Criminal Procedure of New York

Pre-arraignment-the arrest

The arrest—The police arrest based on reasonable cause. This means that a suspect is taken into custody, and charged with a crime. The amount of the investigation will vary based on the offense and the circumstances. (note that for certain low level offenses, an officer may issue a summons in lieu of an arrest)

What is reasonable cause? N.Y. Criminal Procedure Law § 70.10 (2) states that “Reasonable cause to believe that a person has committed an offense exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it …”

Pursuant to N.Y. Criminal Procedure Law § 140.10 (1), an officer can place the arrestee under arrest for any felony or misdemeanor once they are provided information about the offense which satisfies this level of reasonable cause. However, an arrest for a lower offense, such as a violation, can only be made if the offense is committed in the presence of the officer.

Where does the suspect go? What happens?—When a person is arrested, they will be transported to a police precinct so the arrest can be processed. At this time, the police will obtain the defendant’s name, date of birth, address, and other pedigree information needed for processing (even if obtained earlier). The arrestee will be photographed and fingerprinted. An arrestee may be issued a Desk Appearance Ticket (a “DAT”) if they qualify for this based upon a review of their criminal history once their Record of Arrest Processing (a/k/a the RAP sheet) is obtained, as noted infra. N.Y. Criminal Procedure Law § 140.20 (7) states that any adult offender who is arrested without a warrant be given the opportunity to call someone within the United States or Puerto Rico for the purpose of contacting an attorney or family member about their arrest, unless the call would compromise an investigation. Also, practically speaking, an arrestee will not be given the opportunity to make a phone call if this call would jeopardize someone’s safety.

In New York City, after an officer makes an arrest, they will communicate with the prosecutor. This can be done in several ways, depending on the jurisdiction. Some offenses can be processed without the need for the officer to personally appear or even speak to a member of the prosecutor’s office about the case. This form of expedited arrest processing (known as an ‘EAP’) usually occurs in straightforward misdemeanors or violations not involving victims in which an officer can fill out a form and submit it to the prosecutor. Offenses handled this way generally are misdemeanor drug offenses, certain trespass offenses, simple possession of weapon cases not involving firearms, and unlawful sale of counterfeit DVD’s, to name a few. If the offense is not one which can be processed by way of a fill in the blank method, the officer will have to meet with or communicate via phone or fax with a member of the prosecutor’s office.

How long does this take?—After an officer arrests someone without an arrest warrant, the N.Y. Criminal Procedure Law §§ 140.20 (1) and 140.27 (2) mandates that when an arrestee is in custody, an officer “must without unnecessary delay bring him or cause him to be brought before a local criminal court” and file the appropriate accusatory instrument. [Note that although the local prosecutor’s office can be the District Attorney or the Corporation Counsel, we will be focusing on the processing of adult offenders. However, note that the officer still must complete the processing, be in touch with the Corporation Counsel, and contact the parent or guardian of the arrested juvenile or adolescent without unnecessary delay if the juvenile or adolescent remains in custody.]

So is there a time limit?—In People ex rel. Maxian ex rel. Roundtree v. Brown, 77 N.Y.2d 422, 568 N.Y.S.2d at 577, 570 N.E.2d 223 (1991), the New York State Court of Appeals interpreted “unnecessary delay” to mean that the defendant must be brought before a judge within twenty four hours of their arrest. Each state is allowed to have its own time period and the federal government will adhere to a forty eight hour time period. Now does this mean that if an individual does not see a judge within twenty four hours, they will be released? No—the twenty four hour rule serves as a presumption—if an individual is brought before a judge within this period, then they are presumed to have been arraigned without unnecessary delay. However, there are many reasons why an arrestee may not see a judge within the twenty four hour period, which may include:

court scheduling or court congestion;
computer problems which could cause RAP sheets from being obtained;
delay in transporting prisoners from the precinct to the courthouse;
the need to process an inordinate number of prisoners which can cause a backlog;
the need to continue the investigation to obtain evidence prior to an arraignment;
additional charges which may be filed against the defendant (although if this happens, the twenty-four rule would run from each time the defendant is placed under arrest for a new offense, but this cannot be abused);
an issue caused by or involving the defendant, such as a defendant’s need for medical attention, a refusal to be fingerprinted in a timely fashion or at all.

Who can make an arrest?—Generally, it is a peace or police officer employed within the state who is permitted to arrest an individual within the state. (What this means is that if someone leaves the jurisdiction, a New York officer cannot arrest them unless they were in pursuit across the jurisdiction pursuant to N.Y. Criminal Procedure Law § 140.55—otherwise, an officer will have to get an officer from the other jurisdiction to place the individual under arrest and this usually requires an arrest warrant to be filed.) However, an arrest can be made by anyone. Commonly known as a “citizen’s arrest”, N.Y. Criminal Procedure Law § 140.30 permits anyone to arrest “another person (a) for a felony when the latter has in fact committed such felony, and (b) for any offense when the latter has in fact committed such offense in his presence … Such an arrest, if for a felony, may be made anywhere in the state. If the arrest is for an offense other than a felony, it may be made only in the county in which such offense was committed.” Even though you may hear about this on TV and in the movies, this is very rare. One reason is because a person who places another under arrest is open to personal liability and may be sued. A law enforcement officer will have a degree of immunity for their actions and unless they do something clearly illegal, will not be personally liable to the arrestee if suit is brought against them.

Pre-Arraignment—now the case has come to the prosecutor

If the arrestee is in custody (has not been given a DAT), the prosecutor must make a charging decision and work to have the defendant arraigned within the twenty four hour period, if practicable.

The charging decision—What this means is that the prosecutor will speak with an officer about the case and review their paperwork (if the case is processed by way of EAP, there may be no conversation with the officer if the paperwork is sufficient). The prosecutor will determine if the facts as described make out each element of the offense, and whether the offense can be proven at trial.

When the prosecutor makes a determination as to whether to take the case and go forward, the prosecutor will ask whether or not the prosecutor has jurisdiction to prosecute the defendant for the offense and whether the charges can be proven beyond a reasonable doubt, and take into consideration if the evidence obtained by the police will be admissible at trial. This evaluation is based upon various constitutional and statutory principles governing the admissibility and suppression of evidence in criminal proceedings as well as what can be charged either together or separately.

Deciding whether the prosecutor has jurisdiction to prosecute the defendant—First, pursuant to N.Y. Criminal Procedure Law § 20.20, an offense can be prosecuted within the State of New York if an element of the offense, or an attempt or conspiracy to commit the offense occurred within the State, or if the offense “was one of omission to perform within this state a duty imposed by the laws of this state”, even if the defendant was not in the state at the time the crime occurred. Note however, that pursuant to N.Y. Criminal Procedure Law § 20.30, if the theory of jurisdiction in New York is based upon part of the offense being committed in the State, but was consummated in another jurisdiction, New York State will not have jurisdiction unless the offense is criminalized in the other state as well as New York. An offense can also be prosecuted in the State if the result of the offense occurred within this state, if a homicide, if the body was found within the State, the offense committed had a particular effect upon the State. An offense has a particular effect upon a jurisdiction when it has “a materially harmful impact upon the governmental processes or community welfare of a particular jurisdiction, or result in the defrauding of persons in such jurisdiction”. (N.Y. Criminal Procedure Law § 20.10 (4)). At trial, the prosecution must prove that the State has jurisdiction over the defendant beyond a reasonable doubt.

