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.

In order to understand criminal law in New York and how to properly defend a criminal matter it is necessary that the accused and the criminal defense lawyer both have a very good understanding of the different types of criminal offenses in New York. This will help the criminal defense lawyer explain the levels of offenses and the consequences of the offenses.

All criminal offenses in New York begin with the charges or the Accusatory Instrument. In New York the Penal Law (criminal laws) and other laws differentiate criminal offenses according to the level of punishment. In New York criminal defense the three areas of offenses are Felonies, Misdemeanors and Petty Offenses.

The Felony--
The Felony is the most serious offense in New York State. It includes crimes from murder to grand larceny. The levels of felonies in New York range from A-1 felonies, the most serious, to Class "E" felonies. The punishment for a plea or conviction to a felony can range from fines, probation or a state prison sentence. A state prison sentence is served in a New York state facility "upstate" for a term of over one year.

The Violent Felony--
The violent felony is defined by the penal law section 70.20(1). These are specific types of crimes but do not necessarily have to involve a violent act. With respect to sentencing a violent felony offense will carry with it a determinate sentence (6 years) as opposed to an indeterminate sentence (2 to 6 years).

Misdemeanors--
The misdemeanors in New York are divided into class "A" misdemeanors and class "B" misdemeanors. Class "A" misdemeanors are the more serious crimes (ie. criminal possession of a controlled substance in the seventh degree, assault in the third degree) and carry with it a potential of up to one year in the local jail such as the county jail.

Unclassified Felony or Unclassified Misdemeanor--
If a crime is not identified by the New York state Penal Law then the offense usually will be deemed "Unclassified". For example the New York state DWI laws are under the Vehicle and Traffic law (VTL) and therefore are unclassified. An unclassified Felony is treated as a class "E" felony while a unclassified Misdemeanor is treated as a class "A" misdemeanor for sentencing purposes.

Petty Offenses--
A petty offense is the least serious offenses in New York state and include violations and traffic offenses. A conviction for a petty offense is not considered a criminal conviction. Punishment can include incarceration (15 days) in the local jail but can also include fines, restitution, state surcharges and/or community service. For example, disorderly conduct is a penal law petty offense as is harassment in the second degree.

When charged with a petty offense alone fingerprints and photographs will not be taken by the police department or state police and the accused is not entitled to a jury trial. Driving While Ability Impaired (DWAI) (VTL 1192.1) is another example of a petty offense or a violation.

If the defendant is convicted of a petty offense the conviction is normally sealed. If the original charge was more serious and the case was reduced to a petty offense the matter will normally be sealed and any fingerprints or photographs will be destroyed.

The criminal defense and the criminal defense attorney--
In New York it is important to understand the nature of the charge and any potential sentence as a result of a criminal conviction. The top criminal defense lawyers will review the charge with an accused to understand the nature and the type of criminal matter. As it can be seen from the criminal law blog, a Felony is very different from a Petty Offense.

All offenses have serious consequences for the accused or the convicted. Consequences include employment consequences or driving license suspensions. The best criminal defenses lawyers will explain the offense and any of these collateral consequences.

New York Criminal Defense in Westchester County or any trial Court instructions to the jury by the judge are important since this is the basis for the jury's deliberation and decision. The top criminal and civil attorneys always ask the Judge for the most beneficial jury instructions to help their cases. There are many insertions to a jury on the law but one instuctions discussed here is called the missing witness charge.

In People v Onyia, 70 AD3d 1202, the defendant and co defendant were charged with robbery, burglary, criminal use of a firearm and possession of a weapon. The co-defendant pled guilty and testified against the defendant. Testimony differed among witnesses as to the number of perpetrators who had a gun and other facts. The defnedant's request for a missing witness charge was denied. The defendant was convicted of several counts but acquitted of possession of a weapon. The court dismissed the use of a firearm count as a noninclusory concurrent count and sentenced the defendant on the remaining counts.

The appellate court held that the missing witness, the accuser's girlfriend was present in the apartment when the defendant bought drugs from the accuser a few minutes before intruders came in brandished a handgun and took money.

