Former Manhattan prosecutors
specializing in criminal defense and
civil rights in state and federal courts.

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Arrest to Sentencing

The New York state criminal justice process can at times seem overwhelmingly complicated. This is especially so for those people who have been arrested for the first time and are being suddenly introduced to the stresses of the system. While this guide has been designed to provide some useful information and insight into the New York criminal justice process, it is not an exhaustive list of everything that can happen to a defendant between arrest and final disposition, nor is it a substitute for the specific advice of an experienced criminal defense attorney.

Arrest Processing

Normally, when an individual is arrested by New York police, he is immediately told his Miranda rights by the arresting officer. Those Miranda rights include the right to remain silent, the right to an attorney, and other associated rights. (A failure to recite those rights to the arrested person could later result in sanctions against the government.) Then, typically, the arrested person is brought to the nearest police precinct station for arrest processing. During the processing phase, the arrestee is asked questions about his pedigree, meaning his name, his age, his date of birth, his address, etc. The arrest processing also involves the taking of the person’s fingerprints at the station. Those fingerprints are sent to a national database of fingerprint-based criminal records to determine whether the arrestee has ever been arrested or convicted of a crime in the United States. (Sometimes, a defendant will lie about his/her name to his arresting officers in the hopes that his/her criminal record will not be discovered, but this never works - and, in fact, only harms the credibility of the defendant - because criminal records are based on fingerprints, not names.) Finally, any illegal contraband (such as weapons or drugs) in the arrestee’s possession will be “vouchered “– or seized by the police and sealed in a secure police envelope – as evidence of a crime. Also, an arrested person is entitled to a telephone call from the police precinct; obviously, this call is best used to contact an attorney or a family member.

Following this initial arrest processing, a detective or other experienced police officer will usually attempt to interview or interrogate the arrestee. If however, a defendant chooses to speak to the police, the interviewer will question the defendant and then normally ask him to write down his statement by hand on a piece of paper. The defendant may then be brought to the District Attorney’s Office for continued questioning by an Assistant District Attorney. This second interview by an Assistant District Attorney is more common in serious felony cases or cases involving domestic violence.

Following this step in the process, the defendant will be taken to a holding cell near or adjoining the county’s arraignment courtroom. Also, at the time that the arrested person is delivered to the custody of the court system, the arrested person’s personal property is taken by the authorities and kept for safekeeping.

In some cases, officers will choose to issue a Desk Appearance Ticket, or DAT, instead of making a common arrest. In these cases, the defendant will be interviewed, fingerprinted, and released and then told to appear in criminal court at a later date. Essentially, this process requires the prosecutor to conduct some investigation before deciding whether or not to prosecute the arrested person.

Arraignment

As the defendant awaits his arraignment, the police and Assistant District Attorney will discuss the details of the arrest. The Assistant District Attorney, sometimes stationed in an office referred to as ECAB – the Early Case Assessment Bureau – then decides on whether to prosecute the individual and, if so, what criminal charges to bring. Then, the prosecutor drafts a “complaint,” a document that briefly describes the facts of the case in such a way as to make out the criminal charges listed on the document. The document is then typically signed by a police officer under penalty of perjury and filed with the arraignment court. The case will then be assigned a docket number that will follow the case throughout its life. An example of a docket number would be 2009NY012345, containing the year of the arrest, an abbreviation of the county of arrest, followed by a six-digit identifying number.

A defendant is often forced to wait as long as 24 hours for his arraignment, or his first appearance before a criminal court judge. During that waiting period, he may have an opportunity to speak to his attorney in private. Also, an employee of the Criminal Justice Agency may ask the defendant questions intended to determine his connection to the New York City area, such as his employment, his residence, and his family. Also, a printed copy of the defendant’s criminal record (if any) will be attached to his papers for the prosecutor, judge, and defense attorney to review. In busy jurisdictions like Manhattan and Brooklyn, at least one courtroom will be open for the arraigning of defendants (which is open to the public) from about 9:30 am until around 2:00 am.

