The
Criminal Defendant Handbook
TABLE OF
CONTENTS
FOREWORD
In 1993, the Honorable Jack
B. Weinstein, of the United States District Court for the
Eastern District of New York, presided over a complex criminal
case involving eighteen defendants, all of whom required
interpreters. Having ordered the governments to provide
defendants with Spanish translations of numerous documents so
each would be better able to understand and participate in the
proceedings, Judge Weinstein observed:
[ I ]t would be useful to
provide for those not familiar with the American legal
system a short primer in the federal criminal legal system.
Such a pamphlet could indicate briefly such matters as how
our criminal justice system operates and what it means to
waive an indictment or plead guilty; what are the elements
of a trial; and what are the roles of grand and petty
juries, attorneys, judges and magistrate judges. It would
not be a comprehensive statement of rights. The various
Metropolitan Area bar associations could cooperate in
providing such a pamphlet to be translated into some of the
languages routinely used in this court.
United States v. Mosquera,
et al., 816 F. Supp.
168, 177 (E.D.N.Y. 1993).
Shortly thereafter, a Joint
Committee of the Association of the Bar of the City of New
York and the New York County Lawyers' Association was formed
to respond to this call. This volume is the fruits of their
labors. I suspect Judge Weinstein will forgive their focus on
the State system, in which the vast majority of criminal cases
are adjudicated.
The criminal justice system
is complex and, for those who stand accused, often
frightening. The fear and confusion are compounded for
defendants with limited command of English, of whom there are
large numbers in New York State. Fairness demands that
everyone who enters the system understand the nature of the
proceedings, and this pamphlet will contribute substantially
to achieving this goal. A succinct explanation of the entire
criminal process, from arrest to appeal, it does a superb job
of making a complicated system clear. In producing it, the
Joint Committee has performed a service of enormous value to
the courts, the bar and the public.
Thanks are due to Judge
Weinstein for inspiring this important effort; to all the
members of the Joint Committee, whose hard work and dedication
brought the project to fruition; to Barbara Jaffe, Esq., the
Joint Committee Chair, who led the venture with expertise and
distinction; and to Alan Rothstein, Counsel to the Executive
Secretary of the Association of the Bar of the City of New
York , who helped coordinate the enterprise.
Hon. Judith S.
Kaye
Chief
Judge, New York Court of Appeals
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Acknowledgments
The
Joint Committee which prepared this Handbook is made up of
members of the Association of the Bar of the City of New York
(Special Committee on Public Service and Education and the
Committee on Criminal Courts) and New York County Lawyers'
Association (Criminal Justice Section): Barbara Jaffe, Esq.,
Chair of the Joint Committee; Hon. Douglas S. Wong, Judge, New
York City Criminal Court; Hon. Patricia Nunez, Judge, New York
City Criminal Court; Neil Checkman, Esq.; Michael Gerber,
Esq.; Edward Hamlin, Esq.; and William Knisley, Esq.
We wish to acknowledge the
invaluable assistance rendered by Hon. Ann Pfau, Deputy Chief
Administrative Judge for Management and Support; Hon. Juanita
Bing Newton, Deputy Chief Administrative Judge for Justice
Initiatives; Ronald Y. Younkins, Esq., Executive Assistant to
Judge Pfau; Deborah Kaplan, Principal Court Attorney to
Justice Newton; Patricia Henry, Counsel to Hon. Judy Harris
Kluger, Administrative Judge, New York City Criminal Court;
Hon. Barry A. Cozier; Alan Rothstein, General Counsel, the
Association of the Bar of the City of New York; Maria L.
Imperial, Executive Director, City Bar Fund; Elena Ajayi,
Grants Manager, City Bar Fund; and John Macaulay, Esq.,
Managing Attorney, and Akira Arroyo, Program Coordinator, the
Robert B. McKay Community Outreach Law Program, Association of
the Bar of the City of New York. Also providing assistance and
advice were Klaus Eppler, Esq., past President, New York
County Lawyers' Association; Irwin Davison, Esq., former
Executive Director, New York County Lawyers' Association; Hon.
