When the person gets arrested for the first time, he or she will be most likely terrified and shocked and will have tons of questions regarding the process and its outcome. Often, family and friends get involved in looking for the criminal defense attorney and they as well will have numerous questions regarding the reason for arrest, the rules of arraignment and bail, the adjournments of Court appearances, and, most importantly, the likely outcome of the proceeding. This blog article is written to help clients understand the process of the criminal case – from arrest to the final disposition of the matter. There are generally three scenarios of how the person gets arrested. In a great majority of cases, an arrest is done without a warrant, based on a probable cause. Probable cause means that a police officer or a detective has reason to believe that the crime has been committed and that the defendant is the person who committed that crime. That can be on police officer’s observation, for example during a traffic stop, when the driver appears to be intoxicated or drugs are found in a plain view. Or it could be based on the information from a witness to the crime or a victim of the crime, sometimes referred to as a complaining witness.
If the defendant is present at the scene, and a police officer has probable cause to arrest, that can be legally done in New York in a public place without an arrest warrant. Another scenario is when the officer has probable cause based on the information from the complaining witness or an eye witness, but the defendant is not present at the scene. In this case, a police officer or a detective will attempt to contact the defendant, over the phone, or at his or her house, and request the defendant to appear in the local police precinct. Police usually will not stress that they are looking to arrest, but rather would say that the defendant needs to show up at the precinct to answer questions or to discuss the situation. When asked directly by the defendant or his or her attorney, police would confirm that the decision to arrest has been made. We advise every person when contacted by law enforcement, not to make any statement, to take officer’s or detective’s name, phone number and the name of the agency they are employed by, and contact experienced criminal defense attorney to discuss the case and arrange for the voluntary surrender if necessary.
The third scenario is rather rare and relates to some serious investigations by police and District Attorney’s office, involving felony charges and Grand Jury presentment. It is often the case with so-called white-collar crimes, related to various frauds. Under that scenario, police and other law enforcement agencies conduct their investigation and work closely with the District Attorney’s office, whose role is to prosecute criminal cases in Court. Prosecutor presents their witnesses to the Grand Jury, which determines if there is enough reason to continue felony prosecution. Felony is a crime for which more than one-year imprisonment is a potential sentence. If Grand Jury votes by the majority of Jurors to indict the defendant, the Judge will issue an arrest warrant. Alternatively, the arrest warrant may be issued by the Judge based on the felony complaint and sworn testimony of the police officer or other law-enforcement agent. Once the police have an arrest warrant, they can arrest the defendant anywhere, including in his residence, and may forcibly enter the residence of the defendant if needed.
There are generally two types of arrests. In one case, when charged with low-level misdemeanor or violation, and not domestic violence crime, the officer has the discretion to issue Desk Appearance Ticket (“DAT”) upon the booking of the defendant in the local precinct. DAT directs the defendant to appear in the local Criminal Court on a particular date. Sometimes, fingerprinting is not done initially, and the defendant is directed to go to the police to get fingerprinted before his DAT date. (This is usually the practice on Long Island, but not in New York City). Another type of arrest requires holding the defendant until he or she sees the Judge.
