Criminal Justice Procedures

 Arrest

Criminal prosecutions usually begin with the summary arrest of a defendant by a police officer, or by the filing of an accusatory instrument in court and the issuance of an arrest warrant or summons.

/upload/da/images/criminal justice page picture handcuffs.jpgA person who is arrested is taken to one of Suffolk County’s police precincts, one of the East-End Town Police Departments, or to a Village Police Department. If the arrest is made by a Village Police Department, the defendant will be processed by the Village Police, but he or she is then taken to the Suffolk County Police for additional processing and detention.

The processing of an arrested person consists of taking personal data and, where required, fingerprints
.

The word "booked" has entered common parlance as what is done to those arrested. Actually, the "booking" is an entry in an arrest record and a minor part of the processing.

Accusatory instruments include misdemeanor informations, misdemeanor complaints, simplified traffic informations, felony complaints, indictments, and superior court informations.

A detective will be assigned to cases where an investigation is needed. In addition to the traditional duties of investigation, detectives play a vital/upload/da/images/criminal justice page pic jailcell.jpg role
in pure evidence gathering and preparing a case for trial. Detectives interview arrested persons and witnesses to procure statements concerning the criminal incident.

After processing, a person is either detained or released on bond or given an appearance ticket for a future court, depending upon the nature of the charge(s) and/or the time processing is complete.

In certain cases, a Grand Jury investigation may result in the filing of an indictment that commences the criminal proceedings against a defendant. In such instances, the arrest and processing occurs thereafter.

Accusatory Instruments

An "Information" is a verified (that is, sworn to) written accusation by a person, filed with a local criminal court, charging one or more other persons with the commission of one or more offenses, none of which is a felony. It may serve as a basis both for the commencement of a criminal action and for the prosecution thereof in a local criminal court. The Information and supporting depositions annexed to it supply allegations as to each element of the crime on personal knowledge
.

A “Misdemeanor Complaint” is a verified written accusation by a person, filed with a local criminal court, charging one or more other persons with the commission of one or more offenses, at least one of which is a misdemeanor and none of which is a felony. It serves as a basis for the commencement of a criminal action and may be based on hearsay. In most circumstances, a person may be held on a misdemeanor complaint for no more than 144 hours following an arrest.

A “Simplified Information” is a short form accusatory instrument, resembling a traffic ticket, in which traffic, parks, and environmental conservation charges may be filed. It serves as a basis for the commencement of and trial on a criminal action and may be based on hearsay. Those charged by simplified information may be entitled to a supporting deposition upon proper request.

A "Prosecutor's Information" is a written accusation filed by the District Attorney, either at the discretion direction of a Grand Jury, the direction of a local criminal court, or at the District Attorney's own instance.

A "Felony Complaint" is a verified written accusation charging a felony. It commences the proceeding, but cannot be the basis for a felony trial. In order for a person to be prosecuted to a verdict at trial, he or she must be indicted (charged) by a Grand Jury or must waive the right to prosecution by indictment and agree to be prosecuted by a Superior Court Information. [See "Felonies and Indictments" for more information.]

An “Indictment" is a written accusation by a grand jury, filed with a superior court, that 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.

A “Superior Court Information” means a written accusation by a district attorney filed with a superior court pursuant to Criminal Procedure Law [A] article one hundred ninety-five, 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.

Arraignment

Most Suffolk County arraignments occur in Room D11 of the Cohalan Court Complex in Central Islip. If the arrest occurs in one of the East End towns or in certain west end jurisdictions (Amityville or Northport for example) arraignment will occur at the appropriate Town or Village Court. 

An arraignment is the formal reading of the accusatory instrument, together with a setting of bail. Provision is made to give the defendant an opportunity to get a lawyer or, if required, one is appointed. The defendant is also given statutory warnings as to his or her right to counsel. For cases commenced in Central Islip, after arraignment, misdemeanor cases are then adjourned to the Conference Part of the District Court. Cases involving felony complaints are first reviewed the District Attorney’s Case Advisory Bureau and will then, as appropriate, be referred to a specialized bureau, reduced to misdemeanors, or presented to a Grand Jury. The Case Advisory Bureau also conducts felony early assessment dispositions (FED's) on certain felony cases in an effort to reach appropriate dispositions of such matters.


