Pretrial Motions




I. Overview

The ability to prepare pre-trial motions is a critical skill required for the provision of quality representation.  Motions help achieve many critical objectives. For example, motions are the means to (1) gain information,(2) have evidence suppressed or precluded,  (3) get charges dismissed, (4) ascertain and limit the theory of prosecution, (5) layout the foundation for the defense strategy at trial, (6)  influence the judge favorably about your client and case, (7) instill doubts in the prosecutor which may result in a better a plea offer, and (7) preserve issues for appellate review if there is a conviction.

To achieve these ends counsel must be sufficiently familiar with both the facts in the case and the relevant law to have developed both a theory of the case and strategies which will be advanced by the filing of the particular motion.

Clarity and succinctness are valued by the judges whom one seeks to persuade. Further, undue reliance on "boilerplate" form motions undercuts all of the purposes of motions, in that such motions are unlikely to persuade and most often yield little more than boilerplate responses from the prosecutor and court. This is not to say that use of forms is always inappropriate. However, counsel must make certain to omit from form motions language which is inapplicable to the case at bar and to insert those motions, facts, law and language necessary to advance the precise issues presented by such case. Also, counsel must make certain that citations within a form or boilerplate motions are accurate. Citation to cases which counsel has never read is a recipe for disaster.

How do you decide what to include in the pre-trial motion?

  • Review the accusatory instrument
  • Review the elements of the crime
  • Review the 710.30 notice
  • Review the discovery

Develop an understanding of your case and the relevant law and then determine which motions will advance your strategy for obtaining a good disposition.

II. Omnibus Motions

A.Omnibus Motion Required

 CPL 255.20(2) requires that all pretrial motions of the types set forth in the statute (see, lI(D), supra)and supporting papers and memoranda of law be included within the same set of papers. Practically speaking, however, there are many times that there is a need to file additional motions.

B.        Time Limits

Omnibus motions must be made within 45 days of arraignment, which period may be extended by the court. When the prosecutor serves CPL 710 notice the 45 days doesn't start to run until the last date of such service (CPL § 255.20(1). (There is a procedure for seeking permission to file a motion beyond the time limits of the statute, that you should not plan on trying to invoke since it is discretionary (CPL § 255.20 [3]).)

An exception to the 45-day rule is that motions to dismiss for failure to notify defendant to right to testify before Grand Jury must be brought within five days of the arraignment on the indictment (CPL § 190.50[5][e].

Motions to dismiss on speedy trial grounds are exempt from the 45-day rule. They may be made at any time before commencement of trial or entry of a plea of guilty. People v Lawrence, 64 NY2d 200 (1984).

Courts do not have the authority to shorten the time for filing of motions. Veloz v Rothwax, 65 NY2d 902 (1985).

C.   Procedural Requirements

1.         Motions be Written

The omnibus motion must be in writing and on reasonable notice to the prosecution. CPL § § 170.45, 210.45(1), 710.60(1); People v Mezon, 80 NY2d 155 (1992).

2.         Sufficient Factual Allegations in Supporting Papers

The moving papers in support of a motion to dismiss must contain sworn allegations of personal knowledge or allegations made upon inforn1ation and belief sufficient to support the motion. As to sufficiency of allegations in support of motions to suppress, see II(D)(6)(b), supra. One must be careful, because factual statements in support of a motion have been deemed to be informal judicial admissions. In other words, what is alleged factually in motion papers may provide a basis for the prosecutor to cross-examine a defendant regarding these allegations, even if there is no affidavit from the defendant, if the trial testimony differs from the allegations in the motion. Despite some judges’ mistaken belief, there is no requirement that the defendant sign the supporting affidavit.

3.         Obtaining a Ruling

Although the first goal of a motion is to obtain the relief sought, secondary goal is to have a preserved issue for appellate review. However, if there is no denial of the motion in the record there is no ruling from which an appeal can be taken.

