CRIMINAL HANDBOOK

This Handbook is not
a substitute for a lawyer.

Introduction

This Handbook is designed to help you understand how the criminal justice system works in New York State, from arrest through appeal. All underlined terms in the following sections are linked to, and defined in, the Glossary.

HOW YOUR CASE BEGINS

You were arrested because a police officer had reason to believe that you had committed a felony, misdemeanor, or violation, If you are charged with a felony, the officer must file a felony complaint in the Criminal Court. If you are charged with a misdemeanor, the officer must file a misdemeanor complaint in the Criminal Court. If you are charged with a violation, you may not have been arrested, but a police officer may have brought you to a police station to give you a desk appearance ticket (D.A.T.). A D.A.T. requires you to appear in court at the date, time, and courthouse written on it.

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 twenty-four hours of your arrest. Before seeing a 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.

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 charge(s) against you. If the prosecutor decides that there is not enough evidence to prove that you committed the crime, you will be released from jail. 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). Statements made by you may be used against you in later court proceedings. If bail is set, it may be paid (posted) 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. At the arraignment, your lawyer and the prosecutor may discuss the possibility of settling your case without the need of having a trial. They may negotiate a plea bargain which you may either accept and plead guilty, or reject and plead not guilty.

You have the right to a lawyer at the arraignment. You may hire your own 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 (18-B lawyer), Bronx Defenders, Brooklyn Defender Services, New York County Defender Services, Queens Law Associates, P.C., or the Office of Paul Battiste, Esq. (Staten Island). In the most serious homicide cases, a lawyer from the Capital Defender's Office, or a lawyer specially trained to handle such cases, will be appointed. All such lawyers are paid by the State. If you intend to hire your own lawyer, but cannot do so in time for your arraignment, the judge will appoint one to represent you, at the State's expense, for the arraignment only. After that time, the lawyer 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 the lawyer who is representing you, you may ask the judge to appoint a new lawyer for you or allow you to hire a new lawyer at your own expense. If you do not have a good reason for wanting a new lawyer, the judge will not appoint a new lawyer and may not allow you to hire a new lawyer.

If you are in jail, the prosecutor will have a chance at the arraignment to ask the judge to keep you in jail (remand) or order bail. Your lawyer will be given a chance to reply to the prosecutor's arguments. The judge will then decide your bail conditions. Your bail conditions may change as your case continues.

If you are released, you must appear in court every time your case is calendared. At each court appearance, you will be informed of your next court date. Your lawyer 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 9:30 a.m. or at what ever time the judge sets and wait there for your lawyer to appear. If you do not appear and do not notify the court or your lawyer, 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 be forfeited (not 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).

In some instances, the judge may order you to stay away from a witness or victim. This order is called a temporary order of protection. If you do not obey the order, you could be arrested and new charges may be brought against you for disobeying the order. The judge may also order stricter bail conditions for disobeying the temporary order of protection,

PLEA BARGAINING

Once you, your 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 prosecutor. 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.

There are sentence ranges for all offenses. Offenses are arranged in different categories: felony, misdemeanor, and violation. Each category is further divided into classes. A felony is a crime for which you can receive a sentence of imprisonment of more than one year, or a sentence of death for the crime of murder in the first degree. The classes of felony offenses are: AI, AII, B, C, D, and E felonies, A misdemeanor is a crime for which you can receive a jail sentence of one year or less. The classes of misdemeanor offenses are A and B misdemeanors. Jail sentences for violations may not be greater than fifteen days.

A non-jail sentence may also be imposed, such as a term of probation (for misdemeanors and certain felonies), or a conditional discharge, unconditional discharge, restitution, or a fine, for example. 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 hearing upon the felony complaint (preliminary hearing) 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. 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.'d) 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. You must still return to court on any date set by the judge.

If the grand jury finds that there is enough evidence that you committed a crime, it may 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.).

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.'d). Again, this does not mean that your case is dismissed. You must still return to court on the date set by the judge.

THE GRAND JURY

Grand jury proceedings are secret and are not open to the public. The grand jury is made up of sixteen to twenty-three people who listen to the evidence and decide whether there is enough evidence to put you on trial for a felony. If the grand jurors decide that there is enough evidence, they vote an indictment.

You have the right to testify before the grand jury. Although your lawyer may go with you to the proceeding, he or she must remain silent during your testimony. Your lawyer may not address the grand jury or object to the prosecutor's questions. If you want to speak with your 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.

If the grand jury does not vote an indictment, you will be released from jail. If the grand jury votes an indictment, your case will be transferred from Criminal Court to Supreme Court for another arraignment within a few weeks. This arraignment is similar to the arraignment in Criminal Court. You will be formally charged with the crime(s) 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. If you do not plead guilty, your case will be adjourned to a calendar part.

PRE-TRIAL MOTIONS

In the calendar part, plea bargaining may take place. In addition, your lawyer will have the chance to obtain more information (discovery) about the prosecution's case against you, and to inspect any physical evidence in the prosecutor's possession. Your 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. In order 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 crime(s) charged, the judge will 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, or if you made a statement to them, or if they had a witness identify you, your lawyer may file a motion asking that such evidence be suppressed. The judge may order that a suppression hearing be held. You have a right to be present at the hearing.

