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What is an arraignment

An arraignment is the first court appearance by a defendant following an arrest. Under New York State law, when a person is charged in a criminal complaint, they must be produced for arraignment before a Judge within 24 hours. At the arraignment, the defendant and his attorney receive a copy of the complaint containing the charges and a plea is entered. In most cases, a “Not Guilty” plea will be entered unless a plea bargain is struck before the arraignment. This usually only happens in very minor cases.

During the arraignment, the DA gives a recitation of the factual allegations in the case and makes a bail request. The defense attorney then may present an alternate recitation of factual information but must be careful because anything said at the arraignment is “on the record,’ meaning it is recorded by a court reporter and may be used against the defendant in the future if an inconsistency arises.

Following the recitation of the facts, the defense attorney then makes a bail request, which could range from requesting that the defendant be released on his own recognizance (without bail) or that minimal bail be set. Grounds for release and/or minimal bail include the defendant’s ties to the community, lack of, or, minimal prior record, employment, enrollment in school, economic support of others, weakness of case etc.

By law, once bail has been set by a Judge, a reduction in the amount of bail will occur only if the defendant can demonstrate a change in circumstances that benefits the defense. In fact, the DA may ask for an increase in bail if there is a change in circumstances that prejudices the defendant. For example, if the defendant is rearrested while out on bail or if the defendant is indicted by a grand jury.

If the complaint filed by the DA at the arraignment contains at least one felony charge, then the DA must also give notice to the Judge and the defense attorney of their intention to present the case to a grand jury. This is necessary in order to afford the defendant an opportunity to assert his right to testify before the grand jury. A defendant has a right, but no obligation to testify before the grand jury hearing evidence against him. If a defendant wishes to testify before the grand jury, the defense attorney must serve written notice, at the arraignment, of defendant’s intent to testify at the grand jury or his right to testify will be forfeited.

What is the grand jury and what are my rights with respect to the grand jury?

If the complaint filed by the DA at the arraignment contains at least one felony charge, then the DA must also give notice to the Judge and the defense attorney of their intention to present the case to a grand jury. This is necessary in order to afford the defendant an opportunity to assert his right to testify before the grand jury. A defendant has a right, but no obligation to testify before the grand jury hearing evidence against him. If a defendant wishes to testify before the grand jury, the defense attorney must serve written notice, at the arraignment, of defendant’s intent to testify at the grand jury or his right to testify will be forfeited.

What is the difference between a felony, a misdemeanor and a violation?

If the complaint filed by the DA at the arraignment contains at least one felony charge, then the DA must also give notice to the Judge and the defense attorney of their intention to present the case to a grand jury.  This is necessary in order to afford the defendant an opportunity to assert his right to testify before the grand jury.  A defendant has a right, but no obligation to testify before the grand jury hearing evidence against him.  If a defendant wishes to testify before the grand jury, the defense attorney must serve written notice, at the arraignment, of defendant’s intent to testify at the grand jury or his right to testify will be forfeited.   

What is a conditional discharge?

If the complaint filed by the DA at the arraignment contains at least one felony charge, then the DA must also give notice to the Judge and the defense attorney of their intention to present the case to a grand jury.  This is necessary in order to afford the defendant an opportunity to assert his right to testify before the grand jury.  A defendant has a right, but no obligation to testify before the grand jury hearing evidence against him.  If a defendant wishes to testify before the grand jury, the defense attorney must serve written notice, at the arraignment, of defendant’s intent to testify at the grand jury or his right to testify will be forfeited.   

What is probation?

If the complaint filed by the DA at the arraignment contains at least one felony charge, then the DA must also give notice to the Judge and the defense attorney of their intention to present the case to a grand jury.  This is necessary in order to afford the defendant an opportunity to assert his right to testify before the grand jury.  A defendant has a right, but no obligation to testify before the grand jury hearing evidence against him.  If a defendant wishes to testify before the grand jury, the defense attorney must serve written notice, at the arraignment, of defendant’s intent to testify at the grand jury or his right to testify will be forfeited.

