Criminal Law Frequently Asked Questions

1. Don’t try to convince the officer of your innocence. He could care less.  If you feel that urge to convince him he’s made a mistake, remember the overwhelming probability that instead you will say at least one thing that will hurt your case, perhaps even fatally. Let your attorney handle your defense.
2. Don’t run. It’s highly unlikely you will actually get away.  Further, you open yourself up to more charges and the possibility of being injured in the chase.
3. Keep quiet. Do not give the police a statement—immediately ask to speak with an attorney.
4. Don’t give permission to search anywhere. If the police ask, it probably means they don’t believe they have the right to search and need your consent.  If you give the police permission to search you will not be able to challenge the search at a later time.
5. If the police are searching your car or home, don’t look at the places you wish they wouldn’t search. Don’t react to the search at all, and especially not to questions like “Who does this belong to?”
6. Don’t resist arrest. Above all, do not push the police or try to swat their hands away. That could be considered assaulting an officer and any slight injury to them will more than likely turn your minor misdemeanor arrest into a felony.
7. Do not believe what the police tell you in order to get you to talk. The law permits them to lie to a suspect in order to get him to make admissions.  They will tell you that if you give a statement they will go easy on you, they will tell you that your friends have just given a statement that says “you did it,” don’t believe any of this, don’t be fooled into giving a statement.
8. If at home, do not invite the police inside, nor should you “step outside”. If the police believe you have committed a felony, they usually need an arrest warrant to go into your home to arrest you. If they ask you to “step outside”, you will have solved that problem for them. The correct responses are: “I am comfortable talking right here.”, “No, you may not come in.”, or “Do you have a warrant to enter or to arrest me in my home?”
9. If you are arrested outside your home, do not accept any offers to let you go inside to get dressed, change, get a jacket, call your wife, or any other reason. The police will of course escort you inside and then search everywhere they please, again without a warrant. Likewise decline offers to secure your car safely.
10. When allowed to make a phone call, be careful what you say on the phone. The call will probably be recorded and can be used against you. Just tell the person you called where you are and that you have been arrested; do not go into any details.

If you plead guilty to a misdemeanor, you will, in most cases, have a criminal conviction. In other words, you will have a criminal record. On employment applications, you will have to divulge that you have a criminal record. Some careers will no longer be available to you, as a criminal record automatically acts as a bar to certain jobs.

Although you are never legally obligated to have an attorney, it is usually a good idea to retain an attorney who is skilled and experienced in the area of law relevant to your needs. Many courts are reluctant to allow defendants to represent themselves. A skilled attorney will know the options available to you, will be skilled in the art of plea negotiations and can advise you as to whether a plea or a trial are in your best interests.

Wrong. Violations carry possible jail sentences. Additionally, there are hidden consequences to some pleas. For example, if you are a college student in receipt of federal student loans, you automatically lose your eligibility to continue to receive those loans for a period of one year from a plea of guilty to possession of ANY amount of marijuana.

Wrong. Each case is different. The prosecutor and the court look at a number of factors before offering or agreeing with any plea deal. Some of the factors involved include: the defendant’s prior criminal history; whether anyone was injured, and if so, how seriously; the effect on the community; whether the case got media attention; whether the victim is cooperative; the criminal history of the victim; the likelihood of success at trial; what attorney is representing the defendant; the policies of the prosecutors office (they vary from county to county).

Wrong. All courts report the charges and dispositions of all cases. In addition, courts provide this information to companies who perform background checks. A conviction in any court will be reported and will show up in a background check for employment, credit applications, landlord searches, etc.

BAC stands for “blood alcohol concentration.” It measures the concentration of alcohol in a person’s blood.

While licenses can be suspended or revoked for many of the alcohol and/or drug-related offenses, it is possible to obtain a conditional license. Those who are convicted of their first DWI or DWAI may be eligible for a conditional license if they first enroll in the Drinking Driver Program.

No. New York State law prohibits plea-bargaining to a non-alcohol and/or drug-related offense.

The Driver Responsibility Assessment is an additional fine on top of fines and surcharges associated with your alcohol and/or drug-related conviction. Failure to pay the assessment can result in a suspension of your license.  For convictions of DWI, DWAI/Alcohol, or DWAI/Drug, or a refusal to submit to a chemical, you will in turn be required to pay an Assessment of $250 each year for three years following your conviction.

Generally, a conviction will stay on your record for 10 years. However, keep in mind that a repeat offense within 10 years following your first conviction can lead to more severe penalties.

