New York Criminal Defense Lawyer Blog

Discovery in New York criminal cases is very limited compared to discovery in New York civil cases. However, a New York criminal defense attorney is allowed-amongst other things- to serve a written “Demand For Discovery” (A/K/A “Demand To Produce”) within thirty days of the defendant’s arraignment or their appearance in the case demanding the prosecution turn over to the defense certain information and material for inspection, photographing, copying or testing including:

a. Statements by the defendant or any defendant to be tried jointly that was made to the police or others acting on behalf of the police anytime other than during the commission of the criminal transaction [CPL §240.20(a)];
b. A copy of the grand jury testimony of the defendant and any defendant to be tried jointly [CPL §240.20(b)];
c. Any writing concerning a physical or mental examination relating to the criminal action [CPL §240.20(c)];
d. Any writing concerning any scientific test or experiment relating to the criminal action such as the results of a blood or urine test [CPL§ 240.20(c);
e. Any photograph or drawing related to the case including the defendant’s mug shot [CPL § 240.20(d);
f. Any photograph , photocopy or reproduction of any stolen property made before it was returned to its owner [CPL §240.20(e)];
g. Any other property seized from the defendant or any defendant to be tried jointly [CPL§240.20(f)];
h. Any tape or electronic recordings which the prosecutor intends to introduce at trial [CPL §240.20(g)];
i. Anything required to be disclosed by the prosecutor to the defendant prior to trial by the constitution of this state or the United States including information favorable ( Brady material) to the defense [CPL §240.20(h)];
j. The approximate date, time and place of the offense charged and of the defendant’s arrest [CPL§240.20(i)] ;
k. The time, place and manner of notice of those individuals who are not authorized to use a computer in the prosecution of an offense involving computers such as computer trespass; [CPL § 240.20(j) and PL §156(6)] ; and
l. Inspection, calibration or repair records of machines or instruments used in vehicle and traffic law cases such as a breathalyzer or a radar gun [CPL §240.20(k)].

The prosecutor is required to make a diligent, good faith effort to ascertain the existence of demanded property and to make it available for discovery if it exists even if it may not be in the prosecutor’s possession, custody or control. [CPL §240.20(2)] However, the prosecutor is not required to obtain demanded property by using a subpoena duces tecum where the defendant could do so himself. [CPL §240.20(2)] The prosecutor has a continuing obligation to provide the requested discovery material to the defense throughout the pendency of the case. [CPL§240.60]

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People v. Perez , __ AD3d ___, [4th Dept. 0 1/09/08]:
In an unanimous decision, the Appellate Division, Fourth Judicial Department, reversed a defendant’s conviction of two counts of assault 2nd , one count of resisting arrest and one count of obstructing governmental administration arising out of an altercation with police on the grounds that the initial arrest for criminal impersonation was illegal.

People v. Rosa, ___ AD3d ___, [3rd Dept. 01/10/08]
In a unanimous decision, the Appellate Division, Third Judicial Department, affirmed a Sandoval Ruling allowing a prosecutor in a burglary case to inquire whether the defendant had been convicted of a felony in 1978, had his parole revoked seven times, and was convicted of criminal trespass in 1997 over the defendant’s objections that the convictions were too remote in time on the grounds that incarceration can toll periods of time when assessing remoteness.

People v. Balram, __AD3d __ , [3rd Dept. 01/10/08]
In a unanimous decision, the Appellate Division, Third Judicial Department, affirmed the denial of a motion to suppress a written statement made by the defendant who was hospitalized at the time the statement was taken for a self inflict facial gunshot wound and who had been given morphine amongst other drugs sometime prior to the police interview on the grounds that neither the defendant’s physical condition nor the circumstances of the interview rendered it involuntary and the People proved voluntariness beyond a reasonable doubt.

People v. Shemesh, ___ AD3d__ ,[1st Dept. 01/15/08]
In 3-2 decision, the Appellate Division, First Judicial Department, affirmed an order granting defendant’s motion to dismiss the indictment, with leave to represent, on the grounds that the People failed to offer the defendant a reasonable or meaningful opportunity to testify before the grand jury by insisting the defendant testify on a date that conflicted with his professed religious observance of Passover.

