Defense Motions to Advance or for a Continuance; Motions to Dismiss for Want of Prosecution; Speedy Trial Motions

• Author: Anthony G. Amsterdam/Martin Guggenheim/Randy A. Hertz
• Profession: University Professor and Professor of Law at New York University/Fiorello LaGuardia Professor of Clinical Law at New York University School of Law/Professor of Clinical Law at NYU School of Law
• Pages: 353-360

353

CHAPTER 15

DEFENSE MOTIONS

TO ADVANCE OR FOR

A CONTINUANCE;

MOTIONS TO DISMISS

FOR WANT OF

PROSECUTION; SPEEDY

TRIAL MOTIONS

§ 15.01 Defense Motions to Advance the Date

of a Pretrial Hearing or the Trial

If the respondent is not detained pending trial, counsel will ordinarily not want to

advance the date of pretrial hear ings or the trial. It is usually i n the respondent’s interest

to delay proceedings as much as possible because that will give the respondent a longer

period of time in which to amass a record of good behavior and favorable community

adjustment that can be cited at disposition to avoid a sentence of incarceration.

If the respondent is detained pending trial, counsel will have attempted at arraign-

ment to set the trial for the earliest possible date that affords sufficient time for pretrial

preparation. See § 4.14 supra. Thus counsel will rarely have reason to seek advance-

ment of a case that is going to trial. However, if a detained client has decided to plead

guilty, there is no reason to wait for a trial date that is weeks away in order to enter the

plea. Counsel should advance the case so that the plea can be entered im mediately. This

procedure avoids needless preadjudication detention time, which, in most jurisdictions,

is not credited to the sentence if the respondent is sentenced to incarceration. And in

cases in which the plea may result in the client’s being released pending disposition, an

advancement of the plea date can bring about the respondent’s early release.

In order to advance a case, counsel should secure the prosecutor’s agreement to an

advancement and to a particula r date. Counsel then should contact the clerk of the court