investigation or inquiry determines or is satisfied that there is not reasonable cause to believe that the arrested person committed such offense or any other offense based upon the conduct in question, he need not follow any of the procedures prescribed in subdivisions one, two and three, but must immediately release such person from custody.
5. Before service of an appearance ticket upon an arrested person pursuant to subdivision two or three, the issuing police officer must, if the offense designated in such appearance ticket is one of those specified in subdivision one of section 160.10, cause such person to be fingerprinted in the same manner as would be required were no appearance ticket to be issued or served.
6. Upon arresting a juvenile offender or a person sixteen or commencing October first, two thousand nineteen, seventeen years of age without a warrant, the police officer shall immediately notify the parent or other person legally responsible for his or her care or the person with whom he or she is domiciled, that such offender or person has been arrested, and the location of the facility where he or she is being detained. If the officer determines that it is necessary to question a juvenile offender or such person, the officer must take him or her to a facility designated by the chief administrator of the courts as a suitable place for the questioning of children or, upon the consent of a parent or other person legally responsible for the care of the juvenile or such person, to his or her residence and there question him or her for a reasonable period of time. A juvenile or such person shall not be questioned pursuant to this section unless he or she and a person required to be notified pursuant to this subdivision, if present, have been advised:
(a) of the juvenile offender's or such person's right to remain silent;
(b) that the statements made by him or her may be used in a court of law;
(c) of his or her right to have an attorney present at such questioning; and
(d) of his or her right to have an attorney provided for him or her without charge if he or she is unable to afford counsel.
In determining the suitability of questioning and determining the reasonable period of time for questioning such a juvenile offender or person, his or her age, the presence or absence of his or her parents or other persons legally responsible for his or her care and notification pursuant to this subdivision shall be included among relevant considerations.
7. Upon arresting a person, other than a juvenile offender, for any offense without a warrant, a police officer shall, upon the arrested person's request, permit him or her to communicate 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 arrested, unless granting the call will compromise an ongoing investigation or the prosecution of the defendant.
8. If the arrest is for a juvenile offender or adolescent offender other than an arrest for a violation or a traffic infraction, such offender shall be brought before the youth part of the superior court. If the youth part is not in session, such offender shall be brought before the most accessible magistrate designated by the appellate division of the supreme court in the applicable department to act as a youth part.
§ 140.25 Arrest without a warrant; by peace officer.
1. A peace officer, acting pursuant to his special duties, may arrest a person for:
(a) Any offense when he has reasonable cause to believe that such person has committed such offense in his presence; and
(b) A crime when he has reasonable cause to believe that such person has committed such crime, whether in his presence or otherwise.
2. A peace officer acts "pursuant to his special duties" in making an arrest only when the arrest is for:
(a) An offense defined by a statute which such peace officer, by reason of the specialized nature of his particular employment or by express provision of law, is required or authorized to enforce; or
(b) An offense committed or reasonably believed by him to have been committed in such manner or place as to render arrest of the offender by such peace officer under the particular circumstances an integral part of his specialized duties.
3. A peace officer, whether or not he is acting pursuant to his special duties, may arrest a person for an offense committed or believed by him to have been committed within the geographical area of such peace officer's employment, as follows:
(a) He may arrest such person for any offense when such person has in fact committed such offense in his presence; and
(b) He may arrest such person for a felony when he has reasonable cause to believe that such person has committed such felony, whether in his presence or otherwise.
4. A peace officer, when outside the geographical area of his employment, may, anywhere in the state, arrest a person for a felony when he has reasonable cause to believe that such person has there committed such felony in his presence, provided that such arrest is made during or immediately after the allegedly criminal conduct or during the alleged perpetrator's immediate flight therefrom.
5. For the purposes of this section, the "geographical area of employment" of a peace officer is as follows:
(a) The "geographical area of employment" of any peace officer employed as such by any agency of the state consists of the entire state;
(b) The "geographical area of employment" of any peace officer employed as such by an agency of a county, city, town or village consists of (i) such county, city, town or village, as the case may be, and (ii) any other place where he is, at a particular time, acting in the course of his particular duties or employment;
(c) The "geographical area of employment" of any peace officer employed as such by any private organization consists of any place in the state where he is, at a particular time, acting in the course of his particular duties or employment.
§ 140.27 Arrest without a warrant; when and how made; procedure after arrest by peace officer.
1. The rules governing the manner in which a peace officer may make an arrest, pursuant to section 140.25, are the same as those governing arrests by police officers, as prescribed in section 140.15.
2. Upon arresting a person without a warrant, a peace officer, except as otherwise provided in subdivision three or three-a, must without unnecessary delay bring him or cause him to be brought before a local criminal court, as provided in section 100.55 and subdivision one of section 140.20, and must without unnecessary delay file or cause to be filed therewith an appropriate accusatory instrument. If the offense which is the subject of the arrest is one of those specified in subdivision one of section 160.10, the arrested person must be fingerprinted and photographed as therein provided. In order to execute the required post-arrest functions, such arresting peace officer may perform such functions himself or he may enlist the aid of a police officer for the performance thereof in the manner provided in subdivision one of section 140.20.
3. If (a) the arrest is for an offense other than a class A, B, C or D felony or a violation of section 130.25, 130.40, 205.10, 205.17, 205.19 or 215.56 of the penal law and (b) owing to unavailability of a local criminal court such peace officer is unable to bring or cause the arrested person to be brought before such a court with reasonable promptness, the arrested person must be brought to an appropriate police station, county jail or police headquarters where he must be dealt with in the manner prescribed in subdivision three of section 140.20, as if he had been arrested by a police officer.
3-a. If the arrest is for a juvenile offender or adolescent offender other than an arrest for violations or traffic infractions, such offender shall be brought before the youth part of the superior court. If the youth part is not in session, such offender shall be brought before the most accessible magistrate designated by the appellate division of the supreme court in the applicable department to act as a youth part.
4. If the arrest is for an offense other than a class A, B, C or D felony or a violation of section 130.25, 130.40, 205.10, 205.17, 205.19 or 215.56 of the penal law, the arrested person need not be brought before a local criminal court as provided in subdivision two, and the procedure may instead be as follows:
(a) The arresting peace officer, where he is specially authorized by law to issue and serve an appearance ticket, may issue and serve an appearance ticket upon the arrested person and release him from custody; or
(b) The arresting peace officer, where he is not specially authorized by law to issue and serve an appearance ticket, may enlist the aid of a police officer and request that such officer issue and serve an appearance ticket upon the arrested person, and upon such issuance and service the latter must be released from custody.
5. Upon arresting a juvenile offender or a person sixteen or commencing October first, two thousand nineteen, seventeen years of age without a warrant, the peace officer shall immediately notify the parent or other person legally responsible for his or her care or the person with whom he or she is domiciled, that such offender or person has been arrested, and the location of the facility where he or she is being detained. If the officer determines that it is necessary to question a juvenile offender or such person, the officer must take him or her to a facility designated by the chief administrator of the courts as a suitable place for the questioning of children or, upon the consent of a parent or other person legally responsible for the care of a juvenile offender or such person, to his or her residence and there question him or her for a reasonable period of time. A juvenile offender or such person shall not be questioned pursuant to this section unless the juvenile offender or such person and a person required to be notified pursuant to this subdivision, if present, have been advised:
(a) of his or her right to remain silent;
(b) that the statements made by the juvenile offender or such person may be used in a court of law;
(c) of his or her right to have an attorney present at such questioning; and
(d) of his or her right to have an attorney provided for him or her without charge if he or she is unable to afford counsel.
In determining the suitability of questioning and determining the reasonable period of time for questioning such a juvenile offender or such person, his or her age, the presence or absence of his or her parents or other persons legally responsible for his or her care and notification pursuant to this subdivision shall be included among relevant considerations.
§ 140.30 Arrest without a warrant; by any person; when and where authorized.
1. Subject to the provisions of subdivision two, any person may arrest another person (a) for a felony when the latter has in fact committed such felony, and (b) for any offense when the latter has in fact committed such offense in his presence.
2. Such an arrest, if for a felony, may be made anywhere in the state. If the arrest is for an offense other than a felony, it may be made only in the county in which such offense was committed.
§ 140.35 Arrest without a warrant; by person acting other than as a police officer or a peace officer; when and how made.
1. A person may arrest another person for an offense pursuant to section 140.30 at any hour of any day or night.
2. Such person must inform the person whom he is arresting of the reason for such arrest unless he encounters physical resistance, flight or other factors rendering such procedure impractical.
3. In order to effect such an arrest, such person may use such physical force as is justifiable pursuant to subdivision four of section 35.30 of the penal law.
§ 140.40 Arrest without a warrant; by person acting other than as a police
officer or a peace officer; procedure after arrest.
1. A person making an arrest pursuant to section 140.30 must without unnecessary delay deliver or attempt to deliver the person arrested to the custody of an appropriate police officer, as defined in subdivision five. For such purpose, he may solicit the aid of any police officer and the latter, if he is not himself an appropriate police officer, must assist in delivering the arrested person to an appropriate officer. If the arrest is for a felony, the appropriate police officer must, upon receiving custody of the arrested person, perform all recording, fingerprinting and other preliminary police duties required in the particular case. In any case, the appropriate police officer, upon receiving custody of the arrested person, except as otherwise provided in subdivisions two and three, must bring him, on behalf of the arresting person, before an appropriate local criminal court, as defined in subdivision five, and the arresting person must without unnecessary delay file an appropriate accusatory instrument with such court.
2. If (a) the arrest is for an offense other than a class A, B, C or D felony or a violation of section 130.25, 130.40, 205.10, 205.17, 205.19 or 215.56 of the penal law and (b) owing to unavailability of a local criminal court the appropriate police officer having custody of the arrested person is unable to bring him before such a court with reasonable promptness, the arrested person must be dealt with in the manner prescribed in subdivision three of section 140.20, as if he had been arrested by a police officer.
3. If the arrest is for an offense other than a class A, B, C or D felony or a violation of section 130.25, 130.40, 205.10, 205.17, 205.19 or 215.56 of the penal law, the arrested person need not be brought before a local criminal court, as provided in subdivision one, and the procedure may instead be as follows:
(a) An appropriate police officer may issue and serve an appearance ticket upon the arrested person and release him from custody, as prescribed in subdivision two of section 150.20; or
(b) The desk officer in charge at the appropriate police officer's station, county jail or police headquarters, or any of his superior officers, may, in such place, fix pre-arraignment bail and, upon deposit thereof, issue and serve an appearance ticket upon the arrested person and release him from custody, as prescribed in section 150.30.
4. Notwithstanding any other provision of this section, a police officer is not required to take an arrested person into custody or to take any other action prescribed in this section on behalf of the arresting person if he has reasonable cause to believe that the arrested person did not commit the alleged offense or that the arrest was otherwise unauthorized.
5. If a police officer takes an arrested juvenile offender or a person sixteen or commencing October first, two thosuand nineteen, seventeen years of age into custody, the police officer shall immediately notify the parent or other person legally responsible for his or her care or the person with whom he or she is domiciled, that such offender or person has been arrested, and the location of the facility where he or she is being detained. If the officer determines that it is necessary to question a juvenile offender or such person the officer must take him or her to a facility designated by the chief administrator of the courts as a suitable place for the questioning of children or, upon the consent of a parent or other person legally responsible for the care of the juvenile offender or such person, to his or her residence and there question him or her for a reasonable period of time. A juvenile offender or such person shall not be questioned pursuant to this section unless he or she and a person required to be notified pursuant to this subdivision, if present, have been advised:
(a) of his or her right to remain silent;
(b) that the statements made by the juvenile offender or such person may be used in a court of law;
(c) of his or her right to have an attorney present at such questioning; and
(d) of his or her right to have an attorney provided for him or her without charge if he or she is unable to afford counsel.
In determining the suitability of questioning and determining the reasonable period of time for questioning such a juvenile offender or such person, his or her age, the presence or absence of his or her parents or other persons legally responsible for his or her care and notification pursuant to this subdivision shall be included among relevant considerations.
6. As used in this section:
(a) An "appropriate police officer" means one who would himself be authorized to make the arrest in question as a police officer pursuant to section 140.10;
(b) An "appropriate local criminal court" means one with which an accusatory instrument charging the offense in question may properly be filed pursuant to the provisions of section 100.55.
§ 140.45 Arrest without a warrant; dismissal of insufficient local criminal court accusatory instrument.
If a local criminal court accusatory instrument filed with a local criminal court pursuant to section 140.20, 140.25 or 140.40 is not sufficient on its face, as prescribed in section 100.40, and if the court is satisfied that on the basis of the available facts or evidence it would be impossible to draw and file an accusatory instrument which is sufficient on its face, it must dismiss such accusatory instrument and discharge the defendant.
§ 140.50 Temporary questioning of persons in public places; search for weapons.
1. In addition to the authority provided by this article for making an arrest without a warrant, a police officer may stop a person in a public place located within the geographical area of such officer's employment when he reasonably suspects that such person is committing, has committed or is about to commit either (a) a felony or (b) a misdemeanor defined in the penal law, and may demand of him his name, address and an explanation of his conduct.
2. Any person who is a peace officer and who provides security services for any court of the unified court system may stop a person in or about the courthouse to which he is assigned when he reasonably suspects that such person is committing, has committed or is about to commit either (a) a felony or (b) a misdemeanor defined in the penal law, and may demand of him his name, address and an explanation of his conduct.
3. When upon stopping a person under circumstances prescribed in subdivisions one and two a police officer or court officer, as the case may be, reasonably suspects that he is in danger of physical injury, he may search such person for a deadly weapon or any instrument, article or substance readily capable of causing serious physical injury and of a sort not ordinarily carried in public places by law-abiding persons. If he finds such a weapon or instrument, or any other property possession of which he reasonably believes may constitute the commission of a crime, he may take it and keep it until the completion of the questioning, at which time he shall either return it, if lawfully possessed, or arrest such person.
4. In cities with a population of one million or more, information that establishes the personal identity of an individual who has been stopped, questioned and/or frisked by a police officer or peace officer, such as the name, address or social security number of such person, shall not be recorded in a computerized or electronic database if that individual is released without further legal action; provided, however, that this subdivision shall not prohibit police officers or peace officers from including in a computerized or electronic database generic characteristics of an individual, such as race and gender, who has been stopped, questioned and/or frisked by a police officer or peace officer.
§ 140.55 Arrest without a warrant; by peace officers of other states for offense committed outside state; uniform close pursuit act.
1. As used in this section, the word "state" shall include the District of Columbia.
2. Any peace officer of another state of the United States, who enters this state in close pursuit and continues within this state in such close pursuit of a person in order to arrest him, shall have the same authority to arrest and hold in custody such person on the ground that he has committed a crime in another state which is a crime under the laws of the state of New York, as police officers of this state have to arrest and hold in custody a person on the ground that he has committed a crime in this state.
3. If an arrest is made in this state by an officer of another state in accordance with the provisions of subdivision two, he shall without unnecessary delay take the person arrested before a local criminal court which shall conduct a hearing for the sole purpose of determining if the arrest was in accordance with the provisions of subdivision two, and not of determining the guilt or innocence of the arrested person. If such court determines that the arrest was in accordance with such subdivision, it shall commit the person arrested to the custody of the officer making the arrest, who shall without unnecessary delay take him to the state from which he fled. If such court determines that the arrest was unlawful, it shall discharge the person arrested.
4. This section shall not be construed so as to make unlawful any arrest in this state which would otherwise be lawful.
5. Upon the taking effect of this section it shall be the duty of the secretary of state to certify a copy of this section to the executive department of each of the states of the United States.
6. This section shall apply only to peace officers of a state which by its laws has made similar provision for the arrest and custody of persons closely pursued within the territory thereof.
7. If any part of this section is for any reason declared void, it is declared to be the intent of this section that such invalidity shall not affect the validity of the remaining portions of this section.
8. This section may be cited as the uniform act on close pursuit.
ARTICLE 150--THE APPEARANCE TICKET
Section 150.10 Appearance ticket; definition, form and content.
150.20 Appearance ticket; when and by whom issuable.
150.30 Appearance ticket; issuance and service thereof after arrest upon posting of pre-arraignment bail.
150.40 Appearance ticket; where returnable; how and where served.
150.50 Appearance ticket; filing a local criminal court accusatory instrument; dismissal of insufficient instrument.
150.60 Appearance ticket; defendant's failure to appear.
150.70 Appearance ticket; fingerprinting of defendant.
150.75 Appearance ticket; certain cases.
150.80 Court appearance reminders.
§ 150.10 Appearance ticket; definition, form and content.
1. An appearance ticket is a written notice issued and subscribed by a police officer or other public servant authorized by state law or local law enacted pursuant to the provisions of the municipal home rule law to issue the same, directing a designated person to appear in a designated local criminal court at a designated future time in connection with his alleged commission of a designated offense. A notice conforming to such definition constitutes an appearance ticket regardless of whether it is referred to in some other provision of law as a summons or by any other name or title.
2. When an appearance ticket as defined in subdivision one of this section is issued to a person in conjunction with an offense charged in a simplified information, said appearance ticket shall contain the language, set forth in subdivision four of section 100.25, notifying the defendant of his right to receive a supporting deposition.
3. Before issuing an appearance ticket a police officer or other public servant must inform the arrestee that they may provide their contact information for the purposes of receiving a court notification to remind them of their court appearance date from the court or a certified pretrial services agency. Such contact information may include one or more phone numbers, a residential address or address at which the arrestee receives mail, or an email address. The contact information shall be recorded and be transmitted to the local criminal court as required by section 150.80 of this article.
§ 150.20 Appearance ticket; when and by whom issuable.
1. (a) Whenever a police officer is authorized pursuant to section 140.10 of this title to arrest a person without a warrant for an offense other than a class A, B, C or D felony or a violation of section 130.25, 130.40, 205.10, 205.17, 205.19 or 215.56 of the penal law, or other than where an arrest is required to be made pursuant to subdivision four of section 140.10 of this title, the officer shall, except as set out in paragraph (b) of this subdivision, subject to the provisions of subdivisions three and four of section 150.40 of this title, instead issue to and serve upon such person an appearance ticket.
(b) An officer is not required to issue an appearance ticket if:
(i) the person has one or more outstanding local criminal court or superior court warrants;
(ii) the person has failed to appear in court proceedings in the last two years;
(iii) the person has been given a reasonable opportunity to make their verifiable identity and a method of contact known, and has been unable or unwilling to do so, so that a custodial arrest is necessary to subject the individual to the jurisdiction of the court. For the purposes of this section, an officer may rely on various factors to determine a person's identity, including but not limited to personal knowledge of such person, such person's self-identification, or photographic identification. There is no requirement that a person present photographic identification in order to be issued an appearance ticket in lieu of arrest where the person's identity is otherwise verifiable; however, if offered by such person, an officer shall accept as evidence of identity the following: a valid driver's license or non-driver identification card issued by the commissioner of motor vehicles, the federal government, any United States territory, commonwealth or possession, the District of Columbia, a state government or municipal government within the United States or a provincial government of the dominion of Canada; a valid passport issued by the United States government or any other country; an identification card issued by the armed forces of the United States; a public benefit card, as defined in paragraph (a) of subdivision one of section 158.00 of the penal law;
(iv) the person is charged with a crime between members of the same family or household, as defined in subdivision one of section 530.11 of this chapter;
(v) the person is charged with a crime defined in article 130 of the penal law;
(vi) it reasonably appears the person should be brought before the court for consideration of issuance of an order of protection, pursuant to section 530.13 of this chapter, based on the facts of the crime or offense that the officer has reasonable cause to believe occurred;
(vii) the person is charged with a crime for which the court may suspend or revoke his or her driver license;
(viii) it reasonably appears to the officer, based on the observed behavior of the individual in the present contact with the officer and facts regarding the person's condition that indicates a sign of distress to such a degree that the person would face harm without immediate medical or mental health care, that bringing the person before the court would be in such person's interest in addressing that need; provided, however, that before making the arrest, the officer shall make all reasonable efforts to assist the person in securing appropriate services;
(ix) the person is eighteen years of age or older and charged with criminal possession of a weapon on school grounds as defined in section 265.01-a of the penal law;
(x) the person is eighteen years of age or older and charged with a hate crime as defined in section 485.05 of the penal law; or
(xi) the offense is a qualifying offense pursuant to paragraph (t) of subdivision four of section 510.10 of this chapter, or pursuant to paragraph (t) of subdivision four of section 530.40 of this chapter.
2. (a) Whenever, pursuant to section 140.10 of this title, a police officer has arrested a person without a warrant for an offense other than a class A, B, C or D felony or a violation of section 130.25, 130.40, 205.10, 205.17, 205.19 or 215.56 of the penal law or other than where an arrest was required to be made pursuant to subdivision four of section 140.10 of this title, or (b) whenever a peace officer, who is not authorized by law to issue an appearance ticket, has arrested a person for an offense other than a class A, B, C or D felony or a violation of section 130.25, 130.40, 205.10, 205.17, 205.19 or 215.56 of the penal law pursuant to section 140.25 of this title, and such peace officer has requested a police officer to issue and serve upon such arrested person an appearance ticket pursuant to subdivision four of section 140.27 of this title, or (c) whenever a person has been arrested for an offense other than a class A, B, C or D felony or a violation of section 130.25, 130.40, 205.10, 205.17, 205.19 or 215.56 of the penal law and such person has been delivered to the custody of an appropriate police officer pursuant to section 140.40 of this title, such police officer may, instead of bringing such person before a local criminal court and promptly filing or causing the arresting peace officer or arresting person to file a local criminal court accusatory instrument therewith, issue to and serve upon such person an appearance ticket.
3. A public servant other than a police officer, who is specially authorized by state law or local law enacted pursuant to the provisions of the municipal home rule law to issue and serve appearance tickets with respect to designated offenses other than class A, B, C or D felonies or violations of section 130.25, 130.40, 205.10, 205.17, 205.19 or 215.56 of the penal law, may in such cases issue and serve upon a person an appearance ticket when he has reasonable cause to believe that such person has committed a crime, or has committed a petty offense in his presence.
§ 150.40 Appearance ticket; where returnable; how and where served.
1. An appearance ticket must be made returnable at a date as soon as possible, but in no event later than twenty days from the date of issuance; or at the next scheduled session of the appropriate local criminal court if such session is scheduled to occur more than twenty days from the date of issuance; or at a later date, with the court's permission due to enrollment in a pre-arraignment diversion program. The appearance ticket shall be made returnable in a local criminal court designated in section 100.55 of this title as one with which an information for the offense in question may be filed.
2. An appearance ticket, other than one issued for a traffic infraction relating to parking, must be served personally, except that an appearance ticket issued for the violation of a local zoning ordinance or local zoning law, or of a building or sanitation code may be served in any manner authorized for service under section three hundred eight of the civil practice law and rules.
3. An appearance ticket may be served anywhere in the county in which the designated offense was allegedly committed or in any adjoining county, and may be served elsewhere as prescribed in subdivision four.
4. A police officer may, for the purpose of serving an appearance ticket upon a person, follow him in continuous close pursuit, commencing either in the county in which the alleged offense was committed or in an adjoining county, in and through any county of the state, and may serve such appearance ticket upon him in any county in which he overtakes him.
§ 150.50 Appearance ticket; filing a local criminal court accusatory
instrument; dismissal of insufficient instrument.
1. A police officer or other public servant who has issued and served an appearance ticket must, at or before the time such appearance ticket is returnable, file or cause to be filed with the local criminal court in which it is returnable a local criminal court accusatory instrument charging the person named in such appearance ticket with the offense specified therein; provided, however, that no separate accusatory instrument shall be required to be filed for an appearance ticket issued for a parking infraction which conforms to the requirements set forth in paragraph (b) of subdivision one of section 1.20 of this chapter. Nothing herein contained shall authorize the use of a simplified information when not authorized by law.
2. If such accusatory instrument is not sufficient on its face, as prescribed in section 100.40, and if the court is satisfied that on the basis of the available facts or evidence it would be impossible to draw and file an accusatory instrument which is sufficient on its face, it must dismiss such accusatory instrument.
§ 150.60 Appearance ticket; defendant's failure to appear.
If after the service of an appearance ticket and the filing of a local criminal court accusatory instrument charging the offense designated therein, the defendant does not appear in the designated local criminal court at the time such appearance ticket is returnable, the court may issue a summons or a warrant of arrest based upon the local criminal court accusatory instrument filed.
§ 150.70 Appearance ticket; fingerprinting of defendant.
Upon the arraignment of a defendant who has not been arrested and whose court attendance has been secured by the issuance and service of an appearance ticket pursuant to subdivision one of section 150.20, the court must, if an offense charged in the accusatory instrument is one specified in subdivision one of section 160.10, direct that the defendant be fingerprinted by the appropriate police officer or agency, and that he appear at an appropriate designated time and place for such purpose.
§ 150.75 Appearance ticket; certain cases.
1. The provisions of this section shall apply in any case wherein the defendant is alleged to have committed an offense defined in section 221.05 of the penal law, and no other offense is alleged, notwithstanding any provision of this chapter or any other law to the contrary.
2. Whenever the defendant is arrested without a warrant, an appearance ticket shall promptly be issued and served upon him, as provided in this article. The issuance and service of the appearance ticket may be made conditional upon the posting of pre-arraignment bail as provided in section 150.30 of this chapter but only if the appropriate police officer (a) is unable to ascertain the defendant's identity or residence address; or (b) reasonably suspects that the identification or residence address given by the defendant is not accurate; or (c) reasonably suspects that the defendant does not reside within the state. No warrant of arrest shall be issued unless the defendant has failed to appear in court as required by the terms of the appearance ticket or by the court.
§ 150.80 Court appearance reminders.
1. A police officer or other public servant who has issued and served an appearance ticket must, within twenty-four hours of issuance, file or cause to be filed with the local criminal court the appearance ticket and any contact information made available pursuant to subdivision three of section 150.10 of this article.
2. Upon receipt of the appearance ticket and any contact information made available pursuant to subdivision three of section 150.10 of this article, the local criminal court shall issue a court appearance reminder and notify the arrestee of their court appearances by text message, telephone call, electronic mail, or first class mail. The local criminal court may partner with a certified pretrial services agency or agencies in that county to provide such notification and shall include a copy of the appearance ticket.
3. A local criminal court is not required to issue a court appearance reminder if the appearance ticket requires the arrestee's appearance within seventy-two hours of its issuance, or no contact information has been provided.
ARTICLE 160--FINGERPRINTING AND PHOTOGRAPHING OF DEFENDANT AFTER ARREST--CRIMINAL IDENTIFICATION RECORDS AND STATISTICS
Section 160.10 Fingerprinting; duties of police with respect thereto.
160.20 Fingerprinting; forwarding of fingerprints.
160.30 Fingerprinting; duties of division of criminal justice services.
160.40 Fingerprinting; transmission of report received by police.
160.45 Polygraph tests; prohibition against.
160.50 Order upon termination of criminal action in favor of the accused.
160.55 Order upon termination of criminal action by conviction for noncriminal offense; entry of waiver; administrative findings.
160.58 Conditional sealing of certain controlled substance, marihuana or specified offense convictions.
160.59 Sealing of certain convictions.
160.60 Effect of termination of criminal actions in favor of the accused.
§ 160.10 Fingerprinting; duties of police with respect thereto.
1. Following an arrest, or following the arraignment upon a local criminal court accusatory instrument of a defendant whose court attendance has been secured by a summons or an appearance ticket under circumstances described in sections 130.60 and 150.70, the arresting or other appropriate police officer or agency must take or cause to be taken fingerprints of the arrested person or defendant if an offense which is the subject of the arrest or which is charged in the accusatory instrument filed is:
(a) A felony; or
(b) A misdemeanor defined in the penal law; or
(c) A misdemeanor defined outside the penal law which would constitute a felony if such person had a previous judgment of conviction for a crime.
2. In addition, a police officer who makes an arrest for any offense, either with or without a warrant, may take or cause to be taken the fingerprints of the arrested person if such police officer:
(a) Is unable to ascertain such person's identity; or
(b) Reasonably suspects that the identification given by such person is not accurate; or
(c) Reasonably suspects that such person is being sought by law enforcement officials for the commission of some other offense.
3. Whenever fingerprints are required to be taken pursuant to subdivision one or permitted to be taken pursuant to subdivision two, the photograph and palmprints of the arrested person or the defendant, as the case may be, may also be taken.
4. The taking of fingerprints as prescribed in this section and the submission of available information concerning the arrested person or the defendant and the facts and circumstances of the crime charged must be in accordance with the standards established by the commissioner of the division of criminal justice services.
§ 160.20 Fingerprinting; forwarding of fingerprints.
Upon the taking of fingerprints of an arrested person or defendant as prescribed in section 160.10, the appropriate police officer or agency must without unnecessary delay forward two copies of such fingerprints to the division of criminal justice services.
§ 160.30 Fingerprinting; duties of division of criminal justice services.