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There are seventeen offenses involving marihuana in New York. There are six offenses involving possession of marihuana: unlawful possession of marihuana; criminal possession of marihuana in the fifth degree; criminal possession of marihuana in the fourth degree; criminal possession of marihuana in the third degree; criminal possession of marihuana in the second degree; and criminal possession of marihuana in the first degree. There are five offenses involving selling marihuana: criminal sale of marihuana in the fifth degree; criminal sale of marihuana in the fourth degree; criminal sale of marijuana in the third degree; criminal sale of marihuana in the second degree and criminal sale of marihuana in the first degree. There are three offenses involving possession of concentrated cannabis (aka hash or hashish): criminal possession of a controlled substance in the seventh degree; criminal possession of controlled substance in the fifth degree; and criminal possession of controlled substance in the fourth degree. There are three offenses involving the sale of concentrated cannabis: use of a child to commit a controlled substance offense; criminal sale of a controlled substance in the fifth degree and criminal sale of a controlled substance in the fourth degree. Sell is defined as "to sell, exchange, give or dispose of to another, or to offer or agree to do the same." [PL § 220.00(1)]

A person who knowingly and unlawfully possesses any amount of marihuana is guilty of unlawful possession of marijuana. Unlawful possession of marihuana is a violation. [PL §221.05]

A person who knowingly and unlawfully possesses marihuana in a public place that is either burning or open to public view is guilty of criminal possession of marihuana in the fifth degree. [PL§ 221.10] A person who knowingly and unlawfully possesses one or more compounds, mixtures or substances containing marijuana with a combined weight greater than twenty-five grams is also guilty of criminal possession of marihuana in the fifth degree. [PL§ 221.10] Criminal possession of marihuana in the fifth degree is a class B misdemeanor. [PL§ 221.10]

A person who knowingly and unlawfully possesses one or more preparations, compounds, mixtures or substances containing marihuana is guilty of criminal possession of marihuana in the fourth degree if the preparations, compounds, mixtures or substances have a combined weight of more than two ounces. [PL § 221.15] Criminal possession of marihuana in the fourth degree is a class A misdemeanor. [PL§221.15]

A person who knowingly and unlawfully possesses one or more preparations, compounds, mixtures or substances containing marihuana is guilty of criminal possession of marihuana in the third degree if the preparations, compounds, mixtures or substances have a combined weight greater than eight ounces. [PL§221.20] Criminal possession of marihuana in the third degree is a class E felony. [PL§221.20]

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An alibi is a defense whereby a defendant claims that at the time of the crime in question he was somewhere other than where the crime charged took place.The prosecution is required to prove beyond a reasonable doubt on all the evidence presented that the defendant was the person who committed the crime in question and therefore was not somewhere else when the crime took place.

The defendant bears no burden of proving an alibi. The prosecutor needs to prove beyond a reasonable doubt that the defendant committed the crime. However, the prosecutor does not need to present other evidence that independently proves that the defendant was not where he claims to have been at the time of the crime.

The identity of alibi witnesses –other than the defendant -is subject to disclosure. The prosecutor has up to twenty days after the arraignment to serve upon the defendant a “Demand for Alibi”. In felony cases, the twenty days begins to run after the arraignment on the indictment. In misdemeanor cases, the twenty days begins to run after the arraignment following the arrest. However, it is common practice for prosecutors to serve a “Demand for Alibi” in all cases at the arraignment following the arrest.

If defense counsel intends to assert an alibi defense at trial, he must serve a “Notice of Alibi” within eight days of the service of the “Demand for Alibi” unless for good cause shown the court extends the time period beyond eight days. The” Notice of Alibi” must state (a) the place or places where the defendant claims to have been at the time of the crime; (b) the name of every alibi witness; (c) the home address of every alibi witness and (d) the place of employment of every alibi witness including its address.

Defense counsel has a duty to promptly supplement the “Notice of Alibi” with the names and address of additional alibi witnesses as they become known. The judge may exclude the alibi testimony of any alibi witness not disclosed in a “Notice of Alibi”. If the court permits an undisclosed alibi witness to testify that the defendant was somewhere other than at the scene of the crime at the time of crime, the prosecutor may ask the court for an adjournment of up to three days to investigate and prepare to cross examine that witness.

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Entrapment is an affirmative criminal defense in New York. A jury may find a defendant not guilty if they find that: (1) the defendant committed the crime because he was induced or encouraged to do so by a public servant or a person acting in cooperation with a public servant who was attempting to get evidence against them for the purpose of criminal prosecution and (2) the tactics used by the public servant or the person acting in cooperation with a public servant to get the evidence created a substantial risk that the crime would be committed by a person not otherwise disposed to commit such a crime.

The affirmative defense of entrapment must be raised and proved by the defendant by a preponderance of the evidence. The defense of entrapment requires the active inducement or encouragement of a person who is not pre-disposed to commit the crime. The mere providing of an opportunity to commit a crime does not constitute entrapment. In determining whether a criminal defendant was pre-disposed to committing the crime the jury may consider-amongst any other relevant evidence introduced at trial- the defendant’s prior criminal history.

