N.Y. Criminal Procedure Law § 180.85: Termination of prosecution

§ 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.