The defendant will eventually be brought before a Criminal Court judge with his attorney for his arraignment. At this time, the defendant, his attorney, and the judge will be given a copy of the criminal complaint that was drafted by the prosecutor’s office, as well as a copy of the defendant’s criminal record. In certain cases, a prosecutor will recite a summary of the allegations against the defendant in an effort to encourage the judge to set bail. In some cases, the prosecutor will also request the issuance of an order of protection in favor of the alleged victim in the case. Finally, in many misdemeanor cases, the prosecutor will make a plea bargain offer or recommend a sentence to the judge, and a defendant may elect to plead guilty at this stage. If a defendant decides to plead guilty at arraignments, then the case is finished and the defendant must begin serving his sentence. If, on the other hand, the defendant pleads not guilty, then the case proceeds to the next stage – the determination of bail.

The determination of bail is one of the most important aspects of arraignment. It is the judge’s duty to decide whether the imposition of bail is necessary to secure the defendant’s return to court, and the attorneys’ to make arguments as to why it is or is not necessary. Obviously, if the case involves an extremely serious crime then bail is more likely to be set than it would be for a minor misdemeanor. Other factors that the court may consider include the strength (or weakness) of the government’s evidence, the defendant’s criminal record (if any), the defendant’s history of appearing or failing to appear in court on other matters, the defendant’s family ties to the area, the defendant’s employment and income, the defendant’s health, and his citizenship. If the judge decides to set bail, the defendant will then remain in custody until he or his family can post bail; oftentimes, the services of a bail bondsman are used to help finance the posting of bail so that a defendant can be released from prison.

At arraignment, the prosecutor will also sometimes serve notices of the types of evidence that they may later seek to introduce at trial, such as incriminating statements by the defendant or any police-arranged identification procedures used with eyewitnesses. Finally, the case will be adjourned until the next scheduled court appearance for the defendant. The dates of the adjournment vary depending on the type of crime charged by the prosecutor and whether bail is posted. For example, if the defendant is charged with a felony and is unable to post the bail that the judge sets, the court will typically adjourn the date for five or six days for “180.80”. In those cases, if the prosecutor is able to secure an indictment against a defendant by that time, then the defendant will remain in custody pending further proceedings against him. If, on the other hand, the prosecutor is unable to convince a grand jury to vote an indictment against him, the defendant will be released on that date. (Note, however, that release from custody on the “180.80 date” does not mean that the case against the defendant has necessarily been dismissed.) On the other hand, if a defendant is released upon his own recognizance (meaning that no bail is set), then the adjournment period is typically longer; indeed, it is quite common for defendants to not have to appear in court again for one or two months following arraignment.

Conversion

Usually, the accusatory document that is served on the court and the defendant at arraignments (the “complaint”) is insufficient for the government to proceed to trial. Thus, before the case can advance into the next stage, the prosecutor’s document has to undergo a process sometimes referred to as “conversion”. In misdemeanor cases, the document must be converted from a misdemeanor complaint into a prosecutor’s information. A prosecutor’s information is a misdemeanor accusatory document that does not contain any hearsay. This misdemeanor conversion process usually requires the filing of a sworn and signed supporting deposition (also known as a “corroborating affidavit”) by an eyewitness, or the filing of a laboratory report in drug cases, or a ballistics report in firearm cases. In some cases, particularly DWI and vehicular cases such as unlicensed driving, the accusatory document filed at arraignments may already be a prosecutor’s information. In those situations, the case is adjourned from arraignments for either motion practice or trial (discussed below). Otherwise, the case will be adjourned to another date in court to determine whether the government can in fact obtain the necessary corroborating affidavits or laboratory reports, etc. The government does not have an endless amount of time to obtain these documents – in fact, in misdemeanor cases, if the government cannot file these documents within a certain set time period (60 days for Class B misdemeanors and 90 days for Class A misdemeanors), then the case is automatically dismissed.

