Criminal Defense FAQ’s

You are not required to give any statement to the police or any member of law enforcement after you are arrested.  You have the right to remain silent and the right to speak with an attorney.  Both of these rights should be adhered to, as anything you say can and will used against you by the District Attorney’s Office or the U.S. Attorney’s Office that is prosecuting your case.

The simple answer is YES.  Even if you intend to plead guilty to the the charges against you, it is very important that you hire and experienced criminal defense attorney.  In many cases, an experienced criminal defense attorney will be able to negotiate plea bargain to a lesser charge or lighter sentence.  If you attempt to represent yourself, you could end up facing much stiffer penalties.  You should ALWAYS invoke your right to legal representation as soon as you have been arrested or even contacted by members of local, state or federal law enforcement.  You should avoid admitting guilt until you have explored all of your legal options.

Even if you have been charged with a Misdemeanor or Violation, the consequences of a conviction could follow you around for the rest of your life.  For this reason, you should always take the time to consult with a knowledgeable Criminal Defense Attorney to learn more about your charges and the best defense options that are available to you.

Depending on the circumstances of your case, it may or may not be in your best interests to enter into a plea agreement.  You should always consult an experienced Criminal Defense Attorney before making this decision so that you can ensure you fully understand all your rights and options, as you may have a very good chance of winning your case at trial.  Let the Law Firm of Michael A. Arbeit, P.C. review your case today.

First, it is very important to find out if the attorney that are speaking with is the actual attorney that will be handling your case.  Many law firms will refer your case out to another lawyer or they will have inexperienced associates that will do  most of the work and make the court appearances.  You do not want t be signed up by one attorney only to find out that a completely different person that you have never met with will be actually representing you.  Ask the person you are speaking with during the initial meeting if they are the person that will handle the matter and appear in Court with you.

Second, find out how many years the attorney has been practicing law and especially Criminal Defense Law.  Make sure that your attorney is not a “jack of all trades” attorney but focuses extensively on Criminal Defense.  It is essential to find out what types of cases the attorney handles and if they are trial attorneys.  Even if you initially expect to plead guilty, it is essential that you select a criminal defense attorney with trial experience.  Lawyers that are willing and able to take cases to trial often get the best plea bargains for their client’s.  There are many attorneys out there who convince their clients to plead guilty to an offense even when there is a very viable defense.

You need a law firm that is going to fight for your rights and represent you to the fullest.  You need Michael A. Arbeit, P.C. on your side.

The primary difference is that probation is an alternative to prison, while parole is essentially a shortened duration of the time spent in prison.  Probation is a criminal sentence that allows the convicted person to suspend jail or prison time in exchange for abiding to certain terms such as regular contact with a probation officer, attendance at a rehabilitation program and/or attendance at work or school.  People on probation are also subject to warrantless searches of their homes and random drug tests.  Parole is an option for completing a criminal sentence outside prison.  It is offered to a convicted felon after they have completed a certain portion of their sentence in state prison.  A person on parole will also likely have to abide to many of the same terms as the person that was sentenced to probation.

Not necessarily.  Once the police make an arrest and charges are formally filed, it’s no longer up to the person that made the original accusations against you as to whether the matter will proceed or not.  It is not uncommon for a prosecutor to attempt to proceed with a matter even though the complainant requests that the charges be dropped.  However, on many occasions, the prosecution will need that witness to prove their case beyond a reasonable doubt, so the fact that a witness is uncooperative and does not want to pursue the matter is very helpful and puts the defense in a posit of power and control.

An “Indictment” means a written accusatory instrument by a Grand Jury, filed with a superior court, which charges one or more defendants with the commission of one or more offenses, at least one of which is a crime, and which serves as a basis for prosecution thereof.

A “Arraignment” means the occasion upon which a defendant against whom a charge(s) has been fled appears in court in which the criminal action is pending for the purpose of having such court acquire and exercise control over his person with respect to such charge(s) and of setting the course of further proceedings in the action.

A “Desk Appearance Ticket (DAT)” means a written notice issued by a police officer requiring a person to appear before a local criminal court in connection with charges to be file against him.  A Desk Appearance Ticket is commonly given to people who are charged with minor, non violent offenses that the police do not consider flight risks.

A “Warrant of Arrest” means a process of a local criminal court directing a police officer to arrest a defendant and to bring him before such court for the purpose of arraignment upon an accusatory instrument filed therewith by which a criminal action against him has been commenced.

