All New York criminal lawyers must be thoroughly familiar with the New York Criminal Procedural Law provisions concerning when a defendant facing New York criminal charges may be released after bail has been set.
With a misdemeanor charge, under Criminal Procedural Law 170.70, a person who has been incarcerated because they are unable to make bail for more than five days, not including Sunday, must be released if an information has not been filed. In simple terms, that means that there must be sworn allegations based upon personal knowledge filed with the Court that meets all of the elements of the crime charged.
Common examples of defects which require a defendant to be released are the lack of a lab report in a drug case, the lack of a supporting deposition in an assault or criminal mischief case. Another example in a petit larceny or shoplifting case is the failure of the District Attorney to file an affidavit of the owner of the property.
The only exceptions where a defendant may be held in custody is where the defendant has consented or waived the defects or if the District Attorney can establish that there was good cause why the defendant should not be released. Under New York law, good cause must include a compelling fact or circumstance which precluded the District Attorney from establishing all of the elements of the offense.