Written by attorney Matthew J. Galluzzo

Arrest to Sentencing in New York State Courts - Part 2

Arrest to Sentencing - Part 2


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.

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