- 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 recognize (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.
- Missed Court Appearances
- Grand Jury Proceedings
- Pre Trial 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.
- Pre Trial Hearings
There are many different types of hearings which 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:
- Clayton hearing– to determine whether your case should be dismissed in the interests of justice; statutory standard whereby defense counsel must show compelling factors which clearly demonstrate that prosecution would result in injustice.
- Darden hearing– to determine the existence of an informant and whether the prosecution should be required to disclose the informant’s identity.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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).
- 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.
- Ventimigliahearing– 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.
- Wade hearing– To determine the admissibility or suggestiveness of a witness’s 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
- 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 your guilty beyond a reasonable doubt.
- Jury Selection (Voir Dire)
- 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 re-direct 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.
- 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.
- 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 which 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.
If you have been convicted of a crime, or pled guilty to a crime, you have the right to appeal after you have been sentenced by the Court. Appeals can be very complex and time consuming, and there are often very strict deadlines in place. It is important to speak with an experienced criminal appellate attorney as soon as possible to determine whether or not you wish to appeal your case. Our firm has a wide range of successful appellate experience and can help guide you through this complicated and often overwhelming process.