1. Upon receiving fingerprints from a police officer or agency pursuant to section 160.20 of this chapter, the division of criminal justice services must, except as provided in subdivision two of this section, classify them and search its records for information concerning a previous record of the defendant, including any adjudication as a juvenile delinquent pursuant to article three of the family court act, or as a youthful offender pursuant to article seven hundred twenty of this chapter, and promptly transmit to such forwarding police officer or agency a report containing all information on file with respect to such defendant's previous record, if any, or stating that the defendant has no previous record according to its files. Such a report, if certified, constitutes presumptive evidence of the facts so certified.
2. If the fingerprints so received are not sufficiently legible to permit accurate and complete classification, they must be returned to the forwarding police officer or agency with an explanation of the defects and a request that the defendant's fingerprints be retaken if possible.
§ 160.40 Fingerprinting; transmission of report received by police.
1. Upon receipt of a report of the division of criminal justice services as provided in section 160.30, the recipient police officer or agency must promptly transmit such report or a copy thereof to the district attorney of the county and two copies thereof to the court in which the action is pending.
2. Upon receipt of such report the court shall furnish a copy thereof to counsel for the defendant or, if the defendant is not represented by counsel, to the defendant.
§ 160.45 Polygraph tests; prohibition against.
1. No district attorney, police officer or employee of any law enforcement agency shall request or require any victim of a sexual assault crime to submit to any polygraph test or psychological stress evaluator examination.
2. As used in this section, "victim of a sexual assault crime" means any person alleged to have sustained an offense under article one hundred thirty or section 255.25, 255.26 or 255.27 of the penal law.
§ 160.50 Order upon termination of criminal action in favor of the accused.
1. Upon the termination of a criminal action or proceeding against a person in favor of such person, as defined in subdivision three of this section, unless the district attorney upon motion with not less than five days notice to such person or his or her attorney demonstrates to the satisfaction of the court that the interests of justice require otherwise, or the court on its own motion with not less than five days notice to such person or his or her attorney determines that the interests of justice require otherwise and states the reasons for such determination on the record, the record of such action or proceeding shall be sealed and the clerk of the court wherein such criminal action or proceeding was terminated shall immediately notify the commissioner of the division of criminal justice services and the heads of all appropriate police departments and other law enforcement agencies that the action has been terminated in favor of the accused, and unless the court has directed otherwise, that the record of such action or proceeding shall be sealed. Upon receipt of notification of such termination and sealing:
(a) every photograph of such person and photographic plate or proof, and all palmprints and fingerprints taken or made of such person pursuant to the provisions of this article in regard to the action or proceeding terminated, except a dismissal pursuant to section 170.56 or 210.46 of this chapter, and all duplicates and copies thereof, except a digital fingerprint image where authorized pursuant to paragraph (e) of this subdivision, shall forthwith be, at the discretion of the recipient agency, either destroyed or returned to such person, or to the attorney who represented such person at the time of the termination of the action or proceeding, at the address given by such person or attorney during the action or proceeding, by the division of criminal justice services and by any police department or law enforcement agency having any such photograph, photographic plate or proof, palmprint or fingerprints in its possession or under its control;
(b) any police department or law enforcement agency, including the division of criminal justice services, which transmitted or otherwise forwarded to any agency of the United States or of any other state or of any other jurisdiction outside the state of New York copies of any such photographs, photographic plates or proofs, palmprints and fingerprints, including those relating to actions or proceedings which were dismissed pursuant to section 170.56 or 210.46 of this chapter, shall forthwith formally request in writing that all such copies be destroyed or returned to the police department or law enforcement agency which transmitted or forwarded them, and, if returned, such department or agency shall, at its discretion, either destroy or return them as provided herein, except that those relating to dismissals pursuant to section 170.56 or 210.46 of this chapter shall not be destroyed or returned by such department or agency;
(c) all official records and papers, including judgments and orders of a court but not including published court decisions or opinions or records and briefs on appeal, relating to the arrest or prosecution, including all duplicates and copies thereof, on file with the division of criminal justice services, any court, police agency, or prosecutor's office shall be sealed and not made available to any person or public or private agency;
(d) such records shall be made available to the person accused or to such person's designated agent, and shall be made available to (i) a prosecutor in any proceeding in which the accused has moved for an order pursuant to section 170.56 or 210.46 of this chapter, or (ii) a law enforcement agency upon ex parte motion in any superior court, or in any district court, city court or the criminal court of the city of New York provided that such court sealed the record, if such agency demonstrates to the satisfaction of the court that justice requires that such records be made available to it, or (iii) any state or local officer or agency with responsibility for the issuance of licenses to possess guns, when the accused has made application for such a license, or (iv) the New York state department of corrections and community supervision when the accused is on parole supervision as a result of conditional release or a parole release granted by the New York state board of parole, and the arrest which is the subject of the inquiry is one which occurred while the accused was under such supervision, or (v) any prospective employer of a police officer or peace officer as those terms are defined in subdivisions thirty-three and thirty-four of section 1.20 of this chapter, in relation to an application for employment as a police officer or peace officer; provided, however, that every person who is an applicant for the position of police officer or peace officer shall be furnished with a copy of all records obtained under this paragraph and afforded an opportunity to make an explanation thereto, or (vi) the probation department responsible for supervision of the accused when the arrest which is the subject of the inquiry is one which occurred while the accused was under such supervision; and
(e) where fingerprints subject to the provisions of this section have been received by the division of criminal justice services and have been filed by the division as digital images, such images may be retained, provided that a fingerprint card of the individual is on file with the division which was not sealed pursuant to this section or section 160.55 of this article.
2. A report of the termination of the action or proceeding in favor of the accused shall be sufficient notice of sealing to the commissioner of the division of criminal justice services unless the report also indicates that the court directed that the record not be sealed in the interests of justice. Where the court has determined pursuant to subdivision one of this section that sealing is not in the interest of justice, the clerk of the court shall include notification of that determination in any report to such division of the disposition of the action or proceeding.
3. For the purposes of subdivision one of this section, a criminal action or proceeding against a person shall be considered terminated in favor of such person where:
(a) an order dismissing the entire accusatory instrument against such person pursuant to article four hundred seventy was entered; or
(b) an order to dismiss the entire accusatory instrument against such person pursuant to section 170.30, 170.50, 170.55, 170.56, 180.70, 210.20, 210.46 or 210.47 of this chapter was entered or deemed entered, or an order terminating the prosecution against such person was entered pursuant to section 180.85 of this chapter, and the people have not appealed from such order or the determination of an appeal or appeals by the people from such order has been against the people; or
(c) a verdict of complete acquittal was made pursuant to section 330.10 of this chapter; or
(d) a trial order of dismissal of the entire accusatory instrument against such person pursuant to section 290.10 or 360.40 of this chapter was entered and the people have not appealed from such order or the determination of an appeal or appeals by the people from such order has been against the people; or
(e) an order setting aside a verdict pursuant to section 330.30 or 370.10 of this chapter was entered and the people have not appealed from such order or the determination of an appeal or appeals by the people from such order has been against the people and no new trial has been ordered; or
(f) an order vacating a judgment pursuant to section 440.10 of this chapter was entered and the people have not appealed from such order or the determination of an appeal or appeals by the people from such order has been against the people, and no new trial has been ordered; or
(g) an order of discharge pursuant to article seventy of the civil practice law and rules was entered on a ground which invalidates the conviction and the people have not appealed from such order or the determination of an appeal or appeals by the people from such order has been against the people; or
(h) where all charges against such person are dismissed pursuant to section 190.75 of this chapter. In such event, the clerk of the court which empaneled the grand jury shall serve a certification of such disposition upon the division of criminal justice services and upon the appropriate police department or law enforcement agency which upon receipt thereof, shall comply with the provisions of paragraphs (a), (b), (c) and (d) of subdivision one of this section in the same manner as is required thereunder with respect to an order of a court entered pursuant to said subdivision one; or
(i) prior to the filing of an accusatory instrument in a local criminal court against such person, the prosecutor elects not to prosecute such person. In such event, the prosecutor shall serve a certification of such disposition upon the division of criminal justice services and upon the appropriate police department or law enforcement agency which, upon receipt thereof, shall comply with the provisions of paragraphs (a), (b), (c) and (d) of subdivision one of this section in the same manner as is required thereunder with respect to an order of a court entered pursuant to said subdivision one.
(j) following the arrest of such person, the arresting police agency, prior to the filing of an accusatory instrument in a local criminal court but subsequent to the forwarding of a copy of the fingerprints of such person to the division of criminal justice services, elects not to proceed further. In such event, the head of the arresting police agency shall serve a certification of such disposition upon the division of criminal justice services which, upon receipt thereof, shall comply with the provisions of paragraphs (a), (b), (c) and (d) of subdivision one of this section in the same manner as is required thereunder with respect to an order of a court entered pursuant to said subdivision one.
(k) (i) The conviction was for a violation of article two hundred twenty or section 240.36 of the penal law prior to the effective date of article two hundred twenty-one of the penal law, and the sole controlled substance involved was marihuana and the conviction was only for a misdemeanor and/or violation; or
(ii) the conviction is for an offense defined in section 221.05 or 221.10 of the penal law prior to the effective date of chapter one hundred thirty-two of the laws of two thousand nineteen; or
(iii) the conviction is for an offense defined in former section 221.05 221.10, 221.15, 221.20, 221.35, or 221.40 of the penal law; or
(iv) the conviction was for an offense defined in section 240.37 of the penal law; or
(v) the conviction was for a violation of section 220.03 or 220.06 of the penal law prior to the effective date of the chapter of the laws of two thousand twenty-one that amended this paragraph, and the sole controlled substance involved was concentrated cannabis; or
(vi) the conviction was for an offense defined in section 222.10, 222.15, 222.25 or 222.45 of the penal law.
No defendant shall be required or permitted to waive eligibility for sealing or expungement pursuant to this section as part of a plea of guilty, sentence or any agreement related to a conviction for a violation of section 222.10, 222.15, 222.25 or 222.45 of the penal law and any such waiver shall be deemed void and wholly unenforceable.
(l) An order dismissing an action pursuant to section 215.40 of this chapter was entered.
4. A person in whose favor a criminal action or proceeding was terminated, as defined in paragraph (a) through (h) of subdivision two of this section, prior to the effective date of this section, may upon motion apply to the court in which such termination occurred, upon not less than twenty days notice to the district attorney, for an order granting to such person the relief set forth in subdivision one of this section, and such order shall be granted unless the district attorney demonstrates to the satisfaction of the court that the interests of justice require otherwise. A person in whose favor a criminal action or proceeding was terminated, as defined in paragraph (i) or (j) of subdivision two of this section, prior to the effective date of this section, may apply to the appropriate prosecutor or police agency for a certification as described in said paragraph (i) or (j) granting to such person the relief set forth therein, and such certification shall be granted by such prosecutor or police agency.
5. (a) Expungement of certain marihuana-related records. A conviction for an offense described in paragraph (k) of subdivision three of this section shall, on and after the effective date of this paragraph, in accordance with the provisions of this paragraph, be vacated and dismissed, and all records of such conviction or convictions and related to such conviction or convictions shall be expunged, as described in subdivision forty-five of section 1.20 of this chapter, and the matter shall be considered terminated in favor of the accused and deemed a nullity, having been rendered by this paragraph legally invalid. All such records for an offense described in this paragraph where the conviction was entered on or before the effective date of the chapter of the laws of 2019 that amended this paragraph shall be expunged promptly and, in any event, no later than one year after such effective date.
(b) Duties of certain state officials and law enforcement agencies. Commencing upon the effective date of this paragraph:
(i) the chief administrator of the courts shall promptly notify the commissioner of the division of criminal justice services and the heads of all appropriate police departments, district attorney's offices and other law enforcement agencies of all convictions that have been vacated and dismissed pursuant to paragraph (a) of this subdivision and that all records related to such convictions shall be expunged and the matter shall be considered terminated in favor of the accused and deemed a nullity, having been rendered legally invalid. Upon receipt of notification of such vacatur, dismissal and expungement, all records relating to such conviction or convictions, or the criminal action or proceeding, as the case may be, shall be marked as expunged by conspicuously indicating on the face of the record and on each page or at the beginning of the digitized file of the record that the record has been designated as expunged. Upon the written request of the individual whose case has been expunged or their designated agent, such records shall be destroyed. Such records and papers shall not be made available to any person, except the individual whose case has been expunged or such person's designated agent; and
(ii) where automatic vacatur, dismissal, and expungement, including record destruction if requested, is required by this subdivision but any record of the court system in this state has not yet been updated to reflect same (A) notwithstanding any other provision of law except as provided in paragraph (d) of subdivision one of this section and paragraph (e) of subdivision four of section eight hundred thirty-seven of the executive law: (1) when the division of criminal justice services conducts a search of its criminal history records, maintained pursuant to subdivision six of section eight hundred thirty-seven of the executive law, and returns a report thereon, all references to a conviction for an offense described in paragraph (k) of subdivision three of this section shall be excluded from such report; and (2) the chief administrator of the courts shall develop and promulgate rules as may be necessary to ensure that no written or electronic report of a criminal history record search conducted by the office of court administration contains information relating to a conviction for an offense described in paragraph (k) of subdivision three of this section; and (B) where court records relevant to such matter cannot be located or have been destroyed, and a person or the person's attorney presents to an appropriate court employee a fingerprint record of the New York state division of criminal justice services, or a copy of a court disposition record or other relevant court record, which indicates that a criminal action or proceeding against such person was terminated by conviction of an offense described in paragraph (k) of subdivision three of this section, then promptly, and in any event within thirty days after such notice to such court employee, the chief administrator of the courts or his or her designee shall assure that such vacatur, dismissal, and expungement, including record destruction if requested, have been completed in accordance with subparagraph (i) of this paragraph.
(c) Vacatur, dismissal and expungement as set forth in this subdivision is without prejudice to any person or such person's attorney seeking further relief pursuant to article four hundred forty of this chapter or any other law. Nothing in this section is intended or shall be interpreted to diminish or abrogate any right or remedy otherwise available to any person.
(d) The office of court administration, in conjunction with the division of criminal justice services, shall develop an affirmative information campaign and widely disseminate to the public, through its website, public service announcements and other means, in multiple languages and through multiple outlets, information concerning the expungement, vacatur and resentencing of marihuana convictions established by the chapter of the laws of two thousand nineteen that added this paragraph, including, but not limited to, the automatic expungement of certain past convictions, the means by which an individual may file a motion for vacatur, dismissal and expungement of certain past convictions, and the impact of such changes on such person's criminal history records.
§ 160.55 Order upon termination of criminal action by conviction for
noncriminal offense; entry of waiver; administrative findings.
1. Regardless of the class of offense for which a person is initially charged, upon the termination of a criminal action or proceeding against a person by the conviction of such person of a traffic infraction or a violation, other than the violation of operating a motor vehicle while ability impaired as described in subdivision one of section eleven hundred ninety-two of the vehicle and traffic law, unless the district attorney upon motion with not less than five days' notice to such person or his or her attorney demonstrates to the satisfaction of the court that the interests of justice require otherwise, or the court on its own motion with not less than five days' notice to such person or his or her attorney determines that the interests of justice require otherwise and states the reasons for such determination on the record, the clerk of the court wherein such criminal action or proceeding was terminated shall immediately notify the commissioner of the division of criminal justice services and the heads of all appropriate police departments and other law enforcement agencies that the action has been terminated by such conviction. Upon receipt of notification of such termination:
(a) every photograph of such person and photographic plate or proof, and all palmprints and fingerprints taken or made of such person pursuant to the provisions of this article in regard to the action or proceeding terminated, and all duplicates and copies thereof, except a digital fingerprint image where authorized pursuant to paragraph (e) of this subdivision, except for the palmprints and fingerprints concerning a disposition of harassment in the second degree as defined in section 240.26 of the penal law, 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, and determined pursuant to subdivision eight-a of section 170.10 of this title, shall forthwith be, at the discretion of the recipient agency, either destroyed or returned to such person, or to the attorney who represented such person at the time of the termination of the action or proceeding, at the address given by such person or attorney during the action or proceeding, by the division of criminal justice services and by any police department or law enforcement agency having any such photograph, photographic plate or proof, palmprints or fingerprints in its possession or under its control;
(b) any police department or law enforcement agency, including the division of criminal justice services, which transmitted or otherwise forwarded to any agency of the United States or of any other state or of any other jurisdiction outside the state of New York copies of any such photographs, photographic plates or proofs, palmprints and fingerprints, shall forthwith formally request in writing that all such copies be destroyed or returned to the police department or law enforcement agency which transmitted or forwarded them, and upon such return such department or agency shall, at its discretion, either destroy or return them as provided herein;
(c) all official records and papers relating to the arrest or prosecution, including all duplicates and copies thereof, on file with the division of criminal justice services, police agency, or prosecutor's office shall be sealed and not made available to any person or public or private agency;
(d) the records referred to in paragraph (c) of this subdivision shall be made available to the person accused or to such person's designated agent, and shall be made available to (i) a prosecutor in any proceeding in which the accused has moved for an order pursuant to section 170.56 or 210.46 of this chapter, or (ii) a law enforcement agency upon ex parte motion in any superior court, or in any district court, city court or the criminal court of the city of New York provided that such court sealed the record, if such agency demonstrates to the satisfaction of the court that justice requires that such records be made available to it, or (iii) any state or local officer or agency with responsibility for the issuance of licenses to possess guns, when the accused has made application for such a license, or (iv) the New York state department of corrections and community supervision when the accused is under parole supervision as a result of conditional release or parole release granted by the New York state board of parole and the arrest which is the subject of the inquiry is one which occurred while the accused was under such supervision, or (v) the probation department responsible for supervision of the accused when the arrest which is the subject of the inquiry is one which occurred while the accused was under such supervision, or (vi) a police agency, probation department, sheriff's office, district attorney's office, department of correction of any municipality and parole department, for law enforcement purposes, upon arrest in instances in which the individual stands convicted of harassment in the second degree, as defined in section 240.26 of the penal law, 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, and determined pursuant to subdivision eight-a of section 170.10 of this title; and
(e) where fingerprints subject to the provisions of this section have been received by the division of criminal justice services and have been filed by the division as digital images, such images may be retained, provided that a fingerprint card of the individual is on file with the division which was not sealed pursuant to this section or section 160.50 of this article.
2. A report of the termination of the action or proceeding by conviction of a traffic violation or a violation other than the violation of operating a motor vehicle while ability impaired as described in subdivision one of section eleven hundred ninety-two of the vehicle and traffic law, shall be sufficient notice of sealing to the commissioner of the division of criminal justice services unless the report also indicates that the court directed that the record not be sealed in the interests of justice. Where the court has determined pursuant to subdivision one of this section that sealing is not in the interests of justice, the clerk of the court shall include notification of that determination in any report to such division of the disposition of the action or proceeding. When the defendant has been found guilty of a violation of harassment in the second degree and it was determined pursuant to subdivision eight-a of section 170.10 of this title that such violation was committed against a member of the same family or household as the defendant, the clerk of the court shall include notification of that determination in any report to such division of the disposition of the action or proceeding for purposes of paragraph (a) and subparagraph (vi) of paragraph (d) of subdivision one of this section.
3. A person against whom a criminal action or proceeding was terminated by such person's conviction of a traffic infraction or violation other than the violation of operating a motor vehicle while ability impaired as described in subdivision one of section eleven hundred ninety-two of the vehicle and traffic law, prior to the effective date of this section, may upon motion apply to the court in which such termination occurred, upon not less than twenty days notice to the district attorney, for an order granting to such person the relief set forth in subdivision one of this section, and such order shall be granted unless the district attorney demonstrates to the satisfaction of the court that the interests of justice require otherwise.
4. This section shall not apply to an action terminated in a manner described in paragraph (k) of subdivision two of section 160.50 of this chapter.
5. (a) When a criminal action or proceeding is terminated against a person by the entry of a waiver of a hearing pursuant to paragraph (c) of subdivision ten of section eleven hundred ninety-two of the vehicle and traffic law or section forty-nine-b of the navigation law, the record of the criminal action shall be sealed in accordance with this subdivision. Upon the entry of such waiver, the court or the clerk of the court shall immediately notify the commissioner of the division of criminal justice services and the heads of all appropriate police departments and other law enforcement agencies that a waiver has been entered and that the record of the action shall be sealed when the person reaches the age of twenty-one or three years from the date of commission of the offense, whichever is the greater period of time. At the expiration of such period, the commissioner of the division of criminal justice services and the heads of all appropriate police departments and other law enforcement agencies shall take the actions required by paragraphs (a), (b) and (c) of subdivision one of section 160.50 of this article.
(b) Where a person under the age of twenty-one is referred by the police to the department of motor vehicles for action pursuant to section eleven hundred ninety-two-a or eleven hundred ninety-four-a of the vehicle and traffic law, or section forty-nine-b of the navigation law and a finding in favor of the motorist or operator is rendered, the commissioner of the department of motor vehicles shall, as soon as practicable, but not later than three years from the date of commission of the offense or when such person reaches the age of twenty-one, whichever is the greater period of time, notify the commissioner of the division of criminal justice services and the heads of all appropriate police departments and other law enforcement agencies that such finding in favor of the motorist or operator was rendered. Upon receipt of such notification, the commissioner of the division of criminal justice services and the heads of such police departments and other law enforcement agencies shall take the actions required by paragraphs (a), (b) and (c) of subdivision one of section 160.50 of this article.
(c) Where a person under the age of twenty-one is referred by the police to the department of motor vehicles for action pursuant to section eleven hundred ninety-two-a or eleven hundred ninety-four-a of the vehicle and traffic law, or section forty-nine-b of the navigation law, and no notification is received by the commissioner of the division of criminal justice services and the heads of all appropriate police departments and other law enforcement agencies pursuant to paragraph (b) of this subdivision, such commissioner of the division of criminal justice services and such heads of police departments and other law enforcement agencies shall, after three years from the date of commission of the offense or when the person reaches the age of twenty-one, whichever is the greater period of time, take the actions required by paragraphs (a), (b) and (c) of subdivision one of section 160.50 of this article.
§ 160.58 Conditional sealing of certain controlled substance, marihuana or
specified offense convictions.
1. A defendant convicted of any offense defined in article two hundred twenty or two hundred twenty-one of the penal law or a specified offense defined in subdivision five of section 410.91 of this chapter who has successfully completed a judicial diversion program under article two hundred sixteen of this chapter, or one of the programs heretofore known as drug treatment alternative to prison or another judicially sanctioned drug treatment program of similar duration, requirements and level of supervision, and has completed the sentence imposed for the offense or offenses, is eligible to have such offense or offenses sealed pursuant to this section.
2. The court that sentenced the defendant to a judicially sanctioned drug treatment program may on its own motion, or on the defendant's motion, order that all official records and papers relating to the arrest, prosecution and conviction which resulted in the defendant's participation in the judicially sanctioned drug treatment program be conditionally sealed. In such case, the court may also conditionally seal the arrest, prosecution and conviction records for no more than three of the defendant's prior eligible misdemeanors, which for purposes of this subdivision shall be limited to misdemeanor offenses defined in article two hundred twenty or two hundred twenty-one of the penal law. The court may only seal the records of the defendant's arrests, prosecutions and convictions when:
(a) the sentencing court has requested and received from the division of criminal justice services or the Federal Bureau of Investigation a fingerprint based criminal history record of the defendant, including any sealed or suppressed information. The division of criminal justice services shall also include a criminal history report, if any, from the Federal Bureau of Investigation regarding any criminal history information that occurred in other jurisdictions. The division is hereby authorized to receive such information from the Federal Bureau of Investigation for this purpose. The parties shall be permitted to examine these records;
(b) the defendant or court has identified the misdemeanor conviction or convictions for which relief may be granted;
(c) the court has received documentation that the sentences imposed on the eligible misdemeanor convictions have been completed, or if no such documentation is reasonably available, a sworn affidavit that the sentences imposed on the prior misdemeanors have been completed; and
(d) the court has notified the district attorney of each jurisdiction in which the defendant has been convicted of an offense with respect to which sealing is sought, and the court or courts of record for such offenses, that the court is considering sealing the records of the defendant's eligible misdemeanor convictions. Both the district attorney and the court shall be given a reasonable opportunity, which shall not be less than thirty days, in which to comment and submit materials to aid the court in making such a determination.
3. At the request of the defendant or the district attorney of a county in which the defendant committed a crime that is the subject of the sealing application, the court may conduct a hearing to consider and review any relevant evidence offered by either party that would aid the court in its decision whether to seal the records of the defendant's arrests, prosecutions and convictions. In making such a determination, the court shall consider any relevant factors, including but not limited to: (i) the circumstances and seriousness of the offense or offenses that resulted in the conviction or convictions; (ii) the character of the defendant, including his or her completion of the judicially sanctioned treatment program as described in subdivision one of this section; (iii) the defendant's criminal history; and (iv) the impact of sealing the defendant's records upon his or her rehabilitation and his or her successful and productive reentry and reintegration into society, and on public safety.
4. When a court orders sealing pursuant to this section, all official records and papers relating to the arrests, prosecutions, and convictions, including all duplicates and copies thereof, on file with the division of criminal justice services or any court shall be sealed and not made available to any person or public or private agency; provided, however, the division shall retain any fingerprints, palmprints and photographs, or digital images of the same.
5. When the court orders sealing pursuant to this section, the clerk of such court shall immediately notify the commissioner of the division of criminal justice services, and any court that sentenced the defendant for an offense which has been conditionally sealed, regarding the records that shall be sealed pursuant to this section.
6. Records sealed pursuant to this subdivision shall be made available to:
(a) the defendant or the defendant's designated agent;
(b) qualified agencies, as defined in subdivision nine of section eight hundred thirty-five of the executive law, and federal and state law enforcement agencies, when acting within the scope of their law enforcement duties; or
(c) any state or local officer or agency with responsibility for the issuance of licenses to possess guns, when the person has made application for such a license; or
(d) any prospective employer of a police officer or peace officer as those terms are defined in subdivisions thirty-three and thirty-four of section 1.20 of this chapter, in relation to an application for employment as a police officer or peace officer; provided, however, that every person who is an applicant for the position of police officer or peace officer shall be furnished with a copy of all records obtained under this paragraph and afforded an opportunity to make an explanation thereto.
7. The court shall not seal the defendant's record pursuant to this section while any charged offense is pending.
8. If, subsequent to the sealing of records pursuant to this subdivision, the person who is the subject of such records is arrested for or formally charged with any misdemeanor or felony offense, such records shall be unsealed immediately and remain unsealed; provided, however, that if such new misdemeanor or felony arrest results in a termination in favor of the accused as defined in subdivision three of section 160.50 of this article or by conviction for a non criminal offense as described in section 160.55 of this article, such unsealed records shall be conditionally sealed pursuant to this section.
§ 160.59 Sealing of certain convictions.
1. Definitions: As used in this section, the following terms shall have the following meanings:
(a) "Eligible offense" shall mean any crime defined in the laws of this state other than a sex offense defined in article one hundred thirty of the penal law, an offense defined in article two hundred sixty-three of the penal law, a felony offense defined in article one hundred twenty-five of the penal law, a violent felony offense defined in section 70.02 of the penal law, a class A felony offense defined in the penal law, a felony offense defined in article one hundred five of the penal law where the underlying offense is not an eligible offense, an attempt to commit an offense that is not an eligible offense if the attempt is a felony, or an offense for which registration as a sex offender is required pursuant to article six-C of the correction law. For the purposes of this section, where the defendant is convicted of more than one eligible offense, committed as part of the same criminal transaction as defined in subdivision two of section 40.10 of this chapter, those offenses shall be considered one eligible offense.
(b) "Sentencing judge" shall mean the judge who pronounced sentence upon the conviction under consideration, or if that judge is no longer sitting in a court in the jurisdiction in which the conviction was obtained, any other judge who is sitting in the criminal court where the judgment of conviction was entered.
1-a. The chief administrator of the courts shall, pursuant to section 10.40 of this chapter, prescribe a form application which may be used by a defendant to apply for sealing pursuant to this section. Such form application shall include all the essential elements required by this section to be included in an application for sealing. Nothing in this subdivision shall be read to require a defendant to use such form application to apply for sealing.
2. (a) A defendant who has been convicted of up to two eligible offenses but not more than one felony offense may apply to the court in which he or she was convicted of the most serious offense to have such conviction or convictions sealed. If all offenses are offenses with the same classification, the application shall be made to the court in which the defendant was last convicted.
(b) An application shall contain (i) a copy of a certificate of disposition or other similar documentation for any offense for which the defendant has been convicted, or an explanation of why such certificate or other documentation is not available; (ii) a sworn statement of the defendant as to whether he or she has filed, or then intends to file, any application for sealing of any other eligible offense; (iii) a copy of any other such application that has been filed; (iv) a sworn statement as to the conviction or convictions for which relief is being sought; and (v) a sworn statement of the reason or reasons why the court should, in its discretion, grant such sealing, along with any supporting documentation.
