Commencement of a Criminal Case in New York
A criminal case is commenced when an accusatory instrument is filed with a criminal court. An accusatory instrument can be: Criminal Procedure Law (100.05), Information , Simplified Information, Prosecutor's Information, Misdemeanor Complaint or a Felony Complaint. The Court system has several ways of securing a person’s appearance in court after the commencement of a criminal action against him or her, including an Arrest Warrant, an Appearance Ticket, a criminal summons, and simplified information.
An Arrest Warrant is a warrant issued by a local criminal court directing local law enforcement to arrest a defendant designated in an accusatory instrument filed with the court and bring him/her before such court. The Court may also use a Bench Warrant, which is a document issued by a City Court Judge that will bring the defendant to court without unnecessary delay. A Bench Warrant may be executed in the county of issuance or any adjoining county.
A criminal action is brought by the government against an individual or a corporation. A person is arrested upon commencement of a criminal action and upon his or her arrest he or she becomes a “defendant” in the criminal justice system. A criminal case may also start when a person learns that he or she is the subject of an ongoing investigation. An investigation often leads to an arrest. In New York there are several federal and local agencies with power to arrest individuals and bring them before the court. If an individual has been arrested by a state or local agency such as the city police, he or she will be brought to a state court. A criminal case in New York City usually begins in New York City Criminal Court. If an individual is arrested by a Federal agency such as the FBI, he or she will be brought to Federal Court.
Typically, an arrest takes place near the scene of the alleged crime or shortly thereafter. An arrest can also be made later, after a phone call or a visit from a detective. Whatever the situation, the arrested person should never speak to a police officer or detective. Statements to police officers or detectives can be dangerous because they can be used against you in court. If the arrested person wants to tell his side of the story, this is not the time to do it. Unfortunately, police are allowed to make all sorts of promises that they do not have to keep. When a person speaks to the police or other agency after being arrested they do themselves more harm than good. An individual under arrest should ask to speak with an attorney IMMEDIATELY. He or she should refuse to answer any questions or sign any documents without his attorney’s advice. Making any statements to or in front of a police officer or a detective can be very dangerous to your case.
An arrest is made upon “probable cause” that the person to be arrested has committed the crime. After the arrest comes the filing of a misdemeanor or felony complaint in the Criminal Court. Once having been arrested in New York, a person can either be held in jail until he is brought before a judge for arraignment or he can receive a Desk Appearance Ticket.
Desk Appearance Tickets
A Desk Appearance Ticket (D.A.T.) is an order issued by the police to appear in Criminal Court, following an accusation that the person has committed a crime. When a person receives a D.A.T. he has been arrested for all practical purposes but instead of having him wait in jail to see a judge for his arraignment, he is required to bring himself to court for his arraignment. The Desk Appearance Ticket may charge a violation, a misdemeanor or even a felony charge. The word “ticket” misleads people into believing that the D.A.T. does not charge a criminal offense but the opposite is true. Receiving a D.A.T. is tantamount to having been arrested. Whether you are physically arrested or receive a D.A.T., any time a police officer wants to question you it is highly recommended that your Criminal Defense Attorney is present. It is extremely important that you consult a criminal defense lawyer before making any statements to a police officer and failing to do so can severely impact your case.
Presentment, Indictment and the Grand Jury
New York requires the prosecution to do something more than simply preparing a written accusation in a felony case. In such a case the prosecution is required to obtain an indictment in order to proceed with the prosecution of the case. An indictment is an authorization by the Grand Jury to prosecute a person for a felony and in some cases for a misdemeanor. The Grand Jury is a group of randomly chosen citizens with the authority to issue and indictment against a particular individual. The prosecution is required to gent an indictment against every individual being accused with a felony if the case is not resolved by agreement. Upon indictment, the case is transferred to New York State Supreme Court where it will be prepared for and, if necessary, ultimately tried.
Upon arrest the defendant will be fingerprinted, photographed, and checked for warrants. The exact charges may be determined by the district attorney or the arresting officer. While in custody, the defendant will be interviewed by a representative from Pre-Trial Services. At the interview, the defendant is usually asked questions about his address, the name and address of his employer, whether he is on parole or probation, and the contact information of a person who can verify this information. A recommendation is then made by the Pre-Trial Services to the court at arraignment as to whether the defendant should be released or whether bail should be set.
