N.Y. Criminal Procedure Law § 30.30: Speedy trial; time limitations

§ 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. (a) 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. The court may

deem the people not ready for trial based on the people's failure to

comply with the provisions of article two hundred forty-five of this

chapter only if it finds that the people's certificate of compliance

that accompanied or preceded the people's statement of readiness at

issue was invalid under section 245.50 of this chapter.

(b) Pursuant to section 245.50 of this chapter, the certificate of

compliance is deemed invalid when the court determined that the people

did not exercise due diligence and, in making such determination, the

court looked at the totality of the prosecution's efforts to comply with

the provisions of article two hundred forty-five of this chapter, rather

than assess the prosecution's efforts item by item, and considered the

factors relevant to assessing due diligence, which include, but are not

limited to: the efforts made by the prosecutor to comply with the

requirements of article two hundred forty-five of this chapter; the

volume of discovery provided and the volume of discovery outstanding;

the complexity of the case; whether the prosecutor knew that the

belatedly disclosed or allegedly missing material existed; the

explanation for any alleged discovery lapse; the prosecutor's response

when apprised of any allegedly missing discovery; whether the belated

discovery was substantively duplicative, insignificant, or easily

remedied; whether the omission was corrected; whether the prosecution

self-reported the error and took prompt remedial action without court

intervention; and whether the prosecution's delayed disclosure of

discovery was prejudicial to the defense or otherwise impeded the

defense's ability to effectively investigate the case or prepare for

trial.

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.