Facing a Felony Charge in New York: What You Need to Know

   A felony charge in New York is one of the most serious legal matters a person can face. Unlike a misdemeanor, which carries up to one year in jail, a felony exposes you to more than one year of imprisonment and a long list of collateral consequences that can follow you for the rest of your life — in employment, immigration, professional licensing, housing, voting rights, and more.

If you or a loved one has been arrested on a felony charge in New York, understanding how the system works — and what decisions lie ahead — is critical. This article explains how New York classifies felonies, how grand jury proceedings work, and the most consequential decision many defendants face early in their case: whether to testify before the grand jury.

Felony vs. Misdemeanor in New York: The Core Distinction

In New York, the line between a misdemeanor and a felony is drawn primarily by potential punishment:

• Misdemeanor — punishable by up to one year in jail
• Felony — punishable by more than one year of imprisonment, with sentences served in state prison rather than local jail

A felony conviction also brings serious collateral consequences that a misdemeanor often does not, including loss of certain civil rights, restrictions on professional licensure (medicine, law, real estate, finance, nursing), immigration consequences (including deportation for non-citizens), public housing eligibility, firearm rights, and difficulty securing employment or credit.

New York Felony Classifications and Maximum Sentences

Under New York Penal Law § 70.00, felonies are divided into five classes — from Class A (most serious) to Class E (least serious). Class A is further split into A-I and A-II categories for the most severe offenses such as murder and high-level drug crimes.

Felonies are further classified as violent or non-violent, and separately as drug-related or not. These distinctions matter enormously at sentencing. Violent felony offenses carry determinate (fixed) sentences with mandatory minimums under Penal Law § 70.02, while most non-violent felonies receive indeterminate sentences with a minimum and maximum range.

A defendant’s prior record also dramatically affects sentencing. A second felony offender faces higher mandatory minimums, and a persistent felony offender (two or more prior felony convictions) may be sentenced to life in prison even for what would otherwise be a lower-class felony.

How a Misdemeanor Becomes a Felony: An Assault Example

To understand how the felony/misdemeanor line works in practice, consider an assault charge.

Assault in the Third Degree (Penal Law § 120.00(1)) is a Class A misdemeanor. Its elements are: (1) intent to cause physical injury to another person, and (2) actually causing such injury.

If certain aggravating elements are added, the same conduct becomes Assault in the Second Degree (Penal Law § 120.05) — a Class D violent felony. Those elevating elements include:

• Use of a dangerous instrument during the assault
• Causing serious physical injury rather than ordinary physical injury
• The victim being a member of a specifically protected class (police officer, prosecutor, MTA employee, EMT, firefighter, school employee, and others enumerated in the statute) while performing official duties

The “dangerous instrument” element is broad. Almost any object used during a fight can qualify — a bottle, knife, key, car, screwdriver, or stick — depending on how it was used. That single element transforms a misdemeanor punishable by up to one year into a violent felony carrying up to seven years in state prison and a mandatory minimum prison sentence for first-time violent felony offenders.

This is why an early, careful legal analysis of the charges matters so much. The same underlying conduct can fall on very different sides of that line, and a skilled defense attorney will scrutinize whether the elevating elements are truly supported by the evidence.

The Right to a Grand Jury in New York

Because felony charges carry such serious consequences, the New York and federal constitutions give every felony defendant an absolute right to have the case presented to a grand jury. The grand jury exists as a check on prosecutorial power — a felony cannot proceed to trial in New York Supreme Court on a prosecutor’s word alone.

For the case to move forward as a felony, the grand jury must vote a “true bill” (a majority vote approving the charges) and return an indictment, the formal charging document. Both New York State and federal law require grand jury indictment for felony prosecution unless the defendant waives that right — often as part of a plea bargain in exchange for leniency.

What the Grand Jury Does (and Doesn’t Do)

A grand jury does not decide guilt or innocence. It decides only whether there is reasonable cause to believe a crime was committed and that the defendant committed it. The standard is far lower than proof beyond a reasonable doubt, which is why prosecutors win indictments in the overwhelming majority of grand jury presentations.

Key features of grand jury proceedings under CPL Article 190:

• Proceedings are secret — neither the defendant nor defense counsel may be present for other witnesses’ testimony
• No judge is present; the prosecutor instructs the grand jury on the law
• The grand jury can compel witnesses to testify
• The grand jury votes one of three ways: true bill (indictment), no true bill (case dismissed, with limited exceptions allowing resubmission), or indictment on lesser-included misdemeanor charges only

If the grand jury indicts on felony charges, the case proceeds to the New York State Supreme Court. If only misdemeanor charges survive, the case is transferred to a lower court — New York City Criminal Court, Nassau or Suffolk County District Court, or a City, Town, or Village Justice Court.

CPL 190.50: The Defendant’s Right to Testify Before the Grand Jury

Under CPL § 190.50(5), the defendant has the right to appear and testify before the grand jury — but only if defense counsel takes a critical step at arraignment. The attorney must serve a written notice on the prosecution, commonly called a “cross-grand jury notice” or “190.50 notice,” reserving the defendant’s right to testify.

Once that notice is served, the prosecutor is legally obligated to notify the defense of the date, time, and place of the grand jury presentation and to give the defendant a reasonable opportunity to testify before the grand jury votes. Failure to honor a properly served 190.50 notice can result in dismissal of the indictment.

Because of how high the stakes are, experienced defense attorneys serve cross-grand jury notice in nearly every felony case at arraignment — even when the ultimate decision about whether to actually testify will be made later.

Should the Defendant Testify Before the Grand Jury?

