Facing a Felony Charge in New York

   A felony charge in New York is a serious criminal charge when an accused faces potential punishment of over 1-year imprisonment.  A felony charge is more serious than a misdemeanor, which is a criminal charge when an accused faces potential punishment of imprisonment of up to 1 year. A felony charge in New York also carries potential collateral consequences in employment, immigration, professional licensing, housing, voting rights, and others.  In New York, all felony charges are divided into several classes: Class “A” through Class “E”, with class “A” felony being the most severe. Defendant’s sentence, if convicted, depends upon felony charge classification.

The maximum prison sentence for a Class “A” felony is life imprisonment.

“B” felony – maximum sentence is 25 years imprisonment.

“C” felony – maximum sentence is 15 years.

“D” felony  – up to 7 years in jail.

“E” felony – up to 4 years imprisonment.

Felony charges are further classified as violent and non-violent, drug-related, and not. Based on that classification and on the existence of the defendant’s prior felony conviction, the sentence may carry certain mandatory prison time.

What are the examples of various felony charges and how are they different from misdemeanors? Let’s analyze a charge of Assault in the 3rd degree (PL §120.00(1)) which is a misdemeanor. Its elements are: intent to cause physical injury to another person and causing physical injury to such person or a third person. If certain additional elements are added, such assault offense may be qualified as 2nd-degree assault, which will become a Class “D” felony charge. For example, if during the commission of 3rd-degree misdemeanor assault, the defendant used a dangerous instrument or injury caused to the victim is a serious one or the victim was a certain enumerated government official (e.g. police officer, prosecutor, MTA employee, etc. in the course of their official duties), then any of these additional elements will elevate misdemeanor assault in the 3rd degree into felony assault in the 2nd degree. The dangerous instrument mentioned above could be any object in the hands of the defendant that was used during an assault. So when a defendant while fighting with another person uses an item such as a bottle, knife, key, car, screwdriver, stick or any other item that can be considered a weapon during a fight, misdemeanor assault in the 3rd degree will be elevated into a felony assault charge and will become “D” felony assault, a conviction of which carries a longer prison sentence and harsher consequences. So, when a person is charged with a felony and therefore faces a harsher punishment, this person is entitled to an extra “check” if these felony charges were properly filed in the case.  A person who is charged with a felony has an absolute right to have his case presented to a grand jury by the prosecutor. For the prosecution to continue with a felony charge, a grand jury must vote a true bill (meaning it must approve by majority vote) on the felony charge and return an indictment (crime charging document).

A grand jury is meant to be a part of the system of checks and balances, preventing a case from going to trial on a prosecutor’s or police’s bare words. Both, New York State and Federal law require the grand jury presentment and indictment for the felony prosecution unless the defendant waives his grand jury right. Often and as part of plea bargaining, defendants may waive this constitutional right and agree to plead guilty in exchange for leniency from the prosecutor or the judge. In such cases, there will be no jury trial.

However, if the defendant does not waive it, the prosecutor must convince the grand jury, an impartial panel of ordinary citizens, that there exists a reasonable suspicion that a crime has been committed. The grand jury can compel witnesses to testify before them. Unlike the trial proceedings, the grand jury’s proceedings are secret; the defendant and his attorney are not present for witnesses’ testimony, except if the defendant testifies himself. A judge is not present either. The grand jury’s decision is either a “true bill” (meaning that felony charges are confirmed) or “no true bill”. Jurors typically are drawn from the same pool of citizens as a petit jury and participate for a specific period.

If the grand jury issues a true bill, the defendant is indicted, and the prosecution is continuing. If the grand jury issues no true bill, the case is over. There is an exception when a prosecutor can represent the case later under certain circumstances. It is also possible that the grand jury does not return an indictment on the felony charges, but returns an indictment on lesser-included misdemeanor charges. In our example of an assault, if a grand jury does not believe that an accused used a dangerous instrument or a weapon, a grand jury may indict this accused on misdemeanor charges only. If a felony indictment is returned by a grand jury, the case will proceed to Supreme Court. If only misdemeanor charges are confirmed by the grand jury, the case will be transferred to a lower court (New York City Criminal Court, Nassau or Suffolk County District courts, or City, Town, or Village Justice Courts).

