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1988/89 Revised Edition
W H A T Y O U S H O U L D K N O W I F Y O U ' R E
A C C U S E D O F A C R I M E
by Joyce B. David, Esq.
Foreword by the Hon. Milton Mollen
Presiding Justice Appellate Division
Second Judicial Department
1
WHAT YOU SHOULD KNOW IF YOU'RE ACCUSED OF A CRIME
Copyright c 1986, 1988 - by Joyce B. David, Esq.
All rights reserved. No part of this publication may be
reproduced, translated or transmitted in any form or by any
means, electronic or mechanical, including photocopy, recording,
or any information storage and retrieval system, without
permission in writing from the author, except by a reviewer, who
may quote brief passages in a review.
Requests for permission to make copies of any part of this
work should be directed to: Joyce B. David, Esq., 16 Court Street
(Tower Suite), Brooklyn, New York, 11241, (718) 875-2000.
If you're reading this on an Electronic Bulletin Board, you
may download it for your own use. If you're interested in order-
ing copies of the published handbook, the prices are as follows:
1 - 9 copies $4.00 per copy
10-99 copies $3.00 per copy
100 or more copies $2.00 per copy
Shipping and handling $ .25 per copy
* All orders must be prepaid.
* State and local taxes apply in NYS.
Include resale or tax exempt number, if applicable.
Make checks payable to: Balaban Publishing Co.
Legal Handbooks Division
163 Joralemon Street - Suite 1502
Brooklyn, New York, 11201.
Printed in the United States of America
1988/89 Revised Edition
ISBN 0-9617121-1-2
2
F O R E W O R D
Anyone confronting the bewildering and, to many, the intimi-
dating and nerve shattering complexities of the New York State
criminal justice system for the first time in his or her life,
will find Joyce David's handbook outlining the ABC's of the
system an invaluable tool in dealing with them.
A highly-respected attorney with a wealth of first-hand
experience in all aspects of criminal law, Ms. David's thorough,
step-by-step description of what a criminal case is all about,
written in language readily understood by the average layman,
unschooled in legal procedures and terminlolgy, will do much to
ease the pain of that first encounter with the law.
Ms. David, expertly and concisely, spells out just what he
or she may expect at every stage of the case, explaining just
what will happen and why.
As she points out correctly in her own introduction, those
exposed for the first time to the criminal justice system often
feel as though they are in a foreign country, with strange new
rules, procedures and language. WHAT YOU SHOULD KNOW IF YOU'RE
ACCUSED OF A CRIME provides the anxious "tourist" with a thor-
oughly professional and knowledgeable guidebook.
Milton Mollen
Presiding Justice
Appellate Division
Second Judicial Department
3
TABLE OF CONTENTS
Introduction--------------------------------------------------- 5
Choosing a Criminal Lawyer------------------------------------- 5
Lawyer/Client Relationship------------------------------------- 6
Lawyers' Fees-------------------------------------------------- 6
Before You're Arrested----------------------------------------- 7
Don't Confess-------------------------------------------------- 7
Some Other Don'ts---------------------------------------------- 8
Line-ups------------------------------------------------------- 8
Surrender------------------------------------------------------ 9
Things Your Lawyer May Need to Know---------------------------- 9
The Arrest-----------------------------------------------------10
Booking--------------------------------------------------------11
C.J.A. Interview-----------------------------------------------11
What Else Happens Before Arraignment---------------------------12
Criminal Court Arraignment-------------------------------------12
Bail-----------------------------------------------------------13
Assigned Counsel-----------------------------------------------14
Felonies-------------------------------------------------------15
Misdemeanors & Violations--------------------------------------15
Youthful Offender----------------------------------------------16
Juvenile Offenders---------------------------------------------16
Civil Forfeitures----------------------------------------------16
What Can Happen to Your Case-----------------------------------17
What Happens After Criminal Court Arraignment------------------17
Grand Jury-----------------------------------------------------18
Indictment-----------------------------------------------------18
Silent Indictment----------------------------------------------19
Supreme Court Arraignment--------------------------------------19
Court Appearances----------------------------------------------20
Bench Warrants & Bail Forfeitures------------------------------20
Getting Back Bail Money----------------------------------------21
What Takes So Long---------------------------------------------22
Trial Preparation----------------------------------------------22
To Plead or Not To Plead---------------------------------------23
Pre-Trial Hearings---------------------------------------------24
Trial----------------------------------------------------------26
Sentencing-----------------------------------------------------28
Appeals--------------------------------------------------------29
"Assert Your Rights" Card--------------------------------------29
About the Author-----------------------------------------------31
4
INTRODUCTION
People exposed to the Criminal Justice System for the first
time often feel like they're in a foreign country with strange
rules, procedures and language.
This handbook is geared to the state system in New York
City, but many of the general principles apply to other jurisdic
tions as well. It's based on over 10 years of experience "in the
trenches". It's a realistic, not a philosophical look at the
system.
This handbook has general information and shows how cases
make their way through the system. Most of the legal terms used
are explained in the text or are self-explanatory.
This handbook doesn't deal with specific cases or crimes.
There's alot of information that's just too technical or compli-
cated for this book. If you have specific questions about a
case, you'll have to consult a lawyer personally.
The Criminal Justice System, just like the rest of life, is
not always fair. That doesn't mean we give up, it just means we
try harder.
CHOOSING A CRIMINAL LAWYER
If you can afford a private lawyer, I suggest you hire a
criminal lawyer. You wouldn't go to an eye doctor for a problem
with your elbow.
If you don't know any criminal lawyers, call your local bar
association, or check with friends or relatives who may have had
criminal problems.
It's not a good idea to hire a lawyer who approaches you in
the court-house. Lawyers are not supposed to solicit clients
that way.
Find out how much criminal experience a lawyer has before
hiring him/her. The more serious the charges against you, the
more experienced a lawyer you need.
It helps if your lawyer practices where your case is pend-
ing. S/he'll know the judges and D.A.s (District Attorneys) and
will have a better idea of what you can expect in your case.
(The D.A. is the one who prosecutes the case against you.)
5
You also have an advantage if the judges and D.A.s know and
respect your lawyer. They're more likely to listen if your
lawyer has a good reputation.