Conditions of probation and of conditional discharge

If the complaint filed by the DA at the arraignment contains at least one felony charge, then the DA must also give notice to the Judge and the defense attorney of their intention to present the case to a grand jury.  This is necessary in order to afford the defendant an opportunity to assert his right to testify before the grand jury.  A defendant has a right, but no obligation to testify before the grand jury hearing evidence against him.  If a defendant wishes to testify before the grand jury, the defense attorney must serve written notice, at the arraignment, of defendant’s intent to testify at the grand jury or his right to testify will be forfeited.   

What is an adjournment in contemplation of dismissal (acd)?

If the complaint filed by the DA at the arraignment contains at least one felony charge, then the DA must also give notice to the Judge and the defense attorney of their intention to present the case to a grand jury.  This is necessary in order to afford the defendant an opportunity to assert his right to testify before the grand jury.  A defendant has a right, but no obligation to testify before the grand jury hearing evidence against him.  If a defendant wishes to testify before the grand jury, the defense attorney must serve written notice, at the arraignment, of defendant’s intent to testify at the grand jury or his right to testify will be forfeited.   

What is plea bargaining?

If the complaint filed by the DA at the arraignment contains at least one felony charge, then the DA must also give notice to the Judge and the defense attorney of their intention to present the case to a grand jury.  This is necessary in order to afford the defendant an opportunity to assert his right to testify before the grand jury.  A defendant has a right, but no obligation to testify before the grand jury hearing evidence against him.  If a defendant wishes to testify before the grand jury, the defense attorney must serve written notice, at the arraignment, of defendant’s intent to testify at the grand jury or his right to testify will be forfeited.

What is a dismissal?

If the complaint filed by the DA at the arraignment contains at least one felony charge, then the DA must also give notice to the Judge and the defense attorney of their intention to present the case to a grand jury.  This is necessary in order to afford the defendant an opportunity to assert his right to testify before the grand jury.  A defendant has a right, but no obligation to testify before the grand jury hearing evidence against him.  If a defendant wishes to testify before the grand jury, the defense attorney must serve written notice, at the arraignment, of defendant’s intent to testify at the grand jury or his right to testify will be forfeited.   

What is a conviction?

If the complaint filed by the DA at the arraignment contains at least one felony charge, then the DA must also give notice to the Judge and the defense attorney of their intention to present the case to a grand jury.  This is necessary in order to afford the defendant an opportunity to assert his right to testify before the grand jury.  A defendant has a right, but no obligation to testify before the grand jury hearing evidence against him.  If a defendant wishes to testify before the grand jury, the defense attorney must serve written notice, at the arraignment, of defendant’s intent to testify at the grand jury or his right to testify will be forfeited.   

What is an acquittal?

If the complaint filed by the DA at the arraignment contains at least one felony charge, then the DA must also give notice to the Judge and the defense attorney of their intention to present the case to a grand jury.  This is necessary in order to afford the defendant an opportunity to assert his right to testify before the grand jury.  A defendant has a right, but no obligation to testify before the grand jury hearing evidence against him.  If a defendant wishes to testify before the grand jury, the defense attorney must serve written notice, at the arraignment, of defendant’s intent to testify at the grand jury or his right to testify will be forfeited.   

What types of evidence are there in a criminal case?

If the complaint filed by the DA at the arraignment contains at least one felony charge, then the DA must also give notice to the Judge and the defense attorney of their intention to present the case to a grand jury.  This is necessary in order to afford the defendant an opportunity to assert his right to testify before the grand jury.  A defendant has a right, but no obligation to testify before the grand jury hearing evidence against him.  If a defendant wishes to testify before the grand jury, the defense attorney must serve written notice, at the arraignment, of defendant’s intent to testify at the grand jury or his right to testify will be forfeited.   