In felony cases, the conversion process is more complicated. Instead of merely obtaining and filing corroborating affidavits, the prosecutor has to present his case to a Grand Jury in order for it to advance to the next stage.

Grand Jury

A New York state grand jury consists of 23 individuals selected at random. Usually, grand jurors are expected to serve half-days for a month or full days for about two weeks, but these terms can vary. At a given time in Manhattan, for example, there may be as many as ten grand juries convened, but they all serve the same general purposes. The grand juries effectively “screen” felony cases – prosecutors present evidence to them in order to convince them that there is enough evidence to proceed with the prosecution of an individual. The grand jury does not determine ultimate guilt or innocence, but merely decides whether to formally accuse an individual of a crime. Grand juries are not public, and people are prohibited by law from discussing the details of a grand jury presentation outside of the grand jury (except in very limited circumstances).

The government’s evidence is presented to grand jurors in much the same way that it is at trial; a prosecutor asks questions of witnesses under oath and may introduce documentary evidence in support of his case, such as laboratory reports or ballistics reports or medical reports. However, unlike at trial, a grand jury is allowed to ask its own questions of witnesses (through the prosecutor), and the prosecutor is not allowed to make any opening statements or summations directly to the grand jury. Furthermore, in a grand jury there are no judges to rule on the evidence; it is the prosecutor’s job to decide what evidence is admissible and how to instruct the grand jury on the applicable law. (Note, however, that Supreme Court judges will likely later review the transcripts of the grand jury proceedings to determine whether they were conducted properly and in accordance with the law). Although the grand jury ultimately decides which charges, if any, should be brought against a defendant, the prosecutor is permitted to suggest charges that he or she believes best apply to the facts of the case.

The defense role in the process is considerably more limited. Every defendant that has been arrested and accused of a felony has a right to testify in any related grand jury proceeding brought against him by the prosecutor. However, defendants are required to 1) take an oath that they will testify truthfully, 2) waive their immunity from prosecution, and 3) submit themselves to cross-examination by the prosecutor. Also, defense attorneys are only permitted inside the grand jury during the testimony of their client (should he choose to testify). Moreover, the defense attorney’s role is limited to providing counsel to his client during his testimony and he is not allowed to ask any questions or make any arguments to the grand jury.

The standard of proof at a grand jury proceeding is significantly lower than it is at trial. At trial, the evidence of a defendant’s guilt of a crime must be proven “beyond a reasonable doubt,” and the decision of the jury must be unanimous. At the grand jury stage, since ultimate guilt or innocence is not at issue, the prosecutor must simply convince 12 of the grand jurors present that there is “reasonable cause to believe” that the defendant committed a crime. A grand jury can choose to indict an individual – meaning that they formally accuse him of a felony – or it can dismiss a case against a defendant altogether. The grand jury also has a variety of other powers that are less commonly utilized in cases where a defendant has already been arrested.

Once a Grand Jury has indicted a defendant, the defendant will be required to appear in Supreme Court for his arraignment on the new accusatory document, called an indictment. With this document, the defendant and his attorney will now be able to see what charges the Grand Jury decided to formally accuse the defendant of having committed. At the Supreme Court arraignment, the prosecutor may request that the judge increase the defendant’s bail in light of the increased risk that the defendant will now flee the jurisdiction. The prosecutor may also make a plea bargain offer or a sentencing recommendation to the Supreme Court judge. Normally, however, the case is adjourned to another Supreme Court courtroom and judge for pre-trial motion practice and discovery.

Motion Practice & Discovery

After a misdemeanor complaint is converted to a prosecutor’s information (or a felony complaint is replaced with an indictment voted by a Grand Jury), the case is usually adjourned for motion practice and discovery. In the motion practice phase, the defense attorney will typically challenge the sufficiency of the allegations in the prosecutor’s information or request pre-trial hearings to determine whether the defendant’s constitutional rights were violated during his arrest. This is hardly an exhaustive list, however, as both parties potentially have a wide variety of motions available to them. Motions are almost always made in the form of written memoranda, and both parties are generally permitted to respond to a motion made by the other. The memoranda contain legal research and citations to controlling precedent in support of the parties’ requests. In felony cases, the judge will also review a transcript of the grand jury proceedings to determine whether it was conducted properly and whether the evidence presented to the grand jury was sufficient to justify the charges alleged in the indictment. Eventually, however, the judge rules on the motions made by the parties, as well as on the grand jury proceedings. Normally, the case is then adjourned for pre-trial hearings and/or a trial.