LAWYER/CLIENT RELATIONSHIP
It's important to trust your lawyer. His/her job is to
defend you and protect you from the system, whether you're inno-
cent or guilty. If you committed the crime or participated in
some way and don't feel comfortable telling your lawyer, you
should get a different lawyer.
You're not helping yourself if you think your lawyer will do
a better job if s/he thinks you're innocent. It's not a good
relationship if you don't trust him/her enough to be truthful..pa
Your lawyer can't advise you effectively if you keep things
from him/her. Everything you tell your lawyer is confidential,
even if you eventually hire a different lawyer.
You should ask your lawyer to explain what's happening with
your case. Don't think your questions are stupid just because
you don't understand the system. It's a very complicated system.
That's why you need a lawyer in the first place.
Just because your lawyer isn't in touch with you all the
time, doesn't mean s/he isn't working on your case.
There will be times when your lawyer may have to give prior-
ity to someone else's case. This is most likely to happen when
s/he's doing a trial. Trial is the most important and difficult
part of a case. It demands the most attention and concentration.
Don't feel slighted if your lawyer can't appear on your
case when s/he's on trial with another defendant. It doesn't
mean your case isn't important, just that at this time, another
client's case needs priority.
You'll appreciate this when your case goes to trial. You
wouldn't want your lawyer distracted by less pressing matters
when you face your moment of truth.
LAWYERS' FEES
Lawyers' fees vary depending on the amount of experience
they have and the nature of the case. It's better to have a
clear understanding about the fee before any work is done, so
your lawyer can concentrate on your case and not your bill.
6
Your lawyer's fee will usually not include any other ex-
penses. You'll probably have to pay additional money fora pri-
vate investigator, expert witnesses (if necessary), transcripts,
etc. Appeals and civil work are also usually extra.
Criminal lawyers usually require most or all of their fee up
front. This should all be clearly spelled out in the retainer
agreement you sign when you retain the lawyer.
Ironically, innocent people often have to pay higher
fees.Because they're less likely to plead guilty, their cases
usually require more work, to prepare for and take through trial.
You shouldn't be looking for bargains when your freedom and
reputation are at stake.
BEFORE YOU'RE ARRESTED
The sooner you get a lawyer involved in your case, the
better. There are important decisions to be made and rights to
be protected, early in a case. If you're accused of drunk driv-
ing, you should contact a lawyer before you submit to a breatha-
lyzer test.
If you find out the police are looking for you, it's best to
call a lawyer before responding to them. If you can't afford a
private lawyer, call the Legal Aid Society.
The police are interested in making out a case against
someone they suspect committed a crime. They're not your
friends, unless you're the victim of a crime. The police may
mislead you if they want you to talk to them, and you may find
yourself under arrest based on your own statements to them.
DON'T CONFESS
The police are very good at getting confessions. That's the
easiest way for them to wrap up a case.
Even if they use deceptive methods to get a confession, like
telling you things will go easier, or that a co-defendant has
implicated you, this may be considered good police work, and a
judge may allow the D.A. use your statement against you.
If you have a lawyer before you get arrested, s/he can find
out if the police want to question you as a witness or a
suspect.
7
If you're a suspect, your lawyer can tell the police that
s/he doesn't want you questioned. If they question you after
that, they won't be able to use your statements against you,
unless they can prove that you blurted out a confession without
being asked any questions.
If you're arrested and don't have a lawyer, don't answer any
questions or make any statements about your case to the police or
the D.A. Don't allow yourself to be video-taped. Whether they
read you your rights or not, tell them you want to speak to a
lawyer. Don't think you can outsmart the police.
Your silence can't be used against you, but it's very hardto
defend you if you've made a confession (or admission). Even
telling the police that you were at the scene of the crime but
didn't do anything is an admission to an element of the crime.
If you're in jail, be careful what you say about your case
to other inmates. You never know when one of them will try to
work out his/her own problem by becoming a witness against you.
SOME OTHER DON'TS
Don't consent to a search of your person, home, or car.
Don't consent to be in a line-up or show-up.
This doesn't mean you should physically resist, just that
you should object and tell the police you want a lawyer.
Don't resist arrest or become verbally abusive to the police
or you might find yourself charged with additional crimes, and
possibly injured in the arrest process.
LINE-UPS
If the police intend to put you in a line-up, ask to have a
lawyer there. S/he can determine if they have the right to do
so, and if they don't, s/he can protect you.
If they do have the right to put you in the line-up, s/he
can monitor the procedure to make sure it's done fairly.
If the persons placed in the line-up with you don't resemble
you, s/he can ask the police to find better fillers. If they
won't find better fillers, s/he can make notes of the differences
in appearance between you and the fillers, to help you later when
the D.A. tries to use the line-up identification against you.
8
The police usually take a black & white Polaroid picture of
the line-up that doesn't clearly show the differences between
you and the fillers.
If you didn't have a lawyer at the line-up, this photo and
the police testimony will often be the only evidence a judge will
have, to determine if the line-up was fair.
Your lawyer can help you decide the best place to sit and
number to hold to minimize the chance of being picked out.
S/he can make sure the police don't do anything improper,
like suggesting in some way that the witness pick you out.
Having a lawyer at this early stage can be very helpful. If
you're not picked out of the line-up in the first place, your
case might be over before it begins, and you'll save yourself a
great deal of hassle and money.
Identification cases are the most difficult to defend. Even
though identification testimony is the least accurate, it's the
most believed by jurors.
SURRENDER
If you're a suspect in a crime, your lawyer can arrange for
you to surrender.
The reason it's good to surrender (if the police intend to
arrest you), is that it will show the court that you're a respon-
sible person, worthy of being "released on your own recognizance"
(R.O.R.'d), or of having low bail set when you first appear
before a judge for arraignment. It may also be helpful at plea
or trial to show your cooperation.
The purpose of setting bail is to make sure you return to
court. By surrendering in the first place, you show that you're
likely to return to court without having high bail set.
Your lawyer can tell the judge that you knew the police were
looking for you, had the chance to run, but didn't. Surrendering
won't guarantee low bail, but it gives you a better shot.
