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Criminal Court Procedure

New York Penal Code

This guide is published by the criminal defense lawyers at Storobin & Spodek LLP in order to help viewers learn about cases in New York criminal courts. It is not intended to be legal advice, merely a way to help you understand your needs as your case moves along in New York Criminal courts. All the information, including the law, procedure and penal code is believed to be accurate, but can't be guaranteed due to possible changes and errors. The guide is for information and entertainment purposes only with the express expectation and agreement by the readers that it will not be acted upon in any way. No attorney-client relationship exists or can exist based on the offering of the information in this guide. We strongly suggest you retain the services of a competent criminal defense lawyer to defend your rights.

DWI Charges
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Property Back After Arrest
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Rikers Island & Jails
Youthful Offender ("Y.O.")
Criminal Glossary

To speak to a criminal defense attorney, you may call (646) 350-0601.


This Guide covers the following matters:

  • Arrest;
  • Desk Appearance Ticket (D.A.T.);
  • Central Booking;
  • Criminal Court Arraignment;
  • Plea Bargaining;
  • What Happens After Your Criminal Court Arraignment;
  • What I miss a court appearance?
  • Grand Jury;
  • Supreme Court Arraignment;
  • Pre-Trial Motions;
  • Pre-Trial Hearings;
  • Prosecutor's Time-Limitations To Bring The Case To Trial;
  • Trial;
  • Post-Trial Motions;
  • Sentencing;
  • Appeals;
  • What I miss a court appearance?

ARREST

A police officer may arrest an individual if he has "probable cause" to believe that the person committed a crime or violation. Upon arrest, the officer must file a felony or a misdemeanor complaint in the Criminal Court.

Sometimes a police officer may offer you a chance to surrender voluntarily. This is often preferable to getting arrested. However, make sure to have an attorney present, even if you are not sure whether you'll be charged with a crime. Any time a police officer wants to question you, it is strongly recommended that an attorney is present with you.

Do not make any statements to the police without an attorney. This may severely impact your case. Many people have made the mistake of making a statement they thought was innocent, but which amounted to a confession. For example, if you are accused of being involved in a fight where your friend stabbed and killed someone, admitting to being one of the fighters may amount to a murder confession, even if the police falsely promised you otherwise.


Desk Appearance Ticket ("DAT")

Depending on the nature of the crime you are charged with you there is a possibility that the Police will decide to give you a Desk Appearance Ticket (“DAT”) under CPL 150.10. Generally these are given out for a minor offenses such as Marijuana possession, Theft of Services, and quality of life crimes. Misdemeanor crimes which carries a maximum sentence of one year. You can receive a DAT for a Class E Felony although this is quite rare. You will be required to go to the Precint to supply pedigree information to the Police. You will then be assigned an arrest number and the NYPD will confirm that you do not have any outstanding warrants. If you have any warrants you will remain in custody. If you do not have any warrants you will be issued a DAT and will be released. If you are given a DAT, the Police will take your fingerprints, and your NYSID sheet (rap sheet) will accompany the accusatory instrument at your arraignment. Unlike other arraignments, a DAT arraignment will occur between 9:00 AM – 5:00 PM.

If you are given a DAT then you will be given a document in which you will sign and promise to return to Court on a certain date. This might be three to four weeks after the date of your arrest. If you do not have a lawyer you must bring this document with you to Court and hand it in to the Officer in the Court Part. If you have a private attorney, then they will sign the case in.

The benefit of a DAT is that you forego the experience of being held from your arrest untill your arraignment. The Police trust that you will voluntary return yourself to Court. Once you return to Court on the DAT your case will travel through the same channels as any other criminal case.


CENTRAL BOOKING

If you were not given a D.A.T, you are held in jail and brought before a judge in Criminal Court, usually within 12-36 hours of your arrest. In some cases, your attorney may expedite your matter by speaking to the police at the precinct or the prosecutor in court. Prior to appearing in front of a Criminal Court Judge, you are brought to Central Booking where your fingerprints and photograph are taken. During this period, a fingerprint report (rap sheet) is prepared which shows your criminal history, if you have one.