Once it is determined that the State of New York has jurisdiction to prosecute the defendant, the next question is whether the county has jurisdiction to prosecute the defendant. A county has jurisdiction to prosecute a defendant pursuant to N.Y. Criminal Procedure Law § 20.40 when the following takes place in the county:

An element of such offense;
An attempt or a conspiracy to commit such offense;
A result offense was committed and the result occurred in such county;
The offense charged is homicide and the victim’s body or a part thereof was found in such county;
The defendant’s conduct had, or was likely to have, a particular effect upon the county and was performed by the defendant with the intent or knowledge that it was likely to have such particular effect therein;
The offense committed was criminal facilitation of a felony committed in such county;
The offense committed related to an omission to perform a duty imposed by law, which duty either was required to be or could properly have been performed in such county;
The offense was abandonment of a child or non-support of a child and the child resided in the county when the offense was committed;
The offense committed was bigamy—the Criminal Procedure Law allows a person to be prosecuted in the county where the cohabitation occurred;
The offense was committed in an adjoining county within the State and was within five hundred yards of the county;
An offense committed anywhere on the Hudson river southward of the northern boundary of New York City, or anywhere on New York bay between Staten Island and Long Island, can be prosecuted in any borough within New York City;
An offense committed upon any bridge or in any tunnel having terminals in different counties may be prosecuted in any county having a terminal for such bridge or tunnel;
An offense committed on board a railroad train, aircraft or omnibus operating as a common carrier may be prosecuted in any county through or over which such common carrier passed during the particular trip, or in any county in which such trip terminated or was scheduled to terminate;
An offense committed in a private vehicle during a trip thereof extending through more than one county may be prosecuted in any county through which such vehicle passed in the course of such trip;
An offense committed on board a vessel navigating or lying in any river, canal or lake flowing through or situated within this state, may be prosecuted in any county bordering upon such body of water, or in which it is located, or through which it passes; and if such offense was committed upon a vessel operating as a common carrier, it may be prosecuted in any county bordering upon any body of water upon which such vessel navigated or passed during the particular trip;
An offense committed in the Atlantic Ocean within two nautical miles from the shore at high water mark may be prosecuted in an appropriate court of the county the shore line of which is closest to the point where the offense was committed. A crime committed more than two nautical miles from the shore but within the boundary of this state may be prosecuted in the supreme court of the county the shore line of which is closest to the point where the crime was committed;
An offense of forgery may be prosecuted in any county in which the defendant, or anyone the defendant acted together and in concert with to commit the offense, possessed the instrument;
An offense of offering of a false instrument for filing, or of larceny by means of a false pretense therein, may be prosecuted (i) in any county in which such instrument was executed, in whole or in part, or (ii) in any county in which any of the goods or services for which payment or reimbursement is sought by means of such instrument were purported to have been provided;
An offense of identity theft or unlawful possession of personal identifying information and all criminal acts committed as part of the same criminal transaction may be prosecuted (i) in any county in which part of the offense took place regardless of whether the defendant was actually present in such county, or (ii) in the county in which the person who suffers financial loss resided at the time of the commission of the offense, or (iii) in the county where the person whose personal identifying information was used in the commission of the offense resided at the time of the commission of the offense;
An offense under the tax law or the penal law of filing a false or fraudulent return, report, document, declaration, statement, or filing, or of tax evasion, fraud, or larceny resulting from the filing of a false or fraudulent return, report, document, declaration, or filing in connection with the payment of taxes to the state or a political subdivision of the state, may be prosecuted in any county in which an underlying transaction reflected, reported or required to be reflected or reported, in whole or part, on such return, report, document, declaration, statement, or filing occurred.

Further, N.Y. Criminal Procedure Law § 20.60 affords a county jurisdiction over a defendant in the following circumstances:

When an oral or written statement made by a person in one jurisdiction to a person in another jurisdiction by means of telecommunication, mail or any other method of communication the matter can be prosecuted in the jurisdiction where the telecommunication, mail or other method was sent or received;
When a person causes property to be transported from one jurisdiction to another by means of mail, common carrier or any other method is deemed to have personally transported it in each jurisdiction, and if delivery is made in the second jurisdiction he is deemed to have personally made such delivery therein and can be prosecuted in either jurisdiction;
A person who causes by any means the use of a computer or computer service in one jurisdiction from another jurisdiction is deemed to have personally used the computer or computer service in each jurisdiction and can be prosecuted in either jurisdiction.

Deciding whether the defendant(s) can be charged with the offense—prior prosecutions and the protection against double jeopardy—A defendant has a Fifth Amendment right to not be prosecuted twice for the same offense. What constitutes double jeopardy may seem straightforward in most cases, but at times can be technical. Under the federal constitution, this prevents successive prosecutions by the same sovereign. N.Y. Criminal Procedure Law § 40.20 codifies the protection against double jeopardy and actually affords defendants within the State greater protections than what the federal constitution does. Pursuant to N.Y. Criminal Procedure Law § 40.30, jeopardy attaches when a defendant “is charged therewith by an accusatory instrument filed in a court of this state or of any jurisdiction within the United States, and when the action either: (a) Terminates in a conviction upon a plea of guilty; or (b) Proceeds to the trial stage and a jury has been impaneled and sworn or, in the case of a trial by the court without a jury, a witness is sworn.” Not only does this statute prohibit a defendant from being prosecuted for the same offense twice, it mandates that a defendant must be prosecuted for all acts relating to the same criminal transaction unless one of the following applicable exceptions apply:

The offenses have substantially different elements and the acts establishing one offense are clearly distinguishable from those establishing the other;
Each of the offenses as defined contains an element which is not an element of the other, and the statutory provisions defining such offenses are designed to prevent very different kinds of harm or evil;
One of such offenses consists of criminal possession of contraband matter and the other offense is one involving the use of such contraband matter, other than a sale thereof;
One of the offenses is assault or some other offense resulting in physical injury to a person, and the other offense is one of homicide based upon the death of such person from the same physical injury, and such death occurs after a prosecution for the assault or other non-homicide offense;
Each offense involves death, injury, loss or other consequence to a different victim;
One of the offenses consists of a violation of a statutory provision of another jurisdiction, which offense has been prosecuted in such other jurisdiction and has there been terminated by a court order expressly founded upon insufficiency of evidence to establish some element of such offense which is not an element of the other offense defined by New York State law;
The present prosecution is for a result offense which occurred in New York State and the offense was the result of a conspiracy, facilitation or solicitation prosecuted in another state;
One of such offenses is enterprise corruption or racketeering or a comparable offense and a separate or subsequent prosecution is specifically permitted by law;
One of the offenses is for federal income tax evasion or the conspiracy to commit such offense and the other offense is committed for the purpose of evading or defeating New York State or City income tax law.

The prosecutor has much discretion when deciding what to charge—The prosecutor is not bound by what is charged by the police. In fact, when the prosecutor reviews the case, some of the following decisions can be made:

to process the case with all or some of the offenses charged by the police
to charge other offenses, which may mean a reduction or increase in the charges
to decline to prosecute the case, which may be a final decision or a decision that the case cannot be prosecuted at that time, as there is additional evidence to obtain or a further investigation to be conducted

Cases can be declined to be prosecuted for many reasons, including but not limited to the following:

the charges cannot be proven beyond a reasonable doubt;
the defendant’s act does not constitute a crime;
the defendant has a clear defense to the charges;
the victim does not wish to proceed and the prosecution does not permit this person to drop the charges;
improper paperwork has been received;
charging the defendant would be in violation of a constitutional or statutory principle;
the interest of justice outweighs the need to prosecute the defendant (this decision would be made on a discretionary basis).

As noted in People v. Ortiz, 99 Misc. 2d 1069, 418 N.Y.S.2d 517 (1979), the prosecutor has an immense amount of discretion. So long as charging the defendant is done within the applicable statute of limitations, it is the prosecutor that decides who, what and when to charge. This decision should be made without political or other influence. As you can imagine, the prosecutor’s decision is bound to affect many people’s lives, so thought must be put into each case.

What is the applicable statute of limitation for each offense?—Generally speaking, you can follow these guidelines from N.Y. Criminal Procedure Law § 30.10 (but there are exceptions, such as if someone was outside of the state or their whereabouts were unknown, and some issues for specific types of offenses):

Any Class ‘A’ felony, which includes murder; and certain sexually based offenses-may be commenced at any time (so there is no time limit);
Other felonies-the defendant must be charged within five years of the offense;
Misdemeanors-the defendant must be charged within two years of the offense;
Violations & Infractions-the defendant must be charged within one year of the offense.

Formally charging a defendant—Prosecutors formally charge an individual if there is evidence to prove the crime. How does the prosecutor make the determination that the case can be proven? If we look to N.Y. Criminal Procedure Law § 70.20, we see that “no conviction of an offense by verdict is valid unless based upon trial evidence which is legally sufficient and which establishes beyond a reasonable doubt every element of such offense and the defendant’s commission thereof.” If the prosecutor knows that they cannot prove case cannot be proven, there is an ethical obligation to dismiss the case.

How does an arrestee defendant become formally charged?—Most cases start in criminal court with the filing of an accusatory instrument. N.Y. Criminal Procedure Law §§ 1.20 states that “‘Accusatory instrument’ means an indictment, … an information, a simplified information, a prosecutor’s information, a superior court information, a misdemeanor complaint or a felony complaint. Every accusatory instrument, regardless of the person designated therein as accuser, constitutes an accusation on behalf of the state as plaintiff and must be entitled ‘the people of the state of New York’ against a designated person, known as the defendant.”