THINGS YOUR LAWYER MAY NEED TO KNOW
There are things your lawyer needs to know, to defend you.
Below is a list of some information s/he may need from you:
9
1) Whether you have any witnesses. These include alibi
witnesses; character witnesses & eyewitnesses;
2) The names, addresses and phone numbers of your witness-
es, so s/he can get their statements, and advise them of the
disadvantage to you if they speak the D.A.;
3) Where and when you were arrested and the circumstances
surrounding your arrest;
4) Whether you were shown to any witnesses by the police
and the specifics of that identification procedure;
5) Whether the police found anything on you relating to
the crime;
6) Whether the police had an arrest warrant or a search
warrant;
7) Whether you made any statements to the police or the
D.A. If so - Were you read your rights? Was any force used
against you? Do you have any injuries?
8) Whether you know the witnesses against you and if they
have any motive to lie;
9) Whether you're on probation or parole;
10) Whether you have any problems that may affect your
case, like mental or physical problems, or problems with drugs or
alcohol. Sometimes these problems may help your defense;
11) Your immigration status. If you're not a citizen, a
criminal conviction may create problems for you with immigration.
THE ARREST
A police officer can arrest you, without a warrant, if s/he
sees you committing a felony, misdemeanor or violation. S/he can
arrest you for a felony or misdemeanor (even without a warrant),
if s/he has "probable cause" to believe you committed a crime.
All it takes is one person making a criminal complaint
against you, without any corroboration, to give the police
"probable cause" to arrest you. They'll arrest you even if you
tell them you're innocent. They hear that from almost every
defendant, even the guilty ones, so they leave it for the courts
to decide.
People find it hard to believe that they can be arrested
based on one person's accusation, but that's the law.
10
The police should have a warrant if they're arresting you at
home, but there are exceptions to every rule.
BOOKING
When you're arrested, you'll be processed by the police
(booked) before being brought to court for arraignment.
The amount of time between arrest and arraignment varies
from borough to borough.
After some preliminaries in the precinct, which usually
include being searched, fingerprinted, photographed, and in
certain cases, an identification procedure (line-up or show-up),
you'll be taken to Central Booking in the borough of arrest, to
be processed further.
There are sometimes delays in the booking process. Your
fingerprints have to be sent to Albany to get your criminal
record and check if you have any open warrants.
Sometimes the computers aren't working and this delays
getting your criminal record. If it's your first arrest, the
process often takes longer. If you refuse to be fingerprinted,
you can be held until you agree.
C.J.A. INTERVIEW
After you're booked, you'll be interviewed by the N.Y.C.
Criminal Justice Agency (C.J.A.), about your residence, employ-
ment, criminal record, etc. (not about the facts of your case).
It's important to answer their questions accurately. They
will contact a friend or family member (depending on the name you
give them as a contact person) to verify your information.
If you give them incorrect information, it may hurt your
chance of getting low bail, because they'll note the fact that
your information was inconsistent with the verifyer's, and it
will look like you're trying to hide something from the court.
They use the information to prepare a recommendation as to
bail (often called an R.O.R. sheet), to help the judge in ar-
raignments decide the question of bail or R.O.R.
11
WHAT ELSE HAPPENS BEFORE ARRAIGNMENT
While you're being booked and interviewed by C.J.A., the
D.A.'s office will be drawing up a formal complaint against you.
This is usually done by their Early Case Assessment Bureau
(E.C.A.B.). They interview the arresting officer and/or the
witnesses/victims, and decide what you'll be charged with.
All of the above has to be done before you can be brought to
court for arraignment.
There are often delays in being brought to court. The
system may be backed up if alot of people have been arrested
before you who are also waiting for arraignment. It's not uncom-
mon for the delay to be more that 24 hours.
If it appears to Central Booking that you won't be arraigned
the day you're booked, you'll be taken to a precinct to be lodged
for the night. People often get very upset at this delay, but
there's really nothing you can do about it.
Your lawyer can find out where you are in the system and let
your family know approximately when you'll be arraigned. In
certain boroughs, private lawyers are given preference once
you're produced in court, and this can speed things up a little.
CRIMINAL COURT ARRAIGNMENT
At the arraignment, your lawyer will interview you, tell you
what you're being charged with, advise you of your rights and
make an application for low bail or R.O.R.
If you can't afford a private lawyer, there'll be a Legal
Aid lawyer assigned to your case at the arraignment.
Your lawyer will often "waive formal arraignment", so the
charges against you won't be read aloud in open court.
S/he and the D.A. may have a conference at the bench with
the judge. There will be a discussion about your case. Your
lawyer can get some valuable information from the D.A. at this
"bench conference". There may also be some discussion about a
plea-bargain at this point.
Certain cases are disposed of at the arraignment. Your
lawyer will discuss the offer with you and advise you if s/he
thinks it would be a good idea to accept it. Sometimes felony
charges are reduced to misdemeanors at the arraignment.
12
If the charges are serious felonies, it's unlikely they'll
be disposed of at the arraignment. The D.A. will probably give
notice that s/he intends to present your case to a Grand Jury.
Your lawyer may give reciprocal notice, that you wish to testify
in the Grand Jury in your own behalf. The Grand Jury will be
discussed more fully, later in this guide.
The witnesses against you do not have to come to the ar-
raignment or appear in court unless they're required to testify
(in the Grand Jury, at a hearing or at trial).
BAIL
The judge at the arraignment is the one who decides about
your bail. You may be R.O.R.'d (released on your own recogni-
zance), have bail set, or be remanded without bail. Remand is
likely if you're charged with murder, or if you're charged with a
serious felony and have another felony case pending.
It helps to have as many friends and family members as
possible at the arraignment. The bail may be lower if your
lawyer can show the judge you have strong community ties, as
evidenced by all the people who came to court for you.
Have your people bring money with them for bail. Your
lawyer can often estimate the amount of bail the judge might set.
This will depend on the nature of the case, your criminal record,
your community ties, and which judge is sitting in arraignments.
If your people have money with them at the arraignment and
the judge intends to set bail that's a little more than they have
your lawyer can tell the judge the amount of money your people
have with them, and the judge might set the bail at that amount,
so you can be bailed out from court.
