- What should I do if the police or detectives want to speak with me?
You should call a lawyer immediately. Police officers, and detectives, are employed to investigate, and solve, crimes. Interviewing witnesses, or targets of an investigation, is an important tool for doing that. Since police officers, and detectives, rarely tell people that they’re targets of a criminal investigation, many people speak with the police, and unwittingly say things that can be used against them in a criminal case. Consequently, speaking with the police can have serious far-reaching consequences for some people. But if you speak with a lawyer, first, you can know your rights. Then you can decide whether to speak with the police, or not.
- Do I have to answer police questions?
No, you do not have to answer questions asked by the police. Under the U.S. Constitution, and the Constitution of the State of New York, you have the right to remain silent, and to not answer questions. It is not a crime to refuse to answer questions, and you do not have to give a reason for not answering questions. However, if you do speak with the police, or other government agents, anything you say can be used against you in a court of law. Also, if you lie to them, that can be a crime. If you are stopped by the police while driving a car, though, the situation is somewhat different. You are not required to answer questions, but you must hand over your driver’s license, and insurance card, if asked by the police to do so.
- Are the police allowed to search my car, my home, or myself?
It depends on the situation. Ordinarily, the police are not allowed to search your car, home, or yourself, unless you consent to the search, or they get a search warrant ordered by a court to conduct a search. However, there are times when the police may conduct a search without your consent, and without a warrant. For example, if the police stop you in your car, they have the right to search your car without your consent, and without a warrant, if they have probable cause to believe that you have committed, or are committing a crime. If the police arrest you in your home, they can search the area near where you are arrested without your consent, and without a warrant, but they cannot search the entire residence without a warrant that describes in detail the places to be searched and people or things to be seized. Finally, if the police stop you on the street, they have the right to pat down your clothing if they suspect that you might have a weapon.
- What is an arraignment?
An arraignment is the first appearance in Criminal (or District) Court following an arrest. Arraignments usually happen within twenty-four hours of an arrest. Several things happen at arraignment. First, the person who has been arrested, and is referred to as, the “defendant,” is formally told of the charges levelled against them. They learn what crimes they have been accused of committing, and the specific allegations that constitute the crimes. Second, the Court conducts a bail hearing. That means that the judge decides whether to release a defendant on his or her own recognizance (ROR), or on bail or bond, or to remand him or her to the custody of the Department of Corrections. Additionally, the District Attorney’s office, and your lawyer serve notices upon one another. Notices are legal notifications of important issues.
- What is a Desk Appearance Ticket (DAT)?
A Desk Appearance Ticket, or DAT, is a way for certain defendants to appear in Criminal (or District) Court for arraignment. If the police issue a DAT, the defendant will be released from custody, and ordered to appear in Criminal (or District) Court for arraignment, usually three or four weeks after the arrest. DATs are only given for certain kinds of cases, usually misdemeanors that do not entail allegations of violence. While granting DATs for certain low-level, non-violent, felonies is permitted, it does not happen with great frequency. DATs are never given in domestic violence cases.
- How can I post bail?
The most common types of bail are: cash or bond. Usually, at arraignment, judges set bail in an amount that is for cash, and an amount that is for bond. For example, bail could be set at $2,500 (cash) and $5,000 (bond). To get out of jail, a defendant’s friend or family must pay one or the other forms of bail, but not both. To post cash bail, a defendant’s friend or family would pay cash, or a bank check, on behalf of the defendant to the Criminal (District) Court Clerk immediately after the arraignment. This person is known as the “surety.” To bail out a defendant quickly, it is important for the surety to be present in court during the arraignment because defendants are transferred to local jails shortly after arraignment, if bail has not been posted. If a defendant has been taken to a local jail, the surety would have to post bail at the jail. Cash bail is refundable in full, at the end of the case, if it is dismissed. If the case concludes with a conviction, 3% of the amount posted will be deducted by the Court before the balance is returned to the surety. To post bond, the surety would have to hire a bail bondsman to post an insurance company bond on behalf of the defendant. Bail bondsmen usually require some form of collateral, and a non-refundable fee for their service.
- Do I have to hire a lawyer?
No, you do not have to hire a lawyer for a criminal case. But you should hire a lawyer. Otherwise, you may represent yourself, “pro se.” You may do this whether, or not, you are a lawyer. However, it is generally unwise for anyone, including a lawyer, to represent himself. In fact, there’s an old adage that, “a lawyer who represents himself has a fool for a client.” So, representing yourself “pro se” is generally unwise. If you cannot afford to hire a lawyer, the Court will assign a lawyer to represent you, free of charge.
- What is the difference between a felony and a misdemeanor?
Felonies are serious crimes, while misdemeanors are less serious crimes. In New York, you can go to jail for up to one year on the most serious types of misdemeanors. For felonies, though, you can go to jail for more than one year. Additionally, the length of a probationary sentence is longer for a felony than it is for a misdemeanor.
- What is the difference between Criminal (District) Court and Supreme (County) Court?
In New York City, and in Nassau and Suffolk Counties, most criminal cases begin in the lower court, which is the Criminal (District) Court. If the most serious charge is a misdemeanor, the case will remain in the Criminal (District) Court until it has concluded. But if the most serious charge is a felony, and if a Grand Jury votes to indict the case, then it must be transferred to the higher court, which is the Supreme (County) Court, for trial. That’s because the Supreme (County) Court is authorized to impose sentences greater than one-year in jail, whereas the Criminal (District) Court is authorized to impose jail sentences of no greater than one-year.
- How can a criminal case end?
Generally, there are three ways to resolve a criminal case. First, any defendant, charged with any crime, has the right to a trial. Trial can be by judge, or jury. A relatively small number of criminal cases go to trial. Second, a defendant can plead guilty pursuant to a negotiated plea bargain. Typically, a defendant’s lawyer will negotiate the terms of a plea bargain with the District Attorney’s Office, and the Judge who is presiding over the case. Generally, in a plea bargain, a defendant will plead guilty to a less serious charge, and receive a sentence that is more lenient than it would be had he or she gone to trial, and been convicted. Most cases are resolved with a plea bargain. Finally, if there is a legal basis, or a negotiated agreement, a case can be dismissed.
- What is a suppression hearing?
A suppression hearing is a legal proceeding conducted by a Court prior to trial. The purpose of a suppression hearing is to determine if a defendant’s constitutional rights were violated, and if evidence was seized from a defendant, as a result of the constitutional violation. If the Court makes such a finding, then the evidence in question should be suppressed, or kept out, at trial.
- What is a trial?
A trial is a formal examination of evidence in a judicial proceeding to decide guilt in a criminal or civil case. In New York, defendants have a right to a trial by jury if they face the possibility of a jail sentence greater than six months. However, a defendant has an absolute right to waive his or her right to a jury trial, and have a judge decide the issue of guilt at what is known as a, “bench” trial.