Arrest & Trial Process

    The Arrest

    • A police officer may arrest a person if he or she has “probable cause” to believe that a crime or violation has been committed. Following the arrest, the officer must file a misdemeanor or felony complaint in the criminal court alleging the conduct and crime for which the person has been arrested.
      • In certain cases a person will be arrested days or weeks after an alleged crime has been committed.
      • Often you will receive a call from a police officer asking you to come in to the precinct to answer some questions. Keep in mind the officers do not have to be truthful regarding the purpose of any such meetings.
      • It is strongly recommended that you do not go into the precinct without an attorney, whether you are innocent or guilty. Any statements that you make to the police can severely impact your case and many people have been arrested despite making what they believed was a helpful or exonerating statement. Always consult with an attorney before speaking with the police.

    Desk Appearance Ticket (DAT)

    • A desk appearance ticket (DAT) can be given to you under CPL §150.10 in lieu of a formal arrest. Typically a police officer will choose to give a defendant a DAT for minor offenses, such as possession of marijuana, petit larceny and quality of life crimes.
      • If the officer decides to issue you a DAT, you will still be required to go the precinct to supply pedigree information such as your name, date of birth and address but you will not be booked and held for an extended period of time as you would if formally arrested.
      • While at the precinct you will be assigned an arrest number and the NYPD will confirm that you do not have any outstanding warrants.
      • You will then be given a document to sign on your promise to appear in court on a certain date for your arraignment, which generally takes place several weeks after the date of your arrest.
      • If you do not hire an attorney, you will need to bring this document to court for your arraignment and hand it to the officer in the courtroom. Once you return to court, your case will be handled in the same manner as any other criminal case.

    Central Booking

    • If you are formally arrested, you will be brought from the precinct to central booking prior to appearing before a judge for arraignment. At central booking your fingerprints and photograph will be taken and sent to Albany, which will send back a copy of your rap sheet (even if you have no record).
      • This process can take several hours. During this time, the prosecutor will be speaking with the arresting officer to decide how you will be charged.
      • You will also be interviewed by a representative from the Criminal Justice Agency (CJA) who will draft a report for the judge to review. The purpose of this interview, and of the report, is to assist the judge in deciding whether to set bail and how much, or release you on your own recognizance (ROR), or hold you in jail without bail (remand). Make sure to let the CJA representative know if you have any family or friends that will be in court when you appear before the judge but do not discuss any specifics about the case as these statements can later be used against you during the pendency of your case. It is very important that you be open and honest during the interview.
      • On average, it takes approximately 12-36 hours from the time you are arrested until the time you are brought before a judge for arraignment.
      • If bail is set, it may be paid at any courthouse during normal business hours and at the jail where you are being held at any time.

    Arraignment

    Bail

    Missed Court Appearances

    • If you missed your court date it is important to resolve the matter as quickly as possible as a warrant was likely issued for your arrest. You will need to appear in person in the court where your appearance was required since only that court can vacate the warrant. It is more beneficial to voluntarily surrender to the court’s clerks office than to have the police bring you in to court, and the judge will look upon a voluntary surrender much more favorably.There are two types of arrest warrants:
      1. Bench warrant – This is a court order issued for a defendant’s arrest for failure to appear for a court proceeding other than an arraignment.
      2. Arrest warrant – This is a formal document which authorizes the police to arrest you. This is signed by a judge after the police or law enforcement agents present sufficient evidence following an investigation or an arrest.

      Upon going to the clerk’s office of the issuing court, you will need to provide your name, identification and either a docket or arrest number. The clerk will retrieve your file and send it to a part to be heard before a judge. We advise that you arrive at the courthouse by 10 a.m., and be prepared to spend several hours waiting for your case to be called and the issue resolved.

      If you have an outstanding warrant, we also highly recommend that you retain counsel to appear with you and arrange a surrender to the court. This will be considered a voluntary return and there is a greater likelihood that no bail or minimal bail will be set, and you will be released on your own recognizance (ROR).

