WHAT YOU SHOULD KNOW IF YOU'RE ACCUSED OF A CRIME

Copyright c 1986, 1988 - by Joyce B. David, Esq.
All rights reserved. No part of this publication may bereproduced, translated or transmitted in any form or by any means,electronic or mechanical, including photocopy, recording, or anyinformation storage and retrieval system, without permission inwriting from the author, except by a reviewer, who may quote briefpassages in a review.
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1988/89 Revised Edition ISBN 0-9617121-1-2
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F O R E W O R D
Anyone confronting the bewildering and, to many, the intimi-dating and nerve shattering complexities of the New York Statecriminal justice system for the first time in his or her life, willfind Joyce David's handbook outlining the ABC's of the system aninvaluable tool in dealing with them.
A highly-respected attorney with a wealth of first-handexperience in all aspects of criminal law, Ms. David's thorough,step-by-step description of what a criminal case is all about,written in language readily understood by the average layman,unschooled in legal procedures and terminology, will do much toease the pain of that first encounter with the law.
Ms. David, expertly and concisely, spells out just what he orshe may expect at every stage of the case, explaining just whatwill happen and why.
As she points out correctly in her own introduction, thoseexposed for the first time to the criminal justice system oftenfeel as though they are in a foreign country, with strange newrules, procedures and language. WHAT YOU SHOULD KNOW IF YOU'REACCUSED OF A CRIME provides the anxious "tourist" with a thoroughlyprofessional and knowledgeable guidebook.
Milton Mollen Presiding Justice Appellate Division Second Judicial Department
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TABLE OF CONTENTS
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . 6CHOOSING A CRIMINAL LAWYER . . . . . . . . . . . . . . . . . . . 6LAWYER/CLIENT RELATIONSHIP . . . . . . . . . . . . . . . . . . . 7LAWYERS' FEES. . . . . . . . . . . . . . . . . . . . . . . . . . 7BEFORE YOU'RE ARRESTED . . . . . . . . . . . . . . . . . . . . . 8DON'T CONFESS. . . . . . . . . . . . . . . . . . . . . . . . . . 8SOME OTHER DON'TS. . . . . . . . . . . . . . . . . . . . . . . . 9LINE-UPS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9SURRENDER. . . . . . . . . . . . . . . . . . . . . . . . . . . . 10THINGS YOUR LAWYER MAY NEED TO KNOW. . . . . . . . . . . . . . . 10THE ARREST . . . . . . . . . . . . . . . . . . . . . . . . . . . 11BOOKING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12C.J.A. INTERVIEW . . . . . . . . . . . . . . . . . . . . . . . . 12WHAT ELSE HAPPENS BEFORE ARRAIGNMENT . . . . . . . . . . . . . . 13CRIMINAL COURT ARRAIGNMENT . . . . . . . . . . . . . . . . . . . 13BAIL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14ASSIGNED COUNSEL . . . . . . . . . . . . . . . . . . . . . . . . 15FELONIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16MISDEMEANORS & VIOLATIONS. . . . . . . . . . . . . . . . . . . . 16YOUTHFUL OFFENDER. . . . . . . . . . . . . . . . . . . . . . . . 17JUVENILE OFFENDERS . . . . . . . . . . . . . . . . . . . . . . . 17CIVIL FORFEITURES. . . . . . . . . . . . . . . . . . . . . . . . 17WHAT CAN HAPPEN TO YOUR CASE . . . . . . . . . . . . . . . . . . 18WHAT HAPPENS AFTER CRIMINAL COURT ARRAIGNMENT. . . . . . . . . . 18GRAND JURY . . . . . . . . . . . . . . . . . . . . . . . . . . . 20INDICTMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 20SILENT INDICTMENT. . . . . . . . . . . . . . . . . . . . . . . . 21SUPREME COURT ARRAIGNMENT. . . . . . . . . . . . . . . . . . . . 21COURT APPEARANCES. . . . . . . . . . . . . . . . . . . . . . . . 22BENCH WARRANTS & BAIL FORFEITURES. . . . . . . . . . . . . . . . 22GETTING BACK BAIL MONEY. . . . . . . . . . . . . . . . . . . . . 23WHAT TAKES SO LONG . . . . . . . . . . . . . . . . . . . . . . . 24TRIAL PREPARATION. . . . . . . . . . . . . . . . . . . . . . . . 24TO PLEAD OR NOT TO PLEAD . . . . . . . . . . . . . . . . . . . . 25PRE-TRIAL HEARINGS . . . . . . . . . . . . . . . . . . . . . . . 26TRIAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28SENTENCING . . . . . . . . . . . . . . . . . . . . . . . . . . . 30APPEALS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31"ASSERT YOUR RIGHTS" CARD. . . . . . . . . . . . . . . . . . . . 31ABOUT THE AUTHOR . . . . . . . . . . . . . . . . . . . . . . . . 33
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INTRODUCTION
People exposed to the Criminal Justice System for the firsttime often feel like they're in a foreign country with strangerules, procedures and language.
This handbook is geared to the state system in New York City,but many of the general principles apply to other jurisdictions aswell. It's based on over 10 years of experience "in the trenches".It's a realistic, not a philosophical look, at the system.
This handbook has general information and shows how cases maketheir way through the system. Most of the legal terms used areexplained in the text or are self-explanatory.
This handbook doesn't deal with specific cases or crimes.There's a lot of information that's just too technical or compli-cated for this book. If you have specific questions about a case,you'll have to consult a lawyer personally.
The Criminal Justice System, just like the rest of life, isnot always fair. That doesn't mean we give up; it just means we tryharder.
CHOOSING A CRIMINAL LAWYER
If you can afford a private lawyer, I suggest you hire acriminal lawyer. You wouldn't go to an eye doctor for a problemwith your elbow.
If you don't know any criminal lawyers, call your local barassociation, or check with friends or relatives who may have hadcriminal problems.
It's not a good idea to hire a lawyer who approaches you inthe courthouse. Lawyers are not supposed to solicit clients thatway.
Find out how much criminal experience a lawyer has beforehiring him/her. The more serious the charges are against you, themore experienced a lawyer you need.
