Motion for Change of Venue - New York

TABLE OF CONTENTS

1. Caption
2. Motion for Removal of Action / Change of Venue
3. Statement of Facts
4. Grounds for Removal / Change of Venue
   - A. Pretrial Publicity
   - B. Community Prejudice
   - C. Other Countywide Conditions
5. Constitutional Basis
6. Statutory Authority
7. Factors for Court Consideration
8. Proposed Alternative Venue
9. Supporting Affidavits and Evidence
10. Conclusion and Prayer for Relief
11. Proposed Order
12. Certificate of Service
13. Sources and References

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION, [____] DEPARTMENT

MOTION FOR REMOVAL OF ACTION / CHANGE OF VENUE

NOTICE IS HEREBY GIVEN that the Defendant, [DEFENDANT FULL LEGAL NAME], by and through [his/her/their] attorney, [DEFENSE ATTORNEY NAME], of [LAW FIRM NAME], will move the Appellate Division of the department embracing [________________] County for an Order under CPL § 230.20(2) removing the above-captioned indictment and action from the superior court in [________________] County to a designated superior court in another county, or, in the alternative, directing expansion of the jury pool as authorized by CPL § 230.20(2)(b).

In support of this Motion, Defendant states as follows:

I. STATEMENT OF FACTS

1. The Defendant was indicted by the [________________] County Grand Jury on [__/__/____] and charged with [CHARGES AND STATUTORY CITATIONS].

2. The alleged offense(s) occurred on or about [__/__/____] in [________________] County, New York.

3. The case is currently pending in [________________] County [County Court / Supreme Court] before the Honorable [________________].

4.

[________________________________]
[________________________________]
[________________________________]

II. GROUNDS FOR REMOVAL / CHANGE OF VENUE

A. Pretrial Publicity

5. The above-captioned matter has received extensive and prejudicial pretrial publicity in [________________] County, including but not limited to:

☐ Television news coverage on [STATION(S)] on the following dates: [________________________________]

☐ Newspaper articles published in [PUBLICATION(S)] on the following dates: [________________________________]

☐ Radio broadcasts on [STATION(S)] on the following dates: [________________________________]

☐ Online media coverage and social media discussion, including: [________________________________]

☐ Other forms of publicity: [________________________________]

6. The nature and extent of such publicity has been [inflammatory/prejudicial/pervasive] and has included .

[________________________________]

7. Due to the population and media saturation of [________________] County (approximately [____] residents), it is virtually impossible to empanel an impartial jury from within the county.

B. Community Prejudice

8. There is reasonable cause to believe that a fair and impartial trial cannot be had in [________________] County because of community prejudice demonstrated by:

☐ Public statements made by community leaders or officials: [________________________________]

☐ Organized community actions against the Defendant: [________________________________]

☐ Social media campaigns or petitions: [________________________________]

☐ The nature of the alleged victim's standing in the community: [________________________________]

☐ Other demonstrations of community prejudice: [________________________________]

C. Other Countywide Conditions

9. Other conditions reinforce the conclusion that a fair and impartial trial cannot be had in the county, including:

☐ Threats have been made against the Defendant: [________________________________]

☐ Threats have been made against defense counsel or witnesses: [________________________________]

☐ Public demonstrations have occurred at or near the courthouse: [________________________________]

☐ Law enforcement has expressed security concerns: [________________________________]

III. CONSTITUTIONAL BASIS

10. The Sixth Amendment to the United States Constitution guarantees the Defendant the right to a trial "by an impartial jury of the State and district wherein the crime shall have been committed."

11. The Fourteenth Amendment to the United States Constitution guarantees the Defendant the right to due process of law, which includes the right to a fair trial before an impartial jury.

12. Article I, Section 2 of the New York Constitution guarantees the right to trial by jury in all cases in which it has heretofore been guaranteed.

13. The United States Supreme Court has recognized that when pretrial publicity or community prejudice is so pervasive as to render a fair trial impossible, a change of venue is constitutionally required. Sheppard v. Maxwell, 384 U.S. 333 (1966); Irvin v. Dowd, 366 U.S. 717 (1961).