D.        Statutory Categories (CPL § 255.10)

1.         Dismissal of Accusatory Instrument

Bases for seeking dismissal of felonies treated in CPL Article 210; Bases for dismissal of local court accusatory instruments are set forth in CPL §§ 170.30-170.50.) Statutorily listed grounds include: facial insufficiency; lack of jurisdiction; invalidity of statute; insufficiency of Grand Jury evidence; defective Grand Jury procedures [it is particularly important to phrase motions with respect to Grand Jury proceedings in terms of defects, as opposed to sufficiency, since the erroneous denial of a motion to dismiss based on insufficiency of Grand Jury evidence is not appealable after a conviction based on legally sufficient evidence (CPL 210.30[6]). By contrast, defects in the Grand Jury proceedings can be raised on appeal. People v Calbud, 49 N.Y.2d 389 (1980); People v Samuels, 12 AD2d 695 (2nd Dept 2004); furtherance of justice demands dismissal (these motions are strictly governed by statutes (CPL §§ 170.40 and 210.40) and the statutory criteria should be expressly pleaded). Other bases for seeking dismissal of accusatory instrument include: prior jeopardy (New York has broad double jeopardy provisions, see CPL Article 40; there are also collateral estoppel arguments to consider); untimeliness of prosecution (which could be based on Statute of Limitations provisions (CPL 30.10), or constitutional or statutory (CPL 30.30) requirements; immunity from prosecution (if, for example, the defendant had been compelled to testify at a prior proceeding (CPL §§ 50.20 and 190.40). This list is not exhaustive. For example, there might be some other impediment to prosecution, such as an unauthorized special prosecutor.

2.         Granting of Discovery (CPL Art 240)

Discovery is the process of acquiring materials about and relating to your case from the opposing counsel. Article 240 of the Criminal Procedure Law lays out the defendant's and the prosecution's statutory right to demand the production of evidence prior to trial. An attorney’s form or standard requests should be supplemented in any case in which there is a good-faith belief that something else exists which the defendant may be entitled to receive.  One should err on the side of making a request if there is even a remote chance that evidence exists.

Whenever one make any additions to the "routine" sections of the motion papers, one should highlight them at oral argument.  Judges and prosecutors have a tendency to skip over these sections entirely, and give them a cursory glance at best, so you will be better served by pointing out any non-form requests to the Judge at argument.

Examples of discovery requests:

  • DWI foundational documents
  • search warrant application and the warrant itself
  • inspection of any items seized
  • lab test results
  • pictures
  • discovery sanction issues
  • Brady requests **** (see below)

Additionally, although New York's discovery provisions in criminal cases are very restrictive, not providing, for example, for discovery of statements by witnesses, it can't hurt to ask for those things which you can convince a judge are needed for a need for the information.

Beware: Since the CPL can be read to require it (CPL 240.10[1]), it important to make a demand to produce prior to make a motion for discovery.

E. Brady Requests

There are statutory categories of discovery set forth in CPL Art 240. One of these categories (CPL 240.20[1][h]) is evidence required to be disclosed pursuant to the United States Constitution. This encompasses disclosure of so-called Brady evidence (Brady v Maryland, 373 US 83 [1963]), which is evidence favorable to the accused, including impeachment evidence (People v Steadman, 82 NY2d 1 [1993]). It is critically important the this part of your motion be as specific and detailed as possible, because there are very different standards for reviewing the non-disclosure of specifically requested Brady evidence and that only recovered by a general request. Compare, People v Vilardi, 76 NY2d 67 (1990) with People v Baxley, 84 NY2d 208 (1994).

Brady v Maryland (373 U.S. 83) and its progeny require that the prosecution has a duty to turn over information which the police and/or prosecutors possess which is favorable to the defense.  The case law indicates that such information may be evidence in whatever form it exists which shows that the defendant did not commit the crime, or makes it less likely that the defendant committed the crime, or evidence which goes to the credibility of the prosecution's witnesses. However, If one doesn't demand the production of a specific item, the prosecutor has only the general duty to turn over evidence noted above.  The prosecutor's duty is significantly greater, and the chance for preclusion or dismissal also much greater, when a defendant has made a specific request for any particular item or class of evidence, and that evidence is exculpatory, but not produced. Therefore, one needs to make the most extensive and specific request imaginable.