Ruth Pickholz and Norman L. Reimer, Esq., former Co-Chairs,
Criminal Justice Section, New York County Lawyers'
Association; Patrick Dugan, Esq., Chief, Rackets Bureau, New
York County District Attorney's Office; Hon. Barbara S. Jones;
Hon. Charles Tejada; Hon. James Yates; Robert M. Baum, Esq.,
former Attorney-in-Charge, The Legal Aid Society, Criminal
Defense Division; Katherine N. Lapp, Esq., Director of
Criminal Justice Services of the State of New York; Joyce B.
David, Esq.; Joyce B. David, Esq.; Daniel Alessandrino, Deputy
Chief Clerk V; Norma Meacham, former Director of Human
Resources, Office of Court Administration, State of New York;
Barry Sullivan, Principal Court Analyst; Margarita Martinez,
Senior Court Interpreter; and William Clark, Chief Court
Attorney, New York City Criminal Court.
We would also like to
recognize Carolyne Byrne and Helena Coronado, volunteers for
the Robert B. McKay Community Outreach Law Program, who were
responsible for translating the guide from English to Spanish.
The Chinese language version
of the Handbook was made possible through a generous grant
from the Office of the Manhattan Borough President, C.
Virginia Fields. It was translated by John Lau and validated
by Guanrong Shen.
The French version was made
possible through the generous donation of time by translators
Trudie Marmorek and Raynold Abellard and validators Barbara
Grcevic and Gerald Lebovits.
The Korean version was
generously donated by the Korean American Lawyers Association
of Greater New York, through its President, Helen Kim, and
member Chanwoo Lee.
The Russian version was made
possible through the generous donation of time by translator
Albert Federov and validators Tatiana Perez and Erena Baybik.
Dedication
The Joint Committee dedicates
this handbook to Hon. Jack B. Weinstein, United States
District Judge, E.D.N.Y., who inspired this project.
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Introduction
This Handbook is designed to
help you understand how the criminal justice system works in
New York State, from arrest through appeal. All bold terms
in the following sections are defined in the Glossary. This
Handbook is not a substitute for a lawyer.
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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
^ To Top
Glossary
acquittal:
A decision by the trial jury or judge that a
person is not guilty of an offense.
adjournment:
A postponement of a criminal case.
affirmance:
A decision by an appeals court that upholds
the decision of a lower court.
alternate
jurors: extra jurors chosen in case one of the
twelve (or six) jurors become unavailable to serve during the
trial.
appeal:
A request for review by a higher court of proceedings in a
lower court.
appellate
judges (Appeals Court): Judges that decide an appeal.
appellate
argument: A court proceeding at which an appeal
is orally argued before appellate judges.
application
for a stay: A request to be released while an appeal
is pending.
arraignment:
A court proceeding at which a person is informed of the
charges against him or her. 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.
arrest:
The act of being taken into custody by the police.
Assigned
Counsel Plan for the City of New York: A listing
of private lawyers who represent people in criminal cases who
do not have enough money to pay for a lawyer. The government
pays for the services of these lawyers.
bail:
Money ordered to be paid to the court in exchange for release
from jail while a criminal case is pending.
bench
warrant: A court order for a person's arrest
that is issued when a person fails to appear in court on a
scheduled date.
beyond
a reasonable doubt: The burden of proof that the prosecutor
must meet at trial in proving that a person is guilty of an
offense.
brief:
A written legal argument.
Bronx
Defenders: Provides legal representation to
people who do not have enough money to pay for a lawyer.
Brooklyn
Defender Services: Provides legal representation
to people who do not have enough money to pay for a lawyer.
calendar
part: A courtroom where a case is scheduled for
further proceedings.
calendared:
Setting a date for court action to occur in a case.