      Call us now.

      If you’ve missed a court appearance, you will probably need an attorney.

    Grand Jury Proceedings

    Pretrial Motions

    • After your case has been arraigned in either criminal court or Supreme Court, your case is sent to a calendar part. During your first appearance in the calendar part, a motions schedule will be set to allow your attorney and the prosecutor time to submit motions in your case. There are typically referred to as omnibus motions and, in effect, begin the discovery process and specific requests for evidence will be made. In these motions, your attorney will also request relevant hearings to be held to resolve factual issues.

    Pretrial Hearings

    • There are many different types of hearings that can be held in a case and it will, in part, depend on the motion brought by your attorney before the judge. Most of the hearings will be held weeks, or even months, before the scheduled trial date although the judge can also order the hearings to be held immediately before trial. The following is a list of many, but not all, of the hearings that could take place in your case:
      1. Clayton hearing — To determine whether your case should be dismissed in the interests of justice; statutory standard whereby defense counsel must show compelling factors that clearly demonstrate that prosecution would result in injustice.
      2. Darden hearing — To determine the existence of an informant and whether the prosecution should be required to disclose the informant’s identity.
      3. Dunaway hearing — To determine whether your statement should be suppressed if obtained after an arrest without probable cause; the prosecutor must show probable cause or attenuation.
      4. Forman hearing — To determine whether an ex parte temporary order of protection should remain in effect; the party who wants the temporary order of protection must show a danger of injury and the defendant has the right to be heard.
      5. Franks/Alfinito hearing — To determine whether a search warrant should be suppressed as a result of a false statement by the affiant; the defendant must show, by a preponderance of the evidence, that the affiant made deliberate or reckless admissions or misstatements and that those statements or omissions were necessary to a finding of probable cause by a judge.
      6. Frye hearing — To determine whether a scientific expert or procedure should be admitted at trial; standard is whether, by a preponderance of the evidence, that expert or test has obtained sufficient acceptance and reliability in the scientific community.
      7. Huntley hearing — To determine whether a statement of the defendant was made voluntarily to the police and should therefore be admissible at trial; prosecutor must have given notice of their intention to use the statement at trial and then prove the voluntariness of the statement beyond a reasonable doubt.
      8. Mapp hearing — To determine whether physical evidence should be suppressed due to an illegal search or seizure; the prosecution has the burden of going forward to show legality of the police conduct while the defendant has the burden of proof (if the issue is whether or not consent to search was given, the prosecution must prove, by clear and convincing evidence, that the consent was voluntarily given).
      9. Sandoval hearing — This hearing seeks to bar the prosecutor from bringing up the defendants prior bad acts or convictions as a way to impeach the defendant; the defendant must provide the court with prior crime or misconduct and has the burden of showing that the prejudicial value of such evidence outweighs the probative value. This hearing may be held immediately before trial begins.
      10. Ventimiglia hearing — To determine the admissibility of prior uncharged criminal, vicious or immoral acts; the prosecutor must obtain a ruling if it plans to use such evidence and must show that it admissibility of the evidence would be directly probative of the crimes charged.
      11. Wade hearing — To determine the admissibility or suggestiveness of a witness’ identification of the defendant (i.e., lineup, showup, photo array, etc.); the defendant must show that the identification procedure was unduly suggestive. If the court finds that the identification was unduly suggestive, and no independent basis for the identification is proven by the prosecutor by clear and convincing evidence, the identification may be suppressed and the prosecutor could be barred from asking the witness to identify the defendant during trial.

