Understanding a
little about how the New York Criminal Justice System organizes
cases in the courts will help you understand the situation of a
person accused of a crime.
Frequently, one
of the very first questions an experienced criminal defense
lawyer will ask when contacted about a criminal case will be
aimed at learning the name of the courtroom where the case is
next to be heard. Because an experienced criminal defense lawyer
in New York should understand the significance of each of the
criminal courtrooms, it is possible for the lawyer to know a
fair amount of important aspects of a case just by knowing the
name of the courtroom where it is being heard.
This is true
because of two important facts in New York. Courtrooms are
divided not only into courtrooms where certain types of cases
are handled, but different courtrooms are designed to handle
different stages of criminal cases. Therefore, just by knowing
what courtroom your case is in, an experienced criminal defense
lawyer can know generally how serious the case is AND how far
the case has progressed in the system toward trial.
You too can be
let in on the secret, however, and it isn’t really that
mysterious. But in order to understand how the system really
works, you need to understand some basic concepts.
First, it is
important to understand the two types of crimes recognized by
New York State. New York recognizes two categories of crimes:
misdemeanors and felonies. Generally, misdemeanors
are considered to be less serious offenses and felonies are
considered to be more serious offenses. Examples of misdemeanors
in New York include shoplifting (petit larceny), possession of a
very small amount of cocaine, and driving while intoxicated
(first offense). Examples of felonies in New York include
robbery, burglary, sale of cocaine, and murder.
Being convicted
of a misdemeanor, while it is still a crime and gives you a
criminal record, generally carries fewer consequences than being
convicted of a felony. A felony conviction (aside from
substantial prison possible) results in the loss of certain
civil rights, like the right to vote and to possess a firearm.
Actually, the
legal official definitions of misdemeanor and felony in New York
are pretty simple. In New York, a misdemeanor is defined as a
crime for which the maximum punishment COULD be up to one year
in jail. (There are some misdemeanors in New York for which the
maximum punishment is 90 days, but the key is that if it can’t
be punished by more than one year, then it is a misdemeanor.)
A felony in New
York is defined as any crime for which one possible punishment
is more than one year in jail. In other words, if a jail
sentence of one year and one day or more is possible, then it is
a felony. That does NOT mean that if you are charged with a
felony or even if you are convicted of a felony that you MUST go
to prison for more than one year.
In dividing up
cases among the courts, it made sense to create one court for
handling the less serious (misdemeanor) cases and to create
another court for handling the more serious (felony) cases. By
dividing cases up in this way, more experienced staff (judges,
prosecutors, court personnel) could be diverted to handling only
the more serious cases and less experienced staff could learn
the “ropes” on less serious cases.
This division of cases between serious (felony) and not so
serious (misdemeanor) sounds like it would make things nice and
simple, and for the most part it does. But, as with everything
in life, there are a few complications.
One
complication and source of constant confusion is the names of
the courts. In New York City, the name of the Court that handles
misdemeanor cases is “Criminal Court”. Thinking about that
choice for a minute reveals one source of confusion. Generally,
people are under the impression that if you are charged with a
crime you will go to “Criminal Court”. This makes perfect sense
to everyone, except the people who designed the New York City
criminal justice system. Under our system, only misdemeanors are
heard in “Criminal Court.”
The Court that
handles felony accusations, the real serious crimes, has a
different name. And if you can’t figure out why they would limit
a place called “Criminal Court” only to misdemeanors, you
probably won’t be surprised to learn the confusing name of the
court they send felonies in New York.
In New York,
felony criminal accusations are heard in “Supreme Court”. That’s
right. Supreme Court. Most people assume that a court called
“Supreme Court” is going to be the highest court in the land
(like our Federal Supreme Court). Perhaps the use of the word
“Supreme” fools people. But in New York, felony accusations are
heard in “Supreme Court”, the LOWEST court for felony
accusations. (Just in case you are interested, if you get
convicted in the lowest court (Supreme Court) you can appeal to
“The Appellate Division” and if you lose that appeal, you have
the right to ask “The Court of Appeals” to review that
decision.)
Perhaps you
believe that the law has been intentionally made obscure and
difficult by lawyers in order to create reasons for people to
hire lawyers. If so, the names of the criminal courts of New
York City are certainly evidence in support of your theory.
In any event,
if you are charged with a felony in New York, then you will be
prosecuted and potentially taken to trial in Supreme Court. Even
though you are charged with a serious crime, you are NOT in
Criminal Court. You are in Supreme Court. Only if you are
charged with a less serious, misdemeanor will you find your way
into Criminal Court.
Got it?