IV. STATUTORY AUTHORITY

14. CPL § 230.20(2) authorizes the Appellate Division of the department embracing the county, on motion of either the defendant or the People and a demonstration of reasonable cause to believe that a fair and impartial trial cannot be had there, to order removal of the indictment and action to a designated superior court in another county.

15. CPL § 230.20(2)(b) alternatively authorizes the Appellate Division to direct the county's commissioner of jurors, in consultation with the appropriate administrative judge, to expand the pool using jury lists from counties that are both within the same judicial district and geographically contiguous with the original county.

16. CPL § 230.20(3) requires papers stating the grounds, filing within the period provided by CPL § 255.20, five days' notice with service of the moving papers on the opposing party, and a return date during the Appellate Division term in which the papers are served or the next term.

17. CPL § 230.20(4) requires a certified removal order to be filed with the clerk of the superior court where the indictment is pending; that clerk then transmits the pertinent papers and proceedings to the receiving superior court, which conducts the action to final disposition.

18. CPL § 230.30 permits a Supreme Court justice holding a term in the district or an Appellate Division justice, on written application, reasonable notice, an opportunity to be heard, and good cause shown, to stay the trial for a designated period not exceeding 30 days so the applicant may make the removal or venue motion in the appropriate court.

19. CPL § 255.20(1) generally requires pretrial motions within 45 days after arraignment and before trial, subject to the statute's extensions and exceptions. People v. Boss, 261 A.D.2d 1 (1st Dep't 1999), applies CPL § 230.20's fair-and-impartial-trial standard to a publicity-based venue request.

V. FACTORS FOR COURT CONSIDERATION

20. The motion should present evidence bearing on whether a fair and impartial trial can be had in the county, including:

☐ The nature and extent of pretrial publicity
☐ Whether the publicity is inflammatory or merely factual
☐ The size of the community and the degree of publicity saturation
☐ The length of time between the publicity and the trial
☐ The difficulty or ease of jury selection
☐ The severity and notoriety of the charged offense(s)
☐ Whether the publicity contains information not admissible at trial
☐ Whether public officials have made prejudicial statements
☐ Whether the expanded-pool alternative would be adequate
☐ For an expanded-pool request, hardship on potential jurors and possible depletion of a county's qualified-juror list

21. Application of these considerations to the present case demonstrates: [________________________________]

VI. PROPOSED ALTERNATIVE VENUE

22. The Defendant respectfully proposes that this matter be removed to the [________________] County [Supreme Court / County Court], a superior court in New York.

23. The proposed venue is appropriate because:

☐ It is sufficiently distant from [________________] County to minimize the impact of pretrial publicity.
☐ The proposed county has not experienced the same degree of media coverage or community prejudice.
☐ The proposed county has adequate courtroom facilities and resources.
☐ Removal to this venue would not impose an unreasonable burden on the defense.

24. In the alternative, the Defendant requests that the Appellate Division order the Commissioner of Jurors to expand the jury pool using the jury lists of the following counties within the same judicial district that are geographically contiguous with [________________] County: [________________________________].

25. In the further alternative, the Defendant requests that the Appellate Division select an appropriate superior court in a county free from the prejudice described herein.

VII. SUPPORTING AFFIDAVITS AND EVIDENCE

26. In support of this Motion, the Defendant submits the following:

☐ Exhibit A: Affidavit of [DEFENDANT / DEFENSE COUNSEL] regarding grounds for removal
☐ Exhibit B: Copies of media articles and news reports concerning this case
☐ Exhibit C: Screenshots or printouts of social media posts and online commentary
☐ Exhibit D: Affidavit(s) of community members regarding local sentiment
☐ Exhibit E: Survey or poll results regarding community awareness and prejudice (if available)
☐ Exhibit F: Documentation of threats or safety concerns
☐ Exhibit G: [OTHER SUPPORTING DOCUMENTATION]

VIII. CONCLUSION AND PRAYER FOR RELIEF

WHEREFORE, the Defendant respectfully requests that this Honorable Court:

1. Grant this Motion for Removal of Action / Change of Venue;
2. Order removal of the above-captioned matter to [________________] County, New York, or such other county as the Court deems appropriate;
3. In the alternative, order the Commissioner of Jurors to expand the jury pool using jury lists from counties within the same judicial district that are geographically contiguous with [________________] County;
4. Order such further relief as the Court deems just and proper.

