§ 210.45 Motion to dismiss indictment; procedure.

1. A motion to dismiss an indictment pursuant to section 210.20 must
be made in writing and upon reasonable notice to the people. If the
motion is based upon the existence or occurrence of facts, the motion
papers must contain sworn allegations thereof, whether by the defendant
or by another person or persons. Such sworn allegations may be based
upon personal knowledge of the affiant or upon information and belief,
provided that in the latter event the affiant must state the sources of
such information and the grounds of such belief. The defendant may
further submit documentary evidence supporting or tending to support the
allegations of the moving papers.

2. The people may file with the court, and in such case must serve a
copy thereof upon the defendant or his counsel, an answer denying or
admitting any or all of the allegations of the moving papers, and may
further submit documentary evidence refuting or tending to refute such
allegations.

3. After all papers of both parties have been filed, and after all
documentary evidence, if any, has been submitted, the court must
consider the same for the purpose of determining whether the motion is
determinable without a hearing to resolve questions of fact.

4. The court must grant the motion without conducting a hearing if:

(a) The moving papers allege a ground constituting legal basis for
the motion pursuant to subdivision one of section 210.20; and

(b) Such ground, if based upon the existence or occurrence of facts,
is supported by sworn allegations of all facts essential to support the
motion; and

(c) The sworn allegations of fact essential to support the motion are
either conceded by the people to be true or are conclusively
substantiated by unquestionable documentary proof.

5. The court may deny the motion without conducting a hearing if:

(a) The moving papers do not allege any ground constituting legal
basis for the motion pursuant to subdivision one of section 210.20; or

(b) The motion is based upon the existence or occurrence of facts,
and the moving papers do not contain sworn allegations supporting all
the essential facts; or

(c) An allegation of fact essential to support the motion is
conclusively refuted by unquestionable documentary proof.

6. If the court does not determine the motion pursuant to subdivision
four or five, it must conduct a hearing and make findings of fact
essential to the determination thereof. The defendant has a right to be
present in person at such hearing but may waive such right.

7. Upon such a hearing, the defendant has the burden of proving by a
preponderance of the evidence every fact essential to support the
motion.

8. When the court dismisses the entire indictment without authorizing
resubmission of the charge or charges to a grand jury, it must order
that the defendant be discharged from custody if he is in the custody of
the sheriff, or if he is at liberty on bail it must exonerate the bail.

9. When the court dismisses the entire indictment but authorizes
resubmission of the charge or charges to a grand jury, such
authorization is, for purposes of this subdivision, deemed to constitute
an order holding the defendant for the action of a grand jury with
respect to such charge or charges. Such order must be accompanied by a
securing order either releasing the defendant on his own recognizance or
fixing bail or committing him to the custody of the sheriff pending
resubmission of the case to the grand jury and the grand jury's
disposition thereof. Such securing order remains in effect until the
first to occur of any of the following:

(a) A statement to the court by the people that they do not intend to
resubmit the case to a grand jury;

(b) Arraignment of the defendant upon an indictment or prosecutor's
information filed as a result of resubmission of the case to a grand
jury. Upon such arraignment, the arraigning court must issue a new
securing order;

(c) The filing with the court of a grand jury dismissal of the case
following resubmission thereof;

(d) The expiration of a period of forty-five days from the date of
issuance of the order; provided that such period may, for good cause
shown, be extended by the court to a designated subsequent date if such
be necessary to accord the people reasonable opportunity to resubmit the
case to a grand jury.

Upon the termination of the effectiveness of the securing order
pursuant to paragraph (a), (c) or (d), the court must immediately order
that the defendant be discharged from custody if he is in the custody of
the sheriff, or if he is at liberty on bail it must exonerate the bail.
Although expiration of the period of time specified in paragraph (d)
without any resubmission or grand jury disposition of the case
terminates the effectiveness of the securing order, it does not
terminate the effectiveness of the order authorizing resubmission.