New York Consolidated Law

Article 210 - NY Criminal Procedure Law

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• Article 210

S 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.

S 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.

S 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, for
the purposes of obtaining counsel and informing a relative or friend
that he 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.

S 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.

S 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.

S 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.

S 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,  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.

S 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.

S 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.

S 210.43 Motion to remove juvenile offender to family court.
 1.    After  a  motion by a juvenile offender, pursuant to subdivision
  five of section 180.75 of  this  chapter,  or  after  arraignment  of  a
  juvenile  offender upon an indictment, the superior court may, on motion
  of any party or on its own motion:
    (a) except as otherwise provided by paragraph (b),  order  removal  of
  the  action  to  the  family court pursuant to the provisions of article
  seven hundred twenty-five of this chapter, if,  after  consideration  of
  the  factors  set  forth  in  subdivision two of this section, the court
  determines that to do so would be in the interests of justice; or
    (b) with the consent of the district attorney,  order  removal  of  an
  action  involving an indictment charging a juvenile offender with murder
  in the second degree as defined in section 125.25 of the penal law; rape
  in the first degree, as defined in subdivision one of section 130.35  of
  the  penal  law;  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, to
  the  family  court  pursuant  to the provisions of article seven hundred
  twenty-five of this chapter if the  court  finds  one  or  more  of  the
  following  factors: (i) mitigating circumstances that bear directly upon
  the manner in which the crime was committed; (ii)  where  the  defendant
  was not the sole participant in the crime, the defendant's participation
  was relatively minor although not so minor as to constitute a defense to
  the  prosecution;  or  (iii)  possible  deficiencies in the proof of the
  crime, and, after consideration of the factors set forth in  subdivision
  two  of this section, the court determined that removal of the action to
  the family court would be in the interests of justice.
    2.  In making its determination pursuant to subdivision  one  of  this
  section  the court shall, to the extent applicable, examine 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)   the purpose and effect of imposing upon the defendant a sentence
  authorized for the offense;
    (f)  the impact of a removal of the case to the family  court  on  the
  safety or welfare of the community;
    (g)   the impact of a removal of the case to the family court upon the
  confidence of the public in the criminal justice system;
    (h)   where the court  deems  it  appropriate,  the  attitude  of  the
  complainant or victim with respect to the motion; and
    (i)   any other relevant fact indicating that a judgment of conviction
  in the criminal court would serve no useful purpose.
    3.  The procedure for bringing on a motion pursuant to subdivision one
  of  this  section,  shall  accord  with  the  procedure  prescribed   in
  subdivisions  one  and two of section 210.45 of this article.  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 on the
  motion papers submitted and, if not, may make such inquiry as  it  deems
  necessary for the purpose of making a determination.
    4.    For  the  purpose  of  making  a  determination pursuant to this
  section, any evidence which is not legally privileged may be introduced.
  If the defendant testifies, his testimony may not be introduced  against
  him  in  any  future proceeding, except to impeach his testimony at such
  future proceeding as inconsistent prior testimony.
    5. a. If the court orders removal of the action to  family  court,  it
  shall  state  on  the  record  the  factor  or  factors  upon  which its
  determination is based, and,  the  court  shall  give  its  reasons  for
  removal in detail and not in conclusory terms.
    b.   The district attorney shall state upon the record the reasons for
  his consent to removal of the action to the family court.   The  reasons
  shall be stated in detail and not in conclusory terms.

S 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.

S 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.

S 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.

S 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.

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