From the time you leave the police precinct and until you see the judge, you are likely to be held in the basement of your county's Criminal Court. You can find out where you are by asking officers or calling an attorney.

Meanwhile, the prosecutor consults with the police officer who arrested you. If the prosecutor decides that there is enough evidence, he or she will prepare the charges against you. You will also be interviewed by a representative of the Criminal Justice Agency (C.J.A.). The purpose of this interview is to assist the judge in deciding whether to: 1) set bail, 2) release you from jail without bail (released on your own recognizance, or R.O.R.'d), or 3) hold you in jail without bail (remanded). If your relatives will be in court when you first see the judge, make sure to let the C.J.A. know. Your friends and family may come to the first court appearance by going to the "arraignment part".

Your statements may be used against you in later court proceedings, so do not describe anything related to the incident for which you are charged. Just answer basic questions about your job, education, home, and family.

If bail is set, it may be paid at any courthouse during business hours and at the jail where you are being held at any time.


CRIMINAL COURT ARRAIGNMENT

Once these procedures are completed, you are brought to court for arraignment, where you will learn what charges have been brought against you. There is a day arraignment court from 9:00 a.m. to 5:00 p.m., and an evening arraignment court from 5:00 p.m. to 1:00 a.m., in each borough. In Manhattan, there is also a "lobster shift" arraignment court, which is open on Thursday, Friday, and Saturday from 1:00 a.m. to 9:00 a.m.

You have the right to a lawyer at the arraignment. You may hire your own private criminal defense lawyer or, if you do not have enough money to hire your own lawyer, the court will appoint a lawyer from The Legal Aid Society, the Assigned Counsel Plan for the City of New York, or another free attorney organization.

If you intend to hire your own criminal defense lawyer, but cannot do so in time for your arraignment, the judge will appoint one to represent you for the arraignment only. After that time, the criminal defense attorney you hire will represent you. You may also represent yourself and act as your own lawyer; however, it is better to have a lawyer represent you. If you are not content with your criminal defense lawyer, you may ask the judge to appoint a new attorney or allow you to hire a new lawyer at your own expense. If you do not have a good reason for wanting a new criminal defense attorney, the judge may not allow you to switch attorneys.

At the arraignment, the district attorney will usually ask the judge to keep you in jail (remand) or order bail. Your criminal defense lawyer should argue on your behalf against the prosecutor's arguments. The judge will then decide your bail conditions. Your bail conditions may change in the future if circumstances change.

If you are released, you must appear in court every time your case is scheduled to be on the calendar. Most cases are scheduled for 9:30 am, and a minority at 2:00 pm. Rarely, cases may be scheduled for other times. At each court appearance, you will be informed of your next court date. Your criminal defense attorney should inform you if the date is changed. However, it is your responsibility to know when and where to appear. You should arrive in court at or before 9:30 a.m. or at whatever time the judge sets and wait there for your lawyer to appear. If you do not appear, the judge will order a bench warrant for your arrest. This means that the police will be notified to find you, arrest you, and bring you to court. If you have posted bail, it may not be returned to you. If the police arrest you and bring you to court, the judge may change your bail conditions by requiring that you pay more bail or by remanding you. Once a bench warrant is ordered, it remains on your fingerprint report (rap sheet). This may negatively effect the present matter and all future cases against you.

In some instances, the judge may issue an order of protection telling you to stay away from a witness or victim. If you do not obey the order, you could be arrested and new charges may be brought against you for disobeying the order, even if your contact would have been innocent without the order of protection. The judge may also order stricter bail conditions for disobeying the temporary order of protection.

For more information, visit our arraignments page.


PLEA BARGAINING

Once you, your criminal defense lawyer, and the prosecutor become more familiar with your case, an attempt to settle (resolve or dispose of) your case without a trial may be made through plea bargaining with the district attorney. More than 90% of all cases are settled through plea bargaining.

