New York Criminal Defense
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HOW A CRIMINAL CASE BEGINS
A criminal case begins upon an arrest by a Police Officer. A Police Officer can arrest you if he or she has reason to believe that you have committed a violation, a misdemeanor or a felony. Those are the three different types of offenses under New York State law, and each carries a different range of possible sentences. Each category of offenses is further divided into classes.
Types of Criminal Offenses in New York
- A violation is not considered a criminal matter. Violations are punishable by up to 15 days in jail and/or a fine.
- Misdemeanors are crimes punishable by a maximum of one year in jail and/or a fine. The classes of misdemeanor offenses are A and B misdemeanors. There are also unclassified misdemeanors.
- Felonies are crimes punishable by a state prison sentence in excess of one year and a fine. For the crime of murder in the first degree, a death sentence can be imposed. Felonies are classified as A1, A2, B, C, D, or E felonies.
NON-DAT CASES PROCESSED THROUGH CENTRAL BOOKING
If the arresting Police Officer did not give you a DAT, then you will be held in custody until your arraignment. At your arraignment you will be informed of your rights and of the charges that have been filed. This will all be read on the record and the Judge will enter your plea.
Generally the arraignment will occur within twenty-four hours after you are arrested. Before you see the Judge you will be brought to Central Booking in the borough where the arrest took place. Here your photograph and fingerprints will be taken and a rap sheet will be prepared, which will show your criminal history.
There is only one central booking in each county and it is operated by the NYPD. After the precinct where you were arrested, this is the next location where you will be taken in anticipation of being arraigned.
While this is happening, The Early Case Assessment Bureau (ECAB) at the District Attorney’s office is screening the arrest. The ECAB Prosecutor will consult with the police officer who arrested you.
- If the Prosecutor decides that there is enough evidence, he or she will prepare the charge(s) to be brought against you at the arraignment.
- If the Prosecutor decides that there is not enough evidence to prove that you committed the crime, the District Attorney’s office will decline prosecution (commonly known as “DP’d”.) If that occurs you will be released from jail and your case will be over.
CRIMINAL COURT ARRAIGNMENT
After the ECAB has reviewed your case and decided to prosecute, and you have been interviewed by the CJA, you will be brought to court for arraignment. It is here that you will find out what the arraignment charges are. These are the charges that are being brought against you by the State of New York.
At the arraignment, you the defendant must either accept the plea and plead guilty, or reject the plea and plead not guilty.
If the charges are of a low level, it may be possible to have your case disposed of at arraignment. Generally this happens only if this is your first offense and you have no prior record. This decision must be evaluated very thoughtfully, as any criminal conviction can have a huge impact on your life.
Right to Counsel
You have the right to a lawyer (counsel) at the arraignment. You may either hire your own lawyer (“private counsel”) or, if you do not have enough money to hire your own lawyer, the court will appoint a lawyer or “public defender” for you. A public defender is paid by the state to represent you in the case.
If you do not retain private counsel, you will be assigned a lawyer from one of the following agencies to represent you at arraignment:
- The Legal Aid Society
- The Assigned Counsel Plan for the City of New York (18-B lawyer)
- Bronx Defenders
- Brooklyn Defendants
- New York County Defender Services
- Queens Law Associates
- Battiste, Aronowsky & Suchow Inc. (In Richmond County only)
Determining Bail
Once a plea of not guilty is entered, the Court will consider whether bail is appropriate according to the factors set out in CPL section 510.30. These factors will concern your:
- Character, reputation, habits and mental condition
- Employment and financial resources
- Family ties and the length of your residence in the community
- Criminal record
- Record or adjudication as a juvenile offender or youthful offender
- Record of responding to court appearances.
- The weight of the evidence against you in the pending criminal action and the likelihood of conviction, and
- The sentence that may be imposed upon conviction.
We advise all clients to arrive at Criminal Court by 9:00 AM. Although the Courtrooms do not officially open until 9:30 a.m., it is better to be there early in order to avoid the long security lines. You should wait for your Attorney in the Courtroom. If you do not appear and do not notify the court or your lawyer beforehand, the sitting Judge will order a bench warrant for your arrest. This means that the police will be notified to find you, arrest you, and bring you to court. If you have posted bail, your bail may be forfeited (not returned to you). If the police arrest you and bring you to court, the Judge may change your bail conditions by requiring that you pay more bail or by remanding you to custody. Once a bench warrant is ordered, it remains on your fingerprint report (rap sheet). Not only can this affect your bail status on this case but it will also affect you in any future cases. At arraignment, the Assistant District Attorney might also request a temporary order of protection against you, protecting a witness or a victim. If you do not obey the order, you could be arrested and new charges could be brought against you for disobeying the order. The Judge may also order stricter bail conditions for disobeying the temporary order of protection.
