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The Criminal Process

A Knowledgeable Team of New York City Criminal Law Lawyers

Helping you understand the New York criminal process

An arrest occurs when the police have reason to believe that you have committed a criminal offense.  It is of no consequence whether the police officer witnessed the alleged crime.  In New York, the police are authorized to effectuate an arrest when they have probable cause to believe that you participated in any offense defined in the Penal Law, the Vehicle and Traffic Law, the Corrections Law, or any of the several other statutes proscribing criminal conduct.

When people are arrested, they are typically brought to the local police precinct, where they are held before they are processed for the arraignment procedure.  The amount of time a person is held prior to arraignment varies widely among the counties of New York State.  If you are arrested in the five boroughs, Nassau or Suffolk Counties, you will usually be brought before a judge within 24-48 hours of your arrest.  Prior to seeing a judge, a person facing arrest will be “processed” while in police custody, which usually includes fingerprinting and the preparation of arrest paperwork.  This is also where the arresting officers determine exactly what crimes to charge the defendant with.

Often citizens awaiting arraignment believe that it may be in their interest to speak to the police officers regarding the facts of their case.  THIS IS NOT IN YOUR BEST INTEREST.  Most people believe that they can “talk their way out of an arrest.”  Be advised that speaking to the police WILL HARM YOU in the long run if you make admissions regarding your conduct.  If you freely volunteer information to the police, that information will be used against you during your criminal case.  The best course of action is always to request a NYC criminal defense attorney as soon as possible and to decline to incriminate yourself.

Once the police are done processing you through the system and preparing their paperwork, you are either issued a Desk Appearance Ticket (DAT) or transported to court for your arraignment.

THE DESK APPEARANCE TICKET (DAT)

Instead of being transported to court to see a judge immediately after your arrest, the police may issue you an order to appear in court at a later date and release you from custody at the station house.  Most DAT’s are issued for violations and some misdemeanor offenses.  The police may occasionally issue a DAT for a low-level felony offense, such as a class E or D non-violent offense, yet this is much more the exception than the rule.

The DAT will direct you to personally appear before a judge for the formal arraignment on a date two to three weeks in the future.  It is at that stage in the process where the judge will determine your bail status.  When people are released on DAT’s, sometimes the police will have already collected some bail from them.  This is called station house bail, or police bail.  The judge at your arraignment can continue that bail, or the judge may exonerate that bail and set a different, higher, amount.  The judge’s decision on bail, and the factors he/she looks at to determine it, will be discussed in the next section.

Do not be fooled into thinking that a DAT is not an arrest or is not as serious as being brought before the court immediately for arraignment.  Getting a DAT means you have been arrested.  However, it is a tremendous benefit to you because it means you will not have to remain detained for 24 or more hours in jail before seeing a judge.

When you appear for your arraignment in New York City, it is important to have criminal law attorneys by your side.  Remember, you are facing criminal charges.

For more information about appearance tickets, please refer to Criminal Procedure Law Article 150.

THE ARRAIGNMENT

The arraignment process in New York can be confusing, especially for a defendant who is both exhausted and frustrated after having spent many hours in police custody and inhospitable holding cells before seeing a judge.  Most arraignments take less than thirty seconds, with your NYC criminal law attorney, the judge, and the prosecutor speaking rapidly and in a language you don’t understand.  This section will assist you in understanding what exactly an arraignment is, and perhaps, more importantly, what it is not.  Criminal Procedure Law Section 170.10 guides arraignment procedures.

First, an arraignment is NOT a trial.  There are no witnesses and no evidence is presented.  The police officer that arrested you and/or the complaining witness are not present.  Your guilt or innocence is NOT even addressed at the arraignment.  You, as the accused, do not even speak during the process.

The main focus of the arraignment is to advise you of the charges you are facing and to determine your custody or bail status.  The Judge will either set bail, release you on your own recognizance (ROR), or conditionally release you to the custody of the Probation Department (CRP).

