An indictment may be filed against a suspect without the prosecution having complied with Section 60A of the Criminal Procedure Law, which requires the prosecution to notify a suspect that the investigation file relating to a felony offensehas been transferred to the prosecuting authority and to afford the suspect an opportunity to present arguments before a decision is made whether to file an indictment.
Can such a failure by the prosecution justify the dismissal of the indictment?
The answer is yes. If defense counsel files an appropriate motion pursuant to Section 149 of the Criminal Procedure Law, the court may order that the indictment be dismissed due to the procedural defect.
It should be noted, however, that the court is not required to dismiss the indictment. Instead, it may choose to remedy the defect by postponing the proceedings and directing the prosecution to conduct the required pre-indictment hearing.
A pre-indictment hearing must be conducted with an open mind and genuine consideration of the suspect’s arguments. Accordingly, if representatives of the prosecution indicate that they have no intention of reconsidering the investigative material or giving meaningful consideration to the suspect’s submissions, this may strengthen the court’s decision to dismiss the indictment.
It is important to emphasize that dismissal of the indictment does not necessarily bring the matter to an end. The prosecution may recommence the process, conduct a proper pre-indictment hearing, and, if appropriate, file a new indictment.
Two additional situations should also be noted:
- If the prosecution withdraws the indictment after the defendant has entered a plea, the court is required, pursuant to Section 94 of the Criminal Procedure Law, to acquit the defendant of that charge.
- If the prosecution withdraws the indictment after the defendant has entered a plea, the court is required, pursuant to Section 94 of the Criminal Procedure Law, to acquit the defendant of that charge.