Once the person is arrested in New York, and DAT is not issued, he or she will see the Judge for the initial Court appearance, called an arraignment, usually within 24 hours. The purpose of the arraignment is to formally charge the defendant with the particular crimes or violations, to address the issue of bail, to issue Temporary Order of Protection, if needed, and to adjourn the case for further proceedings. In some instances of low-level misdemeanors, traffic infractions or violations, it is possible to resolve the case right there at arraignment. The Defendant must understand the terms of the plea offer and all of the consequences of such a plea. This is why we strongly recommend that the family and friends of the arrested individual retain an experienced criminal defense attorney immediately upon the arrest of their loved one, so the rights of the defendant are adequately protected. If the case is not resolved at arraignment, it will be adjourned for a later date. The defendant will be either released on his own recognizance (in a great majority of cases), remanded without bail (in case of particular serious charges), or the bail may be set. If the defendant posts the bail, he or she remains at liberty pending the disposition of the case. If the bail is set but not posted, the defendant will be held in custody for the duration of the criminal prosecution. In this case, the defendant will be earning jail credit for every day spent in custody. This credit will be applied to any sentence of incarceration. If the defendant is charged with a felony, the prosecutor will serve Grand Jury notice. It is a common practice for the defense attorneys to serve Grand Jury cross-notice on the prosecutor, thus reserving the right of the Defendant to testify before Grand Jury, if the case is presented to the Grand Jury. Under this scenario, the prosecutor will send a notification to the defense attorney indicating that the case was presented and giving the defendant a chance to testify before the Grand Jury on a particular date and time. Based on the individual circumstances of the case and the defendant, the decision will be made whether the defendant testifies before the Grand Jury or not. Such testimony is given under oath and can be used against the Defendant later on if the case proceeds to trial. A defendant who testifies before the Grand Jury waives his 5th amendment right against self-incrimination. In very rare cases Grand Jury may dismiss the charges against the defendant upon all witnesses’ testimony. Under limited circumstances, the prosecutor can represent the case again. Under the speedy trial provisions of New York State Criminal Procedure Law (“CPL”), the prosecution has 6 months, with certain tolling provisions, to present the case to Grand Jury and obtain the indictment for felony charges. If this is not done, the case may get dismissed. If the defendant is charged with a misdemeanor or violation, the prosecution must convert the complaint into information by obtaining a supporting deposition from the complaining witness. Supporting deposition is a document signed by the witness under oath and stating that all information provided by this witness to the police is true. In case of a class A misdemeanor, the prosecution has 3 months, with certain tolling provisions, to obtain such supporting deposition. Lesser periods apply to lesser charges, such as Class B misdemeanor, violations, and traffic infractions. If the complaint is not converted within the prescribed period, the case may get dismissed.
The next step in a criminal prosecution is discovery. Due to recent changes in CPL, prosecutors are now under greater pressure to provide timely discovery to the defendant, since the speedy trial time is running from the date of the arrest until the prosecutor is filing a Certificate of Compliance with discovery obligations. Discovery is a general term encompassing all potential evidence that the prosecutor intends to introduce at trial. It may include, police reports, affidavits, witnesses’ and defendant’s statements, pictures, 911 call recordings, audio and video recordings relevant to the incident, medical records, etc. Due to the recent changes in police body camera regulations, video recordings from police body cameras became an essential part of the discovery. Sometimes it takes several months to obtain complete discovery. We have to mention that while the criminal case goes through the above-referenced steps, plea bargain negotiations may start between the defense and the prosecution. Usually, it is done either in Court on the appearance day, or between the Court dates over the phone or by email. Either prosecution or defense will reach out to the other party and discuss the case. Prosecutors may extend a plea offer, and the defense attorney must convey such an offer to his or her client, along with the recommendation whether to accept it. Usually, as in any bargaining, the first plea offer is not the best one. To have a substantive plea negotiation, the defense attorney needs to get as much information about the case and his or her client as possible. Any relevant information about the personal characteristics and history of the defendant may be useful in such negotiation. For example, employment, professional licensing, immigration status, family status, age, and health of the defendant may be legitimate factors in plea bargaining. The purpose of plea bargaining is to reduce the charges and agree upon the sentence that is acceptable to both parties. This is done to avoid the uncertainties of a jury trial and to expedite the resolution of the case.
