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Due Diligence and Speedy Trial Dismissal

In People v. Shar, the Theft of Services (Penal Law §165.15[3]) New York Misdemeanor is dismissed for Speedy Trial Violations (CPL 170.30[1][e]; 30.30). New York Criminal Cases Dismissed for Speedy Trial Violations: New York Prosecutors must exercise Due Diligence in Discovery Compliance, providing the accused records showing guilt or innocence!

The Constitutional Right to Speedy Trial is different than New York's Statutory Speedy Trial right, codified in the Criminal Procedure Law Article 30. While advocates differ in their approach to solving the speedy trial violation problem (see With New York 'Drowning' in Backlog, Advocates Push to Remove Cap on Judges | New York Law Journal), some claiming too much disclosure harms the system (see Manhattan Institute Article) it is beyond dispute that a system of law must have consequences not just for the accused but for the prosecutors who withhold evidence. These laws are not polite suggestions and their consequences are dismissal of the case for withholding evidence tied to New York Statutory Speedy Trial.

New York State law demands consequences of prosecutors by speedy trial violations - no prosecutor goes to jail, is ethically admonished or must answer when evidence is withheld by 'the People' in New York State - the idea that complying with producing inculpatory (to be used at trial) or exculpatory (showing the innocence of the accused) public records would receive anything less than dismissal the accused is anathema to this attorney and at odds with everything taught in law schools and American jurisprudence: that the presumption of innocence attaches not the pressure of the state without some meaningful form of accountability.

The People are required by law to disclose to the defendant “all items and information that relate to the subject matter of the case,” that are within or under the People’s “possession, custody, or control including but not limited to,” the items listed in CPL 245.20(1). The People are likewise required to “make a diligent, good faith effort to ascertain the existence of material or information discoverable…and to cause such material or information to be made available for discovery where it exists but is not within the prosecutor’s possession, custody or control.” CPL 245.20(2). Once the People have complied with the mandates of CPL 245.20, the People must certify that “after exercising due diligence and making reasonable inquiries to ascertain the existence of material and information subject to discovery, the prosecutor has disclosed and made available all known material and information subject to discovery.” CPL 245.50(1).

The Court here notes the occurrence and the consequences of Prosecutors Failing to Timely Disclose Evidence:

The sole count in the accusatory instrument is Theft of Services (Penal Law §165315[3]), charged as an A misdemeanor, which is punishable by up to three hundred sixty-four days in prison (Penal Law §70.15[3]). Accordingly, a motion to dismiss must be granted when the People are not ready for trial “within 90 days of the commencement of a criminal action wherein a defendant is accused of one or more offenses, at least one of which is a misdemeanor punishable by a sentence of imprisonment of more than three months and none of which is a felony.” CPL 30.30(1)(b); 170.30(1)(e).

The People were required to make reasonable, diligent efforts to ascertain the existence of this discoverable information and materials and make it available. CPL 245.20(2). The People did not do so (despite significant efforts and multiple appearances on the matter) thus the New York Criminal Misdemeanor is dismissed for failure to exercise due diligence.

The case is People v. Shar | New York Law Journal ( It is important to note that in other states, like Florida Criminal Defense Lawyers know, a deposition is given to the accused: the police officer is asked questions under oath. In New York, it means dismissal when the evidence is not timely turned over as opposed to the crime of withholding public records (both a New York State Penal Law violation and Public Officers Law Section 89(8)).

Cory H. Morris, Esq. New York and Florida, Injury, Addiction, Accident, Call the Law Offices of Cory H. Morris, 631-450-2515 (NYS) (954)-745-4592 (FLA)

Call 631-450-2515 or E-Mail to arrange for an evaluation of your traffic matter, criminal matter or appellate matter.


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