Now that you
fully understand this concept, we are done with all the possible
confusion between Criminal Court and Supreme Court, right?
Well, not
exactly.
There are a
couple of situations that arise as a criminal case progresses
that require a little finessing in the system.
The first
situation arises right away in the process. How is the system
going to handle it when a person first is arrested? People tend
to get arrested at inconvenient times and especially in New York
City, lots of people tend to get arrested in general. In fact,
in New York City, people are pretty much getting arrested
non-stop 24 hours a day, seven days a week, 365 days a year.
With all these
people being arrested all the time, there is probably going to
be some sort of Court Appearance required for them pretty soon
after arrest right? Right. In theory, a person is supposed to be
brought before a judge for arraignment (first appearance) within
24 hours after arrest (or so says our highest Court, the Court
of Appeals).
Now if the
Courts are divided so that the more serious cases are handled in
Supreme Court and the less serious cases are handled in Criminal
Court, that means that people arrested for serious things will
have their arraignments before Supreme Court judges in Supreme
Court and people arrested for not so serious things will have
their arraignments before Criminal Court judges in Criminal
Court.
Well, not
exactly.
The Supreme
Court wants to deal with serious cases all right, but people get
arrested for serious cases at such inconvenient times, and the
volume of arrests is such that Supreme Court judges would need
to be sitting in arraignment courtrooms day and night seven days
a week 365 days a year.
Now, remember
how Supreme Court was where the more experienced, personnel
would be diverted so that our most serious cases would be sure
to be handled with the utmost care and expertise? How likely is
it going to be that the system that isolates the most
experienced judges to be Supreme Court judges is going to make
part of the duties of those highly experienced legal minds to
sit in night court until 1:00 AM and on weekends and on holidays
in order to conduct first appearances?
Doesn’t sound likely does it?
Well, then you
won’t be surprised to learn that the system carves out an
exception for arraignments. Supreme Court doesn’t do regular
arraignments on fresh arrests. Criminal Court is allowed to (or
made to depending on point of view) do every single one of those
night, weekend, and holiday (not to mention regular day)
arraignments.
Therefore, when
you visit arraignments in New York City, you will see all manner
of cases in front of the same judge in the same courtroom. The
person accused of murder will be arraigned after the person
accused of jumping the turnstile at the subway. Supreme Court
concedes authority of its serious cases to Criminal Court for
the purpose of arraignment.
Ok, Supreme
Court handles the serious cases, Criminal Court handles the not
so serious cases, and Supreme Court lets Criminal Court handle
all the arraignments. So that’s it then. After arraignment, all
the serious cases go directly to Supreme Court, right?
Well, not
exactly…
In order to
understand why this is, it is important to understand another
bit of procedure in criminal cases. You need to understand a bit
about the Grand Jury and Indictment.
Remember that
the Supreme Court is the big fancy serious Court. The Supreme
Court doesn’t handle just any old type of case. It has to be
serious. But truthfully, the Supreme Court is SO important that
we ask Supreme Court to handle only serious cases that have been
pre-approved as good enough for Supreme Court.
In fact, in our
system, we have this group of people selected at random to serve
for a certain time (called a term), who do nothing but decide
whether cases are good enough to be heard by judges in Supreme
Court. Like the bouncers outside exclusive clubs, they don’t let
everyone in who is lined up inside.
These people
taken together are called a Grand Jury. And when they decide
that a case is good enough for Supreme Court to deal with it,
they issue a document called an Indictment. An indictment is a
written permission slip that tells Supreme Court exactly what
accusations are good enough to be brought there. An indictment
is usually a very simple document that lists the name of the
accused and a list of names of the crimes (with very brief
general descriptions of the facts) that the Grand Jury has
determined to be good enough for Supreme Court.
Now the people
in the Grand Jury do not come to these conclusions on their own.
They are guided in their decision-making process by the District
Attorney’s Office, the agency that runs the Grand Jury. It is
the job of the District Attorney’s Office to present cases for
the consideration of the Grand Jurors and to instruct them on
the law enough so that they can make intelligent decisions about
whether cases are good enough for Supreme Court.
As a practical
matter, the burden to show that a case is “good enough” for
consideration by Supreme Court is extraordinarily, even
shockingly low. If the District Attorney’s Office can convince
the members of a Grand Jury that it is “possible” that the
accused committed a crime (usually a felony), then the burden
has been met and the case is legally “good enough” to be heard
by Supreme Court. It is therefore extraordinarily easy for the
District Attorney’s Office to get an Indictment from a Grand
Jury. It is usually fairly difficult for a Grand Juror to come
to the conclusion that it is “not possible” for the defendant to
have committed the crime.
