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CRIMINAL LAW AND PROCEDURE IN NEW YORK STATE

Posted by attorney Marco Caviglia

In New York State, a person can be arrested for an offense in violation of the Penal Law. The most serious offense is a felony which may result in a definite or indefinite sentence in a state prison. A misdemeanor may result in a sentence of up to one year in a county jail. Felonies and misdemeanors are crimes, violations are not. A violation may be punishable by up to thirty days in jail. Parole may apply to a felony and probation to a misdemeanor. These are continuations of one's sentence served after release from incarceration.

A person, after arrest, is charged by an accusatory instrument which states what the charge is against him. Felonies can only be tried in a superior court, so an accusatory instrument called an indictment is necessary. A grand jury indicts a person for a felony. If the charge only involves a misdemeanor, the matter proceeds by an accusatory instrument called a complaint or information. A misdemeanor may be tried in a city, district, or local justice court, so usually no grand jury convenes. These are just different names for accusatory instruments

ARRAIGNMENT THROUGH APPEAL

At the first appearance, the defendant is arraigned. The judge advises him of the charges, his rights, and sets a date for further procedures as well as bail. If the defendant might be a flight risk, bail is set. Bail is an amount of money or security that must be posted, otherwise the accused goes to jail awaiting trial. Your attorney is the person you hire to represent the accused. The law provides that if the defendant can not afford an attorney, the court appoints one. In such case, the accused has no choice as to who represents her. The attorney who represents the government and seeks to convict the accused is the prosecutor.

Evidence can be challenged prior to trial by a defendant by making a motion to suppress such evidence if it was illegally obtained by the police. Often, the court must listen to some testimony to determine the facts as to how the evidence was procured, so it holds a pretrial hearing. The hearing is only to determine if the evidence should be included or excluded at trial, and does not determine the guilt or innocence of the defendant.

Subsequently, the case may proceed to trial. A felony charge entitles the defendant to a jury of twelve, and a misdemeanor a jury of six. They must all find the defendant guilty beyond any reasonable doubt in order to convict. If they cannot agree, the jury is "hung" and may require a re-trial. If they all agree that the government has not proven that he is guilty , the defendant is acqiuitted and remains a free man or is set free.

If convicted, the defendant has the right to appeal, but successful appeals are indeed rare. Even if successful, it usually only results in a new trial. So the most important phase is the trial itself.

YOUR RIGHTS IF ARRESTED

In New York, even during the investigatory stage (i.e., one is only a "witness," "person of interest," or a "suspect," but not formally arrested yet), one may affirmatively invoke her right to counsel. One may simply state, "I want my attorney here if you want to question me." Then one must give the attorney's name, and one should contact the attorney. "When he is sitting next to me, I'll agree to speak if he says it is OK." The police are required to respect the fact that you have invoked your right to counsel, and question you no further without your attorney.

However, since one is not yet under arrest, no Miranda warnings are required, so one must speak up. Otherwise, these informal chats with the police may result in the person having given admissions or even a confession during such questioning. So it is good practice to carry an attorney's business card.

Remember, the average citizen is no match for the police, regardless of one's educational level. They are trained at eliciting evidence from people and very good at it. One's best defense is exercising one's right to silence and getting a good criminal attorney. One should decide to contact one BEFORE the damage is done.

GOING THROUGH LITIGATON and CHOOSING A CRIMINAL LAW ATTORNEY

We hope this information is of assistance to you. It is no substitute for a consultation with an attorney versed in criminal law and procedure if you are charged with a crime or being investigated, however, so don't try to fix your legal problems on your own...get help.

As in any field of law, one should choose someone who has an excellent background and experience in the field of criminal law. Check his or her credentials: How much of his practice is criminal law? How much criminal trial experience? Does he come highly recommended? What type of criminal cases does he usually handle? If one is charged with murder, someone concentrating in drunk driving cases might not be the right person. But even that would be better than an attorney who usually handles real estate closings. Finally, you should feel comfortable with the attorney....he should be able to explain things to you, and you should feel you are in good hands...if so, that's the attorney for you. In checking credentials or reputation, you can also ask the local bar association for that county for an experienced attorney in that field of law. After being charged, and possibly appearing in court alone during arraignment, even if one has not spent any time in jail, she will naturally be very apprehensive.

An attorney will guide the defendant and speak for her in and out of court, investigate the evidence the prosecutor claims incriminates her, and will identify and discuss possible defenses on her behalf. Often, the attorney will discuss a disposition of the case in the form of a settlement with the government depending upon what the nature of the charge against her is, and the strength or weakness of the government's case.

There are a number of possible outcomes of such settlements. They range from some form of dismissal of the charge to a conviction of the crime charged. In cases in which there is an agreement to plead guilty to some offense without a trial, this is called a plea bargain. As the name implies, this refers to an agreement not just as to the offense to which the accused pleads guilty but to the sentence that will be imposed.

CALL US NOW IF YOU ARE LOOKING FOR HELP...845 471-0044

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