This is one of the most consequential — and difficult — decisions in any felony case. It must be made with the advice of experienced counsel, after a full and honest evaluation of the facts.

The Potential Benefits of Testifying

• If the grand jury believes the defendant, it may decline to indict and the case ends
• A credible defendant who can explain a legitimate defense (self-defense, mistaken identity, lack of intent) can sometimes neutralize the prosecution’s case before it ever reaches trial
• A “no true bill” is one of the cleanest possible outcomes — no trial, no record of conviction

The Serious Risks

• The defendant must waive Fifth Amendment immunity to testify
• Testimony is given under oath — lying exposes the defendant to perjury charges
• The defendant faces cross-examination by the prosecutor with no judge present to rule on objections, and no defense attorney permitted to advocate inside the grand jury room
• If the grand jury indicts anyway, the prosecution now has the defense theory locked in before trial, along with sworn statements that can be used to impeach the defendant at trial
• An experienced prosecutor may extract damaging admissions that strengthen the case

How Our Firm Approaches the Decision

Because everything a client tells their attorney is protected by attorney-client privilege and the New York Rules of Professional Conduct, clients should be completely honest with counsel so the case can be properly evaluated.

When we believe a client’s grand jury testimony may genuinely help, we don’t make the decision in a vacuum. We assemble a team of experienced criminal defense attorneys from our firm and conduct a mock grand jury presentation. One attorney plays the role of the prosecutor and cross-examines the client aggressively — testing for inconsistencies, exploring weak points, and looking for the kind of pressure the real prosecutor will apply. Other attorneys play the role of grand jurors and evaluate the client’s credibility.

Only after that exercise — and only if the team concludes the client will be a credible, effective witness — do we recommend testifying. When a defendant is in fact guilty of even part of what is alleged, testifying is almost always a serious mistake, because skilled prosecutors will use the cross-examination to fill evidentiary gaps and build a stronger case for trial.

What Happens After Indictment

If the grand jury returns a true bill, the case proceeds through the Supreme Court system: arraignment on the indictment, motion practice, discovery, hearings on suppression and other pretrial issues, plea negotiations, and — if no plea agreement is reached — trial.

If the grand jury returns no true bill, the case is dismissed (though under limited circumstances the prosecution may resubmit). If the grand jury indicts only on lesser misdemeanor charges, the case is transferred to a lower court.

Why Experienced Felony Defense Counsel Matters

A felony case can move quickly in the days after arraignment. The decision to serve cross-grand jury notice, the decision to testify, the analysis of whether the felony elements are even properly charged, the negotiation of pre-indictment plea offers — all of this happens in a compressed window where mistakes can be irreversible.

A team of experienced New York criminal defense attorneys can:

• Analyze the charges to determine whether felony elements are truly supported by the evidence
• Serve timely CPL 190.50 notice preserving the defendant’s grand jury rights
• Conduct mock grand jury preparation if testimony is strategically advisable
• Negotiate pre-indictment plea offers that may reduce felony exposure to a misdemeanor
• Challenge the legality of the arrest, the search, and any statements through pretrial motion practice
• Investigate the case independently to develop defense witnesses and evidence

Frequently Asked Questions

What is the difference between a felony and a misdemeanor in New York?

A misdemeanor in New York is punishable by up to one year in jail; a felony is punishable by more than one year of imprisonment in state prison and carries far more serious collateral consequences, including potential loss of voting rights, firearm rights, immigration status, and professional licenses.

Do all felony cases in New York have to go to a grand jury?

Yes — under both the New York and federal constitutions, a felony cannot proceed to trial without grand jury indictment, unless the defendant waives that right (typically as part of a plea agreement).

What does it mean when a grand jury returns “no true bill”?

It means the grand jury did not find reasonable cause to believe the defendant committed the charged felony, and the case is dismissed. In limited circumstances, the prosecutor may seek to resubmit the case to another grand jury.

Should I testify before the grand jury if I’m innocent?

Maybe — but only after careful evaluation with experienced counsel. Even innocent defendants face risks: aggressive cross-examination by the prosecutor with no judge present, waiver of Fifth Amendment immunity, and the possibility that an indictment will lock in your defense theory before trial. Never make this decision without a thorough strategy session with your attorney.

What is a CPL 190.50 notice?

It is the written notice that defense counsel serves on the prosecution at arraignment (or as soon as possible after) to reserve the defendant’s right to testify before the grand jury. Failure to serve it can forfeit the defendant’s right to testify; failure of the prosecution to honor it can result in dismissal of any resulting indictment.

Can a felony charge be reduced to a misdemeanor?

Yes — through pre-indictment plea negotiations, through a grand jury that indicts only on lesser-included misdemeanor charges, or through post-indictment plea bargaining. Skilled defense counsel can often identify weaknesses in the felony elements that create leverage for reduction.

Contact a New York Felony Defense Attorney

If you or a loved one is facing a felony charge in New York, the decisions made in the first days and weeks after arrest can shape the entire case. Our firm has decades of combined experience defending felony cases throughout New York City and Long Island, including grand jury practice, pretrial motion litigation, and trial defense.

For a confidential consultation — or for a second opinion on a current matter — call our firm at 516-505-2300 or 718-368-2800 or contact us online. We represent clients facing felony charges in Brooklyn, Queens, Manhattan, Staten Island,  Nassau and Suffolk Counties, and throughout the New York metropolitan area.

This article is for general informational purposes only and does not constitute legal advice. Every case is different, and you should consult a qualified New York criminal defense attorney about the specific facts of your situation.