It saves a lot of hassle if you're bailed out from court.
Once you're removed from the court building, bail has to be put
up at the jail you're in or at certain other locations in the
city. Your lawyer can advise you about that.
Bail can be posted by a bail-bond or in cash. When bail is
set, there's usually a bond amount set and a cash alternative.
To get a bail-bond, your people have to see a bail-bondsman.
He will require some cash (at least 10% of the bond), and collat-
eral for the rest (a house, bank book or the like).
The first bail that's set is often the most important. It's
hard to get a bail reduction unless your lawyer can show there's
been some change in circumstances since the first bail was set.
13
ASSIGNED COUNSEL
Many people accused of crimes can't afford to hire a private
lawyer, and are assigned a Legal Aid lawyer or a lawyer from the
18-B panel.
There are times I've asked someone who calls, if s/he has a
lawyer already, and s/he says: "No, I have a legal aid". It's
unfortunate that defendants have that opinion of Legal Aid.
Lawyers who work for the Legal Aid Society are competent,
well-trained, dedicated lawyers. The Legal Aid Society has
excellent support staff, including: investigators; social work-
ers; and funding for expert witnesses, etc.
An 18-B lawyer is a private lawyer who accepts assignments
of criminal cases from the court and is paid by the state to
represent indigent defendants. There are several reasons why you
may be assigned an 18-B lawyer, instead of Legal Aid.
If two or more people are accused of committing a crime
together, the Legal Aid Society is only allowed to represent one
of them. The Legal Aid Society is like one big law firm, and
it's considered a conflict of interests to have the same law firm
represent co-defendants.
Legal Aid might not be able to represent you because they
represent a witness against you who has a pending case. This
would also be considered a conflict of interests.
If you're accused of murder, and are indigent, you'll be
assigned a lawyer from the 18-B "homicide panel". The Legal Aid
Society usually does not handle murder cases.
There are different panels of 18-B lawyers for different
types of cases. These lawyers have been screened to make sure
they're qualified to handle the kinds of criminal cases they'll
be assigned to.
The "misdemeanor panel" has lawyers qualified to handle
misdemeanor cases.
The "felony panel" has more experienced criminal lawyers
than those on the "misdemeanor panel".
The "homicide panel" has the most experienced criminal
lawyers.
The "Family Court panel" is for criminal cases involving
juveniles that will be handled in the Family Court.
There's also an "appeals panel" to handle your appeal, if
you're indigent.
14
FELONIES
There are different categories of crimes. The more serious
crimes are called felonies. The most serious felonies are "A"
felonies, the least serious are "E" felonies.
Certain felonies carry mandatory jail sentences, if you
plead guilty or are found guilty after trial (conviction). This
means you can't get probation. These are usually cases involving
the sale of drugs or the use of a gun or violence: "armed felony
offenses" and "violent felony offenses" (A.F.O.'s and V.F.O.'s).
If you're convicted of a felony, you may also lose some of
your civil rights. In some cases your lawyer can get you a
Certificate of Relief from Civil Disabilities that may mitigate
the effect of a felony conviction.
If you're accused of a felony and have one or more prior
felony convictions, jail sentences are mandatory and longer.
Generally, one prior felony conviction makes you a "predi-
cate felon", more than one prior felony conviction makes you a
"persistent felony offender".
If you're on probation or parole, a conviction after trial
or plea of guilty to a new crime (felony or misdemeanor) can
violate your probation or parole (V.O.P.) and you'll probably get
extra jail time.
MISDEMEANORS & VIOLATIONS
The less serious crimes are classified as misdemeanors.
Violation offenses are less serious than misdemeanors and aren't
considered crimes.
If you're arrested for a misdemeanor, violation, or certain
low grade felonies, the police can, under certain circumstances,
give you a "desk appearance ticket" (D.A.T.), which is like a
summons. Instead of going through the booking process and being
held in jail until you're brought before a judge for arraignment,
you're released from custody and given a date to appear in court
to be arraigned.
Penalties for misdemeanors and violations are less serious
than those for felonies. You may even be able to get an A.C.D.
(adjournment in contemplation of dismissal). This means your
case is adjourned for six months (you don't have to return to
court), and, if you don't get into trouble within the six months,
it's dismissed and sealed, as if you were never arrested. You're
more likely to get an A.C.D. if it's your first arrest.
15
YOUTHFUL OFFENDER
If you were under 19 when the crime you were arrested for
was committed, and you're convicted (plead guilty or are found
guilty after trial), the judge might treat you as a "youthful
offender" (Y.O.) - the conviction is vacated and the case sealed.
You're entitled to "youthful offender" treatment on your
first misdemeanor conviction. It's discretionary for certain
first time felony convictions.
"Youthful offender" doesn't mean you won't be punished for
the crime (with jail time or probation), but the punishment is
often less severe and you won't have a criminal record. This is
meant to give a young person a chance to straighten out without
the stigma of a criminal record.
If you received Y.O. on a prior felony case, then it's as if
you weren't convicted of that felony and you won't be considered
a "predicate felon" if you're charged with another felony.
If you got Y.O. on a prior case, it won't save you from
extra jail time for violation of the probation or parole from
that case, if you're convicted of something else after that.
JUVENILE OFFENDERS
There are certain crimes where juveniles are treated as
adults in the Supreme Court and others that are dealt with in the
Family Court. Certain procedures are different for juveniles.
This guide won't discuss the distinctions.
CIVIL FORFEITURES
Generally speaking, the D.A.'s office can seek forfeiture of
the instrumentality or proceeds of certain crimes.
The D.A.'s office can even attach this property before
you're convicted, if they can show there's a likelihood you'll be
convicted. This is a relatively new law. Your lawyer will
explain it to you, if it applies to your case.
16
WHAT CAN HAPPEN TO YOUR CASE
Almost all criminal cases (felonies, misdemeanors and viola-
tions) start in the Criminal Court.
Cases that start as felonies and are reduced to misdemeanors
by the D.A., and cases that start as misdemeanors or violations,
stay in the Criminal Court until they're finished.
