New York Criminal Lawyer Blog

In criminal trials in the state of New York, the People (a.k.a. the prosecution) bear the burden of proving that the defendant has committed the charged offense beyond any reasonable doubt. Obviously, the role of the criminal lawyer in New York is to controvert, challenge and poke holes in People's case. Many times in criminal trials the strongest evidence of guilt in the prosecution's arsenal is the direct testimony of a witness. Therefore the District Attorney's Offices, whether it be one of the five borough/counties-- Manhattan, Brooklyn/Kings, the Bronx, Staten Island/Richmond, or Queens-- or surrounding counties-- Westchester or Rockland -- must be empowered to compel these "material witnesses" to testify. A subpoena is that legal tool, which empowers the State of New York to compel testimony by a witness. Of course, even if you've been subpoenaed to testify in a New York criminal trial, you don't necessarily have to testify.

Most of us don't need a NY criminal defense attorney to tell us what the Fifth Amendment is, but many times people do confuse the scope of the Amendment. The Fifth Amendment only protects individuals from self-incrimination. That is, if your boyfriend was charged with burglary and you are subpoenaed to testify as to his whereabouts on the night in question, but you had nothing to do with the burglary and your truthful testimony will in no way incriminate (admit guilt of a crime) you, then you can potentially be compelled to testify.

So what if you get up to the stand and still don't cooperate? The answer to this question is what I want to highlight in this blog post. The court may hold you in Contempt. This is the strongest power a judge has to impose sanctions for acts which disrupt the court's normal process and proper functioning. Criminal Contempt is an offense against judicial authority. The court will hold a hearing, called a contempt proceeding (where the individual in contempt can defend him/herself), if "the contemptuous behavior is primarily an offense to the court." The primary purpose of a Criminal Contempt proceeding is to "protect the integrity of judicial process and compel respect for its mandates."

A recent criminal case from Westchester County, People v. Selwyn Days, 01-0469, NYLJ 1202520880499, at *1 (Co., WE, Decided October 11, 2011) is a perfect illustration of the type of behavior by a witness that will result in that witness being held in contempt. Cherlyn Mayhew was a material witness in the Murder trial of Selwyn Days. Mayhew had testified in 2003 before the grand jury and also in the first trial, which ended in a hung jury. Mayhew did not testify in the second trial because she was unavailable due to sever illness, but Days was convicted. That conviction was overturned and in the third trial Mayhew refused to testify (although now healthy), so the prosecution compelled Mayhew to testify pursuant to a Material Witness Order. Yet again there was a mistrial, and in the fourth trial Mayhew again was compelled to testify. The Westchester County District Attorney's Office flew her in to New York and paid for all travel expenses. However, on the stand Mayhew responded "I don't remember" or "I don't know" to every single question. She even claimed not remembering even testifying before the grand jury and in the first trial back in 2003. She claimed that her memory loss was due to Reflex Sympathetic Dystrophy (RSD)- the illness from which she suffered back in the second trial. Frustrated with the inconsistencies in the many testimonies especially after making so many accommodations for Ms. Mayhew, the court held a Criminal Contempt proceeding. After inquiring into the effects of the RSD illness and examining the evidence, the court found sufficient proof that Mayhew was "willful and contumacious in her failure to answer legal and proper questions posed and that she did not obey the mandate of the Material Witness Order." In other words, Mayhew was held in Contempt because she completely feigned the memory loss so as to avoid answering the lawfully posed questions. The court found her guilty and punished her to 5 days in the Westchester County jail.

Though it may not seem like much (considering the small jail sentence), a judge has the power to hold a witness, who is attempting to obstruct the proper orders of the court, in Contempt. In Mayhew's case, the court only gave her 5 days in jail. However, this Contempt does not merely go away and stays on your record for life.

To educate yourself about the criminal process and judicial system in New York, a review of this blog as well as following the links below will provide a strong starting point. Crotty Saland PC, a New York criminal defense firm founded by two former Manhattan prosecutors, represents witnesses and targets of arrest, indictments and criminal investigations throughout the New York City area.

Often times, prosecutors in the New York City area (Manhattan, Brooklyn, Bronx, Queens and Westchester Counties) offer first time shoplifters as well as those accused of other thefts, weapon crimes and personal drug possession, a violation of Disorderly Conduct (New York Penal Law 240.20). Depending on the facts and circumstances, a "Dis Con" could be a tremendous disposition. However, such a violation does have its draw backs. One of the most common is that a Disorderly Conduct may seal, but may show up on a background check. The other issue with a Disorderly Conduct is that while you will not have to ever state you were convicted of a crime, you technically have been arrested. Therefore, should an employer or an employment application ask whether you have ever been arrested, you will have to answer in the affirmative.

