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W H A T Y O U S H O U L D K N O W I F Y O U ' R E
A C C U S E D O F A C R I M E
Joyce B. David, Esq.
1988/89 Revised Edition
Foreword by the Hon. Milton Mollen
Presiding Justice Appellate Division
Second Judicial Department
WHAT YOU SHOULD KNOW IF YOU'RE ACCUSED OF A CRIME
Copyright c 1986, 1988 - by Joyce B. David, Esq.
All rights reserved. No part of this publication may be
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passages in a review.
Requests for permission to make copies of any part of this
work should be directed to: Joyce B. David, Esq., 16 Court Street
(Tower Suite), Brooklyn, New York, 11241, (718) 875-2000.
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1988/89 Revised Edition
F O R E W O R D
Anyone confronting the bewildering and, to many, the intimi-
dating and nerve shattering complexities of the New York State
criminal justice system for the first time in his or her life, will
find Joyce David's handbook outlining the ABC's of the system an
invaluable tool in dealing with them.
A highly-respected attorney with a wealth of first-hand
experience in all aspects of criminal law, Ms. David's thorough,
step-by-step description of what a criminal case is all about,
written in language readily understood by the average layman,
unschooled in legal procedures and terminology, will do much to
ease the pain of that first encounter with the law.
Ms. David, expertly and concisely, spells out just what he or
she may expect at every stage of the case, explaining just what
will happen and why.
As she points out correctly in her own introduction, those
exposed for the first time to the criminal justice system often
feel as though they are in a foreign country, with strange new
rules, procedures and language. WHAT YOU SHOULD KNOW IF YOU'RE
ACCUSED OF A CRIME provides the anxious "tourist" with a thoroughly
professional and knowledgeable guidebook.
Second Judicial Department
TABLE OF CONTENTS
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . 6
CHOOSING A CRIMINAL LAWYER . . . . . . . . . . . . . . . . . . . 6
LAWYER/CLIENT RELATIONSHIP . . . . . . . . . . . . . . . . . . . 7
LAWYERS' FEES. . . . . . . . . . . . . . . . . . . . . . . . . . 7
BEFORE YOU'RE ARRESTED . . . . . . . . . . . . . . . . . . . . . 8
DON'T CONFESS. . . . . . . . . . . . . . . . . . . . . . . . . . 8
SOME OTHER DON'TS. . . . . . . . . . . . . . . . . . . . . . . . 9
LINE-UPS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SURRENDER. . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
THINGS YOUR LAWYER MAY NEED TO KNOW. . . . . . . . . . . . . . . 10
THE ARREST . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
BOOKING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
C.J.A. INTERVIEW . . . . . . . . . . . . . . . . . . . . . . . . 12
WHAT ELSE HAPPENS BEFORE ARRAIGNMENT . . . . . . . . . . . . . . 13
CRIMINAL COURT ARRAIGNMENT . . . . . . . . . . . . . . . . . . . 13
BAIL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
ASSIGNED COUNSEL . . . . . . . . . . . . . . . . . . . . . . . . 15
FELONIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
MISDEMEANORS & VIOLATIONS. . . . . . . . . . . . . . . . . . . . 16
YOUTHFUL OFFENDER. . . . . . . . . . . . . . . . . . . . . . . . 17
JUVENILE OFFENDERS . . . . . . . . . . . . . . . . . . . . . . . 17
CIVIL FORFEITURES. . . . . . . . . . . . . . . . . . . . . . . . 17
WHAT CAN HAPPEN TO YOUR CASE . . . . . . . . . . . . . . . . . . 18
WHAT HAPPENS AFTER CRIMINAL COURT ARRAIGNMENT. . . . . . . . . . 18
GRAND JURY . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
INDICTMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SILENT INDICTMENT. . . . . . . . . . . . . . . . . . . . . . . . 21
SUPREME COURT ARRAIGNMENT. . . . . . . . . . . . . . . . . . . . 21
COURT APPEARANCES. . . . . . . . . . . . . . . . . . . . . . . . 22
BENCH WARRANTS & BAIL FORFEITURES. . . . . . . . . . . . . . . . 22
GETTING BACK BAIL MONEY. . . . . . . . . . . . . . . . . . . . . 23
WHAT TAKES SO LONG . . . . . . . . . . . . . . . . . . . . . . . 24
TRIAL PREPARATION. . . . . . . . . . . . . . . . . . . . . . . . 24
TO PLEAD OR NOT TO PLEAD . . . . . . . . . . . . . . . . . . . . 25
PRE-TRIAL HEARINGS . . . . . . . . . . . . . . . . . . . . . . . 26
TRIAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SENTENCING . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
APPEALS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
"ASSERT YOUR RIGHTS" CARD. . . . . . . . . . . . . . . . . . . . 31
ABOUT THE AUTHOR . . . . . . . . . . . . . . . . . . . . . . . . 33
People exposed to the Criminal Justice System for the first
time often feel like they're in a foreign country with strange
rules, procedures and language.
This handbook is geared to the state system in New York City,
but many of the general principles apply to other jurisdictions as
well. It's based on over 10 years of experience "in the trenches".
It's a realistic, not a philosophical look, at the system.
This handbook has general information and shows how cases make
their way through the system. Most of the legal terms used are
explained in the text or are self-explanatory.
This handbook doesn't deal with specific cases or crimes.
There's a lot of information that's just too technical or compli-
cated for this book. If you have specific questions about a case,
you'll have to consult a lawyer personally.
The Criminal Justice System, just like the rest of life, is
not always fair. That doesn't mean we give up; it just means we try
CHOOSING A CRIMINAL LAWYER
If you can afford a private lawyer, I suggest you hire a
criminal lawyer. You wouldn't go to an eye doctor for a problem
with your elbow.
If you don't know any criminal lawyers, call your local bar
association, or check with friends or relatives who may have had
It's not a good idea to hire a lawyer who approaches you in
the courthouse. Lawyers are not supposed to solicit clients that
Find out how much criminal experience a lawyer has before
hiring him/her. The more serious the charges are against you, the
more experienced a lawyer you need.