A plea bargain can take a variety of forms. In one instance, the prosecutor may ask that you plead guilty in exchange for his or her promise to recommend to the judge that a particular sentence be imposed. In certain cases, the prosecutor may offer to allow you to plead guilty to a less serious offense than the one with which you are charged. Such a plea reduces the range of sentences the judge may impose. The judge is the only one who can decide what your sentence will be (subject to limits set by law) and all bargains must be approved by the judge. Plea bargaining may continue up to or even during trial. If you do not want a trial, you may always plead guilty to all the charges brought against you whether or not the prosecutor agrees. The judge will then decide your sentence. This is usually not recommended, as it is better to allow your criminal defense attorney to either negotiate a favorable plea or take the case to trial.

There are sentencing guidelines setting the range for all offenses. Offenses are arranged in different categories: felony, misdemeanor, and violation. A felony is a crime for which you can receive a sentence of imprisonment of more than one year. A misdemeanor is a less-serious crime for which the sentence is one year or less. A violation is not a crime, but may also result in imprisonment of up to 15 days.

Felonies are divided into 6 categories: AI, AII B, C, D and E. A is the highest and E is the lowest. Misdemeanors are divided into 2 categories: A and B.

A non-jail sentence may also be imposed, such as a term of probation. A felony probation is 5 years, while a misdemeanor probation is 3 years. Under certain circumstances, the length of probation may be different. Other possible sentences are: ACD (adjournment in contemplation of dismissal) where your case is dismissed and sealed after 6-12 months if you do not get re-arrested, conditional discharge, unconditional discharge, restitution, fine, community service, etc. Sometimes, a non-jail sentence may be imposed along with a jail sentence. In such a case, the probationary sentence is served after the jail sentence.


WHAT HAPPENS AFTER YOUR CRIMINAL COURT ARRAIGNMENT?

If you are charged with a felony and have already been arraigned in Criminal Court, your case will be sent to a court part where felony cases await the action of the grand jury. In rare instances, a preliminary hearing upon the felony complaint may be held to determine whether the prosecutor has enough evidence to hold you in jail while waiting for the grand jury to hear your case.

If you are charged with a felony and are in jail because you were remanded or are unable to post bail, the prosecutor must present evidence in your case to the grand jury no later than 144 hours (six days) after your arrest unless your criminal defense attorney is willing to waive this requirement. If the prosecutor does not present the evidence to the grand jury within this time, you will be released from jail on your own recognizance (R.O.R.) unless the prosecutor can show a judge why the case could not be presented sooner to the grand jury. If you are released from jail, this does not mean that your case has been dismissed and you must make sure to be in court for any date set by the judge.

If you are charged with a misdemeanor and cannot post bail, you will remain in jail for approximately five days. If the prosecutor fails to provide the court with certain legal documents in support of the misdemeanor complaint which was filed by the police officer who arrested you, a judge will release you on your own recognizance (R.O.R.). Again, this does not mean that your case is dismissed and you must make sure to be in court for any date set by the judge.


WHAT IF I MISS COURT APPEARANCE AND MUST VACATE AN ARREST WARRANT?

Warrants are recorded in New York States computer databases which informs all law enforcement that a warrant is outstanding.

If you believe that you might have a warrant out for your arrest you can call the NYPD’s warrant squad at or 718-217-8484 or 212-927-2819. You will need to provide your NYSID number to them and additional pedigree information so that they can pull up your records.

To vacate the warrant, you need to appear in the Court that issued the warrant. You can appear in one of the boroughs warrant squads, your local Police precinct or a Police agency if your are outside of New York State and the Police will bring you in on the warrant.  Regardless of where you go only the Court of issuance can set aside the warrant. It is always a better choice for an individual to appear in the Court Clerks office him or herself and “voluntary” surrender then to have the Police bring them in to Court.

