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Articles Posted in Criminal Procedure

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).

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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

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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.

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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.

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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.

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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.

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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.

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