    Speedy Trial Requirements

    • The prosecutor must bring your case to trial within a certain time after your arrest or indictment. In Class A misdemeanor cases the prosecutor has 90 days from the filing of the misdemeanor complaint in criminal court in which to answer “ready” for trial. In felony cases, excluding homicide charges, the prosecutor generally must answer “ready” within six months of the filing of the felony complaint in criminal court. Keep in mind that the speedy trial requirement does not require that the trial actually begins within that time period, only that the prosecutor be prepared to go to trial. Additionally, there are certain time periods that are not attributable to the prosecution and therefore are excluded from the speedy trial time calculation. If the prosecutor fails to answer “ready” within the required time limit, the judge, upon your attorney’s motion, must dismiss your case. The relevant statute is Criminal Procedure Law §30.30. The speedy trial provisions and calculations can be fairly complex and for an accurate calculation it is important to consult with an attorney.Contact us

      This would be a good time to call an attorney.

      What time periods are excludable from speedy trial calculations?

      Not all time from the commencement of an action will count toward the calculation of the speedy trial requirement. Some of the periods excluded from speedy trial include, but are not limited to, the following:

      1. Other proceedings concerning the defendant, including delays attributable to pretrial motions.
      2. Adjournments at the request or with the consent of the defense.
      3. When the defendant is absent or unavailable (meaning that a defendant’s location is unknown and he or she is attempting to avoid apprehension or prosecution or his location cannot be determined by due diligence). If the defendant fails to appear for his or her court date, the people will not be charged with time from the issuance of the bench warrant until the day the defendant appears in court.
      4. Where the defendant is unavailable and the prosecutor has been diligent in trying to secure the defendant’s presence in court (meaning that the defendant is being held in another jurisdiction but cannot be brought to court).
      5. A delay caused by joinder of a defendant’s case with that of a co-defendant.
      6. Time during which the defendant is without counsel.
      7. Delays caused by exceptional circumstances such as the illness of a victim or prosecution witness.
      8. Delays as a result of court congestion.

    Trial Proceedings

    • Once all pretrial motions and hearings have been concluded, your case will go to a jury part trial where a judge or jury will decide whether or not the prosecutor has proven you guilty beyond a reasonable doubt.

    Jury Selection (Voir Dire)

    • A jury trial begins with jury selection, called voir dire, where your attorney and the prosecutor will select 12 jurors and at least two alternates from members of the community to hear your case. If you are being charged with a Class A misdemeanor, six jurors and two or more alternates will be chosen, and if you are charged with a Class B misdemeanor or violation your case will instead be tried before a judge. The court clerk will randomly select a number of jurors to sit in the jury box. Each juror will be questioned by the judge, the prosecutor and your attorney to determine whether he or she can be fair and impartial in deciding your guilt or innocence. If a juror indicates a clear bias towards the defense or the prosecution, or for any other reason clearly cannot be fair and impartial, that juror will be struck “for cause” and will not be permitted to sit as a juror at your trial. Both the prosecutor and the defense attorney can use an unlimited number of “for cause” challenges to jurors. Additionally, both sides are given a limited number of peremptory challenges that allow them to strike any juror for almost any reason. Once the process has been completed and the required number of jurors has been selected, the jurors will be sworn and seated in the jury box.The following chart reflects the right to a jury based on the type of case and how many peremptory challenges are permissible. The type of case is determined by the top count of the indictment or criminal complaint.

      Jurors may not be excluded on the basis of race, religion, gender, ethnicity or sexual orientation. If one side alleges that the opposing counsel has improperly exercised a peremptory challenge it is referred to as a Batson challenge and must be raised before the end of jury selection (this is in reference to the case of Batson v. Kentucky, 476 U.S. 79 (1986). The Court will then utilize a three-step process to determine whether the challenge was properly used: first, the party opposing the challenge must establish a prima facie case of discrimination in the exercise of the challenges; second, the user of the challenge must offer a facially neutral explanation for each suspect challenge; and finally, the party opposing the challenge must prove purposeful discrimination and the judge will determine whether the professed reasons are pretextual or whether there was intent to discriminate. If purposeful discrimination is found, the judge may seat the juror, may discharge the jurors who were selected on the day the discrimination occurred or grant the violating party additional peremptory challenges.

