An individual can be charged in New York with a misdemeanor, a felony or a violation for violation of the penal law, vehicle and traffic law, and a host of other laws.  When a person is charged with a crime in New York State they need to be represented by an attorney to help protect their rights.  A person cannot be found guilty of a crime unless the same is proven beyond a reasonable doubt by the district attorney’s office.  The defendant is entitled to certain constitutional protections such as the right to counsel, the right not being unlawfully searched or detained, the right to remain silent and not have statements made used against them if they were in custody and the statement was not voluntary, the right to a fair line up procedure, the right not to have a past criminal record used against them, and many other rights and protections.  If the police violated the defendant’s rights in their investigation or detention, the defendant may be able to have certain evidence excluded and possibly have the charges dismissed.

“If the police violated the defendant’s rights, evidence may be suppressed and the charges may be dismissed.  Our lawyers have experience in protecting defendants’ constitutional rights.”

In most instances the district attorney’s office makes a “plea bargain” offer to try to settle the matter.  In a plea bargain the charges are reduced in exchange for the defendant agreeing to plead guilty to the lesser charges.  Many times the best course of action for the defendant is to have his or her lawyer negotiate aggressively to get a good plea bargain offer.  The district attorney’s office can only make a plea bargain offer as to the charge, not the sentence and ultimate punishment.  The judge makes the final determination as to whether or not the plea bargain is acceptable, and if acceptable, what the final sentence will be.  The court can sentence the defendant to a conditional discharge, probation, or jail or state prison time.

“A plea bargain may be the best and most cost effective way to reduce the charges and minimize the outcome from the criminal charges.”

If the district attorney’s office does not make a satisfactory plea bargain offer, or if the court is unwilling to accept the plea bargain or give a satisfactory offer for the sentence, the defendant can force the district attorney’s office to conduct a trial, which trial shall be by jury unless the defendant agrees to no jury with the judge deciding guilt; the district attorney needs to prove the charges beyond a reasonable doubt.

Procedurally, the process starts with an arrest.  A defendant is under arrest when they are placed into the custody of the police department and not allowed to leave.  The defendant should be advised that they are under arrest, the nature of the charges and the defendant’s rights to remain silent and the right to an attorney (although many times defendants are not advised of their rights).  It is wise at this point for the defendant to invoke both their right to their attorney and their right to remain silent.  Any statements made from the point of arrest onward will be used in the prosecution of the case.

After the arrest the defendant needs to be arraigned.  An arraignment is a court hearing where the defendant is publicly charged with the crimes, the defendant has the opportunity to enter a plea to the charge and the court makes a determination on whether bail should be set, and if bail is to be set the amount of bail required.  If the charge is a misdemeanor the defendant can be given a Desk Appearance Ticket (D.A.T.) by the police (which is very similar to a traffic ticket) and released; the desk appearance ticket requires that the defendant come to court on a date certain for arraignment.  If a Desk Appearance Ticket is not issued, the police will keep the defendant in custody and bring the defendant to court for the arraignment.

“After being arrested all defendants are entitled to an arraignment where they are informed of the charges, given an opportunity to enter a plea of not guilty, to demand a formal reading of the charges, to demand a jury trial  and to either be released or have reasonable bail set so they can be released.  Having an experienced attorney at the arraignment is critical to getting released.”

If the charge is a misdemeanor or a violation the case will progress in the district court or the criminal court depending on the county within which the charges originated.  If the charge is a felony, upon indictment the case will progress in county court or supreme court.

If the charge is a felony or the charge is a misdemeanor that the district attorney wants to have elevated to a felony, the case will be presented to the Grand Jury for indictment.  The Grand Jury has the case presented to them by the district attorney (the defendant’s attorney is not allowed to attend) and the Grand Jury must make a determination whether to indict the defendant based on whether there is reasonable cause to believe that the defendant committed the offenses charged.  If the Grand Jury fails to indict, the charges are dismissed and the case ends there.  If the Grand Jury does indict on the charges, the defendant must again be arraigned on the indictment and the case will proceed.

After indictment the defendant has an opportunity to make pre-trial motions to have evidence excluded or have the charges dismissed.  The attorneys at the Law Offices of Paul A. Boronow, P.C. regularly make Mapp, Huntley, Wade, Sandavol, Dunaway and other motions to have the court review the Grand Jury proceedings, suppress physical evidence, suppress statements made by the defendant, set aside line up identifications, restrict the use of a prior record of the defendant, dismiss the charges for a lack of probable cause and many other reasons.  For most motions the court must hold a hearing and the district attorney’s office must put the investigating police officer on the stand to offer testimony.  Even if the evidence is not suppressed and the charges not dismissed the police department testimony can be used against the witness if they testify again at the trial.  Defendants also have speedy trial rights and if the district attorney does not stand ready for trial in sufficient time the defendant can make a motion and the charges can be dismissed.

“Strong pre-trial motions and hearings can get evidence suppressed, get the charges dismissed and give the defendant an opportunity to hear the district attorney’s witnesses give testimony and use that testimony against the witness at trial.”

If the case is not disposed of by a plea bargain, by the failure to get an indictment or by a successful pre-trial hearing, a trial will be held.  Defendants have the right to have a jury trial.  The jurors can be interviewed (called a voir dire) and some unacceptable jurors can be excused.  At trial the district attorney’s office must prove their case beyond a reasonable doubt.  If the jury does not agree to find the defendant guilty the charges are dismissed.  If the defendant is found guilty the case will be put over for sentencing.

If the defendant is found guilty the court will order the department of probation to conduct an investigation and submit a Pre-Sentence Report (PSR) and the court will ultimately sentence the defendant.  The sentence can be a conditional discharge, probation, jail time or state prison time, depending on the nature of the charges to which the defendant was found guilty.  The court has a certain amount of discretion in the sentence imposed.

The following is a chart of possible sentences for various convictions. (Please note that the chart does not apply to most drug crimes and does not address reduced sentence programs, parole, post release supervision, persistent felon guidelines, youthful offender (YO status) treatment,  juvenile offenders and many other provisions):

The defendant has the right to appeal the verdict and/or sentence.  The defendant can also request that they be released on bail pending the outcome of the appeal.

If you have been charged with a felony, misdemeanor or violation, you should consult with experienced criminal law attorneys without delay so you can determine and protect your legal rights.

The lawyers at the Law Offices of Paul A. Boronow, P.C. have been defending individuals charged with crimes such as felonies, misdemeanors and violations from disorderly conduct to murder across Long Island and New York City in Nassau, Suffolk and Queens Counties for over twelve years with positive results.  We are aggressive and dedicated and remain a mere phone call away.

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