Felonies and Indictments

If the defendant remains in custody after arraignment on a felony charge, the District Attorney’s Office must present the case to a Grand Jury or otherwise dispose of the felony complaint within 120 hours from the arrest or within 144 hours in the event that a Saturday, Sunday or holiday occurs, unless the defendant waives this condition, or the court must release the defendant on his own recognizance, unless exceptions apply. Even if a defendant is discharged by the District Court Judge, however, the Grand Jury may still hear evidence and indict the defendant. The Grand Jury may hear evidence against persons held for its action by the District Court Judge. In addition, a felony prosecution may first begin by the presentation of a case to the Grand Jury.

In order to proceed in a case involving a felony, the evidence must be presented to a Suffolk County Grand Jury, which then decides to indict the defendant on charges or dismisses the charges. The Grand Jury may also indict for misdemeanors and violations.

The Grand Jury consists of 23 persons selected from the usual jury rolls; 16 members constitute a quorum and 12 are necessary to return a “true bill” and vote an indictment.

A case is presented to the Grand Jury by an Assistant District Attorney. In each case, the Grand Jury, in absolute secrecy, votes on the charges presented.

The District Attorney is statutorily obligated to be the legal advisor to the Grand Jury. The Grand Jurors are instructed as to the elements of the crimes before it, as well as any other relevant legal question involved in the case. In addition, the Grand Jury may direct the District Attorney to issue and serve subpoenas to call witnesses. All proceedings of a Grand Jury, with the exception of the results of deliberations on the vote on an indictment or no true bill, are recorded by Certified Confidential Reporters.

The action of a Grand Jury, whether the dismissal of a charge or an indictment, is "handed up" by the jury's foreperson to a superior court judge.

An alternative to indictment by a Grand Jury is the “Superior Court Information” or “SCI.” This is a written accusation by the District Attorney filed with a County Court Judge that is then signed by the Judge. In order to proceed with a Superior Court Information, the defendant must waive his right to have the case presented by Suffolk County Grand Jury. Superior Court Information's are most likely to occur in cases where a plea has been arranged prior to indictment.

/upload/da/images/cohen indictment.jpgArraignment on Indictment

After an indictment has been voted and handed up, a defendant must be arraigned even if he was arraigned on the same charge in District Court. The arraignment has for the same procedure as a District Court arraignment--specifically, the charges are read in court and bail is set. At arraignment, the case is assigned to a Supreme or County Court Judge and a conference date is set.




District/Town/Village Court Conferences
Misdemeanor cases are conferenced in an effort to arrive at an appropriate disposition. If no disposition is reached, the case is adjourned and motions are generally made by the defense. These motions often seek further information (discovery) or relief from the court, such as a dismissal or reduction of the charges or suppression of evidence.

Usually after one or more conferences, a case is assigned for trial. Depending on the nature of the case, there may be pre-trial hearings on a variety of constitutional and/or statutory issues (e.g.,confessions, searches, identifications, wiretaps, etc.)

County Court Conferences

As with misdemeanor cases, conferences may take place in a effort to arrive at a pretrial disposition of the matter. If no disposition is reached, the case is set for trial. Pre-trial hearings are held prior to trial and the order of the trial is the same as in District Court. In felony trials, there are 12 member juries and the peremptory challenges varies by degree of crime (A Class felony--20, B & C felonies--15 and all else--10).

