New York Criminal Lawyer Blawg

Witness Statments
In New York State during a criminal trial or a criminal pretrial hearing the prosecution is required to give to the defense any prior written or recorded statements of a witness who the prosecution will call to testify at trial or during a hearing. this is known as the Rosario Rule pursuant to People v Rosario, 9 NY 2d 286 and CPL 240.44, 240.45.

Reason for the Rosario Rule
A prior witness statement is useful during cross examination. Many times prior statements will contain omissions, contrasts or contradictions that can but used by the criminal defense attorney to attack the prosecutions witnesses. At the very least prior inconsistent statements can be used to attack the witnesses credibility.

Types of Rosario Written Statements
1. Police Officer's notes
2. Notes made by the prosecution during the interview of a witness
3. Affidavits in support of search warrants
4. Videotaped interviews
5. Tape recordings, including voicemail messages
6. Arrest reports
7. Police "blotters"
8. 911 tapes
9. Grand Jury testimony
10. Undercover officer's notes

It is important for the criminal defense attorney to review these statements and use them to attack the prosecutions witnesses. The top criminal defense attorneys pay very close attention to prior statements since it is common that stories may change over time and it can give insight into the prosecutions strategy of the case.

Defense Obligation
The criminal defense attorney also has an obligation to turn over defense witness's prior recorded statements. Recorded statements of the defendant do not and must not be disclosed. A criminal defense attorney should not ask a witness to write any notes or take notes to limit the information that may need to be disclosed to the prosecution.

The Rosario rule in an important tool in every criminal case including DWI trials and even traffic matters.

In New York State the Blood Alcohol Content (BAC) levels are very important to defend a Driving While Intoxicated (DWI) charge. Usually at arraignment on a DWI charge the accused will be presented with a BAC test result that the prosecution intends to use as evidence against the accused. In a New York DWI case the level has very specific meaning under the Vehicle and Traffic Law. The best criminal defense lawyers can explain what the levels are and how to attack the BAC test results.

In general the legal effect of a BAC reading are as follows:

1. BAC of .02% to .07% by a driver under the age of 21 years will result in a loss of a license. Zero Tolerance Law.

2. BAC of .05% or less is prima facie evidence that the accused was not impaired or intoxicated. VTL 1195(2)

3. BAC of over .05% but less than .07% is prima facie evidence that the accused was not intoxicated. It is relevant evidence but not prima facie evidence of impairment. VTL 1195(2).

4. BAC of .07% or more but less than .08% is prima facie evidence the accused is not intoxicated. VTL 1195(2).

5. BAC of .08% or more is per se Driving While Intoxicated (DWI). VTL 1195(2).

6. BAC of .15% or more or a refusal will require a mandatory drug and alcohol screening.

7. BAC of .18% or more is aggravated driving while intoxicated. VTL 1192(4-a).

The charges based upon a BAC reading are as follows:

Driving While Ability Imparied DWAI - BAC .05% to .07%,
Driving While Intoxicated DWI - BAC .08% to .17%
Aggravated Driving While Intoxicated - BAC of .18% or more

It is important to understand the BAC levels as they have an impact on the accused driver's license and type of charge to be imposed. In addition the BAC levels have been unsaid by some District Attorney's offices to analyze the case for dismissal, plea bargain, or trial.

In Orange County, Westchester County, Putnam County and Rockland County very close attention is paid by the prosecution to the BAC results. Some counties even use the test result as a bright line rule regarding the case.

The DWI defense starts with the BAC reading since most District Attorney offices rely heavily on the results.

A criminal defense lawyer in New York state needs to know if a search warrant was used to collect any evidence against an accused. It is important to the defense of a felony or misdemeanor to attack any search warrant.

Search Warrants
A search warrant is a court order that directs a police officer or other law enforcement to search of the purpose of seizing designated property or kinds of property and to deliver any property obtained to the Court that issued the warrant. A search warrant can be for a premises, vehicle or person. Search warrants can be used in any type of case or investigation including a Felony or Misdemeanor.

Who can apply for a warrant?
Any law enforcement body can apply to a court for a search warrant. This includes the State Police, local police departments or District Attorney Investigators. The Courts that can issue a warrant include local criminal courts such was the White Plains city court, Pleasantville justice court or the Greenburgh Drug Task Force (includes several justice courts) in Westchester County.

Contents of the Search Warrant
A search warrant in Federal Court or New York State Court must sworn to and can only be issued upon probable cause particularly describing the place to be search and the property to be seized. A warrant that fails to describe the things to be seized will be invalid and the warrant must accurately describe the premises to be searched.

Execution of a Search Warrant
The police can only search with the warrant in their possession and must if requested show it to the individual whose vehicle, premise or person is going to be searched. During the execution of a search warrant it is advisable to NEVER make any statements to the police. Contact a criminal defense lawyer immediately.

Suppression of Evidence obtained as a result of the Search Warrant
The criminal defense attorney is entitled to the search warrant and any supporting affidavits as part of discovery in the criminal action. The criminal defense lawyer will then make a motion to supress any physical evidence recovered. This will usually result in a hearing before a Judge to determine if the warrant was sufficient and if the property was seized lawfully.

Types of Search Warrants
Search Warrants are used to obtain evidence such as drugs from a premises usually after the result of some police investigation sometimes with the statement of an informant. In certain cases computers can also be seized for the information they may obtain.

The best way for the accused to protect themselves is to contact a criminal lawyer as soon as possible.

In a criminal action in New York bail is set to insure that the defendant will return to court. Usually the more serious the charge the higher the amount of bail will be set. Bail is not to serve as either preventive detention or as a pretrial punishment. If the defendant does not return to court as required bail can be forfeited.

Types of Bail
In New York there are several types of bail including a cash bail or a bond. In some instances credit cards can be used to post bail. Bail can also be posted at the local jail or in court. An accused can also use collateral through a bail bonds office to post bail.

The Bail process
In a New York criminal action bail will be set usually at arraignment. In Westchester, Rockland, Putnam, Orange and Dutchess counties bail can be set without a defense attorney present because most of the courts in those counties meet part time and either a judge will be called in or bail will be set at the police department. Bail is reviewable once the defense attorney and District Attorney are present.

Factors the Court will consider in setting bail
The criminal procedure law section 510.30(2)(a) outlines criteria for the court to consider in setting bail.
1. Character, reputation, habits and mental condition of the defendant
2. Employment and financial resources
3. Family ties and length of residence in the community
4. Criminal or juvenile record
5. Previous record of court appearances or flight
6. Weight of evidence against the defendant
7. Any potential sentence

Release on Recognizance (ROR)
Instead of posting bail a defendant may be released by the court with a promise to return. The police may also issue a Desk Appearance Ticket that diets the accused to appear in court ROR at a certain place and time.

Importance of Bail
It is important for the accused or the accused family to understand in order to secure release from jail during the pendency of the case bail is necessary. Calling a criminal defense attorney early in the process is important since once bail is set it can be difficult to have that amount changed without showing a change in circumstances.

Bail Appeals
In Westchetser County and other counties with justice courts any bail set in the local criminal court can be reviewed by a superior court. If the accused is incarcerated the case must be put on the superior court's calendar as soon as possible. Typically a request to the Westchester County criminal calendar clerk must be made before 3:00 PM to insure that the accused will be produced the next day.

Bail is a critical part of the process in criminal defense. Of course no one wants to be in jail while their case is pending but it is also important from a criminal defense perspective as it is important to have the accused released to cooperate in the preparation of the defense.

The top criminal defense attorneys will have the issue of bail addressed quickly and if necessary again as the case progresses.