Under New York’s Criminal Procedure Law 190.80, where a suspect has been held by a local criminal court for more than 45 days without the occurrence of any grand jury action, the court must release the defendant on his own recognizance.
In order to secure the suspect’s release, the attorney for the Defendant must draft a 190.80 motion, file the motion with the court clerk, and serve the motion on the District Attorney. Once properly served, the District Attorney has the opportunity to respond in writing to the motion. However, the District Attorney may also waive his or her right to respond.
Following the motion, the court will generally order a hearing where both parties can be heard on the subject. At the hearing, the attorney for the suspect should make it clear if 45 days have passed and argue in favor of Defendant’s release.
In some cases, the District Attorney may argue through a written response or at the hearing, that, while 45 days did in fact pass, Section 190.80 is not triggered because the Defense attorney agreed to an “adjournment.” As an aside, an adjournment is essentially a “rain-check,” and once granted, another court date is scheduled. Critically, under Section 190.80, the only way a suspect may be held more than 45 days is if the suspect consents to being detained through a waiver of time limits, or the district attorney has “good cause” to hold the suspect longer. Only in the rarest cases will a District Attorney have such cause to override a suspect’s rights related to a speedy trial.