Respectfully submitted this [__/__/____].

[LAW FIRM NAME]

_________________________________________
[DEFENSE ATTORNEY NAME]
Attorney for Defendant
[ADDRESS LINE 1]
[ADDRESS LINE 2]
[CITY], New York [ZIP CODE]
Telephone: [________________]
Facsimile: [________________]
Email: [________________]

PROPOSED ORDER

SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION, [____] DEPARTMENT

Upon the motion of the Defendant for an order of removal pursuant to CPL § 230.20, and upon reading the moving papers, affidavits, and exhibits attached thereto, and due deliberation having been had thereon:

IT IS HEREBY ORDERED that the Defendant's Motion for Removal of Action is GRANTED.

IT IS FURTHER ORDERED that the indictment and all proceedings in the above-captioned matter are hereby removed from [________________] County [Court] to the [________________] County [Supreme Court / County Court] for all further proceedings.

[IF DEFENDANT IS IN CUSTODY:] IT IS FURTHER ORDERED that custody of the Defendant shall be transferred from the appropriate public servant of [________________] County to the appropriate public servant of [________________] County pursuant to CPL § 230.20(2)(a).

IT IS FURTHER ORDERED that the Clerk of the [________________] County [Court] shall transmit certified copies of all papers and proceedings in this case to the Clerk of the receiving court.

DATED this [__/__/____].

_________________________________________
Honorable [________________]
Justice of the Appellate Division

CERTIFICATE OF SERVICE

I hereby certify that on the [__/__/____], I served a true and correct copy of the foregoing MOTION FOR REMOVAL OF ACTION / CHANGE OF VENUE and all attached exhibits upon the following by the method indicated:

☐ Hand Delivery
☐ U.S. Mail, postage prepaid
☐ Electronic Filing/Service (via NYSCEF)
☐ Facsimile

[PROSECUTOR NAME]
[COUNTY] County District Attorney's Office
[ADDRESS LINE 1]
[CITY], New York [ZIP CODE]
Telephone: [________________]
Email: [________________]

_________________________________________
[DEFENSE ATTORNEY NAME]

NEW YORK STATE PRACTICE NOTES

• Terminology: CPL Article 230 uses "removal of action" for transfers, while CPL § 230.20 expressly addresses change of venue on a party's motion.
• Appellate Division Motion: A change-of-venue motion under CPL § 230.20(2) is made to the Appellate Division of the department embracing the county where the superior court is located. A Supreme Court justice may consider a separate application for a temporary stay under CPL § 230.30, but not the venue motion itself.
• Statutory Standard: The movant must demonstrate reasonable cause to believe that a fair and impartial trial cannot be had in the county. CPL § 230.20(2).
• Five-Day Notice: The motion requires five days' notice and service of the moving papers on the opposing party. CPL § 230.20(3).
• Timing: The motion must be made within the period provided by CPL § 255.20. That section generally uses 45 days after arraignment and before trial, but includes express extensions and exceptions.
• Expanded Jury Pool Alternative: CPL § 230.20(2)(b) permits an expanded pool only from counties within the same judicial district that are geographically contiguous with the original county.
• Stay of Trial: Either party may apply in writing, on reasonable notice, for a stay not exceeding 30 days to prepare and file the motion in the appropriate court. CPL § 230.30.
• Both Parties May Move: Unlike some states, both the defendant and the People may move for removal under CPL § 230.20.

Sources and References

• N.Y. Crim. Proc. Law § 230.20
• N.Y. Crim. Proc. Law § 230.30
• N.Y. Crim. Proc. Law § 255.20
• New York Constitution, Article I, § 2
• U.S. Constitution, Amendments VI and XIV
• Irvin v. Dowd, 366 U.S. 717 (1961)
• Sheppard v. Maxwell, 384 U.S. 333 (1966)
• People v. Boss, 261 A.D.2d 1 (1st Dep't 1999)