Cases that are going to remain felonies must be transferred
to the Supreme Court. To do this, the D.A. must present his/her
evidence to a Grand Jury, and get an indictment. This will be
explained more fully, later.
There are only three things that can happen to a criminal
case: It can be dismissed or A.C.D.'d, by the D.A. or a judge
(rare); you can plead guilty; or the case can go to trial (where
you're either acquitted or convicted).
If you get a dismissal, an A.C.D., an acquittal after trial,
or plead guilty to a violation, your case can be sealed and your
fingerprints and arrest photos may be returned to your lawyer.
Unfortunately these will just be souvenirs because the
police usually keep a copy of your photo for their mug files and
your fingerprints are kept in the criminal justice computers.
Potential employers and the like won't have access to your fin-
gerprint record or any information about your case, but if you're
rearrested, it will show up.
WHAT HAPPENS AFTER CRIMINAL COURT ARRAIGNMENT
If bail is set that you can't make, your case will usually
be adjourned to six days from the date of your arrest.
Basically, the law says that if you're in jail, the D.A. has
six days (on a felony charge) from the date of arrest, to have
witnesses give sworn testimony supporting the charges against
you, or you're entitled to be released from jail.
This can be done by bringing the witnesses to court for a
preliminary hearing, or having them testify before a Grand Jury.
It's very rare to have a preliminary hearing in New York
City, because at a preliminary hearing, the defense lawyer gets a
chance to cross-examine the witnesses. D.A.s would rather not
expose their witnesses to cross-examination at this early stage,
and they avoid doing this by going to the Grand Jury instead.
The Grand Jury proceedings are secret, and defense lawyers are
only entitled to be present when/if their own client testifies.
17
On the adjourn date, if the D.A. has not complied with the
law, you should be R.O.R.'d. But if s/he can show a good reason
for not getting an indictment or providing a preliminary hearing
within the six days, s/he can get an extension.
GRAND JURY
A Grand Jury is comprised of 16-23 people. They listen to
evidence presented by the D.A. and decide if there's enough
evidence against a defendant for him/her to face felony charges.
It takes 12 grand jurors to vote an "indictment".
A Grand Jury also has the power to return a case to the
Criminal Court as a misdemeanor, if it thinks there isn't enough
evidence for felony charges, but there is enough for misdemeanor
charges. This would be called a "prosecutor's information".
The Grand Jury is an "arm" of the D.A.'s office, and the
proceedings are secret, to protect the witnesses.
It's not hard for a D.A. to get an indictment, because the
Grand Jury usually only hears the D.A.'s evidence. There's no
defense lawyer to cross-examine the witnesses, and they usually
don't hear from the defendant.
If you've been arrested, your lawyer will be notified if the
D.A. intends to present your case to a Grand Jury.
In certain cases your lawyer might advise you to testify in
the Grand Jury, and/or present witnesses. To do that, s/he must
notify the D.A., before the Grand Jury presentation is completed.
If you testify in the Grand Jury, your lawyer can be there
with you, but s/he can't ask questions or make objections.
If things go well, the Grand Jury may fail to vote an in-
dictment (No True Bill), and your case will be over, saving you
alot of hassle and money. This is another reason to get a lawyer
working on your case early on.
Most cases that are presented to a Grand Jury, are presented
within six days of arrest, to prevent the defendant's R.O.R.
INDICTMENT
An indictment is merely a formal accusation listing the
felony charges against you in the Supreme Court. It's not evi-
dence of guilt.
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If you're indicted, your case will be transferred to the
Supreme Court. If you're out of jail, you and your lawyer will
be notified by mail, when to come to the Supreme Court to be
arraigned on the indictment.
SILENT INDICTMENT
Occasionally cases are presented to a Grand Jury before
anyone is arrested. If the Grand Jury indicts, this is called a
"silent indictment".
The same "silent indictment" procedure may be followed if
you were arrested for a felony and had your case dismissed by a
judge in the Criminal Court.
The D.A. still has the right to present felony charges to a
Grand Jury within six months of your arrest. There's no time
limitation if you're accused of homicide.
In "silent indictment" cases, you won't be notified that
your case is being presented to a Grand Jury and may not have the
chance to testify or present defense witnesses.
You'll still be able to present your defense at trial.
If you're indicted this way, an arrest warrant issues and
you'll be arrested and brought to Supreme Court for arraignment.
SUPREME COURT ARRAIGNMENT
The Supreme Court arraignment is similar to the Criminal
Court arraignment on the initial complaint. You're advised of
the charges against you and there's a decision on bail.
If you're out of jail and have been coming to court when you
were supposed to, and if you appear for arraignment when noti-
fied, chances are, your bail status will remain the same.
If you're in jail, you'll be brought to Supreme Court for
arraignment and your lawyer will be notified when to appear.
Your lawyer gets a copy of the indictment from the D.A. in
court. S/he'll waive the public reading of the charges against
you and enter a plea of not guilty for you. S/he may also get a
"voluntary disclosure form" (V.D.F.), and police reports at this
time, from the D.A. The V.D.F. has information your lawyer needs
to prepare your case.
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COURT APPEARANCES
If you're out of jail while your case is pending, you must
appear in court on every adjourn date, unless your lawyer has
arranged for you to be excused.
Unless you're told otherwise, be there at 9:30 A.M. Keep
track of the court part you're supposed to appear in and the
adjourn date. This is your responsibility.
The only time you should wait for a letter from the court,
before appearing, is if your felony case has been transferred to
the Supreme Court and you've been told to wait for notification
of the Supreme Court arraignment date. A case is transferred to
the Supreme Court after a Grand Jury has voted an indictment.
If you get to court on time and don't see your lawyer, check
to see if your name's on the court calendar to make sure you're
in the right part on the right date.
If it's the right part and date and your lawyer isn't there,
it probably means s/he had to cover another case first. Most
lawyers have to give priority to their clients who are in jail,
and cover those cases first.
If you leave the courtroom to call your lawyer, tell one of
the court officers, so they won't call your case while you're not
there, and issue a bench warrant.
BENCH WARRANTS & BAIL FORFEITURES
If you're late, or don't show up, the judge may issue a
bench warrant. You can be arrested on that warrant. If you're
out on bail, your bail money can be forfeited.
