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By Jill K. Sanders, Esq.

If you’re being investigated for a crime, or even if you’ve already been arrested, you may have some questions about how the criminal justice system in New York works. Understanding a few basics, along with the advice your attorney, may help you better understand how your case may be prosecuted.

Violation, Misdemeanor, or Felony?

New York divides offenses into three categories: violations, misdemeanors, and felonies. Generally speaking, violations and misdemeanors are less serious offenses, while felonies are considered to be more serious offenses. A violation is not a crime, whereas misdemeanors and felonies are crimes. Misdemeanors are divides into two categories – A misdemeanors (more serious) and B misdemeanors (less serious). Felonies are also divided into categories – A-I and A-II felonies (most serious), B felonies, C felonies, D felonies, and E felonies (least serious).

Violations include disorderly conduct and simple harassment. Common examples of misdemeanors are petit larceny, simple assault, some driving while intoxicated offenses, and certain drug charges. Felonies include drug sales, assault involving serious physical injury, robbery and burglary, theft of a large amount of money or goods, and homicide charges.

A violation is punishable by up to 15 days in jail, whereas a misdemeanor is punishable by up to one year in jail and a felony is punishable by more than one year in prison. Being convicted of a misdemeanor or felony will result in a criminal record and can result in the loss of certain civil rights.

Note, however, that these are the maximum possible sentences – just because you are convicted doesn’t mean you will spend any time in jail or prison. Your lawyer may be able to negotiate a sentence of a Conditional Discharge or a term of probation, rather than any jail time.

Immediate Arrest or DAT?

For some violations and minor crimes, a police officer may issue you a desk appearance ticket or “DAT.” This means that you are being released, sometimes after posting a small amount of bail, and you are given a court date on which to appear for your arraignment.

If you are arrested and processed, you must get the opportunity to see a judge within 48 hours of your arrest. This can be stretched to 72 hours if you are arrested on a weekend. Most people who are arrested will be released if they are not arraigned within 24 hours. In New York City, there is a judge available from 9 a.m. to 1 a.m., seven days a week, to preside over arraignments. In local courts, often times there is not a judge immediately available. There is usually a judge “on call” for arraignments and other emergency legal applications, and they will be called in to preside over your arraignment.

It’s important to note that once you are arrested, in most cases you will have to appear in court several times before your case get resolved. Even if you are factually innocent of the crimes you’re charged with, your case may take several months or longer prior to it being resolved. Police can proceed with arresting you based on probable cause, a lower standard than which the prosecutor will have to prove at trial (beyond a reasonable doubt).

Justice Court, Criminal Court, or Supreme Court?

A local court or justice court is a broad term used to describe a court that is neither a district nor supreme court. For example, if you commit a crime in the Town of Eastchester, your case will be handled, at least initially, in the Eastchester Justice Court. A local court will include courts in villages, towns, and cities. In certain areas, such as Nassau County, there are district courts rather than justice courts. District courts handle cases from certain localities instead of each locality having its own smaller court. There are also criminal courts in larger cities, such as New York City.

In general, these local courts handle violation and misdemeanor cases; they don’t have jurisdiction to prosecute felonies. If a person has been charged with a felony, their case may be transferred to a superior or supreme court unless the charge is reduced to a misdemeanor or a violation.

A superior court includes supreme and county courts. Felonies are generally handled by supreme and county courts. A person who has been indicted or has been charged via a superior court information (“SCI”) will be prosecuted in either supreme or county court.

For appellate courts, there is the Appellate Terms, the Appellate Divisions, and the Court of Appeals. Misdemeanor appeals go to the Appellate Term or, in some areas, to the appropriate County Court. Felony appeals go to one of the state’s four Appellate Divisions, and thereafter some appeals go to the state’s highest court – the Court of Appeals.

SCI or Grand Jury?

If you are charged with a felony, you have the right to have your case heard by a grand jury, which will determine whether there is sufficient proof to hold you to the felony charge and have your case proceed in supreme court. A grand jury will issue an indictment if they find that the prosecution has proven there is probable cause that you committed the charged crime.

In theory, this is an opportunity to have a group of your peers closely review your case and throw out the charges if there is insufficient proof. However, as the expression goes, a grand jury will indict a ham sandwich. There are cases where the grand jury tosses the criminal charges, but those are a rarity.

It may be in your best interest to avoid a grand jury presentation and possible indictment. Once you are indicted, there are strict limitations on plea negotiations. Your attorney may be able to negotiate a plea to a felony prior to a grand jury reviewing your case. In order to take advantage of a plea deal prior to indictment, the prosecutor must file a superior court information or “SCI,” and the defendant must waive his or her right to have a grand jury consider the case.