New York Motion to Dismiss Counts of Indictment

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Multi-State
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US-02616BG
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Description

Upon motion of a defendant the court may dismiss an indictment in any of the following circumstances:


" When the names of the witnesses are not inserted at the foot of the indictment or information or endorsed thereon;

" When more than one offense is charged in a single count;

" When it does not describe a public offense;

" When it contains matter which, if true, would constitute a legal justification or excuse of the offense charged, or other bar to the prosecution;

" When the grand jury which filed the indictment had no legal authority to inquire into the offense charged because it was not within the jurisdiction of the grand jury or because the court was without jurisdiction of the offense charged; and

" When an improper person was permitted to be present during the session of the grand jury while the charge embraced in the indictment was under consideration.


The above is not an exhaustive list.

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FAQ

However, when the grand jury issues the indictment, it may also set a bond for the defendant, which could result in an order for arrest. An arraignment is the first time the defendant must appear before the judge. This generally occurs the same day as formal charges and arrest or the day after.

N.J.R. -1 (a) (amended eff 9/1/18). As a practical matter, this means discovery and calendar motions, including motions to dismiss based on failure to make discovery, should be filed, at the latest, 16 days before the last motion calendar return date that falls within the discovery period.

A Motion to dismiss an indictment is used if the evidence was insufficient to support the charges within the indictment and it can be based on several factors, including the State's failure to properly instruct the Grand Jury and/or the State's witnesses misleading the Grand Jury.

CPL 210.40 (1), enacted in 1970, states that an indictment or a count thereof may be dismissed in furtherance of justice when, even though there may be NO BASIS TO DISMISS AS A MATTER OF LAW, dismissal is REQUIRED as a MATTER OF JUDICIAL DISCRETION by the existence of some COMPELLING FACTOR, CONSIDERATION OR ...

(a) Where a party unreasonably neglects to proceed generally in an action or otherwise delays in the prosecution thereof against any party who may be liable to a separate judgment, or unreasonably fails to serve and file a note of issue, the court, on its own initiative or upon motion, with notice to the parties, may ...

. (a) Preindictment. A complaint may be administratively dismissed by the prosecutor without presentation to the grand jury in which event said prosecutor shall report the dismissal and the basis therefor to the Assignment Judge and shall notify the defendant.

The following are considered ?excludable time? and will change the speedy trial clock of 90 and 180 days in New Jersey: Time resulting from the examination and hearing on competency and the period during which the eligible defendant is incompetent to stand trial or incapacitated.

What Happens After an Indictment in New Jersey? The next step after an indictment is for your criminal case to go to arraignment. The arraignment marks your first appearance in the courtroom and comes after arrest, booking, and indictment.

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New York Motion to Dismiss Counts of Indictment