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What Is The Motion To Dismiss In NY Criminal Courts?

Attorneys file several different sorts of motions throughout trial. A motion to dismiss in the interest of justice may be made when one or more factors indicate that the prosecution and conviction of the defendant would result in injustice.

The possible of injustice usually arises from the defendant’s personal situation, or misconduct in the state’s investigation. A clear demonstration that an injustice would result on the defendant must be shown in order to make a motion to dismiss. The judge will only grant the motion when there has been a compelling factor that clearly demonstrates that the prosecution of the defendant, or the conviction of the defendant would result in an injustice. In order to prevent an injustice, a motion to dismiss an indictment is also possible. The right is codified in CPL 210.40.

In certain cases involving minors that occur in family court, a motion to dismiss based on statutory ability is available. The Family Court Act 315.2 omits certain CPL criteria. This family court section does not require consideration of evidence of guilt. The motion to dismiss may be made based on the needs and best interests of the minor.

Though it is possible to make a motion to dismiss, the likelihood of the motion being granted is uncommon. Judges try to grant the motion as sparingly as possible. A judge looks at many factors before granting a motion to dismiss.

The judge will consider the defendant’s history, character, and condition. The judge also weighs the defendant’s previous convictions and the possibility of the defendant’s rehabilitation. The judge considers the possibly of the defendant becoming a model citizen. Defense counsel should try to place before the court evidence of the defendant’s rehabilitation, and that the defendant is worthy of consideration for a grant of motion.

A judge may also look at the defendant’s age. Earlier above it is mentioned that a motion to dismiss in family court when dealing with minors holds a different standard. A similar consideration is taken when dealing with defendants of an advanced age. While a defendant’s advanced age is not in and of itself a consideration that would compel a dismissal, it can affect the severity and the possibility of the judge granting the motion.

Along with the age of the defendant, the mental capacity of the defendant is also considered. The defendant’s mental capacity and their ability to comprehend the crime can affect the motion. A defendant’s mental retardation is a factor to be considered in the interest of justice. Generally, a mental illness does not mandate a dismissal of the charges. If the defendant is found to be mentally incapacitated under CPL Article 730, and thus unable to proceed with trial, a dismissal in the interest of justice is considered improper. Rather, the mental incapacitation of the defendant makes it impossible for the trial to proceed.

In the event that there is government misconduct, a dismissal of the charges in the interest of justice may occur. The government misconduct must be “exceptionally serious misconduct of law enforcement personnel” in the investigation, arrest, or the prosecution of the defendant. Furthermore, the improper issuance of subpoenas to defense witnesses, along with other forms of prosecutorial misconduct will support a motion to dismiss in the interest of justice.

Prosecutorial misconduct can occur in many forms. A prosecutor’s refusal to honor a previously offered agreement would constitute bad faith with respect to the court. This behavior would give cause for the defense to make a motion for dismissal in the interest of justice. For example, if a prosecutor were to later refuse to honor an initial offer to administer a polygraph constitutes as bad faith. A dismissal in the interest of justice in the interest of justice should be granted.


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"Spodek Law Group have offered me excellent support and advice thru a very difficult time. I feel I've dealt with someone who truly cares and wants the best outcome for you and yours. I'm extremely grateful for all the help Spodek Law Group has offered me. I can't recommend them..."

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