As I have written time and time again (and fought for my clients in each and every case of this nature), it is often worth one's time to reject a Disorderly Conduct and fight for an adjournment in contemplation of dismissal or ACD. In these cases, not only is there no conviction of any kind, but the case is both dismissed and sealed in six to twelve months depending the nature of the underlying offense. Another benefit that is often not addressed is equally important.

According to New York Criminal Procedure Law section 170.55(8), when one is granted an ACD, not only does the law provide that one will not suffer any type of "disability" as a result, but the initial arrest and subsequent prosecution are considered a "nullity." Furthermore, one is put back into the same position one was in prior to the arrest and prosecution.

Obviously, whether you are charged with New York Penal Law sections 155.25, 165.40, 265.01, 220.03 or any other crime, an ACD disposition can minimize the collateral consequences of the initial arrest. New York State law specifically sets forth a statute that deems your arrest a "nullity." Under the eyes of New York law, your arrest did not happened and you are "restored" to your pre-arrest status.

While a technical reading of New York Criminal Procedure Law section 170.55(8) establishes the "nullity" arrest result, the practical questions for one who is the recipient of an ACD are evident. Merely because New York State says in her laws that your arrest is a nullity, does that mean in fact you were never arrested? After all, you were handcuffed and printed. If, according to New York State law, your arrest is nullified, can you assert to an employer or on an employment application that you have never been arrested? What, if anything, will federal or other state authorities know about your case and arrest? What are the consequences of relying on the statute and denying your arrest should you be asked these questions?

Certainly, having to deal with an ACD and these questions about whether you were arrested or not are far better issues to deal with in comparison to those related to criminal convictions or convictions for violations. While attorneys may differ in their responses to the 170.55 issue, it behooves you to have the "arrest conversation" with your counsel.

For related information on Desk Appearance Tickets in New York, please review NYDeskAppearanceTicket.Com

In depth information on felony and misdemeanor crimes as well as on the criminal defense attorneys and former Manhattan prosecutors at Crotty Saland PC, please review the Crotty Saland PC website. Lastly, extensive materials on criminal statutes, criminal procedures and legal decisions can be located throughout the NewYorkCriminalLawyerBlog.Com.

It is common throughout New York City and the region for judges to grant prosecutors' requests for orders of protection whereby no contact between a complainant and defendant is permitted. These "full" orders of protection are often requested in other counties, such as in Brooklyn and Westchester, where the parties don't even know each other and are complete strangers. What is concerning for the accused, however, is where a "full" order of protection is issued that ultimately requires one party to vacate their own home. Unquestionably, these orders of protection are often necessary to protect one individual from another. However, "full" orders of protection are also implemented where there is merely an accusation without full investigation. Prosecutors, taking the side of caution, may ask for these orders of protection, but amend them at a later date. Unfortunately, what happens to the accused if they must leave their home, their property and their possessions behind while they wait for a prosecutor or detective to conduct their investigation? What is this person to do for the weeks or months that he or she may not have access to his or her property?

Fortunately, there is a potential remedy or at least a means to challenge the order of protection in New York. If your "personal or property rights will be directly and specifically affected," by a "full" order of protection, your attorney can request a "Forman Hearing." Having said that, merely requesting one does not mean such a hearing will be granted and you will be successful. It is the accused's burden to establish this direct and specific affect. Once having done so, the court must ascertain and weigh this affect against the danger(s) to the complainant. See People v. Foreman, 145. Misc. 2d 115 (NY Cty. Crim. Ct. 1989).

Certainly, an accusation that requires the issuance of an order of protection is a serious matter. However, just as in all cases, an accusation is not a finding of guilt and the ramifications of loosing one's rights to their property is significant while prosecutors sort out the criminal allegations. Not only may a Forman Hearing be a means to protect your property rights, but it is also a potential tool for your New York criminal defense attorney to get an early chance to cross examine witnesses.

For further information on New York criminal statutes, newsworthy cases and legal decisions, please review Crotty Saland PC's New York Criminal Law Blog at NewYorkCriminalLawyerBlog.Com.

