Path of a Case Arraignment to Trial in New York City Criminal Courts
Including Queens, Brooklyn, Bronx, and Manhattan
By Don Murray
Grand Jury Action
When a person is arrested for a felony in New York State, the Prosecutor must go to a "Grand Jury" and get an Indictment before the Prosecutor is allowed to take a defendant to trial for a crime.
A Grand Jury is simply a group of people (between 16 and 23) who are selected at random from the County in much the same way as "regular" jurors are selected.
Grand Juries sit for about a month at a time (called a "term").
The job of the Grand Jury is to hear cases presented by the District Attorney's Office. The Prosecutors are required to present cases to the Grand Jury in order to get the Grand Jury's permission to prosecute the cases.
If, after hearing the Prosecutor's presentation, the Grand Jury decides not to give the District Attorney's Office permission to prosecute a case, the case is forever dismissed. When the Grand Jury refuses to give the District Attorney's Office permission to prosecute a case, that is called a "No True Bill".
If, after hearing the Prosecutor's presentation, the Grand Jury decides to give the District Attorney's Office permission to prosecute a case, that is called a "True Bill" and the Grand Jury prepares a document called an Indictment. Written on the Indictment are a list of the charges the Grand Jury has permitted the District Attorney's Office to file.
So an indictment, then, is really a kind of written permission from the Grand Jury to the District Attorney to prosecute a person for a crime.
It is usually very EASY for the District Attorney to convince a Grand Jury to give permission to prosecute any particular case. Here's why:
The Prosecutor is not required to prove guilt beyond a reasonable doubt
The Prosecutor is only required to convince the Grand Jurors that it is possible that the defendant might have committed a crime.
The Prosecution witnesses are not cross-examined by an attorney.
Prosecution witnesses are not usually challenged in any way
The defendant's attorney is not permitted to make opening or closing statements.
The defendant's attorney is not permitted to call witnesses on behalf of the defendant.
In fact, the proceedings are considered secret. The defendant and the defense attorney are not entitled even to know who testifies in the Grand Jury or what they said.
Although the defendant is permitted to testify, it is only by way of one long statement. A defendant who is not a professional or natural public speaker may not do very well, regardless of the justness of his cause.
There is no judge directly involved to make rulings of law. (Curse and a Blessing)
Therefore, most cases the Prosecutors present to the Grand Jury do get "indicted".
In all but very rare circumstances, the defendant is permitted the choice of whether or not to make a statement to the Grand Jury before they take a vote. Whether or not the defendant will actually choose to testify is a matter requiring careful discussion with an attorney. Every case is different. Every situation requires its own individual decision. There is no "one size fits all" rule.
Statistically, however, most defendants choose not to testify. Many believe that the process is so one-sided and the likelihood of success is so small that it is not worth it. Why, the logic goes, should the defendant go on the record with his statement and provide the people who are prosecuting him a means to twist his words later on? In some cases, depending on the nature of the defense, and the ability of the defendant to communicate well, the Grand Jury can be well worth the risk. Nevertheless, a decision to testify in the Grand Jury should never be made lightly, and should always be made only after careful discussion with an attorney.
When a person is arrested for a felony in New York, the law requires that IF THE JUDGE SETS BAIL THE DEFENDANT CAN'T MAKE, the defendant be released usually within 144 hours (six days). That means that if the Prosecutor does not get an indictment within the time limit (usually six days) the defendant is RELEASED WITHOUT BAIL, unless a judge agrees that there is sufficient excuse to give the People more time. The case is NOT dismissed.
Arraignment on Indictment
Once the Grand Jury issues the indictment, the defendant is required to appear in court and be arraigned all over again. This new arraignment is called the arraignment on the indictment.
Arraignments on Indictments happen in Supreme Court. Supreme Court, oddly enough is the name of the trial level (as opposed to the highest appeals level) court for felonies in New York State. Once you have been indicted, your case will stay in Supreme Court.
Queens has a peculiar system for handling indicted felonies. It used to be that after arraignment indicted felonies would be sent to particular courtrooms where they would stay until they were either tried or plead out. Now, in Queens, all felony cases (other than murder cases) are sent to Part TAPA.
Indicted Felonies (other than murder cases) are all arraigned in one of the TAP Parts.
At the arraignment, the Prosecutor hands the defense attorney a copy of the indictment along with certain legal notices. The Clerk informs the defendant of the charges against him and will usually ask whether the defense attorney "waives further reading". Usually the defense attorney will waive any further reading of the indictment and plead "not guilty". As a matter of practice, attorneys in Queens usually do not require the Clerk to read all of the charges at the arraignment. The assumption is that the attorney will review the charges with the defendant.