It helps if your lawyer practices where your case is pending.Your attorney will know the judges and D.A.s (District Attorneys)and will have a better idea of what you can expect in your case.The D.A. is the one who prosecutes the case against you.
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You also have an advantage if the judges and D.A.s know andrespect your lawyer. They're more likely to listen if your lawyerhas a good reputation.
LAWYER/CLIENT RELATIONSHIP
It's important to trust your lawyer. His/her job is to defendyou and protect you from the system, whether you're innocent orguilty. If you committed the crime or participated in some way anddon't feel comfortable telling your lawyer, you should get a dif-ferent lawyer.
You're not helping yourself if you think your lawyer will do abetter job if she or he thinks you're innocent. It's not a goodrelationship if you don't trust him/her enough to be truthful.
Your lawyer can't advise you effectively if you keep thingsfrom him/her. Everything you tell your lawyer is confidential, evenif you eventually hire a different lawyer.
You should ask your lawyer to explain what's happening withyour case. Don't think your questions are stupid just because youdon't understand the system. It's a very complicated system. That'swhy you need a lawyer in the first place.
Just because your lawyer isn't in touch with you all the time,that doesn't mean that she or he isn't working on your case.
There will be times when your lawyer may have to give priorityto someone else's case. This is most likely to happen when yourattorney's doing a trial. Trial is the most important and difficultpart of a case. It demands the most attention and concentration.
Don't feel slighted if your lawyer can't appear on your casewhen he or she's on trial with another defendant. It doesn't meanyour case isn't important, just that at this time, another client'scase has priority.
You'll appreciate this when your case goes to trial. Youwouldn't want your lawyer distracted by less pressing matters whenyou face your moment of truth.
LAWYERS' FEES
Lawyers' fees vary depending on the amount of experience heyhave and the nature of the case. It's better to have a clear under-standing about the fee before any work is done, so your lawyer canconcentrate on your case and not your bill.
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Your lawyer's fee will usually not include any other expenses.You'll probably have to pay additional money fora private investi-gator, expert witnesses (if necessary), transcripts, etc. Appealsand civil work are also usually extra.
Criminal lawyers usually require most or all of their fee upfront. This should all be clearly spelled out in the retaineragreement you sign when you retain the lawyer.
Ironically, innocent people often have to pay higher fees.Be-cause they're less likely to plead guilty, their cases usuallyrequire more work to prepare for and take through trial.
You shouldn't be looking for bargains when your freedom andreputation are at stake.
BEFORE YOU'RE ARRESTED
The sooner you get a lawyer involved in your case, the better.There are important decisions to be made and rights to be pro-tected, early in a case. If you're accused of drunk driving, youshould contact a lawyer before you submit to a breathalyzer test.
If you find out the police are looking for you, it's best tocall a lawyer before responding to them. If you can't afford aprivate lawyer, call the Legal Aid Society.
The police are interested in making out a case against someonethey suspect committed a crime. They're not your friends, unlessyou're the victim of a crime. The police may mislead you if theywant you to talk to them and you may find yourself under arrestbased on your own statements to them.
DON'T CONFESS
The police are very good at getting confessions. That's theeasiest way for them to wrap up a case.
Even if they use deceptive methods to get a confession, liketelling you things will go easier, or that a co-defendant hasimplicated you, this may be considered good police work, and ajudge may allow the D.A. use your statement against you.
If you have a lawyer before you get arrested, she or he canfind out if the police want to question you as a witness or asuspect.
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If you're a suspect, your lawyer can tell the police that s/hedoesn't want you questioned. If they question you after that, theywon't be able to use your statements against you, unless they canprove that you blurted out a confession without being asked anyquestions.
If you're arrested and don't have a lawyer, don't answer anyquestions or make any statements about your case to the police orthe D.A. Don't allow yourself to be videotaped. Whether they readyou your rights or not, tell them you want to speak to a lawyer.Don't think you can outsmart the police.
Your silence can't be used against you, but it's very hard todefend you if you've made a confession (or admission). Even tellingthe police that you were at the scene of the crime but didn't doanything is an admission to an element of the crime.
If you're in jail, be careful what you say about your case toother inmates. You never know when one of them will try to work outhis/her own problem by becoming a witness against you.
SOME OTHER DON'TS
Don't consent to a search of your person, home, or car.
Don't consent to be in a line-up or show-up.
This doesn't mean you should physically resist, just that you should object and tell the police you want a lawyer.
Don't resist arrest or become verbally abusive to the police or you might find yourself charged with additional crimes and possibly injured in the arrest process.
LINE-UPS
If the police intend to put you in a line-up, ask to have alawyer there. Your lawyer can determine if they have the right todo so, and if they don't, s/he can protect you.
If they do have the right to put you in the line-up, yourattorney can monitor the procedure to make sure it's done fairly.
If the persons placed in the line-up with you don't resembleyou, then your attorney can ask the police to find better fillers.If they won't find better fillers, s/he can make notes of thedifferences in appearance between you and the fillers in order tohelp you later when the D.A. tries to use the line-up identifica-tion against you.
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The police usually take a black & white Polaroid picture ofthe line-up that doesn't clearly show the differences between youand the fillers.
If you didn't have a lawyer at the line-up, this photo and thepolice testimony will often be the only evidence a judge will have,to determine if the line-up was fair.
Your lawyer can help you decide the best place to sit andnumber to hold to minimize the chance of being picked out.
Your attorney can make sure the police don't do anythingimproper, like suggesting in some way that the witness pick youout.
Having a lawyer at this early stage can be very helpful. Ifyou're not picked out of the line-up in the first place, your casemight be over before it begins and you'll save yourself a greatdeal of hassle and money.
Identification cases are the most difficult to defend. Eventhough identification testimony is the least accurate, it's themost believed by jurors.
SURRENDER
If you're a suspect in a crime, your lawyer can arrange foryou to surrender.
The reason it's good to surrender (if the police intend toarrest you), is that it will show the court that you're a responsi-ble person, worthy of being "released on your own recognizance"(R.O.R.'d), or of having low bail set when you first appear beforea judge for arraignment. It may also be helpful at plea or trial toshow your cooperation.
The purpose of setting bail is to make sure you return tocourt. By surrendering in the first place, you show that you'relikely to return to court without having high bail set.