(c) A copy of any application for such sealing shall be served upon the district attorney of the county in which the conviction, or, if more than one, the convictions, was or were obtained. The district attorney shall notify the court within forty-five days if he or she objects to the application for sealing.
(d) When such application is filed with the court, it shall be assigned to the sentencing judge unless more than one application is filed in which case the application shall be assigned to the county court or the supreme court of the county in which the criminal court is located, who shall request and receive from the division of criminal justice services a fingerprint based criminal history record of the defendant, including any sealed or suppressed records. The division of criminal justice services also shall include a criminal history report, if any, from the federal bureau of investigation regarding any criminal history information that occurred in other jurisdictions. The division is hereby authorized to receive such information from the federal bureau of investigation for this purpose, and to make such information available to the court, which may make this information available to the district attorney and the defendant.
3. The sentencing judge, or county or supreme court shall summarily deny the defendant's application when:
(a) the defendant is required to register as a sex offender pursuant to article six-C of the correction law; or
(b) the defendant has previously obtained sealing of the maximum number of convictions allowable under section 160.58 of the criminal procedure law; or
(c) the defendant has previously obtained sealing of the maximum number of convictions allowable under subdivision four of this section; or
(d) the time period specified in subdivision five of this section has not yet been satisfied; or
(e) the defendant has an undisposed arrest or charge pending; or
(f) the defendant was convicted of any crime after the date of the entry of judgement of the last conviction for which sealing is sought; or
(g) the defendant has failed to provide the court with the required sworn statement of the reasons why the court should grant the relief requested; or
(h) the defendant has been convicted of two or more felonies or more than two crimes.
4. Provided that the application is not summarily denied for the reasons set forth in subdivision three of this section, a defendant who stands convicted of up to two eligible offenses, may obtain sealing of no more than two eligible offenses but not more than one felony offense.
5. Any eligible offense may be sealed only after at least ten years have passed since the imposition of the sentence on the defendant's latest conviction or, if the defendant was sentenced to a period of incarceration, including a period of incarceration imposed in conjunction with a sentence of probation, the defendant's latest release from incarceration. In calculating the ten year period under this subdivision, any period of time the defendant spent incarcerated after the conviction for which the application for sealing is sought, shall be excluded and such ten year period shall be extended by a period or periods equal to the time served under such incarceration.
6. Upon determining that the application is not subject to mandatory denial pursuant to subdivision three of this section and that the application is opposed by the district attorney, the sentencing judge or county or supreme court shall conduct a hearing on the application in order to consider any evidence offered by either party that would aid the sentencing judge in his or her decision whether to seal the records of the defendant's convictions. No hearing is required if the district attorney does not oppose the application.
7. In considering any such application, the sentencing judge or county or supreme court shall consider any relevant factors, including but not limited to:
(a) the amount of time that has elapsed since the defendant's last conviction;
(b) the circumstances and seriousness of the offense for which the defendant is seeking relief, including whether the arrest charge was not an eligible offense;
(c) the circumstances and seriousness of any other offenses for which the defendant stands convicted;
(d) the character of the defendant, including any measures that the defendant has taken toward rehabilitation, such as participating in treatment programs, work, or schooling, and participating in community service or other volunteer programs;
(e) any statements made by the victim of the offense for which the defendant is seeking relief;
(f) the impact of sealing the defendant's record upon his or her rehabilitation and upon his or her successful and productive reentry and reintegration into society; and
(g) the impact of sealing the defendant's record on public safety and upon the public's confidence in and respect for the law.
8. When a sentencing judge or county or supreme court orders sealing pursuant to this section, all official records and papers relating to the arrests, prosecutions, and convictions, including all duplicates and copies thereof, on file with the division of criminal justice services or any court shall be sealed and not made available to any person or public or private agency except as provided for in subdivision nine of this section; provided, however, the division shall retain any fingerprints, palmprints and photographs, or digital images of the same. The clerk of such court shall immediately notify the commissioner of the division of criminal justice services regarding the records that shall be sealed pursuant to this section. The clerk also shall notify any court in which the defendant has stated, pursuant to paragraph (b) of subdivision two of this section, that he or she has filed or intends to file an application for sealing of any other eligible offense.
9. Records sealed pursuant to this section shall be made available to:
(a) the defendant or the defendant's designated agent;
(b) qualified agencies, as defined in subdivision nine of section eight hundred thirty-five of the executive law, and federal and state law enforcement agencies, when acting within the scope of their law enforcement duties; or
(c) any state or local officer or agency with responsibility for the issuance of licenses to possess guns, when the person has made application for such a license; or
(d) any prospective employer of a police officer or peace officer as those terms are defined in subdivisions thirty-three and thirty-four of section 1.20 of this chapter, in relation to an application for employment as a police officer or peace officer; provided, however, that every person who is an applicant for the position of police officer or peace officer shall be furnished with a copy of all records obtained under this paragraph and afforded an opportunity to make an explanation thereto; or
(e) the criminal justice information services division of the federal bureau of investigation, for the purposes of responding to queries to the national instant criminal background check system regarding attempts to purchase or otherwise take possession of firearms, as defined in 18 USC 921 (a) (3).
10. A conviction which is sealed pursuant to this section is included within the definition of a conviction for the purposes of any criminal proceeding in which the fact of a prior conviction would enhance a penalty or is an element of the offense charged.
11. No defendant shall be required or permitted to waive eligibility for sealing pursuant to this section as part of a plea of guilty, sentence or any agreement related to a conviction for an eligible offense and any such waiver shall be deemed void and wholly unenforceable.
§ 160.60 Effect of termination of criminal actions in favor of the accused.
Upon the termination of a criminal action or proceeding against a person in favor of such person, as defined in subdivision two of section 160.50 of this chapter, the arrest and prosecution shall be deemed a nullity and the accused shall be restored, in contemplation of law, to the status he occupied before the arrest and prosecution. The arrest or prosecution shall not operate as a disqualification of any person so accused to pursue or engage in any lawful activity, occupation, profession, or calling. Except where specifically required or permitted by statute or upon specific authorization of a superior court, no such person shall be required to divulge information pertaining to the arrest or prosecution.
ARTICLE 170--PROCEEDINGS UPON INFORMATION, SIMPLIFIED TRAFFIC INFORMATION, PROSECUTOR'S INFORMATION AND MISDEMEANOR COMPLAINT
FROM ARRAIGNMENT TO PLEA
Section 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.
§ 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.
10. Notwithstanding any contrary provision of this section, when an off-hours arraignment part designated in accordance with paragraph (w) of subdivision one of section two hundred twelve of the judiciary law is in operation in the county in which the court is located, the court must adjourn the proceedings before it, and direct that the proceedings be continued in such off-hours part when the defendant has appeared before the court without counsel and no counsel is otherwise available at the time of such appearance to aid the defendant, unless the defendant desires to proceed without the aid of counsel and the court is satisfied, pursuant to subdivision six of this section, that the defendant made such decision with knowledge of the significance thereof.
§ 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 after giving the district attorney an opportunity to be heard, 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 court formed to address a matter of special concern based upon the status of the defendant or the victim, commonly known as a "problem solving court," including, but not limited to, drug court, domestic violence court, youth court, mental health court, and veterans court, by the chief administrator of the courts, and such problem solving court may then conduct such action to judgment 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 problem solving 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 problem solving court shall promptly give notice to the defendant, his or her counsel and the district attorney.
5. (a) 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 after giving the district attorney an opportunity to be heard, order that the action be removed from the court in which the matter is pending to another local criminal court in the same county, or with consent of the district attorney and the district attorney of the adjoining county to another court in such adjoining county, that has been designated as a human trafficking court or veterans treatment court by the chief administrator of the courts, and such human trafficking court or veterans treatment court may then conduct such action to judgment or other final deposition; provided, however, that no court may order removal pursuant to this subdivision to a veterans treatment court of a family offense charge described in subdivision one of section 530.11 of this chapter where the accused and the person alleged to be the victim of such offense charged are members of the same family or household as defined in such subdivision one of section 530.11; and provided further 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 human trafficking court or veterans treatment court notifies the court that issued the order that:
i. it will not accept the action, in which event the order shall not take effect; or
ii. 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.
(b) Upon providing notification pursuant to subparagraph i or ii of paragraph (a) of this subdivision, the human trafficking court or veterans treatment court shall promptly give notice to the defendant, his or her counsel, and the district attorney.
§ 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.
§ 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.
§ 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 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.
§ 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.
§ 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.
§ 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.
§ 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.
§ 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 learner's permit or 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.
§ 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 222.10, 222.15, 222.25, 222.30, 222.45 or 222.50 of the penal law, or upon summons for a nuisance offense under section sixty-five-c of the alcoholic beverage control 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. Notwithstanding the limitations set forth in this subdivision, the court may order that all proceedings be suspended and the action adjourned in contemplation of dismissal based upon a finding of exceptional circumstances. For purposes of this subdivision, exceptional circumstances exist when, regardless of the ultimate disposition of the case, the entry of a plea of guilty is likely to result in severe or ongoing consequences, including, but not limited to, potential or actual immigration consequences.
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.
§ 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.
§ 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.
§ 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.
§ 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, 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.
ARTICLE 180--PROCEEDINGS UPON FELONY COMPLAINT FROM ARRAIGNMENT THEREON THROUGH DISPOSITION THEREOF
Section 180.10 Proceedings upon felony complaint; arraignment; defendant's rights, court's instructions and bail matters.
180.20 Proceedings upon felony complaint; removal of action from one local criminal court to another.
180.30 Proceedings upon felony complaint; waiver of hearing; action to be taken.
180.40 Proceedings upon felony complaint; application in superior court following hearing or waiver of hearing.
180.50 Proceedings upon felony complaint; reduction of charge.
180.60 Proceedings upon felony complaint; the hearing; conduct thereof.
180.70 Proceedings upon felony complaint; disposition of felony complaint after hearing.
180.75 Proceedings upon felony complaint; juvenile offender.
180.80 Proceedings upon felony complaint; release of defendant from custody upon failure of timely disposition.
180.85 Termination of prosecution.
§ 180.10 Proceedings upon felony complaint; arraignment; defendant's rights, court's instructions and bail matters.
1. Upon the defendant's arraignment before a local criminal court upon a felony complaint, the court must immediately inform him, or cause him to be informed in its presence, of the charge or charges against him and that the primary purpose of the proceedings upon such felony complaint is to determine whether the defendant is to be held for the action of a grand jury with respect to the charges contained therein. The court must furnish the defendant with a copy of the felony complaint.
2. The defendant has a right to a prompt hearing upon the issue of whether there is sufficient evidence to warrant the court in holding him for the action of a grand jury, but he may waive such right.
3. The defendant has a right to the aid of counsel at the arraignment and at every subsequent stage of the action, and, if he appears upon such arraignment without counsel, 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 purpose 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 in any case where he is financially unable to obtain the same.
4. The court must inform the defendant of all rights specified in subdivisions two and three. The court must accord the defendant opportunity to exercise such rights and must itself take such affirmative action as is necessary to effectuate them.
5. If the defendant desires to proceed without the aid of counsel, the court must permit him to do so 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. 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.
6. Upon the arraignment, the court, unless it intends immediately thereafter to dismiss the felony complaint and terminate the action, must issue a securing order which, as provided in subdivision two of section 530.20, either releases the defendant on his own recognizance or fixes bail or commits him to the custody of the sheriff for his future appearance in such action.
7. Notwithstanding any contrary provision of this section, when an off-hours arraignment part designated in accordance with paragraph (w) of subdivision one of section two hundred twelve of the judiciary law is in operation in the county in which the court is located, the court must adjourn the proceedings before it, and direct that the proceedings be continued in such off-hours part when the defendant has appeared before the court without counsel and no counsel is otherwise available at the time of such appearance to aid the defendant.
§ 180.20 Proceedings upon felony complaint; removal of action from one local criminal court to another.
Under circumstances prescribed in this section, a criminal action based upon a pending felony complaint may be removed from one local criminal court to another:
1. When a defendant arrested by a police officer for a felony allegedly committed in a town has not been brought before the town court of the town, or as the case may be before the village court of the village, in which the felony charged was allegedly committed, but, instead, to another local criminal court of the county and there stands charged with such offense by felony complaint, such latter court must arraign him upon such felony complaint. Such court must then either:
(a) Dispose of the felony complaint pursuant to this article. If such disposition results in a reduction of the felony charge and the filing of an information or prosecutor's information charging a misdemeanor or a petty offense pursuant to section 180.50 or subdivision two or three of section 180.70, such court must conduct the action to judgment or other final disposition; or
(b) Remit the action upon the felony complaint, together with all pertinent papers and documents, to the town court of the town, or as the case may be to the village court of the village, in which the felony charged was allegedly committed. In such case, the latter court must dispose of the felony complaint pursuant to this article.
1-a. When a defendant arrested by a police officer for a felony allegedly committed in a city has not been brought before the city court of such city but, instead, to the local criminal court of an adjoining town or village of the same county and there stands charged with such offense by felony complaint, such latter court must arraign him upon such felony complaint. Such court must then either:
(a) Dispose of the felony complaint pursuant to this article. If such disposition results in a reduction of the felony charge and the filing of an information or prosecutor's information charging a misdemeanor or a petty offense pursuant to section 180.50 or subdivision two or three of section 180.70 of this article, such court must conduct the action to judgment or other final disposition; or
(b) Remit the action upon the felony complaint, together with all pertinent papers and documents, to the city court of the city in which the felony charged was allegedly committed. In such case, the latter court must dispose of the felony complaint pursuant to this article.
2. When a defendant arrested by a police officer for a felony has been brought before a superior court judge sitting as a local criminal court for arraignment upon a felony complaint charging such felony, such judge must, as a local criminal court, arraign the defendant upon such felony complaint. Such court must then either:
(a) Dispose of the felony complaint pursuant to this article. If however, such disposition results in a reduction of the charge and the filing of an information or prosecutor's information charging a misdemeanor or a petty offense, such judge, after arraigning the defendant upon such accusatory instrument, must remit the action, together with all pertinent papers and documents, to a local criminal court having trial jurisdiction of the offense charged, and the latter court must then conduct the action to judgment or other final disposition; or
(b) Remit the action upon the felony complaint, together with all pertinent papers and documents, to a local criminal court having geographical jurisdiction over the area in which the felony charged was allegedly committed. In such case, such latter court must dispose of the felony complaint pursuant to this article.
3. 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 a felony complaint pending in a local criminal court having preliminary jurisdiction thereof, 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 dispose of such felony complaint pursuant to this article; 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.
4. (a) 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 a felony complaint pending in a local criminal court having preliminary jurisdiction thereof, such court may, upon motion of the defendant and after giving the district attorney an opportunity to be heard, order that the action be removed from the court in which the matter is pending to another local criminal court in the same county, or with consent of the district attorney and the district attorney of the adjoining county to another court in such adjoining county, that has been designated as a human trafficking court or veterans treatment court by the chief administrator of the courts, and such human trafficking court or veterans treatment court may then conduct such action to judgment or other final disposition; provided, however, that no court may order removal pursuant to this subdivision to a veterans treatment court of a family offense charge described in subdivision one of section 530.11 of this chapter where the accused and the person alleged to be the victim of such offense charged are members of the same family or household as defined in such subdivision one of section 530.11; and provided further 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 human trafficking court or veterans treatment court notifies the court that issued the order that:
i. it will not accept the action, in which event the order shall not take effect; or
ii. 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.
(b) Upon providing notification pursuant to subparagraph i or ii of paragraph (a) of this subdivision, the human trafficking court or veterans treatment court shall promptly give notice to the defendant, his or her counsel and the district attorney.
§ 180.30 Proceedings upon felony complaint; waiver of hearing; action to be taken.
If the defendant waives a hearing upon the felony complaint, the court must either:
1. Order that the defendant be held for the action of a grand jury of the appropriate superior court with respect to the charge or charges contained in the felony complaint. In such case, the court must promptly transmit to such superior court the order, the felony complaint, the supporting depositions and all other pertinent documents. Until such papers are received by the superior court, the action is deemed to be still pending in the local criminal court; or
2. Make inquiry, pursuant to section 180.50, for the purpose of determining whether the felony complaint should be dismissed and an information, a prosecutor's information or a misdemeanor complaint filed with the court in lieu thereof.
§ 180.40 Proceedings upon felony complaint; application in superior court following hearing or waiver of hearing.
Where the local criminal court has held a defendant for the action of a grand jury, the district attorney may, at any time before such matter is submitted to the grand jury, apply, ex parte, to the appropriate superior court for an order directing that the felony complaint and other papers transmitted to such court pursuant to subdivision one of section 180.30 be returned to the local criminal court for reconsideration of the action to be taken. The superior court may issue such an order if it is satisfied that the felony complaint is defective or that such action is required in the interest of justice.
§ 180.50 Proceedings upon felony complaint; reduction of charge.
1. Whether or not the defendant waives a hearing upon the felony complaint, the local criminal court may, upon consent of the district attorney, make inquiry for the purpose of determining whether (a) the available facts and evidence relating to the conduct underlying the felony complaint provide a basis for charging the defendant with an offense other than a felony, and (b) if so, whether the charge should, in the manner prescribed in subdivision three, be reduced from one for a felony to one for a non-felony offense. Upon such inquiry, the court may question any person who it believes may possess information relevant to the matter, including the defendant if he wishes to be questioned.
2. If after such inquiry the court is satisfied that there is reasonable cause to believe that the defendant committed an offense other than a felony, it may order the indicated reduction as follows:
(a) If there is not reasonable cause to believe that the defendant committed a felony in addition to the non-felony offense in question, the court may as a matter of right order a reduction of the charge to one for the non-felony offense;
(b) If there is reasonable cause to believe that the defendant committed a felony in addition to the non-felony offense, the court may order a reduction of the charge to one for the non-felony offense only if (i) it is satisfied that such reduction is in the interest of justice, and (ii) the district attorney consents thereto; provided, however, that the court may not order such reduction where there is reasonable cause to believe that the defendant committed a class A felony, other than those defined in article two hundred twenty of the penal law, or any armed felony as defined in subdivision forty-one of section 1.20.
3. A charge is "reduced" from a felony to a non-felony offense, within the meaning of this section, by replacing the felony complaint with, or converting it to, another local criminal court accusatory instrument, as follows:
(a) If the factual allegations of the felony complaint and/or any supporting depositions are legally sufficient to support the charge that the defendant committed the non-felony offense in question, the court may:
(i) Direct the district attorney to file with the court a prosecutor's information charging the defendant with such non-felony offense; or
(ii) Request the complainant of the felony complaint to file with the court an information charging the defendant with such non-felony offense. If such an information is filed, any supporting deposition supporting or accompanying the felony complaint is deemed also to support or accompanying the replacing information; or
(iii) Convert the felony complaint, or a copy thereof, into an information by notations upon or attached thereto which make the necessary and appropriate changes in the title of the instrument and in the names of the offense or offenses charged. In case of such conversion, any supporting deposition supporting or accompanying the felony complaint is deemed also to support or accompany the information to which it has been converted;
(b) If the non-felony offense in question is a misdemeanor, and if the factual allegations of the felony complaint together with those of any supporting depositions, though providing reasonable cause to believe that the defendant committed such misdemeanor are not legally sufficient to support such misdemeanor charge, the court may cause such felony complaint to be replaced by or converted to a misdemeanor complaint charging the misdemeanor in question, in the manner prescribed in subparagraphs two and three of paragraph (a) of this subdivision.
(c) An information, a prosecutor's information or a misdemeanor complaint filed pursuant to this section may, pursuant to the ordinary rules of joinder, charge two or more offenses, and it may jointly charge with each offense any two or more defendants originally so charged in the felony complaint;
(d) Upon the filing of an information, a prosecutor's information or a misdemeanor complaint pursuant to this section, the court must dismiss the felony complaint from which such accusatory instrument is derived. It must then arraign the defendant upon the new accusatory instrument and inform him of his rights in connection therewith in the manner provided in section 170.10.
4. Upon making any finding other than that specified in subdivision two, the court must conduct a hearing upon the felony complaint, unless the defendant has waived the same. In the case of such waiver the court must order that the defendant be held for the action of a grand jury.
§ 180.60 Proceedings upon felony complaint; the hearing; conduct thereof.
A hearing upon a felony complaint must be conducted as follows:
1. The district attorney must conduct such hearing on behalf of the people.
2. The defendant may as a matter of right be present at such hearing.
3. The court must read to the defendant the felony complaint and any supporting depositions unless the defendant waives such reading.
4. Each witness, whether called by the people or by the defendant, must, unless he would be authorized to give unsworn evidence at a trial, testify under oath. Each witness, including any defendant testifying in his own behalf, may be cross-examined.
5. The people must call and examine witnesses and offer evidence in support of the charge.
6. The defendant may, as a matter of right, testify in his own behalf.
7. Upon request of the defendant, the court may, as a matter of discretion, permit him to call and examine other witnesses or to produce other evidence in his behalf.
8. Upon such a hearing, only non-hearsay evidence is admissible to demonstrate reasonable cause to believe that the defendant committed a felony; except that reports of experts and technicians in professional and scientific fields and sworn statements of the kinds specified in subdivisions two and three of section 190.30 are admissible to the same extent as in a grand jury proceeding, unless the court determines, upon application of the defendant, that such hearsay evidence is, under the particular circumstances of the case, not sufficiently reliable, in which case the court shall require that the witness testify in person and be subject to cross-examination.
9. The court may, upon application of the defendant, exclude the public from the hearing and direct that no disclosure be made of the proceedings.
10. Such hearing should be completed at one session. In the interest of justice, however, it may be adjourned by the court but, in the absence of a showing of good cause therefor, no such adjournment may be for more than one day.
§ 180.70 Proceedings upon felony complaint; disposition of felony complaint after hearing.
At the conclusion of a hearing, the court must dispose of the felony complaint as follows:
1. If there is reasonable cause to believe that the defendant committed a felony, the court must, except as provided in subdivision three, order that the defendant be held for the action of a grand jury of the appropriate superior court, and it must promptly transmit to such superior court the order, the felony complaint, the supporting depositions and all other pertinent documents. Until such papers are received by the superior court, the action is deemed to be still pending in the local criminal court.
2. If there is not reasonable cause to believe that the defendant committed a felony but there is reasonable cause to believe that he committed an offense other than a felony, the court may, by means of procedures prescribed in subdivision three of section 180.50, reduce the charge to one for such non-felony offense.
3. If there is reasonable cause to believe that the defendant committed a felony in addition to a non-felony offense, the court may, instead of ordering the defendant held for the action of a grand jury as provided in subdivision one, reduce the charge to one for such non-felony offense as provided in subdivision two, if (a) it is satisfied that such reduction is in the interest of justice, and (b) the district attorney consents thereto; provided, however, that the court may not order such reduction where there is reasonable cause to believe the defendant committed a class A felony, other than those defined in article two hundred twenty of the penal law, or any armed felony as defined in subdivision forty-one of section 1.20.
4. If there is not reasonable cause to believe that the defendant committed any offense, the court must dismiss the felony complaint and discharge the defendant from custody if he is in custody, or, if he is at liberty on bail, it must exonerate the bail.
§ 180.75 Proceedings upon felony complaint; juvenile offender.
1. When a juvenile offender or adolescent offender is arraigned before the youth part of a superior court or the most accessible magistrate designated by the appellate division of the supreme court in the applicable department to act as a youth part, the provisions of article seven hundred twenty-two of this chapter shall apply in lieu of the provisions of sections 180.30, 180.50 and 180.70 of this article.
§ 180.80 Proceedings upon felony complaint; release of defendant from custody upon failure of timely disposition.
Upon application of a defendant against whom a felony complaint has been filed with a local criminal court or the youth part of a superior court, and who, since the time of his arrest or subsequent thereto, has been held in custody pending disposition of such felony complaint, and who has been confined in such custody for a period of more than one hundred twenty hours or, in the event that a Saturday, Sunday or legal holiday occurs during such custody, one hundred forty-four hours, without either a disposition of the felony complaint or commencement of a hearing thereon, the court must release him on his own recognizance unless:
1. The failure to dispose of the felony complaint or to commence a hearing thereon during such period of confinement was due to the defendant's request, action or condition, or occurred with his consent; or
2. Prior to the application:
(a) The district attorney files with the court a written certification that an indictment has been voted; or
(b) An indictment or a direction to file a prosecutor's information charging an offense based upon conduct alleged in the felony complaint was filed by a grand jury; or
3. The court is satisfied that 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 disposition of the felony complaint within the prescribed period or rendered such action against the interest of justice.
§ 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.
* ARTICLE 182
ALTERNATE METHOD OF COURT APPEARANCE
Section 182.10 Definition of terms.
182.20 Electronic appearance; general rule.
182.30 Electronic appearance; conditions and limitations.
182.40 Approval by the chief administrator of the courts.
* NB Repealed September 1, 2025
* § 182.10 Definition of terms.
As used in this article:
1. "Independent audio-visual system" means an electronic system for the transmission and receiving of audio and visual signals, encompassing encoded signals, frequency domain multiplexing or other suitable means to preclude the unauthorized reception and decoding of the signals by commercially available television receivers, channel converters, or other available receiving devices.
2. "Electronic appearance" means an appearance in which various participants, including the defendant, are not present in the court, but in which, by means of an independent audio-visual system, (a) all of the participants are simultaneously able to see and hear reproductions of the voices and images of the judge, counsel, defendant, police officer, and any other appropriate participant, and (b) counsel is present with the defendant, or if the defendant waives the presence of counsel on the record, the defendant and his or her counsel are able to see and hear each other and engage in private conversation.
* NB Repealed September 1, 2025
* § 182.20 Electronic appearance; general rule.
1. Notwithstanding any other provision of law and except as provided in section 182.30 of this article, the court, in its discretion, may dispense with the personal appearance of the defendant, except an appearance at a hearing or trial, and conduct an electronic appearance in connection with a criminal action pending in Albany, Bronx, Broome, Erie, Kings, New York, Niagara, Oneida, Onondaga, Ontario, Orange, Putnam, Queens, Richmond, Rockland, Saratoga, St. Lawrence, Seneca, Steuben, Tompkins, Chautauqua, Cattaraugus, Clinton, Essex, Montgomery, Rensselaer, Sullivan, Warren, Westchester, Suffolk, Herkimer, Franklin, Chemung, Schuyler, or Yates county, provided that the chief administrator of the courts has authorized the use of electronic appearance and the defendant, after consultation with counsel, consents on the record. Such consent shall be required at the commencement of each electronic appearance to such electronic appearance.
2. If, for any reason, the court determines on its own motion or on the motion of any party that the conduct of an electronic appearance may impair the legal rights of the defendant, it shall not permit the electronic appearance to proceed. If, for any other articulated reason, either party requests at any time during the electronic appearance that such appearance be terminated, the court shall grant such request and adjourn the proceeding to a date certain. Upon the adjourned date the proceeding shall be recommenced from the point at which the request for termination of the electronic appearance had been granted.
3. The electronic appearance shall be conducted in accordance with rules issued by the chief administrator of the courts.
4. When the defendant makes an electronic appearance, the court stenographer shall record any statements in the same manner as if the defendant had made a personal appearance. No electronic recording of any electronic appearance may be made, viewed or inspected except as may be authorized by the rules issued by the chief administrator of the courts.
* NB Repealed September 1, 2025
* § 182.30 Electronic appearance; conditions and limitations.
The following conditions and limitations apply to all electronic appearances:
1. The defendant may not enter a plea of guilty to, or be sentenced upon a conviction of, a felony.
2. The defendant may not enter a plea of not responsible by reason of mental disease or defect.
3. The defendant may not be committed to the state department of mental hygiene pursuant to article seven hundred thirty of this chapter.
4. The defendant may not enter a plea of guilty to a misdemeanor conditioned upon a promise of incarceration unless such incarceration will be imposed only in the event that the defendant fails to comply with a term or condition imposed under the original sentence.
5. A defendant who has been convicted of a misdemeanor may not be sentenced to a period of incarceration which exceeds the time the defendant has already served when sentence is imposed.
* NB Repealed September 1, 2025
* § 182.40 Approval by the chief administrator of the courts.
1. The appropriate administrative judge shall submit to the chief administrator of the courts a written proposal for the use of electronic appearance in his or her jurisdiction. If the chief administrator of the courts approves the proposal, installation of an independent audio-visual system may begin.
2. Upon completion of the installation of an independent audio-visual system, the commission on cable television shall inspect, test, and examine the independent audio-visual system and certify to the chief administrator of the courts whether the system complies with the definition of an independent audio-visual system and is technically suitable for the conducting of electronic appearances as intended.
3. The chief administrator of the courts shall issue rules governing the use of electronic appearances.
* NB Repealed September 1, 2025
* ARTICLE 185 - ALTERNATE METHOD OF ARRAIGNMENT
Section 185.10 Definition of terms.
185.20 Electronic arraignment.
185.30 Conditions and limitations on electronic arraignment. 185.40 Approval by the chief administrator of the courts.
* NB Expired September 1, 1983
* § 185.10 Definition of terms.