Bail jumping is also a seperate crime you can be charged
with if you're out on a bench warrant more that 30 days. It's
very hard to defend that charge and sometimes gives the D.A.
extra bargaining power in dealing with your current case.
A bench warrant will also stay on your record and come back
to haunt you later, even if you clear it up. It will give a
judge an excuse to set higher bail on you in the future.
If you can't come to court because you're sick, or because
you've been rearrested, call your lawyer and let him/her know, or
have a family member call.
If you're represented by an assigned lawyer (Legal Aid or
18-B), that's no excuse for not calling to let him/her know why
you can't make your court appearance.
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You should have your lawyer's card with his/her name and
phone number. It's your responsibility to let your lawyer know
if there's a good reason you can't come to court.
Don't assume that if you're rearrested, somehow the court
part where your case is pending will know about it.
If you have a good excuse why you can't come to court, and
your lawyer knows about it before going to court, s/he can tell
the judge and ask him/her not to issue a bench warrant.
Otherwise, the judge will issue a bench warrant and a bail
forfeiture. This is a hassle for you and for the person who put
up your bail.
GETTING BACK BAIL MONEY
If you make all your court appearances, the bail money
should be returned to the depositor several weeks after your case
is over, whether you win or lose.
If the depositor has moved since putting up the bail money,
s/he'll have to go to the Department of Finance, at 1 Centre St.
in Manhattan, with proof of identification and his/her bail
receipt, to get the bail check.
But if your bail was forfeited because you missed a court
date, it's difficult for the depositor to get it back. Even if
you're represented by an assigned lawyer, the person who put up
your bail (depositor, or surety) may have to pay a private lawyer
to do a "bail remission motion" to try to get back his/her money.
The procedure varies from borough to borough, as does the
amount of the cash bail, if any, that will be returned. If you
have a bail bond, contact the bondsman if there's a forfeiture.
A "bail remission motion" must be done within one year of
the forfeiture of bail - that's the statute of limitations on
these motions. The defendant must have returned to court before
this motion can be brought.
The bail depositor should not wait until your case is over
before arranging for a "bail remission motion". If s/he waits
beyond a year from the date of forfeiture, it may be too late to
get any money back, because of the statute of limitations.
If you "bench warrant", have your lawyer check your bail
status when you return. If you return within 45 days of the
forfeiture, there's an easier procedure for reinstating the bail.
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WHAT TAKES SO LONG
Criminal cases can take a long time to finish. This depends
on the seriousness of the charges and whether you're going to
take a plea or go to trial.
There are "speedy trial rules" governing the amount of time
the D.A. has, to be ready for trial, but more serious cases can
take six to 12 months, or longer, to go to trial. Trial prefer-
ence is usually given to defendants who are in jail.
Technically the D.A. has to be ready for trial within six
months of your arrest, (90 days for misdemeanors), but there are
certain time periods that are excluded from the six months (or 90
days), and these rules do not apply to homicide cases.
Some of the reasons for the delay include: Crowded court
calendars; busy D.A.s and defense lawyers; and delays in getting
documents from the D.A. or police, that your lawyer needs to
prepare for trial.
Each case is different and requires different preparation.
There are certain procedures that have to be followed. Your
lawyer can explain this more fully as it relates to your case.
The wait is frustrating, but there's little that can be done
to speed things up. In certain cases, delay is helpful to the
defendant.
It's upsetting having criminal charges hanging over your
head. Lawyers sensitive to their clients' feelings, often act as
psychologists and social workers as well as lawyers. Maybe
that's why we're also called counselors.
TRIAL PREPARATION
After arraignment, your case will be adjourned. If it's a
felony, trial preparation usually begins after you've been ar-
raigned on the indictment. If it's a misdemeanor, trial prepara-
tion begins after the Criminal Court arraignment.
The next time the case is on, there will be a conference,
where the D.A., the judge and your lawyer will discuss your case
to see if it can be disposed of without a trial. There will
probably be a plea offer. If the plea is refused, the case is
adjourned for your lawyer to make "motions".
Plea-bargaining will be discussed later in this guide.
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One of the biggest delays in the system is due to trial
preparation. It's better to have the delay than go to trial
without adequate preparation, even if you're in jail.
One of the things your lawyer has to do is make certain
"motions". S/he will prepare an Omnibus motion which is a formal
written request for certain information the D.A. has about your
case (discovery), and requests that certain evidence be sup-
pressed, on the grounds it was obtained in violation of your
rights. There are also certain "dismissal" motions that are
included, where appropriate.
There will usually be hearings on the suppression motions,
if the judge thinks you're entitled to them. These pre-trial
hearings will be discussed later.
Another thing your lawyer has to do to prepare your case for
trial is to investigate. Sometimes an investigation can't be
done until the D.A. responds to your lawyer's "discovery" motions
and turns over police reports to him/her.
The D.A. often keeps information from the defense until the
eve of trial. Police reports are often turned over with the
names and addresses of witnesses deleted, to protect them.
Judges usually don't make the D.A. disclose that information
until trial. We sometimes call this "trial by ambush".
Your case will be adjourned, usually about three weeks at a
time, until it's ready for trial or you take a plea.
Because of all the delays, some defendants take pleas just
to avoid having to come back to court so many times. This is
more likely to happen in Criminal Court in misdemeanors cases.
TO PLEAD OR NOT TO PLEAD
Many people think plea-bargaining is a dirty word. Plea-
bargaining is actually like negotiating a disposition of a case.
Sometimes a plea-bargain is appropriate.
Whether you take a plea or go to trial is an important
decision you have to make. It's not the kind of decision your
lawyer should make for you, but his/her opinion should be very
important to you when you decide to take a plea or go to trial.
Once your lawyer has a clear enough picture of the evidence
against you, s/he can evaluate the chances of winning your trial.
S/he will usually balance your odds of winning, against the
amount of time you could be sentenced to if you lose trial, and
the sentence being offered in the plea-bargain.
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Defendants who are in jail awaiting trial are more likely to
take pleas than defendants who are out of jail.