Typically, a criminal defendant's first court hearing is an "arraignment" before a judge or magistrate. An "arraignment" is an appearance in court where charges are formally read to a defendant. The judge or magistrate may also evaluate whether there was probable cause for an arrest, and may compel the prosecutor to allege additional facts to support the arrest. If probable cause is not established, the defendant must be released.
Bail is the amount of money or property that is required to set a person free from jail and is often set at the same time as the arraignment. Bail is usually granted in a standard amount, depending upon the crime charged.
There are generally three broad factors contributing to the judge’s decision on whether to set bail and in what amount: 1) prior criminal history, 2) seriousness of the offense charged, and 3) community ties of the accused.
If the defendant has a clean criminal record, the offense he is charged with is not particularly serious, and his ties to the community are strong then the defendant is more likely to be released without bail on his own recognizance. However, the more extensive the criminal history, the more serious the offense, and the fewer ties to the community the defendant has, the greater the likelihood that a judge will set bail and in a high amount. The particular judge presiding at the arraignment, and the particular county, whether it be Manhattan, Bronx, Brooklyn, Queens, Rockland, Westchester, Richmond, Nassau or Suffolk, can also be contributing factors in how bail is set.
The defendant will be released if bail is granted and the defendant posts the required bail. Sometimes, a defendant will be released on his own recognizance, that is, on his promise that he will appear for the next court hearing. Sometimes, bail is set in a very high amount. A defendant accused of very serious crimes may be denied bail, or have bail set a very high amount. Upon having been released on bail a defendant must attend all subsequent court hearings. Failure to do so may result in having his bail forfeited.
The “Initial Appearance” is the defendant's first appearance in court where bail and conditions of release are set. At the initial appearance hearing the judge may read the defendant his/her rights, the charges against them and set bail. In a felony case, a date is set for a preliminary hearing. In a misdemeanor case, the initial appearance is also the arraignment where the defendant enters an initial plea.
Preliminary Hearing (Seldom Used in New York Criminal Court)
In a felony case the first hearing is the preliminary hearing and it comes before the arraignment. At the preliminary hearing, the prosecutor is required to call witnesses to prove the existence of sufficient evidence to believe the defendant committed a crime. Sometimes, cross examination at this hearing may reveal the presence of improper police procedures, lack of probable cause or insufficiency of testimony, resulting in the dismissal of charges at this stage. Most courts in New York do not use the preliminary hearing and have instead replaced it with the indictment.
In a misdemeanor case, the arraignment comes first, then the preliminary hearing.
Arraignment is the next step after the arrest. An Arraignment follows the preliminary hearing in a felony case but precedes it in a misdemeanor case. This is the first time the accused appears in front of a judge, and he is formally informed of the charges against him. This is also when the defendant is asked to plead "guilty" or "not guilty." In New York City the arraignment begins by long tradition with the criminal defense attorney "waiving the reading" of the charges. Procedurally, every defendant is entitled to be formally read the accusations.
However, the New York City tradition is that a copy of the charges is provided to the criminal defense attorney at the arraignment and he is expected to waive the formal public reading. New York City tradition also dispenses with a formal plea of not guilty and a “not guilty” please is presumed. At this point, the prosecutor is required by law to provide the criminal defense attorney with certain "notices" that vary depending on the type of case and actual facts involved. These notices serve to notify the defense of certain evidence that the prosecution has in its possession. A typical notice would inform the defense that the prosecution has a statement from the defendant.
Defendants are typically arraigned within 24 hours from the time of arrest. Arraignment involves no witnesses. The only ones present are the accused, the prosecutor, the judge and the defense attorney.
The defendant should immediately contact a criminal defense attorney after he is arrested and before arraignment. A New York criminal defense lawyer can help speed up this process. A criminal defense attorney can also help determine if you are eligible for a desk appearance ticket (DAT) so that you may avoid spending time in jail. In cases involving a DWI/DUI having a criminal defense lawyer working for you gives you a better chance that the judge will release you on ROR or for a more reasonable bail.
