See also:

YOU HAVEN’T BEEN ARRESTED . . . YET

You haven’t been arrested, but the police have “brought you in for questioning” or you are aware that they “want to talk to you.” What do you do? Shut up and get a lawyer.

Whenever you have any dealings with the police, you should be represented by a lawyer. If the police are looking for you, want to talk to you, want to arrest you, have a warrant for your arrest, or if there is any possibility that you may be implicated in a crime, you need a lawyer.

Do you need to retain a private lawyer? No. If you cannot afford to hire a private 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). All such lawyers are paid by the state.

If you are poor and cannot afford a lawyer, you should not feel that your court-appointed lawyer will not do a good a job for you. Lawyer who work for public defender offices or who are assigned cases by the state take their job very seriously and by and large provide excellent service to their clients.

On the other hand, if you can afford a lawyer the court will not appoint a lawyer for you; you will have to hire an attorney and pay him from your own pocket. You should, however, make sure to hire a lawyer who specializes in criminal law. Criminal defense is a highly specialized field, and you cannot afford to gamble with your life and liberty.

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.

Of course, you may also represent yourself and act as your own lawyer; however, it is better to have a lawyer represent you.

LEGAL FEES

Legal fees vary widely depending on the nature of the case, the experience and reputation of the lawyer you choose to represent you, and the caseload he carries. Fees can range from a few hundred dollars to several thousand dollars. The more complex the case, the higher the fee. This is because investigators may need to be hired along with expert witnesses and other consultants. In such cases, several pre-trial and post-verdict motions may need to be filed, along with appeals, re-trials, and other proceedings that may be necessary.

Similarly, more experienced attorneys, who have spent years trying complex criminal cases, will charge more for their services. Also, if a lawyer carries a smaller caseload he will often charge far more than a lawyer who represents scores of clients. This is because a lawyer with few clients can spend more time on your case. He will not have to divide his time between several clients. Such lawyers can be expensive, because you are essentially buying weeks or months of his time. Whether such an expense, if you can afford it, is worthwhile is a decision you will have to make.

Most criminal lawyers require that all or most of the fee for their services be provided up front. Some will charge by the hour and withdraw payments from a retainer. Others will set a fee to cover the beginning of their representation up to and including trial. Make sure to read your retainer agreement carefully.

Because of the gravity of the circumstances, it goes without saying that you should hire the best attorney that you can afford. When so much at stake, finding a bargain may prove costly.

YOUR RELATIONSHIP WITH YOUR LAWYER

You need to trust your lawyer. Period. When seeking to retain a private lawyer, ask about his criminal trial experience, where he has practiced law, and what sort of cases he typically handles. Even after you have hired your lawyer, you can change lawyers if you find the relationship is not productive. If your lawyer was appointed by the court, and you are not content with him, 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.

In order for your lawyer to represent you effectively, you need to able to discuss your case openly with him. Remember, you do not need to impress your lawyer. You do not need to convince your lawyer that you are innocent, if you are not. Your lawyer will not judge you, and if you have committed a crime it is usually best to be up front about that with your lawyer so that he can better represent you.

Remember, everything you tell your lawyer is confidential and cannot be used against you. That is the law, and it is a good law—the “lawyer/client” privilege allows lawyers and their clients to freely discuss a case without fear that any of those conversations will end up in court. This is true, even if you change lawyers.

LET YOUR LAWYER WORK

When you have a lawyer, let him do his job for you.

The simple fact is that if the police are interested in talking to you, they likely want to arrest you but haven’t enough evidence yet to do so. Don’t give them evidence by talking to them without a lawyer present. This is true regardless of whether you believe you are totally innocent of any wrongdoing. The police are trained to elicit confessions from suspects, and even if you do not “confess” they may gather evidence from you which, taken along with other evidence, will provide the basis for your arrest and be used against you at trial.

The police are allowed to use tricks when they talk to you. For instance, they may tell you someone has already identified you. They may say they have your fingerprints or a videotape. They may say they’ll give you a break if you cooperate. They may say they know what happened and only want to hear you say it. Don’t believe it! Do not think that you are smarter or more clever than the police, or that you can fool them. The NYPD is the best police department in the world and you need professional help if they come knocking on your door.