What is the difference between the accusatory instruments just mentioned above?—this can be confusing, but hopefully these simple explanations will make it easier to understand (definitions for some of these terms can be found in N.Y. Criminal Procedure Law §§ 1.20, 100.05, 100.10 and 100.20):

An indictment-this is “a written accusation by a grand jury, more fully defined and described in article two hundred, filed with a superior court, which charges one or more defendants with the commission of one or more offenses, at least one of which is a crime, and which serves as a basis for prosecution thereof.” However, most cases do not begin with a grand jury presentation. Also, unless there is a felony charge that accompanies a misdemeanor, virtually no misdemeanor cases are ever presented to the Grand Jury. The very few cases that are presented to a Grand Jury prior to any arrest usually involve planning by both officers and prosecutors so there are very few cases in which a person is arrested and indicted by a Grand Jury and the first accusatory instrument that is filed against them is this type of accusatory instrument. Because of the need to bring the defendant before a judge within twenty-four hours, the indictment will usually supersede another accusatory instrument, commonly known as a felony complaint. What this means is that when a person is charged with a felony by a police officer (not a Grand Jury), the first time they see a judge will be in criminal court, and may face indictment later.

If the case has not been directly presented to the Grand Jury (which would occur in most cases), the defendant must be charged by one of these types of accusatory instruments:

A ‘felony complaint’-this is a sworn and verified written accusation by a person which is filed in criminal court and charges the defendant with the commission of one or more felonies and which serves to begin the criminal action but will not as a basis for the prosecution (if the case remains a felony, the indictment will serve this purpose).
An ‘information’-this is a sworn and verified written accusation by a person which is filed in criminal court and charges the defendant with an offense that is lower than a felony (misdemeanors, violations and infractions). Like the felony complaint, it serves to begin the criminal action. Unlike the felony complaint, it can serve as the basis for the prosecution during the entire pendency of the case. It contains firsthand knowledge from the individual who swore out the complaint. This means that it is not based upon hearsay. There are several different types of informations, but other than a traditional long form accusatory instrument, the one that can be seen in criminal court is the simplified traffic information.

Here is an example of the factual portion of an ‘information’ charging the offense of Assault in the Third Degree—note how this is based upon firsthand information and not hearsay: “Deponent states that the defendant, with the intent to cause deponent physical injury, caused deponent such injury by punching deponent in the face, causing deponent injuries including but not limited to bruising and swelling to the deponent’s head, as well as substantial pain, annoyance and alarm.”

A ‘simplified traffic information’ (this is a summons) is a written accusation by a peace or police officer, that charges a person with the commission of one or more traffic infractions and/or traffic related misdemeanors. It is different than the traditional information as it can be based upon a certain degree of hearsay and there is no need to allege the facts of the offense. There are other procedural rules which apply. This is filed to begin the criminal action and if all procedural rules are followed, can serve as the basis during the pendency of the prosecution. This is commonly used for misdemeanor unlicensed operation of a motor vehicle offenses.
A ‘misdemeanor complaint’ looks like a felony complaint and an information. It is filed in criminal court to begin the criminal action. The difference is that unlike felony complaints, this accusatory instrument charges a person with misdemeanor offenses. Also, unlike an information, it is based upon hearsay, so it cannot serve as the basis for the prosecution. This type of accusatory instrument must be converted into an information within the time that the prosecution has to go forward once after an individual is charged (as discussed below). If this does not occur within this time period, the case will be dismissed. This ‘hearsay defect’ can be cured by either filing a superseding information or by a ‘supporting deposition’.

Here is an example of the factual portion of a complaint charging the offense of Assault in the Third Degree—note how this is based upon hearsay and different from the example of the information, as noted above: “Deponent states based upon information from Derek Jeter that the defendant, with the intent to cause informant physical injury, caused informant such injury by punching informant in the face, causing informant injuries including but not limited to bruising and swelling to the informant’s head, as well as substantial pain, annoyance and alarm.”

A ‘supporting deposition’ is a document accompanying or filed in connection with an information, a simplified information, a misdemeanor complaint or a felony complaint, which is signed and verified by the individual who is named in the accusatory instrument and has firsthand knowledge about the incident which may contain some additional facts about the case. [In the example in the preceding paragraph, a supporting deposition from Derek Jeter would have to be obtained, filed and served in order to ‘convert’ the misdemeanor complaint into an information.]
Note that there is no grounds for any type of complaint charging a violation or traffic infraction. This means that if the only charge is a violation or infraction, the accusatory instrument must be an information. Thus, an accusatory instrument filed in criminal court for an offense lower than a misdemeanor cannot contain hearsay. If it does, it is legally insufficient and will be dismissed at the arraignment.
N.B.: There is another type of accusatory instrument which can be mentioned here, called a ‘prosecutor’s information.’ This type of accusatory instrument cannot be used to begin a criminal action. It can be used to supersede an information (not a complaint) and serve as the basis of the prosecution once it is filed.
N.B.: What does this term ‘verified mean’? One of the above instruments can be verified in any of the following ways (pursuant to N.Y. Criminal Procedure Law § 100.30):
It can be sworn to before the court with which it is filed.
It can be sworn to before a desk officer in charge at a police station or police headquarters or any of his superior officers.
It can be sworn to before a public servant who is authorized to administer the oath with respect to such instrument.
It can be signed on any instrument which bears this language indicating that false statements made therein are punishable as a class A misdemeanor pursuant to section 210.45 of the penal law.
It can be sworn to before a notary public.

Charging multiple offenses against a defendant in an accusatory instrument—there are times when multiple offenses can be charged at one time and times when such offenses must be joined at one time.

First, let’s consider the compulsory joinder provisions found in N.Y. Criminal Procedure Law § 40.40, which bars even the separate prosecution of offenses when such offenses should have been joined in the first place. N.Y. Criminal Procedure Law § 40.40 states:

Where two or more offenses are joinable in a single accusatory instrument against a person by reason of being based upon the same criminal transaction … such person may not, under circumstances prescribed in this section, be separately prosecuted for such offenses even though such separate prosecutions are not otherwise barred by any other section of this article.

[note the definition of “criminal transaction”, as indicated in in N.Y. Criminal Procedure Law § 40.10 (2), which defines it as “conduct which establishes at least one offense, and which is comprised of two or more or a group of acts either (a) so closely related and connected in point of time and circumstance of commission as to constitute a single criminal incident, or (b) so closely related in criminal purpose or objective as to constitute elements or integral parts of a single criminal venture”. By this definition, a prosecutor must be aware of what needs to be charged at particular time. Otherwise, the prosecutor may be precluded from filing charges for other offenses as they may have been part of the same criminal transaction.]

When (a) one of two or more joinable offenses of the kind specified in subdivision one is charged in an accusatory instrument, and (b) another is not charged therein, or in any other accusatory instrument filed in the same court, despite possession by the people of evidence legally sufficient to support a conviction of the defendant for such uncharged offense, and (c) either a trial of the existing accusatory instrument is commenced or the action thereon is disposed of by a plea of guilty, any subsequent prosecution for the uncharged offense is thereby barred.

When (a) two or more of such offenses are charged in separate accusatory instruments filed in the same court, and (b) an application by the defendant for consolidation thereof for trial purposes … is improperly denied, the commencement of a trial of one such accusatory instrument bars any subsequent prosecution upon any of the other accusatory instruments with respect to any such offense.

Note that double jeopardy and Criminal Procedure Law does not prevent the prosecution from re-trying a defendant when the first trial resulted in a mistrial (unless the prosecution acted in a manner to cause the mistrial). But the Criminal Procedure rules do prevent a second prosecution when the defendant was previously prosecuted for an offense that is considered to be a ‘lesser included’ offense of the new charge.

Now let’s consider when multiple offenses can be joined against a defendant (but do not have to be). A defendant may be charged with multiple offenses in the same accusatory instrument in accordance with N.Y. Criminal Procedure Law § 200.20 when such offenses:

Are based upon the same act or upon the same criminal transaction;
Even if the offenses are based upon different criminal transactions, such offenses, or the criminal transactions underlying them, are of such nature that proof of one offense would be material and admissible proof of the other offense;
Even if the offense are based upon different criminal transactions, such offenses are defined by the same or similar statutory provisions and consequently are the same or similar in law;
Even if the offenses by themselves cannot be joinable, each such offense can be joined with another charged offense.

Note that although N.Y. Criminal Procedure Law § 200.20 specifically states the term ‘indictment’, the principles of joinder as permitted in this law are applicable to all types of accusatory instruments, which will be discussed in greater detail, infra.