During this motion practice period of time, both parties also typically request “discovery” from the other party. Discovery is the process by which information about the case is delivered to the opposing party. Generally, defense attorneys make broad and sweeping written requests of the prosecutor’s office for all pertinent information and evidence. However, different district Attorney’s Offices have different policies towards discovery. By law, a prosecutor is not required to deliver relevant discoverable paperwork (such as prior statements from eyewitnesses or police reports) until the moment right before a trial begins. During this phase of the proceeding, both the prosecutor and the defense attorney may issue subpoenas to third parties in order to secure additional evidence that they intend to introduce at trial.

Pre-trial hearings

Pre-trial hearings can be conducted for a wide variety of reasons, but typically, they are used to determine whether: 1) the police officers had probable cause to arrest the defendant (called a “Dunaway” hearing), 2) the police officers had the right to seize various types of evidence (a “Mapp” hearing), 3) any statements made by the defendant were given voluntarily and knowingly (a “Huntley” hearing), and 4) any identification procedures used with witnesses were conducted fairly (a “Wade” hearing). Hearsay is permissible at pre-trial hearings, so prosecutors will typically call police officers as witnesses to testify about the circumstances of the arrest and/or the information they were provided by eyewitnesses. Defense attorneys are given an opportunity to cross-examine these witnesses.

If a defendant and his attorney are successful in convincing the hearing judge that evidence against the defendant was obtained in violation of his constitutional rights then the judge can exclude the evidence from being presented at trial. Depending on the type of case or the charges at issue, a defense victory at the pre-trial hearing stage could result in the ultimate dismissal of the case by the prosecutor. Assuming that enough of the prosecutor’s evidence survives the pre-trial hearing, the case then proceeds to trial.

Trial

The trial phase can be broken up into seven different stages: jury selection, opening statements, the government’s case, the defense case, summation, jury charging, and deliberation.

Jury Selection

The first part of the trial process involves the selection of the jurors that will decide the case. (Note that when a case’s top charge is a class B misdemeanor or violation, there is no jury and a judge decides the case.) Potential jurors (called panelists) are brought into the courtroom and asked to answer some basic questions about themselves. Then, the attorneys are allowed to question the panelists about their backgrounds or potential biases or prejudices that may impact their ability to render a fair and impartial verdict. This process of questioning is known as “voir dire”. After the panelists have been questioned, the attorneys exercise their challenges. Attorneys can challenge a potential juror by arguing that his or her responses to questioning indicate or suggest that he or she cannot be a fair and impartial juror. If the judge agrees that the panelist could not be a fair juror, then that person is excluded from the jury. The attorneys are also allowed to use a certain number of peremptory challenges, whereby jurors are removed more or less at the whim of the attorney. The number of peremptory challenges each attorney is allowed to exercise depends on the severity of the top charge in the case. The entire process of jury selection is frequently time-consuming and can take several days in serious felony cases.

Opening Statements

Once the jury is chosen and sworn in, the parties are permitted to make opening statements. The prosecutor gives an opening statement in which he outlines the evidence that the government intends to present. The defense is not required to make an opening statement but has the option to do so.