That concludes the Supreme Court arraignment. It is not a dramatic moment in the case and lasts usually around one minute.
After the Supreme Court arraignment, the judge will set a "motion schedule". A motion schedule has three dates. The first date is the time by which the defense lawyer is supposed to file all legal motions in the case in one big package called an "Omnibus Motion". The second date is the time by which the Prosecutor must respond. The third date is the actual date the case is back in Court. On this date the Court will have a decision on all motions filed.
The most common motions made as part of motion practice ask the Court to grant certain pre-trial hearings. The three classic pre-trial hearings all relate to three basic kinds of evidence.
The "Mapp" hearing (from a United States Supreme Court case) is a hearing about physical evidence recovered by the police. At the Mapp hearing, the defense challenges the way the police came into possession of the evidence. For example, if a police officer simply decided that it would be fun to select a person at random and search him, the defense might argue that any illegal substances found as a result were illegally found. If the judge finds that the substances were illegally found, then the Prosecutor is not allowed to use the evidence. If the police did not recover any physical evidence in the case, there is no reason to have a Mapp hearing.
The Wade hearing (from a different United States Supreme Court case) is a hearing about identification evidence (like a lineup). At the Wade hearing, the defense challenges the fairness of the identification. For example, if the police put the 6 foot tall white defendant in a lineup with 65 year old 4 foot tall African American people, the defense might argue that the lineup was unfair. If the Prosecutors do not intend to use identification evidence, then there is no reason to have a Wade hearing.
The Huntley hearing (from a New York Court of Appeals case) is a hearing about statements that the Prosecutors say the defendant made. At the Huntley hearing, the defendant challenges the way the police obtained the statements. The defense can argue that the statements were obtained as a result of actual physical violence OR the defense can argue that the statements were obtained from the defendant without having warned him of his rights (commonly known as Miranda rights). Also, the defense can argue that the statement was obtained as a result of illegal arrest. If the Prosecutors do not claim the defendant made any statements, then there is no reason to have a Huntley hearing.
Aside from requests for the above hearings (where appropriate) many other more specialized motions can be made depending on the case. Typically the defense will also request that the judge examine the proceedings of the Grand Jury.
Also, the defense will request that the Prosecutors comply with the extremely limited discovery requirements. Most people would probably be shocked at how little the Government in New York State is required to disclose before a criminal trial.
In New York State, if money is at stake, you can take depositions of witnesses and require the opposing side to provide all relevant documents well in advance of doing any hearings or trials. But if FREEDOM is at stake, as it is in a criminal case, the law in New York requires almost nothing.
It is surprisingly common in New York to receive the most relevant and important documents in a criminal case minutes before opening statements.
In many cases, the defense is entitled to at least one of the three most common hearings mentioned above. In some cases, the defense may be entitled to other, more exotic hearings.
It is important to understand what is really going on with hearings. What is at stake at most hearings is the admissibility of certain evidence. Winning a hearing usually means keeping certain evidence out of a trial. Winning a hearing does not necessarily mean winning a case.
For example, if the hearing is about a statement supposedly made by the defendant (Huntley hearing), success at the hearing only means that the Prosecutor won't be able to use the statement at trial. So if the Prosecutor has a videotape of the crime, 16 eyewitnesses, including the defendant's own mother, and DNA evidence, keeping the statement out of the trial might not mean that much.
Movies, Television shows, and the news media have successfully shaped public opinion to the point that most people believe that judges routinely "throw out" critical evidence at these pretrial hearings because they are "forced to" by "legal technicalities".
It would be difficult to imagine a bigger, more preposterous LIE that has been visited on the general public.
Here is a good general rule by which the public SHOULD be guided: In any given criminal case, NO EVIDENCE OF ANY SIGNIFICANCE WILL EVER BE SUPPRESSED.
Are there exceptions? Of course. But the rate of suppressed evidence is so small that it is nearly statistically insignificant. One commonly referred to statistic is that among a representative group of Federal cases, evidence of any kind was suppressed in only 5%.
It is extremely politically unpopular to suppress evidence in criminal cases. It would be nice to believe that judges are not subject to political pressure. Take a recent situation that arose in Federal Court, however. A Federal Judge (appointed for life to prevent the possibility of political pressure) suppressed a large amount of drugs in a particular case. A firestorm of criticism erupted in the newspapers. Politicians began discussing the possibility of finding some means to remove the judge from his lifetime appointment. This Federal Judge then turned around and REVERSED his own decision. Scary, isn't it?