Charging multiple defendants in one accusatory instrument—As permitted by N.Y. Criminal Procedure Law § 200.40, multiple defendants can be charged together if any of the following circumstances are present:

The defendants are jointly charged with at least one offense (unless charged by way of a felony or misdemeanor complaint or information—in such circumstances, each defendant must be charged with every offense if charged together. See N.Y. Criminal Procedure Law § 100.15 (2).)
The offenses are based upon a common scheme or plan, or the same criminal transaction;
The defendants are charged with enterprise corruption and there is a connection recognized under the law to prosecute the defendants together.

What is needed in an accusatory instrument?—I am going to start off by telling you that to understand this, just like to understand the prior section of this outline, it is like learning to drive—you have to see and use it to understand, as you will not be able to completely grasp the differences and requirements by reading the statutes or this outline. So you will be shown examples of the main types of accusatory instruments in class.

But let’s discuss the requirements of complaints and informations, pursuant to N.Y. Criminal Procedure Law § 100.15. Complaints and informations must “specify the name of the court with which it is filed [,] the title of the action, [,] must be subscribed and verified by a person known as the ‘complainant.’” The complainant is someone with knowledge of what the defendant did. As noted above, this can be someone with firsthand knowledge or information from another. Complaints and informations “must contain an accusatory part and a factual part.” What this means is that the statutes that the defendant is charged with violating must be written on the accusatory instrument and there must be “a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges.” In other words, each element of each offense must be pled. As discussed below, the accusatory instrument must be facially sufficient, which means that there must be enough facts to substantiate the charges.

N.Y. Criminal Procedure Law § 100.40 states that a charge is sufficient in a regular information or complaint when it has the requirements noted in the previous paragraph and “the factual part of the information, together with those of any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information” and make out every element of the crime. If it does not make out each element, it will be dismissed because it is facially insufficient.

Note that there is no requirement that every aspect of the case needs to be pled. All that has to be alleged is reasonable cause to believe that the defendant committed the offense. Even though the prosecutor must screen the case to determine if it can be proven beyond a reasonable doubt at a trial down the road, this standard is not what is needed at this stage. Instead, all the prosecution has to plead in an accusatory instrument is the lower reasonable cause standard, alleging each element with a factual basis to support each element of each crime. Here is a synopsis of the law pertaining to facial sufficiency:

Under the provisions of the Criminal Procedure Law, a misdemeanor accusatory instrument filed against a defendant can be dismissed for facial insufficiency if it does not state the offense charged, is based on hearsay, and does not provide a description of the facts that supports a finding that there is reasonable cause to believe that the defendant committed such offense. See People v. Kalin, 12 N.Y.3d 225, 906 N.E.2d 381, 878 N.Y.S.2d 653 (2009); see also People v. Hall, 48 N.Y.2d 927, 927, 401 N.E.2d 179, 425 N.Y.S.2d 56 (1979); People v. McGuire, 5 N.Y.2d 523, 526, 158 N.E.2d 830, 186 N.Y.S.2d 250 (1959). When “assessing the facial sufficiency of a misdemeanor complaint, the court is not required to ignore common sense or the significance of the conduct alleged.” People v. Gonzalez, 184 Misc.2d 262, 708 N.Y.S.2d 564 (App. Term, 1st Dep’t 2000). It logically follows that inferences based upon ordinary life experiences may be used to sustain the sufficiency of an accusatory instrument. As reasonable cause should be equated to probable cause, it suffices to say that the requirement of Criminal Procedure Law §§ 100.15 and 100.40 requires a much lower standard than is necessary for criminal conviction as “the prima facie case requirement is not the same as the burden of proof beyond a reasonable doubt required at trial.” People v. Henderson, 92 N.Y.2d 677, 708 N.E.2d 165, 685 N.Y.S.2d 409 (1999).

In fact, “in assessing the facial sufficiency of an accusatory instrument, the court must view the facts in the light most favorable to the People.” People v. T.V., 2003 NY Slip Op 51050U (Crim. Ct. N.Y. Cty, 2003); see also People v. Garcia, 23 Misc. 3d 1137A, 889 N.Y.S.2d 506 (Crim. Ct. N.Y. Cty. 2009); People v. Livio, 187 Misc.2d 302, 725 N.Y.S.2d 785 (Dist. Ct. Nassau Cty. 2000). “So long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading.” People v. Casey, 5 N.Y.2d 354, 717 N.Y.S.2d 88, 740 N.E.2d 233 (2000); see also People v. Konieczny, 2 N.Y.3d 569, 813 N.E.2d 626, 780 N.Y.S.2d 546 (2004). “The degree of exactitude [necessary for the complaint] may well differ with the circumstances.” People v. McGuire, 5 N.Y.2d 523, 158 N.E.2d 830, 186 N.Y.S.2d 250 (1959).

Once the accusatory instrument is drafted, the complainant (officer or civilian) will sign and verify it. After this occurred, it will be filed in the criminal court clerk’s office along with other paperwork, such as certain basic police department paperwork and the RAP sheet. The clerk will do their own processing and docket the case. At this point, it will be assigned a docket number, which includes the year, the jurisdiction and the case number. For instance, a case in Staten Island will be docketed as ‘CR-001234-21RI” and a case in Queens will be docketed as “CR-012345-21QN’. After the case is processed and docketed, the clerk will bring the file to the courtroom so the case can be called. The clerk will provide a copy of certain paperwork to the defense attorney who is assigned to the case or retained by the defendant.

And then, the defendant is set to be arraigned.

The arraignment—As noted in N.Y. Criminal Procedure Law § 1.20 (9), an arraignment “means the occasion upon which a defendant against whom an accusatory instrument has been filed appears before the court in which the criminal action is pending for the purpose of having such court acquire and exercise control over his person with respect to such accusatory instrument and of setting the course of further proceedings in the action.” In other words, the arraignment is the first court appearance in a criminal proceeding. As noted, this should be held within twenty four hours of the arrest, subject to the reasons that it can be extended above. If a person was issued a DAT, the arraignment will be on the return date that the police officer gave to the defendant, which will usually be four weeks after the arrest. For the majority of cases that begin with charges brought by an officer, the arraignment will occur in a local criminal court. If the case is ultimately indicted by a Grand Jury, the defendant will be arraigned a second time, this time in Supreme Court. This is known as the ‘arraignment on the indictment’, but is commonly just regarded as an arraignment. In the small amount of cases that are commenced by a Grand Jury indictment, there will only be one arraignment, which will be in Supreme Court. This means that if the defendant is initially arraigned in Supreme Court, they are not arraigned in Criminal Court.

What happens at the arraignment?—N.Y. Criminal Procedure Law § 170.10 codifies the New York rules for arraignments in local criminal court. At an arraignment, a defendant will personally appear before a judge (unless the People and Court consent to an arraignment in abstentia or an applicable exception applies, but these circumstances are few and far between).

At an arraignment, the defendant becomes informed of the charges and is provided with a copy of the aforementioned accusatory instrument.

Although the defendant technically has the right to have the charges read to them in open court, this right is always waived. Practically speaking, if any attorney did not waive this right, they will frustrate the Court and court staff. In this situation, we would wish them luck ever getting their cases called in a timely fashion ever again.

The defendant obtains the right to an attorney at this point (if they have already retained an attorney, then they need not have one assigned). In some counties, usually upstate counties, defendants are sometimes arraigned without a lawyer. This does not happen in New York City, as defendants will automatically be assigned a public defender or a private attorney paid via the County Law to represent them at arraignment, even if they can afford the services of a private attorney. If there is a situation in which an individual is arraigned without an attorney (as mentioned occurs upstate), the matter will be adjourned for the defendant to obtain an attorney.

Does age matter?—Yes. If the defendant is under eighteen and charged with a felony, the case will begin in a Youth Part. From there, you have to determine if it is a “non-violent” felony or a “violent felony”. A defendant charged with a non-violent Penal Law felony will have their case removed to Family Court unless within thirty days, extraordinary circumstances are shown which justify the case remaining in the Youth Part. Felonies covered by the Vehicle and Traffic Law will not be handled in Family Court. If the defendant is charged with a violent felony, then the determination as to whether the case will be handled in Family Court or the Youth Part will be made. If extraordinary circumstances are shown like in the case of a non-violent felony, the case will be handled in the criminal courts. Note that if the crime involves i) significant physical injury to another, ii) the display of a weapon, or iii) a sex offense, it will only be handled in Family Court with the consent of the District Attorney. Also, Class A non-drug felonies will not be handled in Family Court. If the defendant is under eighteen and charged with a misdemeanor, the case will be handled in Family Court, regardless of the level of the crime. If there is an adult co-defendant, that adult will be charged in a separate accusatory instrument even if they committed the same crime. The adult will brought to criminal or supreme court while the adolescent or juvenile offender will be brought to the Youth Part.