For more information, visit our New York Central Booking and Arraignment and bail web pages.
Posting Bail
If bail is set at arraignment it may be paid (posted) at any criminal courthouse during business hours or at the jail where you are being held at any time. If you are able to post bail when you appear before the court, you may be released from the courtroom. A friend or family member should notify the court clerk of your intention to pay bail. The clerk will direct him or her to the cashier's office in that county. One reason that it is best to have an Attorney representing you at arraignment is that the Attorney can plan ahead with your family so that if bail is set, it is paid immediately and you are released as soon as possible.
If you cannot post bail at the Courthouse, then it is best to have someone pay at the correctional facility where you are being held. However, bail may be paid at any of the following correctional facilities.
For further information on inmates, bail, visiting hours, and travel directions call (718) 546-0700 or visit the following locations:
- Bronx House of Detention
- Brooklyn House of Detention
- Manhattan House of Detention (The Tombs)
- Queens House of Detention
- Riker's Island
Notices At Arraignment
At arraignment the People (the Prosecuting Attorney, representing the State of New York) may serve Notices on your Attorney. These Notices essentially inform your Attorney about certain evidence that the Prosecution has obtained as well as demanding certain information from your Attorney. Here are the typical notices:
Statement Notice – This is the People’s notice that they intend to use a statement you (the defendant) made to a public servant.
Identification Notice – This is the People’s notice that they intend to offer testimony that you were seen either at the time and place of the commission of the offense or at some other occasion relevant to the case.
Alibi Notice - If you will be presenting an alibi to show that you could not have committed the offense because you were somewhere else at the time, your Attorney must notify the Prosecution of the alibi within 8 days of being asked to do so by the Prosecution.
PLEA BARGAINING
As your case proceeds though Criminal Court, it is often possible to dispose of your case through plea bargaining. This can happen at any time up until Verdict. In Criminal Court, a plea bargain is generally referred to as a disposition. Generally it is not wise to plea bargain until both the Prosecutor and your Defense Attorney are thoroughly familiar with the case.
The Defense needs to know what evidence the prosecution has. Is that evidence weak or strong? What witnesses do they have? What are those witnesses’ backgrounds? Is there an alibi?
A plea bargain does not always take the same form. In certain instances, the Prosecutor may ask that you plead guilty in return for his or her promise to recommend that the Judge impose a lighter sentence. A better plea deal occurs when you are allowed to plead guilty to a less serious offense than the one you were originally charged with. This will reduce the range of sentences that a Judge may impose.
The Judge is the only person who can decide what your sentence will be, subject to any limitations in the law. All plea bargains must be approved by the Judge. As the defendant, you always have the option to plead guilty to all of the charges brought against you and have the Judge decide your sentence.
AFTER YOU ARE ARRAIGNED IN CRIMINAL COURT
Misdemeanor Charges:
If you are charged with a misdemeanor and cannot post bail, you will remain in jail for approximately five days. If at that time the Prosecutor has failed to provide the court with certain legal documents in support of the misdemeanor complaint that was filed by the police officer who arrested you, a Judge will release you on your own recognizance. This is commonly known as being R.O.R.'D (“Released on Own Recognizance”). This does not mean that your case is dismissed. You must still return to court on the date set by the Judge.
Felony Charges:
If you have been arraigned on a felony charge, your case will go before the Grand Jury to determine whether there is enough evidence against you to warrant a trial. If you are charged with a felony and have remained in jail because you were remanded or are unable to post bail, the Prosecutor must present evidence in your case to the Grand Jury no later than 144 hours (six days) after your arrest. If the Prosecutor does not present the evidence to the Grand Jury within this time, you will be ROR’D unless the Prosecutor can show a Judge why the case could not be presented sooner to the Grand Jury. If you are released from jail, this does not mean that your case has been dismissed. You must still return to court on any date set by the Judge.