A “Superior Court Warrant Of Arrest” means a process of a superior court (County Court) directing a police officer officer to arrest a defendant and to bring him before such court for the purpose of arraignment upon an indictment filed therewith by which a criminal action against him has been commenced.

A “Bench Warrant” means a process of a criminal court in which a criminal action is pending, directing a police officer to take into custody a defendant in such action who has been previously been arraigned upon the accusatory instrument by which the action was commenced, and to bring him before such court.  The function of a bench warrant is to achieve the court appearance of a defendant in a pending criminal action for some purpose other than his initial arraignment in the action.

Being “Released On Own Recognizance” means that after an arraignment upon an initial charge or upon a grand jury indictment, the presiding judge releases the defendant to return to court without any restrictions.

A “Felony Complaint” means a verified written accusation by a person which charges one or more defendants with the commission of one or more felonies and which serves to commence a criminal action but not as a basis for prosecution thereof.

An “Accusatory Instrument” means an indictment, an indictment ordered reduced, an information, a simplified information, a prosecutor’s information, a superior court information, a misdemeanor complaint or a felony complaint.  Every accusatory instrument, regardless of the person designated therein as accuser, constitutes an accusation on behalf of the state as plaintiff and must be entitled “the people of the state of New York” against a designated person, known as the defendant.

It mean any accusatory instrument other than an indictment or a superior court information.

Under New York State law, almost all felony cases must be presented to the Grand Jury. Grand Juries are empowered empowered to hear evidence presented by prosecutors, and to take various actions regarding the evidence and legal charges they are to consider. The Grand Jury can also conduct independent investigations. Grand Juries sit for a term of approximately one month. Each Grand Jury is comprised of 23 citizens who hear and examine evidence concerning offenses and take action based on such evidence.

An “Adjournment of Contemplation of Dismissal (ACOD)” is an adjournment of the action without date ordered with a view to ultimate dismissal of the accusatory instrument in furtherance of justice.  The granting of an ACOD shall not be deemed to be a conviction or an admission of guilt.  Upon the dismissal of the accusatory instrument, the arrest and prosecution shall be deemed a nullity and the defendant shall be restored, in contemplation of law, to the status he occupied before his arrest and prosecution.

An “Ignition Interlock Device (IID)” is a device installed in your vehicle, which you blow into and it measures your blood alcohol level.  it connects through your vehicle’s ignition system, and prevents the vehicle from starting until you have provided an appropriate breath sample.  In addition to the initial breath sample to start the vehicle, you are required to submit to rolling tests within 5 to 15 minutes, and then to random rolling tests not to exceed every 30 minutes.

If you provide a positive a positive breath sample, your vehicle will not start.  The IID will then call for a retest within 5 to 15 minutes of the positive breath sample.  A failed start-up retest will lead to your vehicle not working.  If this happens, you must have the device serviced within 5 calendar days to avoid your vehicle becoming inoperable.  Also, you will be required to have the device serviced with 5 calendar days if you fail/miss a second rolling test after having failed/missed the initial rolling test or miss a service visit wit the company that installed the device.

The prosecution function is organized at 3 levels, county, state, and federal.  At the county level, the office of the district attorney, an elected office, prosecutes all alleged violations of the penal law that take place within a county and consequently this office is responsible for prosecuting the vast majority of all criminal offenses.  The Office of State Attorney General, also an elected post, represents the State’s interests in such diverse areas as consumer fraud, environmental protection and organized crime.  When the Attorney General successfully prosecutes in these and other areas, criminal sanctions are often imposed on the convicted offenders.

At the federal level, the U.S. Attorney General is appointed by the President and is responsible for prosecuting all alleged federal crimes.  This task is carried out through the offices of the United States Attorneys, located in each federal district throughout the nation.

A “Certificate of Relief From Disabilities” may be granted to relieve an eligible offender of any forfeiture or disability, or to remove any bar to his employment, automatically imposed by law by reason of his conviction of the crime or of the offense specified therein.  Such certificate may be limited to one or more enumerated forfeitures, disabilities, or bars, or may relieve the eligible offender of all forfeitures, disabilities or bars.  Provided, however, that no such certificate shall apply, or be construed so as to apply, to the right of such person to retain or to be eligible for public office.

Most criminal actions begin when a person is taken into police custody.  An arrest is lawful when the police officer has probable cause to believe that the person being arrested has committed a particular offense.