There are different kinds of hearings that may be held, depending on the kind of motion you make to the judge. At a Mapp hearing, for example, the judge hears evidence on the issue of whether the police legally seized property from you. At a Huntley hearing, the judge hears evidence on the issue of whether police officers acted legally when and if you made a statement to them and whether the statement was voluntarily made. At a Wade hearing, the judge hears evidence on the issue of whether police officers used fair methods when they had witnesses identify you as having committed the crime. At a Dunaway hearing, the judge hears evidence on the issue of whether police officers acted legally in arresting you. During the suppression hearing, testimony is taken from police officers and witnesses. Your lawyer will have a chance to cross-examine the prosecution witnesses, and you will also be given a chance to testify and call witnesses. If the prosecutor does not prove that the officers acted legally, or if you, through the evidence you present, prove that the police acted illegally, the judge will suppress the evidence. If the judge suppresses the evidence, the prosecutor will not be able to introduce the evidence against you at your trial. If the prosecutor has no other evidence against you and does not intend to appeal the judge's decision, he or she will most likely file a motion asking the judge to dismiss your case.

The prosecutor must also bring your case to trial within a certain period of 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, or in the case of a misdemeanor, within ninety days of the filing of the misdemeanor complaint in Criminal Court. If the prosecutor is not ready to try your case within the six-month period, and the time for which you were responsible does not reduce the time below six months if you are charged with a felony, or ninety days if you are charged with a misdemeanor, the judge, upon your motion, must dismiss your case. You may also be entitled to be released from jail if the prosecutor is not ready to try your case within certain specified periods of time, although the charges against you would not be dismissed. If you were responsible for delays in bringing your case to trial, those periods are not included in the six months, ninety days, or other periods relating to release.

THE 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 only crime for which death is a possible sentence. The trial is a proceeding held 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. A jury is chosen from people called to serve the week your trial begins. If you are charged with a felony, twelve jurors and two or more alternate jurors 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 (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 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 you (through your 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.

The prosecutor then makes an opening statement to the jury. In the opening statement, the prosecutor tells the jury how he or she expects to prove that you committed the crime. Your lawyer may also make an opening statement to the jury, but is not required to do so.

Evidence consists of the testimony of witnesses under sworn oath and exhibits. The questioning of witnesses testifying against you is called direct examination. Your lawyer will then question those witnesses (cross-examination). Both parties may ask to have physical evidence introduced (exhibits), as part of their case.

After the prosecutor has presented the case against you, you may, if you want, also present a case, called the defense,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. Before you may be found guilty, the jury must decide whether or not the prosecutor has proven beyond a reasonable doubt that you are guilty, whether or not you have presented a defense.

If you present a defense, the judge may allow the prosecutor to present additional evidence in rebuttal to respond to any evidence you have presented. 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, your lawyer and then the prosecutor will make closing arguments to the jury (the summations), each trying to persuade the jury to convict you or to acquit you. Following the summations, the judge will explain the law to the jury as it applies to your case (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 will 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; that is, all of the jurors must agree on the verdict. Sometimes, after much deliberation, 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 lawyer, the prosecutor and, in some cases, the victim of your crime, if any, will all have a chance to be heard by the judge as to your sentence. If you are convicted of murder in the first degree, for which death is a possible sentence, a sentencing proceeding will then be held before a jury which will decide whether you should be sentenced to death or life imprisonment without the possibility of parole.

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 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. Upon conviction of murder in the first degree and a determination by a jury that death is the appropriate sentence, a sentence of death may be imposed. 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 for a period of years. You will have to obey specific conditions. 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, which is 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. 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.

Depending on the circumstances of your case, if you are convicted of more than one offense, 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 thirteen, fourteen, or fifteen years old when you committed the felony offense, you will be sentenced as a juvenile offender (J.O.). If you were thirteen, fourteen, fifteen, sixteen, seventeen, or eighteen 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 (appeals court) who review the proceedings of the court where you were convicted and sentenced, You have a right to appeal no matter what crime you were convicted of, and regardless of whether you were convicted after trial or by guilty plea. When you plead guilty, however, you give up (waive) 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.

In cases where the death penalty has been imposed, special appellate rules apply. You should consult an appellate lawyer in such a case. In all other cases, 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 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 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, the Court of Appeals.

If the Court of Appeals decides not to review your case, or if that court 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, are beyond the scope of this Handbook. You can ask your appellate lawyer about these proceedings but you do not have the right to a 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, If your application for a stay is granted, you may be released from jail on bail or on your own recognizance, depending on all of the circumstances. 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,

COURTROOM PERSONNEL

Each courtroom is staffed with personnel. In addition to the judge hearing your case, there are one or more court clerks, several uniformed court officers, an official court reporter, and an official court interpreter.

The court clerk sits at a desk in the well of the court. He or she supervises the court personnel and is in charge of the court's paper work. He or she also swears in witnesses and calls the cases on the calendar.

The official court reporter keeps a record of all the court proceedings. He or she records each and every word that is stated for the record. Upon request of a party or the judge, the court reporter prepares a transcript of the proceeding.

The official court interpreter interprets for the defendant. If a witness does not speak English, the interpreter will interpret for the court and jury.

If you are in jail, you will have frequent contact with the uniformed court officers, whose duties are listed below:

- maintain order in the courtroom;

- provide court security;

- safeguard all people in the courtroom;

- transport defendants from the pens. If a defendant is not being kept on the same floor as the courtroom, the defendant must be handcuffed with his or her hands behind the back while being brought from the pens to the courtroom.

In order for the uniformed court officers to maintain security and order in the courtroom, certain rules have been established governing courtroom behavior for defendants who are in jail. Those defendants may not:

- make sudden movements;

- leave their chairs;

- scream or talk loudly;

- argue with witnesses;

- speak to people in the audience when the court is in session;

- move except when instructed.

GENERAL RULES GOVERNING COURTROOM BEHAVIOR

- Courtroom visits for jailed defendants with members of the audience are a privilege, not a right, and will be permitted only if a defendant is cooperative. No touching is permitted.

- Audience members must conduct themselves in an orderly fashion. They may not yell or threaten witnesses or comment on testimony.