THE GRAND JURY
How the Grand Jury Works
Grand jury proceedings are secret and so are not open to the public. The Grand Jury is made up of no fewer than sixteen and no more than twenty-three people, who listen to the evidence and decide whether there is enough evidence to put you on trial (“indict” you) for a felony. Every action by the Grand Jury requires the agreement of at least twelve of its members.
The Grand Jury can vote an indictment only when the evidence establishes a legally sufficient case. The test is whether the evidence before the Grand Jury—if unexplained and un-contradicted—would warrant conviction by a trial jury. If the grand jurors decide that there is enough evidence, they vote an indictment.
Your Defense Attorney may be present and advise you, but he or she will not be allowed to address the jurors. Your Attorney may not address the Grand Jury or object to the Prosecutor's questions. If you want to speak with your Attorney before testifying, you may do so outside the Grand Jury room. Any conversation you have with your Attorney inside the Grand Jury room must be whispered and must not be heard by the grand jurors. Any questions the grand jurors may have for you will be asked by the Prosecutor. You may also ask that the Grand Jury hear witnesses willing to testify for you, although you are not allowed to be present in the Grand Jury room while they testify.
The accused has the right to testify before the Grand Jury. If you decide to testify, your Attorney must give written notice to the Prosecution of your intention. The decision to testify at the Grand Jury is one that should not be made without great thought. If you testify before the Grand Jury, the Prosecutor can and will cross-examine you relentlessly, and you may be forced to reveal your entire version of the alleged offense. If you decide to testify, the defense will want the grand jurors to learn as much as they can about your background, so that they will see you as a person and not just as a defendant. They will want the grand jurors to learn about your family, community history, work history, education, and so on. You will need to relate as much of this information to the grand jurors as possible.
Outcome of the Grand Jury Deliberations
If the Grand Jury finds that there is not enough evidence that you committed a crime, you will be released from jail.
If the Grand Jury finds that there is enough evidence that you committed a crime, it will file an indictment and your case will go forward. Your case will be transferred from the New York Criminal Court to Supreme Court for another arraignment within a few weeks. This arraignment will be similar to the arraignment in Criminal Court. You will be formally charged with the crime or crimes voted by the Grand Jury and contained in the indictment, and you will plead either guilty or not guilty. The conditions of your bail may also be reviewed and plea bargaining may take place. Your case will then be transferred to a specific Supreme Court location.
If you give up your right to have your case presented to the Grand Jury, the Prosecutor will file a Superior Court Information (S.C.I.) and your case will be sent to Supreme Court without being heard by the Grand Jury.
PRE-TRIAL MOTIONS
Pre-Trial motions will occur after your arraignment in Criminal Court (on misdemeanor charges) or after your arraignment in Supreme Court (on felony charges). This is where your Defense Attorney will have the chance to obtain additional information about the Prosecution’s case against you. This process is commonly called “discovery.”
All pretrial motions are made in the form of one “omnibus” (all-inclusive) motion, which must be filed within 45 days from the date of arraignment. The omnibus should include every form of pretrial relief that can be requested at that time. Depending on the facts and circumstances of the case the omnibus may be quite short or very long. Additionally, in certain circumstances defense counsel might waive defense motions. Usually, an omnibus includes a motion to compel discovery, a motion to compel a bill of particulars, a motion for a separate trial, a motion for severance of offenses and a motion to suppress statements, identification testimony and physical evidence.
If you have been indicted, in your omnibus your lawyer will ask the Judge if there was enough evidence presented by the Prosecutor to the Grand Jury to allow for the filing of the indictment for the offense charged or any lesser-included offenses.
HEARINGS
If you made a statement to a Police Officer or if a Police Officer took property from you, or if they had a witness identify you, your Defense Attorney might file a motion asking that such evidence be suppressed. The Judge may order that a suppression hearing be held. You have a right to be present at the hearing. This is not the trial on your guilt or innocence. This is a hearing on a specific issue.
Mapp Hearing - The Judge hears evidence on the issue of whether the police legally seized property from you.
Huntley hearing - The Judge hears evidence on the issue of whether police officers acted legally when and if you made a statement to them and whether the statement was voluntarily made. The Prosecution has the burden of proving beyond a reasonable doubt that the statement was voluntary. A statement will be suppressed if it was taken in violation of your constitutional rights.