Nor should you ever believe that things may go “easier for you” if you confess to a crime you may have committed. It is not a cop’s job to make things easier for you. On the other hand, there is an instinctive human need sometimes to “come clean” if you have found yourself in a situation that could give rise to criminal charges. Resist this temptation. It is better to calmly decide on a course of action after consultation with your attorney.

Remember, anything you tell the police can be used against you—not just confessions. If you tell the police anything, and it turns out to be untrue, they will introduce it at trial to show you are a liar, or that you were tying to throw them off because you “knew you were guilty.” Similarly, even if you tell the police truthfully, for instance, that you were at the scene of a crime but had no role in it, they may introduce this statement to establish your presence and then present additionally evidence to prove you guilty of the crime.

So, if you have been “brought in for questioning,” say nothing except your name, address, date of birth or other pedigree information. Do not be belligerent with them. Do not argue with them or “take the bait.” Instead, calmly tell them that you do not wish to make a statement without a lawyer present. Explain that you want a lawyer if you do not have one. If you already have retained counsel, tell the police his name and phone number if you know.

In other words without a lawyer, never answer questions from the police! Never make statements. Never sign any document the police may give you. Never agree to be videotaped. And never agree to waive any of your constitutional rights.

It’s the government’s job to prove you guilty—don’t help them do their job!

PARTNER-IN-CRIME

If you have committed, or the police believe you have committed, a crime along with other persons, you should be especially careful.

If you are charged with a crime while “acting in concert,” you can be legally responsible for any crime committed by any other participant in the course of the commission of such crime, no matter how insignificant your role relative to the other participants.

Put simply, if you agree to act as a lookout for a robbery, for instance, but one of your partners kills the victim, you can be charged with that murder. You may not think that is fair, but that is the law.

Therefore, do not think that you can tell the police “I was only the lookout!” and expect to be given light treatment. If you make such a confession, you could find yourself charged with a murder.

Your lawyer will help you sort this issue out.

SEARCH AND SEIZURE

Never consent to a search without first consulting an attorney. If the police tell you they want to search you, your home, or your car, tell them no. Without a warrant or unusual circumstances, the police cannot perform a search without your permission.

If, after you refuse to consent to a search, the police undertake a search nonetheless, do not resist or argue with the police—this may give them cause to arrest you if they did not have it already. Just remember that the fruit of an illegal search cannot normally be used against you in court, and your lawyer will ensure that this is done.

SURRENDER

Similarly, if you are aware that the police want to speak to you, are looking to arrest you, or if there is a warrant outstanding for your arrest, the best course of action is to cooperate and surrender to the authorities.

Think about how it will look to a jury—hiding from the police can be introduced as evidence of guilt at trial. Also, you are more likely to be R.O.R.’d (released on your own recognizance) or have bail set low after arraignment if you show you are not a flight risk by having cooperated with the authorities.

Your lawyer can arrange your surrender and act to preserve your rights in the event the police wish to speak to you thereafter.

LINEUPS

Occasionally the police will have reason to believe you a suspect in a case in which there is an eyewitness to the crime. Sometimes whether you stand in the lineup is up to you; other times, depending on the evidence against you, you will have no choice except to do so. Your lawyer will determine whether or not you are required to stand in the lineup, so you should consult him immediately. Do not consent to the lineup without your lawyer. If you have a lawyer, advise the policemen conducting the lineup.

ARREST

You were arrested because a police officer had reason to believe that you had committed a felony, misdemeanor, or violation. You may not have any idea initially what particular facts they are talking about, or what evidence there is against you. In any event, if you are arrested you should never resist. Resisting an arrest, even a wrongful or erroneous arrest, can lead to additional charges, reduces your chance of receiving low bail, and always looks poor to a jury and judge.

An arrest can be made either with a warrant or without. The police do not need to obtain an arrest warrant if they observe you committing a crime or otherwise have probable cause to believe you have committed a crime.

