Packet Four: Criminal Law and Procedure Chapter 6: Introduction to Motions Introduction A motion is an application to the court for an order. 1 If the court has the power or authority 2 to make the order, the defendant or prosecutor can move for the order. There are pretrial motions, motions in limine, trial motions and post-trial motions. The vast majority of motions made in criminal practice are pretrial motions. CPL 255.10 provides a list of pretrial motions. Among these motions are motions to dismiss or reduce indictments, motions to dismiss misdemeanors accusatory instruments, motions granting discovery and a bill of particulars, removing the action, suppression, and granting separate trials to codefendants. In this course we will be concentrating on dismissal motions and motions to suppress. Dismissal Motions A motion to dismiss is a motion to end the prosecution. Types of Motions to Dismiss Ground CPL Authority Defective Accusatory Instrument 170.35 or 210.25 Defendant Has Immunity from Prosecution 50.20 or 190.40 Double Jeopardy 40.20 Statute of Limitations Has Run 30.10 Defendant Has Been Denied a Speedy Trial 30.20 or 30.30 Dismissal Is Required in the Furtherance of Justice 170.40 or 210.40 Any Other Jurisdictional or Legal Impediment to Justice 170.30 (1) (f) or 210.20 (1) (h) 1 See Criminal Procedure Law 255.10 (1). 2 In other words, jurisdiction. Page 57 of 62
In this course we will be concentrating on motions to dismiss be cause the accusatory instrument is defective and the defendant was denied a speedy trial. The accusatory instruments are defined in the Criminal Procedure Law. All accusatory instruments have several things in common: (1) They are in writing; and (2) They accuse a particular person or persons of committing a particular criminal offense or offenses. Indictments are made by grand juries and are filed in the Supreme Court. They charge a person or persons with the commission of a criminal act. At least one of those criminal acts must be a felony or misdemeanor. They are the most common way the prosecutor charges a person or persons with felonies. Besides the instrument being defective as improperly drawn, they can also be defective when the grand jury proceeding itself was defective. Grand jury proceedings are secret. The defendant isn t there (unless the defendant testifies), so how does the defendant move to dismiss a defective Grand Jury proceeding? The defendant asks the judge to inspect the Grand Jury and see if the allegations in the secret transcript support the accusations in the indictment. Because this motion is standard and not fact or charge specific, it is in every criminal law practitioner s computer or in every form book. Therefore, there is no need to concentrate on these pro forma motions. Informations and misdemeanor complaints are accusatory instruments in criminal court. They charge misdemeanors and/or petty offenses. A misdemeanor complaint must charge at least one misdemeanor. In order for a misdemeanor accusatory instrument to be dismissible, it must be defective as defined in CPL 170.35 Motion to Dismiss Information, Simplified Information, Prosecutor s Information or Misdemeanor Complaint; as Defective (CPL 170.35) 1. An information, a simplified information, a prosecutor s information or a misdemeanor complaint, or a count thereof, is defective within the meaning of paragraph (a) of subdivision one of section 170.30 when: (a) It is not sufficient on its face pursuant to the requirements of section 100.40; provided that such an instrument or count may not be dismissed as defective, but must instead be amended, where the defect or irregularity is of a kind that may be cured by amendment and where the people move to so amend; or (b) The allegations demonstrate that the court does not have jurisdiction of the offense charged; or (c) The statute defining the offense charged is unconstitutional or otherwise invalid. Page 58 of 62
In Plain Language: Defective Misdemeanor Accusatory Instruments (a) Facial Insufficiency (b) No Jurisdiction (c) Unconstitutional Accusatory instrument is not sufficient on their face (i.e. what is on the paper) Charges an offense for which the court has no jurisdiction Charges an offense that is unconstitutional Both instruments are facially sufficient when: (a) they provide facts of an evidentiary character; and (b) the allegations of the factual part of the information together with those of any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information. Because the information is the misdemeanor accusatory instrument that gives the court the power to accept a plea and try the case, it must also: (1) have non-hearsay allegations in the factual part of the information; and (2) those allegations must establish, if true, every element of the offense charged and the defendant s commission of the offense(s). Suppression Motions A defendant can move to suppress evidence that the People intend to introduce at trial. The type of evidence that the defendant can move to suppress is contained in CPL 710.20. Most Used Suppression Motions Ground Subdivision in CPL 710.20 Suppress Physical Evidence 1 Suppress Statements 3 Suppress Identification Testimony 6 Fruit of the Poisonous Tree 4 Page 59 of 62
