Blog

By Jill K. Sanders, Esq.

If you have been arrested in New York, you are at the beginning of what could be a long journey through the criminal justice system. Here, we discuss the steps that most criminal cases follow – from arrest until sentencing.

Arrest

An arrest occurs when a police officer has reasonable cause to believe a defendant has committed a felony, misdemeanor, or violation. In some misdemeanor and violation cases, the officer will issue a desk appearance ticket (“DAT”). The DAT will have a date on which the defendant needs to return to court. In felony and many misdemeanor cases, the defendant will be held in custody until he or she sees the judge for the arraignment. Usually, a defendant is held in jail less than 24 hours until he or she is arraigned.

Arraignment

The first court appearance is called an arraignment.  This is the formal reading of the charges against the defendant. The charging document is usually a felony complaint or a misdemeanor information. This document will be read by the judge in court, and the defendant will enter a plea. Usually, the plea entered by the defendant is “not guilty.” If the defendant is charged with a felony, a plea will not be entered until he or she has been indicted by a grand jury or if a superior court information (“SCI”) has been filed.

Another important part of an arraignment may be bail. In many minor cases, a defendant is “released on his own recognizance,” or “ROR’d.” This means he or she doesn’t have to post bail to remain at liberty. Sometimes, there will be arguments made by the prosecution and defense about whether bail should be set and in what amount.

Various other things may happen at the arraignment. For example, on a DWI case, the court will determine if the defendant’s license should be suspended. In many cases, the court may refer the defendant to TASC (Treatment Alternatives for Safer Communities) or some other form of treatment. This can be treatment for alcohol use, substance use, or anger management.

Felony Hearing or Grand Jury Action

If a defendant is charged with a felony and is in custody because he or she was remanded or is unable to post bail, the prosecution must present evidence to the grand jury no later than six days after the arrest. The prosecutor can also proceed with a felony hearing instead of presenting the case to the grand jury. At the felony hearing, a judge will determine whether there’s enough evidence to hold the defendant in jail while waiting for the grand jury to hear the case.

In some cases, the prosecution will begin presenting the case to a grand jury even before the defendant is arrested. This happens in cases when there is an active investigation is going on. After an indictment, the defendant will then be arrested and arraigned.

Motions, Discovery, and Investigation

A defense attorney will often file pre-trial motions in a criminal cases. These motions include requests to suppress certain evidence, such as a defendant’s statement to police, an identification made of the defendant in a line-up, or evidence found pursuant to a search warrant.

An attorney will also request disclosure of certain evidence. However, in New York pre-trial discovery is very limited in criminal cases. In some jurisdictions, the prosecution may allow the defense attorney to review their file through a process called “open file discovery.”

In some  cases, there may be a need for the defense team to do some pro-active investigation of their own. For example, if there is a dispute about the facts of what happened, hiring a private investigator to go out and interview witnesses may help.

Plea Bargaining

Most cases in the criminal justice system resolve through plea agreements, rather than trials. This is an agreement reached with the prosecutor, whereby the defendant pleads guilty to a charge, usually a lesser crime than the defendant was originally charged with. There will often be a recommendation by the prosecutor that the judge impose a particular sentence.

Hearings

Depending on the types of motions the defense attorney filed, hearings may be held prior to a trial. For example, if the attorney made a motion for a Huntley hearing, the judge would hold a hearing to determine whether the police officers acted properly when the defendant made a statement. The judge would also determine whether the statement was made voluntarily.

If the judge suppresses evidence, this means that the prosecutor will not be able to use this evidence against the defendant at trial. If key evidence has been suppressed, and a prosecutor has no additional evidence against a defendant, the criminal case may be dismissed at this stage. A prosecutor may also make a different plea offer to resolve the case before going to trial.

Trial

While trials get most of the coverage on television, in reality few cases proceed to trial. A defendant may be taking a big risk by deciding to take his or her case to trial in terms of the possible sentence he or she may be facing if found guilty. A defendant can be tried by a jury, or he or she can waive that right and have the judge act as the finder of fact.

In general, a trial is composed of seven stages: jury selection, opening statements, prosecution’s case, defense’s case, closing arguments, jury instructions, and verdict. A defendant does not have to put on any defense or cross-examine any witness. The burden is solely on the prosecution to prove beyond a reasonable doubt that the defendant committed the crime.

Sentencing

After a plea or guilty verdict, the case will proceed to sentencing. A judge is the one who ultimately pronounces the sentence and will only be guided by a recommendation by the prosecution. There are sentence ranges for all criminal offenses, with a maximum and a minimum sentence set by statute. Felonies are punishable by more than a year in prison, whereas misdemeanors are punishable by a year or less in jail. There are also non-jail sentences, including probation and conditional or un-conditional discharges.

Appeals

We recently published a blog discussing the basics of the appellate process in New York. To read more, follow this link: https://pappalardolaw.com/2018/10/basics-of-new-york-criminal-appeals/.

References:

• New York State Criminal Justice Handbook. Available at: https://www.nycbar.org/new-york-state-criminal-justice-handbook (last accessed December 12, 2018).