Your lawyer can tell the judge that you knew the police werelooking for you, had the chance to run, but didn't. Surrenderingwon't guarantee low bail, but it gives you a better shot.
THINGS YOUR LAWYER MAY NEED TO KNOW
There are things your lawyer needs to know, to defend you.Below is a list of some information s/he may need from you:
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1) Whether you have any witnesses. These include alibi witnesses; character witnesses & eyewitnesses.
2) The names, addresses and phone numbers of your witnesses, so your lawyer can get their statements and advise them of the disadvantage to you if they speak the D.A.
3) Where and when you were arrested and the circumstances surrounding your arrest.
4) Whether you were shown to any witnesses by the police and the specifics of that identification procedure.
5) Whether the police found anything on you relating to the crime.
6) Whether the police had an arrest warrant or a search warrant.
7) Whether you made any statements to the police or the D.A. If so - Were you read your rights? Was any force used against you? Do you have any injuries?
8) Whether you know the witnesses against you and if they have any motive to lie.
9) Whether you're on probation or parole.
10) Whether you have any problems that may affect your case, like mental or physical problems, or problems with drugs or alcohol. Sometimes these problems may help your de- fense.
11) Your immigration status. If you're not a citizen, a criminal conviction may create problems for you with immigration.
THE ARREST
A police officer can arrest you, without a warrant, if thatofficer sees you committing a felony, misdemeanor or violation. Theofficer can arrest you for a felony or misdemeanor (even without awarrant), if he or she has "probable cause" to believe you com-mitted a crime.
All it takes is one person making a criminal complaint againstyou, without any corroboration, to give the police "probable cause"to arrest you. They'll arrest you even if you tell them you'reinnocent. They hear that from almost every defendant, even theguilty ones, so they leave it for the courts to decide.
People find it hard to believe that they can be arrested basedon one person's accusation, but that's the law.
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The police should have a warrant if they're arresting you athome, but there are exceptions to every rule.
BOOKING
When you're arrested, you'll be processed by the police (book-ed) before being brought to court for arraignment.
The amount of time between arrest and arraignment varies fromstate to state and county/borough to county/borough.
After some preliminaries in the precinct, which usually in-clude being searched, fingerprinted, photographed, and in certaincases an identification procedure (line-up or show-up), you'll betaken to Central Booking in the borough of arrest, to be processedfurther.
There are sometimes delays in the booking process. Your fin-gerprints have to be sent to the state capital to get your criminalrecord and check if you have any open warrants.
Sometimes the computers aren't working and this delays gettingyour criminal record. If it's your first arrest, the process oftentakes longer. If you refuse to be fingerprinted, you can be helduntil you agree.
C.J.A. INTERVIEW
After you're booked, you'll be interviewed by the N.Y.C.Criminal Justice Agency (C.J.A.), about your residence, employment,criminal record, etc. (not about the facts of your case).
It's important to answer their questions accurately. They willcontact a friend or family member (depending on the name you givethem as a contact person) to verify your information.
If you give them incorrect information, it may hurt yourchance of getting low bail, because they'll note the fact that yourinformation was inconsistent with the verifier's, and it will looklike you're trying to hide something from the court.
They use the information to prepare a recommendation as tobail (often called an R.O.R. sheet), to help the judge in arraign-ments decide the question of bail or R.O.R.
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WHAT ELSE HAPPENS BEFORE ARRAIGNMENT
While you're being booked and interviewed by C.J.A., theD.A.'s office will be drawing up a formal complaint against you.This is usually done by their Early Case Assessment Bureau(E.C.A.B.). They interview the arresting officer and/or the wit-nesses/victims and decide what you'll be charged with.
All of the above has to be done before you can be brought tocourt for arraignment.
There are often delays in being brought to court. The systemmay be backed up if a lot of people have been arrested before youwho are also waiting for arraignment. It's not uncommon for thedelay to be more than 24 hours.
If it appears to Central Booking that you won't be arraignedthe day you're booked, you'll be taken to a precinct to be lodgedfor the night. People often get very upset at this delay but thereis really nothing you can do about it.
Your lawyer can find out where you are in the system and letyour family know approximately when you'll be arraigned. In certainareas, private lawyers are given preference once you're produced incourt, and this can speed things up a little.
CRIMINAL COURT ARRAIGNMENT
At the arraignment, your lawyer will interview you, tell youwhat you're being charged with, advise you of your rights and makean application for low bail or R.O.R.
If you can't afford a private lawyer, there will be a LegalAid lawyer assigned to your case at the arraignment.
Your lawyer will often "waive formal arraignment", so thecharges against you won't be read aloud in open court.
Your attorney and the D.A. may have a conference at the benchwith the judge. There will be a discussion about your case. Yourlawyer can get some valuable information from the D.A. at this"bench conference". There may also be some discussion about a plea-bargain at this point.
Certain cases are disposed of at the arraignment. Your lawyerwill discuss the offer with you and advise you if s/he thinks itwould be a good idea to accept it. Sometimes felony charges arereduced to misdemeanors at the arraignment.
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If the charges are serious felonies, it's unlikely they'll bedisposed of at the arraignment. The D.A. will probably give noticethat their office intends to present your case to a Grand Jury.Your lawyer may give reciprocal notice that you wish to testify inthe Grand Jury in your own behalf. The Grand Jury will be discussedmore fully later in this guide.
The witnesses against you do not have to come to the arraign-ment or appear in court unless they're required to testify (in theGrand Jury, at a hearing or at trial).
BAIL
The judge at the arraignment is the one who decides about yourbail. You may be R.O.R.'d (released on your own recognizance), havebail set, or be remanded without bail. Being remanded without bailis likely if you're charged with murder or if you're charged with aserious felony and have another felony case pending.
It helps to have as many friends and family members as possi-ble at the arraignment. The bail may be lower if your lawyer canshow the judge you have strong community ties, as evidenced by allthe people who came to court for you.
Have your people bring money with them for bail. Your lawyercan often estimate the amount of bail the judge might set. Thiswill depend on the nature of the case, your criminal record, yourcommunity ties and which judge is sitting in arraignments.
If your people have money with them at the arraignment and thejudge intends to set bail that's a little more than they have yourlawyer can tell the judge the amount of money your people have withthem, and the judge might set the bail at that amount, so you canbe bailed out from court.
