The Progression of a Criminal Case in Nassau County
The following article describes what happens in a criminal case from the time one is arrested until the time he or she opts for a trial. While reading this, you will notice that I have tried to avoid using much legal jargon. If you hire me to represent you, you will hear the same from me in person. I will explain things in layman's terms so you understand the process.
After your arrest, you may have been given a desk appearance ticket (DAT). This ticket tells you certain particulars about your arrest such as where and when it occurred and what section of the law you were charged with. The ticket will also tell you which court you must appear in for arraignment and the date for the arraignment. There are various types of courts in Nassau County. Misdemeanors are generally handled in District Court located in Hempstead. Felonies are generally handled in County Court located in Mineola.
During your arraignment you will be advised of the charges against you and asked to plead "guilty" or "not guilty." Almost always a "not guilty" plea is entered for you through your lawyer. There is a certain other rhetoric that is required during an arraignment. It may sound very confusing but a good lawyer will explain to you, before the arraignment, what she is saying to the court.
At the arraignment, the judge will decide whether to set bail or release you on your own recognizance (ROR), that is, without bail. The judge will consider factors such as whether or not you have been arrested or convicted before, the seriousness of the charges, your ties to the community and other factors which may show whether you are a good bail risk. NOTE: If after your arrest, you were released by the police with no bail or a station house bail, during arraignment, the judge could still set bail or even raise the station house bail. Therefore, it is essential you inform your lawyer of all the factors that show you are not a flight risk or "bail jumper".
Unless the case is resolved at arraignments (a usually unlikely result in Nassau courts except for very minor charges), the court will then set a date for a "conference." The date is usually a month in the future and will be picked by you and your lawyer with permission of the court.
- CONFERENCES AND PLEA BARGAINS
The first date after arraignment will take place in a "conference" part. Conference parts are just what they sound like. Your lawyer, the judge, and the prosecutor conference or discuss your case. The prosecutor, also known as the Assistant District Attorney or ADA, will look at the charge you were initially arrested for. With input from the police, any potential witnesses, and guidelines that the District Attorney works from, the ADA will make a plea bargaining offer.
Why is this called a plea bargain? If you plea to a certain crime, the ADA will give you what he or she regards as a "bargain." This bargain is a reduction of the charges. Let's say you were charged with Petty Larceny, also known as, shoplifting. Shoplifting is a crime, an "A" misdemeanor. The potential penalties for that crime include a year of jail and/or a fine up to $1000. However, based on the above-mentioned factors that the DA has at his disposal, he might reduce the charge to a violation. This is not a crime and the potential jail time and potential fine is substantially reduced. That's your bargain. The judge does not have to go along with this offer but she generally does.
In addition, the ADA may make some recommendation towards sentencing. As far as the ADA's recommendations go, each judge is different. Some completely ignore the recommendation. Some will go along with it at certain times and other times not. But the important thing to remember is that the judge is the only person that can sentence a defendant. The ADA can suggest all they want, but the judge has the last word.
In certain cases, the ADA may agree to an "adjournment in contemplation of dismissal" (ACOD). An ACOD is an adjournment of the case for a period of six months to one year depending on the original charge. The court may, as a condition of the ACOD, require the defendant to perform community service or participate in a program. An ACOD is not a conviction and is not an admission of guilt. It is sometimes the closest thing that a defendant will get to an outright dismissal. It is generally a great deal and something that should be considered very seriously by one who is charged with a crime.
If you have been charged with a felony, a grand jury must be convened to consider evidence and vote an indictment. A grand jury is made up of between 16 and 23 people. This group of people will listen to witnesses and hear other evidence that is presented to them by the District Attorney. In order for a grand jury to vote an indictment, 12 of the grand jurors must vote to indict. An indictment is basically a formal charge. The jury is saying that there is enough evidence that the defendant committed the crime. It is not proof beyond a reasonable doubt. In Nassau County, the District Attorney generally will not plea bargain after an indictment has been handed down. There are obviously exceptions to this rule however, once there is an indictment, it is extremely difficult to get a reduction in charges.
If after a certain amount of conferences, it seems no plea bargain can be achieved, the case goes into the next phase.
When it seems that your attorney, the ADA and the judge cannot reach a consensus as to where the case is going, the attorney will ask for something called "discovery."