Certain notices will be served upon the defense and filed with the Court. This means that the prosecution will file with the Court and serve upon the defense notice to the defense pertaining to certain evidence that the prosecution will seek to introduce at trial, as well as notices pertaining to defenses, and family relationships. The most common notices that are filed and served at arraignments are the following:

N.Y. Criminal Procedure Law § 710.30 (1)(a) notice, also known as ‘statement notice.’ If the defendant has made a statement to a law enforcement officer, the prosecution must provide notice of this statement pursuant to this statute within fifteen days of the defendant’s arraignment. If this notice is not served (or served correctly), the prosecution will be precluded from using this statement at trial, subject to specific exemptions that the prosecution should not rely on.

N.Y. Criminal Procedure Law § 710.30 (1)(b) notice, also known as ‘identification notice.’ If the defendant has been identified in a police arranged identification procedure that is considered admissible at trial, the prosecution must provide notice of this identification procedure pursuant to this statute within fifteen days of the defendant’s arraignment. If this notice is not served (or served correctly), the prosecution will be precluded from using this identification at trial, subject to specific exemptions that the prosecution should not rely on. This means that the witness who identified the defendant in a lineup, showup, etc., will not be allowed to testify about this, which could be devastating to the prosecution’s case.

Notice of a pre-trial identification does not have to be provided if the parties are well known, as in this situation, there is no issue pertaining to the suggestiveness of the identification procedure. Additionally, the New York State Court of Appeals has determined that notice does not have to be served if the defendant was identified in a photo array, as such identification procedure is not admissible at trial. (See People v. Grajales, 8 NY3d 861, 864 N.E.2d 596, 832 N.Y.S.2d 466 (2007)). However, the better practice is to serve notice of such identification procedure, to afford the defendant the opportunity to litigate the suggestiveness of the procedure.

Also note that the purpose of both the statement and identification notice are to give the defendant an opportunity to make motions to suppress the statements and identification so there are no surprises at trial.

N.Y. Criminal Procedure Law § 250.20 notice, also known as ‘alibi notice’. This is a demand by the prosecution upon the defense to disclose if the defendant will use an alibi defense. Pursuant to this statute, this notice must be served within twenty days of arraignment, but in practice, is always served regardless of the nature of the charge. Upon receipt of this notice, the defendant must provide the prosecution with specific information about the proposed alibi witness within eight days. Thus, the prosecution must be given the opportunity to investigate any alibi claim. Failure to comply with this statute may result in the defense not being able to pursue this defense but the time limits may be extended by a court if good cause is shown.

N.Y. Criminal Procedure Law § 450.10 notice. This notice is served upon the defense to make the defendant aware that any property that was seized and vouchered by the police that belongs to another (usually the victim) will be returned to the true owner. This statute can be very confusing, but the period for release is usually forty eight hours or two weeks, depending on the nature of the property. The reason for this statute is to afford the defendant the right to inspect the property, but not cause the true owner to be ‘re-victimized’. For example, if a defendant robs another and steals their chain, the chain should be vouchered by the police if it is recovered from the defendant. As the chain is evidence and the case may last for a long time, the victim should not suffer loss of the property for such a protracted period of time. Of course, this is subject to the prosecution’s consent as the prosecution can always refuse to release the property if such action will weaken the case.

N.Y. Criminal Procedure Law § 190.50 notice, also known as ‘Grand Jury notice’. This notice is served and filed when a defendant is charged by way of a felony complaint. This is notice that the prosecution intends to present the matter to the Grand Jury. As we will learn, every defendant charged with a felony in a local criminal court has a right to testify in the Grand Jury. This notice informs the defendant when the case will be presented. If the defendant wishes to testify, s/he will serve similar notice pursuant to this statute, commonly referred to as ‘Cross Grand Jury notice’. This notice must be in writing. If a defendant is charged with a misdemeanor but the prosecution intends to present the case to a Grand Jury, the prosecution will serve this Grand Jury notice pursuant to N.Y. Criminal Procedure Law § 170.20.

N.Y. Criminal Procedure Law § 170.10 (8)(a) notice-this is served when the defendant is charged with Harassment in the Second Degree and such offense has been committed against a member of the defendant’s family or household. The purpose of this notice is to keep certain types of disposition unsealed (in other contexts, certain resolutions of the case may result in the record becoming sealed).

N.Y. Criminal Procedure Law § 370.15 notice-this is another notice served in domestic violence cases. This is to be served for specific types of offenses involving special types of domestic relationships, both identified by federal law. The purpose of this notice is to be in accordance with certain federal firearm laws, which prevent certain offenders from lawfully possessing firearms.

Note that there are other types of notices, but these above are the most common.

The defendant will enter a plea. This will either be guilty or not guilty. A plea of not guilty “constitutes a denial of every allegation” in the accusatory instrument” N.Y. Criminal Procedure Law § 220.40. If the defendant is charged with a misdemeanor or violation, the defendant can plead to the charges over the prosecutor’s objection. There is one exception, that is if the prosecution serves notice pursuant to N.Y. Criminal Procedure Law § 170.20 that the matter will be prosecuted as a felony and presented to a Grand Jury. By serving this notice, the prosecution is divesting the local criminal court of jurisdiction. Along the same lines, if the defendant is charged with a felony, the defendant cannot plead guilty to any offense unless the prosecution allows this (which will be discussed when we talk about SCI’s).

If the defendant is charged with a misdemeanor by way of an information, they can plead guilty as such instrument (as noted above) serves as the basis to begin and continue the prosecution of the case. If the accusatory instrument is not an information, but rather a complaint based upon hearsay, the defendant must waive ‘prosecution by information’ if they wish to plead guilty. This is because the defendant has the right to be prosecuted based upon non-hearsay statements.

What about bail? Doesn’t the issue of bail come up at the arraignment?—Yes, it does. The issue of whether the defendant will be released, remanded or if bail will be set will be determined at the arraignment. What will happen is that the prosecution will either ask for a certain amount of bail to be set or be denied bail (be remanded), if permitted by law, or recommend that the defendant be released either on their own recognizance or with non-monetary conditions imposed. Release could be without conditions, or could be pursuant to a supervised release program set up within a jurisdiction.

Note that there is no more cash bail in New York. N.Y. Criminal Procedure Law § 520.30 (1)(a) states that unless the defendant is charged with a crime in which bail is permitted by law (see below where qualifying offenses are listed), the defendant will be released. If the court requires assurances that the defendant will return to court, the defendant will still be released, but with non-monetary conditions. If the court does need to impose such non-monetary conditions, the court will choose the least restrictive conditions that will ensure the defendant’s return to court. N.Y. Criminal Procedure Law § 520.30 (2) permits a local court to set bail or order recognizance or release under non-monetary conditions where the defendant is charged with a felony where bail is permitted to be set, with a few extra rules:

-a city, town or village court cannot set bail or release a defendant if they are charge with a Class a felony or has two felony convictions;

-the prosecutor has either had an opportunity to be heard, has failed to appear at the proceeding, or has waived their right to do so;

-the court and defense have been provided with a RAP sheet unless the prosecutor consents to not require this or there is an emergency.

When a person is released on their own recognizance, this means that “[A] court releases a principal on the principal’s own recognizance when, having acquired control over the principal’s person, it permits the principal to be at liberty during the pendency of the criminal action or proceeding involved upon condition that the principal will appear thereat whenever the principal’s attendance may be required and will at all times render the principal amenable to the orders and processes of the court.” N.Y. Criminal Procedure Law § 500.10 (2).

If the defendant is granted supervised release, they have to regularly check in with the agency that is monitoring them, to assure that they are complying with the terms of their supervised release. Those who are given supervised release may be assigned a social worker or counselor who is supposed to make sure the defendant makes their court appearances, abide by all conditions set by the court, and obtain any necessary services that may assist the defendant. This is usually accomplished by the defendant calling a representative at a given time a certain number of times per week. The monitoring agency will provide the court and the parties with a report about the defendant’s compliance with their supervised release. Note that even if a defendant commits another crime while on supervised release, they may still be eligible for supervised release in regards to their new case.