Bail is collateral, in the form of cash or bond, that must be posted by the defendant to ensure that he or she returns to court on a future date.  If bail is set by the judge, and the defendant posts the amount of money required to make bail, he or she will be released from custody.  A defendant can also be released on his own recognizance (ROR’d) if the court feels that bail is unnecessary.  If the case is particularly serious, the court may remand the defendant, who is then held in custody without bail.

Once a defendant has been indicted for a felony charge and the indictment has been filed, he or she is arraigned on the indictment in Supreme Court (County Court in Nassau and Suffolk). Criminal Court (District Court in Nassau and Suffolk Counties) no longer has jurisdiction over a defendant once an indictment has been filed.

At Supreme Court arraignment, the prosecutor gives the defendant a copy of the indictment and the Voluntary Disclosure Form, which includes information about the case, such as the date, time and place of the crime, and of the arrest.  The defendant is also informed about the substance of his statements and of his identification.  The defendant then enters a plea of guilty or not guilty to the indictment.  Bail may be reviewed and different conditions may be set.

Rosario material includes any previously recorded statements of a witness who will testify at trial.  Police forms that summarize a witness’ statement, a signed statement by a witness, and paperwork prepared by a testifying police officer are examples of Rosario materials.  Rosario material must be given to the defense before the opening statements.

Opening Statement: At the beginning of the trial, the Assistant District Attorney makes an opening statement.  A defense attorney may make an opening statement, but is not required to do so.  In an opening, the attorney explains what he or she contends the evidence will show at trial.

Direct Case: The direct case brought by the District Attorney’s Office involves the calling of witnesses and the introduction of physical objects or records into evidence.  The ADA asks questions of each witness.  The defense attorney then asks questions on cross-examination.  The ADA may ask clarifying questions on redirect.  This process continues until all of the prosecution’s witnesses on the direct case have testified.  At the end of the direct case the defendant may move to dismiss certain charges on the theory that the trial evidence is insufficient to establish the crime(s) charged.
Defense Case: The defense case may involve many witnesses, including the defendant, or there may be no witnesses at all.  The defendant is not required to present any evidence, or to testify at trial.  If defense witnesses are called, the ADA may cross-examine each witness.
Rebuttal: The District Attorney’s Office may have a rebuttal case, and if so, defense counsel may cross-examine the rebuttal witnesses.
Summation: The defense is the first to deliver a summation, or concluding arguments.  In its summation, the defense will usually question the evidence presented by the District Attorney’s Office and generally try to establish that the case has not been proven beyond a reasonable doubt.  The prosecution’s summation explains the evidence presented, counters defense arguments into perspective, and affirmatively asserts reasons for finding the defendant guilty beyond a reasonable doubt.
Jury Charge: The Court then instructs the jury on the law and explains legal concepts such as the presumption of innocence, the burden of proof, and the elements of each crime charged.  After the judge’s instructions, the ADA and the defense attorney are given an opportunity to ask for additional instructions or to object to the legal instructions already given.
Deliberation: Jury deliberation begins after the judge’s legal instructions and may last any length of time.  During deliberation the jury may ask to review evidence introduced at trial or to have instructions or testimony re-read.  The jury may find the defendant guilty, not guilty, or may be unable to agree.  A jury that cannot reach a unanimous verdict is called a hung jury. When there is a hung jury, the case may be retried.  A not guilty verdict means that the jury concluded that the case was not proven beyond a reasonable doubt.

A criminal trial is a formal presentation of evidence before a court of law or a jury to determine whether a defendant is guilty beyond a reasonable doubt of the criminal charges brought against him.  Trials may be conducted for felonies, misdemeanors, or violations.

Yes. The majority of cases do not go to trial.  The defendant can plead to all of the charges in the indictment, or to fewer or lesser charges offered by the Assistant District Attorney.  Unless a sentence is negotiated as part of a plea agreement, the judge will determine the defendant’s sentence based on the facts of the case, the defendant’s prior criminal history, and the laws governing permissible sentences.

After a Grand Jury indictment has been voted and the defendant has been arraigned in the County Court, his case does not go straight to trial.  Instead, the case is adjourned to a Calendar Part.  In the Calendar Part, attorneys file motions to address a number of legal issues and defendants can plead guilty.

Numerous legal motions and court hearings can occur before a trial in both Criminal Court and County Court, some of which are described below.

