Under New York Criminal Procedure Law Section 170.70, a court must release a defendant on their own recognizance when the prosecution fails to replace a misdemeanor complaint with a proper information within five days of the defendant being held in custody. Sundays do not count toward the five days. Saturdays and holidays do. Two narrow exceptions can block release: a waiver by the defendant, or a court finding of good cause for the delay.1New York State Senate. New York Criminal Procedure Law 170.70 – Release of Defendant Upon Failure to Replace Misdemeanor Complaint by Information
When the Five-Day Clock Starts and How to Count It
The clock begins when a defendant is arraigned on a misdemeanor complaint and committed to the custody of the sheriff, whether because bail was set and could not be posted or because the defendant was remanded outright. From that moment, the prosecution has more than five days, excluding Sunday, to file an information that replaces the complaint.1New York State Senate. New York Criminal Procedure Law 170.70 – Release of Defendant Upon Failure to Replace Misdemeanor Complaint by Information Miss that window and the defendant can apply for release.
People often confuse this deadline with the hour-based windows that apply to felony complaints under CPL 180.80. They are not the same. A New York court put it plainly: “the legislature made a conscious decision to calculate time in terms of days under CPL 170.70, as opposed to calculating time in terms of hours as required under CPL 180.80.”2New York Unified Court System. People v Mclean (2022 NY Slip Op 22334) The count runs in calendar days. Only Sundays drop out.
A practical illustration. If arraignment and commitment happen on a Tuesday, five days must pass, skipping any Sunday in between, before the release right kicks in. If arraignment falls on a Thursday and the window spans a weekend, Sunday is excluded but Saturday counts against the prosecution. Getting this math right is the whole ballgame for a defense attorney preparing a release motion.
What the Prosecution Has to File
A misdemeanor complaint by itself cannot carry a case forward. It can rest on hearsay, such as an officer writing down what a witness told them. That is enough for arrest and arraignment. It is not enough for prosecution. New York law requires the complaint to be replaced by an “information” before the case proceeds, and the failure to file that information within five days is what triggers CPL 170.70.3New York State Senate. New York Criminal Procedure Law 170.65 – Replacement of Misdemeanor Complaint by Information and Waiver Thereof
An information is sufficient only when it meets three requirements. It must follow the prescribed form, with an accusatory part naming the offense and a factual part describing the evidence. The factual allegations, together with any supporting depositions, must give reasonable cause to believe the defendant committed the offense. And the non-hearsay portions must establish every element of the charged offense if the facts alleged are taken as true.4New York State Senate. New York Criminal Procedure Law 100.40 – Local Criminal Court Accusatory Instruments; Sufficiency on Face
The non-hearsay requirement is where conversions fall apart. If the complaint says the victim told an officer that the defendant punched him, that is hearsay. The prosecution usually cures this with a supporting deposition, a sworn firsthand statement from the victim or another witness.5New York State Senate. New York Criminal Procedure Law 100.20 – Supporting Deposition In a theft case, that might be a statement from the property owner. For a drug charge, a lab report from a chemist identifying the substance often does the job. Without a document like that on file within five days, the complaint has not been converted, and CPL 170.70 is in play.
The Two Exceptions That Block Release
CPL 170.70 is not automatic. The statute names two situations where release can be denied even after the five days run out.
Waiver by the Defendant
A defendant can waive the right to be prosecuted by information and let the case proceed on the original complaint.1New York State Senate. New York Criminal Procedure Law 170.70 – Release of Defendant Upon Failure to Replace Misdemeanor Complaint by Information This usually happens when defense counsel is negotiating a plea and wants more room, or when the defense sees an advantage in keeping the case on its current footing. Once that waiver is entered under CPL 170.65, the five-day clock stops mattering, because the prosecution no longer has to convert.3New York State Senate. New York Criminal Procedure Law 170.65 – Replacement of Misdemeanor Complaint by Information and Waiver Thereof
Good Cause for the Delay
Even without a waiver, the court can deny release on a finding of good cause. The bar is high. Good cause must consist of “some compelling fact or circumstance” that prevented conversion in time.1New York State Senate. New York Criminal Procedure Law 170.70 – Release of Defendant Upon Failure to Replace Misdemeanor Complaint by Information A key witness hospitalized or genuinely unreachable despite diligent efforts might clear that bar. A busy or disorganized DA’s office will not. Judges look at these claims closely, and vague assertions of difficulty tend to fail.
How the Release Actually Happens
The release is not self-executing. Once the five days pass without a valid information, defense counsel has to apply to the court. If neither exception applies, the statute says the court “must” release the defendant on their own recognizance.1New York State Senate. New York Criminal Procedure Law 170.70 – Release of Defendant Upon Failure to Replace Misdemeanor Complaint by Information That word is mandatory. The judge cannot set bail as an alternative. Release on the defendant’s own recognizance is what the statute requires.
Once the order is signed and sent to the jail, the legal authority to hold the person ends. Discharge itself, with property return and paperwork, can still take several hours. Any experienced defense attorney will warn a client’s family about that gap.
Release under CPL 170.70 is not dismissal. The charges remain, the case continues, and the defendant must appear for every future court date. The prosecution can file the information later and press forward. What the defendant gains is freedom while the case moves along instead of a jail cell waiting for paperwork. The court can still attach non-monetary conditions to the securing order, such as check-ins or court date reminders.6New York State Senate. New York Criminal Procedure Law 510.10 – Securing Order; When Required
How CPL 170.70 Differs From the Speedy Trial Rule
CPL 170.70 gets a defendant out of jail. It does not end the case. That is a separate protection under CPL 30.30, New York’s speedy trial statute, and the two work on different timelines toward different remedies.
Under CPL 30.30, the prosecution must be ready for trial within 90 days for a misdemeanor carrying more than three months of jail time, or 60 days for a misdemeanor carrying three months or less.7New York State Senate. New York Criminal Procedure Law 30.30 – Speedy Trial; Time Limitations For defendants held in custody, the windows tighten to 30 days and 15 days respectively. Missing a CPL 30.30 deadline lets the defense move to dismiss the accusatory instrument outright, a much stronger remedy than the release-only outcome under CPL 170.70. Certain periods are excluded from the 30.30 count, including defense-requested adjournments and time when the defendant is absent or unavailable.
For anyone sitting in jail on a misdemeanor complaint, both clocks are running at once, and each one offers a different kind of leverage at a different point in the case.