As used in this article:
1. "Independent audio-visual system" shall mean an electronic system for the transmission and receiving of audio and visual signals, encompassing encoded signals, frequency domain multiplexing or other suitable means to preclude the unauthorized reception and decoding of the signals by commercially available television receivers, channel converters, or other available receiving devices.
2. "Electronic arraignment" means an arraignment in which various participants, including the defendant, are not personally present in the court but in which all of the participants are simultaneously able to see and hear reproductions of the voices and images of the judge, counsels, defendant, police officer and any other appropriate participant, by means of an independent audio-visual system. * NB Expired September 1, 1983
* § 185.20 Electronic arraignment.
Notwithstanding the provisions of subdivision nine of section 1.20, sections 110.10, 120.10, 120.40, 120.90, 140.20, 140.27, 140.40, 170.10 and 180.10 of this chapter or any other provision of law as they pertain to a defendant's personal appearance at arraignment, in Suffolk county, the court in its discretion may dispense with the defendant's personal appearance at the arraignment and conduct an electronic arraignment, provided that:
1. The defendant has waived in writing his right to personally appear at his arraignment and has consented to be arraigned by the electronic arraignment process;
2. The district attorney has consented to the electronic arraignment process for the defendant;
3. The personal appearance of the defendant at the arraignment would result in an unreasonable delay in the preliminary proceeding; and
4. The chief administrator of the courts has authorized the use of electronic arraignments for the court, pursuant to the provisions of section 185.40 of this article.
* NB Expired September 1, 1983
* § 185.30 Conditions and limitations on electronic arraignment.
Whenever a person is arraigned by means of an electronic arraignment, the following conditions and limitations shall apply:
1. The defendant may not enter a plea of guilty;
2. The electronic arraignment process may be used only when the accusatory instrument does not charge a felony;
3. No electronic recording of an electronic arraignment may be made, viewed or inspected except as may be authorized by rules of the chief administrator of the courts; and
4. Stenographic recording of the arraignment shall be made to the same extent as if it were an ordinary arraignment rather than an electronic arraignment.
* NB Expired September 1, 1983
* § 185.40 Approval by the chief administrator of the courts.
1. The appropriate administrative judge shall submit to the chief administrator of the courts a written proposal for the use of electronic arraignments for a particular court and the precincts under the jurisdiction of that court. If the chief administrator of the courts approves the proposal, installation of an independent audio-visual system may begin.
2. Upon completion of the installation of an independent audio-visual system, the commission on cable television shall inspect, test and examine the independent audio-visual system and certify to the chief administrator of the courts whether the system complies with the definition of an independent audio-visual system and is technically suitable for the conducting of electronic arraignments as intended.
3. The use by a court of an approved independent audio-visual system for the purpose of authorized electronic arraignments, shall be for a period of two years from the date of authorization by the chief administrator of the courts.
4. The chief administrator of the courts may withdraw approval of the authorization at any time.
* NB Expired September 1, 1983
TITLE I--PRELIMINARY PROCEEDINGS IN SUPERIOR COURT
ARTICLE 190--THE GRAND JURY AND ITS PROCEEDINGS
Section 190.05 Grand jury; definition and general functions.
190.10 Grand jury; for what courts drawn.
190.15 Grand jury; duration of term and discharge.
190.20 Grand jury; formation, organization and other matters preliminary to assumption of duties.
190.25 Grand jury; proceedings and operation in general.
190.30 Grand jury; rules of evidence.
190.32 Videotaped examination; definitions, application, order and procedure.
190.35 Grand jury; definitions of terms.
190.40 Grand jury; witnesses, compulsion of evidence and immunity.
190.45 Grand jury; waiver of immunity.
190.50 Grand jury; who may call witnesses; defendant as witness.
190.52 Grand jury; attorney for witness.
190.55 Grand jury; matters to be heard and examined; duties and authority of district attorney.
190.60 Grand jury; action to be taken.
190.65 Grand jury; when indictment is authorized.
190.70 Grand jury; direction to file prosecutor's information and related matters.
190.71 Grand jury; direction to file request for removal to family court.
190.75 Grand jury; dismissal of charge.
190.80 Grand jury; release of defendant upon failure of timely grand jury action.
190.85 Grand jury; grand jury reports.
190.90 Grand jury; appeal from order concerning grand jury reports.
§ 190.05 Grand jury; definition and general functions.
A grand jury is a body consisting of not less than sixteen nor more than twenty-three persons, impaneled by a superior court and constituting a part of such court, the functions of which are to hear and examine evidence concerning offenses and concerning misconduct, nonfeasance and neglect in public office, whether criminal or otherwise, and to take action with respect to such evidence as provided in section 190.60.
§ 190.10 Grand jury; for what courts drawn.
The appellate division of each judicial department shall adopt rules governing the number and the terms for which grand juries shall be drawn and impaneled by the superior courts within its department; provided, however, that a grand jury may be drawn and impaneled for any extraordinary term of the supreme court upon the order of a justice assigned to hold such term.
§ 190.15 Grand jury; duration of term and discharge.
1. A term of a superior court for which a grand jury has been impaneled remains in existence at least until and including the opening date of the next term of such court for which a grand jury has been designated. Upon such date, or within five days preceding it, the court may, upon declaration of both the grand jury and the district attorney that such grand jury has not yet completed or will be unable to complete certain business before it, extend the term of court and the existence of such grand jury to a specified future date, and may subsequently order further extensions for such purpose.
2. At any time when a grand jury is in recess and no other appropriate grand jury is in existence in the county, the court may, upon application of the district attorney or of a defendant held by a local criminal court for the action of a grand jury, order such grand jury reconvened for the purpose of dealing with a matter requiring grand jury action.
§ 190.20 Grand jury; formation, organization and other matters preliminary to assumption of duties.
1. The mode of selecting grand jurors and of drawing and impaneling grand juries is governed by the judiciary law.
2. Neither the grand jury panel nor any individual grand juror may be challenged, but the court may:
(a) At any time before a grand jury is sworn, discharge the panel and summon another panel if it finds that the original panel does not substantially conform to the requirements of the judiciary law; or
(b) At any time after a grand juror is drawn, refuse to swear him, or discharge him after he has been sworn, upon a finding that he is disqualified from service pursuant to the judiciary law, or incapable of performing his duties because of bias or prejudice, or guilty of misconduct in the performance of his duties such as to impair the proper functioning of the grand jury.
3. After a grand jury has been impaneled, the court must appoint one of the grand jurors as foreman and another to act as foreman during any absence or disability of the foreman. At some time before commencement of their duties, the grand jurors must appoint one of their number as secretary to keep records material to the conduct of the grand jury's business.
4. The grand jurors must be sworn by the court. The oath may be in any form or language which requires the grand jurors to perform their duties faithfully.
5. After a grand jury has been sworn, the court must deliver or cause to be delivered to each grand juror a printed copy of all the provisions of this article, and the court may, in addition, give the grand jurors any oral and written instructions relating to the proper performance of their duties as it deems necessary or appropriate.
6. If two or more grand juries are impaneled at the same court term, the court may thereafter, for good cause, transfer grand jurors from one panel to another, and any grand juror so transferred is deemed to have been sworn as a member of the panel to which he has been transferred.
§ 190.25 Grand jury; proceedings and operation in general.
1. Proceedings of a grand jury are not valid unless at least sixteen of its members are present. The finding of an indictment, a direction to file a prosecutor's information, a decision to submit a grand jury report and every other affirmative official action or decision requires the concurrence of at least twelve members thereof.
2. The foreman or any other grand juror may administer an oath to any witness appearing before the grand jury.
3. Except as provided in subdivision three-a of this section, during the deliberations and voting of a grand jury, only the grand jurors may be present in the grand jury room. During its other proceedings, the following persons, in addition to witnesses, may, as the occasion requires, also be present:
(a) The district attorney;
(b) A clerk or other public servant authorized to assist the grand jury in the administrative conduct of its proceedings;
(c) A stenographer authorized to record the proceedings of the grand jury;
(d) An interpreter. Upon request of the grand jury, the prosecutor must provide an interpreter to interpret the testimony of any witness who does not speak the English language well enough to be readily understood. Such interpreter must, if he has not previously taken the constitutional oath of office, first take an oath before the grand jury that he will faithfully interpret the testimony of the witness and that he will keep secret all matters before such grand jury within his knowledge;
(e) A public servant holding a witness in custody. When a person held in official custody is a witness before a grand jury, a public servant assigned to guard him during his grand jury appearance may accompany him in the grand jury room. Such public servant must, if he has not previously taken the constitutional oath of office, first take an oath before the grand jury that he will keep secret all matters before it within his knowledge.
(f) An attorney representing a witness pursuant to section 190.52 of this chapter while that witness is present.
(g) An operator, as that term is defined in section 190.32 of this chapter, while the videotaped examination of either a special witness or a child witness is being played.
(h) A social worker, rape crisis counselor, psychologist or other professional providing emotional support to a child witness twelve years old or younger, or a social worker or informal caregiver, as provided in subdivision two of section two hundred six of the elder law, for a vulnerable elderly person as provided in subdivision three of section 260.31 of the penal law, who is called to give evidence in a grand jury proceeding concerning a crime defined in article one hundred twenty-one, article one hundred thirty, article two hundred sixty, section 120.10, 125.10, 125.15, 125.20, 125.25, 125.26, 125.27, 255.25, 255.26 or 255.27 of the penal law provided that the district attorney consents. Such support person shall not provide the witness with an answer to any question or otherwise participate in such proceeding and shall first take an oath before the grand jury that he or she will keep secret all matters before such grand jury within his or her knowledge.
3-a. Upon the request of a deaf or hearing-impaired grand juror, the prosecutor shall provide a sign language interpreter for such juror. Such interpreter shall be present during all proceedings of the grand jury which the deaf or hearing-impaired grand juror attends, including deliberation and voting. The interpreter shall, if he or she has not previously taken the constitutional oath of office, first take an oath before the grand jury that he or she will faithfully interpret the testimony of the witnesses and the statements of the prosecutor, judge and grand jurors; keep secret all matters before such grand jury within his or her knowledge; and not seek to influence the deliberations and voting of such grand jury.
4. (a) Grand jury proceedings are secret, and no grand juror, or other person specified in subdivision three of this section or section 215.70 of the penal law, may, except in the lawful discharge of his duties or upon written order of the court, disclose the nature or substance of any grand jury testimony, evidence, or any decision, result or other matter attending a grand jury proceeding. For the purpose of assisting the grand jury in conducting its investigation, evidence obtained by a grand jury may be independently examined by the district attorney, members of his staff, police officers specifically assigned to the investigation, and such other persons as the court may specifically authorize. Such evidence may not be disclosed to other persons without a court order. Nothing contained herein shall prohibit a witness from disclosing his own testimony.
(b) When a district attorney obtains evidence during a grand jury proceeding which provides reasonable cause to suspect that a child has been abused or maltreated, as those terms are defined by section ten hundred twelve of the family court act, he must apply to the court supervising the grand jury for an order permitting disclosure of such evidence to the state central register of child abuse and maltreatment. A district attorney need not apply to the court for such order if he has previously made or caused a report to be made to the state central register of child abuse and maltreatment pursuant to section four hundred thirteen of the social services law and the evidence obtained during the grand jury proceeding, or substantially similar information, was included in such report. The district attorney's application to the court shall be made ex parte and in camera. The court must grant the application and permit the district attorney to disclose the evidence to the state central register of child abuse and maltreatment unless the court finds that such disclosure would jeopardize the life or safety of any person or interfere with a continuing grand jury proceeding.
5. The grand jury is the exclusive judge of the facts with respect to any matter before it.
6. The legal advisors of the grand jury are the court and the district attorney, and the grand jury may not seek or receive legal advice from any other source. Where necessary or appropriate, the court or the district attorney, or both, must instruct the grand jury concerning the law with respect to its duties or any matter before it, and such instructions must be recorded in the minutes.
§ 190.30 Grand jury; rules of evidence.
1. Except as otherwise provided in this section, the provisions of article sixty, governing rules of evidence and related matters with respect to criminal proceedings in general, are, where appropriate, applicable to grand jury proceedings.
2. A report or a copy of a report made by a public servant or by a person employed by a public servant or agency who is a physicist, chemist, coroner or medical examiner, firearms identification expert, examiner of questioned documents, fingerprint technician, or an expert or technician in some comparable scientific or professional field, concerning the results of an examination, comparison or test performed by him in connection with a case which is the subject of a grand jury proceeding, may, when certified by such person as a report made by him or as a true copy thereof, be received in such grand jury proceeding as evidence of the facts stated therein.
2-a. When the electronic transmission of a certified report, or certified copy thereof, of the kind described in subdivision two or three-a of this section or a sworn statement or copy thereof, of the kind described in subdivision three of this section results in a written document, such written document may be received in such grand jury proceeding provided that: (a) a transmittal memorandum completed by the person sending the report contains a certification that the report has not been altered and a description of the report specifying the number of pages; and (b) the person who receives the electronically transmitted document certifies that such document and transmittal memorandum were so received; and (c) a certified report or a certified copy or sworn statement or sworn copy thereof is filed with the court within twenty days following arraignment upon the indictment; and (d) where such written document is a sworn statement or sworn copy thereof of the kind described in subdivision three of this section, such sworn statement or sworn copy thereof is also provided to the defendant or his counsel within twenty days following arraignment upon the indictment.
3. A written or oral statement, under oath, by a person attesting to one or more of the following matters may be received in such grand jury proceeding as evidence of the facts stated therein:
(a) that person's ownership or lawful custody of, or license to occupy, premises, as defined in section 140.00 of the penal law, and of the defendant's lack of license or privilege to enter or remain thereupon;
(b) that person's ownership of, or possessory right in, property, the nature and monetary amount of any damage thereto and the defendant's lack of right to damage or tamper with the property;
(c) that person's ownership or lawful custody of, or license to possess property, as defined in section 155.00 of the penal law, including an automobile or other vehicle, its value and the defendant's lack of superior or equal right to possession thereof;
(d) that person's ownership of a vehicle and the absence of his consent to the defendant's taking, operating, exercising control over or using it;
(e) that person's qualifications as a dealer or other expert in appraising or evaluating a particular type of property, his expert opinion as to the value of a certain item or items of property of that type, and the basis for his opinion;
(f) that person's identity as an ostensible maker, drafter, drawer, endorser or other signator of a written instrument and its falsity within the meaning of section 170.00 of the penal law;
(g) that person's ownership of, or possessory right in, a credit card account number or debit card account number, and the defendant's lack of superior or equal right to use or possession thereof.
Provided, however, that no such statement shall be admitted when an adversarial examination of such person has been previously ordered pursuant to subdivision 8 of section 180.60, unless a transcript of such examination is admitted.
3-a. A sex offender registration form, sex offender registration continuation/supplemental form, sex offender registry address verification form, sex offender change of address form or a copy of such form maintained by the division of criminal justice services concerning an individual who is the subject of a grand jury proceeding, may, when certified by a person designated by the commissioner of the division of criminal justice services as the person to certify such records, as a true copy thereof, be received in such grand jury proceeding as evidence of the facts stated therein.
4. An examination of a child witness or a special witness by the district attorney videotaped pursuant to section 190.32 of this chapter may be received in evidence in such grand jury proceeding as the testimony of such witness.
5. Nothing in subdivisions two, three or four of this section shall be construed to limit the power of the grand jury to cause any person to be called as a witness pursuant to subdivision three of section 190.50.
6. Wherever it is provided in article sixty that the court in a criminal proceeding must rule upon the competency of a witness to testify or upon the admissibility of evidence, such ruling may in an equivalent situation in a grand jury proceeding, be made by the district attorney.
7. Wherever it is provided in article sixty that a court presiding at a jury trial must instruct the jury with respect to the significance, legal effect or evaluation of evidence, the district attorney, in an equivalent situation in a grand jury proceeding, may so instruct the grand jury.
8. (a) A business record may be received in such grand jury proceedings as evidence of the following facts and similar facts stated therein:
(i) a person's use of, subscription to and charges and payments for communication equipment and services including but not limited to equipment or services provided by telephone companies and internet service providers, but not including recorded conversations or images communicated thereby; and
(ii) financial transactions, and a person's ownership or possessory interest in any account, at a bank, insurance company, brokerage, exchange or banking organization as defined in section two of the banking law.
(b) Any business record offered for consideration by a grand jury pursuant to paragraph (a) of this subdivision must be accompanied by a written statement, under oath, that (i) contains a list or description of the records it accompanies, (ii) attests in substance that the person making the statement is a duly authorized custodian of the records or other employee or agent of the business who is familiar with such records, and (iii) attests in substance that such records were made in the regular course of business and that it was the regular course of such business to make such records at the time of the recorded act, transaction, occurrence or event, or within a reasonable time thereafter. Such written statement may also include a statement identifying the name and job description of the person making the statement, specifying the matters set forth in subparagraph (ii) of this paragraph and attesting that the business has made a diligent search and does not possess a particular record or records addressing a matter set forth in paragraph (a) of this subdivision, and such statement may be received at grand jury proceedings as evidence of the fact that the business does not possess such record or records. When records of a business are accompanied by more than one sworn written statement of its employees or agents, such statements may be considered together in determining the admissibility of the records under this subdivision. For the purpose of this subdivision, the term "business records" does not include any records prepared by law enforcement agencies or prepared by any entity in anticipation of litigation.
(c) Any business record offered to a grand jury pursuant to paragraph (a) of this subdivision that includes material beyond that described in such paragraph (a) shall be redacted to exclude such additional material, or received subject to a limiting instruction that the grand jury shall not consider such additional material in support of any criminal charge.
(d) No such records shall be admitted when an adversarial examination of such a records custodian or other employee of such business who was familiar with such records has been previously ordered pursuant to subdivision eight of section 180.60 of this chapter, unless a transcript of such examination is admitted.
(e) Nothing in this subdivision shall affect the admissibility of business records in the grand jury on any basis other than that set forth in this subdivision.
§ 190.32 Videotaped examination; definitions, application, order and procedure.
1. Definitions. As used in this section:
(a) "Child witness" means a person twelve years old or less whom the people intend to call as witness in a grand jury proceeding to give evidence concerning any crime defined in article one hundred thirty or two hundred sixty or section 255.25, 255.26 or 255.27 of the penal law of which the person was a victim.
(b) "Special witness" means a person whom the people intend to call as a witness in a grand jury proceeding and who is either:
(i) Unable to attend and testify in person in the grand jury proceeding because the person is either physically ill or incapacitated; or
(ii) More than twelve years old and who is likely to suffer very severe emotional or mental stress if required to testify in person concerning any crime defined in article one hundred thirty or two hundred sixty or section 255.25, 255.26 or 255.27 of the penal law to which the person was a witness or of which the person was a victim.
(c) "Operator" means a person employed by the district attorney who operates the video camera to record the examination of a child witness or a special witness.
2. In lieu of requiring a witness who is a child witness to appear in person and give evidence in a grand jury proceeding, the district attorney may cause the examination of such witness to be videotaped in accordance with the provisions of subdivision five of this section.
3. Whenever the district attorney has reason to believe that a witness is a special witness, he may make an ex parte application to the court for an order authorizing the videotaping of an examination of such special witness and the subsequent introduction in evidence in a grand jury proceeding of that videotape in lieu of the live testimony of such special witness. The application must be in writing, must state the grounds of the application and must contain sworn allegations of fact, whether of the district attorney or another person or persons, supporting such grounds. Such allegations may be based upon personal knowledge of the deponent or upon information and belief, provided, that in the latter event, the sources of such information and the grounds for such belief are stated.
4. If the court is satisfied that a witness is a special witness, it shall issue an order authorizing the videotaping of such special witness in accordance with the provisions of subdivision five of this section. The court order and the application and all supporting papers shall not be disclosed to any person except upon further court order.
5. The videotaping of an examination either of a child witness or a special witness shall proceed as follows:
(a) An examination of a child witness or a special witness which is to be videotaped pursuant to this section may be conducted anywhere and at any time provided that the operator begins the videotape by recording a statement by the district attorney of the date, time and place of the examination. In addition, the district attorney shall identify himself, the operator and all other persons present.
(b) An accurate clock with a sweep second hand shall be placed next to or behind the witness in such position as to enable the operator to videotape the clock and the witness together during the entire examination. In the alternative, a date and time generator shall be used to superimpose the day, hour, minute and second over the video portion of the recording during the entire examination.
(c) A social worker, rape crisis counselor, psychologist or other professional providing emotional support to a child witness or to a special witness, as defined in subparagraph (ii) of paragraph (b) of subdivision one of this section, or any of those persons enumerated in paragraphs (a), (b), (c), (d), (e), (f) and (g) of subdivision three of section 190.25 may be present during the videotaping except that a doctor, nurse or other medical assistant also may be present if required by the attendant circumstances. Each person present, except the witness, must, if he has not previously taken a constitutional oath of office or an oath that he will keep secret all matters before a grand jury, must take an oath on the record that he will keep secret the videotaped examination.
(d) The district attorney shall state for the record the name of the witness, and the caption and the grand jury number, if any, of the case. If the witness to be examined is a child witness, the date of the witness' birth must be recorded. If the witness to be examined is a special witness, the date of the order authorizing the videotaped examination and the name of the justice who issued the order shall be recorded.
(e) If the witness will give sworn testimony, the administration of the oath must be recorded. If the witness will give unsworn testimony, a statement that the testimony is not under oath must be recorded.
(f) If the examination requires the use of more than one tape, the operator shall record a statement of the district attorney at the end of each tape declaring that such tape has ended and referring to the succeeding tape. At the beginning of such succeeding tape, the operator shall record a statement of the district attorney identifying himself, the witness being examined and the number of tapes which have been used to record the examination of such witness. At the conclusion of the examination the operator shall record a statement of the district attorney certifying that the recording has been completed, the number of tapes on which the recording has been made and that such tapes constitute a complete and accurate record of the examination of the witness.
(g) A videotape of an examination conducted pursuant to this section shall not be edited unless upon further order of the court.
6. When the videotape is introduced in evidence and played in the grand jury, the grand jury stenographer shall record the examination in the same manner as if the witness had testified in person.
7. Custody of the videotape shall be maintained in the same manner as custody of the grand jury minutes.
§ 190.35 Grand jury; definitions of terms.
The term definitions contained in section 50.10 are applicable to sections 190.40, 190.45 and 190.50.
§ 190.40 Grand jury; witnesses, compulsion of evidence and immunity.
1. Every witness in a grand jury proceeding must give any evidence legally requested of him regardless of any protest or belief on his part that it may tend to incriminate him.
2. A witness who gives evidence in a grand jury proceeding receives immunity unless:
(a) He has effectively waived such immunity pursuant to section 190.45; or
(b) Such evidence is not responsive to any inquiry and is gratuitously given or volunteered by the witness with knowledge that it is not responsive.
(c) The evidence given by the witness consists only of books, papers, records or other physical evidence of an enterprise, as defined in subdivision one of section 175.00 of the penal law, the production of which is required by a subpoena duces tecum, and the witness does not possess a privilege against self-incrimination with respect to the production of such evidence. Any further evidence given by the witness entitles the witness to immunity except as provided in subparagraph (a) and (b) of this subdivision.
§ 190.45 Grand jury; waiver of immunity.
1. A waiver of immunity is a written instrument subscribed by a person who is or is about to become a witness in a grand jury proceeding, stipulating that he waives his privilege against self-incrimination and any possible or prospective immunity to which he would otherwise become entitled, pursuant to section 190.40, as a result of giving evidence in such proceeding.
2. A waiver of immunity is not effective unless and until it is sworn to before the grand jury conducting the proceeding in which the subscriber has been called as a witness.
3. A person who is called by the people as a witness in a grand jury proceeding and requested by the district attorney to subscribe and swear to a waiver of immunity before giving evidence has a right to confer with counsel before deciding whether he will comply with such request, and, if he desires to avail himself of such right, he must be accorded a reasonable time in which to obtain and confer with counsel for such purpose. The district attorney must inform the witness of all such rights before obtaining his execution of such a waiver of immunity. Any waiver obtained, subscribed or sworn to in violation of the provisions of this subdivision is invalid and ineffective.
4. If a grand jury witness subscribes and swears to a waiver of immunity upon a written agreement with the district attorney that the interrogation will be limited to certain specified subjects, matters or areas of conduct, and if after the commencement of his testimony he is interrogated and testifies concerning another subject, matter or area of conduct not included in such written agreement, he receives immunity with respect to any further testimony which he may give concerning such other subject, matter or area of conduct and the waiver of immunity is to that extent ineffective.
§ 190.50 Grand jury; who may call witnesses; defendant as witness.
1. Except as provided in this section, no person has a right to call a witness or appear as a witness in a grand jury proceeding.
2. The people may call as a witness in a grand jury proceeding any person believed by the district attorney to possess relevant information or knowledge.
3. The grand jury may cause to be called as a witness any person believed by it to possess relevant information or knowledge. If the grand jury desires to hear any such witness who was not called by the people, it may direct the district attorney to issue and serve a subpoena upon such witness, and the district attorney must comply with such direction. At any time after such a direction, however, or at any time after the service of a subpoena pursuant to such a direction and before the return date thereof, the people may apply to the court which impaneled the grand jury for an order vacating or modifying such direction or subpoena on the ground that such is in the public interest. Upon such application, the court may in its discretion vacate the direction or subpoena, attach reasonable conditions thereto, or make other appropriate qualification thereof.
4. Notwithstanding the provisions of subdivision three, the district attorney may demand that any witness thus called at the instance of the grand jury sign a waiver of immunity pursuant to section 190.45 before being sworn, and upon such demand no oath may be administered to such witness unless and until he complies therewith.
5. Although not called as a witness by the people or at the instance of the grand jury, a person has a right to be a witness in a grand jury proceeding under circumstances prescribed in this subdivision:
(a) When a criminal charge against a person is being or is about to be or has been submitted to a grand jury, such person has a right to appear before such grand jury as a witness in his own behalf if, prior to the filing of any indictment or any direction to file a prosecutor's information in the matter, he serves upon the district attorney of the county a written notice making such request and stating an address to which communications may be sent. The district attorney is not obliged to inform such a person that such a grand jury proceeding against him is pending, in progress or about to occur unless such person is a defendant who has been arraigned in a local criminal court upon a currently undisposed of felony complaint charging an offense which is a subject of the prospective or pending grand jury proceeding. In such case, the district attorney must notify the defendant or his attorney of the prospective or pending grand jury proceeding and accord the defendant a reasonable time to exercise his right to appear as a witness therein;
(b) Upon service upon the district attorney of a notice requesting appearance before a grand jury pursuant to paragraph (a), the district attorney must notify the foreman of the grand jury of such request, and must subsequently serve upon the applicant, at the address specified by him, a notice that he will be heard by the grand jury at a given time and place. Upon appearing at such time and place, and upon signing and submitting to the grand jury a waiver of immunity pursuant to section 190.45, such person must be permitted to testify before the grand jury and to give any relevant and competent evidence concerning the case under consideration. Upon giving such evidence, he is subject to examination by the people.
(c) Any indictment or direction to file a prosecutor's information obtained or filed in violation of the provisions of paragraph (a) or (b) is invalid and, upon a motion made pursuant to section 170.50 or section 210.20, must be dismissed; provided that a motion based upon such ground must be made not more than five days after the defendant has been arraigned upon the indictment or, as the case may be, upon the prosecutor's information resulting from the grand jury's direction to file the same. If the contention is not so asserted in timely fashion, it is waived and the indictment or prosecutor's information may not thereafter be challenged on such ground.
6. A defendant or person against whom a criminal charge is being or is about to be brought in a grand jury proceeding may request the grand jury, either orally or in writing, to cause a person designated by him to be called as a witness in such proceeding. The grand jury may as a matter of discretion grant such request and cause such witness to be called pursuant to subdivision three.
7. Where a subpoena is made pursuant to this section, all papers and proceedings relating to the subpoena and any motion to quash, fix conditions, modify or compel compliance shall be kept secret and not disclosed to the public by any public officer or public employee or any other individual described in section 215.70 of the penal law. This subdivision shall not apply where the person subpoenaed and the prosecutor waive the provisions of this subdivision.
This subdivision shall not prevent the publication of decisions and orders made in connection with such proceedings or motions, provided the caption and content of the decision are written or altered by the court to reasonably preclude identification of the person subpoenaed.
§ 190.52 Grand jury; attorney for witness.
1. Any person who appears as a witness and has signed a waiver of immunity in a grand jury proceeding, has a right to an attorney as provided in this section. Such a witness may appear with a retained attorney, or if he is financially unable to obtain counsel, an attorney who shall be assigned by the superior court which impaneled the grand jury. Such assigned attorney shall be assigned pursuant to the same plan and in the same manner as counsel are provided to persons charged with crime pursuant to section seven hundred twenty-two of the county law.
2. The attorney for such witness may be present with the witness in the grand jury room. The attorney may advise the witness, but may not otherwise take any part in the proceeding.