If you are convicted of an alcohol and/or drug-related offense, you may be required to enroll in the Drinking Driver Program. The Drinking Driver Program (“DDP”) is a program offered by the New York State Department of Motor Vehicles for people who have been convicted of a DWI offense. Many people will enroll in the DDP in order to obtain a conditional driver license, however not everyone is eligible to enroll in the program. Unless ordered by the court, drivers are ineligible for the program if they had already been convicted of a DWI within the previous 5 years, or if they were still enrolled in the program within the previous 5 years of a DWI conviction.

If you are convicted of an alcohol and/or drug related offense, you may be required to attend a Victim Impact Panel. The Victim Impact Panel is a panel comprised of victims or friends and family of victims of drunk driving-related incidents who speak about how the incidents have impacted their lives.

A conditional license allows a person with a DWI or DWAI conviction to retain their license under certain restrictions.  New York State Traffic Law permits drivers with conditional licenses to drive:

• to and from work
• during work if so required by the person’s employment
• to and from class at an accredited school, college or university
• to and from a state-approved institution of vocational or technical training
• to and from an authorized activity as part of the alcohol and drug rehabilitation program if the person’s attendance is required
• to and from court-ordered probation activities
• to and from the DMV for matters relating to their license
• to and from medical and/or dentist appointments for the driver and/or for members of the driver’s household.
• to and from places of childcare, if the childcare is necessary for the person to maintain employment or enrollment in school or vocational or technical training
• for three hours of consecutive personal time

According to the Prompt Suspension Law in New York State, your license will be suspended pending prosecution if you are accused of an alcohol and/or drug-related offense. However, a driver can make an argument that suspending his/her license pending prosecution would create an “extreme hardship” and request a hardship license. New York State Vehicle and Traffic Law defines an extreme hardship to be an inability to obtain alternative means of travel to and from work or to necessary medical treatment for the driver or for a member of the driver’s household. If granted, the hardship license would give the driver the specific privilege of driving to and from work, but not during work, or to the necessary medical treatment while awaiting prosecution.  Commercial drivers are ineligible for a hardship license.

Criminal prosecutions usually begin with the arrest of a suspect by a police officer, or by the filing of a formal action in court and the issuance of an arrest warrant or summons.

A person who is arrested is taken to a police precinct and processed.  The processing of an arrested individual consists of taking personal data and, where required, the individual is fingerprinted.

Arrest

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

Accusatory instruments including information’s, misdemeanor complaints, simplified traffic information’s and felony complaints are also prepared in the station house by police personnel.

A detective will be assigned to cases where investigations are needed. In addition to the traditional duties of investigation, detectives play a vital role in pure evidence gathering and preparing a case for trial. Detectives interview and interrogate arrested persons and witnesses to procure statements concerning the criminal incident.

After processing, a person is either detained or released on bond (bail) or Appearance ticket for a court appearance that day or the next, depending upon the time processing is completed.

Accusatory Instruments

Informations are sworn statements charging offenses of less than felony grade. The Information or supporting depositions annexed to it supply allegations to each element of the crime on personal knowledge, (for example an information charging unauthorized use of an automobile, will have statement sworn to by a policeman indicating the defendant operated a motor vehicle. Attached will be a supporting deposition of the vehicle’s owner indicating that no person had permission to so use the vehicle).

Misdemeanor Complaint is simply an allegation made on hearsay (Example – the information alluded to above would be a misdemeanor complaint if the deposition of the vehicle’s owner was not attached). A person may only be held five days on such a misdemeanor complaint, and unless he waives, he cannot be forced to trial on such an instrument.

Simplified Information is a very short Information charging a misdemeanor offense or less, for example: a

Arraignment 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 lower Court. The arraignment is for the same purposes as a lower Court arraignment, that is to read the charges in the indictment and set bail. At arraignment, the case is assigned to a County Court Judge and a conference date is set.

Conferences in County Court are plea bargaining sessions conducted usually in the initial phase by the Judge the Assistant District Attorney and defense counsel.

If no disposition is possible, the case is set for trial. Pre-trial hearings are then scheduled and held. The order of the trial is the same as in lower Court. In felony trials, there are 12 member juries, the preemptory challenges are by degree of crime (A-felony 20, B & C felonies 15, all else 10).

Appellate rights are similar to those explained above except that appeals in felony cases go to the Appellate Division, 3rd Department, rather than the Appellate Term.

If you have any further questions relating to Felonies or Misdemeanors please contact our office.