It saves a lot of hassle if you're bailed out from court. Onceyou're removed from the court building, bail has to be put up atthe jail you're in or at certain other locations in the city. Yourlawyer can advise you about that.
Bail can be posted by a bail bond or in cash. When bail isset, there's usually a bond amount set and a cash alternative.
To get a bail bond, your people have to see a bail bondsman.He will require some cash (at least 10% of the bond) and collateralfor the rest (a house, bank book or the like).
The first bail that's set is often the most important. It'shard to get a bail reduction unless your lawyer can show there'sbeen some change in circumstances since the first bail was set.
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ASSIGNED COUNSEL
Many people accused of crimes can't afford to hire a privatelawyer, and are assigned a Legal Aid lawyer or a lawyer from the18-B panel. In other states it is the Public Defender.
There are times I've asked someone who calls if they have alawyer already, and he or she says: "No, I have a legal aid". It'sunfortunate that defendants have that opinion of Legal Aid.
Lawyers who work for the Legal Aid Society are competent,well-trained, dedicated lawyers. The Legal Aid Society has excel-lent support staff, including investigators, social workers, fund-ing for expert witnesses, etc.
An 18-B lawyer is a private lawyer who accepts assignments ofcriminal cases from the court and is paid by the state to representindigent defendants (those defendants with no money). There areseveral reasons why you may be assigned an 18-B lawyer, instead ofLegal Aid.
If two or more people are accused of committing a crime to-gether, the Legal Aid Society is only allowed to represent one ofthem. The Legal Aid Society is like one big law firm, and it'sconsidered a conflict of interests to have the same law firm repre-sent co-defendants.
Legal Aid might not be able to represent you because theyrepresent a witness against you who has a pending case. This wouldalso be considered a conflict of interest.
If you're accused of murder, and are indigent, you'll beassigned a lawyer from the 18-B "homicide panel". The Legal AidSociety usually does not handle murder cases.
There are different panels of 18-B lawyers for different typesof cases. These lawyers have been screened to make sure they'requalified to handle the kinds of criminal cases they'll be assignedto.
The "misdemeanor panel" has lawyers qualified to handle misde-meanor cases.
The "felony panel" has more experienced criminal lawyers thanthose on the "misdemeanor panel".
The "homicide panel" has the most experienced criminal law-yers.
The "Family Court panel" is for criminal cases involvingjuveniles that will be handled in the Family Court.
There's also an "appeals panel" to handle your appeal, ifyou're indigent.
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FELONIES
There are different categories of crimes. The more seriouscrimes are called felonies. The most serious felonies are "A"felonies, the least serious are "E" felonies. The designations varyfrom state to state.
Certain felonies carry mandatory jail sentences, if you pleadguilty or are found guilty after trial (conviction). This means youcan't get probation. These are usually cases involving the sale ofdrugs or the use of a gun or violence, such as "armed felony of-fenses" and "violent felony offenses" (A.F.O.'s and V.F.O.'s).
If you're convicted of a felony, you may also lose some ofyour civil rights. In some cases your lawyer can get you a Certifi-cate of Relief from Civil Disabilities that may mitigate the effectof a felony conviction.
If you're accused of a felony and have one or more priorfelony convictions, jail sentences are mandatory and longer.
Generally, one prior felony conviction makes you a "predicatefelon", more than one prior felony conviction makes you a "persist-ent felony offender".
If you're on probation or parole, a conviction after trial orplea of guilty to a new crime (felony or misdemeanor) can violateyour probation or parole (V.O.P.) and you'll probably get extrajail time.
MISDEMEANORS & VIOLATIONS
The less serious crimes are classified as misdemeanors. Viola-tion offenses are less serious than misdemeanors and aren't consid-ered crimes.
If you're arrested for a misdemeanor, violation, or certainlow grade felonies, the police can, under certain circumstances,give you a "desk appearance ticket" (D.A.T.), which is like asummons. Instead of going through the booking process and beingheld in jail until you're brought before a judge for arraignment,you're released from custody and given a date to appear in court tobe arraigned.
Penalties for misdemeanors and violations are less seriousthan those for felonies. You may even be able to get an A.C.D.(adjournment in contemplation of dismissal). This means your caseis adjourned for six months (you don't have to return to court),and, if you don't get into trouble within the six months, it'sdismissed and sealed, as if you were never arrested. You're morelikely to get an A.C.D. if it's your first arrest.
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YOUTHFUL OFFENDER
If you were under 19 when the crime you were arrested for wascommitted, and you're convicted (plead guilty or are found guiltyafter trial), the judge might treat you as a "youthful offender"(Y.O.) - the conviction is vacated and the case sealed.
You're entitled to "youthful offender" treatment on your firstmisdemeanor conviction. It's discretionary for certain first timefelony convictions.
"Youthful offender" doesn't mean you won't be punished for thecrime (with jail time or probation), but the punishment is oftenless severe and you won't have a criminal record. This is meant togive a young person a chance to straighten out without the stigmaof a criminal record.
If you received Y.O. on a prior felony case, then it's as ifyou weren't convicted of that felony and you won't be considered a"predicate felon" if you're charged with another felony.
If you got Y.O. on a prior case, it won't save you from extrajail time for violation of the probation or parole from that case,if you're convicted of something else after that.
JUVENILE OFFENDERS
There are certain crimes where juveniles are treated as adultsin the Supreme Court and others that are dealt with in the FamilyCourt. Certain procedures are different for juveniles. This guidewon't discuss the distinctions.
CIVIL FORFEITURES
Generally speaking, the D.A.'s office can seek forfeiture ofthe instrumentality or proceeds of certain crimes.
The D.A.'s office can even attach this property before you'reconvicted, if they can show there's a likelihood you'll be con-victed. This is a relatively new law. Your lawyer will explain itto you, if it applies to your case.
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WHAT CAN HAPPEN TO YOUR CASE
Almost all criminal cases (felonies, misdemeanors and viola-tions) start in the Criminal Court. In some states this is termedthe Municipal Court.
Cases that start as felonies and are reduced to misdemeanorsby the D.A., and cases that start as misdemeanors or violations,stay in the Criminal Court until they're finished.
