CPL 170.70: Release for Failure to Replace Misdemeanor Complaint

Under CPL 170.70, if you are held in custody on a misdemeanor complaint in New York, the court must release you on your own recognizance once more than five days have passed (Sundays excluded) without the prosecution replacing that complaint with a legally sufficient information. The release is not automatic. Your attorney has to apply for it, and two narrow exceptions can defeat the application, but when neither exception is in play the statute uses the word “must.”¹

How the Five-Day Clock Runs

The count starts when you are arraigned on the misdemeanor complaint and committed to the sheriff’s custody, whether because bail was set and you could not post it or because you were remanded outright. From that point, the prosecution has more than five days to file the information. Only Sundays drop out of the count. Saturdays count. Public holidays count.

People sometimes confuse this with the felony timelines under CPL 180.80, which run in hours (120 or 144). A New York court addressed the difference directly, observing that “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.”² For misdemeanors, think in calendar days with Sundays removed.

Two quick examples. Arraigned Tuesday and held: five days later, with no Sunday in the window, the release right has triggered. Arraigned Thursday and held across a weekend: Saturday counts against the prosecution, Sunday does not, so the window closes a day later than a straight count of calendar days would suggest. Getting the arithmetic right matters, because the application is only ripe once the window has actually closed.

What the Prosecution Has to File

A misdemeanor complaint is enough to arrest you and bring you before a judge, but it is not enough to try you. Complaints can rest on hearsay, like an officer repeating what a witness said. New York requires the prosecution to replace the complaint with an “information” before the case can move forward.³ The failure to do that within five days (minus Sundays) is what triggers your right to release.

An information is sufficient on its face when it follows the prescribed form, when the facts alleged provide reasonable cause to believe you committed the offense, and when the non-hearsay portions of the information and any supporting depositions establish every element of the charge if taken as true.⁴ The non-hearsay requirement is where prosecutors most often fall short. If the only account of the incident is an officer writing down what a witness told them, that is hearsay. To convert the complaint, the prosecution typically files a supporting deposition: a sworn written statement from the victim or another witness with firsthand knowledge.⁵ In theft cases, that is often a statement from the owner confirming you had no permission to take the property. In drug cases, it is often a chemist’s lab report identifying the substance.

The deposition has to be properly verified. New York allows the deponent to swear to it before the court, a desk officer at a police station, a notary, or another authorized public servant. It can also be verified by printing a notice on the document that false statements are punishable as a Class A misdemeanor, in which case the deponent’s signature does the work.⁶ A missing or defective verification can mean the “information” on file is not actually valid, which is the same thing (for release purposes) as not filing one at all.

One point worth knowing: the replacing information does not have to match the complaint charge for charge. At least one count must rest on the same conduct, but the prosecution can add or shift charges within the joinder rules.³ The charges you ultimately face may look different from what was on the paperwork at arraignment.

Two Exceptions That Can Keep You In

CPL 170.70 is not a guarantee. The statute carves out two situations where release is not required.¹

You Waived Prosecution by Information

A defendant can waive the right to be prosecuted by information and let the case proceed on the complaint itself.³ This usually comes up in plea negotiations, where defense counsel wants to keep the current paperwork intact. If you have entered that waiver, the prosecution never had an obligation to convert, and the five-day rule does not help you.

The Court Finds Good Cause for the Delay

Even without a waiver, a judge can deny release on a finding of good cause for the prosecution’s failure. The statute defines that as “some compelling fact or circumstance” that prevented timely conversion. A key witness hospitalized or genuinely unreachable despite diligent efforts can meet the standard. A busy or disorganized DA’s office does not. Judges tend to scrutinize these claims closely, and vague assertions of difficulty usually fail.

How Release Actually Happens

Nothing happens on its own at the stroke of day five. Your attorney has to file a motion for release once the window has passed without a valid information on file. If neither exception applies, the statute says the court “must” release you on your own recognizance. That word is mandatory. The judge does not have the option to set a new bail amount instead; it is ROR or nothing.

The court can still attach non-monetary conditions under the general securing-order framework, such as check-ins or court date reminders.⁷ Once the order is signed and transmitted to the jail, the legal authority to hold you ends immediately, though the physical process of discharge and returning property can take hours.

Release does not end the case. The charges remain pending. You have to come back for every scheduled court date. The prosecution can still file the information later and proceed. What you gain is the ability to fight the case from outside instead of from a cell.

How This Differs From CPL 30.30

CPL 170.70 is a short-term release remedy. It is not a dismissal statute. The remedy that can actually end the case for prosecutorial delay is CPL 30.30, the speedy trial rule, and the two work on different clocks.

Under CPL 30.30, the prosecution must be ready for trial within 90 days for a misdemeanor punishable by more than three months in jail, or 60 days for one punishable by three months or less.⁸ When you are in custody, those windows shrink: 30 days for the more serious misdemeanors and 15 days for the less serious ones. Missing a 30.30 deadline supports a motion to dismiss the accusatory instrument outright, which is a much stronger remedy than the release-only outcome under 170.70. Certain periods, like defense-requested adjournments and times when you are absent or unavailable, do not count against the prosecution’s 30.30 clock.

If you are sitting in jail on a misdemeanor, both clocks are running at once, and they do different work. The 170.70 clock gets you out. The 30.30 clock, if it expires, can get the case dismissed.

1
New York State Senate. New York Criminal Procedure Law 170.70 – Release of Defendant Upon Failure to Replace Misdemeanor Complaint by Information
2
New York Unified Court System. People v Mclean (2022 NY Slip Op 22334)
3
New York State Senate. New York Criminal Procedure Law 170.65 – Replacement of Misdemeanor Complaint by Information and Waiver Thereof
4
New York State Senate. New York Criminal Procedure Law 100.40 – Local Criminal Court Accusatory Instruments; Sufficiency on Face
5
New York State Senate. New York Criminal Procedure Law 100.20 – Supporting Deposition
6
New York State Senate. New York Criminal Procedure Law 100.30 – Information, Misdemeanor Complaint, Felony Complaint, Supporting Deposition and Proof of Service of Supporting Deposition; Verification
7
New York State Senate. New York Criminal Procedure Law 510.10 – Securing Order; When Required
8
New York State Senate. New York Criminal Procedure Law 30.30 – Speedy Trial; Time Limitations