The decision is a very difficult one, especially if you're
innocent and the evidence against you looks strong. There are
provisions in the law for a person to plead guilty without admit-
ting guilt. This is called a SERRANO plea or an ALFORD plea
(named after the cases that allow this kind of plea). Some
judges don't like to take SERRANO/ALFORD pleas.
It's very hard to admit guilt if you're innocent, but there
are defendants who do it because their chances of winning are so
slim, they'd rather take the sure thing (usually probation or low
jail time) than risk a severe jail sentence after losing trial.
If you go to trial and lose, you usually get more time than
that offered in the plea-bargain. It's like getting extra pun-
ishment for putting the state through the trouble and expense of
the trial.
No matter how experienced or skillful your lawyer is,
there's no guarantee of winning a trial. One reason people take
pleas is to avoid the uncertainty of trial.
Trial is an uphill battle for the defense. The D.A. has
most of the tools. S/he has police and detective investigators
(D.I.s) to help investigate and get witnesses to cooperate.
Even if the defense has been able to get the names and
locations of witnesses, there's no real way to get them to coop-
erate if they don't want to, and most people don't want to get
involved.
The D.A. also has public opinion on his/her side. Even
though the law says that you're presumed to be innocent, and that
the burden of proving your guilt is on the D.A., jurors do not
always understand or follow the law.
Unfortunately, nowadays, especially is New York City, jurors
are exposed to crime on the streets, either personally or through
the media, and tend to presume you're guilty and expect the
defense to prove your innocence. This is especially true if
you're minority or poor.
Sorry to paint such a grim picture, but that's where things
are at, and this guide discusses realities, not ideals.
PRE-TRIAL HEARINGS
There are several types of hearings, called pre-trial hear-
ings, or suppression hearings, that may occur before a trial jury
is selected.
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Not every case has pre-trial hearings. It depends on the
evidence against you. These hearings are usually named after
certain landmark cases.
After the hearings, the judge decides whether or not to let
the D.A. use certain evidence against you at trial. If the
evidence in question at the hearing is the only evidence against
you, and you win the hearing, that might be the end of your case.
A HUNTLEY hearing is to suppress statements allegedly made
by you to a law enforcement officer (including police, D.A., or
their agent), on the grounds that you weren't advised of your
constitutional right to remain silent or were forced to make the
statement, either by threats or brutality.
I often have clients tell me, when I interview them for the
first time, that the police did not "read them their rights".
They seem to think that's a way to get a case dismissed. Unfor-
tunately, that's rarely the result. The only consequence of not
reading you your rights is that if you made a confession, there
are grounds to get it suppressed.
It's unlikely that the police will admit they failed to read
you your rights, or that they threatened or beat you. At the
HUNTLEY hearing they'll probably testify that they read you your
(MIRANDA) rights, and deny that they used any force.
The judge usually believes the police. This happens in most
instances where the police version differs from the defendants'.
A DUNAWAY hearing is also a hearing to suppress statements,
on the grounds that the police didn't have probable cause (any
legal reason) to arrest you in the first place.
A WADE hearing is a hearing to suppress the identification
on the grounds that the pre-trial identification procedure was
suggestive, and that the witness would not have otherwise been
able to identify you.
A MAPP hearing is a hearing to suppress physical evidence
seized from you (usually a weapon, drugs, or the proceeds of a
crime), on the grounds that the police had no legal right to stop
you or search you in the first place.
A SANDOVAL hearing is a hearing to prohibit the D.A. from
using your criminal record to impeach you during cross-
examination, if you testify at trial.
Ordinarily, when a witness testifies at trial, the opposing
counsel can use the witness' criminal record on cross-examination
to show that the witness isn't worthy of belief.
When the witness is the defendant, the court has to balance
your constitutional right to testify on your own behalf against
the D.A.'s right to this cross-examination technique.
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The problem is that juries tend to believe that if you've
committed crimes in the past, you probably committed this one
too, and that's not one of the factors a jury is supposed to
consider as evidence. The defense attorney tries to limit this
through the SANDOVAL hearing.
If you don't testify at trial, the D.A. can't introduce your
criminal record, except under specific conditions that are too
technical to discuss here.
TRIAL
After the pretrial hearings are finished, the trial begins.
The trial is the part of the case where a decision is made by a
judge or a jury, after listening to the evidence, as to your
guilt or innocence.
You're entitled to a jury trial in all felony cases, and
misdemeanor cases that carry penalties over six months in jail.
Even if you're entitled to a jury trial, there are certain
cases that are better tried without a jury. This kind of deci-
sion is between you and your lawyer and usually depends on the
specifics of your case and which judge is in the trial part.
It's important to dress appropriately when you're on trial.
Dress like you would for a church function, not like you would on
a date. You want to look neat but not flashy.
If you're out of jail and don't appear for trial, in addi-
tion to getting a bench warrant and forfeiting your bail, your
case may be tried without you.
Most judges warn defendants of that possibility. If you've
been warned, and don't appear, you can be tried, convicted and
sentenced in your absence. The likelihood of conviction in-
creases, if you're not present at your trial.
When the police pick you up on the bench warrant, you'll be
sent to jail to serve your sentence. You may also, practically
speaking, waive your right to appeal.
Assuming you're having a jury trial, the first part is to
select the jury. This is called voir dire.
A panel of prospective jurors is brought to the courtroom
from the Central Jury Panel. The judge explains some general
principles of law to them.
From that panel, 12 or more at a time, (six if it's a misde-
meanor trial), are called into the jury box to be questioned by
the judge, the D.A., and the defense attorney.
26
The purpose of the voir dire is to give the D.A. and the
defense attorney a chance to find out whether the prospective
juror can be fair.
After each round, the attorneys usually leave the courtroom
with the judge and court reporter (who records the proceedings),
and challenge the jurors they don't want.
It's more a process of elimination than one of selection.
There are a specific number of peremptory challenges for each
side, depending on the nature of the charges.
Peremptory challenges are those that do not require the
attorney to give a reason for the challenge.
If either side can show the judge that a potential juror
can't be fair, then that juror can be challenged for cause.
Challenges for cause are unlimited.
A felony trial jury consists of 12 jurors and usually two
alternates. If one of the jurors can't continue to serve (be-
cause of illness or the like), an alternate is substituted.
