Criminal Process in New York

The criminal process can be complex and confusing. But it's important to know your legal rights. The best way to be informed is to contact a New York criminal attorney in your area as soon as possible. A criminal defense attorney will understand the law as it relates to the crime you've been charged with, and will be able to help you in making informed decisions as your case moves through the process.

Stop

You may be stopped for questioning by the police. A stop is not the same as an arrest because, although you may be detained, you aren't moved to a different location. During a stop the police officer may ask you questions, but you have the right to refuse to answer.

Search

Search Warrants

A search warrant authorizes police to conduct a search of a specific, place such as your residence. In order for a warrant to be issued by a judge, "probable cause" is necessary.

Probable cause to search means that:

• It is more likely than not that the specific items to be searched for are connected with criminal activities
• Those items will be found in the place to be searched

Warrantless Searches

The general rule is that warrants are required for searches. But search warrants are not required for the following:

• Searches incident to arrest: Police officers are permitted to search your body and/or clothing for weapons or other contraband when making a valid arrest.
• Automobile searches: If you're arrested in a vehicle, the police may search the inside of the vehicle. To perform a complete search of the vehicle (such as in locked glove compartments, for example), probable cause is necessary.
• Exigent circumstances: Searches may be conducted if there are "exigent circumstances" which demand immediate action, such as to avoid the destruction of evidence.
• Plain view: Police do not need a search warrant when they see an object that is in plain view of an officer who has the right to be in the position to have that view.
• Consent: If you consent to a search of your body, your vehicle, or your home, police are not required to have a warrant. You aren't required to consent to any police searches.

Arrest

In order to be arrested, there must be what's called "probable cause." This means that there must be a reasonable belief that a crime was committed and you committed the crime. An arrest warrant is not necessary.

After you're placed under arrest, you are protected by constitutional rights. Two important rights to be aware of are right to remain silent and the right to have an attorney. After your arrest, you aren't required to say anything else to police or investigators, until you have an attorney present. You must be given the opportunity to contact an attorney.

Miranda Rule

Under the Miranda Rule, if you are in police custody you must be informed of specific constitutional rights before interrogation begins. Those rights are as follows:

• The right to remain silent
• The right to have an attorney present during questioning
• The right to have an attorney appointed if you are unable to afford one

Important to note is that Miranda rights do not have to be read until you are taken into custody. That means that you can be questioned by the police before being taken into custody, and anything you say at that point can be used against you later in court.

Booking

After you're arrested, the police will bring you to the police station for the booking process . You'll be fingerprinted and asked a series of questions, such as your name and date of birth. You'll also be searched and photographed. Your personal property such as jewelry will be catalogued and stored.

Appointment of an Attorney

In New York, if you cannot afford to hire an attorney, an attorney will be appointed to defend you. Usually a public defender will be appointed as your attorney.

Once a public defender has been appointed to defend you, you may ask the court to appoint a substitute attorney only for good cause. Good cause requires more than mere dissatisfaction with your appointed attorney and may include:

• A conflict of interest between you and the attorney
• Your attorney becomes ill and cannot continue to represent you
• There is reason to believe that your attorney is not providing effective assistance.

Arraignment

Once criminal charges are filed, you'll make a court appearance known as an "arraignment." If you are incarcerated, this will usually occur within 72 hours of your arrest.

During your arraignment, you'll be asked to enter a "plea" to the crime you've been charged with. New York pleas and corresponding definitions follow:

• Guilty plea: If you plead "guilty," you're admitting to the facts of the crime and the fact that you were the one who committed that crime.
• Not guilty plea: A "not guilty" plea asserts that you did not commit the crime with which you were accused. After your plea, a pre-trial or trial date will be set.
• No contest plea: A "no contest" plea indicates that, while you are not admitting guilt, you do not dispute the charge. This is preferable to a guilty plea because guilty pleas can be used against you in later civil lawsuits.
• "Mute" plea: In New York, you may "stand mute" instead of making a plea. The court will then enter a plea of not guilty. By standing mute, you avoid silently admitting to the correctness of the proceedings against you until that point. You are then free to attack all previous proceedings that may have been irregular.

During the arraignment, the court will also:

• Set bail
• Refuse to set bail; or
• Release you on your own personal recognizance, which means that the court takes your word that you will appear when necessary for later court obligations

Bail/Bond

"Bail" is money or property put forth as security to ensure that you'll show up for further criminal proceedings.

In New York, bail can be paid:

• In cash
• A pledge of property (if permitted in that court)
• A bail bond

A professional bail bondsman is an individual whose business is to pledge his or her own property or security to guarantee the bail bond to the court.

Speedy Trial

You have a right to a speedy trial under the Sixth Amendment of the United States Constitution, which requires that the trial be held within a certain time frame after a person has been charged with a crime.

This right can be waived by asking for additional time for the preparation of your defense.

Speedy trial rights in New York

With limited exceptions, a defendant should be brought to trial in New York within the following time frames:

• Six months when a defendant is accused of one or more offenses, at least one of which is a felony
• 90 days when a defendant is accused of one or more offenses, at least one of which is a punishable by a sentence of imprisonment of more than three months. None of these offenses can be felonies.
• 60 days when a defendant is accused of one ore more offenses, at least one of which is a misdemeanor punishable by a sentence of imprisonment of not more than three months. None of the offenses can be punishable by a sentence of imprisonment of more than three months.
• 30 days when a defendant is accused of one or more offenses and at least one is a and none of the offenses are crimes.

A felony is a crime usually punishable by imprisonment for more than one year. A misdemeanor, on the other hand, is usually punishable by a fine or a year or less of incarceration.

Trial

Many prosecutors will consider "plea agreements," although it's not legally required. If you don't reach a plea agreement with the prosecutor, your proceedings will move toward the trial stage.

Usually, if you are charged with a crime punishable by six or more months of imprisonment, you have the right to a jury trial. This right may be waived by:

• Pleading guilty; or
• Choosing a bench trial (a trial in front of a judge only)

If you request a bench trial, the judge will perform the fact-finding function that is usually performed by the jury. In New York, a defendant in a capital case may not waive a jury trial.

Appeals

If you're found guilty after a trial, you're entitled to an appeals process. This process varies depending upon the crime, but there are always time deadlines by which you must file an appeal.

In New York you generally have 30 days after sentencing to file an appeal.

There are numerous reasons for an appeal from a guilty verdict in a criminal case, including what's called "legal error." Legal error may include:

• Allowing inadmissible evidence during the criminal process, including evidence that was obtained in violation of your constitutional rights
• Lack of sufficient evidence to support a verdict of guilty
• Mistakes in the judge's instructions to the jury regarding your case

You may also appeal due to misconduct on behalf of the jurors, or if there is newly discovered evidence to exonerate you.

Expungement

In New York, under some circumstances, you may be able to have a criminal record expunged, which means the records are destroyed or returned to you. You may be able to have other records sealed so that they are not available to the public. Sealed records may be used in later criminal proceedings or in applications for certain licenses and employment.

You may be eligible for expungement of DNA records and samples if:

• You have been acquitted, or
• Your conviction has been reversed or vacated, or
• You have been pardoned.

If eligible, you may file a petition with the court, and the records and samples will be destroyed or returned to you if expungement is granted.

A juvenile court has the authority to order all records in a juvenile expunged where there has been no judgment of delinquency. Fingerprints, photographs, and other documents may be expunged in cases where the juvenile was judged delinquent.

If a criminal case terminates in your favor, the record will be sealed unless the court finds that the interests of justice require that the record remain unsealed.