Representing clients throughout the New York City region, the New York criminal defense lawyers at Crotty Saland PC served as prosecutors in the Manhattan District Attorney's Office before founding the law firm.

As I type, it is likely that Plaxico Burress is sitting in a Manhattan Grand Jury testifying about the events that ultimately resulted in his arrest for possessing a loaded firearm in New York and being charged with Criminal Possession of a Weapon in the Second Degree. As a former Manhattan prosecutor who served for seven years under Robert Morgenthau and who has cross-examined many defendants in the Grand Jury and represented clients in the same, I have unique insight that many New York criminal defense attorneys do not. The following entry will address some of what happens in this "secret proceeding."

What is the Grand Jury

The Grand Jury in New York State consists of a group of people no different than you or me. Old and young. Doctors and construction workers. Men and women. Black, white and every shade in between. Although in other smaller jurisdictions prosecutors need to convene a Grand Jury, at any given time in New York County (and likely throughout NYC) there are multiple Grand Juries sitting. In fact, Manhattan often has at least three Grand Juries sitting in the morning followed by three in the afternoon. At least one Grand Jury sits all day. This does not include Grand Juries convened by the Office of the Special Narcotics Prosecutor. Grand Juries hear all charged felonies from Assault and Criminal Possession of a Forged Instrument to Identity Theft and Mr. Burress' Criminal Possession of a Weapon.

The Grand Jury consists of up to twenty three people. On any given day, sixteen Grand Jurors are needed for a quorum. A quorum is required before evidence can be heard. Regardless of whether there are sixteen or twenty three Grand Jurors present, twelve Grand Jurors are always need to vote on the evidence.

Burden of Proof

A determination by the Grand Jury to vote a "true bill" or indict a defendant is not a finding of guilt. A guilty or not guilty verdict is rendered at trial. Instead, the Grand Jury must determine whether there is "reasonable cause to believe" that the accused committed the particular felony crime. Unlike "beyond a reasonable doubt" at trial, "reasonable cause to believe" can also be viewed as whether or not a reasonable person believes that it is probable, based on evidence presented, that the accused is guilty of the crime charged. Regardless of whether the case is before the Grand Jury or before a jury at trial, the evidence must always be legally sufficient to support the charges.

Secrecy of the Grand Jury

Prosecutors cannot share with the public what happened in the Grand Jury (who testified, what was said, the result of the deliberations, etc.). In fact, there are criminal ramifications if he or she does so. However, a witness may reveal what he or she testified about, but not the names of other witnesses or their testimony if they know what that testimony was.

Role of the Prosecutor

There is no judge in the Grand Jury. A prosecutor acts as the judge. That means he or she chooses what evidence is admissible and instructs the Grand Jury on the law. Obviously, the law gives the prosecution ample room to decide how and what to present to the Grand Jury. In fact, prosecutors often provide significantly less evidence to a Grand Jury than they would present at trial. A two day Grand Jury proceeding may become a two week trial. However, being given room to interpret the law does not mean the rules of evidence can be abused or otherwise inadmissible evidence is now admissible.

A criminal defense attorney can protest or challenge the prosecution, but since it is a secret proceeding, it is not likely he or she will know what was presented until after a judge reviews the minutes of the Grand Jury proceeding. That being said, a judge is available for criminal defense attorneys and prosecutors to meet with in the event an issue presents itself during the proceeding.

One thing that is unique about the Grand Jury in New York County (Manhattan) is that the Manhattan District Attorney's Office pursues cases through vertical prosecution. In other words, the prosecutor who picks up the case from its inception is the same prosecutor who presents the case to the Grand Jury and ultimately at trial if necessary. This practice is different from other New York City offices where one prosecutor may draft the initial case, one presents it to the Grand Jury and another prosecutor handles it for trial.

Does the Accused have the Right to Testify

In New York State, a defendant has a right to testify before the Grand Jury. In fact, if the prosecution violates this right and presents the case to the Grand Jury, a judge may dismiss the indictment and require that the prosecution re-present the case to the Grand Jury to allow the defendant to testify. More often than not, however, defendants do not testify before the Grand Jury.

Ramifications of testifying after the jump...