Wade hearing - The Judge hears evidence on the issue of whether police officers used fair methods when they had witnesses identify you as having committed the crime.
Dunaway hearing - The Judge hears evidence on the issue of whether police officers acted legally in arresting you. During the suppression hearing, testimony is taken from police officers and witnesses. Your lawyer will have a chance to cross-examine the prosecution witnesses, and you will also be given a chance to testify and call witnesses. If the Prosecutor does not prove that the officers acted legally, or if you, through the evidence you present, prove that the police acted illegally, the Judge will suppress the evidence.
If the Judge suppresses evidence as a result of any of these hearings, the Prosecutor will not be able to introduce the evidence against you at your trial. If the Prosecutor has no other evidence against you and does not intend to appeal the Judge's decision, he or she will most likely file a motion asking the Judge to dismiss your case.
SPEEDY TRIAL
The ADA must also bring your case to trial within a certain period of time determined by law. Under the statutory right to a speedy trial, the Prosecution must convey their readiness to start the trial within certain time limits set forth in CPL 30.30(1). However, any delays that have been caused by the Defense are excluded from the calculation.
If you’re charged with a Violation, the trial must be scheduled within thirty (30) days from the day when you were charged with the violation.
If you’re charged with a Misdemeanor, the Prosecutor must be ready to try your case within ninety days of the filing of the misdemeanor complaint in Criminal Court.
If you’re charged with a Felony, the Prosecutor must be ready to try your case within six months of the filing of the felony complaint in Criminal Court, except in cases of homicide.
When the Prosecution is ready to go to trial they must inform the Court and your Attorney in the form of a written notice called a Certificate of Readiness (“COR”) or in a statement of readiness presented in open court.
If the Prosecution is not ready to go to trial within the specified time limit, your Defense Attorney may file a motion in writing to dismiss on speedy trial grounds. It is then up to the Prosecution to show that any part of the delay was the responsibility of the Defense and should be excluded from the calculation.
If the Judge agrees that the Prosecution has violated the Speedy Trial time limit, the Judge may respond to the motion by dismissing the case or by releasing you from jail without dismissing the charges.
ADDITIONAL DISCOVERY
Rosario Material – At trial, the ADA is obliged to turn over to the Defense recorded statements of the Prosecution’s witnesses. The ADA must turn over all prior recorded statements that are in the possession of either the District Attorney’s office or a law enforcement agency or other entity that is under the “control” of the District Attorney. This material can consist of police complaint forms, police officer memo books, previously recorded statements of the Prosecution’s witnesses, notes made by the trial assistant and police forms prepared while interviewing the Prosecution witnesses.
Brady Material – New York case law holds that the Prosecution must turn over to the accused all exculpatory evidence—that is, any evidence that may disprove the Prosecution’s case as well as evidence that might impeach (undermine the credibility of) the Prosecution’s witnesses.
THE TRIAL
After all of the pre-trial hearings are complete, the case will be assigned to a location for trial. It is there that either the Judge or a Jury will decide whether or not the Prosecution has proven your guilt beyond a reasonable doubt. Except when charged with Murder in the First Degree, the defendant can waive a jury and be tried before the Judge.
In a jury trial, if you are charged with a felony, twelve jurors and two or more alternate jurors are chosen. If you are charged with a class A misdemeanor, six jurors and two or more alternate jurors are chosen. Class B misdemeanors and violations are tried before a Judge. The jury is chosen from members of the county in which you are tried who have been summoned to jury duty during the week your trial begins.
Each prospective juror is questioned by the Judge, Prosecutor, and your Defense Attorney to determine whether he or she can be a fair and impartial juror in your case. If any juror expresses bias or a belief that he or she cannot be fair, that person will be challenged for cause and will not sit as a juror in your trial. Additionally, your Attorney and the Prosecutor can each object to a prospective juror without disclosing the reason. This is called a peremptory challenge. The number of preemptory challenges allowed depends on the highest offense charged.
Once the required number of jurors has been approved by both sides, the jurors are sworn in and seated in the jury box. The Judge then explains the trial procedure, the basic principles of law, and the jurors' duties.
The Prosecution (“the People”) must make an opening statement, while the Defense has the choice of making an opening statement or not. The People’s opening statement must state their intent to prove every element of the crime charged. The People will then present their case against you, the accused.
