New York Consolidated Law
Criminal Procedure Law
Article 230 - NY Criminal Procedure Law
REMOVAL OF ACTION
|230.10||Removal of action; from supreme court to county court and from county court to supreme court; at instance of court.|
|230.20||Removal of action; removal from county court to supreme court and change of venue; upon motion of party.|
|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.|
S 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.
S 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 action be removed from such superior court
to a designated superior court of or located in another county; or
(b) that the commissioner of jurors of such county, in consultation
with the appropriate administrative judge of the judicial district in
which the county is located, expand the pool of jurors to encompass
prospective jurors from the jury lists of counties that are within the
judicial district in which, and that are geographically contiguous with
the county in which, such superior court is located.
In making such determination the appellate division shall consider,
among other factors, the hardship on potential jurors and the potential
depletion of a county`s qualified juror list that may result from an
order expanding the jury pool. An order of removal under paragraph (a)
herein must, if the defendant is in custody at the time, include a
provision for transfer of custody by the sheriff or other appropriate
public servant of the county of confinement to the sheriff or other
appropriate public servant of the county to which the action has been
removed. If the order is issued upon motion of the people, the appellate
division may impose such conditions as it deems equitable and
appropriate to insure that the removal does not subject the defendant to
an unreasonable burden in making his defense. Any additional cost to the
people incurred in complying with the order must be borne by the county
from which the action originated.
3. Any motion made pursuant to this section must be based upon papers
stating the grounds therefor, and must be made within the period
provided by section 255.20 and upon five days notice thereof together
with service of the moving papers upon, as the case may be, (a) the
district attorney or (b) either the defendant or his counsel. In any
case, the motion must be made returnable either during the appellate
division term during which such moving papers are served or during the
next term thereof.
4. If the appellate division grants the motion and orders a removal of
the action, a certified copy of such order must be filed with the clerk
of the superior court in which the indictment is pending. Such clerk
must thereupon transmit such instrument, together with the pertinent
papers and proceedings of the action, including all undertakings for
appearances of the defendant and of the witnesses, or a certified copy
or copies of the same, to the term of the superior court to which the
action has been removed. Such latter court must then proceed to conduct
the action to judgment or other final disposition.
S 230.30 Removal of action; stay of trial pending motion therefor.
1. At any time when a timely motion for removal of an action from the
county court to the supreme court or for a change of venue may be made
pursuant to section 230.20, a justice holding a term of the supreme
court in the district in which the indictment is pending, or a justice
of the appellate division of the department in which the indictment is
pending, upon application of either the defendant or the people, may, in
his discretion and for good cause shown, order that the trial of such
indictment be stayed for a designated period, not to exceed thirty days
from the issuance of such order, to allow the applicant party to make a
motion in the appropriate court for removal of the action from a county
court to the supreme court or for a change of venue.
2. Such an order may be issued only upon an application made in
writing and after reasonable notice and opportunity to be heard has been
accorded the other party.
3. Upon issuing the order, the supreme court justice or appellate
division justice must cause the order to be filed with the clerk of the
court in which the indictment is pending. Thereafter, no further
proceedings may be had in such court until a motion for removal or
change of venue, as the case may be, if made within the designated
period, has been determined, or until such designated period has expired
without any such motion having been made.
4. When such an application for a stay has been made to and denied by
a justice of the supreme court or a justice of the appellate division, a
second such application may not be made to any other such justice.
S 230.40 Removal of action; determinations and rulings before
and after removal; by which courts made.
Upon any removal of an indictment and action from one superior court
to another pursuant to the provisions of this article, determinations
and rulings with respect to the action made before such removal are not
thereby rendered invalid. All subsequent determinations and rulings
must be made by the court to which the action is removed; and such
latter court is deemed to have control of the grand jury minutes
underlying the indictment for the purpose of determining post-removal
motions addressed to the legal sufficiency of the grand jury evidence or
the validity of the grand jury proceeding.
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