Continue reading "The New York Grand Jury, Plaxico Burress and Any Person Accused of a Crime: Beyond a Possible Indictment What Happens Behind Closed Doors" »

Whether you are under investigation for a white collar crime or have already been arrested for a weapon crime, it is imperative to retain an experienced New York criminal defense attorney before you talk with law enforcement. It may be that without an admission or statement on your part to the police or FBI, law enforcement has no case against you...that is right...nothing. Whatever the circumstances, whether you voluntarily go to a precinct to talk to the police to "clear the air" or you are already under arrest, you may be waiving your rights and jeopardizing your case. Even more importantly, your fatal mistake may cost you your freedom. Unfortunately for one particular defendant in Nassau County, he learned this lesson the hard way.

In a decision rendered on May 8, 2009, a Nassau County District Court Judge ruled in People v. Alfredo Pena, 2008NA011705, that a defendant's statements were not the result of a "custodial interrogation" and therefore admissible and not obtained in violation of his rights. This "custodial interrogation" is the key element or principle in New York's cases involving Miranda and admissions. In the Pena case, the police were investigating the defendant for the crime of Harassment through phone calls. The defendant went to the station voluntarily, waited for about 45 minutes until the detective was available and ultimately made admissions of his involvement. During this entire period of time the defendant was never handcuffed or forced to remain in the precinct. Moreover, no threats or promises were made and the defendant was not arrested. Shortly thereafter, the defendant was read his Miranda warnings, which he voluntarily waived, and he spoke further with the police. Ultimately, as you have probably guessed by now, the police arrested the defendant and the prosecutors indicated that they were going to use all the admissions against the defendant at trial. After motions were made by the defendant's counsel, a Huntley Hearing (a hearing where a judge determines the admissibility of a defendant's statement) was ordered and conducted.

More after the jump...

Continue reading ""Miranda Warnings," Your Right to Remain Silent and Your NY Criminal Defense" »

An aggressive and skilled criminal defense lawyer can assist his client in navigating the criminal justice system in New York. Whether you are being prosecuted in Manhattan, Brooklyn, the Bronx, White Plains or Yonkers, one possible outcome of your criminal case that you may navigate to, and a very good one under the right circumstances, is an adjournment in contemplation of dismissal or ACD. See CPL 170.55.

If, for example, you are charged with a misdemeanor such as Assault, Criminal Possession of a Controlled Substance (drug possession), Petit larceny, or Menacing, an ACD, other than an outright dismissal, is the best possible outcome. When accepting an ACD you are not admitting to any crime, pleading guilty or stating you were involved in any wrongdoing. In practical terms, the case is being dropped and if you stay out of trouble and abide by certain conditions, the case will be dismissed and sealed within six months (or one year if it is a "family" criminal matter). If, however, you do not abide by certain conditions as set forth at the time of the ACD, the prosecution may seek to re-open your case and proceed on the original charges during the six months or one year the case is not active and prior to its dismissal. Once it is dismissed the prosecution cannot reopen the matter as it will be sealed.

In the case of an arrest and charge of Criminal Possession of Marijuana or Criminal Sale of Marijuana, an ACD is only available if, for example, you have not previously received an ACD or you have not been previously convicted of any offense involving controlled substances. See CPL 170.56.

A New York criminal defense attorney must analyze each case individually before advising his or her client to accept an ACD. It may be that an ACD is an acceptable disposition in your criminal matter, but it in some circumstances it may not be appropriate. For example, if you are considering suing the city or the police due to brutality, violation of your rights or another matter, an ACD may make that suit more difficult.

As an Assistant District Attorney who served in the Manhattan District Attorney's Office for seven years and as a New York criminal defense attorney, I have prosecuted, investigated and defended a wide spectrum of crimes ranging from Identity Theft, Forgery and Grand Larceny to Possession of a Weapon, Rape and Kidnapping. Through my years of experience I have heard the same question asked by witnesses of crimes over and over again. That is, "I received a subpoena for the Grand Jury. Do I have to go to the prosecutor's or District Attorney's Office?" The answer to this question is always and absolutely in the negative. In fact, ther is "no power in the District Attorney under our existing law to employ a subpoena to [require a] witness to attend his office or any other place where a Grand Jury is not sitting or where a court is not convened in action or proceeding." People v. Boulet.

Prosecutors are entitled to issue subpoenas on behalf of the Grand Jury that require your personal appearance in front of that body. On the face of the subpoena or the cover letter, the prosecutor will often indicate that he or she would like you to come to the office prior to going to the Grand Jury. Prosecutors are not being dishonest or trying to trick you to come down to their office first in lieu of going to the Grand Jury. There is no reason for them to behave in this manner. In fact, it may save both parties the time and energy of going into the Grand Jury or it may turn out that after a few questions from the prosecutor it will be determined that you are not needed and you can go back home or back to work. At bottom, there are many valid reasons why a prosecutor would request that you come to the office first.

