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Ask Hammer O'Justice Your Own Question
Hammer O'Justice
Hammer O'Justice, Criminal Lawyer
Category: Criminal Law
Satisfied Customers: 4491
Experience:  Almost 12 years of legal experience, primarily in criminal law
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How do i file a 40.40 motion I would like to have my felony

Customer Question

How do i file a 40.40 motion ? I would like to have my felony dismissed it has been 6 month since my arriment please help
Submitted: 8 years ago.
Category: Criminal Law
Expert:  Hammer O'Justice replied 8 years ago.
Are you talking about a 170.40 Motion to Dismiss?
Customer: replied 8 years ago.
I was charged on June 5 2008 with a E felony and a A mis. . Since then they have not indited me to grand jury it is still in city court. I repersent myself and I would like to know what motion i need to file? And also how do i file it written or verbal? They do only have 6 month to indite me or the court will have to dismiss the felony is this correct? And also if they are not ready to go to trial on the A mis they also have to dismiss for lack of proof is this correct?
Expert:  Hammer O'Justice replied 8 years ago.
<p>You can make a motion to dismiss on speedy trial grounds if prosecution hasn't commenced within six months if the counts include a felony charge under section 30.30 of the New York Criminal Procedure Laws. You can do it via written motion, which can be filed with the clerk of court. A copy must be sent to the district attorney's office as well. If the judge hasn't ruled on it before you appear in court, you can renew the motion orally before the judge citing your right to a speedy trial. </p><p> </p><p>I would strongly suggest that you reconsider your decision to represent yourself. The public defender's office will represent you if you can't afford counsel. Chances are the DA's office will respond to your motion with technical motions to get around your speedy trial argument, and an attorney who is trained in this kind of law will be able to make the arguments for you more effectively. Speaking from personal experience, I have not seen particularly positive results when defendants choose to represent themselves. You need to have an informed advocate on your side.</p><p> </p><p>Good luck.</p>
Customer: replied 8 years ago.
They have already offered me a plea to a A mis. There is no case that has been brought about and they have no evadence against me . If i hire a lawer is there something that i can do to recoupe my money if found not guilty ?
Expert:  Hammer O'Justice replied 8 years ago.
Not really. You are stuck with your own legal expenses. If the case against you is without probable cause and terminated in your favor, you could potentially have a case for malicious prosecution (but these cases very rarely succeed).