3.         Bill of Particulars (CPL 255.10[1][d])

establishes what is being charged for each element

clarifies any duplicity issues

In brief, a Bill of Particulars is a request that the prosecution specifically state its theory of prosecution and the allegations made against the defendant.

Beware: Since the CPL can be read to require it (CPL 200. 95[5]), it important to make a request for a bill of particulars prior to make a motion for a bill of particulars.

Thus, prior to the filing of a motion for a bill of particulars, one should file a request for a Bill of Particulars. Such a request must be made within 30 days of arraignment or the assignment of counsel.  C.P.L. Sections 100.45(4) and 200.95.  A Bill of Particulars is set up and governed by C.P.L. Section 200.95. (CPL 100.45(4) makes 200.95 applicable to misdemeanor accusatory instruments.) 

As a tactical point, a Bill of Particulars is rarely used in misdemeanor cases.  The general idea is that if the factual allegations made in a misdemeanor information are insufficient, then the accusatory must fall.  One doesn’t want to give the prosecution a chance to prop up the defective accusatory instrument by allowing a Bill of Particulars to fill in any gaps in the theory or law. 

The main exception arises in cases which are prosecuted by a Prosecutor's Information.  These cases arise when a case is presented to the Grand Jury and is sent back to the local court as a misdemeanor.  The Grand Jury directs the District Attorney to file a Prosecutor's Information.  It is allowed to be filed as a bare-bones allegation, paralleling an indictment.  Therefore, one wants a Bill of Particulars in these cases.

Although the CPL only requires the allegation that the information is needed to prepare or conduct the defense, a defendant is wise to specify why and how that information is needed. For example, the time and place of the charged offense is needed to determine the relevancy of witnesses and possible alibi information, to determine the legal theory behind a charge which may have more than one or to preclude a variance between proof and charge.

4.         Removal of Action to a Different Court

Although CPL § 255.10(1)(h) only references removal pursuant to CPL §§ 170.15,230.20 or 230.30, removal can also be sought pursuant to CPL § 170.25. These motions for change of venue which requires a very high showing an, although included in the statutory provisions regarding the omnibus motion, are returnable before a different judge than other pretrial motions.

Also, CPL § 210.43 provides for motions by an alleged juvenile offender to have the case removed to Family Court.

5.         A Motion to Seek Separate Trials

A motion pursuant to CPL Article 100 or 200 to seek separate trials of either different defendants or of different offenses can be predicated on a claim that the joinder was either unauthorized or unduly prejudicial. Examples of prejudice as a basis for separating the trial of co-defendants are situations where (1) one co-defendant had given a statement implicating the other (Bruton v United States, 391 US 123 {1968})(although courts may try to cure this problem by redaction of the statement); (2) where there are conflicting defenses (People v Mahboubian, 74 NY2d 174 [1989]); (3) where one co-defendant want to call the other as a witness (People v Wan, 140 AD2d 567 [2nd Dept 1988]); and (4) where there is a significant possibility that the inapplicability of Sandoval to questioning by co-defendants will prejudiced a defendant who chooses to testify (People v Rodriquez, 91 AD2d 591 [1 st Dept 1982]).

To avoid the joinder of different offenses a defendant must show make a convincing showing that he has both important testimony to give on one charge and a strong reason to refrain from testifying on the other (People v Lane, 56 NY2d 1 [1982]).

6.         Motions to Suppress/Preclude  the Use of Evidence pursuant to CPL Article 710

a.         Generally:  Suppression/Preclusion

710.30 notice issues (preclusion -- Merrill)

710.30 suppression issues   (Stmt/ID/physical evidence/observations)

There is wide range, beyond the scope of this outline, of possible suppression motions. There are motions to seek to exclude the admission of evidence obtained in violation of the New York and or United States Constitutions. The evidence can be statements, tangible evidence, identification evidence, observations, or the fruits there of. The evidence can be the product of violations of the Fourth, Fifth or Sixth amendments to the United States Constitution or to the analogous provisions of the New York Constitution. Since the New York Constitution has often been interpreted as providing greater protections than the United States Constitution it is possible to have evidence suppressed order suppressed under the New York Constitution where there would not be suppression pursuant to the United States Constitution. Consequently it is critical that suppression motions always be based on the relevant provisions of both constitutions.

