ARREST AND CRIMINAL PROCEDURE IN NEW YORK

What happens if you are arrested in New York – the Step-by-Step Guide.

ARREST

The police may arrest a person in New York if the police officer has "probable cause" to believe that the person committed a crime or violation. Once the arrest is completed, the police officer submits a Complaint in the appropriate county's criminal court. In New York City , each county (New York/Manhattan, Brooklyn, Queens, Bronx and Staten Island ) has its own criminal court and they are sub-divided according to the crimes the accused is charged with. Sometimes, only a desk appearance ticket is issued when the crime charged with is minor.

Upon arrest, the accused person must be read their Miranda Rights or Miranda Warnings. Both adults and minors are entitled to the full reading of these warnings. The police are required to inform you of the following:

•  Right to remain silent

•  The fact that anything you say will or can be used against you in court.

•  Right to have an attorney present during questioning and the fact that if you're unable to afford an attorney one will be provided for you. The arresting agents must also make sure that you understand these rights.

It is the responsibility of the police to make sure the person understands their rights. They must also provide a translator for those that do not understand English, and must make available interpreters for those who are hard of hearing or have limited mental capacity.

Do not make any statements to the police without an attorney, whether to admit or deny guilt or to make any clarifications or explanations. Simply put, do not say anything other than your name, your information, your address. Under New York case law, the police officers may make statements to you to induce your confession or admission of guilt even if such statements are not true. The police may falsely promise you reduced sentences or dismissal of your case, but you cannot trust these statements and you must in all cases wait for your lawyer before making any statements to the police.

Even if the police question you as a “Witness” in a case, you are strongly advised to have an attorney present with you to avoid any problems or improper questioning that may end up implicating you in any way.

BOOKING AFTER ARREST.

After the arrest, and before appearing in front of a criminal judge, the accused are held in the precinct and then transferred to the Central Booking station for fingerprints, photographing, identification and registration “in the system.”

Often, a knowledgeable attorney may expedite your matter by speaking to the police at the precinct or the prosecutor in court even before your court appearance and establishing a report with them. While the accused is held in Central Booking, a fingerprint report (rap sheet) is prepared which shows your criminal history, if you have one.

Afterwards, you will be interviewed both by the prosecutor in order for them to draft a charging document against you and by a representative of the Criminal Justice Agency (C.J.A.). The reason for this interview and its findings is to assist the judge in deciding whether to: 1) set bail, 2) release you from jail without bail (released on your own recognizance, or R.O.R.'d), or 3) hold you in jail without bail (remanded).

Please remember that the accused statements in any of these pre-court interviews may be used against them in later court proceedings, so do not describe anything related to the incident for which you are charged to the interviewer. Just answer basic questions about your job, education, home, and family.

If bail is set, it may be paid at any courthouse during business hours and at the jail where you are being held at any time.

CRIMINAL COURT ARRAIGNMENT

Once the accused is booked, he or she is soon brought to the Criminal Court for arraignment, where the defendant is read officially what charges have been brought against him or her. There is a day arraignment court from 9:00 a.m. to 5:00 p.m., and an evening arraignment court from 5:00 p.m. to 1:00 a.m., in each borough. In Manhattan ( New York County ) there is also a "lobster shift" arraignment court, which is open on Thursday, Friday, and Saturday from 1:00 a.m. to 9:00 a.m.

It is best to have a private attorney at the arraignment, although if you cannot afford one or have not had a chance to retain a private attorney this early in the process, a Public Defender attorney will be provided for you. In New York , public defenders are either lawyers from The Legal Aid Society, the Assigned Counsel Plan for the City of New York , or another free attorney organization.

At the arraignment, the Assistant District Attorney (prosecutor) assigned to your case will usually ask the judge to keep you in jail (remand) or order bail. Your criminal defense lawyer should argue on your behalf against the prosecutor's arguments and ask if you can be released on your own recognizance (R.O.R'd), or with minimal bail where appropriate. The judge will then decide your bail conditions, if any. Your bail conditions may change in the future if circumstances change.