After the jury is selected, the judge usually tells them
more of the general principles of law. S/he explains their
duties and explains the order of the trial. S/he also warns them
not to discuss the case with anyone until it's over.
The D.A. then makes an opening statement. This tells the
jury what s/he intends to prove to them during the trial. S/he
usually describes this as a table of contents.
The defense attorney may also make an opening statement.
This will be a matter of trial strategy that your lawyer will
decide, depending on the nature of your defense.
The defense attorney is not required to make an opening
statement, because the defense is not obligated to prove anything
during the trial.
After opening statements, the D.A. presents evidence.
Evidence is testimony from witnesses, and exhibits (weapons,
contraband, documents, etc.).
When a witness testifies for the D.A., s/he questions
him/her first. This is direct examination. When the defense
attorney questions that witness, it's cross-examination.
When the D.A. has finished putting on his/her case, your
lawyer has the right to present a defense case.
However, the defense doesn't have to present a case because
the defense doesn't have to prove anything.. The jury is sup-
posed to decide, based on what the D.A. presents, if they're
convinced of your guilt "beyond a reasonable doubt".
27
A major trial decision is whether or not you'll testify in
your own behalf at trial. Even though the jury is told not to
hold it against you if you don't testify, they often do hold it
against you. The decision is harder if the D.A. has been given
permission to cross-examine you about your criminal record.
After the defense rests, the D.A. may present evidence to
rebut something the defense has raised in its case. If this
happens, the defense may present evidence to rebut that.
When both sides finish presenting their evidence, they rest.
Then they do summations. The defense attorney sums up first,
and, because s/he has the burden of proof, the D.A. sums up last.
Summations are the lawyers' comments about the evidence to
show why they think the jury should reach a certain verdict.
When both sides finish their summations, the judge explains
the relevant law to the jury and sends them out to deliberate
until they reach a verdict.
They're not allowed to discuss the case with anyone who
isn't on the jury.
A verdict must be unanimous. Sometimes the jury can't reach
a verdict by the end of the day, and they're sequestered for the
night (sent to a hotel together).
If the jury can't reach a unanimous verdict, and it seems
they won't be able to no matter how long they deliberate, they
may let the judge know they're deadlocked, and the judge may de-
clare a hung jury. If that happens, you may be tried again.
If you're acquitted (found not guilty), you can't be charged
or tried again for the same case.
SENTENCING
If you're convicted after trial, or take a plea, the case
will be adjourned for the probation department to prepare a
report to aid the judge in sentencing. If you've been in jail
awaiting trial you'll get credit for that time toward your sen-
tence.
It's very important to make a good impression on the person
interviewing you, because his/her recommendation carries alot of
weight. Even if your sentence was negotiated by plea-bargain, if
the probation report is bad, the judge may decide not to keep
his/her promise to you and give you the option of taking more
jail time or withdrawing your plea.
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Also, your probation report is attached to your file and is
taken into consideration when you become eligible for parole.
If you're eligible for "youthful offender" treatment, the
probation report is sometimes the deciding factor.
If you've taken a plea and are out of jail awaiting sen-
tence, and fail to keep your appointment for your interview with
the Department of Probation, or get convicted of another crime,
or fail to appear in court on the date of sentence, the judge can
give you a harsher sentence, without giving you the option of
withdrawing your plea.
When the Department of Probation prepares its report, they
usually contact the D.A. for input, but not the defense attorney.
If you're convicted after trial, your lawyer may want to prepare
his/her own "pre-sentence report" to balance things out.
APPEALS
If you're convicted after trial, your lawyer must file a
"notice of appeal" for you within 30 days of the sentence date to
insure your right to appeal.
If you're indigent, a lawyer will be assigned to do your
appeal. It will either be a Legal Aid lawyer or an 18-B lawyer.
Appeals take a long time to be heard. Part of the delay,
especially if you're indigent, is the length of time it takes the
appeals lawyer to get the minutes of the trial.
Assigned lawyers have alot of cases to do, so it usually
takes longer for them to get to your case. It sometimes takes
years for an appeal to be heard.
If you can afford to pay privately for the appeal, and the
minutes of the trial, you can speed up the process quite a bit.
Sometimes you can get bail pending appeal, but the majority
of defendants wait in jail until their appeal is heard.
"ASSERT YOUR RIGHTS" CARD
If you're arrested, you can tell the police your name,
address, date of birth, etc. (pedigree information), but don't
answer questions about the crime or where you were when it hap-
pened.
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To protect yourself, cut out the card below and keep it with
you, just in case. If you borrowed this book from your library,
please just photocopy this card. Hand it to the police if they
want to question you; search you or your property; or place you
in a line-up. This card could save you years in jail.
----------------------------------
* I do not wish to answer any *
* questions without speaking to *
* an attorney first. I do not *
* consent to a search. I do not *
* consent to being in a line-up. *
* I will not waive any of my *
* constitutional rights. *
* Thank You. *
----------------------------------
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ABOUT THE AUTHOR
Joyce David is a criminal lawyer with offices in the Tower
Suite of 16 Court Street, Brooklyn, N.Y., 11241, (718) 875-2000.
Ms. David is admitted to practice in the State and Federal
courts in New York and in the United States Supreme Court.
She's represented thousands of defendants accused of almost
every type of crime. She's a frequent lecturer and is often
consulted by the media on matters relating to the Criminal Jus-
tice System.
Ms. David's professional activities include:
* Vice President - New York State Association of Criminal
Defense Lawyers (also Chair Task Force on Bias in
the Criminal Justice System)
* Executive Vice President - Kings County Criminal Bar
* Homicide Panel - Second Judicial Department
* Co-Chair Criminal Law & Procedure Committee - Brooklyn
Bar Association
* Women & Minorities Committee - National Association of
Criminal Defense Lawyers
* Executive Vice Chair - Brooklyn Women's Political Caucus
* Special Counsel to Co-Chair - New York State Democratic
Committee, Women's Division
* Candidate for State Committeewoman - 1984
* Freelance Journalist
* Society of Professional Journalists & NY Deadline Club
* New York Women in Communications, Inc.
* Mensa
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