The most important decision the judge will make at arraignment is whether to set bail or to release the defendant without bail. At this point it is customary that the prosecutor ask the judge to set bail, often at a high amount. The judge at the arraignment determines your bail. You may be released on your own recognizance, have bail set, or be remanded to jail without bail. Remand is possible if you're charged with a serious felony and possibly have another pending felony. It may help to have friends and family at the arraignment. Bail may be lower if your lawyer can show the judge you have strong community ties, as evidenced by the people who come to court for you. The judge will consider the defendant's criminal history, the seriousness of the charges, the defendant's ties to the community, and any bench warrant history (a defendant's failure to return to court in a prior case) in making this decision. Your attorney can often argue to reduce or possibly eliminate bail.
In a case involving harassment or physical violence, the court will usually issue an order of protection which restricts or prohibits contact between the defendant and the alleged victim. It is very important for defendants to obey the order of protection. Failure to obey the order of protection can lead to the filing of additional charges against the defendant, including a felony criminal contempt.
Criminal Court arraignments in New York City are held day and night, seven days a week, 365 days a year. The day arraignment shift lasts from 9:30 AM to 5:00 PM, and the night arraignment shift lasts from 5:00 PM to 1:00 AM. However, different counties in New York such as Manhattan, Queens, Brooklyn, Bronx, Rockland, Westchester, Richmond, Nassau, and Suffolk Counties, may differ. The actual arraignment itself frequently is brief, often finished in less than five minutes.
Entering A Plea At The Arraignment
The opportunity to enter a formal plea agreement is given to the defendant at arraignment. This is generally not advisable. The defendant has the options of pleading "guilty" or "not guilty." In certain circumstances, the defendant may also enter a "no contest" plea. The court treats a “no contest” plea in the same manner as a guilty plea. Occasionally, the court will enter a “not guilty” plea on the defendant’s behalf if he “stands mute”. Upon entering a “not guilty” plea, the defendant will ordinarily be advised by the court of his right to remain silent and his right to an attorney. An indigent defendant is entitled to petition the court for an appointed attorney. Entering a formal plea without consulting a criminal defense attorney is a mistake that a defendant cannot afford to make. A defendant should be thoroughly informed of the options available to him at this stage and of their particular consequences, before entering any kind of plea agreement. A criminal defense attorney can thoroughly explain the options the defendant has and advise the defendant of the course of action that will produce the best results in his particular circumstances.
After The Arraignment
A “pretrial” is the next step after the arraignment in a misdemeanor case. At “pretrial” the case is scheduled for trial and the defendant may also enter a plea. At this stage, the case is scheduled for a "bench trial," "jury trial," or "plea hearing." However, in a case in which the defendant is charged with a felony, but has not yet been indicted by the grand jury, the next step is a preliminary examination. In a preliminary examination the prosecution has to demonstrate to the satisfaction of the judge that there is reason to believe that a crime was committed, and that the defendant was the person who committed the crime. At this hearing the defendant is allowed to call witnesses. Generally the defendant can present evidence and may choose to testify. However, most defendants choose not to testify. If the evidence presented by the prosecution satisfies the Court, the felony charges are approved.
NY State law entitles defendants and their attorneys to obtain certain information and evidence relevant to their case. The prosecution is required to turn over such information and evidence prior to any motions are made. Defendants and their attorneys are entitled to such evidence and information as photographs or drawings, tapes which the prosecutions will be using at trial, evidence that another person is linked to the crime, statements made by the defendant at any point, police and district attorney forms and paperwork, and witness statements.
The defendant is entitled to waive his/her right to a jury trial and request a bench trial. Criminal Procedure Law (320.10) A bench trial is a non-jury trial presided by a judge who hears all the evidence and makes the determination on guilt or innocence. In a Violation case, the defendant is not entitled to a jury trial, he is only entitled to a Bench Trial.
What happens between Arraignment and Trial?
This is the time when the prosecutor and the defense attorney usually demand "discovery" from each other. Ordinarily, this involves the handing over to the defense by the prosecution, a copy of the police report and other reports relevant to the case. The prosecution has further obligations to the defense however. They must provide the defense attorney with the names and addresses of all witnesses connected to the case, as well as copies of written or recorded statements made by the defendant or any co-defendants involved in the case. Your defense attorney can obtain further discovery through certain statutes or court rules compelling the prosecution to provide further information such as copies of witness statements or reports from expert witnesses. The defendant may have to give notice to the prosecution if he plans on bringing certain defenses to the criminal charges. Such defenses include an alibi defense, an insanity or diminished capacity defense. The reason behind the notice requirement is give the prosecutor the opportunity to prepare for the particular defense, in terms of collecting evidence and interviewing witnesses. Ordinarily, a defendant claiming insanity is required to be examined by a state psychiatrist. Refusal to submit to a psychiatric examination prohibits a defendant from using this defense.