It helps if your lawyer practices where your case is pending.
Your attorney will know the judges and D.A.s (District Attorneys)
and will have a better idea of what you can expect in your case.
The D.A. is the one who prosecutes the case against you.
You also have an advantage if the judges and D.A.s know and
respect your lawyer. They're more likely to listen if your lawyer
has a good reputation.
It's important to trust your lawyer. His/her job is to defend
you and protect you from the system, whether you're innocent or
guilty. If you committed the crime or participated in some way and
don't feel comfortable telling your lawyer, you should get a dif-
You're not helping yourself if you think your lawyer will do a
better job if she or he thinks you're innocent. It's not a good
relationship if you don't trust him/her enough to be truthful.
Your lawyer can't advise you effectively if you keep things
from him/her. Everything you tell your lawyer is confidential, even
if you eventually hire a different lawyer.
You should ask your lawyer to explain what's happening with
your case. Don't think your questions are stupid just because you
don't understand the system. It's a very complicated system. That's
why you need a lawyer in the first place.
Just because your lawyer isn't in touch with you all the time,
that doesn't mean that she or he isn't working on your case.
There will be times when your lawyer may have to give priority
to someone else's case. This is most likely to happen when your
attorney's doing a trial. Trial is the most important and difficult
part of a case. It demands the most attention and concentration.
Don't feel slighted if your lawyer can't appear on your case
when he or she's on trial with another defendant. It doesn't mean
your case isn't important, just that at this time, another client's
case has priority.
You'll appreciate this when your case goes to trial. You
wouldn't want your lawyer distracted by less pressing matters when
you face your moment of truth.
Lawyers' fees vary depending on the amount of experience hey
have and the nature of the case. It's better to have a clear under-
standing about the fee before any work is done, so your lawyer can
concentrate on your case and not your bill.
Your lawyer's fee will usually not include any other expenses.
You'll probably have to pay additional money fora private investi-
gator, expert witnesses (if necessary), transcripts, etc. Appeals
and civil work are also usually extra.
Criminal lawyers usually require most or all of their fee up
front. This should all be clearly spelled out in the retainer
agreement you sign when you retain the lawyer.
Ironically, innocent people often have to pay higher fees.Be-
cause they're less likely to plead guilty, their cases usually
require more work to prepare for and take through trial.
You shouldn't be looking for bargains when your freedom and
reputation are at stake.
BEFORE YOU'RE ARRESTED
The sooner you get a lawyer involved in your case, the better.
There are important decisions to be made and rights to be pro-
tected, early in a case. If you're accused of drunk driving, you
should contact a lawyer before you submit to a breathalyzer test.
If you find out the police are looking for you, it's best to
call a lawyer before responding to them. If you can't afford a
private lawyer, call the Legal Aid Society.
The police are interested in making out a case against someone
they suspect committed a crime. They're not your friends, unless
you're the victim of a crime. The police may mislead you if they
want you to talk to them and you may find yourself under arrest
based on your own statements to them.
The police are very good at getting confessions. That's the
easiest way for them to wrap up a case.
Even if they use deceptive methods to get a confession, like
telling you things will go easier, or that a co-defendant has
implicated you, this may be considered good police work, and a
judge may allow the D.A. use your statement against you.
If you have a lawyer before you get arrested, she or he can
find out if the police want to question you as a witness or a
If you're a suspect, your lawyer can tell the police that s/he
doesn't want you questioned. If they question you after that, they
won't be able to use your statements against you, unless they can
prove that you blurted out a confession without being asked any
If you're arrested and don't have a lawyer, don't answer any
questions or make any statements about your case to the police or
the D.A. Don't allow yourself to be videotaped. Whether they read
you your rights or not, tell them you want to speak to a lawyer.
Don't think you can outsmart the police.
Your silence can't be used against you, but it's very hard to
defend you if you've made a confession (or admission). Even telling
the police that you were at the scene of the crime but didn't do
anything is an admission to an element of the crime.
If you're in jail, be careful what you say about your case to
other inmates. You never know when one of them will try to work out
his/her own problem by becoming a witness against you.
SOME OTHER DON'TS
Don't consent to a search of your person, home, or car.
Don't consent to be in a line-up or show-up.
This doesn't mean you should physically resist, just that you
should object and tell the police you want a lawyer.
Don't resist arrest or become verbally abusive to the police
or you might find yourself charged with additional crimes and
possibly injured in the arrest process.
If the police intend to put you in a line-up, ask to have a
lawyer there. Your lawyer can determine if they have the right to
do so, and if they don't, s/he can protect you.
If they do have the right to put you in the line-up, your
attorney can monitor the procedure to make sure it's done fairly.
If the persons placed in the line-up with you don't resemble
you, then your attorney can ask the police to find better fillers.
If they won't find better fillers, s/he can make notes of the
differences in appearance between you and the fillers in order to
help you later when the D.A. tries to use the line-up identifica-
tion against you.
The police usually take a black & white Polaroid picture of
the line-up that doesn't clearly show the differences between you
and the fillers.
If you didn't have a lawyer at the line-up, this photo and the
police testimony will often be the only evidence a judge will have,
to determine if the line-up was fair.
Your lawyer can help you decide the best place to sit and
number to hold to minimize the chance of being picked out.
Your attorney can make sure the police don't do anything
improper, like suggesting in some way that the witness pick you
Having a lawyer at this early stage can be very helpful. If
you're not picked out of the line-up in the first place, your case
might be over before it begins and you'll save yourself a great
deal of hassle and money.
Identification cases are the most difficult to defend. Even
though identification testimony is the least accurate, it's the
most believed by jurors.
If you're a suspect in a crime, your lawyer can arrange for
you to surrender.
The reason it's good to surrender (if the police intend to
arrest you), is that it will show the court that you're a responsi-
ble person, worthy of being "released on your own recognizance"
(R.O.R.'d), or of having low bail set when you first appear before
a judge for arraignment. It may also be helpful at plea or trial to
show your cooperation.
The purpose of setting bail is to make sure you return to
court. By surrendering in the first place, you show that you're
likely to return to court without having high bail set.
