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- Criminal Defense in New York State
Written By:Adam H. Rosenblum
Your Dedicated & Trusted Legal Team
3 Generations & 100+ Years of Combined Legal Experience
Whether innocent or guilty, facing criminal charges is a frightening experience. The accused risks losing their freedom, finances, and future if convicted. A criminal record sticks around for years and hinders every aspect of life. When arrested in New York State, the person is in for what could be a long journey through the complexities of the legal system. Hiring a criminal defense attorney can make all the difference in the defendant’s future.
An experienced legal defense team can help you in different areas of criminal law, including:
- White Collar Crimes
- Weapons Offenses
- Drug Crimes
- Assault and Battery
- Sex Crimes
Types of Criminal Cases in New York State
In New York, criminal defense matters fall into one of three categories:
Even though law enforcement may take the offender into custody, a violation is not considered a crime. Instead, a violation is an offense with a penalty of up to 15 days in jail. Violations include trespassing and disorderly conduct.
A misdemeanor is a lower-level offense that has a maximum penalty of a year in jail. Misdemeanors are divided into Class A, Class B, and unclassified. Class A is more severe than Class B.
Felonies are more severe crimes, such as robbery and homicide, and significant financial crimes. Depending on the severity of the crime, sentences can range from a minimum jail sentence of 1 year to life imprisonment.
The Criminal Prosecution Process
The criminal prosecution process can be a confusing experience. Therefore, it is always best to consult an attorney when clarification is needed. Here are the expected stages when facing criminal charges in New York:
A criminal investigation is the first stage of the criminal prosecution process. During an investigation, law enforcement will collect evidence to identify the suspect and support an arrest. In addition, law enforcement may deem it necessary to do a search of the suspect’s property based on probable cause.
After completing an investigation and where reasonable cause exists, law enforcement will make an arrest. Law enforcement will read the suspect their rights, and depending on the crime, the suspect will either be given a DAT (desk appearance ticket) or be held in jail for up to 24 hours before arraignment.
If, at this point, a felony case has not been downgraded or dismissed, a grand jury of selected citizens will review the evidence presented and decide whether there is enough evidence to support the charges. If the grand jury finds enough evidence for the case to proceed to trial, an indictment will be issued that will list the charges being brought against the accused.
This will be the defendant’s first court appearance. During an arraignment, a judge will read the defendant’s charges, and the defendant will enter their plea of either guilty or not guilty. For a plea of not guilty, a court date is set. If the defendant pleads guilty, a sentencing date will be scheduled. A defense attorney will ideally be representing the defendant at this point. They will be able to help negotiate or eliminate bail.
In New York, the judge can set bail for the defendant. When deciding whether to grant bail, and how much money has to be posted, several factors are considered, including criminal record, reputation, employment, whether the defendant is a flight risk, and the strength of the case. It is common for both the prosecutor and defense attorney to make arguments based on these factors. The judge will then decide the amount of bail required to ensure the defendant returns to court.
Following this, the person is incarcerated until bail is posted for them (if applicable). If bail is posted, the defendant is let out and must return to court on the given date. In severe cases, the judge can deny bail, and the person will be held in custody until the case ends.
An experienced attorney will know how to best prepare a bail application. Thus, representation by a seasoned defense attorney can make all the difference between being in jail for the course of the case or the defendant being freed to help in their defense.
Discovery, Motions, and Investigations
Under New York State law, defendants and their lawyers have a right to all information that may either be used against them, or in favor of them. This is called “discovery”. Pertinent information can include photographs, video, witness statements, evidence linking another party to the crime, law enforcement notes, and other paperwork. All of these must be given to the defense attorney before the trial begins.
The defense attorney has 45 days from arraignment to file motions, including suppression of evidence, statements or past crimes, dismissal, or any other issues the court should address before the trial. If law enforcement failed to read the suspect their (miranda) rights, or if they requested an attorney, then statements made during interrogation can be suppressed.
Pre-trial discovery does have limitations. For this reason, a defense attorney may decide to complete an investigation themselves. Whether or not they do depends on the facts and circumstances of the individual case. One of the most common reasons why the defense may choose to do an investigation is if there is reason to believe law enforcement didn’t do a thorough enough job, or did something wrong in their investigation. For example, if law enforcement wrongfully coerced someone into giving consent to do a search, evidence found during it may be deemed inadmissible during a trial.
The trial consists of jury selection, opening statements, presentation of evidence, closing arguments, the jury’s deliberation and findings, and the verdict. Trials are a complex process, and any mistake made will likely lead to a loss of freedom. During the trial, an experienced defense attorney must challenge the prosecution on their knowledge of the rules of evidence and New York State criminal procedure and prove that their client is not guilty.
Sentencing will determine the penalty that the defendant will face. If not part of a plea deal, sentencing is decided by the judge. New York State law requires a pre-sentence investigation. A pre-sentence investigation describes the defendant’s background, circumstances of the crime, and the recommended sentence. A seasoned defense attorney can paint their defendant positively and attempt to persuade the judge to issue a lighter sentence.
In New York, convicted individuals have the right to appeal to a higher court (unless they took a plea bargain and waived that right). They may request that the Appellate Division or the New York Court of Appeals hear the case if they lose the first appeal. However, the Court of Appeals is not required to take every case. The appeal process requires an attorney with a specialized set of experience and skills to navigate.
The Effects of a Criminal Conviction
When convicted, a person may worry about the punishment they will have to endure. Even for those who do not receive a sentence, there are still consequences of having a criminal record. A conviction can have a negative impact on the one’s life, damaging a reputation and making it difficult to:
- Find employment
- Obtain insurance or financing
- Adopt a child
- Hold public office
- Obtain rental housing
Because of these adverse consequences, a person found guilty of a crime may choose to erase their record by seeking a criminal expungement.