Despite the valid reasons, the prosecutor may believe that you are involved in criminal activity or have information about criminal activity. If you are concerned that you are the target of an investigation or you believe that you may implicate yourself or a loved one in a criminal matter, it may be in your best interest to retain a New York criminal defense attorney to accompany you to the Grand Jury. In the alternative, a criminal defense attorney may be able to challenge the subpoena or tell the prosecutor that you will not come to his or her office. At a minimum, a criminal defense attorney might be able to speak with the prosecutor to better understand the purpose of the subpoena or arrange for a mutually agreeable time for you to come down to the Grand Jury or the District Attorney's Office. On the other hand, and more importantly, an experienced NY criminal defense attorney can stop you from implicating yourself or a loved one to a prosecutor who may decide to prosecute you or further his or her investigation.

You have a trial in Manhattan Supreme Court or Brooklyn Criminal Court and you fail to return on the scheduled date. In the alternative, you pleaded guilty in Bronx Criminal Court after bargaining with the prosecutor and the judge scheduled a date for sentencing, but you didn't return. The question you now have is can the judge proceed with the trial against me or can he sentence me or increase my sentence without me being there?

Judges, prosecutors and criminal defense attorneys often throw around a term that is applicable to this question. That is, did you receive your Parker Warnings? The Court of Appeals, in People v. Parker and the line of cases that followed, has held that a defendant must be present at the time of trial and sentence. This right can be waived, but the defendant must be informed at the time he pleaded guilty or the case was adjourned for trial that the case would proceed without his presence. Moreover, in the event of a sentencing, the defendant must also be advised that he may receive a harsher sentence if he does not return and he will not be permitted to withdraw his plea.

In the event a defendant does not return for sentencing or trial, a Parker Hearing should be ordered to determine that the defendant's absence was voluntary or whether the defendant may be located within a reasonable amount of time. When these hearings take place, the prosecution is usually required to establish that the defendant was not hospitalized, jailed in another jurisdiction or had other issues impacting his ability to return to court. In other words, a defendant's absence does not give the prosecution or the court the blanket authority to proceed with the case.

Regardless of your situation, it is always important to get to court on time and on the scheduled date. Even if the case does not proceed in your absence, a bench warrant may be issued authorizing your immediate arrest. If there is a legitimate reason for your absence and you know in advance (such as hospitalization), you should supply a criminal defense attorney with any and all applicable information and documentation so that he can prevent any warrant from being ordered.

A Manhattan Judicial Hearing Officer recently ruled in People v. Moustapha Diagne, that prosecutors in New York County (Manhattan) failed to adhere to speedy trial requirements set forth under the New York State Criminal Procedure Law. Therefore, the case against the defendant was dismissed. Specifically, the prosecutor did not file a "certificate of readiness" (a document declaring a prosecutor ready for trial and stopping the speedy trial clock from ticking) in a matter that was adjourned for approximately four months after motion practice ended, but before a hearing or trial commenced. Although this decision is not controlling over judges in other counties in New York State such as Westchester, Brooklyn, Bronx and Queens, it is a well thought out argument that an experienced defense attorney could add to his arsenal of weapons to attack a prosecutor's case and defend his client.

By way of background, prosecutors are required to be ready for trial and in 90 days from arrest, less excludable time. One example of excludable time is where a defense attorney makes motions (papers filed on a defendant's behalf to challenge evidence and the sufficiency of the criminal complaint) and a prosecutor responds to the motions. However, when a case is adjourned after motions, the law does not say precisely how much time is included or excluded within this 90 day period prior to trial.

Although there are some established cases that allow a "reasonable" amount of time for a prosecutor to prepare for trial, the Judicial Hearing Officer in Moustapha Diagne ruled that the instant case was simple and did not require extensive preparation. The Judicial Hearing Officer reasoned that two weeks should be sufficient for such preparation. Furthermore, where there is a long adjournment, as in this case multiple months, a prosecutor should file a "certificate of readiness," or advance the case on the court calendar to start the trial. Although a two week rule is far from set in stone, an aggressive, skilled and zealous attorney advocating for your rights should site this case, when applicable to, to seek to have your case dismissed.