Pretrial “Motion Practice”
The defendant and the prosecutor are both entitled to file motions with the trial court prior to the trial. In fact, the defense attorney will frequently request the opportunity to file pretrial motions. Such motions include dismissal, suppression of statements or physical evidence, as well as any other matters that should be addressed by the court before trial.
A motion to suppress a statement asks the trial court to exclude from trial a statement or confession made by the defendant to the police. Statements taken improperly by the police may be suppressed such as the District Attorney’s Office cannot use them against the defendant in Court. A statement is taken improperly and may be suppressed if it was made while the defendant was in custody and interrogated without having been read his Miranda rights, or if he requested an attorney prior to making the statements.
A criminal defense attorney may also file a motion to prevent the District Attorney’s Office from introducing property taken from the defendant against him or her at trial. For instance, if certain items such as guns, drugs, cash etc., were taken from the defendant, a motion can be made to prevent them from being introduced at trial as physical evidence if the search and seizure of the items was improper. Search and seizure of items from a defendant is improper if it violated the defendant’s constitutional rights. For instance, if the defendant is arrested illegally, and is searched after his arrest, the evidence found during that search may be inadmissible at trial.
In case of a physical identification where someone has identified the defendant as the person who committed the crime, a motion may be filed to suppress the identification if the identification procedure used by the police was unduly suggestive. Ordinary identification procedures used by the police include a line up, show-up, and photo array.
Another motion the defendant may file is a motion in limine. This motion asks the court to limit the issues or evidence at trial. A motion in limine is used when the defendant wishes to ask the court to exclude certain inflammatory allegations about him, which are not related to the charges against him. The defendant may also use this motion to exclude parts of the defendant's criminal record which are not properly admitted under the rules of evidence.
The defendant can also file a motion to dismiss which asks the court to dismiss the charges against the defendant. A motion to dismiss is usually based on a procedural deficiency, involving situations in which the prosecutor may wish to introduce evidence which cannot properly be linked to the defendant or the alleged crime as a result of the manner in which it was collected, or the particular circumstances of the case. A motion to dismiss may be filed following an illegal arrest, where all of the evidence presented by the prosecution was found as the result of that arrest.
A diversion program is aimed at young offenders with no significant criminal records. A diversion program results in dismissal of charges, or no charges being filed, if the defendant successfully completes the conditions of the program. Typical conditions of the program include counseling, attendance of crime impact classes, and regular attendance at school. The charges against the defendant will be reinstated if he violates the terms of the diversion program. A diversion program may not be available in all communities.
Upon the completion of all pretrial hearings, the case is ready for trial. The counties of Manhattan, Bronx, Brooklyn, Queens, Rockland, Westchester, Richmond, Nassau and Suffolk all differ somewhat in procedure. New York City Criminal Court also handles felony cases beyond the arraignment stage.
Trial procedure begins with the selection of the jury. In a misdemeanor trial, the jury consists of a six person panel, and up to two alternates. In a felony trial the jury consists of 12 jurors. The trial itself begins with the opening statements from each party which lead to the prosecution's presentation of evidence and later to the defense attorney's presentation of evidence. Closing arguments, the jury charge, the jury's deliberations and the verdict follow.
A trial is a complex and challenging undertaking. You must have a seasoned criminal defense attorney working for you should you decide to take your case to trial. Mistakes at trial are likely to cost you your freedom therefore you cannot afford any. You must engage a criminal defense attorney who has the skill to challenge the prosecution on their knowledge of NY rules of procedure and evidence.
Assuming you are found guilty, criminal sentencing is one of the most important parts of the criminal process because it determines the actual penalty the defendant receives. In some situations the sentence is predetermined as part of a plea agreement, otherwise sentencing is generally entirely up to the judge. New York State Law requires a pre-sentence investigation (“PSI”), which is a report about the defendant, describing his background, the circumstances surrounding his case. The PSI report also recommends a particular sentence. At this stage of the process, a seasoned defense attorney will work to show the defendant in the best possible light so as to induce the judge to impose a lighter sentence. Your attorney will work to correct any mistakes made in the PSI and if necessary he will do his own investigation in order to reveal additional favorable facts and circumstances.