Suffolk County Criminal Defense Attorney

What this means is that if the defendant is charged by way of a complaint rather than an information (remember, the difference is hearsay, as indicated above), unless there is a compelling reason to keep the defendant in custody, the complaint must be converted into an information to cure the hearsay defect within the five or six day period. If the prosecution cannot convert the accusatory instrument within this time, the defendant will be released. As the time begins to run from the defendant’s arraignment, the prosecution always has until the close of business on the fifth or sixth date to accomplish this. Although there is an exception for good cause, this rarely ever exists in a misdemeanor case.

If the crime charged is a felony, New York Criminal Procedure Law § 180.80 states that:

Upon application of a defendant against whom a felony complaint has been filed with a local criminal court, and who, since the time of his arrest or subsequent thereto, has been held in custody pending disposition of such felony complaint, and who has been confined in such custody for a period of more than one hundred twenty hours or, in the event that a Saturday, Sunday or legal holiday occurs during such custody, one hundred forty-four hours, without either a disposition of the felony complaint or commencement of a hearing thereon, the local criminal court must release him on his own recognizance unless:

1. The failure to dispose of the felony complaint or to commence a hearing thereon during such period of confinement was due to the defendant’s request, action or condition, or occurred with his consent; or
2. Prior to the application:
   • (a) The district attorney files with the court a written certification that an indictment has been voted; or
   • (b) An indictment or a direction to file a prosecutor’s information charging an offense based upon conduct alleged in the felony complaint was filed by a grand jury; or
3. The court is satisfied that the people have shown good cause why such order of release should not be issued. Such good cause must consist of some compelling fact or circumstance which precluded disposition of the felony complaint within the prescribed period or rendered such action against the interest of justice.

What does this mean?—What this means is that if the defendant is charged with a felony, one of four things has to happen prior to the expiration of the 120 or 144 hours. The four things are: 1) the case must have been presented to the Grand Jury, who have voted to indict the defendant; 2) a preliminary hearing must be held before a judge; 3) the defendant waives their right to release pursuant to this statute or 4) there is good cause to justify an extension of the time.

It was mentioned in the prior paragraph that there must be an indictment. Many courts have interpreted this statute to afford a short extension of the 180.80 time and the prosecution’s case has been fully presented to the Grand Jury but the Grand Jury has not voted an indictment due to either a) the defendant’s desire to testify b) the defendant’s desire to have the Grand Jury hear from a witness or c) the Grand Jury’s inability to vote based upon their request to hear from a specific witness or obtain additional evidence. [Note that this third reason rarely occurs]

There are a lot of differences between this statute and the 170.70 statute. First (as can be seen) more than just converting an accusatory instrument into an information must be done. Second, the 180.80 time begins to run from the moment that the defendant is arrested and it expires exactly five or six days later. This means that the prosecution must be fully aware of the time of arrest. Third, unlike misdemeanor cases, there may be real life situations when the time could be extended for good cause. An example is in serious assault cases where the victim is the only witness, and is incapacitated as a result of the defendant’s actions. The purpose of this is not to allow the defendant to benefit from their violent offense.

If a defendant is released pursuant to New York Criminal Procedure Law §§ 170.70 or 180.80, their case will be adjourned for a future date once they are released.

If bail has been set or denied, the defendant cannot remain in custody in perpetuity. There is a deep concern that a defendant should not remain in custody on hearsay allegations for longer than a specified period of time. If the allegations cannot be substantiated by an individual with firsthand information (subject to several recognized exceptions) by the end of a certain time period, the defendant must be released. This does not mean that the case is dismissed—it only deals with the defendant’s incarceration status. The time periods and what must occur within these time periods depend on what type of crime the defendant is charged with.

If the crime charged is a misdemeanor, New York Criminal Procedure Law § 170.70 states that:

Upon application of a defendant against whom a misdemeanor complaint is pending in a local criminal court, and who, either at the time of his arraignment thereon or subsequent thereto, has been committed to the custody of the sheriff pending disposition of the action, and who has been confined in such custody for a period of more than five days, not including Sunday, without any information having been filed in replacement of such misdemeanor complaint, the criminal court must release the defendant on his own recognizance unless:

1. The defendant has waived prosecution by information and consented to be prosecuted upon the misdemeanor complaint, pursuant to subdivision three of section 170.65; or
2. The court is satisfied that there is good cause why such order of release should not be issued. Such good cause must consist of some compelling fact or circumstance which precluded replacement of the misdemeanor complaint by an information or a prosecutor’s information within the prescribed period.