What is an appearance ticket?

An appearance ticket or “desk appearance ticket,” is a written notice issued and signed by a police officer or other authorized public servant directing a person to appear in a designated local criminal court at a designated future time in connection with his/her commission of a designated offense.

Whenever a police officer is authorized to arrest a person without a warrant, for an offense other than a class A, B, C, D or E felony or a violation of other particular sections of the Penal Code (certain sex crimes, escape or bail jumping for example), he may, subject to certain provisions of the penal code, issue to and serve upon such person an appearance ticket.

Practically speaking, what this means is that the police officer, may, instead of formally arresting the person and holding them in custody until an arraignment, issue an appearance ticket either upon a deposit of pre-arraignment bail as provided for by the Penal Law, or, without bail.

The person is then obligated to return to court on the adjourned date listed on the appearance ticket. If the person fails to show up in court on the designated day, the bail may be forfeited and a warrant may issue for the arrest of the person.

The amount of pre-arraignment bail is determined by the Desk Officer of the precinct in which the crime occurred or any of the arresting officers superiors. A police officer who has issued and served an appearance ticket must, at or before the time such appearance ticket is returnable, file or cause to be filed with the local criminal Court in which it is returnable a local criminal court accusatory instrument charging the person named in the appearance ticket with the offense specified therein.

What types of evidence are there in a criminal case?

How does the prosecutor prove the guilt of a person accused of a crime? Working with law enforcement agencies, the prosecutor gathers evidence that they will later present in court to prove the guilt of the person accused. What types of evidence are there? From watching popular crime shows on television, most people assume evidence in a criminal case must consist of DNA, fingerprints, video surveillance, hair and fibers, trace evidence, etc.

In the majority of real-life criminal cases, however, evidence consists mainly of the testimony of eye witnesses. The stories of the witnesses, the words they say to describe what supposedly happened to them, are evidence. What most people do not know is that you can be convicted of any crime solely on the testimony of an eyewitness without any other evidence, provided a jury hearing such evidence is convinced beyond a reasonable doubt that the witness’ testimony is truthful, accurate and reliable. Thus, the testimony of a person who was the victim of a robbery without any other evidence could be enough to convict someone of robbery if that testimony is proven to be accurate and reliable and convincing beyond a reasonable doubt as that concept is defined by the judge.

When/why/how can the police arrest me?

There are several different ways one can be charged with a crime. If a police officer observes someone commit a crime, then he can arrest the person immediately. If a person reports a crime to the police and following an investigation there is an identification of the perpetrator, then the police can look for and under certain circumstances arrest the perpetrator if and when they find him.

If a crime occurred that was not witnessed by the police or that was not immediately reported to the police, an immediate arrest may not be possible. Under these circumstances, when the identity of the person who committed the crime becomes known to the authorities, then the police can go and arrest the person. At times, a prosecutor working with the investigating police officer can obtain an arrest warrant authorizing the police to seek out and arrest the perpetrator. However, a warrant is not always required for an arrest.

A warrant of arrest is a document issued by a local criminal court directing a police officer to arrest a defendant designated in an accusatory instrument filed with the court and to bring him before such court in connection with such instrument.

Arrest without a warrant: a police officer may arrest a person for any offense when he has reasonable cause to believe that such person has committed such offense in his presence; and a crime when he has reasonable cause to believe that such person has committed such crime, whether in his presence or otherwise.

A police officer may arrest a person for a petty offense only when such offense was committed or believed by him or her to have been committed within the geographical area so such police officers employment or within one hundred yards of such geographical area.

A police officer may arrest a person for a crime, whether or not such crime was committed within the geographical area of such police officer’s employment, and he may make such arrest within the state, regardless of the situs of the commission of the crime.

When is evidence seized by the police inadmissible in court?

