The Criminal Process
This brief overview of the criminal procedure process is to help clients and their families begin to understand what to expect as their case goes through the legal system. It is always very important to know your rights in the event of a visit from law enforcement.
There are multiple strategies and tactics to be planned and executed at every step, which is why the outcome can vary dramatically depending on which lawyer you hire. At Nobles & DeCarolis, we conduct our own investigations in building the case and we take the time to walk each client through every step. We discuss all the options available, the strategy behind every action, and the anticipated results.
Arrests typically happen near the scene of the alleged crime or shortly thereafter. Sometimes arrests come later, after a phone call or a visit from a detective. In either situation, the person arrested should never speak to any police officer or detective. Even though they might say that cooperation will help make things go easier with the judge or the district attorney, or that things "just need to be cleared up," making any statement to, or in front of a police officer or detective can only be dangerous, even if you are totally innocent.
Any person under arrest should ask to speak with an attorney immediately, refuse to answer any questions, and refuse to sign anything.
After an arrest, the defendant will be fingerprinted, photographed, and checked for warrants. The district attorney or the officer may determine what charges to file. While being held, the defendant will be interviewed by a representative from Pre-Trial Services and asked questions about his/her address, the name and address of his/her employer, whether he/she is on parole or probation, and the name and telephone number of a person who can verify this information. Pre-Trial Services then makes a recommendation to the court at arraignment as to whether the defendant should be released or whether bail should be set.
An arraignment is when a defendant is brought before the court for the first time. He/she is advised of the charges against him/her and asked to plead "guilty" or "not guilty." Defendants are typically arraigned within 24 hours from the time of arrest. The most important decision the judge will make at arraignment is whether to set bail or to release the defendant without bail. The judge will consider the defendant's criminal history, the seriousness of the charges, the defendant's ties to the community, and any bench warrant history (a defendant's failure to return to court in a prior case) in making this decision. Ideally, the defendant should be represented by an attorney at arraignment or as soon as possible thereafter. When present at arraignment, an experienced defense attorney will argue to reduce, or possibly eliminate, bail.
In cases where harassment or physical violence is alleged, the court will usually issue an order of protection which restricts or prohibits contact between the defendant and the alleged victim. It is very important for defendants to obey the order of protection, otherwise additional charges, including felony criminal contempt, can be filed for violating the court order.
In New York, it is the judge who sets bail, not the police or the District Attorney. At the bail hearing (normally at the same time as arraignment) the issue of bail is argued; it is governed by Criminal Procedure Law Section 510.30. The judge must look at several factors regarding the defendant and the case. Those factors are:
- (i) the defendant's character, reputation, habits and mental condition;
- (ii) employment and financial resources;
- (iii) family ties and length of residency, if any, in the community;
- (iv) criminal record, if any;
- (v) any record of juvenile adjudications;
- (vi) previous ability to show up to court in prior cases;
- (vii) whether it is a domestic violence case (special rules apply);
- (viii) the strength of the case (or appeal); and
- (ix) the amount of jail time the person is facing if convicted.
At the bail hearing, it is common to hear both the prosecutor and the defense attorney make arguments with regard to these nine factors. After hearing the arguments, the judge determines the amount of bail that is required to ensure the defendant shows up to court. Then the defendant is incarcerated until someone posts bail. Once bail is posted, the defendant is let out. Once the case is over, the bail is exonerated (given back). However, if the defendant fails to show up to court, the bail is forfeited (taken by the court and never returned).
In really serious cases with the possibility of a life sentence (such as with a murder charge), a judge is likely to determine that no amount of bail can secure the defendant's presence. In this case, the defendant is "remanded." This means that the judge is ordering the defendant be held in custody until the case is over.
It is absolutely critical to be represented by an experienced criminal defense attorney if you or a loved one has an upcoming arraignment. It could make the difference between being in jail while the case plays out or being free and more able to help in your defense.
Under NY State Law, defendants and their attorneys are entitled to particular information and evidence related to their case. Discovery includes any statements made by the defendant, photographs or drawings, an inspection of property taken from the defendant, tapes which the prosecutor intends to introduce at trial, evidence linking someone else to the crime (Brady material), police complaint forms, the officer's memo book, witness statements and many other forms of police and district attorney paperwork. All of these are required to be turned over to the defense attorney prior to motions.
Pre-trial Motions & Hearings
Within 45 days of the arraignment, the defense attorney must file motions regarding any pre-trial issues including dismissal, suppression of statements or physical evidence, or any other matters that should be addressed by the court before trial. Statements may be suppressed if they were made while the defendant was in custody and interrogated without having been read his/her Miranda rights, or if he/she requested an attorney prior to making the statements. An identification can be suppressed if the identification procedure was unduly suggestive; an identification can include a line-up, show-up, or photo array. Physical evidence (guns, drugs, cash, blood, etc.) can be suppressed if the search and seizure of the items was improper. A motion may also be made to exclude mention of prior convictions or bad acts during the trial.
Procedure at trial consists of jury selection (6 jurors for a misdemeanor, 12 jurors for a felony), opening statements, the prosecution's presentation of evidence, the defense attorney's presentation of evidence, closing arguments, the jury charge, the jury's deliberations, and the verdict.
A trial is a complex and precise undertaking. If you decide to take your case to trial, you MUST have an experienced criminal trial attorney. You cannot afford any rookie mistakes at trial - it will likely cost you your freedom. You must have a trial attorney who has the ability to challenge the prosecution on their knowledge of the rules of evidence, on NYS Criminal Procedure, and ultimately require them to prove that you are guilty beyond a reasonable doubt.
While not an ideal situation, on several occasions either Mr. Nobles or Mr. DeCarolis have been hired only a few weeks prior to trial when clients were unsatisfied with their original attorney. Do not be hesitant about changing attorneys, a seasoned criminal trial attorney will have tremendous impact on the outcome of your case and your future.
Sentencing can be one of the most important parts of the criminal process, as it determines the actual penalty the defendant will receive. In some cases the sentence will be predetermined as part of a plea deal; otherwise sentencing is entirely up to the judge. In either case, New York State Law requires a pre-sentence investigation (“PSI”). A PSI is a report about the defendant describing their background, the circumstances surrounding the crime, and a recommended sentence. At sentencing an experienced defense attorney will work to show the defendant in the best possible light and persuade the judge to impose a lighter sentence. A good attorney should correct any mistakes in the PSI and may even do his/her own investigation in order to bring to attention any additional facts and circumstances that may favor the defendant.
Having an experienced criminal defense attorney at sentencing could mean the difference between jail, probation or community service, or in some cases county jail, as opposed to state prison; it can also influence the length of incarceration.
The New York criminal appeals process begins at the end of a trial, if a person is convicted. Generally, upon conviction, a person has the right to one appeal to a higher court (in most cases the Appellate Division, 4th Department). A person who loses this first appeal may request that the New York Court of Appeals (the highest appeals court in New York State) review the case. The Court of Appeals, however, is not required to hear the case. The appeals process requires specialized experience and skills. Although the attorneys at Nobles & DeCarolis rarely handle these cases, they can always refer you to their recommended lawyers who regularly handle appeals.
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