Discovery is pretty much what it sounds. As someone charged with a crime, you are allowed to look at particular information related to your case. Unfortunately, discovery does not allow you to simply get a copy of everything that the ADA or the police wrote about you. But you are entitled to any statements you made, your mug shot, inspection of property taken from you, copies of video or audio tapes that the ADA intends to produce at trial, and any exculpatory evidence (i.e. evidence that tends to prove your innocence) that the ADA has.
Before the start of a trial other evidence is required to be turned over, but during the conference stage, the above is basically the only evidence you will see. Is it helpful? Sometimes. But remember the ADA is not trying to help you decide if you can win at trial. This material, especially in misdemeanor prosecutions, is very bare bones. My view of discovery is to look at it as another tool to decide how strong our case is. Also, it puts the prosecutor on notice that we are taking the case seriously.
Usually, your attorney cannot just ask the judge to dismiss the case or have certain evidence excluded at trial. He must make a written motion. There are a number of issues that you may have that could have impact on whether a case goes to trial or what evidence is presented at trial. For example, your lawyer may write a motion to dismiss because the allegations made out in the complaint are insufficient to support the charge. There are also motions to exclude certain evidence at trial, to exclude an identification another may have made of you, or to exclude statements you may have made to the police.
The thing you need to know about motions is that they are based on law or simply put, on the things your lawyer should have learned in law school or during her years at practice. Just because one is a lawyer does not mean they can spot the things that may have been done wrong by the police or the ADA. That takes great attention to detail. It is possible that your case will be dismissed or you may be in a better position at trial based on what motions your attorney makes on your behalf. If, however, you and your lawyer have exhausted all areas of negotiation it may be necessary to try the case.
If you do not plead guilty to the crime as charged or to a reduced charge, and all other means of disposing of the case have been exhausted, there will be a trial. At trial, either a judge or a jury determines whether the prosecution has proven whether you are guilty of the charges beyond a reasonable doubt. You have a right to a jury trial in all felony cases and (in Nassau County) in all misdemeanor cases. You may waive your right to a jury trial and be tried by a judge, which is known as a bench trial.
Jury selection, also know an as voir dire, is the first stage of a jury trial. In a criminal case, the judge, the prosecuting attorney, and the defense attorney question potential jurors to determine whether they can be fair and impartial in the case. After questioning members of the jury pool, the attorneys inform the judge regarding which prospective jurors they wish to excuse from the case.
Once the jurors are approved by both sides, the judge swears them in and the prosecutor delivers an opening statement to the jury explaining how the prosecution intends to prove the defendant’s guilt. Next, although he or she is not required to do so, the defense attorney may give an opening statement.
The Prosecution then presents his case. This may include witnesses under oath as well as physical evidence, or exhibits. The defense attorney may cross-examine, or question the prosecutor’s witnesses.
If you and your attorney choose to present a defense, your attorney may call witnesses on your behalf. These witnesses can be cross examined by the prosecutor. You may also introduce physical evidence, or exhibits, as part of your case. You have a right to testify or not testify. If you do testify, the judge may allow the prosecutor to question you about any previous convictions, if they are relevant to your credibility.
After all the evidence is presented, your attorney will deliver a closing argument, or summation. The prosecutor must also deliver a summation. The summations review the case and present arguments as to why the jury should convict or acquit.
After the summations, the judge will charge, or deliver, instructions to the jury about what law to apply and how to carry out its duties. After receiving their instructions, the jury deliberates, or considers the evidence that has been presented to them, to determine whether or not the prosecutor has proven your guilt beyond reasonable doubt. Deliberations occur in private in a closed room, and continue as long as is necessary to reach a verdict.
Only a unanimous vote by the jury results in a verdict on any crime charged. If a jury reaches a verdict on some charges but deadlocks on others, the trial judge may allow the jury to report the partial verdict. If a jury cannot reach a unanimous verdict on any charges, it is referred to as a “hung jury.” In the case of a hung jury, the judge may declare a mistrial, and the prosecution will consider whether or not to re-try the case.
If you are acquitted or found not guilty, you cannot be retried again in a state court for the same charge or charges. If you are convicted or found guilty, the case will likely be adjourned for sentencing.
Nassau Defense Attorney
250 Fulton Avenue
, NY 11550