YOUR FIRST COURT APPEARANCE

If you are charged with a felony, the police 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 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. Similarly, you should provide the C.J.A. with truthful information since evidence of deceit may be introduced at trial.

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.

ARRAIGNMENT

Once these procedures are completed, you are brought to Criminal Court for arraignment, where you will learn what charges have been brought against you. From the defendant's point of view, however, the most important feature of the arraignment is whether the judge sets bail.

At arraignment, the case will be called and the defendant produced before the bench. His attorney will approach and be permitted to stand with him. The court will ask whether the defendant will waive the reading of the complaint against him, which is typically done.

The court will then review the file while the prosecutor provides the defendant with any notices required by law. Although the state has fifteen days to provide such notices, by custom they are offered at arraignment.

Common notices include:

710.30(1)(a) Statement Notice, which is provided when the state claims the defendant has made a statement it plans to assert at trial. The People must provide a copy of the statement in whatever form it was made.

710.30(1)(b) Identification Notice, which is given when the People claim the defendant has been identified as the perpetrator though some kind of identification procedure, such as a lineup.

190.50 Notice, which puts the defendant on notice that the People intend to present the case to a Grand Jury for felony indictment.

The defense may also provide cross-notices to the prosecution, if it wishes, such as a cross-190.50 notice that the defendant wishes to testify in the Grand Jury.

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.

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.

BAIL

At arraignment the judge may set bail. Or, he may not set bail and you will be remanded to jail to await trial. Alternatively, you may be released on your own recognizance (R.O.R.’d).

The prosecutor will make his argument first, typically asking the judge to remand the defendant or set hight bail. The defense will then have an opportunity to argue for bail or release.

In deciding whether to set bail, the judge will consider a number of factors, including: the seriousness of the charges, any prior criminal convictions, any outstanding criminal cases or arrest warrants, the defendant’s community ties. The latter is very important, and you are more likely to have bail set if you have a job, own a house, are a citizen, and have family in New York.

If the arraignment judge sets bail, it is often useful to have evidence of your ties to the community ready, since bail is set to reduce a defendant’s risk of flight. For instance, it is good to have family present at arraignment, or evidence of employment. Also, if you have money available for bail, someone should have it in court and the judge should be made aware of how much money you are able to raise. Bail may be posted in court, which is always easier than posting bail after you are removed from court to a detention facility such as Rikers Island.

Of course, if you have substantial funds available for bail, the likelihood of being assigned counsel will decrease. Usually, if you can afford bail the court will not assign counsel and you will be required to retain a lawyer out of your own pocket.

Bail can be met in various ways. “Cash bail” is a dollar amount that must be surrendered in cash in order to secure a defendant’s release from jail. A “bail bond” is arranged through a bondsman who essentially promises to pay a certain amount in the event the defendant fails to appear in court as required. A bail bond company will typically require ten percent of the bail amount in order to write the bond in addition to asking for certain other guarantees.

The court may set bail as “cash only” or as “cash or bond.” If the former, then you cannot set bail from a bondsman and have to post cash. When the court allows cash or bond, it will ordinarily set a higher bond amount.

Bail can be paid from a variety of sources, including property, but the source of the bail may be looked into by the court when it has reason to believe the bail is being paid from illegitimate funds.

If a defendant fails to appear as required on any court date, any cash bail is forfeited and you cannot get it back. If bail was paid through a bondsman, he will be required to pay on the bond; he will then look to the guarantors for payment.

After the final disposition of the case, any cash bail is returned. If bail was paid by bond, the bondsman keeps the percentage paid as his fee.

Once bail is set, the court will not lower bail unless you can show there has been a change of circumstances. Accordingly, it is best to come ready to make your best bail argument at arraignment in Criminal Court.

AFTER 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. This is called the “180.80 day,” after the appropriate Criminal Law statute. If the prosecutor does not present the evidence to the grand jury by the 180.80 day, 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 return a ‘true bill” or an indictment. If the grand jury finds that there is not enough evidence that you committed a crime, it will return a “no true bill” and 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 a true bill or an indictment.

You have the right to testify before the grand jury. Although your lawyer may go with you to the proceeding, he 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.