New York is one of the strictest states when it comes to clearing one’s criminal record. However, a convicted felon may be able to have their record sealed, and if sealed it will not be able to be accessed by the general public. There is a limit to how many records can be sealed and the eligibility of the offense. In addition, there is a ten-year waiting period after conviction before a person can apply. Crimes that are eligible to be sealed can be found here.
Rights Upon Arrest
The U.S. Supreme Court has ruled that suspects must be aware of their rights upon arrest to make an informed decision when talking to authorities. While these rights are read to a suspect after arrest, it is important to know that these rights are valid before arrest as well. A suspect’s rights include the right:
- To call a friend, family, or lawyer to notify of arrest
- To remain silent
- To have an attorney present
Without understanding these rights, an accused person may undergo rigorous questioning and give answers that confirm law enforcement’s suspicions, leading to an arrest. It’s always best to cut off questioning by asking for an attorney immediately.
How Can a Criminal Defense Attorney Help?
With so much at risk, having the right defense team in place is essential. Anyone who is convicted of a crime has the right to a competent legal defense. In cases where the defendant can not afford to hire a private criminal lawyer, a public defender will be appointed to represent them.
A court-appointed public defender cannot refuse a client and will usually be working on many cases simultaneously. Therefore, the public defender’s attention will not be on one individual case. In fact, many public defenders are (unfortunately) overburdened by their caseloads.
In lieu of a court-appointed attorney, the defendant or their family can hire a private criminal defense attorney to work alongside the accused throughout the case. Private attorneys have the option to refuse a case. Their usually smaller caseloads make it easier to communicate with them, and they can provide a more specialized and unique strategy than a public defender may be able to provide.
Common Defenses to Criminal Charges
The advice and counsel of an experienced criminal defense attorney are invaluable when exploring rights and options, including the types of defenses available to the defendant. Defenses typically will fall into three broad categories:
- The defendant did not understand the significance of the crime.
- The defendant was justified.
- No crime occurred.
Defendant Did Not Understand the Significance of the Crime
Under this defense category, the attorney will argue that the defendant can not be found guilty because they did not understand that their actions were criminal. Common claims associated with this defense include:
- Mistake of law or fact
Defendant Was Justified
Under this defense, an attorney will argue that the crime committed was justified. Defenses based on justification are:
No Crime Occurred
Finally, the defense can argue that the defendant committed no crime despite appearances. This set of defenses will commonly focus on one of the following:
What to Do When Facing Criminal Charges
When facing prison time, every minute counts. If you are being accused of a crime, don’t think you need to fight alone. We can help. The team at Rosenblum Law understands that when you face a criminal accusation, your freedom, finances, and future are at risk. With over 25 years of combined experience and a proven track record of success, Rosenblum Law knows the ins and outs of the criminal justice system and will defend you through all stages of representation. We are able to assist you in state and local courts across New York State. Give us a call today to begin the process of fighting your case.
When hiring a defense attorney, you’ll want to look for a reputable, experienced team that knows the legal system and has the track record of success to prove it. Honesty, communication, and integrity are also things to look for when searching for an attorney to represent you. In addition, your region has its own unique set of laws, so you’ll want a lawyer who is well-versed in these and well-connected to the right resources to make things happen quickly and efficiently.
When acquitted, you are deemed “not guilty” and therefore hold no obligation to the court for the charged crime. An acquittal can not be appealed, and you can not be charged for that same crime again.
If you plead guilty, you are telling the court that you are responsible for the crime you are convicted of. If a jury finds you guilty, they have reviewed the evidence and concluded that you are guilty beyond a reasonable doubt. You will face sentencing by the judge.
Lawyers have a legal responsibility to represent their clients. As long as a lawyer doesn’t lie or mislead the court, the person they represent can be guilty of committing the crime they are charged with.
Double jeopardy is a constitutional protection that prohibits a person from being charged twice for the same crime.
The cost for a criminal lawyer in New York state varies greatly depending on experience, location, the case’s complexity, and the firm’s reputation. However, you can expect to pay between $76-$506 per hour in New York State.
If there is an arrest warrant out for you, you should first get legal aid from a defense attorney to determine if the warrant is valid and what the warrant pertains to. Your attorney can help investigate and advise on your next best steps. After consulting with your attorney, the best thing you can do is turn yourself into the precinct of the issuing jurisdiction. Doing so is a voluntary surrender and can help you as your case progresses.
It is essential to know you have rights after being arrested. Once taken into police custody, they must inform you before questioning that you have the right to remain silent, that anything you say can and will be used against you in a court of law, and that you have the right to a lawyer. If you can not afford a lawyer, one will be provided. In addition, you have the right to phone your family, friends, or lawyer to notify them of the arrest.
Your family can visit you while you are in police custody. However, the frequency and number of visitors depend on the institution and the case.
Average lawyer hourly rates for New York (2022). Clio. (2021, June 3). Retrieved March 9, 2023
About The Author
Adam is the founding attorney and principal of Rosenblum Law. With more than two decades of legal experience in numerous areas of law practice, his primary focus is law firm management and business development.Read More
How to Cite Rosenblum Law’s Article
Adam H. Rosenblum (Mar 31, 2023). Criminal Defense in New York State. Rosenblum Law Firm, https://rosenblumlaw.com/our-services/criminal-defense-ny/
Adam H. Rosenblum "Criminal Defense in New York State". Rosenblum Law Firm, Mar 31, 2023. https://rosenblumlaw.com/our-services/criminal-defense-ny/