And everyone takes for granted that the issues involved in suppressing evidence are idiotic procedural "technicalities". Really? Is it a "technicality" if the police pull over a black man driving a nice car because he is a black man driving a nice car? Is it a "technicality" if the police beat the living daylights out of a person until he "confesses"?
These "technicalities" are some of the most basic principles of justice that separate the free from the oppressed. Many many people have died miserable deaths or endured incredible hardships in foreign lands to preserve these "technicalities" for us. It is an insult to their memories to so casually describe our fundamental rights as "technicalities".
This belief that evidence is constantly being suppressed is so absurd it is almost funny. Want to make a criminal defense attorney laugh? Tell him you think a judge is going to suppress evidence at a pretrial hearing. Unfortunately this belief that evidence is constantly being suppressed often leads to great difficulty in dealing with people who are arrested. "Why can't you just get the evidence thrown out?" says the newly arrested person. "Everyone else gets evidence thrown out all the time." The answer, however, is "Welcome to REALITY".
So then why are pretrial hearings so important? If it isn't going to get any evidence suppressed, what good is it?
The answer is that it usually provides a small window into the Prosecutor's case. In doing almost any hearing, one of the police officers involved will have to testify. Once he testifies, the defense is entitled to all police reports filled out by that officer and all prior statements of that officer. The defense gets to cross-examine that officer as well.
The bottom line is that pretrial hearings usually provide at least some clues as to the strength of the Prosecution's case against the defendant. Since discovery in New York is pretty much a joke, the pretrial hearings become a means of discovery.
Plea bargaining is discussion between the prosecutor and the defense attorney about possible ways of resolving cases in some way other than a trial.
Most criminal cases are not resolved at trial. In fact, probably fewer than 10 percent of all criminal cases actually end up being tried. What is happening to the other 90 or so percent of the cases? Most of them are resolved with plea bargains.
In a plea bargain, the defendant usually agrees to plead guilty to some less serious charge in exchange for a certain result.
At the heart of a plea is the uncertainty of success at trial. The more a defendant is confident that he will be acquitted at trial, the less motivated he is to plead guilty. The more a defendant is confident that he will be convicted at trial, the more motivated he is to seek a plea bargain.
One job of the defense attorney is to help his client gain some sense of the likelihood of success at trial.
The law requires (in all but the rarest of cases) that you either say you are guilty of an offense or be willing to go to trial. The law generally does not permit you to accept a guilty plea simply because you are afraid the jurors might come to the wrong conclusion. If you are unprepared to tell the Court that you are guilty of some offense, then the law generally requires you to pretend that jurors can not make a mistake and you must go to trial.
In Queens County, plea bargaining in felony cases is usually done up front before the case is indicted. Under the District Attorney's current policy, they will not negotiate on felonies after indictment.
Up to now the District Attorney's Office has stuck fairly rigidly to its policy. Occasionally, supervisors authorize deviations from the policy, but for the most part they have stuck to it.
The District Attorney's lack of cooperation does not end the possibilities for plea bargaining, although certain limits are imposed without their cooperation. Absent cooperation from the District Attorney's Office, a defendant may still negotiate directly with the Judge. The problem is that in order to deal with the Judge, the defendant must plead guilty to exactly what he is charged with.
That means no lesser charges. That also means that the judge will be bound to abide by any MANDATORY MINIMUMS there might be for the particular crime charged.
For example, if the mandatory minimum for the crime charged is 5 years, then the best a judge could ever offer is 5 years. With the District Attorney's cooperation, however, a plea bargain could be arranged in which the defendant pleads to a lesser charge (with less or no jail time as a sentence).
Defense attorneys are required to tell their clients whenever a plea bargain offer is made. Some clients become offended when approached about offers. Simply informing a client about an offer, however, is not the same as recommending an offer.
The Path of a Criminal Case
New York Criminal Defense Lawyer Don Murray provides an overview of the path of a felony criminal case through the New York City Criminal Court system, including discussion of Grand Jury, and pretrial motions as applied in Queens, Brooklyn, Bronx, and Manhattan Criminal Courts.
If you were interested in this article about the path of a felony case, you might also be interested in the following other articles:
Call 718-268-2171 for more information about the path of a criminal case in New York or to schedule your free consultation with a New York criminal defense lawyer from Shalley & Murray.
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