New York Criminal Defense Lawyer Blog

A person –other than a youthful offender- convicted in New York of any felony or specified misdemeanor offense must provide a DNA specimen for the State DNA Databank pursuant to Executive Law §995(7). The following is a list of the specified misdemeanors:

• Assault in the 3rd degree [Pl §120.00];
• Attempted aggravated assault upon a person less than 11 years old[ PL §§110/120.12];
• Attempted menacing in the 1st degree[PL §§[110/120.13];
• Menacing in the 2nd degree [PL §120.14];
• Menacing in the 3rd degree [PL §120.15];
• Reckless endangerment in the 2nd degree[PL §120.20];
• Stalking in the 4th degree[PL §§ 120.45];
• Stalking in the 3rd degree [PL §120.50];
• Attempted stalking in the 2nd degree [PL§ 110/120.55] ;
• Sexual misconduct [PL §130.20];
• Attempted sexual misconduct [PL §110.00/130.20];
• Attempted rape in the 3rd degree [PL §§110/130.25];
• Attempted criminal sexual act in the 3rd degree [PL§110/130.40];
• Forcible touching [PL§130.52];
• Attempted forcible touching [PL §§ 110/130.52] (if the victim is less than 18 or the defendant has previously been convicted of a sex offense or sexually violent offense, or 130.52 or 130.55, or an attempt thereof);
• Attempted persistent sexual abuse [PL §§110 130.53];
• Sexual abuse in the 3rd [ PL §130.55];
• Attempted sexual abuse in the 3rd degree [ PL§§110/130.55] (where victim is less than 18 OR offender has previously been convicted of a sex offense or sexually violent offense, or 130.52 or 130.55, or an attempt thereof)
• Sexual abuse in the 2d degree [PL §130.60];
• Attempted sexual abuse in the 2d degree [PL §§110/130.60];
• Attempted aggravated sexual abuse in the 4th degree [PL §110/130.65];
• Unlawful imprisonment in the 2d degree [ PL §135.05];
• Attempted unlawful imprisonment 2d [ PL 110/135.05] (where victim is less than 18 and Defendant is not parent);
• Attempted unlawful imprisonment in the 1st [Pl §§110.00/135.05];
• Criminal trespass in the second degree[PL§140.15];
• Possession of burglar's tools [PL § 140.35];
• Petit larceny [PL § 155.25];
• Endangering the welfare of a child [PL§ 260.10];
• Endangering the welfare of an incompetent or physically disabled person [PL §260.25];
• Patronizing a prostitute in the 3rd degree [230.14] (where the person patronized is in fact less than seventeen years of age);
• Attempted patronizing a prostitute in the 3rd degree [PL §§110/230.04];
• Attempted patronizing a prostitute in the 2d degree PL §§110/230.05];
• Attempted incest [PL §§110/255.25];
• Attempted possessing an obscene sexual performance by a child [PL §§110/263.11]; and
• Attempted possessing a sexual performance by a child [PL §§110/263.16].

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A New York criminal court judge must declare a mistrial and order a new trial upon a motion by the defense if an error or legal defect occurs in the proceedings during the trial that is prejudicial to the defendant or denies the defendant a fair trial. [CPL § 280.10(1)] A New York criminal court judge must also declare a mistrial and order a new trial at the request of the defendant if there is conduct inside or outside the courtroom that is prejudicial to the defendant or denies the defendant a fair trial. [CPL § 280.10(1)] If there are multiple criminal defendants in the case, the criminal court judge must grant a mistrial only for the defendant who made the motion for a mistrial and for the defendant’s who joined in the motion for a mistrial. [CPL § 280.10(1)] The trial must proceed forward with respect to any defendant who did not make the motion for a mistrial or did not join in the motion for a mistrial. [CPL § 280.10(1)]