Your lawyer can tell the judge that you knew the police were
looking for you, had the chance to run, but didn't. Surrendering
won't guarantee low bail, but it gives you a better shot.
THINGS YOUR LAWYER MAY NEED TO KNOW
There are things your lawyer needs to know, to defend you.
Below is a list of some information s/he may need from you:
1) Whether you have any witnesses. These include alibi
witnesses; character witnesses & eyewitnesses.
2) The names, addresses and phone numbers of your witnesses,
so your lawyer can get their statements and advise them
of the disadvantage to you if they speak the D.A.
3) Where and when you were arrested and the circumstances
surrounding your arrest.
4) Whether you were shown to any witnesses by the police and
the specifics of that identification procedure.
5) Whether the police found anything on you relating to the
6) Whether the police had an arrest warrant or a search
7) Whether you made any statements to the police or the D.A.
If so - Were you read your rights? Was any force used
against you? Do you have any injuries?
8) Whether you know the witnesses against you and if they
have any motive to lie.
9) Whether you're on probation or parole.
10) Whether you have any problems that may affect your case,
like mental or physical problems, or problems with drugs
or alcohol. Sometimes these problems may help your de-
11) Your immigration status. If you're not a citizen, a
criminal conviction may create problems for you with
A police officer can arrest you, without a warrant, if that
officer sees you committing a felony, misdemeanor or violation. The
officer can arrest you for a felony or misdemeanor (even without a
warrant), if he or she has "probable cause" to believe you com-
mitted a crime.
All it takes is one person making a criminal complaint against
you, without any corroboration, to give the police "probable cause"
to arrest you. They'll arrest you even if you tell them you're
innocent. They hear that from almost every defendant, even the
guilty ones, so they leave it for the courts to decide.
People find it hard to believe that they can be arrested based
on one person's accusation, but that's the law.
The police should have a warrant if they're arresting you at
home, but there are exceptions to every rule.
When you're arrested, you'll be processed by the police (book-
ed) before being brought to court for arraignment.
The amount of time between arrest and arraignment varies from
state to state and county/borough to county/borough.
After some preliminaries in the precinct, which usually in-
clude being searched, fingerprinted, photographed, and in certain
cases an identification procedure (line-up or show-up), you'll be
taken to Central Booking in the borough of arrest, to be processed
There are sometimes delays in the booking process. Your fin-
gerprints have to be sent to the state capital to get your criminal
record and check if you have any open warrants.
Sometimes the computers aren't working and this delays getting
your criminal record. If it's your first arrest, the process often
takes longer. If you refuse to be fingerprinted, you can be held
until you agree.
After you're booked, you'll be interviewed by the N.Y.C.
Criminal Justice Agency (C.J.A.), about your residence, employment,
criminal record, etc. (not about the facts of your case).
It's important to answer their questions accurately. They will
contact a friend or family member (depending on the name you give
them as a contact person) to verify your information.
If you give them incorrect information, it may hurt your
chance of getting low bail, because they'll note the fact that your
information was inconsistent with the verifier's, and it will look
like you're trying to hide something from the court.
They use the information to prepare a recommendation as to
bail (often called an R.O.R. sheet), to help the judge in arraign-
ments decide the question of bail or R.O.R.
WHAT ELSE HAPPENS BEFORE ARRAIGNMENT
While you're being booked and interviewed by C.J.A., the
D.A.'s office will be drawing up a formal complaint against you.
This is usually done by their Early Case Assessment Bureau
(E.C.A.B.). They interview the arresting officer and/or the wit-
nesses/victims and decide what you'll be charged with.
All of the above has to be done before you can be brought to
court for arraignment.
There are often delays in being brought to court. The system
may be backed up if a lot of people have been arrested before you
who are also waiting for arraignment. It's not uncommon for the
delay to be more than 24 hours.
If it appears to Central Booking that you won't be arraigned
the day you're booked, you'll be taken to a precinct to be lodged
for the night. People often get very upset at this delay but there
is really nothing you can do about it.
Your lawyer can find out where you are in the system and let
your family know approximately when you'll be arraigned. In certain
areas, private lawyers are given preference once you're produced in
court, and this can speed things up a little.
CRIMINAL COURT ARRAIGNMENT
At the arraignment, your lawyer will interview you, tell you
what you're being charged with, advise you of your rights and make
an application for low bail or R.O.R.
If you can't afford a private lawyer, there will be a Legal
Aid lawyer assigned to your case at the arraignment.
Your lawyer will often "waive formal arraignment", so the
charges against you won't be read aloud in open court.
Your attorney and the D.A. may have a conference at the bench
with the judge. There will be a discussion about your case. Your
lawyer can get some valuable information from the D.A. at this
"bench conference". There may also be some discussion about a plea-
bargain at this point.
Certain cases are disposed of at the arraignment. Your lawyer
will discuss the offer with you and advise you if s/he thinks it
would be a good idea to accept it. Sometimes felony charges are
reduced to misdemeanors at the arraignment.
If the charges are serious felonies, it's unlikely they'll be
disposed of at the arraignment. The D.A. will probably give notice
that their office intends to present your case to a Grand Jury.
Your lawyer may give reciprocal notice that you wish to testify in
the Grand Jury in your own behalf. The Grand Jury will be discussed
more fully later in this guide.
The witnesses against you do not have to come to the arraign-
ment or appear in court unless they're required to testify (in the
Grand Jury, at a hearing or at trial).
The judge at the arraignment is the one who decides about your
bail. You may be R.O.R.'d (released on your own recognizance), have
bail set, or be remanded without bail. Being remanded without bail
is likely if you're charged with murder or if you're charged with a
serious felony and have another felony case pending.
It helps to have as many friends and family members as possi-
ble at the arraignment. The bail may be lower if your lawyer can
show the judge you have strong community ties, as evidenced by all
the people who came to court for you.
Have your people bring money with them for bail. Your lawyer
can often estimate the amount of bail the judge might set. This
will depend on the nature of the case, your criminal record, your
community ties and which judge is sitting in arraignments.