Once you are released, you must appear in court every time your case is scheduled to be on the calendar. At each court appearance, you will be informed of your next court date. Your criminal defense attorney should inform you if the date is changed. However, it is your responsibility to know when and where to appear.

Defendants should arrive to the room where their case is to be heard in all circumstances at least 15 minutes before the time set for their appearance and wait for their attorney. Failure to appear at a criminal court appearance will result in the issuance of an arrest warrant and if bail was posted for you the bail will not be returned. Failure to appear also negatively impacts the subsequent history of the case.

POST-ARRAIGNMENT PROCEDURE.

FELONY PROCEDURE. If you are charged with a felony and have already been arraigned in Criminal Court, your case will be sent to a court part where felony cases await the action of the grand jury. In rare instances, a preliminary hearing upon the felony complaint may be held to determine whether the prosecutor has enough evidence to hold you in jail while waiting for the grand jury to hear your case.

FELONY PROCEDURE WHERE THE DEFENDANT IS JAILED. If you are charged with a felony and are in jail because you were remanded or are unable to post bail, the prosecutor must present evidence in your case to the grand jury no later than 144 hours (six days) after your arrest unless your criminal defense attorney is willing to waive this requirement. If the prosecutor does not present the evidence to the grand jury within this time, you will be released from jail on your own recognizance (R.O.R.) unless the prosecutor can show a judge why the case could not be presented sooner to the grand jury. If you are released from jail, this does not mean that your case has been dismissed and you must make sure to be in court for any date set by the judge.

MISDEMEANOR PROCEDURE. If you are charged with a misdemeanor and cannot post bail, you will remain in jail for approximately five days. If the prosecutor fails to provide the court with certain legal documents in support of the misdemeanor complaint that was filed by the police officer who arrested you, a judge will release you on your own recognizance (R.O.R.). Again, this does not mean that your case is dismissed and you must make sure to be in court for any date set by the judge.

FELONY CASES GRAND JURY PROCEEDINGS

Grand jury proceedings are secret and are closed to the public. The grand jury is comprised of 16 to 23 people who listen to the evidence and decide whether there is enough evidence to put the defendant on trial for a felony.

If the grand jury finds that there is enough evidence that you committed a crime, it will file an indictment. If the grand jury finds that there is not enough evidence that you committed a crime, you will be released from jail. If you give up your right to have your case presented to the grand jury, the prosecutor will file a Superior Court Information (S.C.I.).

The defendant may testify before the grand jury in his own defense and may be accompanied there by their criminal defense attorney. The prosecutor may cross-examine the defendant during such testimony. It is a strategic decision whether the defendant should testify or not, to be decided between the accused and his lawyer.

Procedurally, the prosecutor is not required to prove guilt beyond a reasonable doubt at a Grand Jury hearing. The Prosecutor is only required to convince the Grand Jurors that it is possible that the defendant might have committed a crime. State's witnesses may not be cross-examined by the defense lawyer.

There is no judge directly involved to make rulings of law.

After the Grand Jury hearing, if the indictment is issued, the case will be on track to a trial.

Both the state prosecutor and the defendant's criminal defense attorney may help your case by making pre-trial motions in connection with the evidence to be presented at trial. After the motion stage is completed, there may be some pre-trial hearings in your case.

TRIAL

Once any pre-trial hearings are finished and the defendant has not plead guilty, the case will go to a jury part for trial, where a judge or a jury will decide whether or not the prosecutor has proven your guilt beyond a reasonable doubt. You may waive a jury and be tried before the judge. You may not, however, waive a jury if you are charged with murder in the first degree.

Trials are held in a public courtrooms, open to the public. You have an absolute right to attend the trial. However, if you are disruptive, you may be forced to leave the courtroom when the jury is present.