The testimony of others and her statement to the police showed she was knowledgeable about the incident. The prosecution alleged her testimony would be cumulative to that of the accuser and the co-defendant but their testimony was contrary on some points and the girlfriend's testimony could have been helpful.

The court accepted without further inquiry the prosecution's assertion that the girl could not be found. The Court records do not indicate what efforts the prosecution took to locate the girlfriend. The Court determined the girlfriend was under the prosecutions control.

The prosecution failed to rebut the prima facia case established by the defense. The error in denying the missing witness charge was not harmless. Judgment was reversed for a new trial.

This case is a good example of the rule of the missing witness charge to the jury. If the case is pending in any criminal court in New York the witness list and who is available is very important to the criminal defense. In any felony or misdemeanor trial the best prepation is to identify each witness and conduct an interview of that witness to prepare the best criminal defense possible.

In New York State the top criminal defense lawyers and the best criminal defense will focus on any violation of constitutional rights. Importantly the issues of search and seizure and probable cause to arrest.

Westchester, Orange, Putnam, Rockland, Dutchess County or elsewhere it is a must to review the New York State Police, County Police or local Police arrest reports to determine the exact nature of probable cause and search and seizure.

In People v McBride, 14 NY3d 440 an employee who told police that it was the defendant who robbed he restaurant later picked him out of a photo array and lineup. Police went to the defendant's apartment. They could hear voices inside and confirmed that a man was present. When their knock went unanswered they climbed up the fire escape to look into the apartment. They saw a man lying on the floor. With guns drawn, they rapped on the window and ordered him to open up. A women, seemingly upset and out of breath, came to the front door and let the officers in. They arrested the defendant. His pretrial suppression motions challenging evidence taken from his home, the lineup identification and confession given to the police were denied after a hearing. His conviction was affirmed.

The Court of Appeals found warrentless entries into a home to make an arrest are "presumptively unreasonable" People v Molnar, 98 NY2d 328; Payton v New York, 445 US 573. However, if there was probable cause the police could proceed without a warrant in the presence of exigent circumstances.

Exigent circumstances depend on many factors: the gravity or violent nature of the offense; whether the suspect is reasonably believed to be armed; a clear showing of probable cause to believe the suspect committed the offense; a likelihood the suspect will escape if not quickly arrested and the peaceful circumstances of entry. United States v Martinez-Gonzalez, 686 F2d 93.

The Court found in the above facts the alleged crime here was violent, prop bale cause was acknowledged, there was a strong reason to think the defendant was in the apartment, and the police entered only after assessing the distressed condition of the women answering the door. Although the defendant argued that the police created the exigency by frightening the woman was not supported by the record.

The Court also found that the better practice would have been to get a search warrentthe police actions were legally supportable and the seizure of the evidence was justified. The Court also found the defendants Miranda rights were knowingly and voluntary waived. Wi respect the the line up the Court found that the lineup fillers were physically similar to the defendant and wearing an article of clothing described by the accuser was not unduly or suggestive.

In the dissent Judge Pigott reasoned that the Exigency did not cancel the need for an arrest warrant when there was ample time to obtain the warrant. In reviewing the record it was discovery the police had probable cause to arrest the defendant three days before going to his home. Judge Pigott agreed that the police had created the exigency.

It is very important to review each fact of the case to determine if the arrest is lawful. If the arrest was not lawful the Court will likely dismiss the entire matter. This strategy of criminal defense in Westchester County or otherwise is of the utmost importance and can only be determined by a through review of the facts of the case.

The Best criminal defense and the best criminal lawyers will tell you to NEVER speak to the police regarding any criminal investigation. Resist the urge to talk to the police as the prosecution will want to use statements regardless of Miranda warnings during a police interview. Always call a criminal defense lawyer immediately.

A good illustration of this principle is the recent Supreme Court case of Maryland v Shatzer, 559 US ___, 130 SCt 1213 (2010). This directly addresses the complex issue of Miranda and police interviews.

In the case the respondent was suspected of sexual abuse. In 2003, the police interviewed him while he was in prison on an unrelated offense. After being Mirandized, he signed a waiver but after the respondent learned the purpose of the interview he refused to speak without an attorney. In 2006, the investigation was reopened and he was interviewed again at the prison. He acknowledged his Miranda rights and signed a waiver. He was questioned for 30 minutes and after making admissions about the crime agreed to a polygraph test. Five days later, fresh Miranda warnings were given and a waiver was obtained the respondent the respondent failed the polygraph test and made inculpatory statements and asked for a lawyer.