If your people have money with them at the arraignment and the
judge intends to set bail that's a little more than they have your
lawyer can tell the judge the amount of money your people have with
them, and the judge might set the bail at that amount, so you can
be bailed out from court.
It saves a lot of hassle if you're bailed out from court. Once
you're removed from the court building, bail has to be put up at
the jail you're in or at certain other locations in the city. Your
lawyer can advise you about that.
Bail can be posted by a bail bond or in cash. When bail is
set, there's usually a bond amount set and a cash alternative.
To get a bail bond, your people have to see a bail bondsman.
He will require some cash (at least 10% of the bond) and collateral
for the rest (a house, bank book or the like).
The first bail that's set is often the most important. It's
hard to get a bail reduction unless your lawyer can show there's
been some change in circumstances since the first bail was set.
Many people accused of crimes can't afford to hire a private
lawyer, and are assigned a Legal Aid lawyer or a lawyer from the
18-B panel. In other states it is the Public Defender.
There are times I've asked someone who calls if they have a
lawyer already, and he or she says: "No, I have a legal aid". It's
unfortunate that defendants have that opinion of Legal Aid.
Lawyers who work for the Legal Aid Society are competent,
well-trained, dedicated lawyers. The Legal Aid Society has excel-
lent support staff, including investigators, social workers, fund-
ing for expert witnesses, etc.
An 18-B lawyer is a private lawyer who accepts assignments of
criminal cases from the court and is paid by the state to represent
indigent defendants (those defendants with no money). There are
several reasons why you may be assigned an 18-B lawyer, instead of
If two or more people are accused of committing a crime to-
gether, the Legal Aid Society is only allowed to represent one of
them. The Legal Aid Society is like one big law firm, and it's
considered a conflict of interests to have the same law firm repre-
Legal Aid might not be able to represent you because they
represent a witness against you who has a pending case. This would
also be considered a conflict of interest.
If you're accused of murder, and are indigent, you'll be
assigned a lawyer from the 18-B "homicide panel". The Legal Aid
Society usually does not handle murder cases.
There are different panels of 18-B lawyers for different types
of cases. These lawyers have been screened to make sure they're
qualified to handle the kinds of criminal cases they'll be assigned
The "misdemeanor panel" has lawyers qualified to handle misde-
The "felony panel" has more experienced criminal lawyers than
those on the "misdemeanor panel".
The "homicide panel" has the most experienced criminal law-
The "Family Court panel" is for criminal cases involving
juveniles that will be handled in the Family Court.
There's also an "appeals panel" to handle your appeal, if
There are different categories of crimes. The more serious
crimes are called felonies. The most serious felonies are "A"
felonies, the least serious are "E" felonies. The designations vary
from state to state.
Certain felonies carry mandatory jail sentences, if you plead
guilty or are found guilty after trial (conviction). This means you
can't get probation. These are usually cases involving the sale of
drugs or the use of a gun or violence, such as "armed felony of-
fenses" and "violent felony offenses" (A.F.O.'s and V.F.O.'s).
If you're convicted of a felony, you may also lose some of
your civil rights. In some cases your lawyer can get you a Certifi-
cate of Relief from Civil Disabilities that may mitigate the effect
of a felony conviction.
If you're accused of a felony and have one or more prior
felony convictions, jail sentences are mandatory and longer.
Generally, one prior felony conviction makes you a "predicate
felon", more than one prior felony conviction makes you a "persist-
ent felony offender".
If you're on probation or parole, a conviction after trial or
plea of guilty to a new crime (felony or misdemeanor) can violate
your probation or parole (V.O.P.) and you'll probably get extra
MISDEMEANORS & VIOLATIONS
The less serious crimes are classified as misdemeanors. Viola-
tion offenses are less serious than misdemeanors and aren't consid-
If you're arrested for a misdemeanor, violation, or certain
low grade felonies, the police can, under certain circumstances,
give you a "desk appearance ticket" (D.A.T.), which is like a
summons. Instead of going through the booking process and being
held in jail until you're brought before a judge for arraignment,
you're released from custody and given a date to appear in court to
Penalties for misdemeanors and violations are less serious
than those for felonies. You may even be able to get an A.C.D.
(adjournment in contemplation of dismissal). This means your case
is adjourned for six months (you don't have to return to court),
and, if you don't get into trouble within the six months, it's
dismissed and sealed, as if you were never arrested. You're more
likely to get an A.C.D. if it's your first arrest.
If you were under 19 when the crime you were arrested for was
committed, and you're convicted (plead guilty or are found guilty
after trial), the judge might treat you as a "youthful offender"
(Y.O.) - the conviction is vacated and the case sealed.
You're entitled to "youthful offender" treatment on your first
misdemeanor conviction. It's discretionary for certain first time
"Youthful offender" doesn't mean you won't be punished for the
crime (with jail time or probation), but the punishment is often
less severe and you won't have a criminal record. This is meant to
give a young person a chance to straighten out without the stigma
of a criminal record.
If you received Y.O. on a prior felony case, then it's as if
you weren't convicted of that felony and you won't be considered a
"predicate felon" if you're charged with another felony.
If you got Y.O. on a prior case, it won't save you from extra
jail time for violation of the probation or parole from that case,
if you're convicted of something else after that.
There are certain crimes where juveniles are treated as adults
in the Supreme Court and others that are dealt with in the Family
Court. Certain procedures are different for juveniles. This guide
won't discuss the distinctions.
Generally speaking, the D.A.'s office can seek forfeiture of
the instrumentality or proceeds of certain crimes.
The D.A.'s office can even attach this property before you're
convicted, if they can show there's a likelihood you'll be con-
victed. This is a relatively new law. Your lawyer will explain it
to you, if it applies to your case.
WHAT CAN HAPPEN TO YOUR CASE
Almost all criminal cases (felonies, misdemeanors and viola-
tions) start in the Criminal Court. In some states this is termed
the Municipal Court.
Cases that start as felonies and are reduced to misdemeanors
by the D.A., and cases that start as misdemeanors or violations,
stay in the Criminal Court until they're finished.