The court, after hearing from the prosecution and the defense attorney can “fix bail” in cases where bail is permitted by law. See N.Y. Criminal Procedure Law § 530.20 (1)(a). N.Y. Criminal Procedure Law § 500.10 (3) defines fixing bail “when, having acquired control over the person of a principal, it designates a sum of money and stipulates that, if bail in such amount is posted on behalf of the principal and approved, it will permit him to be at liberty during the pendency of the criminal action or proceeding involved.” N.Y. Criminal Procedure Law § 500.10 (3-a) defines “Release under non-monetary conditions” when “having acquired control over a person”, the court “authorizes the person to be at liberty during the pendency of the criminal action or proceeding involved under conditions ordered by the court, which shall be the least restrictive conditions that will reasonably assure the principal’s return to court. Such conditions may include, among other conditions reasonable under the circumstances: that the principal be in contact with a pretrial services agency serving principals in that county; that the principal abide by reasonable, specified restrictions on travel that are reasonably related to an actual risk of flight from the jurisdiction; that the principal refrain from possessing a firearm, destructive device or other dangerous weapon; that, when it is shown pursuant to subdivision four of section 510.45 of this title that no other realistic monetary condition or set of non-monetary conditions will suffice to reasonably assure the person’s return to court, the person be placed in reasonable pretrial supervision with a pretrial services agency serving principals in that county; that, when it is shown pursuant to paragraph (a) of subdivision four of section 510.40 of this title that no other realistic non-monetary condition or set of non-monetary conditions will suffice to reasonably assure the principal’s return to court, the principal’s location be monitored with an approved electronic monitoring device, in accordance with such subdivision four of section 510.40 of this title. A principal shall not be required to pay for any part of the cost of release on non-monetary conditions.” A defendant may also qualify for electronic monitoring pursuant to N.Y. Criminal Procedure Law § 500.10 (21).

A defendant can also be “remanded,” which pretty much means that no amount of bail can get the defendant released. N.Y. Criminal Procedure Law § 500.10 (4) defines a defendant’s commitment “to the custody of the sheriff when, having acquired control over the principal’s person, it orders that he be confined in the custody of the sheriff during the pendency of the criminal action or proceeding involved.”

In New York City, the ‘sheriff’ does not take custody of the defendant. Instead, the New York City Department of Correction will take custody of the defendant. Generally, this means that the defendant will be housed at Rikers Island.

Note that if bail is set for a defendant who is a juvenile or adolescent, or if this person is denied bail, the sheriff (or local correctional agency) will not take custody of this person. Instead, pursuant to N.Y. Criminal Procedure Law § 510.15, such juvenile will “be taken to and lodged in a place certified by the office of children and family services as a juvenile detention facility for the reception of children.” The same rules pursuant to N.Y. Criminal Procedure Law § 180.80 applies and usually by the 180.80 date, the District Attorney will know if they will seek to keep the case or transfer it to the Corporation Counsel to be prosecuted by them,

For what offenses can bail be set or denied?—N.Y. Criminal Procedure Law § 510.10 (1) states that “except where another type of securing order is shown to be required by law, the court shall release the principal pending trial on the principal’s own recognizance, unless it is demonstrated and the court makes an individualized determination that the principal poses a risk of flight to avoid prosecution.” If a defendant is determined to be a flight risk, “the court must select the least restrictive alternative and condition or conditions that will reasonably assure the principal’s return to court. The court shall explain its choice of release, release with conditions, bail or remand on the record or in writing.”

What this means is that the defendant has to be charged with what is classified as a “qualifying offense”, which is defined in N.Y. Criminal Procedure Law §§ 510.10 (4) and 530.20 (1)(b), as

any violent felony other than burglary of a dwelling (without any aggravating factors) and robbery aided by another person (without any aggravating factors);
- witness intimidation or witness tampering;
any class A felony other than a drug offense (with the exception of operating as a major trafficker pursuant to section 220.77);
felony sex offenses, those involving incest, or misdemeanor sex offenses charged pursuant to Penal Law Article 130;
- conspiracy to commit the Class A felony of homicide;
money laundering in support of terrorism in the first or second degrees, or crime of terrorism;
criminal contempt in the first and second degrees and aggravated criminal contempt, where the protected party is a family member;
facilitating a sexual performance by a child with a controlled substance or alcohol, use of a child in a sexual or luring a child.

So what does the Court, the prosecution and the defense take into account when asking for, recommending against, or setting the bail?—The short answer is a number of things. The technical answer is that the criteria that are to be considered can be found in N.Y. Criminal Procedure Law § 510.30 (1), which states “[w]ith respect to any principal, the court in all cases, unless otherwise provided by law, must impose the least restrictive kind and degree of control or restriction that is necessary to secure the principal’s return to court when required. In determining that matter, the court must, on the basis of available information, consider and take into account information about the principal that is relevant to the principal’s return to court, including:

(a) The principal’s activities and history;

(b) If the principal is a defendant, the charges facing the principal;

(d) The principal’s record of previous adjudication as a juvenile delinquent…or a youthful offender, if any;

(e) The principal’s previous record with respect to flight to avoid criminal prosecution;

(f) If monetary bail is authorized, according to the restrictions set forth in this title, the principal’s individual financial circumstances, and, in cases where bail is authorized, the principal’s ability to post bail without posing undue hardship, as well as his or her ability to obtain a secured, unsecured, or partially secured bond;

(g) Where the principal is charged with a crime or crimes against a member or members of the same family or household…the following factors:

(i) any violation by the principal of an order of protection issued by any court for the protection of a member or members of the same family

or household… whether or not such order of protection is currently in effect; and

(ii) the principal’s history of use or possession of a firearm; and

(h) If the principal is a defendant, in the case of an application for a securing order pending appeal, the merit or lack of merit of the appeal.

N.Y. Criminal Procedure Law § 510.30 (3) state that “[w]hen bail or recognizance is ordered, the court shall inform the principal, if the principal is a defendant charged with the commission of a felony, that the release is conditional and that the court may revoke the order of release and may be authorized to commit the principal to the custody of the sheriff in accordance with the provisions of subdivision two of section 530.60 of this chapter if the principal commits a subsequent felony while at liberty upon such order. Also, pursuant to N.Y. Criminal Procedure Law § 530.60 (2), if a defendant with a pending case commits another crime, bail can be set if there is clear and convincing evidence that the defendant persistently and willfully failed to appear after notice of scheduled appearances in the case before the court or committed a qualifying offense.

Arguing and setting bail is not an exact science. Instead, it is something that one will get the hang of with time and experience. Every case must be examined on an individual basis and bail should be commensurate with the defendant’s record, charge they are facing, etc.

The purpose of bail is not to provide for punishment of the defendant for their offense or their criminal record. Remember that the defendant is still presumed innocent at this point. The purpose of bail is also not to afford preventative detention to prevent the defendant from committing other crimes. In other words, the risk of danger to the community is not a factor to be considered in regards to bail. Instead, the purpose of bail is to ensure the defendant’s return to court. Note that the Eighth Amendment of the United States Constitution mandates that a defendant has the right not to have unreasonable bail set. Although this provides for reasonable bail, this does not mean that the defendant has the right to have bail set in the first place.

The defendant can post bail or someone can do it for them. Someone other than the defendant who posts bail is known as a ‘surety’. A bail bond is “a written undertaking, executed by one or more obligors, that the principal designated in such instrument will, while at liberty as a result of an order fixing bail and of the posting of the bail bond in satisfaction thereof, appear in a designated criminal action or proceeding when his attendance is required and otherwise render himself amenable to the orders and processes of the court, and that in the event that he fails to do so the obligor or obligors will pay to the people of the state of New York a specified sum of money, in the amount designated in the order fixing bail.”

Here are the types of bonds defined in N.Y. Criminal Procedure Law § 500.10:

If the defendant puts up the bail via bond, it is known as an ‘appearance bond’;
If someone other than the defendant posts the bail via a bond (or helps the defendant post bail), this is known as a ‘surety bond’;
If someone uses their property to post the bond, it is known as a ‘secured bail bond’;
If ten percent of the total amount of bail is put up for the bond, it is known as a ‘partially secured bail bond’;
A bond that is not secured by a deposit or any lien is an ‘unsecured bail bond’;
If a bail bondsman is used to post the bail via bond, it is known as an ‘insurance company bail bond’.