Additionally, it is critical that suppression motion be as specific and detailed as possible since the only possible appellate issues involve the denial of relief specifically sought and legal theories specifically advanced (People v Smith, 252 AD2d 737 [3d Dept 1998]).

b.         Sufficiency of factual allegations

 CPL 710.60, requires that suppression motions, other than regarding voluntariness of statements or improper identifications, must contain sworn allegations of fact, whether of the defendant or of another person or persons, supporting such grounds for relief.

A trial court is required to grant a hearing if the defendant "raise[s] a factual dispute on a material point which must be resolved before the court can decide the legal issue" of whether evidence was obtained in a constitutionally permissible manner (People v. Gruden, 42 N.Y.2d 214, 215 [1977] ).

Because hearings on suppression motions "are not automatic or generally available for the asking by boilerplate allegations" (People v. Mendoza, 82 N.Y.2d 415, 422 [1993] ), such a request may be summarily denied if the motion papers do not provide a sufficient legal basis for suppression or where" [t]he sworn allegations of fact do not as a matter of law support the ground alleged." Mendoza holds that the amount of specificity required is directly related to the content of the discovery received by defendant.

Thus, where probable cause for a search is premised on the alleged furtive behavior of the defendant, the accused can’t raise a factual issue simply by alleging that he or she was standing on the street doing nothing wrong when the police approached and searched" and discovered contraband in the process. People v Burton, 6 NY3d 584 (2006).

The necessary allegations of fact may be gleaned in part from statements made by law enforcement officials in an accusatory instrument or from testimonial statements elicited by the prosecution. A defendant is not required to personally admit possession of the contraband in order to comply with the factual pleading requirements. People v Burton, 6 NY3d 584 (2006).

c.         Allegations of Standing

There is no legal basis for suppression and, hence, no need for a hearing, unless the accused alleges facts that, if true, demonstrate standing to challenge the search or seizure. People v Rodriguez, 69 N.Y2d 159, 161 [1987].

Standing exists where a defendant was aggrieved by a search of a place or object in which he or she had a legitimate expectation of privacy. This burden is satisfied if the accused subjectively manifested an expectation of privacy with respect to the location or item searched that society recognizes to be objectively reasonable under the circumstances. People v Ramirez-Portoreal, 88 N.Y2d 99 [1996] ).

F.         Other Pre-Trial Motions to Include in Omnibus Motion

1.         Motions in Limine

a.         Generally

A motion seeking a ruling in advance of trial, other than those set forth in CPL 255.10. These motions are not required by the CPL to be made as part of the omnibus motion and the 45-day rule does not formally apply to such motions. However, Courts prefer that they be so included.

b.         Challenges to Fairness of the Jury and the Methodology for Selecting Jurors

Challenges to the composition of the jury pool (our office has such a motion already prepared and ready to file), to the geographic entity from which prospective jurors have been chosen, or to certain means by which jury selection may be conducted (for example, the requirements for shared use of peremptory challenges in a multiple defendant case or the limitation of individual voir dire or the time for voir dire) can all be brought.

c.         Admissibility or Redaction of Evidence

This includes, Sandoval motions (34 NY2d 371) regarding the scope of permissible impeachment and Molineux (168 NY 264 [1901}) or Ventimglia (52 NY2d 350 [1981]) (motions to preclude the admission of uncharged bad acts or crimes as evidence against the accused.

Although the details of such motions are beyond the scope of this outline please be aware of the need to take exception to an adverse Sandoval ruling (People v Trammell, 28 AD3d 1219 (4th Dept). Also, Ventimiglia motions are not identical to motions pursuant to CPL § 200.43.

d.         Other

There area variety of types of pre-trial rulings that you may seek. For example, gag orders, order of seclusion of witnesses, material witness orders, orders to preclude a witness from identifying himself as the defendant's parole officer.

III.        Other Pre-trial Motions

The list of possible pre-trial motions is case dependant, but one that should be kept in mind is a Motion for a Special Prosecutor, which may be brought when the District Attorney should be disqualified from participating in the prosecution to avoid either a conflict of interest or a substantial risk of abuse of confidence which is brought before the Administrative Judge.