Handling Criminal Cases in First District Court

From Start to Finish

January 27, 2008
Prepared for NCBA
by Brian J. Griffin, Esq.
Foley Griffin, LLP
666 Old Country Road- Ste. 305
Garden City, NY 11530
bjg@foleygriffin.com
www.foleygriffin.com

Table of Contents

I. The Phone Call
II. The Arraignment
III. The Conference
IV. The Plea
V. The Trial
VI. The Pre-sentence Report
VII. The Sentence

I. THE PHONE CALL

Many criminal cases begin in the middle of the night with the phone call from a distressed family member, or the client, reporting to you a new arrest. At this point you must wake up and spring into action.

  1. Keep track of date and time - Always take written timed notes of your interaction with the client, the family and the police.
  2. Get basic information - Client’s name (correct spelling), DOB, where and when the event occurred, who is holding the client.
  3. Call the police - It is imperative that you immediately contact the police department to advise of your entry into the case. This triggers the defendant’s right to counsel.
    1. Important Numbers
      1. Main Line NCPD 573-7000
      2. 1st Pct – 573-6100
      3. 2nd Pct – 573-6200
      4. 3rd Pct – 573-6300
      5. 4th Pct – 573-6400
      6. 5th Pct – 573-6500
      7. 6th Pct – 573-6600
      8. 7th Pct – 573-6700
      9. 8th Pct – 573-6800
    2. Listen to the name of officer answering phone, write it down and immediately and repeatedly lawyer your client up. Find out the charges and how long they will be taking to process your client. Speak briefly with the client but do not let the client discuss the facts of the case.
  4. Arrange for your fee and bail with family - This is the time to discuss with the family the charges, the potential for bail and your fee.

II. THE ARRAIGNMENT

  1. Nassau County Arraignment Location and Hours:
    1. Where – Arraignments are held at 99 Main Street in Hempstead
    2. When – the Hours for Arraignments are: Monday – Friday 10am & 2pm
      Sat, Sun, Holidays 10am
  2. Call Ahead - You should always call ahead to the Court to let them know you are coming and to hold your client’s arraignment until you arrive.
    1. Arraignment A – 572-2199
    2. Police Liaison – 572-2311
  3. The Arraignment itself:
    1. See the family first - Get retained, get background, discuss ability to post bail.
    2. See the clerk – File your notice of appearance, ask for a copy of charges.
    3. See the client – Go to the pens and interview your client.
    4. See the DA – Ask the DA what their position on bail will be, they will tell you.
    5. The magic language – Waive a public reading but not the right to be prosecuted by a sufficient information, enter a plea of not guilty, demand a trial by jury.
    6. Setting of bail:
      1. The factors in deciding bail are: the nature of the charges, the background of the client, whether the client presents a danger to society and whether the client will return to Court. (Specifically see CPL 510.30)
      2. Possible bail: ROR, RCP, CRP, Cash, Bond.

III. THE CONFERENCE

  1. IAS System - Nassau County District Court uses an Individual Assignment part System. Your judge is your judge, from beginning to end.
    1. Private Attorney Parts – Parts 1, 2, 3, 4, 5 and 6 are the private attorney parts. These parts handle garden variety misdemeanors and violations.
    2. DWI Parts – Parts 7 and 8 handle all DWI cases from initial conference through trial.
    3. Domestic Violence Part – This part is as specialty part in that it has treatment coordinators etc. in the courtroom.
    4. Treatment/Drug Part and Mental Health Part – These parts are specialty parts in that they have treatment coordinators in the part but they are also diversionary parts.
  2. The Plea Bargain Process - The majority of criminal cases end with a plea bargain. At your Court conference you will have an opportunity to meet the DA handling your case and an opportunity to discuss defenses and pleas.
    1. Offer & Sentence Condition – Usually a plea bargain will represent an opportunity for your client to pled to a lesser charge with a conditioned sentence.
  3. Discovery - Every client charged with a misdemeanor is entitled to Discovery. (CPL Section 240.20)
    1. VDF’s (Voluntary Disclosure Forms) – It is common practice for the DA to voluntarily give discovery without a formal request.
    2. Demands – Even if you get VDF’s, unless you feel there is no chance of litigation, file a formal Demand within 30 days of arraignment. (CPL 240.80)
  4. Pre-trail Hearings - Prior to trial a client may have the right to a pre-trail hearing to determine if certain evidence was obtained in violation of their constitutional rights. (See CPL 710) To name a few:
    1. Dunaway hearing – to determine probable cause.
    2. Huntley hearing – to suppress admissions.
    3. Wade hearing – to suppress an out of court identification of your client.
    4. Mapp hearing – to suppress physical evidence taken from your client.

IV. TAKING A PLEA

  1. The majority of cases end with a plea. It is important to go over the workings of how to take a plea with your client prior to taking one.
    1. DA’s application - unless your client is pleading guilty to all the charges, the DA begins the plea process with an application to amend and reduce the charges.
    2. Defense attorney’s role - the defense attorney must join in the DA’s application and withdraw any pending motions.
    3. Court’s role - the court must approve the plea and will also insure that your client understands the plea, understands their rights, understands the rights they are waiving and that they properly admit their guilt.
    4. Client’s role - the client will be placed under oath, must indicate a full understanding and must admit their guilt.

V. THE TRIAL

  1. If a case is not resolved with a plea than it will move to a trial. Depending on the level of offense and your client’s desire, you may have a bench or jury trial.
    1. Bench Trial - The judge will act as both the finder of fact and law. Much less formal and much faster. Mandatory on a violation, optional on misdemeanor.
    2. Jury Trial - 6 of your client’s peers (and 2 alternates) will act as fact finders and decide your client’s guilt or innocence.
    3. The order of a trial:
      1. Jury selection
      2. Opening Statement
      3. People’s case
      4. Cross Examination
      5. Defendant’s Case
      6. Closing Arguments

VI. THE PRE-SENTENCE REPORT

  1. Whether convicted of a misdemeanor by a plea or by a jury, the Court will usually order a pre-sentence report.
    1. Why? - Gives the Court an independent background of your client. Social, economic, familial and criminal history will be discussed and reported to Court. The probation department prepares the report and recommends to the judge what sentence they feel is appropriate.
    2. Clients obligations - Between time of plea and sentence your client must cooperate with probation, answer their questions honestly, not get re-arrested and show up for sentence.
    3. Attorney’s Role - This is the one place in the system where defense attorneys, often by choice, have little or no involvement.

VII. THE SENTENCE

  1. As there is no mandatory sentence guidelines on misdemeanors, sentences can vary greatly.
    1. Conditional Discharge - Involves paying a fine and staying out of trouble for 6 months.
    2. Probation - Can be given for 1 or 3 years. Client must report regularly and follow all conditions. Violation of conditions means a violation of probation (VOP) and a re-sentence.
    3. Jail - Can be given for as little as one day and as much as 1 year. Served in Nassau County Correctional Facility. Client serves 2/3 of original sentence.