The bail bondsman—With ‘insurance company bail bond’, the bondsman should check the defendant’s or the surety’s credit to ensure that they will receive the amount they posted back, as they are putting up their own funds for the defendant. If after the bail is paid, the bondsman has concerns about the defendant (either a concern based upon the defendant’s potential flight or that the funds will not be returned, they have the right to return the defendant to custody so their funds can be secured. Believe it or not, this does not require a judge’s order).

The bail source hearing—If a court orders a ‘bail source hearing’, what this means is that the defendant will be required to provide proof as to the source of the bail. Bail must come from a legitimate source, so an inquiry can be made to demonstrate that it did come from such a source, and not from the proceeds of criminal activity, ill-gotten gains, etc.

Other conditions of release or bail which may occur at arraignment—At an arraignment, the court has the power to do the following:

Issue an order of protection commanding the defendant to refrain from certain behavior. An order of protection can be a full order, which is a court order commanding the defendant to refrain from any and all contact with the protected party. An order of protection can be a limited order, which will permit the defendant to have contact with the protected party, but will command the defendant to refrain from any type of violent or threatening behavior towards such party.

The order can be a full order, but subject to incidental contact. For example, if a victim and defendant live near each other or go to the same school, the order may permit the defendant to go about their regular business but not initiate or take part in contact with the protected party.

If there is already an order in existence from another court, such as Family or Supreme Court in a matrimonial context, the criminal court order can be made subject to such order, so any new order from the criminal court does not conflict with special conditions of the order of another court which may pertain to issues that are not to be resolved in criminal court. This could include conditions pertaining to custody and visitation of children in a family context, etc.

An order of protection is to prevent contact by the defendant with another person. It cannot be used to have the defendant refrain from a specific location, but can bar the defendant from the home, school, place of employment, etc. of the victim. The difference is that with the latter, the order is protecting the witness, not a location. Despite this, an order can include animals.

Order a curfew. This means that the defendant must be home by a specified time. If the defendant is not where they have been ordered to be, they are violating a condition of their bail and the court may reconsider the issue of bail.
Order that the defendant refrain from a particular location. Although an order of protection cannot be for specific locations, the court may order the defendant, as a condition of bail or release, to refrain from a building, store, or other location. For instance, if the defendant was arrested for shoplifting at Macy’s, the court could order the defendant to stay away from all Macy’s stores within the court’s jurisdiction.
Suspend the defendant’s driver’s license. This usually occurs in a DWI context, can be for any offense pursuant to Vehicle and Traffic Law § 510. When a person is arraigned for a DWI offense, there are specific statutes that mandate suspension pending prosecution if the defendant had a blood alcohol level .08 or higher, or refused to take such a test. However, sometimes this evidence does not exist at the arraignment. In such a situation, the Court can suspend the defendant’s license on other grounds. Further, if the defendant committed another offense, such as reckless driving or left the scene of a collision, the court can suspend the defendant’s license during the pendency of the case pursuant to Vehicle and Traffic Law § 510.
Order that the defendant be screened for alcohol or drugs.
If the defendant is on probation or parole and is released on their own recognizance, the court can order that the defendant report to their probation or parole officer.

Okay-bail has been set or the defendant has been remanded, what happens now?—If bail has been set or denied, the defendant cannot remain in custody in perpetuity. There is a deep concern that a defendant should not remain in custody on hearsay allegations for longer than a specified period of time. If the allegations cannot be substantiated by an individual with firsthand information (subject to several recognized exceptions) by the end of a certain time period, the defendant must be released. This does not mean that the case is dismissed—it only deals with the defendant’s incarceration status. The time periods and what must occur within these time periods depend on what type of crime the defendant is charged with.

If the crime charged is a misdemeanor, New York Criminal Procedure Law § 170.70 states that:

Upon application of a defendant against whom a misdemeanor complaint is pending in a local criminal court, and who, either at the time of his arraignment thereon or subsequent thereto, has been committed to the custody of the sheriff pending disposition of the action, and who has been confined in such custody for a period of more than five days, not including Sunday, without any information having been filed in replacement of such misdemeanor complaint, the criminal court must release the defendant on his own recognizance unless:

The defendant has waived prosecution by information and consented to be prosecuted upon the misdemeanor complaint, pursuant to subdivision three of section 170.65; or

The court is satisfied that there is good cause why such order of release should not be issued. Such good cause must consist of some compelling fact or circumstance which precluded replacement of the misdemeanor complaint by an information or a prosecutor’s information within the prescribed period.

What does this mean?—What this means is that if the defendant is charged by way of a complaint rather than an information (remember, the difference is hearsay, as indicated above), unless there is a compelling reason to keep the defendant in custody, the complaint must be converted into an information to cure the hearsay defect within the five or six day period. If the prosecution cannot convert the accusatory instrument within this time, the defendant will be released. As the time begins to run from the defendant’s arraignment, the prosecution always has until the close of business on the fifth or sixth date to accomplish this. Although there is an exception for good cause, this rarely ever exists in a misdemeanor case.

If the crime charged is a felony, New York Criminal Procedure Law § 180.80 states that:

Upon application of a defendant against whom a felony complaint has been filed with a local criminal court, and who, since the time of his arrest or subsequent thereto, has been held in custody pending disposition of such felony complaint, and who has been confined in such custody for a period of more than one hundred twenty hours or, in the event that a Saturday, Sunday or legal holiday occurs during such custody, one hundred forty-four hours, without either a disposition of the felony complaint or commencement of a hearing thereon, the local criminal court must release him on his own recognizance unless:

The failure to dispose of the felony complaint or to commence a hearing thereon during such period of confinement was due to the defendant’s request, action or condition, or occurred with his consent; or

Prior to the application:

(a) The district attorney files with the court a written certification that an indictment has been voted; or

(b) An indictment or a direction to file a prosecutor’s information charging an offense based upon conduct alleged in the felony complaint was filed by a grand jury; or

The court is satisfied that the people have shown good cause why such order of release should not be issued. Such good cause must consist of some compelling fact or circumstance which precluded disposition of the felony complaint within the prescribed period or rendered such action against the interest of justice.

What does this mean?—What this means is that if the defendant is charged with a felony, one of four things has to happen prior to the expiration of the 120 or 144 hours. The four things are: 1) the case must have been presented to the Grand Jury, who have voted to indict the defendant; 2) a preliminary hearing must be held before a judge; 3) the defendant waives their right to release pursuant to this statute or 4) there is good cause to justify an extension of the time.

It was mentioned in the prior paragraph that there must be an indictment. Many courts have interpreted this statute to afford a short extension of the 180.80 time and the prosecution’s case has been fully presented to the Grand Jury but the Grand Jury has not voted an indictment due to either a) the defendant’s desire to testify b) the defendant’s desire to have the Grand Jury hear from a witness or c) the Grand Jury’s inability to vote based upon their request to hear from a specific witness or obtain additional evidence. [Note that this third reason rarely occurs]

There are a lot of differences between this statute and the 170.70 statute. First (as can be seen) more than just converting an accusatory instrument into an information must be done. Second, the 180.80 time begins to run from the moment that the defendant is arrested and it expires exactly five or six days later. This means that the prosecution must be fully aware of the time of arrest. Third, unlike misdemeanor cases, there may be real life situations when the time could be extended for good cause. An example is in serious assault cases where the victim is the only witness, and is incapacitated as a result of the defendant’s actions. The purpose of this is not to allow the defendant to benefit from their violent offense.

If a defendant is released pursuant to New York Criminal Procedure Law §§ 170.70 or 180.80, their case will be adjourned for a future date once they are released.

Is there any time that bail can be changed?—Bail is always subject to the discretion of the judge. N.Y. Criminal Procedure Law §§ 510.10 and 530.20 (1)(d) states that “a defendant may, at any time, request that the court set bail in a nominal amount requested by the defendant.”

However, there is a principle that bail should not be changed unless there is a ‘change in circumstances’. If during the pendency of the case, there is a change in circumstances, the issue of bail may be revisited, which means that a defendant who is at liberty or who already posted bail may now have bail set or increased. Changes in circumstances could include a defendant with a pending case getting re-arrested for a new offense, or if they do not appear in court thus causing a warrant to be issued.

What constitutes a change in circumstances that would warrant a change (upward or downward) in bail? In People v. Mohammed, 171 Misc. 2d 130, 653 N.Y.S.2d 492 (Sup. Ct. Kings Cty. 1996), the Court stated:

A securing order of bail is subject to change “‘depending upon such circumstances as come into being while the defendant is awaiting trial or during trial. Justice often supports the reduction [or revocation] of bail as [warranted] by new circumstances … The alteration of [the] original order upon a showing of facts supporting the discretion of the second ordering judge is a proper and required use of the decisional process’”. (People ex rel. Thompson v Warden, 214 NYS2d 171, 175 (Sup Ct, Kings County 1961). The same principles applicable to a bail determination in the first instance apply to its discretionary alteration. If the moving party can show good cause, a Judge may alter a bail order in accordance with CPL 510.30.

