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Issues In NY Criminal Law--Vol. 3, #5©

Issue: Felony complaint vs. Indictment or superior court information

"Accusatory instrument" is the generic term that describes a variety of documents, each of which accuses a defendant of an offense. CPL 1.20(1).

Article 100 lists a number of such instruments, all of which are defined, and each of which differs, large or small, from the others. The felony complaint is one that perhaps differs most from the other accusatory instruments.

The type of accusatory instrument filed may affect the procedures available to the parties. For example, in the main discovery section of the CPL, a number of accusatory instruments are listed, but the common traffic ticket is not one of them; thus, discovery that is normally accorded to a defendant will not occur with a ticket charging a traffic infraction. CPL 240.20; Handling a Criminal Case in New York, § 8:14 (West Group 2000).

A felony complaint is not listed in CPL 240.20, either. Handling, § 8:13. Obviously, the definition of a felony complaint is crucial to understanding it. CPL 100.10(5) states: "It serves as a basis for the commencement of a criminal action, but not as a basis for prosecution thereof." See also CPL 1.20(8). The felony complaint can start the case, but can't finish it. For that, it must be replaced with another accusatory. To bring the case to trial, what is needed is either an indictment or superior court information is needed. Both of these "serve as a basis for prosecution" of a crime. CPL 1.20(3), (3-a).

The definition of felony complaint is contained in CPL article 100, "Local Criminal Court Accusatory Instruments." In contrast, the two other felony-related instruments, the indictment and superior court instrument, are defined in article 200. The term "indictment," as used in the CPL, encompasses a superior court information as well. CPL 200.10, 200.15. Because a felony complaint is not a trial instrument, a prosecutor in local court cannot announce "readiness for trial" under CPL 30.30. People v Murray, 224 AD2d 968, 637 NYS2d 852 (4th Dept 1996). Such an announcement is illusory. Readiness for trial on a felony charge requires the handing down of an indictment. See People v England, 84 NY2d 1, 613 NYS2d 854 (1994).

Where a felony is charged, there are typically two arraignments: one in local court, the other after the grand jury has voted. CPL articles 180 and Until the second arraignment occurs, most of the defendant's and prosecution's ability to obtain discovery, obtain a bill of particulars, engage in motion practice, obligation to file an alibi and the like are premature.

Once in superior court, the second arraignment occurs. CPL 210.15. As the CPL notes, in superior courts the "only methods" for prosecuting as offense are by indictment or superior court information. CPL 210.05. It is only at this point — after arraignment upon an indictment — that felony motion practice kicks in. CPL 255.10 defines "pre-trial motion" as one seeking, inter alia, "dismissing or reducing an indictment." The 45-day rule for motions starts after the felony complaint is replaced. Motion practice, in the main, is inapplicable to felony complaints.

"Of course, there must be subtleties. Just make sure you make them obvious." -- Billy Wilder


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