The Evidence

The government then presents its evidence to the jury. The majority of its evidence typically comes in the form of sworn testimony from witnesses. After taking an oath to testify truthfully, the prosecutor asks them questions designed to elicit the pertinent facts about the case. This is called a direct examination of a witness. Following this direct examination, the defense attorney has the right to cross-examine the witness. Here, the defense attorney asks questions designed to cast doubt on the witness’ testimony or credibility. The defense attorney also uses his cross-examination to counter the conclusions that the government is hoping to draw from the witness’ testimony. The government may present other evidence as well, such as laboratory reports or physical evidence like drugs or weapons or photographs. Once the prosecutor has concluded presenting the government’s case, the defense is given the opportunity to present its defense. The defense is actually under no obligation to present a defense whatsoever, as the burden of proof rests entirely upon the prosecution. Indeed, a defendant need not prove anything because he is presumed innocent until proven guilty beyond all reasonable doubt. However, a defendant may wish to present a case by having alibi witnesses or character witnesses testify on his behalf, for example. The defendant may in fact choose to testify himself, although he has a Fifth Amendment right to remain silent. Notably, witnesses that testify for the defense are subject to cross-examinations by the prosecutor in much the same way that government witnesses are cross-examined. Finally, if the defense presents a case, the prosecution is entitled to present a rebuttal case that directly refutes the evidence presented by the defense.

Throughout the course of direct and cross examinations, the attorneys may object to questions posed by the other attorney. An attorney may object to the question as calling for testimony that is irrelevant or prohibited by the rules of evidence, among other things. When a judge sustains an objection, it means that he agrees with the attorney that made the objection; in contrast, when a judge overrules an objection, it means that he disagrees with the objection and will allow the questioner to proceed.

Summations

After both sides have rested their cases, meaning that they have no more evidence to present to the jury, the parties give summations, or closing arguments. The defense attorney speaks first to the jury about why his client, the defendant, should be acquitted (or found “not guilty”). Following his speech, the prosecution speaks to the jury in an effort to convince them to find the defendant guilty. There are some limitations on what each party is permitted to say in summation, but generally, both sides review the evidence that was presented and make arguments as to what conclusions should be drawn from the evidence.

Jury Charge

Following the summations, the case proceeds to the jury charge stage. Here, the judge instructs the jury on how they are to conduct their deliberations and explains to them the charges that they are being asked to consider. The foreperson – or first juror selected – is given special instructions by the judge as to how the jury is permitted to ask the judge questions during their deliberations, for example. They are also instructed on how to request the reading of transcripts of a witness’ testimony, or what to do if they want to examine physical evidence that was introduced. They are also instructed that they are not allowed to conduct any independent research about the case they have just heard, or discuss the case with anyone other than a juror.

Deliberations

Once the jury charge is complete, the jurors go into a secluded private room and begin deliberating, or discussing and deciding the outcome of the case. They are not allowed to deliberate unless all of the members of the jury are present. Every juror’s vote is entitled to equal weight and credit; the foreperson’s opinion or vote does not count any greater than the others. The decision of the jury must be unanimous for either conviction or acquittal. If, for some reason, the jurors cannot agree on a verdict, then the case ends in a mistrial. A mistrial usually means that the case will either be tried again or a new (and likely more favorable) plea bargain offer will be made to the defendant.

If the defendant is acquitted then all of the criminal charges against him are dismissed. If, however, the defendant is convicted of one or more crimes, the case proceeds to sentencing.

Sentencing

If a person has been convicted of a crime by either a guilty plea or a conviction after trial, the next (and normally final) phase of the trial court process is the sentencing. In cases where the defendant pleads guilty to a misdemeanor in exchange for an agreed-upon sentence, the court typically imposes sentence on the same date as the plea. However, in felony cases or in cases involving a conviction after trial, the court will normally adjourn a case for a pre-sentence report. In these cases, a representative of the Department of Probation will interview the defendant about his background, his health, and the facts of the underlying case, and then give a recommendation to the court that the judge will consider in deciding the sentence to be imposed. Depending on the type of conviction, a judge can order a conditional discharge, probation, fines, community service, treatment, other non-jail programs, or prison. See the sentencing chart for more information. At the time of sentence, both the prosecutor and the defense attorney are given opportunities to speak to the sentencing judge on behalf of the government and the defendant, respectively, as to the appropriate sentence. The defendant is also given the opportunity to speak to the judge in these matters.