    Order Of Trial

    • The prosecutor will make opening statements to the jury and then your attorney will be given the option to give an opening statement. Opening statements are limited to telling the jury what will be proven during the course of the trial. After opening statements, the prosecutor will call his or her witnesses and questioning of the witness is called direct examination. Once the prosecutor has completed his or her direct examination of the witness, your attorney will have the opportunity to ask questions of the prosecutor’s witness, called cross-examination. The prosecutor is then allowed to redirect the witness, limiting his or her questions to issues raised during cross-examination. This process will continue until the prosecution has completed calling all of his or her witnesses and rests his or her case.At the conclusion of the prosecutor’s case, your attorney may ask the judge to dismiss the charges on the grounds that the prosecutor failed to present sufficient evidence to establish the crimes charged. All inferences and evidence is viewed “in the light most favorable to the people,” and it is very difficult to have a judge dismiss the case at this stage. Next, your attorney can present witnesses on your behalf or can rest and not put forth any evidence. The prosecutor is then given the opportunity to call rebuttal witnesses. Once the prosecutor rests his or her rebuttal case, the case proceeds to closing arguments and jury instructions. Finally, the case gets submitted to the jury who will go to a closed room to deliberate and render a verdict.

    Verdicts

    • When a verdict has been rendered, the jury must be asked collectively to confirm their verdict. The prosecutor and defense attorney have the option of requesting that the jury be “polled” and individually asked whether the verdict that was announced was his/her verdict. A guilty verdict must be unanimous. If the jurors, after deliberations, report or the judge that they cannot agree on a verdict, called a “hung jury,” the judge will declare a mistrial and the prosecutor will be given the option to try you again for the crimes alleged. If you are found not guilty of any of the charges you can never be tried again in state court for those specific charges. If you are in jail upon a not guilty verdict, you will be immediately released. If you are found guilty, the judge can either remand you to jail immediately or can release you until your sentencing date.

    Post-Trial Motions

    • After the verdict, but prior to sentencing, your attorney may make a motion to set aside the verdict. If the motion is granted, the judge can dismiss the charges, reduce the charges or grant you a new trial. This motion is brought under Criminal Procedure Law (CPL) §330.30. A motion to set aside the verdict alleges that errors occurred during the trial itself and such errors must have been made on the record. Your attorney must prove that you are entitled to relief by a preponderance of the evidence. A motion to set aside the verdict is very rarely granted and the prosecutor can appeal an order granting the motion. Some of the grounds upon which a verdict can be set aside include ineffective assistance of counsel, prosecutorial misconduct, improper jury instructions, juror misconduct and newly discovered evidence.

    Sentencing

    • If you plead guilty to a criminal offense, or you are found guilty after trial, your case will then be adjourned for you to be sentenced by the judge. Prior to your sentencing date, the Department of Probation will prepare a pre-sentence report that will include information about you, your background, the nature and circumstances of the crime, and often the Department of Probation’s recommended sentence. Prior to sentencing the judge will review this report, along with any pre-sentencing memorandum submitted by your attorney or the prosecutor, to aid in determining what the judge believes is an appropriate sentence. Types of sentencing can include state or city jail time, probation, conditional discharge, unconditional discharge, adjournment in contemplation of dismissal, restitution and fines (it may also be a combination of these sentences). If you are convicted of or plead guilty to a sex offense you will likely have to register with a local law enforcement agency under the terms of the Sex Offender Registration Act (SORA). Indeterminate sentences

      Indeterminate sentences are imposed for some nonviolent felonies and they have a minimum and a maximum term. A defendant can get up to 1/3 of the maximum term of an indeterminate sentence reduced as good time. For example, if you are sentenced to one to three years, you will likely get a parole hearing for possible release at one year. You could also get one year of good time (1/3 of the maximum term) that would result in conditional release at two years. You would remain on parole for the maximum of the sentence. Your maximum release date would be three years.