The two types of arrest warrants:

  1. Bench Warrant – A court order issued for a defendant’s arrest if he or she fails to appear for a court proceeding other than an arraignment. You are returned in this scenario to the particular Judges courtroom. A criminal action is already pending in this scenario.
  2. Arrest Warrant – This is a formal document authorizing the Police to arrest you. In this scenario a law enforcement agent will present evidence that was obtained after an investigation or an arrest to a Judge and ask that a Judge issue an arrest warrant. This can happen after a sealed indictment. A sealed indictment is used when the Prosecutor does not want to alert the prospective Defendant that they are being investigated.  In this case you will be brought before the Court for purpose of an arraignment on the accusatory instrument.

Additional types of warrants are:

  1. Other Warrants – include NYS CPL Warrants not described above, other State and Federal Warrants. Executive Law Warrants (Office of Children and Family and Parole Violations) and Family Court Warrants.
  2. Search Warrants - T his is  court order directing a police officer or peace officer appointed to conduct a search of designated premises, and/or vehicles and individuals, for the purpose of seizing designated property or kinds of property, and to deliver any property obtained to the court which issued the warrant.

Warrants expire upon death of the defendant or when the defendant appears before the Judge that issued the warrant.

To vacate the warrant the defendant must go to the Central Clerks Office in the County where the case is being heard. The Defendant should have his/her full name, date of birth and either the Docket or Arrest number. The Clerk will then retrieve the file and send it up to Part that is dealing with warrants.

In any situation dealing with warrants it is imperative that the individual listed on the warrant retain counsel. Counsel can then arrange a surrender to the Court. This will be a voluntary return opposed to an involuntary return. This will increase the likelihood that no bail or minimal bail will be set. This will also protect the client from saying something to law enforcement that could incriminate them or be used against them later on.  This can also minimize additional consequences should as Orders of Protection issued.

For more information on Bench Warrants, see CPL 530.70, CPL 120.30. For more information on Arrest Warrants see CPL 120.28 & CPL 120.29. For more information on Search Warrants see CPL 690.05.


GRAND JURY

Grand jury proceedings are secret and are not open to the public. The grand jury is made up of 16 to 23 people who listen to the evidence and decide whether there is enough evidence to put you on trial for a felony.

If the grand jury finds that there is enough evidence that you committed a crime, it will file an indictment. If the grand jury finds that there is not enough evidence that you committed a crime, you will be released from jail. If you give up your right to have your case presented to the grand jury, the prosecutor will file a Superior Court Information (S.C.I.).

You have the right to testify before the grand jury. Although your criminal defense lawyer may go with you to the proceeding, he or she must remain silent during your testimony. Your attorney may not address the grand jury or object to the prosecutor's questions. If you want to speak with your criminal lawyer before testifying, you may do so outside the grand jury room. Any conversation you have with your lawyer inside the grand jury room must be whispered and must not be heard by the grand jurors. If you decide to testify before the grand jury, you will probably be cross-examined by the prosecutor. Any questions the grand jurors may have for you will be asked by the prosecutor. You may also ask that the grand jury hear witnesses willing to testify for you, although you are not allowed to be present in the grand jury room while they testify.

It is usually extremely easy for the District Attorney to convince a Grand Jury to give permission to prosecute any particular case.

- The Prosecutor is not required to prove guilt beyond a reasonable doubt; - The Prosecutor is only required to convince the Grand Jurors that it is possible that the defendant might have committed a crime; - The Prosecution witnesses may not be cross-examined by your criminal defense lawyer;

- Prosecution witnesses are not usually challenged in any way;

- The defendant's attorney is not permitted to make opening or closing statements;

- The criminal defense attorney is not permitted to call witnesses on behalf of the defendant;

- The proceedings are secret. The defendant and the criminal defense attorney are not entitled even to know who testifies in the Grand Jury or what they said;

- Although the defendant is permitted to testify, it is only by way of a long statement. A defendant who is not a professional or natural public speaker may not do very well, regardless of the justness of his cause. Any statements made during the grand jury may be used against the defendant at trial;

- There is no judge directly involved to make rulings of law.