Making Motions Procedural Requirements A pre-trial motion is almost always made by the defense. It must be made in writing. 3 The motion must be served on the People before the motion is to be decided so that the People will have an opportunity to be heard. 4 It must be made within 45 days of the arraignment on the trial-ready accusatory instrument. 5 All motions are required to be put together in what is called an omnibus motion. 6 Of course, there are exceptions to those Rules. 7 What the Motions Must Contain The moving papers must state the ground or grounds of each motion. 8 These papers must also contain sworn allegations of fact if the ground for the motion is based on the existence of facts that the defendant knows of, to support those grounds. 9 These facts can come from the defendant or of another person. 10 And these factual allegations can be based upon personal knowledge of the presented of the facts or based on hearsay (i.e., upon information and belief ). 11 If it is based on hearsay then the sources of such information and the grounds of such belief must be stated on the moving papers. 12 The Court of Appeals has consistently required that the defendant assert factual allegations and not mere legal conclusions in order to establish the proper legal basis for the pretrial suppression. 13 However, statutorily the defendant need not present facts to support a motion to suppress a statement or identification testimony. 14 The People s Answer The People are not required to answer defendant s motions the statutes state they may answer 15 however, if they fail to answer they accept as true and uncontroverted the factual allegations in the defendant s moving papers. 16 The People s answer will either controvert the facts in the defendant s motion or explain that the law the defendant presents is not applicable, or both. 3 See e.g. Criminal Procedure Law 210.45 (1), 710.60 (1). 4 5 Criminal Procedure Law 255.20 (1). 6 Criminal Procedure Law 255.20 (2). 7 Criminal Procedure Law 255.20 (3). 8 See e.g. Criminal Procedure Law 210.45 (1), 710.60 (1). 9 10 11 12 13 See e.g. People v Mendoza, 82 NY2d 415 (1993). 14 Criminal Procedure Law 710.60 (3) (b). 15 See e.g. Criminal Procedure Law 210.45 (1), 710.60 (1). 16 People v Cole, 73 NY2d 957; People v Santos, 68 NY2d 859; People v Gruden, 42 NY2d 214. Page 60 of 62
Deciding the Pre-trial Motions After all paper of both parties have been filed, and after all documentary evidence, if any, has been submitted, the court must consider the same for the purpose of determining whether the motion can be decided without a hearing. The purpose of a hearing is to resolve questions of fact. A factual dispute occurs when the People address the facts in the moving papers by denying them and the People present different facts. There is no factual dispute when either there is no People s answer or where the People agree with the facts or fail to controvert them. Court Determining Whether to Hold a Hearing 1 2 Do the moving papers contain a legally sufficient ground for the relief sought? Do the moving papers contain sufficient facts to support the grounds? and NO motion may be denied without a hearing YES Go to 2 NO motion may be denied without a hearing YES Go to 3 3 Is there a dispute of any essential facts? NO YES motion may be decided without a hearing (grant or deny) Hearing must be held The Hearing At the hearing both parties are given an opportunity to present witnesses in order to present facts pertinent to deciding the motion. At hearings to determine a motion to dismiss, the defendant has the burden of proving by a preponderance of the evidence every fact essential to support the motion. At the end of the hearing, the judge must make findings of fact and conclusions of law and the reasons for its determination. The Burden of Proof When defendants move to suppress, they are arguing that their constitutional rights were violated. In a suppression hearing, the prosecution in the first instance has the burden of showing the legality of the police conduct. 17 The defendant bears the ultimate burden of proving by a preponderance of the evidence that the physical evidence should be suppressed. 18 Thus, the defendant has the burden of persuasion to prove that the search and seizure was, in fact, in violation of the defendant s constitutional rights. 19 17 People v Berrios, 28 NY2d 361 (1971); People v Malinsky, 15 NY2d 86 (1965). 18 People v Berrios, 28 NY2d 361 19 People v Berrios, 28 NY2d 361 Page 61 of 62
Physical Evidence (Mapp Hearing). When it comes to physical evidence, the first issue is whether the seizure of the physical evidence was through a search warrant. If there was a search warrant, then there is a presumption of validity and the defendant has the burden of going forward. On the other hand, if the seizure of the physical evidence was not pursuant to a search warrant, then the presumption is that the seizure was improper, and the People have the burden of going forward (the burden of production) to establish: (1) a lawful rationale for government agent conduct; or (2) a basis for averting suppression. 20 The People s burden of going forward under federal constitutional standards requires only a preponderance of the evidence. 21 Where the People argue that the defendant consented to the search of the place where the item was seized, then the burden has been called a heavy burden. 22 Identification (Wade Hearing) The People have the initial burden of going forward to establish the reasonableness of police conduct and the lack of undue suggestiveness in a pretrial identification procedure. 23 Once the People have met that initial burden, the defendant bears the ultimate burden of proving that the procedure was unduly suggestive. 24 Where the court grants the motion to suppress, the witness will only be allowed to identify the defendant in court if the People can establish an independent source for tainted identification, in which case the government s burden is a higher clear and convincing evidence. 25 Statements (Huntley Hearing) Where the People need to prove that Miranda warnings were administered or waived, the burden is beyond a reasonable doubt. 20 See e.g. People v Wesley, 73 NY2d 351 (1989); People v Di Stefano, 38 NY2d 640 (1976); People v Berrios, 28 NY2d 361, 367 (1971). 21 See e.g. Colorado v Connelly, 479 US 157 (1986); Nix v Williams, 467 US 431 n 5 (1984) 22 People v Gonzalez, 80 NY2d 883 (1992); People v Dodt, 61 NY2d 408 (1984). 23 See People v Chipp, 75 NY2d 327, 335 (1990), cert denied 498 US 833 (1990); People v Berrios, 28 NY2d 361 (1971). 24 See People v Chipp, 75 NY2d 327 (1990). 25 See United States v Wade, 438 US 218 (1967). Page 62 of 62