The fourth amendment of the United States Constitution and similar provisions of the New York State Constitution protect citizens against unreasonable searches and seizures. In interpreting these constitutional protections, the courts have developed an effective tool to ensure that the police obey and respect the basic right of all citizens to be free from illegal searches and seizures. That tool is known as the exclusionary rule. Simply put, the exclusionary rule provides that all evidence obtained by searches and seizures in violation of the Constitution is inadmissible in court against the accused. Hence, if a court determines that a search and seizure conducted by law enforcement was in violation of constitutional standards, then any evidence obtained as a result of that search would be suppressed, that is, not admissible at trial against the accused. If the charges in the case cannot be supported without the excluded evidence, then the case will in all likelihood, be dismissed.

There are many ways in which to argue that evidence should be excluded or suppressed- for example, if the police stop and search someone without reason to believe a crime has been committed, then any evidence they obtain as a result of stopping and searching the person will be inadmissible in court. If the police enter a home, conduct a search, seize contraband and arrest a person inside but do not have an arrest and/or a search warrant then any evidence seized inside the home or on the person should be excluded or suppressed.

Practical Tips For Interactions With The Police

Encounters while driving a vehicle : Whether or not the police can search you, your car and/or containers found in your car following a car stop depends on the factual circumstances for each case.

A driver’s license is a privilege and not a right so all drivers are expected to adhere to the vehicle and traffic laws and rules. If you want to avoid being pulled over by the police, then follow the common-sense rules of the road: always wear your seatbelt. Never use a cell phone while driving. Never drink and drive. Never drive after drinking. Never consume alcohol while driving (sounds funny but it happens a lot-it’s one of those things that people say they would never do but after a few drinks- anything can happen).

Always keep your vehicle up to snuff- make sure all lights are working, that your vehicle has a license plate firmly attached to the front and rear of the vehicle (propped up in the window will get you pulled over in a jiffy). Make sure your license, registration, inspection and insurance are up to date and WITH YOU AT ALL TIMES.
Promptly repair any damage to the vehicle that might prompt the police to pull you over (cracked or broken windshield or rear window).

Avoid reckless driving and/or speeding. Due to recent changes in the law regarding search and seizure, the police nowadays need very little reason to pull you over and inspect you and the inside of your vehicle and any containers inside your vehicle and/or trunk.

You are not the only one who is going to be nervous when you are pulled over. The police officer may also be nervous- car stops are one of the most dangerous parts of the police officer’s job-he or she is likely to be nervous and hyper vigilant- so don’t do anything that might make them jumpy. If after the lights and sirens go on, he sees you bending over or reaching for the glove compartment or under the seat, you are only inviting a more intrusive encounter. He will assume you are trying to stash something or worse, obtain a weapon. Once you see the lights or hear the siren-keep your hands on the wheel, don’t move around in your seat or reach for anything (if you can help it) - stay calm, stay in the car, turn off the ignition, and keep your hands on the steering wheel until the police officer comes up to the window and instructs you on what to do next.

The more calm and compliant and cooperative you are, the more relaxed the police officer will be and the less likely he will become suspicious and want to search you and your car and/or give you a ticket.

If you argue with the officer or become belligerent or impatient or antsy, his suspicions will be raised and you will be inviting a full-blown search and he will likely find more things to ticket you for.

 

Harold C. Baker, Esq

Don’t offer any information or blurt out some half-baked story- just listen to the cop and answer his basic questions regarding your vehicle- ie- license registration and insurance and where you are going or where you came from. Simplicity is key- things can get hairy if you begin to offer information or comment to the police about anything- don’t give them a reason to become more suspicious of you. It’s ok to disagree with a police officer once you learn the reason for the stop- but never get confrontational-never get impatient- never argue- it will only make things worse.

The cost of a traffic ticket may be a huge inconvenience but it pales in comparison to spending a night in jail for resisting arrest or obstructing governmental administration (ie: arguing with the police officer). Resisting arrest and obstruction of governmental administration are both misdemeanors.