Waiver of indictment; filing of superior court information
§ 195.40 Waiver of indictment; filing of superior court information.
When indictment is waived in a superior court the district attorney shall file a superior court information in such court at the time the waiver is executed. When indictment is waived in a local criminal court the district attorney shall file a superior court information in the appropriate superior court within ten days of the execution of the court order approving the waiver. Upon application of a defendant whose waiver of indictment has been approved by the court, and who, at the time of such approval or subsequent thereto, has been committed to the custody of the sheriff pending disposition of the action, and who has been confined in such custody for a period of more than ten days from the date of approval without the filing by the district attorney of a superior court information, the superior court must release him on his own recognizance unless:
(a) The failure of the district attorney to file a superior court information during such period of confinement was due to defendant's request, action or condition or occurred with his consent; or
(b) The people have shown good cause why such order of release should not be issued. Such good cause must consist of some compelling fact or circumstance which precluded the filing of the superior court information within the prescribed period.
Waived in superior court: the DA files the SCI at the time the waiver is executed.★
Waived in local criminal court: the DA files the SCI in the superior court within 10 days of the execution of the approving order.★
Release remedy: if a defendant whose waiver was approved has been committed to the sheriff's custody and confined more than 10 days from the date of approval without the DA filing an SCI, the superior court must release him on his own recognizance★ — unless:
(a) the delay was due to the defendant's own request, action, condition, or consent; or
(b) the People show good cause — some compelling fact or circumstance that prevented timely filing. ★
★ Exam hits:
Waiver requires all three: defendant held for the grand jury, NOT a class A felonypunishable by death or life, and DA consent (§ 195.10).
The waiver is a written instrument signed by the defendant IN OPEN COURT with his attorney present, DA's consent endorsed on it (§ 195.20); the SCI = same force and effect as an indictment.
Waive in the local criminal court at the time of the hold order, or in superior court any time before an indictment is filed (§ 195.10(2)).
On approval, a local criminal court must promptly transmit the papers; until the superior court receives them, the case stays in the local criminal court (§ 195.30).
Filing deadlines: immediately if waived in superior court; within 10 days of the approval order if waived in local criminal court (§ 195.40).
If confined more than 10 days post-approval with no SCI filed, the court must release on own recognizance — unless defendant caused the delay or the People show good cause (§ 195.40).
Verbatim statute: CPL - Article 195
Marked in the text: penalties, time limits, sums of money. Editorial emphasis added by this edition; it does not appear in the statute as enacted.
In print
This provision appears in Volume 3 — The JG-22 Criminal Procedure Law and in Volume 1 — The JG-22 in Plain English.