While it may
seem a bit absurd to have this step in the process in which the
burden is almost altogether absent, the thinking was that it was
important to have some sort of check on the Government at the
initial stages of a prosecution. In theory, if the Government is
clearly prosecuting someone without a shred of credible
evidence, a Grand Jury would have the opportunity fairly early
on in the case to end it by refusing to indict. A refusal to
indict would mean generally that the case would be dismissed and
the defendant would be spared the misery of waiting a year or
longer in jail to have his day in court at a full blown trial.
Nevertheless,
despite the theoretical possibility that the Grand Jury has the
power to refuse to indict any given case, the practical reality
is that all Grand Juries indict just about everything that comes
to them. In many cases, with the legal burden so low, this is as
it should be.
But if there is
this intervening requirement that felony charges must be
“screened” by a Grand Jury, then there is the question of what
happens to the case in the system after arraignment but BEFORE
the Grand Jury indicts the case?
After all, this
Grand Jury thing is going to take time to set up. Witnesses need
to be gathered. The case must be organized even for some minimal
presentation for a Grand Jury. Now we know that Criminal Court
is allowed to do the arraignment, but where does the felony case
go AFTER arraignment but BEFORE indictment by a Grand Jury?
The answer is
that felonies are sent to special courtrooms in CRIMINAL COURT
that specialize in babysitting felonies until they are indicted.
In Queens, for example, most non-drug felonies are sent to
Courtroom AP6 before indictment. Drug felonies are sent to
Courtroom APN before indictment. Some sex offense cases and gang
related cases are also sent to APN before indictment as well. In
Manhattan, most non-drug felonies are sent to Part F while they
are pending indictment.
Every county in
New York City has its own version of this courtroom.
More and more these days, as well, new specialty courtrooms are
created to handle particular types of cases. In Queens, for
example, domestic violence felonies are sent to AP4 before they
are indicted. Inexperienced lawyers or lawyers unfamiliar with
this oddity might make the mistake of assuming that any case in
AP4 MUST be a misdemeanor. But that is no longer the case. In
Queens, AP4 cases can be domestic violence felonies, even though
most cases in AP4 are misdemeanors.
A really strange thing happens in these courtrooms, however.
Especially in Queens, where there is a strong policy related to
plea-bargaining before indictment, many felony accusations are
resolved by agreement BEFORE indictment. In other words, the
prosecutor and defense lawyer are able to agree on an
appropriate resolution of the case (both plea and sentence)
before the case is presented to a Grand Jury. Now if the
prosecutor and defense lawyer and defendant all agree to a
particular plea and sentence, then as long as the judge is ok
with it, the plea can go forward in AP6 or APN, right?
Well, not
exactly…
If the proposed
settlement involves a plea to a felony, there are a couple of
problems. Generally, it is impossible to plead guilty to a
felony unless there has been an indictment. So how do you solve
this problem before indictment? MUST the prosecutors present the
case to a Grand Jury, even if there is going to be a plea
bargain?
No.
The law allows
for a document to be created called a Superior Court Information
that can serve as indictment. It looks just like an indictment,
but instead of being written up by the Grand Jury it is written
up by the District Attorney’s Office with the consent of the
defendant. Ok, so armed with this Superior Court Information
(SCI for short), NOW we can go forward with the felony plea in
AP6 or APN, right?
Well, not
exactly…
The problem is
that a Superior Court Information is too much like an
indictment. That means it is a creature of SUPREME COURT. That
means that a mere Criminal Court judge is not allowed to have
anything to do with it. That means that since the judge in AP6
(in Queens) is a Criminal Court judge, the plea to the SCI must
be transferred to some Supreme Court judge.
And that is
exactly what happens…sort of.
An SCI from AP6
(in Queens) is transferred to a courtroom called W50. This W50
courtroom is considered Supreme Court. Therefore, it can handle
the taking of the plea to a felony.
So where is
this other courtroom W50 in relationship to AP6? How many floors
away is it? Well the truth is that W50 is the exact same
courtroom as AP6. W50 simply occupies the same courtroom at a
time when AP6 is not operating.
The changeover
from AP6 to W50 is an amazing thing to watch, much like the
changing of the guard in Buckingham Palace. The court staff
completely changes. Criminal Court Officers are replaced by
Supreme Court Officers, Criminal Court Reporters are replaced by
Supreme Court Reporters, even Spanish Interpreters are swapped
out, though one might thoughtlessly assume that the Spanish
Language in Criminal Court fairly closely resembles the Spanish
Language spoken in Supreme Court.