Entrapment is considered a risky defense by many criminal defense experts. It essentially requires the defendant to admit that he committed the crime. It also opens the door to the admission into evidence of defendant’s prior criminal history- that may not have otherwise been admissible into evidence- to show a pre-disposition to commit the crime.

The affirmative defense of entrapment will always hold a special place in my heart because it was on my bar exam despite my bar exam review instructor telling our class that New York never asks any questions about It. I only was able to successfully complete the essay due to having followed the John DeLorean trial

Please call me at 1-877-858-2998 if you are ever arrested in New York. I am available 24/7. The inital consultation is free. If the case is not dismissed, I will negotiate a plea bargain agreeable to you or take the case to trial.

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A misdemeanor is a crime. New York law defines a misdemeanor as an offense, other than a ‘traffic infraction”, for which a sentence in excess of fifteen days may be imposed but which a sentence of imprisonment in excess of one year cannot be imposed. Prosecution of a misdemeanor must be started within two years of the crime.

New York law classifies misdemeanors into three categories for purposes of sentencing: class A misdemeanors; class B misdemeanors and unclassified misdemeanors. All misdemeanors carry a definite sentence that is fixed by the court. A sentence of imprisonment for a class A- misdemeanor may not exceed one year. A sentence of imprisonment for a class-B misdemeanor may not exceed three months. A sentence of imprisonment for an unclassified misdemeanor carries a sentence specified by the ordinance or law that defines the crime. A person sentenced to imprisonment for a misdemeanor serves out their sentence of imprisonment in the local county jail.Class A misdemeanor probation is three years. Class B misdemeanor probation is one year.

A court can impose a fine in most cases of no more than one thousand dollars for a class A misdemeanor. A court can impose a fine of no more than five hundred dollars for a class B misdemeanor. A court can impose a fine specified by the ordinance or law that defines an unclassified misdemeanor. A person convicted of a misdemeanor must pay a mandatory surcharge of one hundred forty dollars and crime victim assistance fee of twenty dollars. Sex offenses carry additional surcharges.

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In felony case, you have a constitutional right to have the grand jury listen to evidence and decide whether there is reasonable cause to charge you with a felony. The grand jury consists of 16 to 23 members of the local community. They meet in secret.

You have the right to testify before the grand jury so long as you timely serve a notice of intent to testify upon the district attorney. The grand jury can compel the appearance of witnesses and the production of physical evidence. The district attorney and the court act as legal advisors to the grand jury.

Any witness who testifies before the grand jury is given transactional immunity which basically means that the witness cannot be prosecuted for anything he testified to before the grand jury that is responsive to a question by the prosecutor. If you choose to testify before the grand jury, the prosecutor will insist you waive your right to transactional immunity which basically means anything you say before the grand jury can be used against you. If you choose to testify before the grand jury you are entitled to have your lawyer in the grand jury room with you. Your lawyer may advise you during the proceeding but is not able to address the grand jurors. If you choose to testify before the grand jury you will be given an opportunity to make a statement to the grand jurors. You will then be questioned by the prosecutor.

Thereafter, the grand jurors may ask you questions. Your lawyer is not allowed to ask you questions or any other grand jury witness. If you choose to testify before the grand jury your testimony can be used later at trial. In my experience, most defendants choose not to testify before the grand jury.

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If you are charged with a felony and in custody, you have the right to have a preliminary hearing within 120 hours of being placed in confinement or 144 hours if a weekend or legal holiday falls within that 120 hour period. You must be released if a preliminary hearing is not timely held unless otherwise agreed or you have other holds or you have already been indicted by the grand jury. Most preliminary hearings are held in local criminal court and only last two to three hours.

A preliminary hearing is one of your few chances to gain pre-trial discovery. As a general rule, you should not waive your right to a preliminary hearing unless you have other holds (i.e. Parole Hold) or a key witness may be available to testify at the preliminary hearing but not at the trial. However, your lawyer may advise you to waive or adjourn your preliminary hearing if the prosecution makes a favorable plea bargain offer that is contingent on your waiving the preliminary hearing.

The purpose of the preliminary hearing is to determine whether you should continue to be held for the next forty-five days for action by the grand jury. The prosecution must show that there is reasonable cause to believe that you committed a felony. The prosecution will call witnesses to testify and introduce evidence at the preliminary hearing. The prosecution will usually attempt to call as few witnesses as possible to meet their burden of proof so as to keep their cards close to their vest. Your lawyer should ask the prosecutor to turn over the prior statements and the criminal record of any witness called to testify by the prosecution.

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The primary purpose of bail in New York is to assure that a criminal defendant will be at all required court appearances. Bail is not to be used as preventive detention or pre-trial punishment. The judge ussually decides the type and amount of bail to be posted in each case at the arraignment. But, a desk officer at the police station may set bail if the person is charged with an offense lower than a Class D Felony.