Cases that are going to remain felonies must be transferred to
the Supreme Court. In other states this is called Superior Court
and in those states with a Superior Court system, the Supreme Court
is above the Superior Court. To get your case transferreed from the
Criminal Court to the Supreme Court, the D.A. must present his/her
evidence to a Grand Jury and get an indictment. This will be ex-
plained more fully later.
There are only three things that can happen to a criminal
case: it can be dismissed or A.C.D.'d by the D.A. or a judge (very
rare); you can plead guilty; or the case can go to trial (where
you're either acquitted or convicted).
If you get a dismissal, an A.C.D., an acquittal after trial,
or plead guilty to a violation, your case can be sealed and your
fingerprints and arrest photos may be returned to your lawyer.
Unfortunately these will just be souvenirs because the police
usually keep a copy of your photo for their mug files and your
fingerprints are kept in the criminal justice computers. Potential
employers and the like won't have access to your fingerprint record
or any information about your case, but if you're rearrested, it
will show up.
WHAT HAPPENS AFTER CRIMINAL COURT ARRAIGNMENT
If bail is set that you can't make, your case will usually be
adjourned to six days from the date of your arrest.
Basically, the law says that if you're in jail, the D.A. has
six days (on a felony charge) from the date of arrest to have
witnesses give sworn testimony supporting the charges against you
or you're entitled to be released from jail.
This can be done by bringing the witnesses to court for a
preliminary hearing or having them testify before a Grand Jury.
It's very rare to have a preliminary hearing in New York City,
because at a preliminary hearing the defense lawyer gets a chance
to cross-examine the witnesses. District Attorneys would rather not
expose their witnesses to cross-examination at this early stage,
and they avoid doing this by going to the Grand Jury instead. The
Grand Jury proceedings are secret and defense lawyers are only
entitled to be present when and if their own client testifies.
On the adjourn date, if the D.A. has not complied with the
law, you should be R.O.R.'d. But if the D.A. can show a good reason
for not getting an indictment or providing a preliminary hearing
within the six days, then the D.A. can get an extension.
A Grand Jury is comprised of 16-23 people. They listen to
evidence presented by the D.A. and decide if there's enough evi-
dence against a defendant for him/her to face felony charges. It
takes 12 grand jurors to vote an "indictment".
A Grand Jury also has the power to return a case to the Crimi-
nal Court as a misdemeanor if it thinks there isn't enough evidence
for felony charges, but there is enough for misdemeanor charges.
This would be called a "prosecutor's information".
The Grand Jury is an "arm" of the D.A.'s office, and the
proceedings are secret in order to protect the witnesses.
It's not hard for a D.A. to get an indictment because the
Grand Jury usually only hears the D.A.'s evidence. There's no
defense lawyer to cross-examine the witnesses and they usually
don't hear from the defendant.
If you've been arrested, your lawyer will be notified if the
D.A. intends to present your case to a Grand Jury.
In certain cases your lawyer might advise you to testify
before the Grand Jury and/or present witnesses. To do that, your
defense lawyer must notify the D.A. before the Grand Jury presenta-
tion is completed.
If you testify in the Grand Jury, your lawyer can be there
with you, but can't ask questions or make objections.
If things go well, the Grand Jury may fail to vote an indict-
ment (No True Bill), and your case will be over, saving you a lot
of hassle and money. This is another reason to get a lawyer working
on your case early on.
Most cases that are presented to a Grand Jury are presented
within six days of arrest, to prevent the defendant's R.O.R.
An indictment is merely a formal accusation listing the felony
charges against you in the Supreme Court. It's not evidence of
If you're indicted, your case will be transferred to the
Supreme Court. If you're out of jail, you and your lawyer will be
notified by mail when to come to the Supreme Court to be arraigned
on the indictment.
Occasionally cases are presented to a Grand Jury before anyone
is arrested. If the Grand Jury indicts, this is called a "silent
The same "silent indictment" procedure may be followed if you
were arrested for a felony and had your case dismissed by a judge
in the Criminal Court.
The D.A. still has the right to present felony charges to a
Grand Jury within six months of your arrest. There's no time limi-
tation if you're accused of homicide.
In "silent indictment" cases, you won't be notified that your
case is being presented to a Grand Jury and may not have the chance
to testify or present defense witnesses.
You'll still be able to present your defense at trial.
If you're indicted this way, an arrest warrant issues and
you'll be arrested and brought to Supreme Court for arraignment.
SUPREME COURT ARRAIGNMENT
The Supreme Court arraignment is similar to the Criminal Court
arraignment on the initial complaint. You're advised of the charges
against you and there's a decision on bail.
If you're out of jail and have been coming to court when you
were supposed to, and if you appear for arraignment when notified,
the chances are that your bail status will remain the same.
If you're in jail, you'll be brought to Supreme Court for
arraignment and your lawyer will be notified when to appear.
Your lawyer gets a copy of the indictment from the D.A. in
court. Your attorney will waive the public reading of the charges
against you and enter a plea of not guilty for you. Your lawyer may
also get a "voluntary disclosure form" (V.D.F.), and police reports
at this time, from the D.A. The V.D.F. has information your lawyer
needs to prepare your case.
If you're out of jail while your case is pending, you must
appear in court on every adjourn date, unless your lawyer has
arranged for you to be excused.
Unless you're told otherwise, be there at 9:30 A.M. Keep track
of the courtroom you're supposed to appear in and the adjourn date.
This is your responsibility.
The only time you should wait for a letter from the court,
before appearing, is if your felony case has been transferred to
the Supreme Court and you've been told to wait for notification of
the Supreme Court arraignment date. A case is transferred to the
Supreme Court after a Grand Jury has voted an indictment.
If you get to court on time and don't see your lawyer, check
to see if your name's on the court calendar to make sure you're in
the right room on the right date.
If it's the right courtroom and date and your lawyer isn't
there, it probably means he or she had to cover another case first.
Most lawyers have to give priority to their clients who are in jail
and cover those cases first.
If you leave the courtroom to call your lawyer, tell one of
the court officers so they won't call your case while you're not
there and issue a bench warrant because you're absent.
BENCH WARRANTS & BAIL FORFEITURES
If you're late, or don't show up, the judge may issue a bench
warrant. You can be arrested on that warrant. If you're out on
bail, your bail money can be forfeited.