3. The superior court which impaneled the grand jury shall have the same power to remove an attorney from the grand jury room as such court has with respect to an attorney in a courtroom.
§ 190.55 Grand jury; matters to be heard and examined; duties and authority of district attorney.
1. A grand jury may hear and examine evidence concerning the alleged commission of any offense prosecutable in the courts of the county, and concerning any misconduct, nonfeasance or neglect in public office by a public servant, whether criminal or otherwise.
2. District attorneys are required or authorized to submit evidence to grand juries under the following circumstances:
(a) A district attorney must submit to a grand jury evidence concerning a felony allegedly committed by a defendant who, on the basis of a felony complaint filed with a local criminal court of the county, has been held for the action of a grand jury of such county, except where indictment has been waived by the defendant pursuant to article one hundred ninety-five.
(b) A district attorney must submit to a grand jury evidence concerning a misdemeanor allegedly committed by a defendant who has been charged therewith by a local criminal court accusatory instrument, in any case where a superior court of the county has, pursuant to subdivision one of section 170.25, ordered that such misdemeanor charge be prosecuted by indictment in a superior court.
(c) A district attorney may submit to a grand jury any available evidence concerning an offense prosecutable in the courts of the county, or concerning misconduct, nonfeasance or neglect in public office by a public servant, whether criminal or otherwise.
§ 190.60 Grand jury; action to be taken.
After hearing and examining evidence as prescribed in section 190.55, a grand jury may:
1. Indict a person for an offense, as provided in section 190.65;
2. Direct the district attorney to file a prosecutor's information with a local criminal court, as provided in section 190.70;
3. Direct the district attorney to file a request for removal to the family court, as provided in section 190.71 of this article.
4. Dismiss the charge before it, as provided in section 190.75;
5. Submit a grand jury report, as provided in section 190.85.
§ 190.65 Grand jury; when indictment is authorized.
1. Subject to the rules prescribing the kinds of offenses which may be charged in an indictment, a grand jury may indict a person for an offense when (a) the evidence before it is legally sufficient to establish that such person committed such offense provided, however, such evidence is not legally sufficient when corroboration that would be required, as a matter of law, to sustain a conviction for such offense is absent, and (b) competent and admissible evidence before it provides reasonable cause to believe that such person committed such offense.
2. The offense or offenses for which a grand jury may indict a person in any particular case are not limited to that or those which may have been designated, at the commencement of the grand jury proceeding, to be the subject of the inquiry; and even in a case submitted to it upon a court order, pursuant to the provisions of section 170.25, directing that a misdemeanor charge pending in a local criminal court be prosecuted by indictment, the grand jury may indict the defendant for a felony if the evidence so warrants.
3. Upon voting to indict a person, a grand jury must, through its foreman or acting foreman, file an indictment with the court by which it was impaneled.
§ 190.70 Grand jury; direction to file prosecutor's information and related matters.
1. Except in a case submitted to it pursuant to the provisions of section 170.25, a grand jury may direct the district attorney to file in a local criminal court a prosecutor's information charging a person with an offense other than a felony when (a) the evidence before it is legally sufficient to establish that such person committed such offense, and (b) competent and admissible evidence before it provides reasonable cause to believe that such person committed such offense. In such case, the grand jury must, through its foreman or acting foreman, file such direction with the court by which it was impaneled.
2. Such direction must be signed by the foreman or acting foreman. It must contain a plain and concise statement of the conduct constituting the offense to be charged, equivalent in content and precision to the factual statement required to be contained in an indictment pursuant to subdivision seven of section 200.50. Subject to the rules prescribed in sections 200.20 and 200.40 governing joinder in a single indictment of multiple offenses and multiple defendants, such grand jury direction may, where appropriate, specify multiple offenses of less than felony grade and multiple defendants, and may direct that the prospective prosecutor's information charge a single defendant with multiple offenses, or multiple defendants jointly with either a single offense or multiple offenses.
3. Upon the filing of such grand jury direction, the court must, unless such direction is insufficient on its face, issue an order approving such direction and ordering the district attorney to file such a prosecutor's information in a designated local criminal court having trial jurisdiction of the offense or offenses in question.
§ 190.71 Grand jury; direction to file request for removal to family court.
(a) Except as provided in subdivision six of section 200.20 of this chapter, a grand jury may not indict (i) a person thirteen years of age for any conduct or crime other than conduct constituting a crime defined in subdivisions one and two of section 125.25 (murder in the second degree) or such conduct as a sexually motivated felony, where authorized pursuant to section 130.91 of the penal law; (ii) a person fourteen or fifteen years of age for any conduct or crime other than conduct constituting a crime defined in subdivisions one and two of section 125.25 (murder in the second degree) and in subdivision three of such section provided that the underlying crime for the murder charge is one for which such person is criminally responsible; 135.25 (kidnapping in the first degree); 150.20 (arson in the first degree); subdivisions one and two of section 120.10 (assault in the first degree); 125.20 (manslaughter in the first degree); subdivisions one and two of section 130.35 (rape in the first degree); subdivisions one and two of section 130.50 (criminal sexual act in the first degree); 130.70 (aggravated sexual abuse in the first degree); 140.30 (burglary in the first degree); subdivision one of section 140.25 (burglary in the second degree); 150.15 (arson in the second degree); 160.15 (robbery in the first degree); subdivision two of section 160.10 (robbery in the second degree) of the penal law; subdivision four of section 265.02 of the penal law, where such firearm is possessed on school grounds, as that phrase is defined in subdivision fourteen of section 220.00 of the penal law; or section 265.03 of the penal law, where such machine gun or such firearm is possessed on school grounds, as that phrase is defined in subdivision fourteen of section 220.00 of the penal law; or defined in the penal law as an attempt to commit murder in the second degree or kidnapping in the first degree, or such conduct as a sexually motivated felony, where authorized pursuant to section 130.91 of the penal law.
(b) A grand jury may vote to file a request to remove a charge to the family court if it finds that a person sixteen, or commencing October first, two thousand nineteen, seventeen years of age or younger did an act which, if done by a person over the age of sixteen, or commencing October first, two thousand nineteen, seventeen, would constitute a crime provided (1) such act is one for which it may not indict; (2) it does not indict such person for a crime; and (3) the evidence before it is legally sufficient to establish that such person did such act and competent and admissible evidence before it provides reasonable cause to believe that such person did such act.
(c) Upon voting to remove a charge to the family court pursuant to subdivision (b) of this section, the grand jury must, through its foreman or acting foreman, file a request to transfer such charge to the family court. Such request shall be filed with the court by which it was impaneled. It must (1) allege that a person named therein did any act which, if done by a person over the age of sixteen, would constitute a crime; (2) specify the act and the time and place of its commission; and (3) be signed by the foreman or the acting foreman.
(d) Upon the filing of such grand jury request, the court must, unless such request is improper or insufficient on its face, issue an order approving such request and direct that the charge be removed to the family court in accordance with the provisions of article seven hundred twenty-five of this chapter.
§ 190.75 Grand jury; dismissal of charge.
1. If upon a charge that a designated person committed a crime, either (a) the evidence before the grand jury is not legally sufficient to establish that such person committed such crime or any other offense, or (b) the grand jury is not satisfied that there is reasonable cause to believe that such person committed such crime or any other offense, it must dismiss the charge. In such case, the grand jury must, through its foreman or acting foreman, file its finding of dismissal with the court by which it was impaneled.
2. If the defendant was previously held for the action of the grand jury by a local criminal court, the superior court to which such dismissal is presented must order the defendant released from custody if he is in the custody of the sheriff, or, if he is at liberty on bail, it must exonerate the bail.
3. When a charge has been so dismissed, it may not again be submitted to a grand jury unless the court in its discretion authorizes or directs the people to resubmit such charge to the same or another grand jury. If in such case the charge is again dismissed, it may not again be submitted to a grand jury.
4. Whenever all charges against a designated person have been so dismissed, the district attorney must within ninety days of the filing of the finding of such dismissal, notify that person of the dismissal by regular mail to his last known address unless resubmission has been permitted pursuant to subdivision three of this section or an order of postponement of such service is obtained upon a showing of good cause and exigent circumstances.
§ 190.80 Grand jury; release of defendant upon failure of timely grand jury action.
Upon application of a defendant who on the basis of a felony complaint has been held by a local criminal court for the action of a grand jury, and who, at the time of such order or subsequent thereto, has been committed to the custody of the sheriff pending such grand jury action, and who has been confined in such custody for a period of more than forty-five days, or, in the case of a juvenile offender or adolescent offender, thirty days, without the occurrence of any grand jury action or disposition pursuant to subdivision one, two or three of section 190.60, the superior court by which such grand jury was or is to be impaneled 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.
§ 190.85 Grand jury; grand jury reports.
1. The grand jury may submit to the court by which it was impaneled, a report:
(a) Concerning misconduct, non-feasance or neglect in public office by a public servant as the basis for a recommendation of removal or disciplinary action; or
(b) Stating that after investigation of a public servant it finds no misconduct, non-feasance or neglect in office by him provided that such public servant has requested the submission of such report; or
(c) Proposing recommendations for legislative, executive or administrative action in the public interest based upon stated findings.
2. The court to which such report is submitted shall examine it and the minutes of the grand jury and, except as otherwise provided in subdivision four, shall make an order accepting and filing such report as a public record only if the court is satisfied that it complies with the provisions of subdivision one and that:
(a) The report is based upon facts revealed in the course of an investigation authorized by section 190.55 and is supported by the preponderance of the credible and legally admissible evidence; and
(b) When the report is submitted pursuant to paragraph (a) of subdivision one, that each person named therein was afforded an opportunity to testify before the grand jury prior to the filing of such report, and when the report is submitted pursuant to paragraph (b) or (c) of subdivision one, it is not critical of an identified or identifiable person.
3. The order accepting a report pursuant to paragraph (a) of subdivision one, and the report itself, must be sealed by the court and may not be filed as a public record, or be subject to subpoena or otherwise be made public until at least thirty-one days after a copy of the order and the report are served upon each public servant named therein, or if an appeal is taken pursuant to section 190.90, until the affirmance of the order accepting the report, or until reversal of the order sealing the report, or until dismissal of the appeal of the named public servant by the appellate division, whichever occurs later. Such public servant may file with the clerk of the court an answer to such report, not later than twenty days after service of the order and report upon him. Such an answer shall plainly and concisely state the facts and law constituting the defense of the public servant to the charges in said report, and, except for those parts of the answer which the court may determine to be scandalously or prejudicially and unnecessarily inserted therein, shall become an appendix to the report. Upon the expiration of the time set forth in this subdivision, the district attorney shall deliver a true copy of such report, and the appendix if any, for appropriate action, to each public servant or body having removal or disciplinary authority over each public servant named therein.
4. Upon the submission of a report pursuant to subdivision one, if the court finds that the filing of such report as a public record, may prejudice fair consideration of a pending criminal matter, it must order such report sealed and such report may not be subject to subpoena or public inspection during the pendency of such criminal matter, except upon order of the court.
5. Whenever the court to which a report is submitted pursuant to paragraph (a) of subdivision one is not satisfied that the report complies with the provisions of subdivision two, it may direct that additional testimony be taken before the same grand jury, or it must make an order sealing such report, and the report may not be filed as a public record, or be subject to subpoena or otherwise be made public.
§ 190.90 Grand jury; appeal from order concerning grand jury reports.
1. When a court makes an order accepting a report of a grand jury pursuant to paragraph (a) of subdivision one of section 190.85, any public servant named therein may appeal the order; and when a court makes an order sealing a report of a grand jury pursuant to subdivision five of section 190.85, the district attorney or other attorney designated by the grand jury may appeal the order.
2. When a court makes an order sealing a report of a grand jury pursuant to subdivision five of section 190.85, the district attorney or other attorney designated by the grand jury may, within ten days after service of a copy of the order and report upon each public servant named in the report, appeal the order to the appellate division of the department in which the order was made, by filing in duplicate a notice of appeal from the order with the clerk of the court in which the order was made and by serving a copy of such notice of appeal upon each such public servant. Notwithstanding any contrary provision of section 190.85, a true copy of the report of the grand jury shall be served, together with such notice of appeal, upon each such public servant.
3. The mode of and time for perfecting an appeal pursuant to this section, and the mode of and procedure for the argument thereof, are determined by the rules of the appellate division of the department in which the appeal is brought. Such rules shall prescribe the matters referred to in subdivision one of section 460.70 and in section 460.80, except that such appeal is a preferred cause and the appellate division of each department shall promulgate rules to effectuate such preference.
4. The record and all other presentations on appeal shall remain sealed, except that upon reversal of the order sealing the report or dismissal of the appeal of the named public servant by the appellate division, the report of the grand jury, with the appendix, if any, shall be filed as a public record as provided in subdivision three of section 190.85.
5. The procedure provided for in this section shall be the exclusive manner of reviewing an order made pursuant to section 190.85 and the appellate division of the supreme court shall be the sole court having jurisdiction of such an appeal. The order of the appellate division finally determining such appeal shall not be subject to review in any other court or proceeding.
6. The grand jury in an appeal pursuant to this section shall be represented by the district attorney unless the report relates to him or his office, in which event the grand jury may designate another attorney.
ARTICLE 195 WAIVER OF INDICTMENT
Section 195.10 Waiver of indictment; in general.
195.20 Waiver of indictment; written instrument.
195.30 Waiver of indictment; approval of waiver by the court.
195.40 Waiver of indictment; filing of superior court information.
§ 195.10 Waiver of indictment; in general.
1. A defendant may waive indictment and consent to be prosecuted by superior court information when:
(a) a local criminal court has held the defendant for the action of a grand jury; and
(b) the defendant is not charged with a class A felony punishable by death or life imprisonment; and
(c) the district attorney consents to the waiver.
2. A defendant may waive indictment pursuant to subdivision one in either:
(a) the local criminal court in which the order was issued holding the defendant for action of a grand jury, at the time such order is issued; or
(b) the appropriate superior court, at any time prior to the filing of an indictment by the grand jury.
§ 195.20 Waiver of indictment; written instrument.
A waiver of indictment shall be evidenced by a written instrument, which shall contain the name of the court in which it is executed, the title of the action, and the name, date and approximate time and place of each offense to be charged in the superior court information to be filed by the district attorney pursuant to section 195.40. The offenses named may include any offense for which the defendant was held for action of a grand jury and any offense or offenses properly joinable therewith pursuant to sections 200.20 and 200.40. The written waiver shall also contain a statement by the defendant that he is aware that:
(a) under the constitution of the state of New York he has the right to be prosecuted by indictment filed by a grand jury;
(b) he waives such right and consents to be prosecuted by superior court information to be filed by the district attorney;
(c) the superior court information to be filed by the district attorney will charge the offenses named in the written waiver; and
(d) the superior court information to be filed by the district attorney will have the same force and effect as an indictment filed by a grand jury.
The written waiver shall be signed by the defendant in open court in the presence of his attorney. The consent of the district attorney shall be endorsed thereon.
§ 195.30 Waiver of indictment; approval of waiver by the court.
The court shall determine whether the waiver of indictment complies with the provisions of sections 195.10 and 195.20. If satisfied that the waiver complies with such provisions, the court shall approve the waiver and execute a written order to that effect. When the waiver is approved by a local criminal court, the local criminal court shall promptly transmit to the appropriate superior court the written waiver and order approving the waiver, along with all other documents pertinent to the action. Until such papers are received by the superior court, the action is deemed to be pending in the local criminal court.
§ 195.40 Waiver of indictment; filing of superior court information.
When indictment is waived in a superior court the district attorney shall file a superior court information in such court at the time the waiver is executed. When indictment is waived in a local criminal court the district attorney shall file a superior court information in the appropriate superior court within ten days of the execution of the court order approving the waiver. Upon application of a defendant whose waiver of indictment has been approved by the court, and who, at the time of such approval 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 ten days from the date of approval without the filing by the district attorney of a superior court information, the superior court must release him on his own recognizance unless:
(a) The failure of the district attorney to file a superior court information during such period of confinement was due to 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 the filing of the superior court information within the prescribed period.
ARTICLE 200
INDICTMENT AND RELATED INSTRUMENTS
Section 200.10 Indictment; definition.
200.15 Superior court information; definition.
200.20 Indictment; what offenses may be charged; joinder of offenses and consolidation of indictments.
200.30 Indictment; duplicitous counts prohibited.
200.40 Indictment; joinder of defendants and consolidation of indictments against different defendants.
200.50 Indictment; form and content.
200.60 Indictment; allegations of previous convictions prohibited.
200.61 Indictment; special information for operators of for-hire vehicles.
200.62 Indictment; special information for child sexual assault offender.
200.63 Indictment; special information for aggravated family offense.
200.65 Indictment; special information for enterprise corruption and criminal possession or use of a biological weapon or chemical weapon.
200.70 Indictment; amendment of.
200.80 Indictment; superseding indictments.
200.95 Indictment; bill of particulars.
§ 200.10 Indictment; definition.
An indictment is a written accusation by a grand jury, filed with a superior court, charging a person, or two or more persons jointly, with the commission of a crime, or with the commission of two or more offenses at least one of which is a crime. Except as used in Article 190, the term indictment shall include a superior court information.
§ 200.15 Superior court information; definition.
A superior court information is a written accusation by a district attorney filed in a superior court pursuant to article one hundred ninety-five, charging a person, or two or more persons jointly, with the commission of a crime, or with the commission of two or more offenses, at least one of which is a crime. A superior court information may include any offense for which the defendant was held for action of a grand jury and any offense or offenses properly joinable therewith pursuant to sections 200.20 and 200.40, but shall not include an offense not named in the written waiver of indictment executed pursuant to section 195.20. A superior court information has the same force and effect as an indictment and all procedures and provisions of law applicable to indictments are also applicable to superior court informations, except where otherwise expressly provided.
§ 200.20 Indictment; what offenses may be charged; joinder of offenses and consolidation of indictments.
1. An indictment must charge at least one crime and may, in addition, charge in separate counts one or more other offenses, including petty offenses, provided that all such offenses are joinable pursuant to the principles prescribed in subdivision two.
2. Two offenses are "joinable" when:
(a) They are based upon the same act or upon the same criminal transaction, as that term is defined in subdivision two of section 40.10; or
(b) Even though based upon different criminal transactions, such offenses, or the criminal transactions underlying them, are of such nature that either proof of the first offense would be material and admissible as evidence in chief upon a trial of the second, or proof of the second would be material and admissible as evidence in chief upon a trial of the first; or
(c) Even though based upon different criminal transactions, and even though not joinable pursuant to paragraph (b), such offenses are defined by the same or similar statutory provisions and consequently are the same or similar in law; or
(d) Though not directly joinable with each other pursuant to paragraph (a), (b) or (c), each is so joinable with a third offense contained in the indictment. In such case, each of the three offenses may properly be joined not only with each of the other two but also with any further offense joinable with either of the other two, and the chain of joinder may be further extended accordingly.
3. In any case where two or more offenses or groups of offenses charged in an indictment are based upon different criminal transactions, and where their joinability rests solely upon the fact that such offenses, or as the case may be at least one offense of each group, are the same or similar in law, as prescribed in paragraph (c) of subdivision two, the court, in the interest of justice and for good cause shown, may, upon application of either a defendant or the people, in its discretion, order that any such offenses be tried separately from the other or others thereof. Good cause shall include but not be limited to situations where there is:
(a) Substantially more proof on one or more such joinable offenses than on others and there is a substantial likelihood that the jury would be unable to consider separately the proof as it relates to each offense.
(b) A convincing showing that a defendant has both important testimony to give concerning one count and a genuine need to refrain from testifying on the other, which satisfies the court that the risk of prejudice is substantial.
(i) Good cause, under this paragraph (b), may be established in writing or upon oral representation of counsel on the record. Any written or oral representation may be based upon information and belief, provided the sources of such information and the grounds of such belief are set forth.
(ii) Upon the request of counsel, any written or recorded showing concerning the defendant's genuine need to refrain from testifying shall be ex parte and in camera. The in camera showing shall be sealed but a court for good cause may order unsealing. Any statements made by counsel in the course of an application under this paragraph (b) may not be offered against the defendant in any criminal action for impeachment purposes or otherwise.
4. When two or more indictments against the same defendant or defendants charge different offenses of a kind that are joinable in a single indictment pursuant to subdivision two, the court may, upon application of either the people or a defendant, order that such indictments be consolidated and treated as a single indictment for trial purposes. If such indictments, in addition to charging offenses which are so joinable charge other offenses which are not so joinable, they may nevertheless be consolidated for the limited purpose of jointly trying the joinable offenses. In such case, such indictments remain in existence with respect to any nonjoinable offenses and may be prosecuted accordingly. Nothing herein precludes the consolidation of an indictment with a superior court information.
5. A court's determination of an application for consolidation pursuant to subdivision four is discretionary; except that where an application by the defendant seeks consolidation with respect to offenses which are, pursuant to paragraph (a) of subdivision two, of a kind that are joinable in a single indictment by reason of being based upon the same act or criminal transaction, the court must order such consolidation unless good cause to the contrary be shown.
6. Where an indictment charges at least one offense against a defendant who was under the age of seventeen, or commencing October first, two thousand nineteen, eighteen at the time of the commission of the crime and who did not lack criminal responsibility for such crime by reason of infancy, the indictment may, in addition, charge in separate counts one or more other offenses for which such person would not have been criminally responsible by reason of infancy, if:
(a) the offense for which the defendant is criminally responsible and the one or more other offenses for which he or she would not have been criminally responsible by reason of infancy are based upon the same act or upon the same criminal transaction, as that term is defined in subdivision two of section 40.10 of this chapter; or
(b) the offenses are of such nature that either proof of the first offense would be material and admissible as evidence in chief upon a trial of the second, or proof of the second would be material and admissible as evidence in chief upon a trial of the first.
§ 200.30 Indictment; duplicitous counts prohibited.
1. Each count of an indictment may charge one offense only.
2. For purpose of this section, a statutory provision which defines the offense named in the title thereof by providing, in different subdivisions or paragraphs, different ways in which such named offense may be committed, defines a separate offense in each such subdivision or paragraph, and a count of an indictment charging such named offense which, without specifying or clearly indicating the particular subdivision or paragraph of the statutory provision, alleges facts which would support a conviction under more than one such subdivision or paragraph, charges more than one offense.
§ 200.40 Indictment; joinder of defendants and consolidation of indictments against different defendants.
1. Two or more defendants may be jointly charged in a single indictment provided that:
(a) all such defendants are jointly charged with every offense alleged therein; or
(b) all the offenses charged are based upon a common scheme or plan; or
(c) all the offenses charged are based upon the same criminal transaction as that term is defined in subdivision two of section 40.10; or
(d) if the indictment includes a count charging enterprise corruption:
(i) all the defendants are jointly charged with every count of enterprise corruption alleged therein; and
(ii) every offense, other than a count alleging enterprise corruption, is a criminal act specifically included in the pattern of criminal activity on which the charge or charges of enterprise corruption is or are based; and
(iii) each such defendant could have been jointly charged with at least one of the other defendants, absent an enterprise corruption count, under the provisions of paragraph (a), (b) or (c) of this subdivision, in an accusatory instrument charging at least one such specifically included criminal act. For purposes of this subparagraph, joinder shall not be precluded on the ground that a specifically included criminal act which is necessary to permit joinder is not currently prosecutable, when standing alone, by reason of previous prosecution or lack of geographical jurisdiction.
Even in such case, the court, upon motion of a defendant or the people made within the period provided by section 255.20, may for good cause shown order in its discretion that any defendant be tried separately from the other or from one or more or all of the others. Good cause shall include, but not be limited to, a finding that a defendant or the people will be unduly prejudiced by a joint trial or, in the case of a prosecution involving a charge of enterprise corruption, a finding that proof of one or more criminal acts alleged to have been committed by one defendant but not one or more of the others creates a likelihood that the jury may not be able to consider separately the proof as it relates to each defendant, or in such a case, given the scope of the pattern of criminal activity charged against all the defendants, a particular defendant's comparatively minor role in it creates a likelihood of prejudice to him. Upon such a finding of prejudice, the court may order counts to be tried separately, grant a severance of defendants or provide whatever other relief justice requires.
2. When two or more defendants are charged in separate indictments with an offense or offenses but could have been so charged in a single indictment under subdivision one above, the court may, upon application of the people, order that such indictments be consolidated and the charges be heard in a single trial. If such indictments also charge offenses not properly the subject of a single indictment under subdivision one above, those offenses shall not be consolidated, but shall remain in existence and may be separately prosecuted. Nothing herein precludes the consolidation of an indictment with a superior court information.
§ 200.50 Indictment; form and content.
An indictment must contain:
1. The name of the superior court in which it is filed; and
2. The title of the action and, where the defendant is a juvenile offender, a statement in the title that the defendant is charged as a juvenile offender; and
3. A separate accusation or count addressed to each offense charged, if there be more than one; and
4. A statement in each count that the grand jury, or, where the accusatory instrument is a superior court information, the district attorney, accuses the defendant or defendants of a designated offense, provided that in any prosecution under article four hundred eighty-five of the penal law, the designated offense shall be the specified offense, as defined in subdivision three of section 485.05 of the penal law, followed by the phrase "as a hate crime", and provided further that in any prosecution under section 490.25 of the penal law, the designated offense shall be the specified offense, as defined in subdivision three of section 490.05 of the penal law, followed by the phrase "as a crime of terrorism"; and provided further that in any prosecution under section 130.91 of the penal law, the designated offense shall be the specified offense, as defined in subdivision two of section 130.91 of the penal law, followed by the phrase "as a sexually motivated felony"; and provided further that in any prosecution under section 496.06 of the penal law, the designated offense shall be the specified offense, as defined in subdivision two of such section, followed by the phrase "as a public corruption crime"; and
5. A statement in each count that the offense charged therein was committed in a designated county; and
6. A statement in each count that the offense charged therein was committed on, or on or about, a designated date, or during a designated period of time; and
7. A plain and concise factual statement in each count which, without allegations of an evidentiary nature,
(a) asserts facts supporting every element of the offense charged and the defendant's or defendants' commission thereof with sufficient precision to clearly apprise the defendant or defendants of the conduct which is the subject of the accusation; and
(b) in the case of any armed felony, as defined in subdivision forty-one of section 1.20, states that such offense is an armed felony and specifies the particular implement the defendant or defendants possessed, were armed with, used or displayed or, in the case of an implement displayed, specifies what the implement appeared to be; and
(c) in the case of any hate crime, as defined in section 485.05 of the penal law, specifies, as applicable, that the defendant or defendants intentionally selected the person against whom the offense was committed or intended to be committed; or intentionally committed the act or acts constituting the offense, in whole or in substantial part because of a belief or perception regarding the race, color, national origin, ancestry, gender, gender identity or expression, religion, religious practice, age, disability or sexual orientation of a person; and
(d) in the case of a crime of terrorism, as defined in section 490.25 of the penal law, specifies, as applicable, that the defendant or defendants acted with intent to intimidate or coerce a civilian population, influence the policy of a unit of government by intimidation or coercion, or affect the conduct of a unit of government by murder, assassination or kidnapping; and
(e) in the case of a sexually motivated felony, as defined in section 130.91 of the penal law, asserts facts supporting the allegation that the offense was sexually motivated; and
8. The signature of the foreman or acting foreman of the grand jury, except where the indictment has been ordered reduced pursuant to subdivision one-a of section 210.20 of this chapter or the accusatory instrument is a superior court information; and
9. The signature of the district attorney.
§ 200.60 Indictment; allegations of previous convictions prohibited.
1. When the fact that the defendant has been previously convicted of an offense raises an offense of lower grade to one of higher grade and thereby becomes an element of the latter, an indictment for such higher offense may not allege such previous conviction. If a reference to previous conviction is contained in the statutory name or title of such an offense, such name or title may not be used in the indictment, but an improvised name or title must be used which, by means of the phrase "as a felony" or in some other manner, labels and distinguishes the offense without reference to a previous conviction. This subdivision does not apply to an indictment or a count thereof that charges escape in the second degree pursuant to subdivision two of section 205.10 of the penal law, or escape in the first degree pursuant to section 205.15 thereof.
2. An indictment for such an offense must be accompanied by a special information, filed by the district attorney with the court, charging that the defendant was previously convicted of a specified offense. Except as provided in subdivision three, the people may not refer to such special information during the trial nor adduce any evidence concerning the previous conviction alleged therein.
3. After commencement of the trial and before the close of the people's case, the court, in the absence of the jury, must arraign the defendant upon such special information, and must advise him that he may admit the previous conviction alleged, deny it or remain mute. Depending upon the defendant's response, the trial of the indictment must then proceed as follows:
(a) If the defendant admits the previous conviction, that element of the offense charged in the indictment is deemed established, no evidence in support thereof may be adduced by the people, and the court must submit the case to the jury without reference thereto and as if the fact of such previous conviction were not an element of the offense. The court may not submit to the jury any lesser included offense which is distinguished from the offense charged solely by the fact that a previous conviction is not an element thereof.
