New York City's Criminal Justice Process: An Overiew
Being arrested for any offense is a scary situation, and it's even scarier if you know nothing about the justice system. This piece is an overview of how New York City's criminal court system works. It will hopefully help put your mind at ease, or at least give you some insight about what to expect.
Step One: ArrestA police officer can (and likely will) arrest anyone whom they have probable cause to believe committed an offense. An officer doesn't need to see a crime occur to have probable cause, it can be based on what they're told by a victim or witness. Regardless of what you may say to an officer in your defense, if they have probable cause to arrest you they almost certainly will. Keep this in mind if you're ever tempted to try talking your way out of an arrest. The "Miranda" warnings you've likely heard many times are true, anything you say really can be used against you. Even statements that support your innocence could potentially hurt your case down the line. For this reason, you should not say anything to the police without first getting an experienced criminal defense lawyer.
Another thing you shouldn't do is physically resist the arrest. Even the slightest bit of resistance can give rise to a Resisting Arrest charge. You're not going to stop the arrest from taking place, so why add to the allegations against you? Additionally, if you do resist and an officer is hurt you could also be charged with felony Assault. Resisting Arrest is an A misdemeanor that is punishable by up to a year in jail. People often get arrested for a non-criminal violation of law, then resist arrest and end up charged with something worse than what they initially did. This obviously complicates the case and puts the arrested person in a worse position, so do yourself a favor and don't resist or fight the officers. Do that in court, not the street.
Step Two: Booking & ProcessingIf you're lucky, after your arrest the police will fingerprint you and give you a Desk Appearance Ticket, also known as a "D.A.T." This means you don't get put through Central Booking right away, a process that could take days. However, you will have to come back to court at a later date for your arraignment. It usually takes just a few hours for a D.A.T to be processed. They are only issued in limited circumstances, and generally only for misdemeanors or lower level violations. If you get a D.A.T and don't show up for your court date a warrant will be issued for your arrest. If you can't make it, get an attorney to try to reschedule. If you show up to court without an attorney the judge may appoint you one for free, but unless you're indigent (e.g. poor) they will not allow the free lawyer to stay on the case. The best course of action is to hire an attorney before the court date so they can be fully prepared. They may even be able to work out a deal before you get there.
If you're not given a D.A.T, you'll be booked and taken to Central Booking at the borough's criminal courthouse. The arresting officer will then get in touch with the DA's office to discuss the allegations, and together they will draft a criminal complaint containing the official charges. This process can take hours or it can take days, it all depends on how many other arrests happened that day and how complicated your case is. Although you have a technical right to see the judge within 24 hours of arrest, as a practical matter this doesn't always happen. Once it's clear that you're going to Central Booking you should do whatever you can to get an attorney as soon as possible. A private attorney may be able to speed up the process, and at the very least they can let the DA know you're represented by counsel and are not to be questioned.
Letting everyone know that you have a lawyer early on is particularly important since some DA's offices attempt to question people who've been arrested before they've seen the judge. If you don't have an attorney and the DA's office tries to question you, you should always refuse to speak with them. Their motive is to prosecute you, not defend you. Regardless of what they may say in the interrogation room, anything you'd want to say to them can be said later, after you've discussed it with your attorney. Let your attorney make an informed decision on whether you should talk to them. They're the experts, wait for their expertise before opening your mouth.
Step Three: ArraignmentArraignment is the term for when you're brought before the judge, informed of the specific charges against you, and given an opportunity to plead guilty or not guilty. If you plead not guilty the judge will decide whether or not to set bail, and if so how much. The specifics of what will happen at arraignment depend on the level and type of offense that you're charged with.
If the top charge against you is a misdemeanor or non-criminal violation, the DA might make you an offer to finish the case that day. Two common forms of arraignment offers are Adjournments in Contemplation of Dismissal and pleas to Disorderly Conduct. Disorderly Conduct is a violation of law that is punishable by up to 15 days in jail. It is not a crime, so a conviction for it will not give you a criminal record. If you're charged with a misdemeanor that would give you a criminal record, the DA might offer to dismiss it if you plead guilty to the lesser charge of Disorderly Conduct. In exchange for this deal you may be required to pay a fine, do community service, abide by an order of protection, or do anything else the DA and Court deem necessary. Although Disorderly Conduct is just a violation of law, do not plead guilty to it without first discussing it with your lawyer.
Another common arraignment offer for lower level offenses is called an Adjournment in Contemplation of Dismissal, often referred to as an "ACD." If you take an ACD you will not be convicted of anything at all. Accepting an ACD simply means that you've agreed to have the case fully dismissed and sealed after a set period of time (usually six months or a year.) The ACD can also be contingent upon you doing things like community service, abiding by an order of protection, or paying restitution. As long as you don't get re-arrested or otherwise violate the terms, the dismissal happens automatically. If you are re-arrested or otherwise violate the agreement, the DA has the right to re-open the case and prosecute you. However, even when someone violates an ACD the DA's offices in New York City rarely re-open these cases. An ACD is a great result and rejecting it is usually a mistake, but there are legitimate reasons someone might consider turning it down. It is therefore important to discuss it with your attorney before you agree to take an ACD, even though taking it is almost always the right move.
Step Four: Pre-Trial LitigationIf you don't end your case at arraignment, it will be adjourned to another court date for further proceedings. If the judge sets bail you will stay in jail until the case is over or someone posts the bail for you. There are certain exceptions to this, though. For example, if your case is a misdemeanor and the DA's criminal complaint is legally insufficient you'll be released 5 days after arraignment, even if no one pays your bail. If the case is a felony, you'll be released after 6 business days if the DA hasn't gotten a Grand Jury indictment against you by then. This rule sounds pretty simple, but for the reasons discussed below it is definitely not.