Discovery: Prior to trial, the defendant presents motions to the court to obtain information and documents and to examine the physical evidence.  The defendant is entitled to a copy of his statement and, if applicable, to those of co-defendants being tried jointly.  This includes any statements made before a Grand Jury.  Photographs, drawings, scientific reports, or evidence seized from the defendant must also be made available.
Motions to Dismiss: The defendant can move to dismiss the complaint or indictment as being technically defective, for not being supported by sufficient evidence, in the interest of justice, or because he was denied a speedy trial.
Motions to Suppress Evidence: Before trial, the defendant can move to prohibit the introduction of evidence at trial on the grounds that it was unlawfully or improperly obtained. Suppression motions most commonly seek to prohibit the introduction of identifications, evidence seized from the defendant, and the defendant’s statements.
Admissibility of Identification Evidence:  Identification evidence, for example a line-up, is examined during a Wade hearing.  At issue is whether the police conduct during the identification procedure was proper.  If the judge finds that the police acted improperly, he can decide if the witness’ “independent basis” for the identification is strong enough to withstand the pressures of police impropriety.  If the independent basis for the identification is weak or non-existent, the witness is not permitted to identify the defendant at trial.
Admissibility of Statements Made by the Defendant: Statement or admission evidence is litigated in a Huntley hearing.  The issues include whether the defendant was given his Miranda warnings, whether those warnings were complete, and whether his decision to confess to the police was knowing, intelligent, and voluntary.
Admissibility of Physical Evidence Seized from the Defendant: The admissibility of physical evidence seized from the defendant is litigated in a Mapp hearing.  The main question is whether certain physical evidence seized from the defendant can be introduced at trial.  Issues include an officer’s probable cause to arrest the defendant, the propriety of his stop or frisk of the defendant, and the pertinent details surrounding the seizure of the evidence.
Sandoval: A Sandoval motion is made just before the trial begins.  In such a motion, the defendant seeks to prevent the ADA from cross-examining him on any prior convictions or bad acts should the defendant choose to testify at trial.

The Grand Jury can vote an indictment  (a written statement charging an individual with the commission of a felony), direct the filing of a prosecutor’s information (which contains non-felony charges), direct the removal of a case to Family Court, or issue a report.  For the first three actions, the Grand Jury must determine that the evidence is legally sufficient and that it provides reasonable cause to believe that the defendant has committed the crime.  Otherwise, the Grand Jury dismisses the matter.  If the Grand Jury votes an indictment, the case is adjourned to a Supreme Court Arraignment Part.

No. Grand Jury proceedings are secret and only specifically-authorized persons can be present.  In addition to the Assistant District Attorney and the Grand Jurors, there is a court reporter and a Grand Jury Warden, who oversees administrative aspects of the proceedings.  The ADA is the legal adviser of the Grand Jury and examines all witnesses who testify before it, including any defendant or defense witnesses.  At least 16 Grand Jurors must be present for any Grand Jury to hear evidence and take action.  Furthermore, at least 12 of the members who have heard the evidence must agree before any affirmative action can be taken.

Leandra’s Law is named after Leandra Rosado, an eleven year old girl who was killed in a car crash after the driver, who had allegedly been drinking for several hours prior to the crash, lost control of her vehicle on the Henry Hudson Parkway. Leandra’s Law, which became effective December 18, 2009, sets some of the toughest DWI provisions in the country. Under Leandra’s Law:

First time offenders driving while intoxicated or impaired by drugs with a child less than 16 years old in the vehicle may be charged with a class E felony, punishable by up to four years in State prison.

Courts must order all drivers convicted of driving while intoxicated or aggravated driving while intoxicated to install and maintain an ignition interlock on any vehicle owned and operated by such driver for at least six months.

Drivers who drive while intoxicated or impaired by drugs and cause the death of a child less than 16 years of age in the vehicle may be charged with a Class B felony, punishable by up to 25 years in State prison.

Drivers who drive while intoxicated or impaired by drugs and cause serious physical injury to a child less than 16 years of age in the vehicle may be charged with the Class C felony, punishable by up to 15 years in State prison.

Police must make a notation in the form of “C.I.V.” in the “Description of Violation” section of a simplified traffic information if a child less than 16 years of age was present in the vehicle of the person charged with driving while intoxicated, aggravated driving while intoxicated, or driving while ability impaired by drugs. The failure to make such notation, however, does not in any way affect a charge for a violation of the VTL provisions regarding driving while intoxicated.

Police must report a parent or guardian who is charged with driving while intoxicated or while impaired by alcohol or drugs while their child is a passenger in the vehicle to the Statewide Central Register of Child Abuse and Maltreatment.