The People’s questioning of witnesses testifying against you is called direct examination. Your lawyer will then question those witnesses (cross-examination). As the defendant, you have the option of testifying but you are not required to do so. Your Defense Attorney can advise you on the best course of action.
Both the People and the Defense Attorney acting on your behalf have the right to make a closing argument, although either party may opt not to do so. Following the closing arguments, the Judge will explain the law to the jury as it applies to your case (This is called the “jury charge” or jury instructions). The jury will then go to a closed room to deliberate.
The decision of the jury is called a verdict. The verdict of the jury must be unanimous; that is, all of the jurors must agree on the verdict. Sometimes, after much deliberation, the jurors report that they cannot agree on a verdict. This is called a hung jury. If that happens, the Judge declares a mistrial and the Prosecutor will then decide whether or not to seek another trial of your case.
If the jury decides that the evidence presented does not prove beyond a reasonable doubt that you are guilty, the verdict will be “not guilty.” If you are found not guilty of any of the crimes charged, you have been acquitted of those charges and can never be tried again in State court for those same charges. If you are in jail and are acquitted of all the charges, you will be immediately released from jail.
If the jury decides that the evidence presented does prove beyond a reasonable doubt that you are guilty, the verdict will be “guilty.” If you are charged with more than one crime, the jury may find you guilty of all of them, not guilty of all of them, or guilty of some and not guilty of the rest.
If you are found guilty, you have been convicted and must be sentenced. Your case will be adjourned for sentencing.
POST-TRIAL MOTIONS
Prior to sentencing, your Defense Attorney may move to set aside the verdict on the grounds that it requires reversal as a matter of law.
SENTENCING
Whether you are convicted at trial or after pleading guilty, you will be sentenced by the Judge. At the time of pronouncing sentence, the court must accord the defendant, the Prosecutor and, in some cases, the victim of the crime an opportunity to be heard.
Before sentencing, the Department of Probation will prepare a pre-sentence report for the Judge. This report will contain information about your background and the circumstances of the crime. Defendants should be aware of the seriousness of dealing with the Department of Probation. It is imperative that the defendant be candid and honest with the Probation Officer. Additionally defendants should be aware that initial impressions do matter.
The sentence you receive will depend on a variety of factors, including your background, the circumstances of the crime, and the attitude of the victim. The types of sentences include jail or prison terms, probation, conditional discharge, unconditional discharge, restitution and fines. Upon conviction of murder in the first degree and a determination by a jury that death is the appropriate sentence, a sentence of death may be imposed. If convicted of certain sex offenses, you may have to register with a local law enforcement agency.
If you are sentenced to probation, you will be released from jail and supervised by the Department of Probation for a period of years. You will have to obey specific conditions. If you are sentenced to a conditional discharge, you will be released from jail and you will not be supervised by the Probation Department. You will, however, have to obey specific conditions for a particular period of time.
Under certain circumstances, you may be given a split sentence, which is a combination of a jail term followed by a period of probation. Periods of probation or conditional discharge are conditional sentences. If you violate one or more of the conditions imposed, you may be re-sentenced to a jail or prison term.
If you are sentenced to an unconditional discharge, you will be released without any conditions. Fines and orders to pay restitution can be imposed either alone or with another sentence. In addition, you will be required to pay a surcharge and a crime victim's assistance fee.
If you have been convicted previously, you may receive a longer sentence. You have the right to challenge the Prosecutor's attempt to increase your sentence due to your prior conviction if you can show that the prior conviction did not exist or was not legal.
Depending on the circumstances of your case, if you are convicted of more than one offense, or if you are already serving another sentence, you may receive concurrent sentences, which means that the sentences will run at the same time, or consecutive sentences, which means they will run one after the other. If you have been convicted of several charges, you can be sentenced to a combination of concurrent and consecutive sentences.
Juvenile Offenders and Youthful Offenders
- If you were thirteen, fourteen, or fifteen years old when you committed the felony offense, you will be sentenced as a juvenile offender (J.O.).
- Once you reach your sixteenth birthday, you are a youth, not a juvenile. If you were thirteen, fourteen, fifteen, sixteen, seventeen, or eighteen years old at the time of the felony offense, you may be entitled to be treated as a youthful offender (Y.O.). If you are treated as a youthful offender, your offense will not appear on your record and you may receive a lower sentence.
- Once you reach your nineteenth birthday, you are considered an adult.