The great dilemma that many defendants with a felony charge and their attorneys are facing is whether the defendant should testify before the grand jury. First of all, at the first Court appearance following an arrest on a felony complaint, the Defendant has the right to reserve his/her right to testify before the grand jury. To accomplish that reservation, a defense attorney must serve the prosecution with a grand jury cross-notice. After such notice is served, the prosecution is required to afford the defendant a chance to tell his/her story to the grand jury if and when the case is presented to one. It is done by sending a letter or otherwise communicating with the defense and notifying the defendant of the place, date, and time when he can testify before the grand jury.  We would like to reiterate, that the grand jury is a secret proceeding, and the defendant would not be able to listen to or read other witnesses’ testimony to the grand jury before his testimony.

In our practice, when we have a client with a felony charge, we always consider if the client’s potential testimony before the grand jury will be beneficial to the defense. If we think maybe it will, we then take another step towards making a final decision on that. Because everything that the client is telling to his attorney is covered by attorney/client privilege and also is confidential according to New York Rules of Professional Conduct, clients should tell the whole story to their lawyer so he can properly evaluate the case before making such a crucial decision as to whether the defendant should testify before the grand jury. If we think the client’s testimony may be beneficial, we then gather several criminal defense attorneys with many years of experience from our firm and we all sit for a mock grand jury presentation. One attorney is playing a role of a prosecutor and asks questions that the prosecutor most likely will ask our client in a grand jury room, trying to catch our client on a lie, or inconsistency, or to show that the client’s testimony is not credible. Other attorneys play the role of mock grand jurors hearing this testimony and deciding if the witness is credible. This way we try to evaluate whether the client’s story is credible and whether he is a good witness to testify in a grand jury. On one hand, if the defendant is sure that he did not do anything wrong and is willing to tell his story to the grand jury, it may be very advantageous to him, because the grand jury, if it believes the defendant, may just dismiss the case outright. If the grand jury does not believe the accused and indicts him, the prosecution will then know the defense in advance as the defendant may not contradict what he told in a grand jury room when the case goes to trial. So, testifying and being indicted will oblige the defendant with going forward with the same facts as he once told the grand jury and prosecution learned ahead of trial. On another hand, the defendant who is giving testimony to the grand jury is required to waive his 5th Amendment right not to incriminate himself, and he does not have immunity from the prosecution. Also, the testimony is given under oath, and if the defendant lies under oath, he exposes himself to prosecution for perjury. When the defendant testifies before the grand jury, he opens himself to cross-examination by the prosecutor, and there is nobody present to object to questions of the prosecutor. Usually, when the defendant is, in fact, guilty of at least something, it is very risky to testify before the grand jury, because the experienced prosecutor may elicit damaging admissions from the defendant on cross-examination and may use the defendant’s testimony to strengthen the case against the defendant and to obtain missing information necessary to convict later at trial. It takes a team of experienced criminal defense attorneys to evaluate the case with felony charges to properly advise the client whether he should give testimony to the grand jury or waive his right and let the prosecution present only their case.  It is important to understand that the grand jury does not decide the guilt or innocence of a person charged with a felony. The grand jury only indicts, i.e., confirms that the charge is proper. The guilt or innocence will be decided later on by a jury (except when the defendant admits guilt through plea bargaining and the trial does not take place).

The decision to testify before a grand jury is a very important one. If the grand jury believes the accused, it may dismiss the case completely. Therefore, we take an accused’s constitutional right very seriously. If we believe our client’s recitation of facts is credible, we will use all our expertise, former prosecutorial experience, many years of experience, and a team approach to maximize the decision-making process on whether the client should testify before the grand jury. If you need assistance with a criminal defense or a second opinion about your current matter, please contact our firm.