(b) If the defendant denies the previous conviction or remains mute, the people may prove that element of the offense charged before the jury as a part of their case. In any prosecution under subparagraph (ix) of paragraph (a) of subdivision one of section 125.27 of the penal law, if the defendant denies the previous murder conviction or remains mute, the people may prove that element of the offense only after the jury has first found the defendant guilty of intentionally causing the death of a person as charged in the indictment, in which case the court shall then permit the people and the defendant to offer evidence and argument consistent with the relevant provisions of section 260.30 of this chapter with respect to the previous murder conviction.
4. Nothing contained in this section precludes the people from proving a prior conviction before a grand jury or relieves them from the obligation or necessity of so doing in order to submit a legally sufficient case.
§ 200.61 Indictment; special information for operators of for-hire vehicles.
1. The provisions of this section shall govern the procedures for determining whether a defendant is eligible to receive the sentence set forth in subdivision one of section 60.07 of the penal law upon conviction of a specified offense as defined in subdivision two of such section 60.07.
2. To receive the sentence set forth in subdivision one of section 60.07 of the penal law, an indictment for such specified offense must be accompanied by a special information, filed by the district attorney with the court, alleging that the victim of such offense was operating a for-hire vehicle in the course of providing for-hire vehicle services at the time of the commission of such offense.
3. Prior to the commencement of the trial, the court, in the absence of the jury, must arraign the defendant upon such special information, and must advise him that he may admit that the alleged victim of such offense was operating a for-hire vehicle in the course of providing for-hire vehicle services at the time of the alleged commission of such offense, deny such allegation or remain mute. Depending upon the defendant's response, the trial of the indictment must proceed as follows:
(a) If the defendant admits that the alleged victim of such specified offense charged was operating a for-hire vehicle in the course of providing for-hire vehicle services at the time of the commission of such alleged offense, such allegation, and only such allegation, shall be deemed established for purposes of eligibility, if the defendant is convicted of the underlying specified offense, for a sentence pursuant to subdivision one of section 60.07 of the penal law.
(b) If the defendant denies such allegation or remains mute, the people may, by proof beyond a reasonable doubt, prove as part of their case before the jury or, where the defendant has waived a jury trial, the court, that the alleged victim of such offense was operating a for-hire vehicle in the course of providing for-hire vehicle services at the time of the commission of the offense.
4. Where a jury, pursuant to paragraph (b) of subdivision three of this section, is charged with determining whether the alleged victim of such specified offense was operating a for-hire vehicle in the course of providing for-hire vehicle services, such jury shall consider and render its verdict on such matter only if it convicts the defendant of such specified offense or specified offenses charged.
5. For purposes of this section, the terms "for-hire vehicle", "for-hire vehicle services" and "specified offense" shall have the meanings set forth in section 60.07 of the penal law.
§ 200.62 Indictment; special information for child sexual assault offender.
1. Whenever a person is charged with the commission or attempted commission of an offense defined in article one hundred thirty of the penal law which constitutes a felony and it appears that the victim of such offense was less than fifteen years old, an indictment for such offense may be accompanied by a special information, filed by the district attorney with the court, alleging that the victim was less than fifteen years old at the time of the commission of the offense; provided, however, that such an information need not be filed when the age of the victim is an element of the offense.
2. Prior to trial, or after the commencement of the trial but before the close of the people's case, the court, in the absence of the jury, must arraign the defendant upon such information and advise him or her that he or she may admit such allegation, deny it or remain mute. Depending upon the defendant's response, the trial of the indictment must proceed as follows:
(a) If the defendant admits that the alleged victim was less than fifteen years old at the time of the commission or attempted commission of the offense, that allegation shall be deemed established for all subsequent purposes, including sentencing pursuant to section 70.07 of the penal law.
(b) If the defendant denies such allegation or remains mute, the people may, by proof beyond a reasonable doubt, prove before the jury or, where the defendant has waived a jury trial, the court, that the alleged victim was less than fifteen years old at the time of the commission or attempted commission of the offense.
(c) Nothing in this subdivision shall prevent the people, in a trial before the court or a jury, from making reference to and introducing evidence of the victim's age.
3. Where a jury, pursuant to paragraph (b) of subdivision two of this section, makes the determination of whether the alleged victim of the offense was less than fifteen years old, such jury shall consider and render its verdict on such issue only after rendering its verdict with regard to the offense.
4. A determination pursuant to this section that the victim was less than fifteen years old at the time of the commission of the offense shall be binding in any future proceeding in which the issue may arise unless the underlying conviction or determination is vacated or reversed.
§ 200.63 Indictment; special information for aggravated family offense.
1. Whenever a person is charged with the commission or attempted commission of an aggravated family offense as defined in section 240.75 of the penal law, an indictment or information for such offense shall be accompanied by a special information, filed by the district attorney with the court, alleging that the defendant was previously convicted of a specified offense as defined in subdivision two of section 240.75 of the penal law, that at the time of the previous offense the defendant and the person against whom the offense was committed were members of the same family or household as defined in subdivision one of section 530.11 of this chapter, and that such previous conviction took place within the time period specified in subdivision one of section 240.75 of the penal law. Except as provided herein, the people may not refer to such special information during trial nor adduce any evidence concerning the allegations therein.
2. Prior to the commencement of the trial, the court, in the absence of the jury, must arraign the defendant upon such information and advise him or her that he or she may admit each such allegation, deny any such allegation or remain mute with respect to any such allegation. Depending upon the defendant's response, the trial of the indictment or information must then proceed as follows:
(a)(i) If the previous conviction is for an aggravated family offense as defined in section 240.75 of the penal law, and the defendant admits the previous conviction or that it took place within the time period specified in subdivision one of section 240.75 of the penal law, such admitted allegation or allegations shall be deemed established for the purposes of the present prosecution, including sentencing pursuant to section 70.00 of the penal law. The court must submit the case to the jury as if such admitted allegation or allegations were not elements of the offense.
(ii) If the defendant denies the previous conviction or remains mute with respect to it, the people may prove, beyond a reasonable doubt, that element of the offense before the jury as a part of their case.
(iii) If the defendant denies that the previous conviction took place within the time period specified in subdivision one of section 240.75 of the penal law, or remains mute with respect to that matter, the people may prove, beyond a reasonable doubt, before the jury as part of their case, that the previous conviction took place within the time period specified.
(b)(i) If the previous conviction is for a specified offense as defined in subdivision two of section 240.75 of the penal law, other than an aggravated family offense, and the defendant admits such previous conviction, that it took place within the time period specified in subdivision one of section 240.75 of the penal law, or that the defendant and the person against whom the offense was committed were members of the same family or household as defined in subdivision one of section 530.11 of this chapter, such admitted allegation or allegations shall be deemed established for the purposes of the present prosecution, including sentencing pursuant to section 70.00 of the penal law. The court must submit the case to the jury as if the admitted allegation or allegations were not elements of the offense.
(ii) If the defendant denies the previous conviction or remains mute with respect to it, the people may prove, beyond a reasonable doubt, that element of the offense before the jury as a part of their case.
(iii) If the defendant denies that the previous conviction took place within the time period specified in subdivision one of section 240.75 of the penal law, or remains mute with respect to that matter, the people may prove, beyond a reasonable doubt, before the jury as part of their case, that the previous conviction took place within the time period specified.
(iv) If the defendant denies that the defendant and the person against whom the previous offense was committed were members of the same family or household as defined in subdivision one of section 530.11 of this chapter, or remains mute with respect to that matter, the people may prove, beyond a reasonable doubt, that element of the offense before the jury as a part of their case.
§ 200.65 Indictment; special information for enterprise corruption and criminal possession or use of a biological weapon or chemical weapon.
When filing an indictment which charges enterprise corruption in violation of article four hundred sixty of the penal law, criminal possession of a chemical weapon or biological weapon in violation of section 490.37, 490.40, or 490.45 of the penal law, or criminal use of a chemical weapon or biological weapon in violation of section 490.47, 490.50, or 490.55 of the penal law, the district attorney must submit a statement to the court attesting that he or she has reviewed the substance of the evidence presented to the grand jury and concurs in the judgment that the charge is consistent with legislative findings in article four hundred sixty or four hundred ninety of the penal law, as applicable. For purposes of this section only, "district attorney" means the district attorney of the county, the attorney general, or the deputy attorney general in charge of the organized crime task force, or where such person is actually absent or disabled, the person authorized to act in his or her stead.
§ 200.70 Indictment; amendment of.
1. At any time before or during trial, the court may, upon application of the people and with notice to the defendant and opportunity to be heard, order the amendment of an indictment with respect to defects, errors or variances from the proof relating to matters of form, time, place, names of persons and the like, when such an amendment does not change the theory or theories of the prosecution as reflected in the evidence before the grand jury which filed such indictment, or otherwise tend to prejudice the defendant on the merits. Where the accusatory instrument is a superior court information, such an amendment may be made when it does not tend to prejudice the defendant on the merits. Upon permitting such an amendment, the court must, upon application of the defendant, order any adjournment of the proceedings which may, by reason of such amendment, be necessary to accord the defendant adequate opportunity to prepare his defense.
2. An indictment may not be amended in any respect which changes the theory or theories of the prosecution as reflected in the evidence before the grand jury which filed it; nor may an indictment or superior court information be amended for the purpose of curing:
(a) A failure thereof to charge or state an offense; or
(b) Legal insufficiency of the factual allegations; or
(c) A misjoinder of offenses; or
(d) A misjoinder of defendants.
§ 200.80 Indictment; superseding indictments.
If at any time before entry of a plea of guilty to an indictment or commencement of a trial thereof another indictment is filed in the same court charging the defendant with an offense charged in the first indictment, the first indictment is, with respect to such offense, superseded by the second and, upon the defendant's arraignment upon the second indictment, the count of the first indictment charging such offense must be dismissed by the court. The first indictment is not, however, superseded with respect to any count contained therein which charges an offense not charged in the second indictment. Nothing herein precludes the filing of a superseding indictment when the first accusatory instrument is a superior court information.
§ 200.95 Indictment; bill of particulars.
1. Definitions. (a) "Bill of particulars" is a written statement by the prosecutor specifying, as required by this section, items of factual information which are not recited in the indictment and which pertain to the offense charged and including the substance of each defendant's conduct encompassed by the charge which the people intend to prove at trial on their direct case, and whether the people intend to prove that the defendant acted as principal or accomplice or both, and items of factual information which are not recited in a special forfeiture information or prosecutor's forfeiture information containing one or more forfeiture counts and which pertain to the substance of each defendant's conduct giving rise to the forfeiture claim, the approximate value of property for which forfeiture is sought, the nature and extent of the defendant's interest in such property, and the extent of the defendant's gain, if any, from the offense charged. However, the prosecutor shall not be required to include in the bill of particulars matters of evidence relating to how the people intend to prove the elements of the offense charged or how the people intend to prove any item of factual information included in the bill of particulars.
(b) "Request for a bill of particulars" is a written request served by defendant upon the people, without leave of the court, requesting a bill of particulars, specifying the items of factual information desired, and alleging that defendant cannot adequately prepare or conduct his defense without the information requested.
2. Bill of particulars upon request. Upon a timely request for a bill of particulars by a defendant against whom an indictment is pending, the prosecutor shall within fifteen days of the service of the request or as soon thereafter as is practicable, serve upon the defendant or his attorney, and file with the court, the bill of particulars, except to the extent the prosecutor shall have refused to comply with the request pursuant to subdivision four of this section.
3. Timeliness of request. A request for a bill of particulars shall be timely if made within thirty days after arraignment and before the commencement of trial. If the defendant is not represented by counsel, and has requested an adjournment to obtain counsel or to have counsel assigned, the thirty day period shall commence, for the purposes of a request for a bill of particulars by the defendant, on the date counsel initially appears on his behalf. However, the court may direct compliance with a request for a bill of particulars that, for good cause shown, could not have been made within the time specified.
4. Request refused. The prosecutor may refuse to comply with the request for a bill of particulars or any portion of the request for a bill of particulars to the extent he reasonably believes that the item of factual information requested is not authorized to be included in a bill of particulars, or that such information is not necessary to enable the defendant adequately to prepare or conduct his defense, or that a protective order would be warranted or that the demand is untimely. Such refusal shall be made in a writing, which shall set forth the grounds of such belief as fully as possible, consistent with the reason for the refusal. Within fifteen days of the request or as soon thereafter as practicable, the refusal shall be served upon the defendant and a copy shall be filed with the court.
5. Court ordered bill of particulars. Where a prosecutor has timely served a written refusal pursuant to subdivision four of this section and upon motion, made in writing, of a defendant, who has made a request for a bill of particulars and whose request has not been complied with in whole or in part, the court must, to the extent a protective order is not warranted, order the prosecutor to comply with the request if it is satisfied that the items of factual information requested are authorized to be included in a bill of particulars, and that such information is necessary to enable the defendant adequately to prepare or conduct his defense and, if the request was untimely, a finding of good cause for the delay. Where a prosecutor has not timely served a written refusal pursuant to subdivision four of this section the court must, unless it is satisfied that the people have shown good cause why such an order should not be issued, issue an order requiring the prosecutor to comply or providing for any other order authorized by section 245.80 of this part.
6. Motion procedure. A motion for a bill of particulars shall be made as prescribed in section 255.20. Upon an order granting a motion pursuant to this section, the prosecutor must file with the court a bill of particulars, reciting every item of information designated in the order, and serve a copy thereof upon the defendant. Pending such filing and service, the proceedings are stayed.
7. Protective order. (a) The court in which the criminal action is pending may, upon motion of the prosecutor, or of any affected person, or upon determination of a motion of defendant for a court ordered bill of particulars, or upon its own initiative, issue a protective order denying, limiting, conditioning, delaying or regulating the bill of particulars for good cause, including constitutional limitations, danger to the integrity of physical evidence or a substantial risk of physical harm, intimidation, economic reprisal, bribery or unjustified annoyance or embarrassment to any person or an adverse effect upon the legitimate needs of law enforcement, including the protection of the confidentiality of informants, or any other factor or set of factors which outweighs the need for the bill of particulars.
(b) An order limiting, conditioning, delaying or regulating the bill of particulars may, among other things, require that any material copied or derived therefrom be maintained in the exclusive possession of the attorney for the defendant and be used for the exclusive purpose of preparing for the defense of the criminal action.
8. Amendment. At any time before commencement of trial, the prosecutor may, without leave of the court, serve upon defendant and file with the court an amended bill of particulars. At any time during trial, upon application of the prosecutor and with notice to the defendant and an opportunity for him to be heard, the court must, upon finding that no undue prejudice will accrue to defendant and that the prosecutor has acted in good faith, permit the prosecutor to amend the bill of particulars. Upon any amendment of the bill of particulars, the court must, upon application of defendant, order an adjournment of the proceedings or any other action it deems appropriate which may, by reason of the amendment, be necessary to accord the defendant an adequate opportunity to defend.
ARTICLE 210--PROCEEDINGS IN SUPERIOR COURT FROM FILING OF INDICTMENT TO PLEA
Section 210.05 Indictment and superior court information exclusive methods of prosecution.
210.10 Requirement of and methods of securing defendant's appearance for arraignment upon indictment.
210.15 Arraignment upon indictment; defendant's rights, court's instructions and bail matters.
210.16 Requirement of HIV related testing in certain cases.
210.20 Motion to dismiss or reduce indictment.
210.25 Motion to dismiss indictment; as defective.
210.30 Motion to dismiss or reduce indictment on ground of insufficiency of grand jury evidence; motion to inspect grand jury minutes.
210.35 Motion to dismiss indictment; defective grand jury proceeding.
210.40 Motion to dismiss indictment; in furtherance of justice.
210.45 Motion to dismiss indictment; procedure.
210.46 Adjournment in contemplation of dismissal in marihuana cases in a superior court.
210.47 Adjournment in contemplation of dismissal in misdemeanor cases in superior court.
210.50 Requirement of plea.
§ 210.05 Indictment and superior court information exclusive methods of prosecution.
The only methods of prosecuting an offense in a superior court are by an indictment filed therewith by a grand jury or by a superior court information filed therewith by a district attorney.
§ 210.10 Requirement of and methods of securing defendant's appearance for arraignment upon indictment.
After an indictment has been filed with a superior court, the defendant must be arraigned thereon. He must appear personally at such arraignment, and his appearance may be secured as follows: 1. If the defendant was previously held by a local criminal court for the action of the grand jury, and if he is confined in the custody of the sheriff pursuant to a previous court order issued in the same criminal action, the superior court must direct the sheriff to produce the defendant for arraignment on a specified date and the sheriff must comply with such direction. The court must give at least two days notice of the time and place of the arraignment to an attorney, if any, who has previously filed a notice of appearance in behalf of the defendant with such superior court, or if no such notice of appearance has been filed, to an attorney, if any, who filed a notice of appearance in behalf of the defendant with the local criminal court.
2. If a felony complaint against the defendant was pending in a local criminal court or if the defendant was previously held by a local criminal court for the action of the grand jury, and if the defendant is at liberty on his or her own recognizance or on bail pursuant to a previous court order issued in the same criminal action, the superior court must, upon at least two days notice to the defendant and his or her surety, to any person other than the defendant who posted cash bail and to any attorney who would be entitled to notice under circumstances prescribed in subdivision one, direct the defendant to appear before the superior court for arraignment on a specified date. If the defendant fails to appear on such date, the court may issue a bench warrant and, in addition, may forfeit the bail, if any. Upon taking the defendant into custody pursuant to such bench warrant, the executing police officer must without unnecessary delay bring the defendant before such superior court for arraignment. If such superior court is not available, the executing police officer may bring the defendant to the local correctional facility of the county in which such superior court sits, to be detained there until not later than the commencement of the next session of such court occurring on the next business day.
3. If the defendant has not previously been held by a local criminal court for the action of the grand jury and the filing of the indictment constituted the commencement of the criminal action, the superior court must order the indictment to be filed as a sealed instrument until the defendant is produced or appears for arraignment, and must issue a superior court warrant of arrest. Upon the request of the district attorney, in lieu of a superior court warrant of arrest, the court may issue a summons if it is satisfied that the defendant will respond thereto. Upon the request of the district attorney, in lieu of a warrant of arrest or summons, the court may instead authorize the district attorney to direct the defendant to appear for arraignment on a designated date if it is satisfied that the defendant will so appear. A superior court warrant of arrest is executable anywhere in the state. Such warrant may be addressed to any police officer whose geographical area of employment embraces either the place where the offense charged was allegedly committed or the locality of the court by which the warrant is issued. It must be executed in the same manner as an ordinary warrant of arrest, as provided in section 120.80, and following the arrest the executing police officer must without unnecessary delay perform all recording, fingerprinting, photographing and other preliminary police duties required in the particular case, and bring the defendant before the superior court. If such superior court is not available, the executing police officer may bring the defendant to the local correctional facility of the county in which such superior court sits, to be detained there until not later than the commencement of the next session of such court occurring on the next business day.
4. A superior court warrant of arrest may be executed by (a) any police officer to whom it is addressed or (b) any other police officer delegated to execute it under circumstances prescribed in subdivisions five and six.
5. The issuing court may authorize the delegation of such warrant. Where the issuing court has so authorized, a police officer to whom a superior court warrant of arrest is addressed may delegate another police officer to whom it is not addressed to execute such warrant as his agent when:
(a) He has reasonable cause to believe that the defendant is in a particular county other than the one in which the warrant is returnable; and
(b) The geographical area of employment of the delegated police officer embraces the locality where the arrest is to be made.
6. Under circumstances specified in subdivision five, the police officer to whom the warrant is addressed may inform the delegated officer, by telecommunication, mail or any other means, of the issuance of the warrant, of the offense charged in the underlying accusatory instrument and of all other pertinent details, and may request such officer to act as his or her agent in arresting the defendant pursuant to such warrant. Upon such request, the delegated police officer is to the same extent as the delegating officer, authorized to make such arrest pursuant to the warrant within the geographical area of such delegated officer's employment. Upon so arresting the defendant, he or she must without unnecessary delay deliver the defendant or cause the defendant to be delivered to the custody of the police officer by whom he or she was so delegated, and the latter must then without unnecessary delay bring the defendant before a court in which such warrant is returnable. If such court is not available, the delegating officer may bring the defendant to the local correctional facility of the county in which such court sits, to be detained there until not later than the commencement of the next session of such court occurring on the next business day.
§ 210.15 Arraignment upon indictment; defendant's rights, court's instructions and bail matters.
1. Upon the defendant's arraignment before a superior court upon an indictment, the court must immediately inform him, or cause him to be informed in its presence, of the charge or charges against him, and the district attorney must cause him to be furnished with a copy of the indictment.
2. The defendant has a right to the aid of counsel at the arraignment and at every subsequent stage of the action, and, if he appears upon such arraignment without counsel, 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 in any case where he is financially unable to obtain the same.
3. The court must inform the defendant of all rights specified in subdivision two. The court must accord the defendant opportunity to exercise such rights and must itself take such affirmative action as is necessary to effectuate them.
5. If the defendant desires to proceed without the aid of counsel, the court must permit him to do so 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. 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 two which are necessary to effectuate it, and that he may exercise such rights at any stage of the action.
6. Upon the arraignment, the court, unless it intends to make a final disposition of the action immediately thereafter, must, as provided in section 530.40, issue a securing order, releasing the defendant on his own recognizance or fixing bail or committing him to the custody of the sheriff for his future appearance in such action.
§ 210.16 Requirement of HIV related testing in certain cases.
1. (a) In a case where an indictment or a superior court information has been filed with a superior court which charges the defendant with a felony offense enumerated in any section of article one hundred thirty of the penal law where an act of "sexual intercourse", "oral sexual conduct" or "anal sexual conduct," as those terms are defined in section 130.00 of the penal law, is required as an essential element for the commission thereof, the court shall, upon a request of the victim within six months of the date of the crimes charged, order that the defendant submit to human immunodeficiency virus (HIV) related testing. Testing of a defendant shall be ordered when the result would provide medical benefit to the victim or a psychological benefit to the victim. Medical benefit shall be found when the following elements are satisfied: (i) a decision is pending about beginning, continuing, or discontinuing a medical intervention for the victim; and (ii) the result of an HIV test of the accused could affect that decision, and could provide relevant information beyond that which would be provided by an HIV test of the victim. If testing the defendant would provide medical benefit to the victim or a psychological benefit to the victim, then the testing is to be conducted by a state, county, or local public health officer designated by the order. Test results, which shall not be disclosed to the court, shall be communicated to the defendant and the victim named in the order in accordance with the provisions of section twenty-seven hundred eighty-five-a of the public health law.
(b) For the purposes of this section, the terms "victim" and "applicant" mean the person with whom the defendant is charged to have engaged in an act of "sexual intercourse", "oral sexual conduct" or "anal sexual conduct", as those terms are defined in section 130.00 of the penal law, where such conduct with such victim was the basis for charging the defendant with an offense specified in paragraph (a) of this subdivision.
2. Any request made by the victim pursuant to this section must be in writing, filed with the court within six months of the date of the crimes charged, and provided by the court to the defendant or his or her counsel. The request must be filed with the court prior to or within forty-eight hours after the indictment or superior court information has been filed with the superior court; provided however that, for good cause shown, the court may permit such request to be filed at a later stage of the action within six months of the date of the crimes charged.
3. At any stage in the action within six months of the date of the crimes charged, prior to the final disposition of the indictment or superior court information and while the defendant is charged with an offense specified in paragraph (a) of subdivision one of this section, the victim may request that the defendant submit to a follow-up HIV related test. Such request must be in writing, filed with the court and provided by the court to the defendant or his or her counsel. Upon a finding that the follow-up HIV related test is medically appropriate the court must order that the defendant submit to such test. The court shall not make such finding of medical appropriateness unless the follow-up HIV related test is to be administered a sufficient time after the charged offense to be consistent with guidelines that may be issued by the commissioner of health. There shall be no more than one follow-up HIV related test absent a showing of extraordinary circumstances.
4. Any requests, related papers and orders made or filed pursuant to this section, together with any papers or proceedings related thereto, shall be sealed by the court and not made available for any purpose, except as may be necessary for the conduct of judicial proceedings directly related to the provisions of this section. All proceedings on such requests shall be held in camera.
5. The application for an order to compel a defendant to undergo an HIV related test may be made by the victim but, if the victim is an infant or incompetent person, the application may also be made by a representative as defined in section twelve hundred one of the civil practice law and rules. The application must state that: (a) the applicant was the victim of the offense enumerated in paragraph (a) of subdivision one of this section of which the defendant is charged; and (b) the applicant has been offered pre-HIV test counseling and post-HIV test counseling by a public health officer in accordance with article twenty-seven-F of the public health law and has been advised, in accordance with any guidelines that may be issued by the commissioner of health, of (i) the limitations on the information to be obtained through an HIV test on the proposed subject; (ii) current scientific assessments of the risk of transmission of HIV from the exposure he or she may have experienced; and (iii) the need for the applicant to undergo HIV related testing to definitively determine his or her HIV status.
6. The court shall conduct a hearing only if necessary to determine if the applicant is the victim of the offense of which the defendant is charged or to determine whether a follow-up test is medically appropriate. The court ordered test must be performed within forty-eight hours of the date on which the court ordered the test, provided, however, that whenever the defendant is not tested within the period prescribed by the court, the court must again order that the defendant undergo an HIV related test. The defendant shall be advised of information as to HIV testing and medical treatment in accordance with any guidelines that may be issued by the commissioner of health.
7. (a) Test results shall be disclosed subject to the following limitations, which shall be specified in any order issued pursuant to this section:
(i) disclosure of confidential HIV related information shall be limited to that information which is necessary to fulfill the purpose for which the order is granted; and
(ii) disclosure of confidential HIV related information shall be made to the defendant upon his or her request, and disclosure to a person other than the defendant shall be limited to the person making the application; redisclosure shall be permitted only to the victim, the victim's immediate family, guardian, physicians, attorneys, medical or mental health providers and to his or her past and future contacts to whom there was or is a reasonable risk of HIV transmission and shall not be permitted to any other person or the court.
(b) Unless inconsistent with this section, the court's order shall direct compliance with and conform to the provisions of article twenty-seven-F of the public health law. Such order shall include measures to protect against disclosure to others of the identity and HIV status of the applicant and of the person tested and may include such other measures as the court deems necessary to protect confidential information.
8. Any failure to comply with the provisions of this section or section twenty-seven hundred eighty-five-a of the public health law shall not impair or affect the validity of any proceeding upon the indictment or superior court information.
9. No information obtained as a result of a consent, hearing or court order for testing issued pursuant to this section nor any information derived therefrom may be used as evidence in any criminal or civil proceeding against the defendant which relates to events that were the basis for charging the defendant with an offense enumerated in paragraph (a) of subdivision one of this section, provided however that nothing in this section shall prevent prosecution of a witness testifying in any court hearing held pursuant to this section for perjury pursuant to article two hundred ten of the penal law.
§ 210.20 Motion to dismiss or reduce indictment.
1. After arraignment upon an indictment, the superior court may, upon motion of the defendant, dismiss such indictment or any count thereof upon the ground that:
(a) Such indictment or count is defective, within the meaning of section 210.25; or
(b) The evidence before the grand jury was not legally sufficient to establish the offense charged or any lesser included offense; or
(c) The grand jury proceeding was defective, within the meaning of section 210.35; or
(d) The defendant has immunity with respect to the offense charged, pursuant to section 50.20 or 190.40; or
(e) The prosecution is barred by reason of a previous prosecution, pursuant to section 40.20; or
(f) The prosecution is untimely, pursuant to section 30.10; or
(g) The defendant has been denied the right to a speedy trial; or
(h) There exists some other jurisdictional or legal impediment to conviction of the defendant for the offense charged; or
(i) Dismissal is required in the interest of justice, pursuant to section 210.40.
1-a. After arraignment upon an indictment, if the superior court, upon motion of the defendant pursuant to this subdivision or paragraph b of subdivision one of this section challenging the legal sufficiency of the evidence before the grand jury, finds that the evidence before the grand jury was not legally sufficient to establish the commission by the defendant of the offense charged in any count contained within the indictment, but was legally sufficient to establish the commission of a lesser included offense, it shall order the count or counts of the indictment with respect to which the finding is made reduced to allege the most serious lesser included offense with respect to which the evidence before the grand jury was sufficient, except that where the most serious lesser included offense thus found is a petty offense, and the court does not find evidence of the commission of any crime in any other count of the indictment, it shall order the indictment dismissed and a prosecutor's information charging the petty offense filed in the appropriate local criminal court. The motion to dismiss or reduce any count of an indictment based on legal insufficiency to establish the offense charged shall be made in accordance with the procedure set forth in subdivisions one through seven of section 210.45, provided however, the court shall state on the record the basis for its determination. Upon entering an order pursuant to this subdivision, the court shall consider the appropriateness of any securing order issued pursuant to article 510 of this chapter.