Some DA's offices will only offer a plea bargain in a felony case if the defendant waives their rights under Criminal Procedure Law Sections 30.30 and 180.80. These are specific office policies and mostly non-negotiable. CPL Section 30.30 is NY's speedy trial statute, and CPL Section 180.80 is the rule that says you'll get released if you're not quickly indicted. Many defense attorneys have argued that these rights waiver policies are unfair and unconstitutional, but all of these arguments have failed. If the DA prosecuting you has such a policy, you need to have a frank and intelligent discussion with your lawyer about the best course of action. Even though waiving these rights may result in you staying incarcerated in the short term, it could also mean you'll end up doing much less jail time in the long term, or even do no real jail time at all. As a strategic matter, there are reasons to waive your rights and reasons you may not want to. Every situation is different and needs to be decided on its own.
Regardless of whether your case is a felony or misdemeanor, at your next court date the DA will either make you a plea deal offer or say that there is none. If there is none, they will likely make a sentence recommendation to the judge, stating what they'd want your sentence to be if you plead guilty to the top charge. Their offer or recommendation may be better, worse, or the same as what they sought at your arraignment. If you take a deal or otherwise plead guilty, you will then have to do whatever sentence you agreed to. Make sure you do whatever you say you will, or you'll risk getting re-sentenced to something worse. If you don't take a deal or otherwise plead guilty, the case litigation continues.
After the second court date, misdemeanor cases will usually be adjourned for the lawyers to make written arguments called motions. Sometimes the lawyers will agree to "Open File Discovery" (aka "Voluntary Disclosure",) instead. Open File Discovery means the DA turns over all their relevant evidence to the defense attorney without the need for filing written motions. It's done in order to speed up the process and not burden the court with extra paperwork. If the misdemeanor court deems any pre-trial hearings to be necessary, the case will then be adjourned for those hearings. A pre-trial hearing is a proceeding where a judge decides if evidence was obtained legally and therefore can be used against you at trial. After the hearing is over and a ruling is made your case will be adjourned for the trial. Sometimes cases are scheduled for hearings and trial together, with the trial happening right after the hearing. But usually there will be an adjournment period in between.
Felony cases take a bit of a different path than misdemeanors here. Someone charged with a felony in NYC has to be indicted by a Grand Jury within 6 months or the case gets dismissed (but note: any time periods where you waived your rights do not count.) If the DA gets an indictment in a timely fashion your case will then be transferred from Criminal Court to Supreme Court. From there it will proceed in generally the same manner described above. The main difference between the paths of felonies and misdemeanors (aside from the higher stakes) is the Grand Jury, itself.
Unlike a felony trial jury which consists of 12 people who must decide if the DA's proven their case beyond a reasonable doubt, a Grand Jury consists of 23 people who decide only whether the DA has enough evidence to go forward with a trial. While a trial jury verdict has to be unanimous, the DA just needs a majority of the Grand Jury to vote for an indictment. The Grand Jury is a secret proceeding and there is generally no judge involved. The only people present in the Grand Jury are the jurors, the DA and the witnesses.
Since the DA's burden at the Grand Jury level is so low, indictments are very common and a Grand Jury refusing to indict someone is rare. While you have the right to testify in your defense at the Grand Jury, the DA will be able to cross-examine you without a judge there to keep them in check. Additionally, anything you say there can potentially be used against you later at trial. Since Grand Juries usually indict even if someone testifies in their defense, it is often inadvisable for a defendant to testify. But every case is different, only you and your lawyer can decide whether or not testifying is the right move.
Step Five: TrialAfter all pre-trial proceedings have concluded, your case will be sent to a courtroom for trial. If the top charge is a B misdemeanor or lower, there will be no jury and a judge will decide the verdict. For an A misdemeanor or above, you have the right to be tried by a jury. You can always waive this right and have your case decided by a judge if you and your lawyer think that's the best plan.
At the trial, the DA has the burden of proving your guilt beyond a reasonable doubt. This is the highest burden in the entire U.S justice system, much higher than a plaintiff's burden in a civil lawsuit. If the DA meets this burden, you're found guilty (aka "convicted") and sentenced according to New York's sentencing laws. If they fail, your case is dismissed and sealed. If you are facing numerous charges you could be found guilty of some and not guilty of others. If you are convicted the court will either sentence you right there or adjourn the case for sentencing at another date. If the judge adjourns your case for sentence and you had been out on bail, they can revoke the bail and put you in jail until the sentence date.
At your sentencing, the DA will ask for a specific sentence and your lawyer can ask the judge to give you a better, more lenient one. If the case involved victims, they or their family members can make a victim impact statement to the court. You and your family can make statements, as well. After having heard from both sides the judge will hand down a sentence based on the minimums and maximums for what you've been convicted of. As a practical matter, your post-trial sentence will often be worse than what the judge would have given you if you plead guilty and not had a trial. For this reason you should not go to trial without first discussing with your attorney the pros and cons of pleading guilty.
Step Six: AppealAfter your case is finished and you're sentenced, you can appeal. Everyone convicted at trial has the right to appeal the conviction to a higher court at least once. Even if you plead guilty you may also have the right to appeal the conviction, but these circumstances are more limited. Generally, you do not want to use the same attorney you used at trial for the appeal. Criminal lawyers usually specialize in either trial work or appellate work. Even if someone knows how to do both, it is still likely the better move to get a fresh set of eyes on the case. Keep in mind that you don't have to appeal, either. If you find the verdict and sentence to be fair you're certainly welcome to just accept it. But if you want to appeal it you can, at least once. If you win your appeal the case will get tried again. If you lose, the result stands. You can try to appeal to an even higher court but that court may refuse to hear your case. The reasons for a high court accepting or not accepting an appeal are too numerous to get into here.