So you have been arrested. What will happen next? Will you remain in jail or will you be released while the case is pending? This guide will briefly discuss processing after arrest in first offense misdemeanor or lesser felony cases.
After you are arrested, in most cases, you will be taken to a police station, fingerprinted and photographed. The officers will interview you and take down your pedigree information such as name, address, date of birth, height, weight eye color. You have a right to remain silent and not make any statements about the case but providing basic truthful pedigree information is the best course of action. Providing a false name or pedigree information is a crime called criminal impersonation and withholding pedigree information will increase your chances of bail being imposed (see below). After being processed at the police station, in less serious cases you will be given a desk appearance ticket (“DAT”) and released. The DAT is a slip of paper directing you to appear in court on a specific date and time. It may also have an arrest number and section of the law you are accused of violating. In more serious cases, the police will transport you to court for an arraignment.
The arraignment is your initial court appearance in front of a judge in a town or village court, district court, city court or criminal court. These are all considered lower criminal court’s in New York that initially handle all criminal cases including felonies. At the arraignment, the judge will read the charges and determine whether bail should be imposed or you should be released on your own recognizance (“ROR”). You are entitled to a copy of the charges and should ask for a copy if the judge does not provide them to you. Bail is an amount of money you, a friend or family member “post” with the court to ensure that you return to court to face the charges. Bail is not a punishment, and should only be imposed if you are a “flight risk” or charged with certain dangerous felonies. Imposing bail because the judge does not like you or the facts of the case or for some other improper reason is unconstitutional because the presumption of innocence applies at arraignment.
Usually bail may be posted in two forms: in cash or by bail bond. The bail bond amount will generally be higher than the cash amount. Bail bonds must be obtained with the help of a licensed bail bondsman who reviews the finances of the person who wants to obtain the bond to make sure he or she can pay the bondsman should you run away. The bail bondsman usually imposes a fee for the bond which is how they make money. Different bondsmen will impose different fees so the person posting the bond should call around to compare fees. If you run away after bail is posted, the person who posted the bail will forfeit the amount of the bail, you will be charged with the felony of bail jumping and a warrant will be issued for your arrest. Bail (cash or bond) is refundable at the end of the case less a court imposed percentage that the court keeps as a fee. If the case is resolved in your favor there is no court fee.
Your Right To An Attorney At Arraignment
New York’s highest court has held that you have the right to have an attorney present at your arraignment because it is a critical stage of a criminal case. If you are charged with a felony or serious misdemeanor and find yourself at an arraignment and you are not able to have your private attorney present or provided with an attorney to speak on your behalf, you should tell the judge that you do not wish to proceed with the arraignment until you are provided with an attorney experienced in criminal law. If you are not sure if the charge is serious enough to warrant bail, then ask the judge if he intends to impose bail and if so, you wish to have an attorney present to argue against the imposition of bail. If you cannot afford an attorney or your private attorney is not available for the arraignment, the court must provide an experienced attorney at arraignment free of charge.
If you are arrested, you have a right to be arraigned within 24 hours during the week and within 48 hours on weekends. If the police and court system exceed that time, the remedy is to grant ROR. In rare cases, it may be necessary for your attorney to file a writ of habeas corpus which is a court order directing your release from custody. After you are arraigned and bail is set the prosecution must move forward expeditiously with your case. If it is a felony and you are in custody, the prosecutor must obtain an indictment within 120 hours during the week or 144 hours if there is an intervening weekend or holiday. Failure to obtain the indictment results in your release on your own recognizance or a preliminary hearing which is quite rare in NY. In the case of a misdemeanor complaint and bail is set, the People must file a supporting affidavit to convert the complaint to an information within 5 days, excluding Sundays, or you must be released on your own recognizance.