2. A motion pursuant to this section, except a motion pursuant to paragraph (g) of subdivision one, should be made within the period provided in section 255.20. A motion made pursuant to paragraph (g) of subdivision one must 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 indictment. A subsequent motion based upon any such 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. Upon dismissing an indictment or a count thereof upon any of the grounds specified in paragraphs (a), (b), (c) and (i) of subdivision one, or, upon dismissing a superior court information or a count thereof upon any of the grounds specified in paragraphs (a) or (i) of subdivision one, the court may, upon application of the people, in its discretion authorize the people to submit the charge or charges to the same or another grand jury. When the dismissal is based upon some other ground, such authorization may not be granted. In the absence of authorization to submit or resubmit, the order of dismissal constitutes a bar to any further prosecution of such charge or charges, by indictment or otherwise, in any criminal court within the county.
5. If the court dismisses one or more counts of an indictment, against a defendant who was under the age of sixteen at the time of the commission of the crime and who did not lack criminal responsibility for such crime by reason of infancy, and one or more other counts of the indictment having been joined in the indictment solely with the dismissed count pursuant to subdivision six of section 200.20 is not dismissed, the court must direct that such count be removed to the family court in accordance with article seven hundred twenty-five of this chapter.
6. The effectiveness of an order reducing a count or counts of an indictment or dismissing an indictment and directing the filing of a prosecutor's information or dismissing a count or counts of an indictment charging murder in the first degree shall be stayed for thirty days following the entry of such order unless such stay is otherwise waived by the people. On or before the conclusion of such thirty-day period, the people shall exercise one of the following options:
(a) Accept the court's order by filing a reduced indictment, by dismissing the indictment and filing a prosecutor's information, or by filing an indictment containing any count or counts remaining after dismissal of the count or counts charging murder in the first degree, as appropriate;
(b) Resubmit the subject count or counts to the same or a different grand jury within thirty days of the entry of the order or such additional time as the court may permit upon a showing of good cause; provided, however, that if in such case an order is again entered with respect to such count or counts pursuant to subdivision one-a of this section, such count or counts may not again be submitted to a grand jury. Where the people exercise this option, the effectiveness of the order further shall be stayed pending a determination by the grand jury and the filing of a new indictment, if voted, charging the resubmitted count or counts;
(c) Appeal the order pursuant to subdivision one or one-a of section 450.20. Where the people exercise this option, the effectiveness of the order further shall be stayed in accordance with the provisions of subdivision two of section 460.40.
If the people fail to exercise one of the foregoing options, the court's order shall take effect and the people shall comply with paragraph (a) of this subdivision.
§ 210.25 Motion to dismiss indictment; as defective.
An indictment or a count thereof is defective within the meaning of paragraph (a) of subdivision one of section 210.20 when:
1. It does not substantially conform to the requirements stated in article two hundred; provided that an indictment 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, pursuant to section 200.70, and where the people move to so amend; or
2. The allegations demonstrate that the court does not have jurisdiction of the offense charged; or
3. The statute defining the offense charged is unconstitutional or otherwise invalid.
§ 210.30 Motion to dismiss or reduce indictment on ground of insufficiency of grand jury evidence; motion to inspect grand jury minutes.
1. A motion to dismiss an indictment or a count thereof pursuant to paragraph (b) of subdivision one of section 210.20 or a motion to reduce a count or counts of an indictment pursuant to subdivision one-a of section 210.20 must be preceded or accompanied by a motion to inspect the grand jury minutes, as prescribed in subdivision two of this section.
2. A motion to inspect grand jury minutes is a motion by a defendant requesting an examination by the court and the defendant of the stenographic minutes of a grand jury proceeding resulting in an indictment for the purpose of determining whether the evidence before the grand jury was legally sufficient to support the charges or a charge contained in such indictment.
3. Unless good cause exists to deny the motion to inspect the grand jury minutes, the court must grant the motion. It must then proceed to examine the minutes and to determine the motion to dismiss or reduce the indictment. If the court, after examining the minutes, finds that release of the minutes, or certain portions thereof, to the parties is necessary to assist the court in making its determination on the motion, it may release the minutes or such portions thereof to the parties. Provided, however, such release shall be limited to that grand jury testimony which is relevant to a determination of whether the evidence before the grand jury was legally sufficient to support a charge or charges contained in such indictment. Prior to such release the district attorney shall be given an opportunity to present argument to the court that the release of the minutes, or any portion thereof, would not be in the public interest. For purposes of this section, the minutes shall include any materials submitted to the grand jury pursuant to subdivision eight of section 190.30 of this chapter.
4. If the court determines that there is not reasonable cause to believe that the evidence before the grand jury may have been legally insufficient, it may in its discretion either (a) deny both the motion to inspect and the motion to dismiss or reduce, or (b) grant the motion to inspect notwithstanding and proceed to examine the minutes and to determine the motion to dismiss or reduce.
5. In any case, the court must place on the record its ruling upon the motion to inspect.
6. The validity of an order denying any motion made pursuant to this section is not reviewable upon an appeal from an ensuing judgment of conviction based upon legally sufficient trial evidence.
7. Notwithstanding any other provision of law, where the indictment is filed against a juvenile offender or adolescent offender, the court shall dismiss the indictment or count thereof where the evidence before the grand jury was not legally sufficient to establish the offense charged or any lesser included offense for which the defendant is criminally responsible. Upon such dismissal, unless the court shall authorize the people to resubmit the charge to a subsequent grand jury, and upon a finding that there was sufficient evidence to believe defendant is a juvenile delinquent as defined in subdivision (a) of section seven hundred twelve of the family court act and upon specifying the act or acts it found sufficient evidence to believe defendant committed, the court may direct that such matter be removed to family court in accordance with the provisions of article seven hundred twenty-five of this chapter.
§ 210.35 Motion to dismiss indictment; defective grand jury proceeding.
A grand jury proceeding is defective within the meaning of paragraph (c) of subdivision one of section 210.20 when:
1. The grand jury was illegally constituted; or
2. The proceeding is conducted before fewer than sixteen grand jurors; or
3. Fewer than twelve grand jurors concur in the finding of the indictment; or
4. The defendant is not accorded an opportunity to appear and testify before the grand jury in accordance with the provisions of section 190.50; or
5. The proceeding otherwise fails to conform to the requirements of article one hundred ninety to such degree that the integrity thereof is impaired and prejudice to the defendant may result.
§ 210.40 Motion to dismiss indictment; in furtherance of justice.
1. An indictment or any count thereof may be dismissed in furtherance of justice, as provided in paragraph (i) of subdivision one of section 210.20, when, even though there may be no basis for dismissal as a matter of law upon any ground specified in paragraphs (a) through (h) of said subdivision one of section 210.20, 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 indictment 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 upon the confidence of the public in the criminal justice system;
(h) the impact of a dismissal on the safety or welfare of the community;
(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. In addition to the grounds specified in subdivision one of this section, a count alleging enterprise corruption in violation of article four hundred sixty of the penal law may be dismissed in the interest of justice where prosecution of that count is inconsistent with the stated legislative findings in said article. Upon a motion pursuant to this section, the court must inspect the evidence before the grand jury and such other evidence or information as it may deem proper.
3. An order dismissing an indictment 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.
§ 210.45 Motion to dismiss indictment; procedure.
1. A motion to dismiss an indictment pursuant to section 210.20 must be made in writing and upon reasonable notice to the people. If the motion is based upon the existence or occurrence of facts, the motion papers must contain sworn allegations thereof, whether by the defendant or by another person or persons. Such sworn allegations may be based upon personal knowledge of the affiant or upon information and belief, provided that in the latter event the affiant must state the sources of such information and the grounds of such belief. The defendant may further submit documentary evidence supporting or tending to support the allegations of the moving papers.
2. The people may file with the court, and in such case must serve a copy thereof upon the defendant or his counsel, an answer denying or admitting any or all of the allegations of the moving papers, and may further submit documentary evidence refuting or tending to refute such allegations.
3. After all papers of both parties have been filed, and after all documentary evidence, if any, has been submitted, the court must consider the same for the purpose of determining whether the motion is determinable without a hearing to resolve questions of fact.
4. The court must grant the motion without conducting a hearing if:
(a) The moving papers allege a ground constituting legal basis for the motion pursuant to subdivision one of section 210.20; and
(b) Such ground, if based upon the existence or occurrence of facts, is supported by sworn allegations of all facts essential to support the motion; and
(c) The sworn allegations of fact essential to support the motion are either conceded by the people to be true or are conclusively substantiated by unquestionable documentary proof.
5. The court may deny the motion without conducting a hearing if:
(a) The moving papers do not allege any ground constituting legal basis for the motion pursuant to subdivision one of section 210.20; or
(b) The motion is based upon the existence or occurrence of facts, and the moving papers do not contain sworn allegations supporting all the essential facts; or
(c) An allegation of fact essential to support the motion is conclusively refuted by unquestionable documentary proof.
6. If the court does not determine the motion pursuant to subdivision four or five, it must conduct a hearing and make findings of fact essential to the determination thereof. The defendant has a right to be present in person at such hearing but may waive such right.
7. Upon such a hearing, the defendant has the burden of proving by a preponderance of the evidence every fact essential to support the motion.
8. When the court dismisses the entire indictment without authorizing resubmission of the charge or charges to a grand jury, it must order that the defendant be discharged from custody if he is in the custody of the sheriff, or if he is at liberty on bail it must exonerate the bail.
9. When the court dismisses the entire indictment but authorizes resubmission of the charge or charges to a grand jury, such authorization is, for purposes of this subdivision, deemed to constitute an order holding the defendant for the action of a grand jury with respect to such charge or charges. Such order must be accompanied by a securing order either releasing the defendant on his own recognizance or fixing bail or committing him to the custody of the sheriff pending resubmission of the case to the grand jury and the grand jury's disposition thereof. Such securing order remains in effect until the first to occur of any of the following:
(a) A statement to the court by the people that they do not intend to resubmit the case to a grand jury;
(b) Arraignment of the defendant upon an indictment or prosecutor's information filed as a result of resubmission of the case to a grand jury. Upon such arraignment, the arraigning court must issue a new securing order;
(c) The filing with the court of a grand jury dismissal of the case following resubmission thereof;
(d) The expiration of a period of forty-five days from the date of issuance of the order; provided that such period may, for good cause shown, be extended by the court to a designated subsequent date if such be necessary to accord the people reasonable opportunity to resubmit the case to a grand jury.
Upon the termination of the effectiveness of the securing order pursuant to paragraph (a), (c) or (d), the court must immediately order that the defendant be discharged from custody if he is in the custody of the sheriff, or if he is at liberty on bail it must exonerate the bail. Although expiration of the period of time specified in paragraph (d) without any resubmission or grand jury disposition of the case terminates the effectiveness of the securing order, it does not terminate the effectiveness of the order authorizing resubmission.
§ 210.46 Adjournment in contemplation of dismissal in marihuana cases in a superior court.
Upon or after arraignment in a superior court upon an indictment 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 may dismiss the indictment in furtherance of justice, in accordance with the provisions of section 170.56 of this chapter.
§ 210.47 Adjournment in contemplation of dismissal in misdemeanor cases in superior court.
Upon or after the arraignment in a superior court upon an indictment where the sole remaining count or counts charge a misdemeanor offense, and before the entry of a plea of guilty thereto or commencement of a trial thereof, the court, 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, may order that all proceedings be suspended and the action adjourned in contemplation of dismissal, in accordance with the provisions of section 170.55 of this chapter.
§ 210.50 Requirement of plea.
Unless an indictment is dismissed or the criminal action thereon terminated or abated pursuant to the provisions of this article or some other provision of law, the defendant must be required to enter a plea thereto.
ARTICLE 215
ADJOURNMENT IN CONTEMPLATION OF DISMISSAL FOR PURPOSES OF REFERRING SELECTED FELONIES TO DISPUTE RESOLUTION
Section 215.10 Referral of selected felonies to dispute resolution.
215.20 Victim; definition.
215.30 Adjournment in contemplation of dismissal; restoration to calendar; dismissal of action.
215.40 Dismissal of action; effect thereof; records.
§ 215.10 Referral of selected felonies to dispute resolution.
Upon or after arraignment in a local criminal court upon a felony complaint, or upon or after arraignment in a superior court upon an indictment or superior court information, and before final disposition thereof, the court, with the consent of the people and of the defendant, and with reasonable notice to the victim and an opportunity for the victim to be heard, may order that the action be adjourned in contemplation of dismissal, for the purpose of referring the action to a community dispute center established pursuant to article twenty-one-A of the judiciary law. Provided, however, that the court may not order any action adjourned in contemplation of dismissal if the defendant is charged therein with: (i) a class A felony, or (ii) a violent felony offense as defined in section 70.02 of the penal law, or (iii) any drug offense as defined in article two hundred twenty of the penal law, or (iv) a felony upon the conviction of which defendant must be sentenced as a second felony offender, a second violent felony offender, or a persistent violent felony offender pursuant to sections 70.06, 70.04 and 70.08 of the penal law, or a felony upon the conviction of which defendant may be sentenced as a persistent felony offender pursuant to section 70.10 of such law.
§ 215.20 Victim; definition.
For purposes of section 215.10 of this article, "victim" means any person alleged to have sustained physical or financial injury to person or property as a direct result of the crime or crimes charged in a felony complaint, superior court information, or indictment.
§ 215.30 Adjournment in contemplation of dismissal; restoration to calendar; dismissal of action.
Upon issuing an order adjourning an action in contemplation of dismissal pursuant to section 215.10 of this article, the court must release the defendant on his own recognizance and refer the action to a dispute resolution center established pursuant to article twenty-one-A of the judiciary law. No later than forty-five days after an action has been referred to a dispute resolution center, such center must advise the district attorney as to whether the charges against defendant have been resolved. Thereafter, if defendant has agreed to pay a fine, restitution or reparation, the district attorney must be advised every thirty days as to the status of such fine, restitution or reparation. Upon application of the people, made at any time not more than six months after the issuance of an order adjourning an action in contemplation of dismissal, the court may restore the action 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. Notwithstanding the foregoing, where defendant has agreed to pay a fine, restitution, or reparation, but has not paid such fine, restitution or reparation, upon application of the people, made at any time not more than one year after the issuance of an order adjourning an action in contemplation of dismissal, the court may restore the action to the calendar upon a determination that defendant has failed to pay such fine, restitution, or reparation, and the action must thereupon proceed.
§ 215.40 Dismissal of action; effect thereof; records.
If an action has not been restored to the calendar within six months, or where the defendant has agreed to pay a fine, restitution or reparation but has not paid such fine, restitution or reparation, within one year, of the issuance of an order adjourning the action in contemplation of dismissal, the accusatory instrument shall be deemed to have been dismissed by the court in furtherance of justice at the expiration of such six month or one year period, as the case may be. Upon dismissal of an action, the arrest and prosecution shall be deemed a nullity, and defendant shall be restored to the status he or she occupied before his or her arrest and prosecution. All papers and records relating to an action that has been dismissed pursuant to this section shall be subject to the sealing provisions of section 160.50 of this chapter.
ARTICLE 216
JUDICIAL DIVERSION PROGRAM FOR CERTAIN FELONY OFFENDERS
Section 216.00 Definitions.
216.05 Judicial diversion program; court procedures.
§ 216.00 Definitions.
The following definitions are applicable to this article:
1. * "Eligible defendant" means any person who stands charged in an indictment or a superior court information with a class B, C, D or E felony offense defined in article one hundred seventy-nine, two hundred twenty or two hundred twenty-two of the penal law, an offense defined in sections 105.10 and 105.13 of the penal law provided that the underlying crime for the conspiracy charge is a class B, C, D or E felony offense defined in article one hundred seventy-nine, two hundred twenty or two hundred twenty-two of the penal law, auto stripping in the second degree as defined in section 165.10 of the penal law, auto stripping in the first degree as defined in section 165.11 of the penal law, identity theft in the second degree as defined in section 190.79 of the penal law, identity theft in the first degree as defined in section 190.80 of the penal law, or any other specified offense as defined in subdivision five of section 410.91 of this chapter, provided, however, a defendant is not an "eligible defendant" if he or she:
* NB Effective until July 5, 2028
* "Eligible defendant" means any person who stands charged in an indictment or a superior court information with a class B, C, D or E felony offense defined in article two hundred twenty or two hundred twenty-two of the penal law, an offense defined in sections 105.10 and 105.13 of the penal law provided that the underlying crime for the conspiracy charge is a class B, C, D or E felony offense defined in article two hundred twenty or two hundred twenty-two of the penal law, auto stripping in the second degree as defined in section 165.10 of the penal law, auto stripping in the first degree as defined in section 165.11 of the penal law, identity theft in the second degree as defined in section 190.79 of the penal law, identity theft in the first degree as defined in section 190.80 of the penal law, or any other specified offense as defined in subdivision five of section 410.91 of this chapter, provided, however, a defendant is not an "eligible defendant" if he or she:
* NB Effective July 5, 2028
(a) within the preceding ten years, excluding any time during which the offender was incarcerated for any reason between the time of commission of the previous felony and the time of commission of the present felony, has previously been convicted of: (i) a violent felony offense as defined in section 70.02 of the penal law or (ii) any other offense for which a merit time allowance is not available pursuant to subparagraph (ii) of paragraph (d) of subdivision one of section eight hundred three of the correction law, or (iii) a class A felony offense defined in article two hundred twenty of the penal law; or
(b) has previously been adjudicated a second violent felony offender pursuant to section 70.04 of the penal law or a persistent violent felony offender pursuant to section 70.08 of the penal law.
A defendant who also stands charged with a violent felony offense as defined in section 70.02 of the penal law or an offense for which merit time allowance is not available pursuant to subparagraph (ii) of paragraph (d) of subdivision one of section eight hundred three of the correction law for which the court must, upon the defendant's conviction thereof, sentence the defendant to incarceration in state prison is not an eligible defendant while such charges are pending. A defendant who is excluded from the judicial diversion program pursuant to this paragraph or paragraph (a) or (b) of this subdivision may become an eligible defendant upon the prosecutor's consent.
2. "Alcohol and substance use evaluation" means a written assessment and report by a court-approved entity or licensed health care professional experienced in the treatment of alcohol and substance use disorder, or by an addiction and substance abuse counselor credentialed by the office of addiction services and supports pursuant to section 19.07 of the mental hygiene law, which shall include:
(a) an evaluation as to whether the defendant has a history of alcohol or substance use disorder, as such terms are defined in the diagnostic and statistical manual of mental disorders, fifth edition, and a co-occurring mental disorder or mental illness and the relationship between such use and mental disorder or mental illness, if any;
(b) a recommendation as to whether the defendant's alcohol or substance use, if any, could be effectively addressed by judicial diversion in accordance with this article;
(c) a recommendation as to the treatment modality, level of care and length of any proposed treatment to effectively address the defendant's alcohol or substance use and any co-occurring mental disorder or illness; and
(d) any other information, factor, circumstance, or recommendation deemed relevant by the assessing entity or specifically requested by the court.
§ 216.05 Judicial diversion program; court procedures.
1. At any time after the arraignment of an eligible defendant, but prior to the entry of a plea of guilty or the commencement of trial, the court at the request of the eligible defendant, may order an alcohol and substance use evaluation. An eligible defendant may decline to participate in such an evaluation at any time. The defendant shall provide a written authorization, in compliance with the requirements of any applicable state or federal laws, rules or regulations authorizing disclosure of the results of the assessment to the defendant's attorney, the prosecutor, the local probation department, the court, authorized court personnel and other individuals specified in such authorization for the sole purpose of determining whether the defendant should be offered judicial diversion for treatment for substance use, alcohol use and any co-occurring mental disorder or mental illness.
2. Upon receipt of the completed alcohol and substance use evaluation report, the court shall provide a copy of the report to the eligible defendant and the prosecutor.
3. (a) Upon receipt of the evaluation report either party may request a hearing on the issue of whether the eligible defendant should be offered alcohol or substance use treatment pursuant to this article. At such a proceeding, which shall be held as soon as practicable so as to facilitate early intervention in the event that the defendant is found to need alcohol or substance use treatment, the court may consider oral and written arguments, may take testimony from witnesses offered by either party, and may consider any relevant evidence including, but not limited to, evidence that:
(i) the defendant had within the preceding ten years (excluding any time during which the offender was incarcerated for any reason between the time of the acts that led to the youthful offender adjudication and the time of commission of the present offense) been adjudicated a youthful offender for: (A) a violent felony offense as defined in section 70.02 of the penal law; or (B) any offense for which a merit time allowance is not available pursuant to subparagraph (ii) of paragraph (d) of subdivision one of section eight hundred three of the correction law; and
(ii) in the case of a felony offense defined in subdivision five of section 410.91 of this chapter, or section 165.10, 165.11, 190.79 or 190.80 of the penal law, any statement of or submitted by the victim, as defined in paragraph (a) of subdivision two of section 380.50 of this chapter.
(b) Upon completion of such a proceeding, the court shall consider and make findings of fact with respect to whether:
(i) the defendant is an eligible defendant as defined in subdivision one of section 216.00 of this article;
(ii) the defendant has a history of alcohol or substance use;
(iii) such alcohol or substance use is a contributing factor to the defendant's criminal behavior;
(iv) the defendant's participation in judicial diversion could effectively address such use; and
(v) institutional confinement of the defendant is or may not be necessary for the protection of the public.
4. When an authorized court determines, pursuant to paragraph (b) of subdivision three of this section, that an eligible defendant should be offered alcohol or substance use treatment, or when the parties and the court agree to an eligible defendant's participation in alcohol or substance use treatment, an eligible defendant may be allowed to participate in the judicial diversion program offered by this article. Prior to the court's issuing an order granting judicial diversion, the eligible defendant shall be required to enter a plea of guilty to the charge or charges; provided, however, that no such guilty plea shall be required when:
(a) the people and the court consent to the entry of such an order without a plea of guilty; or
(b) based on a finding of exceptional circumstances, the court determines that a plea of guilty shall not be required. For purposes of this subdivision, exceptional circumstances exist when, regardless of the ultimate disposition of the case, the entry of a plea of guilty is likely to result in severe collateral consequences.
5. The defendant shall agree on the record or in writing to abide by the release conditions set by the court, which, shall include: participation in a specified period of alcohol or substance use treatment at a specified program or programs identified by the court, which may include periods of detoxification, residential or outpatient treatment, or both, as determined after taking into account the views of the health care professional who conducted the alcohol and substance use evaluation and any health care professionals responsible for providing such treatment or monitoring the defendant's progress in such treatment; and may include: (i) periodic court appearances, which may include periodic urinalysis; (ii) a requirement that the defendant refrain from engaging in criminal behaviors; (iii) if the defendant needs treatment for opioid use, that he or she may participate in and receive medically prescribed drug treatments under the care of a health care professional licensed or certified under title eight of the education law, acting within his or her lawful scope of practice, provided that no court shall require the use of any specified type or brand of drug during the course of medically prescribed drug treatments.
6. Upon an eligible defendant's agreement to abide by the conditions set by the court, the court shall issue a securing order providing for bail or release on the defendant's own recognizance and conditioning any release upon the agreed upon conditions. The period of alcohol or substance use treatment shall begin as specified by the court and as soon as practicable after the defendant's release, taking into account the availability of treatment, so as to facilitate early intervention with respect to the defendant's substance use or condition and the effectiveness of the treatment program. In the event that a treatment program is not immediately available or becomes unavailable during the course of the defendant's participation in the judicial diversion program, the court may release the defendant pursuant to the securing order.
7. When participating in judicial diversion treatment pursuant to this article, any resident of this state who is covered under a private health insurance policy or contract issued for delivery in this state pursuant to article thirty-two, forty-three or forty-seven of the insurance law or article forty-four of the public health law, or who is covered by a self-funded plan which provides coverage for the diagnosis and treatment of chemical abuse and chemical dependence however defined in such policy; shall first seek reimbursement for such treatment in accordance with the provisions of such policy or contract.
8. During the period of a defendant's participation in the judicial diversion program, the court shall retain jurisdiction of the defendant, provided, however, that the court may allow such defendant to (i) reside in another jurisdiction, or (ii) participate in alcohol and substance use treatment and other programs in the jurisdiction where the defendant resides or in any other jurisdiction, while participating in a judicial diversion program under conditions set by the court and agreed to by the defendant pursuant to subdivisions five and six of this section. The court may require the defendant to appear in court at any time to enable the court to monitor the defendant's progress in alcohol or substance use treatment. The court shall provide notice, reasonable under the circumstances, to the people, the treatment provider, the defendant and the defendant's counsel whenever it orders or otherwise requires the appearance of the defendant in court. Failure to appear as required without reasonable cause therefor shall constitute a violation of the conditions of the court's agreement with the defendant.
9. (a) If at any time during the defendant's participation in the judicial diversion program, the court has reasonable grounds to believe that the defendant has violated a release condition in an important respect or has willfully failed to appear before the court as requested, the court except as provided in subdivision two of section 510.50 of this chapter regarding a failure to appear, shall direct the defendant to appear or issue a bench warrant to a police officer or an appropriate peace officer directing him or her to take the defendant into custody and bring the defendant before the court without unnecessary delay; provided, however, that under no circumstances shall a defendant who requires treatment for opioid use be deemed to have violated a release condition on the basis of his or her participation in medically prescribed drug treatments under the care of a health care professional licensed or certified under title eight of the education law, acting within his or her lawful scope of practice. The relevant provisions of section 530.60 of this chapter relating to issuance of securing orders shall apply to such proceedings under this subdivision.
(b) In determining whether a defendant violated a condition of his or her release under the judicial diversion program, the court may conduct a summary hearing consistent with due process and sufficient to satisfy the court that the defendant has, in fact, violated the condition.
(c) If the court determines that the defendant has violated a condition of his or her release under the judicial diversion program, the court may modify the conditions thereof, reconsider the order of recognizance or bail pursuant to subdivision two of section 510.30 of this chapter, or terminate the defendant's participation in the judicial diversion program; and when applicable proceed with the defendant's sentencing in accordance with the agreement. Notwithstanding any provision of law to the contrary, the court may impose any sentence authorized for the crime of conviction in accordance with the plea agreement, or any lesser sentence authorized to be imposed on a felony drug offender pursuant to paragraph (b) or (c) of subdivision two of section 70.70 of the penal law taking into account the length of time the defendant spent in residential treatment and how best to continue treatment while the defendant is serving that sentence. In determining what action to take for a violation of a release condition, the court shall consider all relevant circumstances, including the views of the prosecutor, the defense and the alcohol or substance use treatment provider, and the extent to which persons who ultimately successfully complete a drug treatment regimen sometimes relapse by not abstaining from alcohol or substance use or by failing to comply fully with all requirements imposed by a treatment program. The court shall also consider using a system of graduated and appropriate responses or sanctions designed to address such inappropriate behaviors, protect public safety and facilitate, where possible, successful completion of the alcohol or substance use treatment program.
(d) Nothing in this subdivision shall be construed as preventing a court from terminating a defendant's participation in the judicial diversion program for violating a release condition when such a termination is necessary to preserve public safety. Nor shall anything in this subdivision be construed as precluding the prosecution of a defendant for the commission of a different offense while participating in the judicial diversion program.
(e) A defendant may at any time advise the court that he or she wishes to terminate participation in the judicial diversion program, at which time the court shall proceed with the case and, where applicable, shall impose sentence in accordance with the plea agreement. Notwithstanding any provision of law to the contrary, the court may impose any sentence authorized for the crime of conviction in accordance with the plea agreement, or any lesser sentence authorized to be imposed on a felony drug offender pursuant to paragraph (b) or (c) of subdivision two of section 70.70 of the penal law taking into account the length of time the defendant spent in residential treatment and how best to continue treatment while the defendant is serving that sentence.
10. Upon the court's determination that the defendant has successfully completed the required period of alcohol or substance use treatment and has otherwise satisfied the conditions required for successful completion of the judicial diversion program, the court shall comply with the terms and conditions it set for final disposition when it accepted the defendant's agreement to participate in the judicial diversion program. Such disposition may include, but is not limited to: (a) requiring the defendant to undergo a period of interim probation supervision and, upon the defendant's successful completion of the interim probation supervision term, notwithstanding the provision of any other law, permitting the defendant to withdraw his or her guilty plea and dismissing the indictment; or (b) requiring the defendant to undergo a period of interim probation supervision and, upon successful completion of the interim probation supervision term, notwithstanding the provision of any other law, permitting the defendant to withdraw his or her guilty plea, enter a guilty plea to a misdemeanor offense and sentencing the defendant as promised in the plea agreement, which may include a period of probation supervision pursuant to section 65.00 of the penal law; or (c) allowing the defendant to withdraw his or her guilty plea and dismissing the indictment.
11. Nothing in this article shall be construed as restricting or prohibiting courts or district attorneys from using other lawful procedures or models for placing appropriate persons into alcohol or substance use treatment.
TITLE J--PROSECUTION OF INDICTMENTS IN SUPERIOR COURTS--PLEA TO SENTENCE
ARTICLE 220--THE PLEA
Section 220.10 Plea; kinds of pleas.
