Motions to Dismiss the Charging Paper

• 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: 369-381

369

CHAPTER 17

MOTIONS TO DISMISS

THE CHARGING PAPER

§ 17.01 Types of Challenges to the Charging

Paper; the Stages at Which These

Challenges Can and Should Be Raised

There are a variety of grounds for challenging the sufficiency of a charging paper or

some of its counts by a motion to dismiss the Petition or those counts. They include:

1. Failure of the Petition to allege facts const ituting an of fense. (See § 17.03 infra.)

2. Lack of jurisdiction to bring the case in the juvenile court, in that the respondent

is too old to be prosecuted as a juvenile or too young to be prosecuted at all. (See

§ 17.0 4 infra.)

3. Failure to allege facts establish ing venue. (See § 17.05 infra.)

4. Technical defects. (See § 17.06 infra.)

5. Expiration of the statute of limitations for the offense. (See § 17.07 infra.)

6. Double jeopardy. (See § 17.08infra.)

7. Misjoinder of counts or of respondents. (See Chapter 18.)

In many jurisdictions, statutes or court rules require that motions challenging the

sufficiency of the charging paper be made in writing, within a specified period of time

(usually 15 or 30 days after arraign ment). See § 7.05 supra. If the challenge is to t he juris-

diction of the court, t hat challenge may be made at any time.

Even when local procedures require that motions be in writing, a challenge to the

sufficiency of the charging paper can be made orally at a detention hearing to prevent

detention on an invalid Petition. See § 4.23 supra.

§ 17.02 Terminology

Under the specialized vocabular y employed in juvenile courts in most jurisdic tions, juve-

niles cannot be “charged” wit h “crimes” but can merely be “alleged” to have “committed

acts, which if committed by an adult, would constitute crimes” and which render the

child “delinquent.” Because this terminology is extremely unwieldy, the present chap-

ter will use the words “charges” and “crimes” in discussing the pleading requirements