Bail jumping is also a separate crime you can be charged with
if you're out on a bench warrant more that 30 days. It's very hard
to defend that charge and sometimes gives the D.A. extra bargaining
power in dealing with your current case.
A bench warrant will also stay on your record and come back to
haunt you later, even if you clear it up. It will give a judge an
excuse to set higher bail on you in the future.
If you can't come to court because you're sick, or because
you've been rearrested, call your lawyer and let him/her know, or
have a family member call.
If you're represented by an assigned lawyer (Legal Aid or 18-
B), that's no excuse for not calling to let him/her know why you
can't make your court appearance.
You should have your lawyer's card with his/her name and phone
number. It's your responsibility to let your defense attorney know
if there's a good reason you can't come to court.
Don't assume that if you're rearrested, somehow the courtroom
where your case is pending will know about it.
If you have a good excuse why you can't come to court, and
your lawyer knows about it before going to court, the attorney can
tell the judge and ask the judge not to issue a bench warrant.
Otherwise, the judge will issue a bench warrant and a bail
forfeiture. This is a hassle for you and for the person who put up
GETTING BACK BAIL MONEY
If you make all your court appearances, the bail money should
be returned to the depositor several weeks after your case is over,
whether you win or lose.
If the person who put up the bail (depositor) has moved since
putting up the bail money, the depositor has to go to the Depart-
ment of Finance, at 1 Centre Street in Manhattan, with proof of
identification and his/her bail receipt, to get the bail check.
But if your bail was forfeited because you missed a court date
it is difficult for the depositor to get it back. Even if you're
represented by an assigned lawyer, the person who put up your bail
(depositor or bail bondsman) may have to pay a private lawyer to do
a "bail remission motion" to try to get back his/her money.
The procedure varies from borough to borough, as does the
amount of the cash bail, if any, that will be returned. If you have
a bail bond, contact the bondsman if there's a forfeiture.
A "bail remission motion" must be done within one year of the
forfeiture of bail - that's the statute of limitations on these
motions. The defendant must have returned to court before this
motion can be brought.
The bail depositor should not wait until your case is over
before arranging for a "bail remission motion". If the depositor
waits beyond a year from the date of forfeiture, it may be too late
to get any money back because of the statute of limitations.
If you "bench warrant", have your lawyer check your bail
status when you return. If you return within 45 days of the forfei-
ture, there's an easier procedure for reinstating the bail.
WHAT TAKES SO LONG
Criminal cases can take a long time to finish. This depends
on the seriousness of the charges and whether you're going to take
a plea or go to trial.
There are "speedy trial rules" governing the amount of time
the D.A. has to be ready for trial, but more serious cases can take
six to 12 months, or longer, to go to trial. Trial preference is
usually given to defendants who are in jail.
Technically, the D.A. has to be ready for trial within six
months of your arrest, (90 days for misdemeanors), but there are
certain time periods that are excluded from the six months (or 90
days) and these rules do not apply to homicide cases.
Some of the reasons for the delay include: crowded court
calendars, busy D.A.s and defense lawyers, and delays in getting
documents from the D.A. or police that your lawyer needs to prepare
Each case is different and requires different preparation.
There are certain procedures that have to be followed. Your lawyer
can explain this more fully as it relates to your case.
The wait is frustrating but there's little that can be done to
speed things up. In certain cases, delay is helpful to the defen-
dant. Witnesses, like all of us, having memories that fade over
It's upsetting having criminal charges hanging over your head.
Lawyers sensitive to their clients' feelings often act as psycholo-
gists and social workers as well as lawyers. Maybe that's why we're
also called counselors.
After arraignment, your case will be adjourned. If it's a
felony, trial preparation usually begins after you've been ar-
raigned on the indictment. If it's a misdemeanor, trial preparation
begins after the Criminal Court arraignment.
The next time the case is on, there will be a conference,
where the D.A., the judge and your lawyer will discuss your case to
see if it can be disposed of without a trial. There will probably
be a plea offer. If the plea is refused, the case is adjourned for
your lawyer to make "motions".
Plea-bargaining will be discussed later in this guide.
One of the biggest delays in the system is due to trial prepa-
ration. It's better to have the delay than go to trial without
adequate preparation, even if you're in jail.
One of the things your lawyer has to do is make certain "mo-
tions". Your attorney will prepare an Omnibus motion which is a
formal written request for certain information the D.A. has about
your case (discovery), and requests that certain evidence be sup-
pressed on the grounds it was obtained in violation of your rights.
There are also certain "dismissal" motions that are included, where
There will usually be hearings on the suppression motions if
the judge thinks you're entitled to them. These pre-trial hearings
will be discussed later.
Another thing your lawyer has to do to prepare your case for
trial is to investigate. Sometimes an investigation can't be done
until the D.A. responds to your lawyer's "discovery" motions and
turns over police reports to your attorney.
The D.A. often keeps information from the defense until the
eve of trial. Police reports are often turned over with the names
and addresses of witnesses deleted to protect them. Judges usually
don't make the D.A. disclose that information until trial. We
sometimes call this "trial by ambush".
Your case will be adjourned, usually about three weeks at a
time, until it's ready for trial or you take a plea.
Because of all the delays, some defendants take pleas just to
avoid having to come back to court so many times. This is more
likely to happen in Criminal Court in misdemeanors cases.
TO PLEAD OR NOT TO PLEAD
Many people think plea-bargaining is a dirty word. Plea-bar-
gaining is actually like negotiating the disposition of a case.
Sometimes a plea-bargain is appropriate.
Whether you take a plea or go to trial is an important deci-
sion you have to make. It's not the kind of decision your lawyer
should make for you, but his/her opinion should be very important
to you when you decide to take a plea or go to trial.
Once your lawyer has a clear enough picture of the evidence
against you, s/he can evaluate the chances of winning your trial.
Your attorney will usually balance your odds of winning
against the amount of time you could be sentenced to if you lose
trial and the sentence being offered in the plea-bargain.