If the same judge or a judge of the same type of court is asked to reconsider bail, they are to consider if there is truly a change in circumstances. Otherwise, the same court or a court of coordinate jurisdiction would in effect be handling an appeal of the original court’s determination.

Note that a party can appeal to a higher court to reargue bail (this should only occur in limited circumstances). In this situation, it is not a court of coordinate jurisdiction hearing the matter, but a higher court which will determine if the lower court abused its discretion in fixing the bail.

How long does the case go on for?

A defendant has a right to a speedy trial—The Sixth Amendment of the United States Constitution guarantees this. If this right is violated, then the matter will be dismissed. But your definition of ‘speedy’ may be different than what must be demonstrated before the case gets dismissed. A case may last for several years and not even be close to violating a defendant’s constitutional right to a speedy trial.

To determine if the defendant’s Sixth Amendment right to a speedy trial has been violated, in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), the Supreme Court stated that these factors must be evaluated:

the length of delay;
the reason for the delay;
whether the defendant’s asserted their right and when they asserted this right;
the prejudice to the defendant.

Practically speaking, this can be difficult to show and requires the case to be quite old. If a lot of the adjournments have been due to the defendant or their attorney, or if the defendant is not incarcerated during the pendency of the case, these factors will be counted against the defendant.

Note there is NO New York constitutional right to a speedy trial. However, the principles of the Sixth Amendment and the factors from the Barker case will be applicable, as will N.Y. Criminal Procedure Law §§ 30.20 and 30.30. N.Y. Criminal Procedure Law § 30.20 states that “[a]fter a criminal action is commenced, the defendant is entitled to a speedy trial. So even though there is no New York Constitutional right, a defendant has a statutory right to a speedy trial. Priority is given to criminal trials over civil trials, and priority is likewise given to incarcerated defendants as compared to those who are at liberty.

Does this mean that cases can go on for years and years and years?—No, because in New York, there is a requirement pursuant to N.Y. Criminal Procedure Law § 30.30 that the prosecution must be ‘ready for trial’ within a specific period of time. If the prosecution is not ‘ready for trial’ within the applicable time period, the matter will be dismissed. The periods of time in which the prosecution must be ‘ready for trial’ are:

If the charge is homicide-there is no such time limit;
If the defendant is charged with a felony (other than homicide), the prosecution must be ready for trial within six months;
If the defendant is charged with a Class ‘A’ misdemeanor, the prosecution must be ready for trial within ninety days;
If the defendant is charged with a Class ‘B’ misdemeanor, the prosecution must be ready for trial within sixty days;
If the only charge is a violation(s), the prosecution must be ready for trial within thirty days.

These time periods begin to run from the day the defendant is arraigned. And none of these time periods in N.Y. Criminal Procedure Law § 30.30 govern when the trial must occur. This is not a ‘speedy trial’ statute—it is a ‘ready for trial statute’. Thus, these time limits mandate that the prosecution must declare their readiness for trial within this time period. This can be done in open court or by way of a certificate of trial readiness that is served upon the defense and filed with the court. See People v. Kendzia, 64 N.Y.2d 331, 486 N.Y.S.2d 888, 476 N.E.2d 287 (1985). Pursuant to N.Y. Criminal Procedure Law § 30.30 (5), when the prosecution states that they are ready for trial, the court will make an inquiry into their actual readiness. A prerequisite to stating ready is providing the court and defense with a certificate that all discovery has been turned over (as described in the part of this outline dealing with discovery). If the case involves a misdemeanor, the prosecutor also has to certified that all counts in the accusatory instrument are facially and legally sufficient. N.Y. Criminal Procedure Law § 30.30 (5-a).

This is also not a straight time period. ‘Ninety days’ in this statute does not mean ninety calendar days from the arraignment. In fact, a case can last for years and there still may not be any violation of the readiness rule. Think of football and basketball where there are many reasons to stop the clock (time-outs, fouls, out of bounds, two minute warnings, halftime, etc.). What this means is that there is a lot of time during the pendency of the case that will not be counted towards the ‘30.30’ time [a/k/a ‘excludable’ time]. Here is what Criminal Procedure Law § 30.30 (4) states are excludable:

(a) a reasonable period of delay resulting from other proceedings concerning the defendant, including but not limited to: proceedings for the determination of competency and the period during which defendant is incompetent to stand trial; demand to produce; request for a bill of particulars; pre-trial motions; appeals; trial of other charges; and the period during which such matters are under consideration by the court; or

(b) the period of delay resulting from a continuance granted by the court at the request of, or with the consent of, the defendant or his counsel …

(c) (i) the period of delay resulting from the absence or unavailability of the defendant. A defendant must be considered absent whenever his location is unknown and he is attempting to avoid apprehension or prosecution, or his location cannot be determined by due diligence. A defendant must be considered unavailable whenever his location is known but his presence for trial cannot be obtained by due diligence; or

(ii) where the defendant has either escaped from custody or has failed to appear when required after having previously been released on bail or on his own recognizance, and provided the defendant is not in custody on another matter, the period extending from the day the court issues a bench warrant pursuant … to the day the defendant subsequently appears in the court pursuant to a bench warrant or voluntarily or otherwise; or

(d) a reasonable period of delay when the defendant is joined for trial with a co-defendant as to whom the time for trial pursuant to this section has not run and good cause is not shown for granting a severance; or

(e) the period of delay resulting from detention of the defendant in another jurisdiction provided the district attorney is aware of such detention and has been diligent and has made reasonable efforts to obtain the presence of the defendant for trial; or

(f) the period during which the defendant is without counsel through no fault of the court; except when the defendant is proceeding as his own attorney with the permission of the court; or

(g) other periods of delay occasioned by exceptional circumstances including but not limited to, the period of delay resulting from a continuance granted at the request of a district attorney if (i) the continuance is granted because of the unavailability of evidence material to the people’s case, when the district attorney has exercised due diligence to obtain such evidence and there are reasonable grounds to believe that such evidence will become available in a reasonable period; or (ii) the continuance is granted to allow the district attorney additional time to prepare the people’s case and additional time is justified by the exceptional circumstances of the case.

(h) the period during which an action has been adjourned in contemplation of dismissal pursuant to sections 170.55, 170.56 and 215.10 of this chapter.

(i) the period prior to the defendant’s actual appearance for arraignment in a situation in which the defendant has been directed to appear by the district attorney pursuant to subdivision three of section 120.20 or subdivision three of section 210.10.

(j) the period during which a family offense is before a family court until such time as an accusatory instrument or indictment is filed against the defendant alleging a crime constituting a family offense, as such term is defined in section 530.11 of this chapter.

With all of the time periods that are not chargeable to the prosecution pursuant to N.Y. Criminal Procedure Law § 30.30, resolution of a motion to dismiss can be dependent upon counting each and every time period between adjournments to determine if the time period should be chargeable or excludable.

If the case starts off as a felony and is then reduced to a misdemeanor, the prosecution does not get an additional ninety days. The prosecution will have either ninety days from the date that the charges were reduced or the balance of what is left of the original six month period. N.Y. Criminal Procedure Law § 30.30 (7)(c)-(f).

Note that if the defendant is being held only on the current charges, the prosecution must state that they are ready within a certain time period, otherwise the defendant will be released. N.Y. Criminal Procedure Law § 30.30 (2)(b) These time periods are:

▪ If the charge is homicide-there is no such time limit;

▪ If the defendant is charged with a felony (other than homicide), the prosecution must state they are ready for trial within ninety days;

▪ If the defendant is charged with a misdemeanor where the sentence is more than three months, the prosecution must state they are ready for trial within thirty days;

▪ If the defendant is charged with a Class ‘B’ misdemeanor, the prosecution must state they are ready for trial within fifteen sixty days;

▪ If the only charge is a violation(s), the prosecution must state they are ready for trial within five days.

All excludable periods of time as noted above apply to these time periods as well. If the defendant is being held for any other matter, then these time periods do not apply.

If a defendant moves pursuant to this statute and their motion is denied, they have a right to appeal, even if they plead guilty. N.Y. Criminal Procedure Law § 30.30 (6).