Pre-trial motions; procedure

§ 255.20 Pre-trial motions; procedure.

1. Except as otherwise expressly provided by law, whether the
defendant is represented by counsel or elects to proceed pro se, all
pre-trial motions shall be served or filed within forty-five days after
arraignment and before commencement of trial, or within such additional
time as the court may fix upon application of the defendant made prior
to entry of judgment. In an action in which either (a) material or
information has been disclosed pursuant to paragraph (m) or (n) of
subdivision one of section 245.20 of this title, (b) an eavesdropping
warrant and application have been furnished pursuant to section 700.70
of this chapter, or (c) a notice of intention to introduce evidence has
been served pursuant to section 710.30 of this chapter, such period
shall be extended until forty-five days after the last date of such
service. If the defendant is not represented by counsel and has
requested an adjournment to obtain counsel or to have counsel assigned,
such forty-five day period shall commence on the date counsel initially
appears on defendant's behalf.

2. All pre-trial motions, with supporting affidavits, affirmations,
exhibits and memoranda of law, whenever practicable, shall be included
within the same set of motion papers, and shall be made returnable on
the same date, unless the defendant shows that it would be prejudicial
to the defense were a single judge to consider all the pre-trial
motions. Where one motion seeks to provide the basis for making another
motion, it shall be deemed impracticable to include both motions in the
same set of motion papers pursuant to this subdivision.

3. Notwithstanding the provisions of subdivisions one and two hereof,
the court must entertain and decide on its merits, at anytime before the
end of the trial, any appropriate pre-trial motion based upon grounds of
which the defendant could not, with due diligence, have been previously
aware, or which, for other good cause, could not reasonably have been
raised within the period specified in subdivision one of this section or
included within the single set of motion papers as required by
subdivision two. Any other pre-trial motion made after the forty-five
day period may be summarily denied, but the court, in the interest of
justice, and for good cause shown, may, in its discretion, at any time
before sentence, entertain and dispose of the motion on the merits.

4. Any pre-trial motion, whether made before or after expiration of
the period specified in subdivision one of this section, may be referred
by the court to a judicial hearing officer who shall entertain it in the
same manner as a court. In the discharge of this responsibility, the
judicial hearing officer shall have the same powers as a judge of the
court making the assignment, except that the judicial hearing officer
shall not determine the motion but shall file a report with the court
setting forth findings of fact and conclusions of law. The rules of
evidence shall be applicable at any hearing conducted hereunder by a
judicial hearing officer. A transcript of any testimony taken, together
with the exhibits or copies thereof, shall be filed with the report. The
court shall determine the motion on the motion papers, affidavits and
other documents submitted by the parties thereto, the record of the
hearing before the judicial hearing officer, and the judicial hearing
officer's report.