My boyfriend is in jail almost 6, months without being indicted. He wonders if he needs to file a motion to be released and would the judge accept his motion even thou he has a public defender
The answer is YES, a motion should be filed for his release by his assigned counsel.. But you may not have all the facts.
Your boyfriend has been been charged with a felony and has been in jail almost 6 months without being indicted. CPL Section 180.80 states that there must be a preliminary hearing or grand jury action taken by the DA in a felony case within 120 hours of the arrest, which means within 5 days or 144 hours if there is a weekend or holiday. If no action has been taken, as long as your boyfriend’s attorney has not consented to the adjournment, he must be released.
Keep in mind that if he is released pursuant to CPL §180.80 it does not mean that the charges against him have been dismissed and he will still be required to attend all scheduled court appearances.
A motion would be necessary if the People violate his right to a speedy trial but his lawyer is better qualified to determine when such a motion would be appropriately made and to draft such a motion.
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The answer depends on what he is charged with. If he is charged with homicide, then he may not be eligible to be released. If he was remanded, he may not be eligible for release. If he is charged with most crimes, however, yes, the motion should be filed.
Please feel free to contact me if you would like help with the motion.
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