Trial

  • Prosecutor examine prospective jurors (voir dire)
  • Defendant examines prospective jurors (voir dire)
  • Prosecutor exercise challenges to excuse jurors (each side has a certain number of "peremptory" challenges depending on the severity of the charges)
  • Defendant exercises challenges to excuse jurors
  • Jury is sworn
  • Prosecutor "give opening statement" (outline case they intend to prove)
  • Defendant opens, if he wishes
  • Prosecutor call witnesses - the defendant cross-examines, if he wishes,
  • Prosecutor rest their case
  • Defendant calls witness, if he wishes and the Prosecutor cross-examine
  • Defendant sums up
  • Prosecutor sum up
  • Judge charges the jury (gives instructions on the law)
  • Jury deliberates and returns verdict (defendants may opt for a non-jury trial, in which case the judge renders the verdict)

 In general, persons charged with a misdemeanor are entitled to trial by a six-member jury.



Sentencing

The sentence to be imposed is determined by the court.  The general procedure for sentencing, after certain preliminary matters are resolved (such as whether the defendant has prior convictions which may enhance his or her sentence), is as follows:

  • If the defendant is being sentenced for a felony the court, if requested at least ten days prior to the sentencing date, shall   accord   the victim [see below] the right to make a statement with regard to any matter relevant to the question of sentence.
  • The court shall notify the defendant no less than seven days prior to sentencing of the victim’s intent to make a statement at sentencing.  If the defendant does not receive timely notice pursuant to this subdivision, the defendant may request a reasonable adjournment.
  • Any statement by the victim must precede any statement by counsel to the defendant or the defendant made pursuant to subdivision one of this section.  The defendant shall have the right to rebut any statement made by the victim.
  • The court must accord the prosecutor an opportunity to make a statement with respect to any matter relevant to the question of sentence.
  • The court must then accord counsel for the defendant an opportunity to speak on behalf of the defendant.
  • The defendant also has the right to make a statement personally in his or her own behalf, and before pronouncing sentence the court must ask the defendant whether he or she wishes to make such a statement.
  • Regardless of whether the victim requests to make a statement with regard to the defendant’s sentence, where the defendant is sentenced for a violent felony offense as defined in  section 70.02 of the penal law or a felony defined in article one hundred twenty-five of such law or any of the following provisions of such law sections 130.25, 130.30, 130.40, 130.45, 255.25, 255.26, 255.27, article two hundred sixty-three, 135.10, 135.25, 230.05, 230.06, subdivision two of section 230.30 or 230.32, the prosecutor shall, within sixty days of the imposition of sentence, provide the victim with a form on which the victim may indicate a demand to be informed of any petition to change the name of such defendant.  Such forms shall be maintained by such prosecutor.  Upon receipt of a notice of a petition to change the name of any such defendant, pursuant to subdivision two of section sixty-two of the civil rights law, the prosecutor shall promptly notify the victim at the most current address or telephone number provided by such victim in the most reasonable and expedient possible manner of the time and place such petition will be presented to the court.

  “Victim” means:

  (1) the victim as indicated in the accusatory instrument;  or

  (2) if such victim is unable or unwilling to express himself or herself before the court or a person so mentally or physically disabled as to make it impracticable to appear in court in person or the victim is deceased, a member of the family of such victim, or the legal guardian or representative of the legal guardian of the victim where such guardian or representative has personal knowledge of and a relationship with the victim, unless the court finds that it would be inappropriate for such person to make a statement on behalf of the victim.



Appeals

In felony cases, convicted criminal defendants have one automatic right of appeal to the Appellate Division, 2nd Department. This Court usually sits in Brooklyn. In misdemeanor cases, appeals are first heard by the Appellate Term of the Supreme Court, which sits in Mineola. Additional appeals must be made on motion and must be granted permission or "leave" to be heard. Appeals from the Appellate Division are heard by New York’s highest court, the Court of Appeals in Albany. Further proceedings in the nature of federal habeas corpus applications are heard first in the United States District Courts in either Central Islip or Brooklyn and then on appeal in the United States Circuit Court of Appeals, Second Circuit, in Manhattan.


Post-Coviction Motions

Defendants may file motions before trial court to set aside their judgments of conviction or challenging their sentences as being illegal. If denied, the defendants may then seek--by motion--permission to appeal that denial to the appropriate intermediate appellate court.

SORA

Sex Offender Registration