SUPREME COURT ARRAIGNMENT

If the grand jury votes an indictment, your case will be transferred from Criminal Court to Supreme Court for another arraignment. This arraignment is similar to the arraignment in Criminal Court. You will be formally charged with the offenses voted by the grand jury and contained in the indictment, and you will plead either guilty or not guilty. The conditions of your bail may also be reviewed and plea bargaining may take place. Most people plea not guilty unless a settlement has been reached by your criminal attorney with the prosecutor. If you do not plead guilty, your case will be adjourned for another court date at the calendar part.


PRE-TRIAL MOTIONS

In the calendar part, on the first day, a motion calendar will be set allow the criminal defense lawyer and the prosecutor the proper time to submit their motions. A motion is a request from the court. Your criminal lawyer may also ask the judge if there was enough evidence presented by the prosecutor to the grand jury to allow for the filing of the indictment. To decide whether there was enough evidence, the judge will read the transcript of the grand jury proceeding. If the judge finds that there was not enough evidence showing that you committed the crimes charged, the judge may dismiss the charges in the indictment or reduce the indictment to charge less serious offenses if the evidence shows that only lesser offenses were committed. In rare cases, an indictment may be dismissed in the interest of justice, but only where the judge decides that the prosecution of your case would be unjust.

If police officers took property from you, if you made a statement to them, if they had a witness identify you, your criminal defense lawyer may file a motion asking that such evidence be suppressed. All the legal motions are filed part of one big package called the "Omnibus Motion". The judge may order that a suppression hearing be held. You have a right to be present at the hearing.

In addition, your lawyer will have the chance to obtain more information (known as "discovery") about the prosecution's case against you, and to inspect any physical evidence in the prosecutor's possession.


PRE-TRIAL HEARINGS

There are different kinds of hearings that may be held, depending on the kind of motion your criminal defense attorney makes to the judge.

The Mapp hearing deals with physical evidence recovered by the police. At the Mapp hearing, the criminal defense lawyer challenges the way the police came into possession of the evidence. If the judge finds that the weapons, drugs or other illegal contraband were unlawfully found by the police, then the Prosecutor is not allowed to use it as evidence. If the police did not recover any physical evidence in the case, there is no reason to have a Mapp hearing. This motion must include a sworn affidavit of facts.

The Wade hearing deals with lineups and other identification evidence. At the Wade hearing, the criminal defense lawyer challenges the fairness of the identification. For example, if the police put a short white teenager in a lineup with tall Hispanic retirees, the teenager's criminal defense lawyer might argue that the lineup was unfair. If the Prosecutors do not intend to use identification evidence, then there is no reason to have a Wade hearing. At the hearing, the prosecutor must prove the non-suggestiveness of the identification procedure. Once they do so, the criminal defense attorney must show by the "preponderane of the evidence" (a lesser standard than "beyond a reasonable doubt") that the procedure was improper because it was overly suggestive.

The Huntley hearing deals with the statements that the Prosecutors claim the defendant made. At the Huntley hearing, the criminal defense lawyer challenges the way the police obtained the statements. The criminal attorney can argue that the statements were obtained as a result of actual physical violence, a threat of violence or lack of warning of the defendant about his legal rights (commonly known as Miranda rights). The criminal defense lawyer can also argue that the statement was obtained as a result of illegal arrest. If the Prosecutors do not claim the defendant made any statements, then there is no reason to have a Huntley hearing. The prosecutor has the burden to prove beyond a reasonable double the voluntariness of the statement made.

The Sandoval hearing deals with the defendant's criminal history. At the Sandoval hearing, the Judge decides if the accused's prior convictions convictions and bad acts are admissible to impeach the defendant if he decides to testify in his own defense. The defense must prove by "preponderance of the evidence" that the prejudicial effect outweights the probative value. In the case of People v. Bermudez the court created a precedent whereby the prosecutor would be allowed to ask if the defendant had been convicted before, but not go any further. The intent of the compromise is to allow the defendant to testify on his own behalf without letting him present the appearance of an unblemished record.

