Order of Protection and its Violation
April 3, 2023
Forcible touching and other sex offenses
May 3, 2023
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arraignment    Arraignment is the initial Court appearance in a criminal court after the person is arrested. In New York State once the person gets arrested, he or she may be issued a Desk Appearance Ticket (“DAT”) after being fingerprinted and processed at the police station and directed to appear in Court at a later date. In case of more serious crimes or when the Order of protection may be required, the arrested person will be sent to Central Booking in the appropriate borough of New York City, or, if the arrest happened outside of NYC held in a police station until he or she can appear in Court before the Criminal Court Judge.

An arraignment hearing in New York is held 7 days a week. In New York City arraignments are held from 9.30 a.m. until 1 a.m. daily in order to ensure that the arrested person – the defendant – does not spend in custody more than 24 hours before he or she can face the Judge. Unless a private attorney is retained and appears at arraignment, a public defender will be present at arraignment for this initial Court appearance. At arraignment the defendant is officially charged with the crime or offense, his/her attorney is given the accusatory instrument, such as a criminal complaint or information or a felony complaint in case of a more serious charge, and she/he is entering a Not Guilty plea. After the plea is entered, the Court will address the issue of bail. Both the prosecutor and defense attorney will make their applications to Court regarding the release status of the defendant. The defense attorney will most likely argue in favor of releasing the defendant on their own recognizance (“ROR”). The prosecutor in case of certain offenses may ask the Judge to set the bail which can be cash or insurance bond. The prosecutor may also request a non-monetary release condition, such as wearing the electronic bracelet, surrendering of passport, and/or release to the probation department with regular monitoring during the pendency of the case.

It is very important for the defense attorney at arraignment to get all relevant information from the client to make the most convincing bail application. The main argument for release without bail is the likelihood that the defendant will return to court voluntarily. Ties to the local community, gainful employment, family with dependents, home ownership, length of residence and employment, prior contacts with the criminal justice system, prior history of failures to appear in court, if any, the gravity of the accusations and the strength of the prosecutor’s case are all valid factors for the bail application. If the bail is set, the defendant will remain in custody for the pendency of the criminal case until and unless the bail is posted by the defendant’s friends or family. Once the case is resolved, regardless of the outcome of the case the bail money will be returned to the person who posted such bail, provided, however, that defendant showed up in Court when directed.

In certain cases, the prosecutor may request and the Court may issue an Order of protection against the defendant and in favor of the complaining witness at arraignment. Such an order may be full stay-away or limited. It is important to make sure such an order is made subject to Family or Supreme Court orders of visitations if the defendant and complaining witness have minor children in common. It is also important to ask the Court to make an Order of protection subject to incidental contact in the vicinity of the complaining witness’ residence, school, or employment, as the case may be if there is a valid concern for the possible violation of an Order of protection. Finally, the defense attorney should make an application to Court to issue an access order in case the defendant needs to retrieve hers/his personal belongings from the residence that he may share with the complaining witness. Such an access order will allow the defendant to get her/his personal stuff that is not subject to dispute or litigation from the residence while being escorted by a local police officer.

Certain minor offenses and some misdemeanor cases may be resolved at arraignment. In case of such charges as petit larceny, aggravated unlicensed operation of a motor vehicle, aggravated operation of a motor vehicle with the suspended registration, disorderly conduct, and some others the prosecutor at arraignment may extend a plea offer to the defendant in exchange for the agreed-upon sentence. It is essential that the defense attorney clearly communicates such an offer, if any, to the defendant and advises the defendant accordingly. If the plea agreement is reached, the judge will usually approve it and resolve the case. If there is no disposition of the criminal charges at arraignment, the case will be adjourned to a later date.

In case of more serious charges called felony (a crime for which a jail sentence of over one year is provided by law), the defense attorney should serve a Grand Jury cross-notice of the defendant’s intention to testify before the Grand Jury. While there is no obligation for the Defendant to give testimony before the Grand Jury, this notice at arraignment reserves the defendant’s right to do so. A thorough evaluation of the pros and cons of such testimony should be done after arraignment. In case the charges are presented to Grand Jury by the prosecutor, District Attorney’s office will have to notify the defendant of such presentment and afford the defendant the opportunity to testify to the Grand Jury.

If you have any questions regarding arraignment, please contact our office.