      Determinate sentences

      Determinate sentences are imposed for violent felony offenses and drug offenses. Determinate sentences are for a flat length of time. Determinate sentences can be reduced by up to 1/7 of the term for good time, and the sentences are followed by a period of post-release supervision that is very similar to parole (post-release supervision must be imposed by the sentencing judge). For example, if you are sentenced to seven years then you could receive up to one year in good time credit (1/7 of the seven years) making you eligible for conditional release at six years.

      Sentencing chart

      The following charge reflects the range of sentencing for a nonpredicate (no priors) offense (please keep in mind that this chart is subject to change and does not apply to the sentencing of drug crimes):

      No-prior felony convictions

      Class Minimum Maximum
      A-1 Nonviolent Felony 15-25 years Life
      A-2 Nonviolent Felony 3-8 1/3 years Life
      B Nonviolent Felony 1-3 years 8 1/3-25 years
      B Violent Felony 5 years 25 years
      C Nonviolent Felony Probation 5-15 years
      C Violent Felony 3 1/2 years 15 years
      D Nonviolent Felony Probation 2 1/3-7 years
      D Violent Felony 2 years 7 years
      E Nonviolent Felony Probation 1 1/3-4 years
      E Violent Felony 1 1/2 years 4 years
      A misdemeanor Probation 1 year
      B misdemeanor Probation 90 days

      If a defendant has a prior, nonviolent felony conviction, he will be sentenced as a “second felony offender” or a “predicate offender.” For a nonviolent second felony, the sentences are indeterminate. If the second offense is violent, the sentence will be determinate.

      If a defendant has prior violent felony conviction, he will be sentenced as a “second felony offender.” If the second offense is nonviolent, the sentence will be determinate. If the second crime is violent, he will be sentenced as a “second violent felony offender” and the sentence will be determinate.

      If a defendant has two prior felony convictions, he can, at the court’s discretion, be considered as “persistent felony offender” or a “persistent violent felony offender” which involves even greater sentencing enhancements.

      Predicate Sentencing
      Second Felony Violent Felony, Prior Nonviolent Prior Violent
      Class Minimum Maximum Range Range
      A2 Felony 6-12 years Life N/A N/A
      B Felony 4 1/2-12 years 9-25 years 8-25 years 10-25 years
      C Felony 3-7 1/2 years 6-15 years 5-15 years 7-15 years
      D Felony 2-3 1/2 years 4-7 years 3-7 years 5-7 years
      E Felony 1 1/2-2 years 3-4 years 2-4 years 3-4 years
      Persistent Sentencing
      Felony Violent Felony
      Class Minimum Maximum Minimum Maximum
      B Felony 15-25 years Life 20-25 years Life
      C Felony 15-25 years Life 16-25 years Life
      D Felony 15-25 years Life 12-25 years Life
      E Felony 15-25 years 3 years-Life 4 years-Life Life

    Youthful And Juvenile Offenders

    • A defendant under the age of 18 who is accused of a crime can be placed in one of three categories: juvenile delinquent, juvenile offender or youthful offender. The factors that determine the designation include the defendant’s age, the type of offense charged and in certain cases, the discretion of the judge or prosecutor. How the defendant is classified will determine where the case is heard, how the case will proceed and the type of punishment that can be imposed.
      Category Age
      Juvenile Delinquent 7-15 Family Court
      Juvenile Offender 13-15 Applies only to designated felony acts otherwise classified as a juvenile delinquent, can be in Family or Criminal Court.
      Youthful Offender 16-18 First offense, if misdemeanor, YO is mandatory; if additional offense or a felony charge, YO status is discretionary
      Person in Need of Supervision (PINS) Up to age 18 Family Court

    Immigration Consequences Of Criminal Conviction

    • If you plead guilty to a criminal offense or violation and you are not a United States citizen, there are very likely, and very real, potential immigration consequences. We work closely with a handful of select and experienced immigration attorneys to insure that your case is handled in the best way to minimize any potential exposure.

Criminal Defense

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Douglas Schneider
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