Cases that are going to remain felonies must be transferred tothe Supreme Court. In other states this is called Superior Courtand in those states with a Superior Court system, the Supreme Courtis above the Superior Court. To get your case transferreed from theCriminal Court to the Supreme Court, the D.A. must present his/herevidence to a Grand Jury and get an indictment. This will be ex-plained more fully later.
There are only three things that can happen to a criminalcase: it can be dismissed or A.C.D.'d by the D.A. or a judge (veryrare); you can plead guilty; or the case can go to trial (whereyou're either acquitted or convicted).
If you get a dismissal, an A.C.D., an acquittal after trial,or plead guilty to a violation, your case can be sealed and yourfingerprints and arrest photos may be returned to your lawyer.
Unfortunately these will just be souvenirs because the policeusually keep a copy of your photo for their mug files and yourfingerprints are kept in the criminal justice computers. Potentialemployers and the like won't have access to your fingerprint recordor any information about your case, but if you're rearrested, itwill show up.
WHAT HAPPENS AFTER CRIMINAL COURT ARRAIGNMENT
If bail is set that you can't make, your case will usually beadjourned to six days from the date of your arrest.
Basically, the law says that if you're in jail, the D.A. hassix days (on a felony charge) from the date of arrest to havewitnesses give sworn testimony supporting the charges against youor you're entitled to be released from jail.
This can be done by bringing the witnesses to court for apreliminary hearing or having them testify before a Grand Jury.
It's very rare to have a preliminary hearing in New York City,because at a preliminary hearing the defense lawyer gets a chanceto cross-examine the witnesses. District Attorneys would rather notexpose their witnesses to cross-examination at this early stage,and they avoid doing this by going to the Grand Jury instead. TheGrand Jury proceedings are secret and defense lawyers are onlyentitled to be present when and if their own client testifies.
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On the adjourn date, if the D.A. has not complied with thelaw, you should be R.O.R.'d. But if the D.A. can show a good reasonfor not getting an indictment or providing a preliminary hearingwithin the six days, then the D.A. can get an extension.
GRAND JURY
A Grand Jury is comprised of 16-23 people. They listen toevidence presented by the D.A. and decide if there's enough evi-dence against a defendant for him/her to face felony charges. Ittakes 12 grand jurors to vote an "indictment".
A Grand Jury also has the power to return a case to the Crimi-nal Court as a misdemeanor if it thinks there isn't enough evidencefor felony charges, but there is enough for misdemeanor charges.This would be called a "prosecutor's information".
The Grand Jury is an "arm" of the D.A.'s office, and theproceedings are secret in order to protect the witnesses.
It's not hard for a D.A. to get an indictment because theGrand Jury usually only hears the D.A.'s evidence. There's nodefense lawyer to cross-examine the witnesses and they usuallydon't hear from the defendant.
If you've been arrested, your lawyer will be notified if theD.A. intends to present your case to a Grand Jury.
In certain cases your lawyer might advise you to testifybefore the Grand Jury and/or present witnesses. To do that, yourdefense lawyer must notify the D.A. before the Grand Jury presenta-tion is completed.
If you testify in the Grand Jury, your lawyer can be therewith you, but can't ask questions or make objections.
If things go well, the Grand Jury may fail to vote an indict-ment (No True Bill), and your case will be over, saving you a lotof hassle and money. This is another reason to get a lawyer workingon your case early on.
Most cases that are presented to a Grand Jury are presentedwithin six days of arrest, to prevent the defendant's R.O.R.
INDICTMENT
An indictment is merely a formal accusation listing the felonycharges against you in the Supreme Court. It's not evidence ofguilt.
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If you're indicted, your case will be transferred to theSupreme Court. If you're out of jail, you and your lawyer will benotified by mail when to come to the Supreme Court to be arraignedon the indictment.
SILENT INDICTMENT
Occasionally cases are presented to a Grand Jury before anyoneis arrested. If the Grand Jury indicts, this is called a "silentindictment".
The same "silent indictment" procedure may be followed if youwere arrested for a felony and had your case dismissed by a judgein the Criminal Court.
The D.A. still has the right to present felony charges to aGrand Jury within six months of your arrest. There's no time limi-tation if you're accused of homicide.
In "silent indictment" cases, you won't be notified that yourcase is being presented to a Grand Jury and may not have the chanceto testify or present defense witnesses.
You'll still be able to present your defense at trial.
If you're indicted this way, an arrest warrant issues andyou'll be arrested and brought to Supreme Court for arraignment.
SUPREME COURT ARRAIGNMENT
The Supreme Court arraignment is similar to the Criminal Courtarraignment on the initial complaint. You're advised of the chargesagainst you and there's a decision on bail.
If you're out of jail and have been coming to court when youwere supposed to, and if you appear for arraignment when notified,the chances are that your bail status will remain the same.
If you're in jail, you'll be brought to Supreme Court forarraignment and your lawyer will be notified when to appear.
Your lawyer gets a copy of the indictment from the D.A. incourt. Your attorney will waive the public reading of the chargesagainst you and enter a plea of not guilty for you. Your lawyer mayalso get a "voluntary disclosure form" (V.D.F.), and police reportsat this time, from the D.A. The V.D.F. has information your lawyerneeds to prepare your case.
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COURT APPEARANCES
If you're out of jail while your case is pending, you mustappear in court on every adjourn date, unless your lawyer hasarranged for you to be excused.
Unless you're told otherwise, be there at 9:30 A.M. Keep trackof the courtroom you're supposed to appear in and the adjourn date.This is your responsibility.
The only time you should wait for a letter from the court,before appearing, is if your felony case has been transferred tothe Supreme Court and you've been told to wait for notification ofthe Supreme Court arraignment date. A case is transferred to theSupreme Court after a Grand Jury has voted an indictment.
If you get to court on time and don't see your lawyer, checkto see if your name's on the court calendar to make sure you're inthe right room on the right date.
If it's the right courtroom and date and your lawyer isn'tthere, it probably means he or she had to cover another case first.Most lawyers have to give priority to their clients who are in jailand cover those cases first.
If you leave the courtroom to call your lawyer, tell one ofthe court officers so they won't call your case while you're notthere and issue a bench warrant because you're absent.