A jury trial begins with the selection of a jury from members of the county in which you are tried. If you are charged with a felony, 12 jurors and at least 2 alternates are chosen. If you are charged with a class A misdemeanor, six jurors and two or more alternate jurors are chosen. Class B misdemeanors and violations are tried before a judge.

Once the required number of jurors has been approved by both sides, the jurors are sworn and seated in the jury box. The judge then explains the trial procedure, the basic principles of law, and the jurors' duties.

To obtain a guilty verdict during the trial, the prosecutor must convince the jury that the case has been proven beyond a reasonable doubt.

The prosecutor makes the opening statement first. In the opening statement, the prosecutor tells the jury how he or she expects to prove that the defendant has committed the crime. The criminal defense lawyer may also make an opening statement to the jury, but is not required to do so. It is rare for a criminal attorney to waive opening statement.

Evidence consists of documents, physical objects and the testimony of witnesses under sworn oath and exhibits.

The prosecutor is the first to call witnesses. This is called the prosecutor's direct examination. Your criminal defense lawyer then questions the prosecutor's witnesses, which is called cross-examination. The prosecutor may then re-direct his or her witnesses after the cross-examination.

After the prosecutor concludes his or her case, your criminal defense lawyer may ask the judge to dismiss the matter because the case presented against you by the prosecutor is insufficient even in the absence of anything presented by the defense.

If the judge will not dismiss your case, the criminal defense attorney may present your case by calling witnesses or introducing evidence in your favor. The prosecutor may then cross-examination defense witnesses and the criminal lawyer may then re-direct defense witnesses after the cross-examination.

Both parties may ask to have physical evidence introduced (exhibits), as part of their case.

After the closing arguments, the judge will explain the law to the jury as it applies to your case. This is known as jury charge or jury instructions. The jury will then go to a closed room to deliberate.

If the jury decides that the evidence presented does not prove beyond a reasonable doubt that you are guilty, the verdict must be not guilty.

If the jury decides that the evidence presented did prove beyond a reasonable doubt that you are guilty, the verdict will be guilty. If you are charged with more than one crime, the jury may find you guilty of all of them, not guilty of all of them, or guilty of some and not guilty of the rest.

The verdict of the jury must be unanimous - all of the jurors must agree. Sometimes, after deliberations, the jurors report that they cannot agree on a verdict. This is called a hung jury. If that happens, the judge declares a mistrial and the prosecutor will then decide whether or not to seek another trial of your case.

If you are found not guilty of any of the crimes charged, you have been acquitted of those charges and can never be tried again in State court for those same charges. If you are in jail and are acquitted of all the charges, you will be immediately released from jail. If you are found guilty, you have been convicted and must be sentenced. Your case will then be adjourned for sentencing.

POST-TRIAL MOTIONS

Prior to sentencing, you may make a motion to set aside the verdict. If the judge grants the motion, the judge may then set aside the verdict or modify it. If the judge sets aside the verdict, you will be entitled to a dismissal, a reduction of the charges, or a new trial. These motions are rarely granted.

SENTENCING

If a defendant is convicted, whether through a guilty verdict in a trial or through a plea agreement, the sentencing is set by a judge. Both sides have the opportunity to present arguments before the judge for the length of the proposed sentence.

The sentence received will depend on a variety of factors, including defendant's background, the circumstances of the crime, and the attitude of the victim. The types of sentences include jail or prison terms, probation, conditional discharge, unconditional discharge, restitution and fines. If convicted of certain sex offenses, defendant may have to register with a local law enforcement agency.

With a probation sentence, the defendant is released from jail and supervised by the Department of Probation until probation has been completed.

If you are sentenced to an unconditional discharge, you will be released without any conditions. Fines and orders to pay restitution can be imposed either alone or with another sentence. In addition, you will be required to pay a surcharge and a crime victim's assistance fee.

If the defendant is was 13 to 15 years old when s/he committed the felony offense, he or she may be sentenced as a juvenile offender (J.O.). If the defendant was 13-18 years old at the time of the felony offense, s/he may also be entitled to be treated as a youthful offender (Y.O.).