The Kessler Law Firm

CRIMINAL DEFENSE

Criminal Defense Attorney New York and Long Island, NY

BASIC STEPS IN A CRIMINAL CASE

  

Criminal cases all have the same basic steps, but many different things can happen and most cases do not go through all the steps

  1. Arraignment : at the arraignment, the defendant is assigned an attorney if he or she can’t afford one. The criminal complaint is read in court. This tells the defendant what the criminal charges are against him or her. The defendant then tells the court if he or she is guilty or not guilty. This is called the defendant’s plea. If the defendant pleads guilty, the defendant skips to the Sentencing step. If the defendant pleads not guilty to a felony, the case goes to the Grand Jury unless the prosecutor reduces the charge from a felony to a misdemeanor and/or violation.
  2. Pre-Trial : Before the trial, both sides exchange information called discovery. Either side can file pre-trial motions to ask the court for something in the case. Hearings are held on the pre-trial motions.
  3. Trial : the trial may be decided by a Judge or a jury. The prosecutor must prove that the defendant is guilty beyond a reasonable doubt.
  4. Sentencing : After a conviction or a guilty plea, the court will decide the defendant’s punishment. This is called the sentencing.

 

During the case, both sides can agree to a Plea Bargain that settles the case.

 

PLEA BARGAINING 

 

Plea bargaining is when your lawyer and the prosecutor talk about settling the case without having a trial. This can be done at any time during the case, from the arraignment up until a verdict in a trial. You can ask for a plea bargain, but the prosecutor can choose not to plea bargain with you. If you agree on a plea bargain, it must be approved by the Judge. Only the Judge can decide your sentence. For example, you may agree to plead guilty in exchange for the prosecutor’s promise to ask the Judge for a sentence with no jail time, just probation. Or, you and the prosecutor may agree that you will plead guilty to a lesser charge that has a lower range of punishments for the Judge to choose from at your Sentencing.

 

TYPES OF CRIMINAL CHARGES IN NEW YORK STATE 

 

A Violation is an offense other than a traffic infraction for which a sentence to a term of imprisonment of up to 15 days may be imposed (New York State Penal Law, Article 10). It is the least serious type of proscribed activity and encompasses such offenses as harassment, trespass, and disorderly conduct. A person arrested for committing a violation may be taken into custody but will usually be issued an appearance ticket indicating the time and place that he must appear in court. A violation is not a crime.

 

A Misdemeanor is an offense other than traffic infraction of which a sentence in excess of 15 days but not greater than one year may be imposed (New York State Penal Law, Article 10). A misdemeanor is a crime. Petit larceny, criminal mischief in the fourth degree and assault in the third degree all fall into this category. Misdemeanors are grouped into one of three classes: Class A, Class B, or Unclassified. Upon conviction of a Class “A” misdemeanor, a court may sentence an individual to a maximum of one year in jail or three years probation. In addition, a fine of up to $1,000 or twice the amount of the individual’s gain from the crime may be imposed. Offenders found guilty of Class “B” misdemeanors face maximum penalties of up to three months imprisonment or one year probation. In addition, a fine of up to five hundred dollars or double the amount of the defendant’s gain from the commission of the crime may be imposed. An unclassified misdemeanor is any offense not defined in the Penal law (other than a traffic violation) for which a sentence of imprisonment of greater than 15 days but not in excess of one year may be imposed.

 

A Felony is an offense for which a sentence to a term of imprisonment in excess of one year may be imposed (New York State Penal Law, Article 10). A felony is a crime. There are five categories and two subcategories of felonies (A-I, A-II, B, C, D, and E) ranging from the most to least serious in terms of severity of offense and the degree of potential punishment incurred. The penalty can vary from a term of probation to life imprisonment. In addition, the Penal Law authorizes the imposition of a fine not exceeding the higher of $5,000 or double the amount of the defendant’s gain from commission of the crime.

 

In the Penal Law’s description of each crime, the “degrees” of an offense determine the seriousness of the offense. For example, burglary in the third degree is a Class D felony and burglary in the second degree, the more serious offense, is a Class C felony.