So, you’ve had a run-in with “the law.” Maybe it’s your first ever run-in, maybe it’s your first run-in serious enough to have you worried. Criminal possession of a controlled substance? Criminal sale of a controlled substance? Driving while intoxicated, or under the influence? There are plenty of criminal charges in the New York Penal Law that could have you worried.
Now what? Do you get a lawyer? Do you try to proceed pro se? How do you get yourself out of this mess…? Then someone says, “You know, Barry is basically a lawyer. He’s been in jail so many times—he doesn’t even use a lawyer anymore! He’ll help you.” Perfect! This is going to be so easy. Barry knows his stuff, he’ll show you how to work the system. Wrong. Barry is just another jailhouse lawyer. He feeds you the same old too-good-to-be-true pieces of “advice,” a.k.a. myths. You relied on Barry and now you’re S.O.L.: Proceed straight to jail, do not pass Go, do not collect $200.
45 Days Dismissal Myth
One of the most common myths you hear from armchair and jailhouse lawyers is that “if you don’t get indicted within 45 days, they have to dismiss your case.” Oh, wow, now you’re hoping your case file falls through the floorboards and they forget about you for 46 days. That would be awesome, right? Well, sorry, but that little voice in your head saying that this is too-good-to-be-true, is right.
A defendant must be released on his own recognizance 45 days after his arraignment if he has not been indicted, unless the defendant caused or requested the delay, or the prosecutor can show a good reason why the defendant should not be released. (NY CPL § 190.80). This does not apply if the defendant is being held on another charge, or if the defendant is on parole.
Read that carefully. “Released” does NOT mean your charges are dismissed; it means you are let out of jail.
Good ‘ole Barry now tells you that they have to give you a felony hearing within 5 days (120 hours) of your arrest, or else they have to dismiss the charges against you. Poor Barry. Now we know he’s definitely seen too many lawyer shows and movies.
If you’ve been released from custody, you are not entitled to a hearing. If you’re being held on multiple charges, you can demand to be released on your own recognizance, which eliminates the need for a hearing. If you’re in custody but you’re also on parole, you aren’t entitled to the hearing within 5 days either.
If you’re being held for one charge, then you are entitled to a felony hearing within 5 days (120 hours) of your arrest. If you do not receive a felony hearing, charges against you are not dismissed—the court must release you from custody unless the prosecutor can show good cause against the release, or the delay is consented to or caused by the defendant.
Again, you are “released,” your charges are NOT dismissed.