It must be noted that it is rare that evidence of any significance is thrown out because it is extremely unpopular for judges to "throw out" cases on technicalities.


PROSECUTOR'S TIME-LIMITATIONS TO BRING THE CASE TO TRIAL

The prosecutor must bring your case to trial within a certain time. Generally, in a non-homicide case, the prosecutor must be ready to try your case within six months of the filing of the felony complaint in Criminal Court. In misdemeanors, the prosecutor has ninety days since the filing of the misdemeanor complaint in Criminal Court. Time for which you are responsible will not be counted against the prosecutor.

If the prosecutor is not ready to try your case within the specified period, the judge, upon your criminal defense lawyer's motion, must dismiss your case.


TRIAL

Once any pre-trial hearings are finished and you have chosen not to plead guilty, your case will go to a jury part for trial, where a judge or a jury will decide whether or not the prosecutor has proven your guilt beyond a reasonable doubt. You may waive a jury and be tried before the judge. You may not, however, waive a jury if you are charged with murder in the first degree. The trial isheld in a public courtroom. You have an absolute right to attend the trial. However, if you are disruptive, you may be forced to leave the courtroom when the jury is present.

A jury trial begins with the selection of a jury from members of the county in which you are tried. If you are charged with a felony, 12 jurors and at least 2 alternates are chosen. If you are charged with a class A misdemeanor, six jurors and two or more alternate jurors are chosen. Class B misdemeanors and violations are tried before a judge.

At the beginning of your trial, a large number of people (the jury panel) will enter the courtroom. The court clerk will call out the names of these people, who sit in the jury box. Each is questioned by the judge, prosecutor, and your criminal defense lawyer about whether he or she can be a fair and impartial juror in your case. If any juror expresses bias or a belief that he or she cannot be fair, that person will be challenged for cause and will not sit as a juror in your trial. In addition, the prosecutor and your criminal defense lawyer may object to having certain of these people sit on the jury even though the person has not expressed any bias or doubt as to his or her ability to be fair. This is called a "peremptory challenge". The number of peremptory challenges each side has depends on the class of offense with which you are charged. Jurors may not be challenged based on their race, religion, ethnicity, gender or sexual orientation.

Once the required number of jurors has been approved by both sides, the jurors are sworn and seated in the jury box. The judge then explains the trial procedure, the basic principles of law, and the jurors' duties.

To get a guilty verdict, the prosecutor must convince the jury that the case has been proven beyond a reasonable doubt.

The prosecutor makes the opening statement first. In the opening statement, the prosecutor tells the jury how he or she expects to prove that the defendant has committed the crime. The criminal defense lawyer may also make an opening statement to the jury, but is not required to do so. It is rare for a criminal attorney to waive opening statement.

Evidence consists of documents, physical objects and the testimony of witnesses under sworn oath and exhibits.

The prosecutor is the first to call witnesses. This is called the prosecutor's direct examination. Your criminal defense lawyer then questions the prosecutor's witnesses, which is called cross-examination. The prosecutor may then re-direct his or her witnesses after the cross-examination.

After the prosecutor concludes his or her case, your criminal lawyer may ask the judge to dismiss the matter because the case presented against you by the prosecutor is insufficient even in the absence of anything presented by the defense.

If the judge will not dismiss your case, the criminal defense attorney may present your case by calling witnesses or introducing evidence in your favor. The prosecutor may then cross-examination defense witnesses and the criminal lawyer may then re-direct defense witnesses after the cross-examination.

Both parties may ask to have physical evidence introduced (exhibits), as part of their case.

You have an absolute right to testify or not to testify. If you choose to testify and have been convicted of crimes in the past, the judge may permit the prosecutor to question you in front of the jury as to one or more of those convictions and/or bad acts. You cannot be forced to testify. You may also choose not to testify but to present witnesses on your behalf.