Capital
Defender's Office: Furnishes lawyers specially
trained to defend individuals accused of homicides
for which death is a possible sentence.
Central
Booking: Police Department office where
fingerprints and photographs are taken after an arrest.
challenge
for cause: A motion to excuse a juror from
serving on a jury because he or she could not be fair or for
some other reason allowed by law.
charge:
Accusation of an offense.
complaint:
Verified written accusation by a person.
concurrent
sentences: Sentences that are
served at the same time.
conditional
discharge: A sentence allowing
for release from jail without supervision by the Department
of Probation, but which requires compliance with
conditions set by the court.
consecutive
sentences: Sentences that must
be served one after another.
conviction:
A finding of guilt of an offense, following either a guilty
plea or a trial verdict.
Court
of Appeals: The highest court in New York State,
located in Albany, New York.
Criminal
Court: The court where criminal proceedings
begin. Misdemeanor cases remain in this
court.
Criminal
Justice Agency (C.J.A.): An organization whose
employees interview individuals who have been arrested to find
out about their backgrounds in order to help judges decide
whether to set bail, order release without bail
(R.O.R.), or order confinement in jail while
a case is pending.
cross-examination:
Questioning of a witness by the lawyer who has not called the
witness.
defendant:
A person who has been charged with an offense.
defense:
Evidence or arguments presented on behalf of
a person accused of an offense.
deliberations:
A secret meeting at which the jury considers
the evidence presented at trial
to decide if a person is guilty of charged offenses.
Desk
Appearance Ticket ("D.A.T."): A
document that charges a person with a violation.
The ticket requires one's appearance at a specific court at a
specified time.
direct
examination: Questioning of a witness by the
lawyer who called that witness.
discovery:
A process lawyers use to find out information about a case.
18-B
Panel: See "Assigned Counsel Plan."
evidence:
Testimony and exhibits introduced at a hearing
or trial.
exhibits:
Physical evidence introduced at a hearing
or trial.
felony:
An offense which is punishable by a sentence
of imprisonment of more than one year, or a sentence
of death for murder in the first degree.
felony
complaint: The first document filed with the
court that sets out the initial charges in a felony
case.
fine:
A sentence that requires the payment of
money.
fingerprints:
Reproductions of unique finger marks, which are used to
identify people.
fingerprint
report (rap sheet): A summary of a defendant's
prior and/or currently pending arrests and convictions.
grand
jury: A group of citizens who decide if the prosecutor
has enough evidence to pursue felony
charges against a person.
hearing:
A court proceeding where testimony is given, exhibits
are reviewed, and/or legal arguments are made, to help a judge
decide an issue in a case.
homicide:
An offense involving the killing of one person by another.
hung
jury: A term used to describe a trial
jury that cannot reach a unanimous verdict.
indictment:
A document that contains the felony (and
perhaps also misdemeanor) charges that were
voted by the grand jury.
jurors
(jury): A group of citizens who decide at trial
if a defendant is guilty or not guilty of charges.
jury
box: where jury is seated.
jury
charge or jury instructions:
Explanation of the law read by the judge to the jury.
jury
panel: A large number of people from whom the
jury is selected.
Juvenile
Offender (J.O.): A person who is sentenced for
certain kinds of felony offenses that were committed when the
person was thirteen, fourteen, or fifteen years old.
The
Legal Aid Society: A private non-profit
organization that provides legal representation to people who
do not have enough money to pay for a lawyer.
life
imprisonment without the possibility of parole: Sentence
of imprisonment without the possibility of release.
misdemeanor:
An offense punishable by up to one year in jail.
misdemeanor
complaint: A document filed with the court that
sets out the initial charges in a misdemeanor
case.
mistrial:
A decision by a judge to end a trial before a
verdict is reached.
motion:
A request for a judicial order.
objection:
A request to a judge for an order prohibiting or excluding
certain evidence.
opening
statement: Argument to the jury or judge made at
the beginning of a trial.