The court must release a defendant accused of a non-felony offense on bail or recognizance. A defendant accused of a felony may –in certain cases- be refused bail and remanded to jail. A defendant accused of a parole violation is not entitled to bail.

The criteria used to set bail includes: (1) The character, reputation, habits and mental condition of the defendant; (2) The employment status and financial resources of the defendant; (3) The defendant’s family ties and length of residence in the community; (4) The defendant’s criminal and juvenile record; (5) The defendant’s previous record of court appearances or flight; (6) The weight of the evidence and any other factor indicating the probability of conviction; and (7) The sentence that may be or has been imposed upon conviction.

The criminal defense attorney may submit a written or oral application for bail. In my experience, local court judges will ussually accept an oral bail application while superior court judges ussually require a written bail application. However, a criminal defense attorney who submits a written application for bail will ussually still be heard by the court on the issue of bail. If time permits, I like to submit a written application for bail with various affidavits and exhibits relevant to the above listed criteria. I also like defendant’s family members to be present in the court room when being heard by the court on the issue of bail because it shows the defendant has strong family ties.

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An arraignment in New York is the time when a person charged with having commited an offense is brought before the local court for the purpose of having the court aquire and exercise control over them with respect to a certain accusatory instrument and for the purpose of setting the course of further proceedings in the case.

A New York local criminal court judge will arraign you within 24hours after being arrested or when you appear in court on an appearance ticket or a summons. During the arraignment, the judge will read in court the charges levied against you and provide you with a copy of the accusatory instrument. The judge will advise you of your rights- right to counsel, right to an adjournment to obtain counsel, right to have an attorney assigned to you if you cannot afford an attorney, right to a preliminary hearing, etc.

The judge will ask you to enter a plea of guilty or not guilty. You of course should plead “not guilty”. But, do not say anything else other than “not guilty”. Do not attempt to discuss the case with the judge. Anything you say is probably being recorded and can be used against you later in the case. If you have a criminal defense lawyer at the arraignment he will usually waive a reading of your rights and the charges and enter a plea of not guilty on your behalf.

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The police will book you after they arrest you. The New York booking process takes place at a police station. The New York booking process can include: recording background information such as name, address, age, date of birth, social security number, etc; multiple forms being filled out by the police; taking of a mug shot; collection of property; fingerprinting; a search of your body; a health screening and drafting of accusatory instruments. The New York booking process can take several hours.

Pay close attention to and keep a mental note of everything the police say and do. Do your best to keep a chronology or time-line of events in your mind. Keep a copy of all paperwork the police may hand to you. Do not sign anything. You should say nothing other than respectfully stating: your correct name; you want a lawyer, you want a phone call and you want to exercise your right to remain silent.

If your criminal defense lawyer knows you are being booked he will immediately call the police station to advise them that you are represented by counsel and that all questioning is to cease immediately. Your criminal defense lawyer will then immediately go to that police station -at any hour of the day or night -in an effort to protect your rights and secure your freedom. You should be arraigned before a local criminal court judge within a reasonable time after being booked.

Please call me toll free at 1-877-858-2889 if you are ever being booked on a criminal charge. I am available 24/7. The intial consultation is free. If the case is not dismissed, I will negotiate a favorable plea bargain or take the case to trial.

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You can be arrested pursuant to an arrest warrant. An arrest warrant is a directive issued by a New York local criminal court judge directing a police officer to arrest a person -designated as a defendant in an accusatory instrument. Its sole purpose is to bring that person before the court to be arraigned on the charges set forth in the accusatory instrument. However, the majority of New York arrests are done without a warrant.

You can be arrested without a warrant if a New York police officer sees you committing a felony, misdemeanor or a violation. You can be arrested for a misdemeanor or a felony without a warrant if the New York police officer has probable cause to believe that you committed a crime in or outside their presence. If you have been arrested immediately contact a criminal defense lawyer. The majority of New York criminal defense lawyers accept emergency calls 24/7.

Do not resist being arrested. It will only serve to add a charge of resisting arrest. Do not speak with or in front of the police regardless of whether you are innocent or guilty. Do not confess no matter what the police promise you or tell you. Tell the police you want a criminal defense lawyer and that you do not wish to speak with them until you have spoken with your criminal defense lawyer. Do not say anything else to the police other than “I want a lawyer and to remain silent”. Do not discuss your case with your family, friends or fellow inmates. Do not discuss the case with anyone other than your criminal defense lawyer. Do not consent to a search of your person, home or car. You should say “no” whenever a police officer asks you permission to look inside your purse, luggage, bags, pockets, car, house or anything else. However, do not attempt to stop the police from searching your person, personal belongings, home or car.

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