His motion to supress the statements was denied and he was convicted.

The Supreme Count found that the case of Edwards v Arizona, 451 US 477 (1981) provided a second layer of protection over Miranda warnings by requiring the interrogation to stop when a request for counsel has been made and involuntariness in response to further questions is presumed. However, Edwards was found to be a judicially created rule and therefore shouldn't extend more than 14 days past the initial interrogation. A two week break from custody means the suspect is no longer isolated and is able to seek advice from an attorney, family member and friends.

The Edwards presumption of involuntariness ensures that police will not take advantage of the mounting coercive pressures of prolonged police custody by repeatedly attempting to question a suspect who previously requested counsel until the suspect is badgered into submission.

Where the suspect has been released from pretrial custody and returned to his normal prison life for 2 1/2 years before the next interrogation his change of mind in answering questions without counsel could not be presumed to have been coerced. Lawful imprisonment upon conviction of a crime does not create the coercive pressure identified in Miranda.

In this case since the respondent experienced a break lasting more than two weeks between the first and second attempts at questioning Edwards did not mandate suppression of the 2006 statements.

Always consult with a criminal lawyer before speaking to any police officer. This will provide the best criminal defense in any criminal action, felony or misdemeanor in New York, Westchester county or otherwise.

A topic of usual concern for clients involved in both Family Law Cases and Criminal Defense Cases is the issuance of an order of protection by the court. The attorneys at Riebling, Proto & Sachs, LLP regularly appear in the Family Courts and Criminal Courts of Westchester, Orange, Rockland, Dutchess, Putnam, the Bronx, Brooklyn, Queens, and New York to defend clients against the issues that arise when an order of protection is issued.

An order of protection may be granted in a number of different cases pursuant to various criminal and civil statutes, including Criminal Procedural Law sections 530.12(1) and 530.13(1); Articles 3, 4, 5, 6, 7, 8 and 10 of the Family Court Act; and Section 240(3) of the Domestic Relations Law. Generally, orders of protection fall under two categories, temporary and permanent. A temporary order of protection is typically made during the pendency of the action. A permanent order of protection is usually issued at the conclusion or disposition of the case. Frequently, temporary orders of protection precede permanent orders of protection.

New York Law prohibits the extension of an order of protection to a person(s) unrelated to the underlying criminal action. See People v. Konieczny, 2004 WL 1263762 (N.Y. 2004). The order of protection may cover the complainant and family or household, but not beyond. People v. Petrusch, 306 A.D.2d 889.

Orders of protection may also be issued in instances where the person being “protected” by the order opposes the terms of the order of protection and does not want the defendant being barred from contacting him or her. People v. Monacelli, 299 A.D.2d 916. This particular event often occurs in cases involving spouses and families.

In criminal cases, an order of protection may be part of the court’s order allowing for the defendant release from custody. CPL Sections 530.12 (family offenses) and CPL 530.13 (non-family offenses). At times, a court may issue an order of protection on its own, based upon “good cause shown”, when an accusatory instrument (complaint) is filed by the prosecution. In such an instance, the defendant has a right to contest the issuance of the order of protection in those circumstances where a constitutionally protected right, such as being excluded from the defendant’s residence or being prohibited from contacting the defendant’s family, is restricted.

Also, a court can suspend or revoke a pistol permit and possession of firearms. A defendant has a right to hearing on the issue of firearms. It should be noted that a violation of an order of protection due to firearm possession is also a violation of federal criminal law.

By understanding these important aspect of the law as they pertain to orders of protection, the criminal, matrimonial and family law (child custody, child support, family offense) trial attorneys of Riebling, Proto & Sachs, LLP continue to successfully assist their many clients.

If you or someone you know needs the assistant of a criminal, family or matrimonial attorney, please contact Riebling, Proto & Sachs, LLP for a free consultation. The firms trial attorneys regularly appear in the courts of Westchester, Bronx, Rockland, Putnam, Dutchess and Orange Counties in New York State.