New
York County Defender Services: Provides legal
representation to people who do not have enough money to pay
for a lawyer.
Office
of Paul Battiste, Esq. (Staten Island): Provides
legal representation to people who do not have enough money to
pay for a lawyer.
People's
appeal: An appeal brought by the
prosecutor.
peremptory
challenge: A motion to excuse a juror
from serving on a jury without any reason given.
plea
bargain: An agreement between a defendant, a
judge, and a prosecutor, in which the
defendant admits guilt, usually in exchange for a promise that
a particular sentence will be imposed.
plead
guilty (guilty plea): Where a defendant admits to
having committed a charged offense.
post
bail: pay bail.
pre-sentence
memoranda: Documents prepared by the prosecutor
and the defendant to help the judge determine
a sentence.
pre-sentence
report: Report prepared by the Department
of Probation containing information to help the judge
determine a sentence.
preliminary
hearing: A hearing upon a felony
complaint.
probation:
A sentence that does not involve prison, but
requires compliance with certain conditions for a specified
period of time under the supervision of the Department
of Probation.
Probation,
Department of: An agency that prepares a written
report concerning a defendant's background
and the circumstances surrounding the offense. The Department
of Probation also supervises defendants sentenced to probation.
probation
officer: An employee of the Department of
Probation who prepares pre-sentence reports
and supervises defendants placed on probation.
prosecutor:
A lawyer who represents the government in criminal cases (also
known as the assistant district attorney or A.D.A., the
People, or the prosecution).
Queens
Law Associates, P.C.: Provides legal
representation to people who do not have enough money to pay
for a lawyer.
rap
sheet (fingerprint report): A
summary of a defendant's prior and/or currently pending arrests
and convictions.
rebuttal:
Evidence or argument made in response to an
argument.
remand
or remanded to custody: To be sent to jail.
remit:
An order by an appeals court sending a case
back to a lower court for further proceedings.
restitution:
A sentence that requires the payment of money
to a victim.
reversal:
A decision by an appeals court that rejects
the decision of a lower court.
R.O.R.'d
(release on recognizance): To be released from
jail without bail while a case is pending.
sentence:
A punishment imposed by a judge following a conviction.
sentencing:
A court proceeding at which a sentence is
imposed.
sentencing
proceeding: Trial before a jury to determine if a
sentence of death or life
imprisonment without the possibility of parole should
be imposed.
split
sentence: A jail sentence
followed by a period of probation.
summation:
Closing argument made at trial.
Superior
Court Information (S.C.I.): A written accusation
filed by the prosecutor containing felony
and perhaps also misdemeanor charges.
suppression
order: A court order that prohibits the admission
of specific evidence at trial.
Supreme
Court: The court where cases involving felonies
are heard.
surcharge:
A payment of money that is required upon conviction.
surrebuttal:
The stage of the trial when a party may offer
evidence in response to rebuttal evidence.
sworn
oath: A promise to tell the truth.
temporary
order of protection: A court order that forbids a
person from contacting or being in the presence of a specific
person for a specified period of time.
testify
(testimony): To speak under oath.
transcripts:
Official record of everything that is said in court.
trial:
A court proceeding at which a judge or jury decides whether a
person is guilty or not guilty of the charges against him or
her.
unconditional
discharge: A sentence which does
not require either any imprisonment or conditions.
vacate:
To cancel a court order. A vacated court order has no legal
effect.
verdict:
The trial judge or jury's
decision as to whether a person is guilty or not guilty of
charged offenses.
violation:
An offense punishable by up to fifteen days in jail and/or a fine.
waive:
To give up a legal right.
well:
The section of the court containing the tables at which the defendant,
prosecutor and lawyers sit.
Youthful
Offender (Y.O.): A person who is sentenced for an
offense that occurred when the person was fourteen, fifteen,
sixteen, seventeen, or eighteen years old.
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