The judge makes the bail determination based on several factors.  The judge will weigh these factors to determine whether you are likely to return to court on your own to face the charges or whether you present as a flight risk.  These factors are:

  1. The seriousness of the charge(s):  The more serious the charge(s), the more likely it is that bail will be set.  There is a huge difference between someone being arraigned on passing a bad check, a class B misdemeanor, and someone being arraigned on a violent assault, a class D violent felony.  If someone is charged with a class A or B felony offense, there is a strong possibility that no bail will be set at all, meaning no amount of money can get him released from jail.  This is called a remand.
  2. Your prior criminal history (RAP sheet or NYSID):  A person with no prior criminal history is more likely to be released or have nominal bail set than a person who has multiple prior arrests or convictions.  If there is a criminal history, the judge will also consider how recently the prior arrests or convictions occurred.  He or she will also review your NYSID to determine whether you are currently or have ever been on parole or probation.
  3. Your warrant history:  If you have prior arrests, the judge will want to see if you returned to court to address those charges.  The logic behind this is that human behavior generally repeats itself.  If you appeared in the past, you will most likely appear in the future.  However, if you have a history of bench warrants, a judge will be more likely to set an increased bail on the current charge.
  4. Your community ties:  A person who has strong community ties will be less likely to have bail set then a person who does not.  The judge will look at several things about your individual situation:  Do you own a home in the community?  Are you employed?  How long have you lived at your address?  Are you married?  Do you have children?  Do you attend school?  Are you a citizen?

The controlling determinations for bail are set forth in Criminal Procedure Law Section 510.30.  For the definitions of terms used with respect to bail, please refer to Criminal Procedure Law Section 500.10.

Be advised that the prosecutor, depending on the county, has certain guidelines that the individual Assistant District Attorney (ADA) will use in the bail request.  For example, many more people are ROR’d in New York City because the prosecution does not request bail as frequently as they do in suburban counties or smaller towns.  However, just because the prosecutor asks for bail does not mean the judge will go along with the request.  Your criminal law attorney in NYC has the opportunity to argue to the judge why you should be released or why a certain amount of bail should be set.  This is why it is extremely important to have an attorney with you at this stage.  Judges will sometimes consider the fact that a defendant has appeared with retained counsel as an indication that he or she is taking the charges seriously and is less of a flight risk.

Besides the bail determination, the arraignment also serves as the forum where certain notices are given to you.  At the arraignment, the prosecutor will serve notice to your attorney of any alleged statements you made to police during the arrest procedure.  The prosecutor will also provide notice of any identification procedures that were conducted where you were identified by witnesses as the perpetrator of the alleged crime.  This is what the ADA is talking about when he states that “710.30 notice” is being served.  This refers to section 710.30 of New York’s Criminal Procedure Law (“CPL”) which enumerates some very important rights for defendants in criminal cases.

Other terms you might hear at your arraignment include CPL section 190.50 notices, CPL section 520.30 hearing requests, CPL section 450.10 notices, and requests for orders of protection.

When you are arraigned on a felony in NYC, your criminal law lawyer will serve cross CPL section 190.50 notice, which preserves your right to testify should the prosecutor elect to present your case to the Grand Jury.

A CPL section 520.30 request, or a request for a bail sufficiency hearing, is usually requested by the prosecutor when the charges include a drug sale or allegations of a financial scheme where a large sum of money is involved.  The prosecution is asking the judge to, in essence, place a hold on the defendant’s release, and if bail is posted, to determine the source of the bail money.  To grant such a request, the judge must determine that there is reasonable cause to believe that any bail money posted will come from an illegitimate or illegal source.

CPL section 450.10 notice is served by prosecutors when they intend to release certain property that was recovered (stolen property) to its lawful owner.  The defense attorney must inspect this property before it is returned or will lose the chance to do so.

The ADA will usually request that the judge issue an order of protection for someone if the case involves a violent crime or a domestic incident.  Criminal court orders of protection are either full orders or limited orders.  A full order or a total stay away allows NO contact AT ALL with the protected party.  A limited order, or a do-not-harass order, allows contact with the protected party but prohibits the defendant from harassing, annoying, alarming, menacing, assaulting, or committing any criminal offense against that person.  These orders can have very real and lasting repercussions, including re-arrests for violations.  Therefore, it is again strongly advised you have an attorney present at arraignment.

For more information about orders of protection, see the “Orders of Protection” tab below and Criminal Procedure Law Sections 530.12 and 530.13.

Once the arraignment is complete, your case will be adjourned for further conferencing.  If you are ROR’d following the arraignment, or are able to post bail in the event bail is set, you will remain at liberty pending your next court appearances.

Experienced criminal defense attorneys in New York City

The criminal law process can be intimidating and confusing. We at Raiser & Kenniff, PC, can guide you every step of the way. To schedule a free 30-minute consultation with one of our dedicated attorneys, contact us by phone at 347-205-8170, or toll free at 888-504-2746, or online.

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