New York Criminal Lawyer Blawg

The Criminal Courts

In New York State the criminal court system can be very confusing. Often New York residents charged with a crime and out of state criminal defendants and/or their family's are confused over the process and the court system in general. Every criminal defense attorney needs to know the entire criminal court system in New York and even the extension of various offenses in the New York Family Court. This is a review of those courts.

Superior and Local Courts

The New York State Criminal Procedure Law (CPL) defines Superior Courts (County and Supreme Court) and Local Criminal Courts (New York City Criminal Court, City Courts, District Courts (Long Island), Town Courts and Village Courts).

Superior Courts hear felony cases and Local Courts hear misdemeanor cases. Where one is arrested and for what crime dictates the Court.

The Local Court

A defendant charged with misdemeanors only will start and stay in the local criminal court. A defendant charged with only felonies can start in a Local Court but must be prosecuted in a Superior Court. If there are multiple charges including at least one felony all the charges must be heard in the Superior Court.

For example, a DWI arrest in the Town of Bedford, New York will be prosecuted in the local Town of Bedford Justice Court. If the DWI charge is not a felony the entire case will be heard in the Bedford Justice Court. If the DWI charge is a felony the initial proceedings will start in the Bedford Court but must be prosecuted in the Superior Court. If the felony charge is reduced to a misdemeanor the case will stay or be returned to the Bedford Court.

Another example, the Westchester local City courts include, White Plains City Court, Yonkers City Court, Mount Vernon City Court, Rye City Court, New Rochelle City Court and Peekskill City Court.

Local Town Courts include Mount Pleasant, Rye, Somers, Mount Kisco, Greenburgh, Ossining, Bedford.

The Village Courts include, North Castle (Armonk), New Castle (Chappaqua), Tarrytown, Sleepy Hollow, Elmsford, Ardsley, Dobbs Ferry, Irvington, Bronxville, Scarsdale, Larchmont, Mamaroneck, Harrison, Port Chester, Rye Brook, Croton on Hudson, Hastings on Hudson, Tuckahoe, Cortlandt, Pelham

The Superior Courts

Superior Courts hear Felony cases in Supreme or County Court. At times a Superior Court judge may assume the role of a Local Court judge to accomplish some procedural aspect of a case but the important point to remember is that felonies are heard in Superior Courts.

Felony Cases

In New York City felonies are usually immediately indicted by a Grand Jury so that they will be heard exclusively in the Superior Court. Outside of New York City most felonies are not immediately indicted and proceed in the local criminal court by Felony Complaint as opposed to Indictment.

For example, a defendant is charged in the City of Yonkers with a drug possession felony charge. The defendant will be arraigned in the Yonkers City Court, bail can usually be set and the defendant is entitled to a Felony Hearing to determine if the charge is supported by reasonable cause. Unless the felony is reduced to a misdemeanor the case will eventually be heard in Superior Court. If the defendant is indicted the case is transferred to Superior Court.

Specialized Courts

In New York State, depending on the County, a case may be transferred to a Specialized Superior Court even if the charges are misdemeanors. These specialized courts include Domestic Violence Courts, DWI Courts and Drug Courts. Not every County has the same Specialized Courts nor does every local court transfer cases to these Specialized Courts. This is something that needs to be reviewed on a case by case basis with a Criminal Defense Attorney.

Criminal Court and Family Court

In matters involving offenses committed against a family member the complainant can proceed in both the Family Court and the Criminal Courts in New York State. The complainant can also proceed in just one of these courts.

Having matters in both of these Courts can be complex. It can raise many issues involving various legal strategies and can impact on various custody and/or visitation rights. The top criminal defense lawyers will know the interplay between these two courts.

For example, a Family Offense Petition filed in the Putnam County Family Court can also be prosecuted in the local Putnam county criminal court. The charge will be the same usually with the exact set of factual circumstances. For example, criminal mischief (damaging the property of another) or Harassment. Issues involving statements, double jeopardy or testimony in Court can impact how these cases are resolved.

The New York State Criminal Courts is can be confusing because there are many different types of courts, Counties and procedures vary. A good understanding of the process and the courts will will help in making any decision for yourself or a loved one much easier. Always consult with a criminal defense attorney.

Law Enforcement

In New York State there are several law enforcement agencies that investigate criminal activity. These include the New York State Police, County Police, local (city, town or village) police departments, MTA Police, District Attorney Investigators and the Department of Environmental Protection. Those officers are recruited from a variety of places and undergo similar training. If one finds themselves subject of ANY law enforcement investigation they must immediately contact a criminal defense attorney.

Criminal Defense

The pre-arrest criminal defense is very important, however some criminal defense attorneys will not take clients who are under investigation and will tell the person "call me when your arrested." This is bad advice. A criminal defense attorney can provide help at any stage of the pre-arrest investigation. The earlier the criminal defense attorney can get involved the more effective the defense can be to help the client.

Pre-arrest the criminal defense attorney can contact the law enforcement agency, the District Attorney's Office and most importantly keep in close contact with the client regarding any arrest or investigation. Having a criminal defense attorney for advice often puts client's at ease by knowing they have someone to help during a stressful time.

What to do if you are under police investigation

DO NOT talk to any law enforcement without first speaking with a criminal defense attorney. The best criminal defense attorneys will tell you that is the golden rule in criminal defense.

Contray to popular belief, the police do not need to read a suspect their Miranda warnings, under certain circumstances, before questioning. Miranda warnings are usually only required during a custodial interrogation.

Law enforcement are free to lie to a suspect during questioning. The police may comment "We have the other guy, he told us what happened so you can too" or "your fingerprints are all over the weapon". This is designed to get the suspect to make a statement.