Defendants who are in jail awaiting trial are more likely to
take pleas than defendants who are out of jail.
The decision is a very difficult one, especially if you're
innocent and the evidence against you looks strong. There are
provisions in the law for a person to plead guilty without admit-
ting guilt. This is called a SERRANO plea or an ALFORD plea (named
after the cases that allow this kind of plea). Some judges don't
like to take SERRANO/ALFORD pleas.
It's very hard to admit guilt if you're innocent, but there
are defendants who do it because their chances of winning are so
slim, they'd rather take the sure thing (usually probation or low
jail time) than risk a severe jail sentence after losing trial.
If you go to trial and lose, you usually get more time than
that offered in the plea-bargain. It's like getting extra punish-
ment for putting the state through the trouble and expense of the
No matter how experienced or skillful your lawyer is, there's
no guarantee of winning a trial. One reason people take pleas is to
avoid the uncertainty of trial.
Trial is an uphill battle for the defense attorney. The D.A.
has most of the tools. Your lawyer has police and detective inves-
tigators (D.I.s) to help investigate and get witnesses to cooper-
ate. as well as getting private detectives.
Even if the defense has been able to get the names and loca-
tions of witnesses, there's no real way to get them to cooperate if
they don't want to and most people don't want to get involved.
The District Attorney's office also has public opinion on
their side. Even though the law says that you're presumed to be
innocent, and that the burden of proving your guilt is on the D.A.,
jurors do not always understand or follow the law.
Unfortunately, nowadays, especially is New York City, jurors
are exposed to crime on the streets, either personally or through
the media, and tend to presume you're guilty and expect the defense
to prove your innocence. This is especially true if you're a member
of a minority or poor.
Sorry to paint such a grim picture, but that's where things
are and this guide discusses realities, not ideals.
There are several types of hearings, called pre-trial hear-
ings, or suppression hearings, that may occur before a trial jury
Not every case has pre-trial hearings. It depends on the
evidence against you. These hearings are usually named after cer-
tain landmark cases.
After the hearings, the judge decides whether or not to let
the D.A. use certain evidence against you at trial. If the evidence
in question at the hearing is the only evidence against you, and
you win the hearing, that might be the end of your case.
A HUNTLEY hearing is to suppress statements allegedly made by
you to a law enforcement officer (including the police, the D.A.,
or their agent), on the grounds that you weren't advised of your
constitutional right to remain silent or were forced to make the
statement, either by threats or brutality.
I often have clients tell me, when I interview them for the
first time, that the police did not "read them their rights". They
seem to think that's a way to get a case dismissed. Unfortunately,
that's rarely the result. The only consequence of not reading you
your rights is that if you made a confession there are now grounds
to get it suppressed.
It's unlikely that the police will admit they failed to read
you your rights or that they threatened or beat you. At the HUNTLEY
hearing they'll probably testify that they read you your (MIRANDA)
rights and deny that they used any force.
The judge usually believes the police. This happens in most
instances where the police version differs from the defendant's.
A DUNAWAY hearing is also a hearing to suppress statements, on
the grounds that the police didn't have probable cause (any legal
reason) to arrest you in the first place.
A WADE hearing is a hearing to suppress the identification on
the grounds that the pre-trial identification procedure was sugges-
tive and that the witness would not have otherwise been able to
A MAPP hearing is a hearing to suppress physical evidence
seized from you (usually a weapon, drugs, or the proceeds of a
crime) on the grounds that the police had no legal right to stop
you or search you in the first place.
A SANDOVAL hearing is a hearing to prohibit the D.A. from
using your criminal record to impeach you during cross-examination,
if you testify at trial.
Ordinarily, when a witness testifies at trial, the opposing
counsel can use the witness' criminal record on cross-examination
to show that the witness isn't worthy of belief.
When the witness is the defendant, the court has to balance
your constitutional right to testify on your own behalf against the
D.A.'s right to this cross-examination technique.
The problem is that juries tend to believe that if you've
committed crimes in the past, you probably committed this one too,
and that's not one of the factors a jury is supposed to consider as
evidence. The defense attorney tries to limit this through the
If you don't testify at trial, the D.A. can't introduce your
criminal record, except under specific conditions that are too
technical to discuss here.
After the pretrial hearings are finished, the trial begins.
The trial is the part of the case where a decision is made by a
judge or a jury, after listening to the evidence, as to your guilt
You're entitled to a jury trial in all felony cases and misde-
meanor cases that carry penalties over six months in jail.
Even if you're entitled to a jury trial, there are certain
cases that are better tried without a jury. This kind of decision
is between you and your lawyer and usually depends on the specifics
of your case and which judge is in the trial courtroom.
It's important to dress appropriately when you're on trial.
Dress like you would for a church function, not like you would on a
date. You want to look neat but not flashy.
If you're out of jail and don't appear for trial, in addition
to getting a bench warrant and forfeiting your bail, your case may
be tried without you.
Most judges warn defendants of that possibility. If you've
been warned, and don't appear, you can be tried, convicted and
sentenced in your absence. The likelihood of conviction increases
if you're not present at your trial.
When the police pick you up on the bench warrant, you'll be
sent to jail to serve your sentence. You may also, practically
speaking, waive your right to appeal.
Assuming you're having a jury trial, the first part is to
select the jury. This is called voir dire.
A panel of prospective jurors is brought to the courtroom from
the Central Jury Panel. The judge explains some general principles
of law to them.
From that panel, 12 or more at a time, six if it's a misde-
meanor trial, are called into the jury box to be questioned by the
judge, the D.A., and the defense attorney.
The purpose of the voir dire is to give the D.A. and the
defense attorney a chance to find out whether the prospective juror
can be fair.
After each round, the attorneys usually leave the courtroom
with the judge and court reporter (who records the proceedings),
and challenge the jurors they don't want.
It's more a process of elimination than one of selection.
There are a specific number of peremptory challenges for each side,
depending on the nature of the charges.
Peremptory challenges are those that do not require the attor-
ney to give a reason for the challenge.
If either side can show the judge that a potential juror can't
be fair, then that juror can be challenged for cause. Challenges
for cause are unlimited.