If your criminal attorney has presented a defense, the judge may allow the prosecutor to introduce additional evidence to respond to any evidence your criminal defense lawyer has offered. If the judge allows rebuttal evidence, your lawyer may then be allowed to present evidence in response to the prosecutor's rebuttal. This is called surrebuttal. After the evidence is presented, the criminal defense lawyer is the first to make a closing argument, also known as the summation. Once completed, the prosecutor will offer his summation. The prosecutor will try to persuade the jury to convict you, while your criminal defense lawyer will try to persuade them to find you not guilty.

After the closing arguments, the judge will explain the law to the jury as it applies to your case. This is known as jury charge or jury instructions. The jury will then go to a closed room to deliberate.

The decision of the jury is called a verdict. If the jury decides that the evidence presented does not prove beyond a reasonable doubt that you are guilty, the verdict must be not guilty. If the jury decides that the evidence presented did prove beyond a reasonable doubt that you are guilty, the verdict will be guilty. If you are charged with more than one crime, the jury may find you guilty of all of them, not guilty of all of them, or guilty of some and not guilty of the rest.

The verdict of the jury must be unanimous - all of the jurors must agree. Sometimes, after deliberations, the jurors report that they cannot agree on a verdict. This is called a hung jury. If that happens, the judge declares a mistrial and the prosecutor will then decide whether or not to seek another trial of your case.

If you are found not guilty of any of the crimes charged, you have been acquitted of those charges and can never be tried again in State court for those same charges. If you are in jail and are acquitted of all the charges, you will be immediately released from jail. If you are found guilty, you have been convicted and must be sentenced. Your case will then be adjourned for sentencing.


POST-TRIAL MOTIONS

Prior to sentencing, you may make a motion to set aside the verdict. If the judge grants the motion, the judge may then set aside the verdict or modify it. If the judge sets aside the verdict, you will be entitled to a dismissal, a reduction of the charges, or a new trial. These motions are rarely granted.


SENTENCING

If you are convicted, whether after trial, or after pleading guilty, you will be sentenced by the judge. You, your criminal defense lawyer, the prosecutor (and, in some cases, the victim) will all have a chance to be heard by the judge as to your sentence.

Before sentencing in a case where death is not a possible sentence, the Department of Probation will prepare a report for the judge (pre-sentence report) containing information about your background and the circumstances of the crime. You may be interviewed by the probation officer preparing the report. Your cooperation with the Department of Probation may be a factor in the probation officer's evaluation of you. Your criminal lawyer and the prosecutor may also prepare pre-sentence memoranda for the judge.

The sentence you receive will depend on a variety of factors, including your background, the circumstances of the crime, and the attitude of the victim. The types of sentences include jail or prison terms, probation, conditional discharge, unconditional discharge, restitution and fines. If convicted of certain sex offenses, you may have to register with a local law enforcement agency.

If you are sentenced to probation, you will be released from jail and supervised by the Department of Probation until probation has been completed. You must obey all of the conditions of probation. If you are sentenced to a conditional discharge, you will be released from jail and you will not be supervised by the Probation Department. You will, however, have to obey specific conditions for a particular period of time. Under certain circumstances, you may be given a split sentence (a combination of a jail term followed by a period of probation). Periods of probation or conditional discharge are conditional sentences. If you violate one or more of the conditions imposed, you may be re-sentenced to a jail or prison term.

If you are sentenced to an unconditional discharge, you will be released without any conditions. Fines and orders to pay restitution can be imposed either alone or with another sentence. In addition, you will be required to pay a surcharge and a crime victim's assistance fee.

If you have been convicted previously, you may receive a longer sentence. If you've been convicted of a felony within the last 10 years, you may be considered a predicate felony. If you have two prior felony convictions, you may be considered a persistent felony offender. You have the right to challenge the prosecutor's attempt to increase your sentence due to your prior conviction if you can show that the prior conviction did not exist or was not legal.