But the most
remarkable thing of all is the transmutation that occurs on the
Court bench. No new Supreme Court judge comes to relieve the
Criminal Court judge. Instead, the SAME Criminal Court Judge is
suddenly transformed into a SUPREME COURT judge – before your
very eyes. This miraculous feat is accomplished quite legally
and without the use of mirrors by special provisions within our
laws.
Therefore, in
Queens, AP6 and W50 share the same courtroom and the same judge.
As of the writing of this article, W50 generally takes over
between 11:30 AM and 12:00 PM and will last until the lunch
break at 1:00 PM. W50 also starts up again after lunch at 2:00
PM and lasts until about 3:00 PM when AP6 comes back to finish
out the day.
APN and N60 in
Queens have a similar dual relationship in the same courtroom,
although N60 comes back second in the afternoon.
W50 and N60 come up in order to resolve felony cases before they
are indicted. If a case is not resolved with a felony, it is
either reduced to a misdemeanor and sent “down” to regular
Criminal Court, or it is eventually presented to the Grand Jury
for indictment. Cases can linger in AP6 or APN for quite some
time as the negotiation process continues.
In other
counties, there are versions of this same procedure using
different names but the idea is generally the same.
AFTER INDICTMENT
In Queens
County, virtually all indicted cases are sent to Courtroom TAP-A
for arraignment on the indictment. Just as cases are arraigned
after arrest, the Supreme Court requires that all new cases
coming in be arraigned on the indictment. At this arraignment,
the defense is provided a copy of the indictment and the defense
usually asks to file written motions requesting certain
hearings.
Therefore, if
someone has a case in Queens scheduled for TAP-A, an experienced
criminal defense lawyer will know that the case has probably
recently been indicted and is on for arraignment, OR that the
case is scheduled for decision on motions that were requested at
the arraignment. In any case, if a case is scheduled for TAP-A,
the case has already been indicted. TAP-A is a Supreme Court
Courtroom and ONLY a Supreme Court Courtroom. Therefore, it can
only hear cases that have been found to be good enough by the
Grand Jury. In other words, TAP-A can only hear cases that have
been indicted.
Cases do not
generally linger for long in TAP-A, the way they might in other
courtrooms. Because of the District Attorney Office’s plea
policy, most cases that have been indicted are going to progress
further toward trial. Once there has been a decision on motions,
there will generally be one or more pretrial hearings ordered
that must occur before the case is considered ready for trial.
Most cases are
sent to courtroom K12 for hearings. Certain types of cases may
get sent to special courtrooms. Some gun possession cases are
sent to a special “gun court” in Queens. But if someone has a
case whose case is next scheduled for K12 in Queens, then that
means that not only has the case been indicted, but it is next
scheduled for one or more pretrial hearings. Not all hearings
are held in K12. If the judge in K12 is busy, he will simply
send hearings to other judges in other courtrooms that day.
Once all
pretrial hearings are finished, the judge in K12 will send the
case to a courtroom (in Queens) called KTRP. The “TRP” stands
for “Trial Readiness Part”. Cases that are sent to KTRP are
expected to be ready to be tried on the date selected by the
attorneys and the court. Therefore, if a person has a case next
scheduled to appear in KTRP (in Queens), that means that the
case is a felony (Supreme Court) and it also means that the case
is scheduled to be tried on the next date.
Rarely, cases
are scheduled for KTRP for purposes other than to be tried. But
in theory, KTRP is where the tolerance for excuses for
non-readiness is extremely low indeed. The assumption should be
that if the case is scheduled for KTRP, then it is scheduled for
trial.
The other
counties in New York City are not precisely the same but all run
variations on this theme.
One interesting
variation in Manhattan is the somewhat cynical concept of
“hearing into trial”. In Manhattan, when a case is sent out for
pretrial hearings, it is typically also sent out for trial to
follow immediately thereafter.
This is a
somewhat cynical concept because it of course assumes that the
pretrial hearings will not generate any issues of significance
to the case. It also assumes that there will be no issues worth
taking time to consider either by the attorneys or by the court
From the
perspective of the defense it also provides virtually no time to
absorb the burst of information that comes at the time the
pretrial hearing is conducted. In most cases, it isn’t until the
pretrial hearings are conducted that the Government provides any
police reports or information of significance to the defense. If
there is a gap in time between hearing and trial, as one might
reasonably expect there to be, there would be time to fully
digest the materials. On the other hand, when defense counsel is
required to shift gears immediately into selecting a jury and
conducting a trial, it is difficult to give the materials the
attention they probably deserve.
