Category Archives: Speedy Trial

How to get charges dismissed on speedy trial (CPL §30.30) grounds

Criminal Procedure Law (“CPL”) § 30.30 is the statutory speedy trial rule in New York State.  It sets forth the periods of time in which the People must be ready for trial, after the commencement of a criminal action, generally by the filing of an accusatory instrument.

The statute does not require the People (or the police) to speedily commence a criminal action (i.e. file an accusatory) after the commission of a crime.  Those time limitations are outlined in § 30.10.  See People v. Faulkner, 36 A.D.3d 1009 (3rd Dep’t, 2007).

CPL § 30.30 codifies a defendant’s right to a speedy trial, pursuant to CPL § 30.20 and the Constitutional rights guaranteed under the Sixth and Fourteenth Amendments to the U.S. Constitution, as well as Article I, section Six of the New York State Constitution.  See People v. Singer, 44 N.Y.2d 241 (1978). As such, both statutory and Constitutional claims may be raised.

The initial burden is upon the defendant to make a motion that his Constitutional and/or statutory speedy trial rights have been violated.  People v. Brossoit, 682 N.Y.S.2d 273 (1998). The burden then shifts to the People to respond to the motion, which may include identifying any period(s) of time that may be excluded (“tolled”) from the statutory time frame.

Excludable time: Section 30.30(4) lists certain periods that are excludable, and there is much caselaw regarding these exclusions. One such exclusion often relied on by prosecutors is the delay resulting from a defendant’s absence or unavailability, pursuant to § 30.30(4)(c)(i). In order to prove this exclusion, the People must show for absence that the defendant’s location is unknown and that he is avoiding apprehension or prosecution, or his location cannot be determined by due diligence; and for unavailability that his location is known but his presence for trial cannot be obtained by due diligence.

Thus, even where a defendant may be avoiding the charges by not going to court (i.e. on an outstanding bench warrant), the People still must show some due diligence in trying to secure the defendant’s presence for prosecution.  See People v. Bolden, 81 N.Y.2d 146 (1993). Absent such a showing, the charge(s) should be dismissed, upon a motion pursuant to CPL §170.30(1)(e).

However, be aware that in some limited circumstances the prosecutor could re-file or indict certain charges against the defendant, if it is still within the proper statutory time period to commence an action pursuant to §30.10.

By: Andrew Fiske, Esq.

Buffalo, New York

(716) 852-3600

fiskelaw@gmail.com

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