Motion to dismiss or reduce indictment

§ 210.20 Motion to dismiss or reduce indictment.\n 1. After arraignment upon an indictment, the superior court may, upon\nmotion of the defendant, dismiss such indictment or any count thereof\nupon the ground that:\n (a) Such indictment or count is defective, within the meaning of\nsection 210.25; or\n (b) The evidence before the grand jury was not legally sufficient to\nestablish the offense charged or any lesser included offense; or\n (c) The grand jury proceeding was defective, within the meaning of\nsection 210.35; or\n (d) The defendant has immunity with respect to the offense charged,\npursuant to section 50.20 or 190.40; or\n (e) The prosecution is barred by reason of a previous prosecution,\npursuant to section 40.20; or\n (f) The prosecution is untimely, pursuant to section 30.10; or\n (g) The defendant has been denied the right to a speedy trial; or\n (h) There exists some other jurisdictional or legal impediment to\nconviction of the defendant for the offense charged; or\n (i) Dismissal is required in the interest of justice, pursuant to\nsection 210.40.\n 1-a. After arraignment upon an indictment, if the superior court, upon\nmotion of the defendant pursuant to this subdivision or paragraph b of\nsubdivision one of this section challenging the legal sufficiency of the\nevidence before the grand jury, finds that the evidence before the grand\njury was not legally sufficient to establish the commission by the\ndefendant of the offense charged in any count contained within the\nindictment, but was legally sufficient to establish the commission of a\nlesser included offense, it shall order the count or counts of the\nindictment with respect to which the finding is made reduced to allege\nthe most serious lesser included offense with respect to which the\nevidence before the grand jury was sufficient, except that where the\nmost serious lesser included offense thus found is a petty offense, and\nthe court does not find evidence of the commission of any crime in any\nother count of the indictment, it shall order the indictment dismissed\nand a prosecutor's information charging the petty offense filed in the\nappropriate local criminal court. The motion to dismiss or reduce any\ncount of an indictment based on legal insufficiency to establish the\noffense charged shall be made in accordance with the procedure set forth\nin subdivisions one through seven of section 210.45, provided however,\nthe court shall state on the record the basis for its determination.\nUpon entering an order pursuant to this subdivision, the court shall\nconsider the appropriateness of any securing order issued pursuant to\narticle 510 of this chapter.\n 2. A motion pursuant to this section, except a motion pursuant to\nparagraph (g) of subdivision one, should be made within the period\nprovided in section 255.20. A motion made pursuant to paragraph (g) of\nsubdivision one must be made prior to the commencement of trial or entry\nof a plea of guilty.\n 3. Upon the motion, a defendant who is in a position adequately to\nraise more than one ground in support thereof should raise every such\nground upon which he intends to challenge the indictment. A subsequent\nmotion based upon any such ground not so raised may be summarily denied,\nalthough the court, in the interest of justice and for good cause shown,\nmay in its discretion entertain and dispose of such a motion on the\nmerits notwithstanding.\n 4. Upon dismissing an indictment or a count thereof upon any of the\ngrounds specified in paragraphs (a), (b), (c) and (i) of subdivision\none, or, upon dismissing a superior court information or a count thereof\nupon any of the grounds specified in paragraphs (a) or (i) of\nsubdivision one, the court may, upon application of the people, in its\ndiscretion authorize the people to submit the charge or charges to the\nsame or another grand jury. When the dismissal is based upon some other\nground, such authorization may not be granted. In the absence of\nauthorization to submit or resubmit, the order of dismissal constitutes\na bar to any further prosecution of such charge or charges, by\nindictment or otherwise, in any criminal court within the county.\n 5. If the court dismisses one or more counts of an indictment, against\na defendant who was under the age of sixteen at the time of the\ncommission of the crime and who did not lack criminal responsibility for\nsuch crime by reason of infancy, and one or more other counts of the\nindictment having been joined in the indictment solely with the\ndismissed count pursuant to subdivision six of section 200.20 is not\ndismissed, the court must direct that such count be removed to the\nfamily court in accordance with article seven hundred twenty-five of\nthis chapter.\n 6. The effectiveness of an order reducing a count or counts of an\nindictment or dismissing an indictment and directing the filing of a\nprosecutor's information or dismissing a count or counts of an\nindictment charging murder in the first degree shall be stayed for\nthirty days following the entry of such order unless such stay is\notherwise waived by the people. On or before the conclusion of such\nthirty-day period, the people shall exercise one of the following\noptions:\n (a) Accept the court's order by filing a reduced indictment, by\ndismissing the indictment and filing a prosecutor's information, or by\nfiling an indictment containing any count or counts remaining after\ndismissal of the count or counts charging murder in the first degree, as\nappropriate;\n (b) Resubmit the subject count or counts to the same or a different\ngrand jury within thirty days of the entry of the order or such\nadditional time as the court may permit upon a showing of good cause;\nprovided, however, that if in such case an order is again entered with\nrespect to such count or counts pursuant to subdivision one-a of this\nsection, such count or counts may not again be submitted to a grand\njury. Where the people exercise this option, the effectiveness of the\norder further shall be stayed pending a determination by the grand jury\nand the filing of a new indictment, if voted, charging the resubmitted\ncount or counts;\n (c) Appeal the order pursuant to subdivision one or one-a of section\n450.20. Where the people exercise this option, the effectiveness of the\norder further shall be stayed in accordance with the provisions of\nsubdivision two of section 460.40.\n If the people fail to exercise one of the foregoing options, the\ncourt's order shall take effect and the people shall comply with\nparagraph (a) of this subdivision.\n