220.15 Plea; plea of not responsible by reason of mental disease or defect.
220.20 Plea; meaning of lesser included offense for plea purposes.
220.30 Plea; plea of guilty to part of indictment; plea covering other indictments.
220.35 Hearing on predicate felony conviction.
220.40 Plea; plea of not guilty; meaning.
220.50 Plea; entry of plea.
220.51 Notice before entry of plea or trial involving a public official.
220.60 Plea; change of plea.
§ 220.10 Plea; kinds of pleas.
The only kinds of pleas which may be entered to an indictment are those specified in this section:
1. The defendant may as a matter of right enter a plea of "not guilty" to the indictment.
2. Except as provided in subdivision five, the defendant may as a matter of right enter a plea of "guilty" to the entire indictment.
3. Except as provided in subdivision five, where the indictment charges but one crime, the defendant may, with both the permission of the court and the consent of the people, enter a plea of guilty of a lesser included offense.
4. Except as provided in subdivision five, where the indictment charges two or more offenses in separate counts, the defendant may, with both the permission of the court and the consent of the people, enter a plea of:
(a) Guilty of one or more but not all of the offenses charged; or
(b) Guilty of a lesser included offense with respect to any or all of the offenses charged; or
(c) Guilty of any combination of offenses charged and lesser offenses included within other offenses charged.
5. (a) (i) Where the indictment charges one of the class A felonies defined in article two hundred twenty of the penal law or the attempt to commit any such class A felony, then any plea of guilty entered pursuant to subdivision three or four of this section must be or must include at least a plea of guilty of a class B felony.
(iii) Where the indictment charges one of the class B felonies defined in article two hundred twenty of the penal law then any plea of guilty entered pursuant to subdivision three or four must be or must include at least a plea of guilty of a class D felony.
(b) Where the indictment charges any class B felony, other than a class B felony defined in article two hundred twenty of the penal law or a class B violent felony offense as defined in subdivision one of section 70.02 of the penal law, then any plea of guilty entered pursuant to subdivision three or four must be or must include at least a plea of guilty of a felony.
(c) Where the indictment charges a felony, other than a class A felony or class B felony defined in article two hundred twenty of the penal law or class B or class C violent felony offense as defined in subdivision one of section 70.02 of the penal law, and it appears that the defendant has previously been subjected to a predicate felony conviction as defined in penal law section 70.06 then any plea of guilty entered pursuant to subdivision three or four must be or must include at least a plea of guilty of a felony.
(d) Where the indictment charges a class A felony, other than those defined in article two hundred twenty of the penal law, or charges a class B or class C violent felony offense as defined in subdivision one of section 70.02 of the penal law, then a plea of guilty entered pursuant to subdivision three or four must be as follows:
(i) Where the indictment charges a class A felony offense or a class B violent felony offense which is also an armed felony offense then a plea of guilty must include at least a plea of guilty to a class C violent felony offense;
(ii) Except as provided in subparagraph (i) of this paragraph, where the indictment charges a class B violent felony offense or a class C violent felony offense, then a plea of guilty must include at least a plea of guilty to a class D violent felony offense;
(iii) Where the indictment charges the class D violent felony offense of criminal possession of a weapon in the third degree as defined in subdivision four of section 265.02 of the penal law, and the defendant has not been previously convicted of a class A misdemeanor defined in the penal law in the five years preceding the commission of the offense, then a plea of guilty must be either to the class E violent felony offense of attempted criminal possession of a weapon in the third degree or to the class A misdemeanor of criminal possession of a weapon in the fourth degree as defined in subdivision one of section 265.01 of the penal law;
(iv) Where the indictment charges the class D violent felony offenses of criminal possession of a weapon in the third degree as defined in subdivision four of section 265.02 of the penal law and the provisions of subparagraph (iii) of this paragraph do not apply, or subdivision five, seven or eight of section 265.02 of the penal law, then a plea of guilty must include at least a plea of guilty to a class E violent felony offense.
(e) A defendant may not enter a plea of guilty to the crime of murder in the first degree as defined in section 125.27 of the penal law; provided, however, that a defendant may enter such a plea with both the permission of the court and the consent of the people when the agreed upon sentence is either life imprisonment without parole or a term of imprisonment for the class A-I felony of murder in the first degree other than a sentence of life imprisonment without parole.
(f) The provisions of this subdivision shall apply irrespective of whether the defendant is thereby precluded from entering a plea of guilty of any lesser included offense.
(g) Where the defendant is a juvenile offender, the provisions of paragraphs (a), (b), (c) and (d) of this subdivision shall not apply and any plea entered pursuant to subdivision three or four of this section, must be as follows:
(i) If the indictment charges a person fourteen or fifteen years old with the crime of murder in the second degree any plea of guilty entered pursuant to subdivision three or four must be a plea of guilty of a crime for which the defendant is criminally responsible;
(ii) If the indictment does not charge a crime specified in subparagraph (i) of this paragraph, then any plea of guilty entered pursuant to subdivision three or four of this section must be a plea of guilty of a crime for which the defendant is criminally responsible unless a plea of guilty is accepted pursuant to subparagraph (iii) of this paragraph;
(iii) Where the indictment does not charge a crime specified in subparagraph (i) of this paragraph, the district attorney may recommend removal of the action to the family court. Upon making such recommendation the district attorney shall submit a subscribed memorandum setting forth: (1) a recommendation that the interests of justice would best be served by removal of the action to the family court; and (2) if the indictment charges a thirteen year old with the crime of murder in the second degree, or a fourteen or fifteen year old with the crimes of rape in the first degree as defined in subdivision one of section 130.35 of the penal law, or criminal sexual act in the first degree as defined in subdivision one of section 130.50 of the penal law, or an armed felony as defined in paragraph (a) of subdivision forty-one of section 1.20 of this chapter specific factors, one or more of which reasonably supports the recommendation, showing, (i) mitigating circumstances that bear directly upon the manner in which the crime was committed, or (ii) where the defendant was not the sole participant in the crime, that the defendant's participation was relatively minor although not so minor as to constitute a defense to the prosecution, or (iii) possible deficiencies in proof of the crime, or (iv) where the juvenile offender has no previous adjudications of having committed a designated felony act, as defined in subdivision eight of section 301.2 of the family court act, regardless of the age of the offender at the time of commission of the act, that the criminal act was not part of a pattern of criminal behavior and, in view of the history of the offender, is not likely to be repeated.
If the court is of the opinion based on specific factors set forth in the district attorney's memorandum that the interests of justice would best be served by removal of the action to the family court, a plea of guilty of a crime or act for which the defendant is not criminally responsible may be entered pursuant to subdivision three or four of this section, except that a thirteen year old charged with the crime of murder in the second degree may only plead to a designated felony act, as defined in subdivision eight of section 301.2 of the family court act.
Upon accepting any such plea, the court must specify upon the record the portion or portions of the district attorney's statement the court is relying upon as the basis of its opinion and that it believes the interests of justice would best be served by removal of the proceeding to the family court. Such plea shall then be deemed to be a juvenile delinquency fact determination and the court upon entry thereof must direct that the action be removed to the family court in accordance with the provisions of article seven hundred twenty-five of this chapter.
(g-1) Where a defendant is an adolescent offender, the provisions of paragraphs (a), (b), (c) and (d) of this subdivision shall not apply. Where the plea is to an offense constituting a misdemeanor, the plea shall be deemed replaced by an order of fact-finding in a juvenile delinquency proceeding, pursuant to section 346.1 of the family court act, and the action shall be removed to the family court in accordance with article seven hundred twenty-five of this chapter. Where the plea is to an offense constituting a felony, the court may remove the action to the family court in accordance with section 722.23 and article seven hundred twenty-five of this chapter.
(h) Where the indictment charges the class E felony offense of aggravated harassment of an employee by an incarcerated individual as defined in section 240.32 of the penal law, then a plea of guilty must include at least a plea of guilty to a class E felony.
6. The defendant may, with both the permission of the court and the consent of the people, enter a plea of not responsible by reason of mental disease or defect to the indictment in the manner prescribed in section 220.15 of this chapter.
§ 220.15 Plea; plea of not responsible by reason of mental disease or defect.
1. The defendant may, with both the permission of the court and the consent of the people, enter a plea of not responsible by reason of mental disease or defect to the entire indictment. The district attorney must state to the court either orally on the record or in a writing filed with the court that the people consent to the entry of such plea and that the people are satisfied that the affirmative defense of lack of criminal responsibility by reason of mental disease or defect would be proven by the defendant at a trial by a preponderance of the evidence. The district attorney must further state to the court in detail the evidence available to the people with respect to the offense or offenses charged in the indictment, including all psychiatric evidence available or known to the people. If necessary, the court may conduct a hearing before accepting such plea. The district attorney must further state to the court the reasons for recommending such plea. The reasons shall be stated in detail and not in conclusory terms.
2. Counsel for the defendant must state that in his opinion defendant has the capacity to understand the proceedings and to assist in his own defense and that the defendant understands the consequences of a plea of not responsible by reason of mental disease or defect. Counsel for the defendant must further state whether in his opinion defendant has any viable defense to the offense or offenses charged in the indictment other than the affirmative defense of lack of criminal responsibility by reason of mental disease or defect. Counsel for the defendant must further state in detail the psychiatric evidence available to the defendant with respect to such latter affirmative defense.
3. Before accepting a plea of not responsible by reason of mental disease or defect, the court must address the defendant in open court and determine that he understands each of the following:
(a) The nature of the charge to which the plea is offered, and the consequences of such plea;
(b) That he has the right to plead not guilty or to persist in that plea if it has already been entered;
(c) That he has the right to be tried by a jury, the right to the assistance of counsel, the right to confront and cross-examine witnesses against him, and the right not to be compelled to incriminate himself;
(d) That if he pleads not responsible by reason of mental disease or defect there will be no trial with respect to the charges contained in the indictment, so that by offering such plea he waives the right to such trial;
(e) That if he pleads not responsible by reason of mental disease or defect the court will ask him questions about the offense or offenses charged in the indictment and that he will thereby waive his right not to be compelled to incriminate himself; and
(f) That the acceptance of a plea of not responsible by reason of mental disease or defect is the equivalent of a verdict of not responsible by reason of mental disease or defect after trial.
4. The court shall not accept a plea of not responsible by reason of mental disease or defect without first determining that there is a factual basis for such plea. The court must address the defendant personally in open court and determine that the plea is voluntary, knowingly made, and not the result of force, threats, or promises. The court must inquire whether the defendant's willingness to plead results from prior discussions between the district attorney and counsel for the defendant. The court must be satisfied that the defendant understands the proceedings against him, has sufficient capacity to assist in his own defense and understands the consequences of a plea of not responsible by reason of mental disease or defect. The court may make such inquiry as it deems necessary or appropriate for the purpose of making the determinations required by this section.
5. Before accepting a plea of not responsible by reason of mental disease or defect, the court must find and state each of the following on the record in detail and not in conclusory terms:
(a) That it is satisfied that each element of the offense or offenses charged in the indictment would be established beyond a reasonable doubt at a trial;
(b) That the affirmative defense of lack of criminal responsibility by reason of mental disease or defect would be proven by the defendant at a trial by a preponderance of the evidence;
(c) That the defendant has the capacity to understand the proceedings against him and to assist in his own defense;
(d) That such plea by the defendant is knowingly and voluntarily made and that there is a factual basis for the plea;
(e) That the acceptance of such plea is required in the interest of the public in the effective administration of justice.
6. When a plea of not responsible by reason of mental disease or defect is accepted by the court and recorded upon the minutes, the provisions of section 330.20 of this chapter shall govern all subsequent proceedings against the defendant.
§ 220.20 Plea; meaning of lesser included offense for plea purposes.
1. A "lesser included offense," within the meaning of subdivisions four and five of section 220.10 relating to the entry of a plea of guilty to an offense of lesser grade than one charged in a count of an indictment, means not only a "lesser included offense" as that term is defined in subdivision thirty-seven of section 1.20, but also one which is deemed to be such pursuant to the following rules:
(a) Where the only culpable mental state required for the crime charged is that the proscribed conduct be performed intentionally, any lesser offense consisting of reckless or criminally negligent, instead of intentional, performance of the same conduct is deemed to constitute a lesser included offense;
(b) Where the only culpable mental state required for the crime charged is that the proscribed conduct be performed recklessly, any lesser offense consisting of criminally negligent, instead of reckless, performance of the same conduct is deemed to constitute a lesser included offense;
(c) Where according to the allegations of a count a defendant's participation in the crime charged consisted in whole or in part of solicitation of another person to engage in the proscribed conduct, the offense of criminal solicitation, in any appropriate degree, is, with respect to such defendant, deemed to constitute a lesser included offense;
(d) Where according to the allegations of a count a defendant's participation in the crime charged consisted in whole or in part of conspiratorial agreement or conduct with another person to engage in the proscribed conduct, the crime of conspiracy, in any appropriate degree, is, with respect to such defendant, deemed to constitute a lesser included offense;
(e) Where according to the allegations of a count charging a felony a defendant's participation in such felony consisted in whole or in part of providing another person with means or opportunity for engaging in the proscribed conduct, the crime of criminal facilitation, in any appropriate degree, is, with respect to such defendant, deemed to constitute a lesser included offense;
(f) Where the crime charged is assault or attempted assault, in any degree, allegedly committed by intentionally causing or attempting to cause physical injury to a person by the immediate use of physical force against him, or where the crime charged is menacing, as defined in section 120.15 of the penal law, the offense of harassment, as defined in subdivision one of section 240.25 of the penal law, is deemed to constitute a lesser included offense;
(g) Where the crime charged is murder in the second degree as defined in subdivision three of section 125.25 of the penal law, allegedly committed in the course of the commission or attempted commission of a designated one of the underlying felonies enumerated in said subdivision, or during immediate flight therefrom, such designated underlying felony or attempted felony is deemed to constitute a lesser included offense. If such designated underlying felony is alleged to be robbery, burglary, kidnapping, or arson, without specification of the degree thereof, or an attempt to commit the same, a plea of guilty may be entered to the lowest degree thereof only, or as the case may be to attempted commission of such felony in its lowest degree, unless the allegations of the count clearly indicate the existence of all the elements of a higher degree;
(h) Where the crime charged is criminal sale of a controlled substance, any offense of criminal sale or possession of a controlled substance, in any degree, is deemed to constitute a lesser included offense.
(i) Where the crime charged is criminal possession of a controlled substance, any offense of criminal possession of a controlled substance, in any degree, is deemed to constitute a lesser included offense.
(j) Where the offense charged is unlawful disposal of hazardous wastes in violation of section 27-0914 of the environmental conservation law, any offense of unlawful disposal or possession of hazardous wastes as set forth in sections 71-2707, 71-2709, 71-2711 and 71-2713 of such law, in any degree, is deemed to constitute a lesser included offense;
(k) Where the offense charged is unlawful possession of hazardous wastes in violation of section 27-0914 of the environmental conservation law, any offense of unlawful possession of hazardous wastes as set forth in sections 71-2707 and 71-2709 of such law, in any degree, is deemed to constitute a lesser included offense.
2. An offense is deemed to be a lesser included offense with respect to a crime charged in an indictment, pursuant to the provisions of subdivision one, only for purposes of conviction upon a plea of guilty and not for purposes of conviction by verdict. For the latter purpose, an offense constitutes a lesser included one only when it conforms to the definition of that term contained in subdivision thirty-seven of section 1.20.
§ 220.30 Plea; plea of guilty to part of indictment; plea covering other indictments.
1. A plea of guilty not embracing the entire indictment, entered pursuant to the provisions of subdivision four or five of section 220.10, is a "plea of guilty to part of the indictment."
2. The entry and acceptance of a plea of guilty to part of the indictment constitutes a disposition of the entire indictment.
3. (a) (i) Except as provided in paragraph (b), or in paragraph (c) dealing with juvenile offenders, a plea of guilty, whether to the entire indictment or to part of the indictment, may, with both the permission of the court and the consent of the people, be entered and accepted upon the condition that it constitutes a complete disposition of one or more other indictments against the defendant then pending.
(ii) If the other indictment or indictments are pending in a different court or courts, they shall not be disposed of under this subdivision unless the other courts and the appropriate prosecutors also transmit their written permission and consent as provided in subdivision four of section 220.50 of this article; in such a case the court in which the plea is entered shall so notify the other courts which, upon such notice, shall dismiss the appropriate indictments pending therein.
(b) (i) A plea of guilty, whether to the entire indictment or to part of the indictment for any crime other than a class A felony, may not be accepted on the condition that it constitutes a complete disposition of one or more other indictments against the defendant wherein is charged a class A-I felony as defined in article two hundred twenty of the penal law or the attempt to commit any such class A-I felony, except that an eligible youth, as defined in subdivision two of section 720.10, may plea to a class B felony, upon consent of the district attorney, for purposes of adjudication as a youthful offender.
(ii) Where it appears that the defendant has previously been subjected to a predicate felony conviction as defined in paragraph (b) of subdivision (1) of section 70.06 of the penal law, a plea of guilty, whether to the entire indictment or to part of the indictment, of any offense other than a felony may not be accepted on the condition that it constitutes a complete disposition of one or more other indictments against the defendant wherein is charged a felony, other than a class A felony or a class B or class C violent felony offense as defined in subdivision one of section 70.02 of the penal law.
(iii) A plea of guilty, whether to the entire indictment or part of the indictment for any crime other than a class A felony or a class B or class C violent felony offense as defined in subdivision one of section 70.02 of the penal law, may not be accepted on the condition that it constitutes a complete disposition of one or more other indictments against the defendant wherein is charged a class A felony, other than those defined in article two hundred twenty of the penal law, or a class B violent felony offense which is also an armed felony offense.
(iv) Except as provided in subparagraph (iii) of this paragraph, a plea of guilty, whether to the entire indictment or part of the indictment, for any crime other than a class A felony or a class B, C, or D violent felony offense as defined in subdivision one of section 70.02 of the penal law, may not be accepted on the condition that it constitutes a complete disposition of one or more other indictments against the defendant wherein is charged a class B or class C violent felony offense as defined in subdivision one of section 70.02 of the penal law,
(v) A plea of guilty, whether to the entire indictment or part of the indictment, for any crime other than a violent felony offense as defined in section 70.02 of the penal law, may not be accepted on the condition that it constitutes a complete disposition of one or more other indictments against the defendant wherein is charged the class D violent felony offenses of criminal possession of a weapon in the third degree as defined in subdivision four, five, seven or eight of section 265.02 of the penal law; provided, however, a plea of guilty, whether to the entire indictment or part of the indictment, for the class A misdemeanor of criminal possession of a weapon in the fourth degree as defined in subdivision one of section 265.01 of the penal law may be accepted on the condition that it constitutes a complete disposition of one or more other indictments against the defendant wherein is charged the class D violent felony offense of criminal possession of a weapon in the third degree as defined in subdivision four of section 265.02 of the penal law when the defendant has not been previously convicted of a class A misdemeanor defined in the penal law in the five years preceding the commission of the offense.
(vi) A plea of guilty, whether to the entire indictment or to part of the indictment for any crime other than a felony, may not be accepted on the condition that it constitutes a complete disposition of one or more other indictments against the defendant wherein is charged a class B felony other than a class B violent felony offense as defined in subdivision one of section 70.02 of the penal law.
(vii) A defendant may not enter a plea of guilty to the crime of murder in the first degree as defined in section 125.27 of the penal law; provided, however, that a defendant may enter such a plea with both the permission of the court and the consent of the people when the agreed upon sentence is either life imprisonment without parole or a term of imprisonment for the class A-I felony of murder in the first degree other than a sentence of life imprisonment without parole.
(viii) A plea of guilty, whether to the entire indictment or to part of the indictment for any crime other than a class A or class B felony may not be accepted on condition that it constitutes a complete disposition of one or more other indictments against the defendant wherein is charged a class A-II felony defined in article two hundred twenty of the penal law or the attempt to commit any such felony.
(ix) A plea of guilty, whether to the entire indictment or to part of the indictment for any crime other than a class B, a class C, or a class D felony, may not be accepted on condition that it constitutes a complete disposition of one or more other indictments against the defendant wherein is charged a class B felony defined in article two hundred twenty of the penal law.
(c) Where the defendant is a juvenile offender, a plea of guilty, whether to the entire indictment or to part of the indictment, of any offense other than one for which the defendant is criminally responsible may not be accepted on the condition that it constitutes a complete disposition of one or more other indictments against the defendant.
§ 220.35 Hearing on predicate felony conviction.
In any case where the defendant offers to enter a plea of guilty of a misdemeanor to constitute a disposition of the entire indictment or to constitute a complete disposition of one or more other indictments, or both, and the permission of the court and the consent of the people must be withheld solely upon the ground that it appears the defendant has previously been subjected to a predicate felony conviction as defined in paragraph (b) of subdivision one of section 70.06 of the penal law the court, if the defendant does not admit such predicate felony conviction, may conduct the hearing required by section 400.21 for the purpose of determining whether the plea may be entered or must be rejected. The finding upon any such hearing shall also be binding upon the defendant for the purpose of sentence.
§ 220.40 Plea; plea of not guilty; meaning.
A plea of not guilty constitutes a denial of every allegation of the indictment.
§ 220.50 Plea; entry of plea.
1. A plea to an indictment, other than one against a corporation, must be entered orally by the defendant in person; except that a plea to an indictment which does not charge a felony may, with the permission of the court, be entered by counsel upon submission by him of written authorization of the defendant.
2. A plea to an indictment against a corporation must be entered by counsel.
3. If a defendant who is required to enter a plea to an indictment refuses to do so or remains mute, the court must enter a plea of not guilty to the indictment in his behalf.
4. Where the permission of the court and the consent of the people are a prerequisite to the entry of a plea of guilty, the court and the prosecutor must either orally on the record or in a writing filed with the indictment state their reason for granting permission or consenting, as the case may be, to entry of the plea of guilty.
5. When a sentence is agreed upon by the prosecutor and a defendant as a predicate to entry of a plea of guilty, the court or the prosecutor must orally on the record, or in writing filed with the court, state the sentence agreed upon as a condition of such plea.
6. Where the defendant consents to a plea of guilty to the indictment, or part of the indictment, or consents to be prosecuted by superior court information as set forth in section 195.20 of this chapter, and if the defendant and prosecutor agree that as a condition of the plea or the superior court information certain property shall be forfeited by the defendant, the description and present estimated monetary value of the property shall be stated in court by the prosecutor at the time of plea. Within thirty days of the acceptance of the plea or superior court information by the court, the prosecutor shall send to the commissioner of the division of criminal justice services a document containing the name of the defendant, the description and present estimated monetary value of the property, any other demographic data as required by the division of criminal justice services and the date the plea or superior court information was accepted. Any property forfeited by the defendant as a condition to a plea of guilty to an indictment, or a part thereof, or to a superior court information, shall be disposed of in accordance with the provisions of section thirteen hundred forty-nine of the civil practice law and rules.
* 7. Prior to accepting a defendant's plea of guilty to a count or counts of an indictment or a superior court information charging a felony offense, the court must advise the defendant on the record, that if the defendant is not a citizen of the United States, the defendant's plea of guilty and the court's acceptance thereof may result in the defendant's deportation, exclusion from admission to the United States or denial of naturalization pursuant to the laws of the United States. Where the plea of guilty is to a count or counts of an indictment charging a felony offense other than a violent felony offense as defined in section 70.02 of the penal law or an A-I felony offense other than an A-I felony as defined in article two hundred twenty of the penal law, the court must also, prior to accepting such plea, advise the defendant that, if the defendant is not a citizen of the United States and is or becomes the subject of a final order of deportation issued by the United States Immigration and Naturalization Service, the defendant may be paroled to the custody of the Immigration and Naturalization Service for deportation purposes at any time subsequent to the commencement of any indeterminate or determinate prison sentence imposed as a result of the defendant's plea. The failure to advise the defendant pursuant to this subdivision shall not be deemed to affect the voluntariness of a plea of guilty or the validity of a conviction, nor shall it afford a defendant any rights in a subsequent proceeding relating to such defendant's deportation, exclusion or denial of naturalization.
* NB Repealed September 1, 2025
8. Prior to accepting a defendant's plea of guilty to a count or counts of an indictment or a superior court information charging a felony offense, the court must advise the defendant on the record that conviction will result in loss of the right to vote while the defendant is serving a felony sentence in a correctional facility and that the right to vote will be restored upon the defendant's release.
§ 220.51 Notice before entry of plea or trial involving a public official.
Prior to trial, and before accepting a defendant's plea to a count or counts of an indictment or a superior court information charging a felony offense, the court must individually advise the defendant, on the record, that if at the time of the alleged felony crime the defendant was a public official, as defined in subdivision six of section one hundred fifty-six of the retirement and social security law, the defendant's plea of guilty and the court's acceptance thereof or conviction after trial may result in proceedings for the reduction or revocation of such defendant's pension pursuant to article three-B of the retirement and social security law.
§ 220.60 Plea; change of plea.
1. A defendant who has entered a plea of not guilty to an indictment may as a matter of right withdraw such plea at any time before rendition of a verdict and enter a plea of guilty to the entire indictment pursuant to subdivision two, but subject to the limitation in subdivision five of section 220.10.
2. A defendant who has entered a plea of not guilty to an indictment may, with both the permission of the court and the consent of the people, withdraw such plea at any time before the rendition of a verdict and enter: (a) a plea of guilty to part of the indictment pursuant to subdivision three or four but subject to the limitation in subdivision five of section 220.10, or (b) a plea of not responsible by reason of mental disease or defect to the indictment pursuant to section 220.15 of this chapter.
3. At any time before the imposition of sentence, the court in its discretion may permit a defendant who has entered a plea of guilty to the entire indictment or to part of the indictment, or a plea of not responsible by reason of mental disease or defect, to withdraw such plea, and in such event the entire indictment, as it existed at the time of such plea, is restored.
4. When a special information has been filed pursuant to section 200.61 or 200.62 of this chapter, a defendant may enter a plea of guilty to the count or counts of the indictment to which the special information applies without admitting the allegations of the special information. Whenever a defendant enters a plea of guilty to the count or counts of the indictment to which the special information applies without admitting the allegations of the special information, the court must, unless the people consent otherwise, conduct a hearing in accordance with paragraph (b) of subdivision two of section 200.62 or paragraph (b) of subdivision three of section 200.61 of this chapter, whichever is applicable.
ARTICLE 230--REMOVAL OF ACTION
Section 230.10 Removal of action; from supreme court to county court and from county court to supreme court; at instance of court.
230.11 Removal of action to certain courts within a county.
230.20 Removal of action; removal from county court to supreme court and change of venue; upon motion of party.
230.21 Removal of action to certain courts in an adjoining county.
230.30 Removal of action; stay of trial pending motion therefor.
230.40 Removal of action; determinations and rulings before and after removal; by which courts made.
§ 230.10 Removal of action; from supreme court to county court and from county court to supreme court; at instance of court.
Upon order of an appropriate court or judge, made at its or his own instance pursuant to rules established by the appellate division of the appropriate department, (a) an indictment filed with the supreme court at a term held in a particular county outside of New York City may, prior to entry of a plea of guilty thereto or commencement of a trial thereof, be removed to the county court of such county, and (b) an indictment filed in a county court may similarly be removed to the supreme court at a term held or to be held in the same county. Each of the appellate divisions of the second, third and fourth departments may establish rules authorizing such removals with respect to the superior courts within its department, and prescribing the courts or judges who may order such removals and other procedural matters involved therein.
§ 230.11 Removal of action to certain courts within a county.
1. In any county outside a city having a population of one million or more, upon or after arraignment of a defendant on an indictment pending in a superior court having jurisdiction thereof, such court may, upon motion of the defendant and after giving the district attorney an opportunity to be heard, order that the action be removed from the court in which the matter is pending to another court in the same county that has been designated as a human trafficking court or veterans treatment court by the chief administrator of the courts, and such human trafficking court or veterans treatment court may then conduct such action to judgment or other final disposition; provided, however, that no court may order removal pursuant to this section to a veterans treatment court of a family offense charge described in subdivision one of section 530.11 of this chapter where the accused and the person alleged to be the victim of such offense charged are members of the same family or household as defined in such subdivision one of section 530.11; and provided further 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 human trafficking court or veterans treatment 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.
2. Upon providing notification pursuant to paragraph (a) or (b) of subdivision one of this section, the human trafficking court or veterans treatment court shall promptly give notice to the defendant, his or her counsel and the district attorney.
§ 230.20 Removal of action; removal from county court to supreme court and change of venue; upon motion of party.
1. At any time within the period provided by section 255.20, the appellate division of the department embracing the county, upon motion of either the defendant or the people, may, for good cause shown, order that the indictment and action be removed from the county court to the supreme court at a term held or to be held in the same county.
2. At any time within the period provided by section 255.20, the appellate division of the department embracing the county in which the superior court is located may, upon motion of either the defendant or the people demonstrating reasonable cause to believe that a fair and impartial trial cannot be had in such county, order either:
(a) that the indictment and a