While the ethical obligation of any defense attorney is zealous advocacy for his client, it is also important to manage reasonable expectations for the client, based on the charges, the strength of the prosecution case, prior criminal history of the defendant, and relevant guidelines and policies of the particular District Attorney’s office. Whenever the parties reach a plea agreement, it must be presented to the Court for approval. New York City judges will usually approve any plea bargain agreement. Judges outside of NYC, e.g. in Nassau or Suffolk county, may take a more proactive approach and request more stringent conditions for the plea, even though District Attorney’s office is offering a better deal. Once the Judge approves the plea agreement, the disposition may be taken. The Court will ask the defendant a series of questions tending to establish that the plea is taken knowingly, intelligently, and voluntarily. The Court may further ask the defendant questions to establish that he or she committed the offense they are pleading to. The Court is also required to put on the record that if the defendant is not a Citizen of the United States, any plea may have negative immigration consequences. The Court will ask the defendant whether he or she discussed the immigration consequences with their attorney and whether they still want to plead guilty. Once the defendant pleads guilty in satisfaction of all charges, the last step of the process is sentencing. In a misdemeanor case that does not involve probation or jail, the Court usually will waive the Presentence Investigation Report (“PSR”) that is done by the Probation office and may proceed to sentence immediately upon entry of the plea. If probation or jail is involved, the Court usually will order PSR and adjourn the matter for sentencing. In New York State criminal court system, the plea bargain predetermines the agreed-upon sentence, however, there are certain conditions, if the sentence does not immediately follow the plea. The Judge will instruct the defendant that he must lead a law-abiding life, avoid new arrests, cooperate with probation, and appear in person for sentencing. If the defendant follows all of these conditions, the Court will honor its sentencing commitment. However, if the defendant gets rearrested or misses the next court date, the Judge may withdraw its sentencing commitment and sentence the defendant to anything that is allowed by law. The defendant will not be allowed to withdraw his or her plea in this case.
Let’s step back now to the progression of the criminal case if there is no plea agreement. Upon service of all of the discoverable materials, the defense may file various motions with the Court. A motion is a written demand addressed to the Court for a particular relief based on some legal authorities and the facts of the case. The motion is filed with the Court and served on the opposing counsel (prosecutor). Among most common defense motions, are motion to dismiss based on facial insufficiency, motion to dismiss for a speedy trial violation, motion to suppress of precluding defendant’s statement, physical evidence, results of police-arranged identification procedure, etc. It is rare when the case gets outright dismissal based on the motion, but it is possible. It is also possible, that while the Court denies the dismissal, it may order appropriate hearings, usually regarding the admissibility of certain evidence, such as the defendant’s statement, physical evidence, and results of the police-arranged identification procedure. Conduct of such hearings is the next step in the progression of the criminal case. Once all decisions on motions are issued by the Court and all hearings and Orders on hearing are done, and in case there is still no agreement on how to resolve the case, it will proceed to a jury or bench (without jury) trial. It is an inalienable constitutional right for every person, regardless of his or her immigration status, to be tried by jury for any criminal case. There is an exception for Class B misdemeanors in NYC, that can be tried by the Judge alone (bench trial). It is also the defendant’s right to waive the trial by jury and, with the Judge’s permission, select trial by the Judge. This is done rarely, usually either with the very technical cases or with extremely horrible allegations that may emotionally sway ordinary citizens serving as jurors.
Finally, we would like to mention that both arrest and conviction carry negative collateral consequences in employment, professional licensing, and immigration field, among others. For example, we have numerous clients who work as a Home Health Aide (“HHA”) suspended from work based on the arrest alone. The same is true for taxi drivers who carry TLC licenses. Any immigration application will have to wait until the resolution of the criminal case. In the case of DWI and some other charges, the defendant’s driver’s license gets suspended. The same is true for CDL for truck drivers. Certain charges, especially domestic violence, carry mandatory Order of Protection. Dependent on the disposition of the case, there may be final Order of Protection for a specific period of time, excluding the defendant from the home of the complaining witness, even though the defendant may be the owner of that home. While even arrest carries collateral consequences, a criminal conviction may have devastating effects on the defendant, the most obvious for the non-citizen being deportation. For others, criminal conviction, especially the one for a felony, may bring permanent disqualification from certain employment and serious enhancement of sentence and charges in case of new arrest in the future. This is why it is extremely important to clearly understand the plea agreement and its potential consequences before pleading guilty. It is very hard to withdraw or vacate the plea and sentence once the case is over.