BENCH WARRANTS & BAIL FORFEITURES
If you're late, or don't show up, the judge may issue a benchwarrant. You can be arrested on that warrant. If you're out onbail, your bail money can be forfeited.
Bail jumping is also a separate crime you can be charged withif you're out on a bench warrant more that 30 days. It's very hardto defend that charge and sometimes gives the D.A. extra bargainingpower in dealing with your current case.
A bench warrant will also stay on your record and come back tohaunt you later, even if you clear it up. It will give a judge anexcuse to set higher bail on you in the future.
If you can't come to court because you're sick, or becauseyou've been rearrested, call your lawyer and let him/her know, orhave a family member call.
If you're represented by an assigned lawyer (Legal Aid or 18-B), that's no excuse for not calling to let him/her know why youcan't make your court appearance.
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You should have your lawyer's card with his/her name and phonenumber. It's your responsibility to let your defense attorney knowif there's a good reason you can't come to court.
Don't assume that if you're rearrested, somehow the courtroomwhere your case is pending will know about it.
If you have a good excuse why you can't come to court, andyour lawyer knows about it before going to court, the attorney cantell the judge and ask the judge not to issue a bench warrant.
Otherwise, the judge will issue a bench warrant and a bailforfeiture. This is a hassle for you and for the person who put upyour bail.
GETTING BACK BAIL MONEY
If you make all your court appearances, the bail money shouldbe returned to the depositor several weeks after your case is over,whether you win or lose.
If the person who put up the bail (depositor) has moved sinceputting up the bail money, the depositor has to go to the Depart-ment of Finance, at 1 Centre Street in Manhattan, with proof ofidentification and his/her bail receipt, to get the bail check.
But if your bail was forfeited because you missed a court dateit is difficult for the depositor to get it back. Even if you'rerepresented by an assigned lawyer, the person who put up your bail(depositor or bail bondsman) may have to pay a private lawyer to doa "bail remission motion" to try to get back his/her money.
The procedure varies from borough to borough, as does theamount of the cash bail, if any, that will be returned. If you havea bail bond, contact the bondsman if there's a forfeiture.
A "bail remission motion" must be done within one year of theforfeiture of bail - that's the statute of limitations on thesemotions. The defendant must have returned to court before thismotion can be brought.
The bail depositor should not wait until your case is overbefore arranging for a "bail remission motion". If the depositorwaits beyond a year from the date of forfeiture, it may be too lateto get any money back because of the statute of limitations.
If you "bench warrant", have your lawyer check your bailstatus when you return. If you return within 45 days of the forfei-ture, there's an easier procedure for reinstating the bail.
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WHAT TAKES SO LONG
Criminal cases can take a long time to finish. This dependson the seriousness of the charges and whether you're going to takea plea or go to trial.
There are "speedy trial rules" governing the amount of timethe D.A. has to be ready for trial, but more serious cases can takesix to 12 months, or longer, to go to trial. Trial preference isusually given to defendants who are in jail.
Technically, the D.A. has to be ready for trial within sixmonths of your arrest, (90 days for misdemeanors), but there arecertain time periods that are excluded from the six months (or 90days) and these rules do not apply to homicide cases.
Some of the reasons for the delay include: crowded courtcalendars, busy D.A.s and defense lawyers, and delays in gettingdocuments from the D.A. or police that your lawyer needs to preparefor trial.
Each case is different and requires different preparation.There are certain procedures that have to be followed. Your lawyercan explain this more fully as it relates to your case.
The wait is frustrating but there's little that can be done tospeed things up. In certain cases, delay is helpful to the defen-dant. Witnesses, like all of us, having memories that fade overtime.
It's upsetting having criminal charges hanging over your head.Lawyers sensitive to their clients' feelings often act as psycholo-gists and social workers as well as lawyers. Maybe that's why we'realso called counselors.
TRIAL PREPARATION
After arraignment, your case will be adjourned. If it's afelony, trial preparation usually begins after you've been ar-raigned on the indictment. If it's a misdemeanor, trial preparationbegins after the Criminal Court arraignment.
The next time the case is on, there will be a conference,where the D.A., the judge and your lawyer will discuss your case tosee if it can be disposed of without a trial. There will probablybe a plea offer. If the plea is refused, the case is adjourned foryour lawyer to make "motions".
Plea-bargaining will be discussed later in this guide.
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One of the biggest delays in the system is due to trial prepa-ration. It's better to have the delay than go to trial withoutadequate preparation, even if you're in jail.
One of the things your lawyer has to do is make certain "mo-tions". Your attorney will prepare an Omnibus motion which is aformal written request for certain information the D.A. has aboutyour case (discovery), and requests that certain evidence be sup-pressed on the grounds it was obtained in violation of your rights.There are also certain "dismissal" motions that are included, whereappropriate.
There will usually be hearings on the suppression motions ifthe judge thinks you're entitled to them. These pre-trial hearingswill be discussed later.
Another thing your lawyer has to do to prepare your case fortrial is to investigate. Sometimes an investigation can't be doneuntil the D.A. responds to your lawyer's "discovery" motions andturns over police reports to your attorney.
The D.A. often keeps information from the defense until theeve of trial. Police reports are often turned over with the namesand addresses of witnesses deleted to protect them. Judges usuallydon't make the D.A. disclose that information until trial. Wesometimes call this "trial by ambush".
Your case will be adjourned, usually about three weeks at atime, until it's ready for trial or you take a plea.
Because of all the delays, some defendants take pleas just toavoid having to come back to court so many times. This is morelikely to happen in Criminal Court in misdemeanors cases.
TO PLEAD OR NOT TO PLEAD
Many people think plea-bargaining is a dirty word. Plea-bar-gaining is actually like negotiating the disposition of a case.Sometimes a plea-bargain is appropriate.
Whether you take a plea or go to trial is an important deci-sion you have to make. It's not the kind of decision your lawyershould make for you, but his/her opinion should be very importantto you when you decide to take a plea or go to trial.
Once your lawyer has a clear enough picture of the evidenceagainst you, s/he can evaluate the chances of winning your trial.
Your attorney will usually balance your odds of winningagainst the amount of time you could be sentenced to if you losetrial and the sentence being offered in the plea-bargain.