If you are convicted of more than one crime, or if you are already serving another sentence, you may receive concurrent sentences, which means that the sentences will run at the same time, or consecutive sentences, which means they will run one after the other. If you have been convicted of several charges, you can be sentenced to a combination of concurrent and consecutive sentences.

If you were 13 to 15 years old when you committed the felony offense, you may be sentenced as a juvenile offender (J.O.). If you were 13-18 years old at the time of the felony offense, you may also be entitled to be treated as a youthful offender (Y.O.). Thus, when you reach your sixteenth birthday, you are a youth, not a juvenile. When you reach your nineteenth birthday, you are an adult and are not a youth. If you are treated as a youthful offender, your offense will not appear on your record and you may receive a lower sentence.


APPEALS

After you are sentenced, you have a right to appeal your conviction or sentence. You may appeal your case no matter what sentence you receive. Your appeal will be decided by a panel of appellate judges who review the proceedings of the court where you were convicted and sentenced. When you plead guilty, however, you give up your right to appeal some issues. Sometimes, you may be asked to give up your right to appeal as part of the plea bargain. Even in this situation, however, you may be entitled to have the appellate court review some issues.

Notice of your intent to appeal must be filed within thirty days of the date you were sentenced. The notice must be filed with the clerk of the court and the prosecutor's office. Your criminal defense lawyer must file this notice if you ask him or her to do so. If your notice is not filed within thirty days from the date of your sentencing, you must ask the court for permission to appeal by making a motion for an extension of time. Such a motion must be made within one year and thirty days from the date of your sentencing, and you should explain why your notice was not filed within thirty days.

If you want a criminal defense lawyer to be assigned to your appeal because you do not have money to pay for one, you must ask the court to appoint one to you.

Your appellate lawyer will obtain a copy of the transcripts of your case, as well as other necessary court papers and exhibits, from the court. He or she will prepare the necessary court papers for the appeal (a brief or a motion) and, if appropriate, he or she will argue your case orally in the appellate court. Unlike the suppression hearings or the trial, you will not be brought to the appellate court when your appeal is heard. If you have not been sentenced to a prison term, however, you may attend the appellate argument.

If your appeal results in an affirmance, meaning the appellate court found that you received a fair trial and there was enough evidence to prove your guilt a beyond reasonable doubt, or that your guilty plea was properly taken, you have a limited right to seek further appeal to the highest court in New York State, which is the Court of Appeals.

If the Court of Appeals decides not to review your case, or if it affirms your conviction, you will have reached the end of the New York State appellate process. Further proceedings, such as applications to appeal to the United States Supreme Court, may be made under certain circumstances. You do not have the right to a free court-appointed lawyer for these proceedings.

If your conviction is reversed, your case may be dismissed, you may receive a new trial or hearing, or in some instances, your guilty plea may be vacated. If your conviction is modified, you may receive a lower sentence, or the offenses of which you were convicted may be reduced, or both. In addition, the appellate court may remit the case to the trial court to conduct a hearing on a specified issue. Once these instructions are followed, the appellate court will hear your appeal.

You may ask to be released from prison while you are waiting for a decision on your appeal. This is called an application for a stay. You may not make an application for a stay if you were convicted of a class A felony. Only one application for a stay is permitted during the appeal, although if your appeal continues to the Court of Appeals, you then may make another application for a stay.

In certain circumstances, even though the charges against you have been dismissed, the prosecutor may be permitted to appeal your case. This is called a People's appeal. If the People's appeal is successful, the charges against you may be revived and the case against you may continue. The prosecutor is absolutely prohibited from appealing an acquittal.


The Storobin Law Firm
305 Broadway
New York, N.Y. 10007
Phone: (646) 350-0601
Fax: (646) 517-0253

The Storobin Law Firm
26 Court Street, Suite 913
Brooklyn, N.Y. 11201
Phone: (718) 285-6978
Fax: (646) 517-0253

The Storobin Law Firm
104-70 Queens Blvd., Suite 300
Brooklyn, N.Y. 11375
Phone: 285-6978
Fax: (646) 517-0253