Also, the investigators will use comforting language such as "we are here to help you" or "we are going to ask you questions that we already have answers to, so its OK to be honest" Good Cop/Bad Cop is also a common practice.

The most common way that an investigator will convince a person to speak to them is by saying "we don't want to arrest you but if you don't talk to us and explain what happened we are going to arrest you" or "if you tell us what happened I can call the judge and you can go home or I'll call the DA and have them drop the case". This is all designed to have the suspect make a statement.

Again, follow the golden rule and never speak with law enforcement without speaking with a criminal defense attorney first.

DWI Defense in New York

In any New York State DWI defense it is important to know the different BAC levels and how they are applied under the New York DWI laws. In Westchester, Orange, Putnam and Rockland Counties, DUI arrests include those with BAC levels below .08%. An arrest in New York with a BAC level under .08% will result in the charge of Driving While Ability Impaired (DWAI). The best criminal defense will attack the BAC levels.

How are BAC levels below .08% defined?

The DWI laws in New York identify a BAC level of.05% as evidence that the driver is NOT impaired. A BAC level of .07% is evidence of impairment. Of course, a .08% results in the charge of Driving While Intoxicated (DWI). The BAC level is the prosecutor's main tool in determining plea policies and strategy for trial. Therefore, in the New York DWI defense it is important to know the BAC amount and any possible margin of error (usually +/- .01%) to formulate the proper defense.

What is Divided Attention?

Police officers in any DWI or DWAI case are trained to look for certain cues to determine, without a BAC reading, if the motorist is intoxicated or impaired. The police are always looking for these cues. Divided Attention is the basis of these cues.

Divided Attention is the concept that is a motorist is impaired or intoxicated they can't do two things at the same time and instead will focus on the more important task while ignoring the least important task. The logic is that driving a car requires a motorist to do several things at the same time and alcohol or drugs prevents a motorist for doing those tasks. The prosecution will focus there case on divided attention therefore it becomes a DWI defense issue.

The Field Sobriety Tests (FST) (One Leg Stand, Walk & Turn) used by officers test divided attention. In the DWI defense it is important to realize that those tests usually can't be preformed even in the best of conditions. Even the police department's own manuals instruct the officers that the tests are only about 68% accurate yet they are used as the primary test for divided attention.

Cross Examination of the Police Officer

The DWI criminal defense attorney will attack the police officer by challenging the FST and the concept of divided attention. An officer will undoubtedly testify about the test and that the failure of the test was evidence of a loss of motor skills. To attack this testimony a simple strategy is to focus on what the motorist was able to do that never made it into a police report or was testified to at trial. For example, opening the window to speak with the officer is usually done without error. The cross examination would include:

1. You asked him to lower the window?
2. He responded to your request immediately and moved his hand towards the button?
3. You were watching his hands for officer safety?
4. His movements were normal?
5. His finger went to the button and lowered the window?
6. Without any evidence of loss of motor skills?

This is just one simple example of how to attack divided attention.

In any DWI defense it is important to attack the officer's findings and establish that the motorist's ability to drive was not impaired. The BAC level is only part of the evidence against an accused and with low level BAC readings attacking the concept of divided attention is the best DWI defense.

Orders of Protections

In New York State, including Westchester, Putnam, Rockland, and Orange counties there are two types of Orders of Protection issued by the criminal and/or family courts, Temporary Orders of Protection (TOP) and Final Orders of Protection (FOP). As the names suggests generally a TOP issued during the case and a FOP is issued at the conclusion of a case.

The criminal defense attorney must be aware of the different types of Orders of Protections and the complex terms within the document. The criminal defense attorney must also be aware of the requirements of service of the Orders of Protection and how an Order of Protection can be used as a basis for the crime of Criminal Contempt should one be accused of violating an Order of Protection. For questions on those exact issues contact a criminal defense attorney as the laws can be complex and are beyond the information provided in this Blog.

Criminal Contempt

When one is accused of violating an Order of Protection the charge that results is Criminal Contempt. There are various degrees of Criminal Contempt but the theory is the same, that a person was issued an Order of Protection and violated that court order in some manner. Criminal Contempt is a separate and distinct crime that can result in incarceration.

Using an Order of Protection as a Sword instead of a Shield

The purpose of an Order of Protection is to help a person in need of protection (Shield). However, some protected parties use their Order of Protection as a weapon against the accused (Sword). This is a complex area regarding the purpose of an Order of Protection. In this case, it is more important than ever to seek the advice of a criminal defense attorney to resolve this issue. There have been several examples of a protected party following an accused, baiting an accused into meeting with them or contacting them in an effort to catch the accused in a violation leading to a new arrest.

Sufficiency of the Charge (Criminal Contempt)

In People v Ferenchak, ___ AD3d ___, the Court held where a misdemenor information alleging violation of an order of protection containted no allegation that the defendant was served with the Order of Protection, was present in court when it was issued, or signed it and the supporting deposition fails to reference the order or Protection, the misdemeanor information was jurisdictionally defective for failure to assert facts that if true would establish the defendant's knowledge of the Order of Protection.

Modification of Orders of Protection

Once an Order of Protection is issued to can be modified by the same Court and sometimes other courts as well. Usually this is done by the criminal defense attorney during a regular court appearance or by filing a formal motion.

In People v Knight, ___AD 3d___, the oral modification of an order of protection issued at sentencing which prohibited the defendant from every entering the county again or traveling within 50 miles of the home of the person that the order was meant to protect had to be stricken.

Orders of Protection are complex documents and need to be carefully reviewed with an experienced criminal defense attorney. It is important to understand the order of protection so it will not be violated and an experienced criminal defense attorney can discuss the methods of how to modify the order of protection or ask for its removal.