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Defendants who are in jail awaiting trial are more likely totake pleas than defendants who are out of jail.
The decision is a very difficult one, especially if you'reinnocent and the evidence against you looks strong. There areprovisions in the law for a person to plead guilty without admit-ting guilt. This is called a SERRANO plea or an ALFORD plea (namedafter the cases that allow this kind of plea). Some judges don'tlike to take SERRANO/ALFORD pleas.
It's very hard to admit guilt if you're innocent, but thereare defendants who do it because their chances of winning are soslim, they'd rather take the sure thing (usually probation or lowjail time) than risk a severe jail sentence after losing trial.
If you go to trial and lose, you usually get more time thanthat offered in the plea-bargain. It's like getting extra punish-ment for putting the state through the trouble and expense of thetrial.
No matter how experienced or skillful your lawyer is, there'sno guarantee of winning a trial. One reason people take pleas is toavoid the uncertainty of trial.
Trial is an uphill battle for the defense attorney. The D.A.has most of the tools. Your lawyer has police and detective inves-tigators (D.I.s) to help investigate and get witnesses to cooper-ate. as well as getting private detectives.
Even if the defense has been able to get the names and loca-tions of witnesses, there's no real way to get them to cooperate ifthey don't want to and most people don't want to get involved.
The District Attorney's office also has public opinion ontheir side. Even though the law says that you're presumed to beinnocent, and that the burden of proving your guilt is on the D.A.,jurors do not always understand or follow the law.
Unfortunately, nowadays, especially is New York City, jurorsare exposed to crime on the streets, either personally or throughthe media, and tend to presume you're guilty and expect the defenseto prove your innocence. This is especially true if you're a memberof a minority or poor.
Sorry to paint such a grim picture, but that's where thingsare and this guide discusses realities, not ideals.
PRE-TRIAL HEARINGS
There are several types of hearings, called pre-trial hear-ings, or suppression hearings, that may occur before a trial juryis selected.
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Not every case has pre-trial hearings. It depends on theevidence against you. These hearings are usually named after cer-tain landmark cases.
After the hearings, the judge decides whether or not to letthe D.A. use certain evidence against you at trial. If the evidencein question at the hearing is the only evidence against you, andyou win the hearing, that might be the end of your case.
A HUNTLEY hearing is to suppress statements allegedly made byyou to a law enforcement officer (including the police, the D.A.,or their agent), on the grounds that you weren't advised of yourconstitutional right to remain silent or were forced to make thestatement, either by threats or brutality.
I often have clients tell me, when I interview them for thefirst time, that the police did not "read them their rights". Theyseem to think that's a way to get a case dismissed. Unfortunately,that's rarely the result. The only consequence of not reading youyour rights is that if you made a confession there are now groundsto get it suppressed.
It's unlikely that the police will admit they failed to readyou your rights or that they threatened or beat you. At the HUNTLEYhearing they'll probably testify that they read you your (MIRANDA)rights and deny that they used any force.
The judge usually believes the police. This happens in mostinstances where the police version differs from the defendant's.
A DUNAWAY hearing is also a hearing to suppress statements, onthe grounds that the police didn't have probable cause (any legalreason) to arrest you in the first place.
A WADE hearing is a hearing to suppress the identification onthe grounds that the pre-trial identification procedure was sugges-tive and that the witness would not have otherwise been able toidentify you.
A MAPP hearing is a hearing to suppress physical evidenceseized from you (usually a weapon, drugs, or the proceeds of acrime) on the grounds that the police had no legal right to stopyou or search you in the first place.
A SANDOVAL hearing is a hearing to prohibit the D.A. fromusing your criminal record to impeach you during cross-examination,if you testify at trial.
Ordinarily, when a witness testifies at trial, the opposingcounsel can use the witness' criminal record on cross-examinationto show that the witness isn't worthy of belief.
When the witness is the defendant, the court has to balanceyour constitutional right to testify on your own behalf against theD.A.'s right to this cross-examination technique.
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The problem is that juries tend to believe that if you'vecommitted crimes in the past, you probably committed this one too,and that's not one of the factors a jury is supposed to consider asevidence. The defense attorney tries to limit this through theSANDOVAL hearing.
If you don't testify at trial, the D.A. can't introduce yourcriminal record, except under specific conditions that are tootechnical to discuss here.
TRIAL
After the pretrial hearings are finished, the trial begins.The trial is the part of the case where a decision is made by ajudge or a jury, after listening to the evidence, as to your guiltor innocence.
You're entitled to a jury trial in all felony cases and misde-meanor cases that carry penalties over six months in jail.
Even if you're entitled to a jury trial, there are certaincases that are better tried without a jury. This kind of decisionis between you and your lawyer and usually depends on the specificsof your case and which judge is in the trial courtroom.
It's important to dress appropriately when you're on trial.Dress like you would for a church function, not like you would on adate. You want to look neat but not flashy.
If you're out of jail and don't appear for trial, in additionto getting a bench warrant and forfeiting your bail, your case maybe tried without you.
Most judges warn defendants of that possibility. If you'vebeen warned, and don't appear, you can be tried, convicted andsentenced in your absence. The likelihood of conviction increasesif you're not present at your trial.
When the police pick you up on the bench warrant, you'll besent to jail to serve your sentence. You may also, practicallyspeaking, waive your right to appeal.
Assuming you're having a jury trial, the first part is toselect the jury. This is called voir dire.
A panel of prospective jurors is brought to the courtroom fromthe Central Jury Panel. The judge explains some general principlesof law to them.
From that panel, 12 or more at a time, six if it's a misde-meanor trial, are called into the jury box to be questioned by thejudge, the D.A., and the defense attorney.
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The purpose of the voir dire is to give the D.A. and thedefense attorney a chance to find out whether the prospective jurorcan be fair.
After each round, the attorneys usually leave the courtroomwith the judge and court reporter (who records the proceedings),and challenge the jurors they don't want.
It's more a process of elimination than one of selection.There are a specific number of peremptory challenges for each side,depending on the nature of the charges.
Peremptory challenges are those that do not require the attor-ney to give a reason for the challenge.
If either side can show the judge that a potential juror can'tbe fair, then that juror can be challenged for cause. Challengesfor cause are unlimited.
