Defendants have the constitutional right to a speedy trial. This means that defendants cannot be kept waiting and languishing for a trial data and conclusion to their criminal charge. The constitutional right to a speedy trial is found in Amendments VI and XIV of the U.S. Constitution. In New York, CPL 30.20 and the Civil Rights Law guarantee this federal constitutional right despite it not being in the New York State Constitution. In cases regarding juvenile delinquency proceedings, the speedy trial protection is available under the Family Court Act.

It is important to note that in New York, as opposed to CPL 30.30, which states that the People be ready for trial within a certain amount of time, after the “commencement” of the action, the constitutional time period is the length between the commencement and the actual start of trial.

The remedy for delay is a dismissal with prejudice. If a defendant’s constitutional right is violated, the remedy to it is a dismissal of charges with prejudice. A dismissal with prejudice means that the prosecution is unable to pursue the charges again. There are five factors considered in regards to a dismissal for the failure of a speedy trial. Unlike the statutory speedy trial right, there is no specific time limit that would trigger a right to s speedy trial right to dismissal. The five factors the court weighs is: the extent of the delay; the reason for the delay; the nature of the underlying charge; the extent of the pretrial incarceration, and whether the defense was impaired by the delay.

The constitutional right to a speedy trial does not apply to any post conviction delays. If a defendant is found convicted, but the conviction is reversed, the delay between the reversal and the retrial does not violate the right to a speedy trial. The right to the speedy trial only applies to the defendant until they are brought to trial.

If there has been a long delay between the commission of the crime and the defendant’s arrest, there may be a due process violation that is separate from a speedy trial. For example, if a victim identifies the defendant in a photograph, but the police take a prolonged time to charge the defendant, this is a due process violation. The fact that the police take a long time to charge and the prosecution to indict would be a due process violation. If there has been a prolonged delay, prosecution has the burden to show the cause of the delay and that it was justified.

The causes of the delay determine whether there has been a due process violation. The court considering whether there has been a due process violation will look at five factors. The factors are nearly identical to the five factors discussed above regarding the right to a speedy trial. These five are: the length of the delay; the reason for the delay; the degree of prejudice to the defendant; the serious of the underlying crime; and the extent of pretrial incarceration.

The judge may schedule a hearing to determine if the facts fit the five issues. However, a significant delay in prosecution may result in a dismissal, regardless of prejudice. In both instances, the right to a speedy trial and the right to due process, a violation of these rights would result in a dismissal of charges with prejudice.

In certain instances the defense attorney may choose to waive the right to speedy trial and CPL 30.30. The choice to waive this right is a generally a strategy tactic. For example, a prosecutor may predicate consent to an adjournment or any request/motion from the defense on the defense’s waiver to speedy trial or CPL 30.30.

If you have been arrested, charged, or suspect that you may be eligible of a dismissal of charges with prejudice based on what you’ve read above, please give our office a call. The defense attorneys at Joseph Potashnik & Associates are ready and willing to help. Our New York Criminal lawyers have handled thousands of criminal cases in New York and we can assist you and your family members if you are facing criminal charges. Call us today to set up a confidential consultation.