This brief overview of the criminal procedure process is to
help clients and their families begin to understand what to expect as their
case goes through the legal system. It is always very important to
know your rights in the event of a visit from law enforcement.
There are multiple strategies and tactics to be planned and executed
at every step, which is why the outcome can vary dramatically depending on which
lawyer you hire. At Nobles & DeCarolis, we conduct our own investigations in building the case and we take the time to walk each
client through every step. We discuss all the options available, the strategy
behind every action, and the anticipated results.
Arrests typically happen near the scene of the alleged crime or shortly thereafter.
Sometimes arrests come later, after a phone call or a visit from a detective. In
either situation, the person arrested should never speak to any police officer
or detective. Even though they might say that cooperation will help make
things go easier with the judge or the district attorney, or that things "just need
to be cleared up," making any statement to, or in front of a police officer or detective
can only be dangerous, even if you are totally innocent.
Any person under arrest should ask to speak with an attorney immediately,
refuse to answer any questions, and refuse to sign anything.
After an arrest, the defendant will be fingerprinted, photographed, and checked
for warrants. The district attorney or the officer may determine what
charges to file. While being held,
the defendant will be interviewed by a representative from Pre-Trial Services and
will be asked questions about his/her address, the name and address of his/her employer,
whether he/she is on parole or probation, and the name and telephone number of a
person who can verify this information. Pre-Trial Services then makes a recommendation
to the court at arraignment as to whether the defendant should be released or whether
bail should be set.
An arraignment is when a defendant is brought before the court for the first
time. He/she is advised of the charges against him/her and asked to plead "guilty"
or "not guilty." Defendants are typically arraigned within 24 hours from the time
of arrest. The most important decision the judge will make at arraignment is whether
to set bail or to release the defendant without bail. The judge will consider the
defendant's criminal history, the seriousness of the charges, the defendant's ties
to the community, and any bench warrant history (a defendant's failure to return
to court in a prior case) in making this decision. Ideally, the defendant
should be represented by an attorney at arraignment or as soon as possible thereafter.
When present at arraignment, an experienced defense attorney will argue to reduce or possibly eliminate bail.
In cases where harassment or physical violence is alleged, the court will usually
issue an order of protection which restricts or prohibits contact between the defendant
and the alleged victim. It is very important for defendants to obey the
order of protection, otherwise additional charges, including a felony criminal
contempt, can be filed for violating the court order.
Under NY State Law, defendants and their attorneys are entitled to particular
information and evidence related to their case. Discovery includes any statements
made by the defendant, photographs or drawings, an inspection of property taken
from the defendant, tapes which the prosecutor intends to introduce at trial, evidence
linking someone else to the crime (Brady material), police complaint forms, the
officer's memo book, witness statements and many other forms of police and district
attorney paperwork. All of these are required to be turned over to the defense attorney
prior to motions.
PRE-TRIAL MOTIONS & HEARINGS
Within 45 days of the arraignment, the defense attorney must file motions regarding
any pre-trial issues including dismissal, suppression of statements or physical
evidence, or any other matters that should be addressed by the court before trial.
Statements may be suppressed if they were made while the defendant
was in custody and interrogated without having been read his/her Miranda rights,
or if he/she requested an attorney prior to making the statements. An identification
can be suppressed if the identification procedure was unduly suggestive;
an identification can include a line-up, show-up, or photo array. Physical
evidence (guns, drugs, cash, blood, etc.) can be suppressed if the search
and seizure of the items was improper. A motion may also be made to exclude mention
of prior convictions or bad acts during the trial.
Procedure at trial consists of jury selection (6 jurors for a misdemeanor, 12
jurors for a felony), opening statements, the prosecution's presentation of evidence, the defense attorney's presentation of evidence, closing arguments, the jury charge,
the jury's deliberations and the verdict.
A trial is a complex and precise undertaking. If you decide to take your
case to trial, you MUST have an experienced criminal
trial attorney. You cannot afford
any rookie mistakes at trial - it will likely cost you your freedom. You must have
a trial attorney who has the ability to challenge the prosecution on their knowledge
of the rules of evidence, on NY State Criminal Procedure, and ultimately
require them to prove that you are guilty beyond a reasonable doubt.
While not an ideal situation, on several occasions either Mr. Nobles or Mr. DeCarolis
have been hired only a few weeks prior to trial when clients were unsatisfied with
their original attorney. Do not be hesitant about changing attorneys, a seasoned
criminal trial attorney will have tremendous impact on the outcome of your case
and your future.
Sentencing can be one of the most important parts of the criminal process,
as it determines the actual penalty the defendant will receive. In some cases the
sentence will be predetermined as part of a plea deal, otherwise sentencing is entirely
up to the judge. In either case, New York State Law requires a pre-sentence investigation
(“PSI”). A PSI is a report about the defendant, describing their background,
the circumstances surrounding the crime and a recommended sentence. At sentencing
an experienced defense attorney will work to show the defendant in the best possible
light, to persuade the judge to impose a lighter sentence. A good attorney
should correct any mistakes in the PSI and may even do his/her own investigation
in order to bring to attention any additional facts and circumstances that may favor
Having an experienced criminal defense attorney at sentencing could mean
the difference between jail, probation or community service, or
in some cases county jail as opposed to state prison, and it can also have an influence
on the length of incarceration.
If you or a loved one has been arrested, call Nobles & DeCarolis immediately at 585.546.1260