A felony trial jury consists of 12 jurors and usually twoalternates. If one of the jurors can't continue to serve (becauseof illness or the like), an alternate is substituted.
After the jury is selected, the judge usually tells them moreof the general principles of law. Your attorney explains theirduties and explains the order of the trial. Your lawyer also warnsthem not to discuss the case with anyone until it's over.
The D.A. then makes an opening statement. This tells the jurywhat the prosecution intends to prove to them during the trial.Your attorney usually describes this as a table of contents.
The defense attorney may also make an opening statement. Thiswill be a matter of trial strategy that your lawyer will decide,depending on the nature of your defense.
The defense attorney is not required to make an opening state-ment, because the defense is not obligated to prove anything duringthe trial.
After opening statements, the D.A. presents evidence. Evidenceis testimony from witnesses and exhibits (weapons, contraband,documents, etc.).
When a witness testifies for the prosecution, the D.A. ques-tions that witness before the defense. This is direct examination.When the defense attorney questions that witness, it's cross-exami-nation.
When the D.A. has finished putting on the prosecution's case,your lawyer has the right to present a defense case.
However, the defense doesn't have to present a case becausethe defense doesn't have to prove anything. The jury is supposed todecide, based on what the District Attorney presents, if they'reconvinced of your guilt "beyond a reasonable doubt".
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A major trial decision is whether or not you'll testify inyour own behalf at trial. Even though the jury is told not to holdit against you if you don't testify, they often do hold it againstyou. The decision is harder if the D.A. has been given permissionto cross-examine you about your criminal record.
After the defense rests, the D.A. may present evidence torebut something the defense has raised in its case. If this hap-pens, the defense may present evidence to rebut that.
When both sides finish presenting their evidence, they rest.Then they do summations. The defense attorney sums up first, and,because the defense has the burden of proof and the D.A. sums uplast.
Summations are the lawyers' comments about the evidence toshow why they think the jury should reach a certain verdict.
When both sides finish their summations, the judge explainsthe relevant law to the jury and sends them out to deliberate untilthey reach a verdict. Jury members are not allowed to discuss thecase with anyone who isn't on the jury.
A verdict must be unanimous. Sometimes the jury can't reach averdict by the end of the day, and they're sequestered for thenight (sent to a hotel together).
If the jury can't reach a unanimous verdict, and it seems theywon't be able to no matter how long they deliberate, they may letthe judge know they're deadlocked and the judge may declare a"hung" jury. If that happens, you may be tried again.
If you're acquitted (found not guilty), you can't be chargedor tried again for the same case.
SENTENCING
If you're convicted after trial, or take a plea, the case willbe adjourned for the probation department to prepare a report toaid the judge in sentencing. If you've been in jail awaiting trialyou'll get credit for that time toward your sentence.
It's very important to make a good impression on the personinterviewing you, because the probation department recommendationcarries a lot of weight. Even if your sentence was negotiated byplea-bargain, if the probation report is bad, the judge may decidenot to keep his/her promise to you and give you the option oftaking more jail time or withdrawing your plea.
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Also, your probation report is attached to your file and istaken into consideration when you become eligible for parole.
If you're eligible for "youthful offender" treatment, theprobation report is sometimes the deciding factor.
If you've taken a plea and are out of jail awaiting sentenceand fail to keep your appointment for your interview with theDepartment of Probation, or get convicted of another crime, or failto appear in court on the date of sentence, the judge can give youa harsher sentence without giving you the option of withdrawingyour plea.
When the Department of Probation prepares its report, theyusually contact the D.A. for input, but not the defense attorney.If you're convicted after trial, your lawyer may want to preparehis/her own "pre-sentence report" to balance things out.
APPEALS
If you're convicted after trial, your lawyer must file a"notice of appeal" for you within 30 days of the sentence date toinsure your right to appeal.
If you're indigent, a lawyer will be assigned to do yourappeal. It will either be a Legal Aid lawyer or an 18-B lawyer.
Appeals take a long time to be heard. Part of the delay,especially if you're indigent, is the length of time it takes theappeals lawyer to get the minutes of the trial.
Assigned lawyers have a lot of cases to do, so it usuallytakes longer for them to get to your case. It sometimes takes yearsfor an appeal to be heard.
If you can afford to pay privately for the appeal, and theminutes of the trial, you can speed up the process quite a bit.
Sometimes you can get bail pending appeal but the majority ofdefendants wait in jail until their appeal is heard.
"ASSERT YOUR RIGHTS" CARD
If you're arrested, you can tell the police your name, ad-dress, date of birth, etc. (pedigree information), but don't answerquestions about the crime or where you were when it happened.
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To protect yourself, cut out the card below and keep it withyou, just in case. If you borrowed this book from your library,please just photocopy this card. Hand it to the police if they wantto question you, search you or your property, or place you in aline-up. This card could save you years in jail.
--------------------------------------- * * * I do not wish to answer any * * questions without speaking to * * an attorney first. I do not * * consent to a search. I do not * * consent to being in a line-up. * * I will not waive any of my * * constitutional rights. * * * * Thank You * ---------------------------------------
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ABOUT THE AUTHOR
Joyce David is a criminal lawyer with offices in the TowerSuite of 16 Court Street, Brooklyn, N.Y., 11241, (718) 875-2000.
Ms. David is admitted to practice in the State and Federalcourts in New York and in the United States Supreme Court.
She's represented thousands of defendants accused of almostevery type of crime. She's a frequent lecturer and is often con-sulted by the media on matters relating to the Criminal JusticeSystem.
Ms. David's professional activities include:
* Vice President - New York State Association of Defense Lawyers (also Chair Task Force on Bias in the Criminal Justice System)
* Executive Vice President - Kings County Criminal Bar
* Homicide Panel - Second Judicial Department
* Co-Chair Criminal Law & Procedure Committee - Brooklyn Bar Association
* Women & Minorities Committee - National Association of Criminal Defense Lawyers
* Executive Vice Chair - Brooklyn Women's Political Caucus
* Special Counsel to Co-Chair - New York State Democratic Committee, Women's Division
* Candidate for State Committeewoman - 1984
* Freelance Journalist
* Society of Professional Journalists & NY Deadline Club
* New York Women in Communications, Inc.
* Mensa