INDICTMENT

An indictment is simply the formal accusation by a Grand Jury of a felony. Prior the issuance of an indictment, a felony defendant is accused only by the Criminal Court complaint. The indictment is not evidence of guilt and cannot be entered as evidence against you at trial.

If the grand jury does not vote an indictment, you will be released from jail. The failure of the Grand Jury to vote an indictment is called a “no true bill.” 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.

Rarely the Grand Jury will hear evidence prior to any arrest. If a “silent indictment” is issued against you, you will be unable to present evidence or to testify and will only be aware of it when an arrest warrant is issued against you.

SUPREME COURT ARRAIGNMENT

Following the issuance of an indictment, a defendant will be arraigned a second time, but on this occasion it will be in Supreme Court. The arraignment on the indictment in Supreme Court is similar to the arraignment on the complaint in Criminal Court.

In Supreme Court, you will be given a copy of the indictment and enter a plea. Additionally, you may be given certain evidentiary information about the charges against you, including the so-called Voluntary Disclosure Form (V.D.F).

CALENDAR CALLS AND APPEARANCES

After arraignment in Supreme Court, the case is sent to a “calendar part,” a judge who is responsible for overseeing the case in its early phases. The case will remain in the calendar part often for many months awaiting trial. The “speedy trial” law requires that the district attorney be ready for trial within six months of indictment, but a certain amount of time is excluded from this calculation. As a result it is not uncommon for a criminal case to take up to a year before trial.

If you are not incarcerated awaiting trial, you will be required to come to court for every appearance unless you have the court’s permission to be absent. If you fail to appear for a calendar, the court may revoke your bail, issue a bench warrant for your arrest, and you will be incarcerated thereafter.

Unless told otherwise, you must appear in court at 9:30 AM and expect to be there for the better part of the day. Your lawyer may or may not be there waiting with you, but he will certainly be there when the case is called.

While a case can take a while before the district attorney announces he is ready for trial, even he takes longer than six months, not counting excludable time, the defendant can make a “30.30” or speedy trial motion which, if successful, results in the dismissal of the case.

The prosecutor must also bring your case to trial within a certain period of time. Generally, in a non-homicide case (which are not subject to the speedy trial statute), 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.

PLEA BARGAINS

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.

Plea bargaining often takes place while a case is pending in the calendar part. Plea bargaining is not about the district attorney “chickening out” or the defendant “copping.” Instead, the plea bargain allows both the prosecution and the defense to mitigate the risk of going to trial but accepting a disposition of the case that is somewhat less favorable that their best case scenario.

Whether or not plea bargaining will be entertained by either party depends largely on the strengths and weakness of the case and the up- or down-side potential. From the district attorney’s point of view, there is not sense in offering a low plea if he has overwhelming evidence of a defendant’s guilt. Nor would it make much sense for a defendant in such a case to seek a trial, since the likelihood of conviction is high and top-count sentence after trial will likely be higher than any offer the district attorney may make, if indeed he makes one at all.

On the other hand, if defendant believes the evidence against him is weak or he intends to put on a strong case in his own defense, he will likely reject any but the most favorable plea offer and force the district attorney to trial.

Usually, however, the decision is far more difficult. Most cases that make it to trial have issues of fact and could go either way, so a defendant will have a difficult choice if offered a plea. Also, if you are factually innocent the decision to take a plea can be particularly hard, even if the plea is favorable, since it would require you admit guilt. In such cases, you may be permitted to take a Serrano/Alford plea, which allows you to plea without admitting guilt.

PRE-TRIAL HEARINGS

While your case is pending in the calendar part 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. A Sandoval hearing seeks to bar the district attorney from present evidence of your criminal record, if any, at trial.

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 will most likely file a motion asking the judge to 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 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 can be a fair and impartial juror in your case. If any juror expresses bias or a belief that he 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 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.

See the New York Sentencing Chart here.

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 will prepare the necessary court papers for the appeal (a brief or a motion) and, if appropriate, he 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.

Adapted with thanks from NY Office of Court Administration, Criminal Justice System Handbook.