A felony trial jury consists of 12 jurors and usually two
alternates. If one of the jurors can't continue to serve (because
of illness or the like), an alternate is substituted.
After the jury is selected, the judge usually tells them more
of the general principles of law. Your attorney explains their
duties and explains the order of the trial. Your lawyer also warns
them not to discuss the case with anyone until it's over.
The D.A. then makes an opening statement. This tells the jury
what the prosecution intends to prove to them during the trial.
Your attorney usually describes this as a table of contents.
The defense attorney may also make an opening statement. This
will be a matter of trial strategy that your lawyer will decide,
depending on the nature of your defense.
The defense attorney is not required to make an opening state-
ment, because the defense is not obligated to prove anything during
After opening statements, the D.A. presents evidence. Evidence
is testimony from witnesses and exhibits (weapons, contraband,
When a witness testifies for the prosecution, the D.A. ques-
tions that witness before the defense. This is direct examination.
When the defense attorney questions that witness, it's cross-exami-
When the D.A. has finished putting on the prosecution's case,
your lawyer has the right to present a defense case.
However, the defense doesn't have to present a case because
the defense doesn't have to prove anything. The jury is supposed to
decide, based on what the District Attorney presents, if they're
convinced of your guilt "beyond a reasonable doubt".
A major trial decision is whether or not you'll testify in
your own behalf at trial. Even though the jury is told not to hold
it against you if you don't testify, they often do hold it against
you. The decision is harder if the D.A. has been given permission
to cross-examine you about your criminal record.
After the defense rests, the D.A. may present evidence to
rebut something the defense has raised in its case. If this hap-
pens, the defense may present evidence to rebut that.
When both sides finish presenting their evidence, they rest.
Then they do summations. The defense attorney sums up first, and,
because the defense has the burden of proof and the D.A. sums up
Summations are the lawyers' comments about the evidence to
show why they think the jury should reach a certain verdict.
When both sides finish their summations, the judge explains
the relevant law to the jury and sends them out to deliberate until
they reach a verdict. Jury members are not allowed to discuss the
case with anyone who isn't on the jury.
A verdict must be unanimous. Sometimes the jury can't reach a
verdict by the end of the day, and they're sequestered for the
night (sent to a hotel together).
If the jury can't reach a unanimous verdict, and it seems they
won't be able to no matter how long they deliberate, they may let
the judge know they're deadlocked and the judge may declare a
"hung" jury. If that happens, you may be tried again.
If you're acquitted (found not guilty), you can't be charged
or tried again for the same case.
If you're convicted after trial, or take a plea, the case will
be adjourned for the probation department to prepare a report to
aid the judge in sentencing. If you've been in jail awaiting trial
you'll get credit for that time toward your sentence.
It's very important to make a good impression on the person
interviewing you, because the probation department recommendation
carries a lot of weight. Even if your sentence was negotiated by
plea-bargain, if the probation report is bad, the judge may decide
not to keep his/her promise to you and give you the option of
taking more jail time or withdrawing your plea.
Also, your probation report is attached to your file and is
taken into consideration when you become eligible for parole.
If you're eligible for "youthful offender" treatment, the
probation report is sometimes the deciding factor.
If you've taken a plea and are out of jail awaiting sentence
and fail to keep your appointment for your interview with the
Department of Probation, or get convicted of another crime, or fail
to appear in court on the date of sentence, the judge can give you
a harsher sentence without giving you the option of withdrawing
When the Department of Probation prepares its report, they
usually contact the D.A. for input, but not the defense attorney.
If you're convicted after trial, your lawyer may want to prepare
his/her own "pre-sentence report" to balance things out.
If you're convicted after trial, your lawyer must file a
"notice of appeal" for you within 30 days of the sentence date to
insure your right to appeal.
If you're indigent, a lawyer will be assigned to do your
appeal. It will either be a Legal Aid lawyer or an 18-B lawyer.
Appeals take a long time to be heard. Part of the delay,
especially if you're indigent, is the length of time it takes the
appeals lawyer to get the minutes of the trial.
Assigned lawyers have a lot of cases to do, so it usually
takes longer for them to get to your case. It sometimes takes years
for an appeal to be heard.
If you can afford to pay privately for the appeal, and the
minutes of the trial, you can speed up the process quite a bit.
Sometimes you can get bail pending appeal but the majority of
defendants wait in jail until their appeal is heard.
"ASSERT YOUR RIGHTS" CARD
If you're arrested, you can tell the police your name, ad-
dress, date of birth, etc. (pedigree information), but don't answer
questions about the crime or where you were when it happened.
To protect yourself, cut out the card below and keep it with
you, just in case. If you borrowed this book from your library,
please just photocopy this card. Hand it to the police if they want
to question you, search you or your property, or place you in a
line-up. This card could save you years in jail.
* I do not wish to answer any *
* questions without speaking to *
* an attorney first. I do not *
* consent to a search. I do not *
* consent to being in a line-up. *
* I will not waive any of my *
* constitutional rights. *
* Thank You *
ABOUT THE AUTHOR
Joyce David is a criminal lawyer with offices in the Tower
Suite of 16 Court Street, Brooklyn, N.Y., 11241, (718) 875-2000.
Ms. David is admitted to practice in the State and Federal
courts in New York and in the United States Supreme Court.
She's represented thousands of defendants accused of almost
every type of crime. She's a frequent lecturer and is often con-
sulted by the media on matters relating to the Criminal Justice
Ms. David's professional activities include:
* Vice President - New York State Association of Defense
Lawyers (also Chair Task Force on Bias in the Criminal
* Executive Vice President - Kings County Criminal Bar
* Homicide Panel - Second Judicial Department
* Co-Chair Criminal Law & Procedure Committee - Brooklyn
* Women & Minorities Committee - National Association of
Criminal Defense Lawyers
* Executive Vice Chair - Brooklyn Women's Political Caucus
* Special Counsel to Co-Chair - New York State Democratic
Committee, Women's Division
* Candidate for State Committeewoman - 1984
* Freelance Journalist
* Society of Professional Journalists & NY Deadline Club
* New York Women in Communications, Inc.