A New York criminal court judge must grant a mistrial at the request of the people if the people’s case against the defendant suffers substantial and irreparable prejudice due to the gross misconduct of the defendant or another person acting on behalf of the defendant regardless of whether the misconduct occurs inside or outside the courtroom. [CPL § 280.10(2)] In a case involving multiple defendants, the trial will proceed for any defendant who the people’s case did not suffer substantial and irreparable prejudice due to the gross misconduct and who was not responsible in any way for the gross misconduct. [CPL § 280.10(2)]

If it is physically impossible to proceed with a criminal trial in compliance with the law, the criminal court judge must declare a mistrial and order a new trial upon a motion by either party or upon the court’s own motion. [CPL § 280.10(3)]

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The purpose of a pre-sentence report is to assist the court in determining an appropriate sentence for a person convicted of a crime. It is prepared by the probation department between the time the defendant is convicted and the time the defendant is sentenced.

A pre-sentence investigation and report –unless waived- is required in any case where a person has been convicted of a felony. [CPL § 390.20(1)] A pre-sentence investigation and report is also required-unless waived- where a person is convicted of a misdemeanor and the defendant is to be sentenced to more than ninety days in jail; to consecutive sentences totaling more than ninety days in jail; or to a term of probation. [CPL § 390.20(2)] A judge is not required but may order a pre-sentence investigation and report in any other cases. [CPL§390.20(3)]

A presentence report can be waived by the parties and the court where: the sentence is agreed to by the parties and will equal time served; a sentence a probation has been agreed on by the parties and will be imposed; a pre-sentence report has already been done within the last twelve months; or a sentence of probation has been revoked. [CPL § 390.20(4)(a)(i-iv)] A pre-sentence report cannot be waived if a prison sentence is to be imposed. [CPL §390.20390.20(a)] A court may require a victim impact statement even if the presentence investigation and report is waived. [CPL§320.20(4)(b)]

The presentence investigation and report includes gathering and reporting on: the facts and circumstances of the crime; the defendant’s criminal history, the defendant’s social history, the defendant’s employment history, the defendant’s family situation, the defendant’s economic status; the defendant’s educational background, the defendant’s personal habits; any matter the investigating agency deems relevant to sentencing and any other information requested by the court. [CPL §390.30( 1)] Defense counsel can and generally should submit his own pre-sentence memorandum addressing these same topics and may attach statements of others in support of the facts in his memorandum. [CPL § 390.40(1)]

Continue reading "Pre-sentence Reports in New York" »

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A New York criminal jury trial generally proceeds in the following order. The jury is selected and sworn. [CPL § 260.10(1)] Preliminary instructions are read to the jury by the judge. [CPL §260.10(2)] The prosecutor presents his opening statement. [CPL §260.10(3)]Defense counsel may then present an opening statement. [CPL 260.10(4)] The prosecutor presents the People’s original case. [CPL §260.10(5)] Defense counsel may then present the defendant’s original case. [CPL §260.10(6)] The prosecutor may then present rebuttal evidence to the defendant’s original case. [CPL§260.10(7)] Defense counsel may then present evidence in rebuttal to the prosecutor’s rebuttal evidence. [CPL §260.10(8)] The court has the authority to permit the parties to continue taking turns presenting rebuttal evidence in this order. [CPL §260.10(7)] The court in the interest of justice may also permit either party to present evidence during rebuttal that should have been presented during their original case. [CPL §260.10(7)] Defense counsel may then present a closing argument. [CPL §260.10(8)] The prosecution then may present a closing argument. [CPL §260.10(9)] The court will then read to the jury instructions on the law. [CPL §260.10(10)] The jury will be excused from the courtroom and return to the jury room to attempt to reach a verdict in the case. [CPL §260.10(11)]

Please call me toll free at 1-877-858-2889 if you are ever arrested in New York State. I am available 24/7. The initial consultation is free. If the case is not dismissed, I will negotiate a plea bargain that is acceptable to you or take the case to trial.

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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]

Continue reading "Defendant’s Demand For Discovery In New York Criminal Cases " »

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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.

Continue reading "Preliminary Hearings In New York Felony Cases" »

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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.

Continue reading "Arrested In New York" »

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