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CRIMINAL PROCEDURE PROCESS

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

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.


BOOKINGS

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.


ARRAIGNMENT

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.


DISCOVERY

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.


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

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 the defendant.

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