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District Attorney

The Criminal Justice Process

In an effort to keep Orange County’s citizens informed about the nature of the system that serves them, we offer the following brief description of the workings of the criminal justice system in New York, in general, and in Orange County, specifically.

A word of caution: The laws regulating the criminal justice system are complex, filling many volumes of statutes and case decisions. As a result, this short treatment of the subject will necessarily be incomplete. It should not be used as a substitute for thorough research on any of the subjects that it discusses.

What types of offenses are there in New York?

    In New York, there are four classes of offenses for which a person may be prosecuted: traffic infractions, violations, misdemeanors, and felonies. Traffic infractions and violations are considered “petty offenses,” and are not considered crimes. They carry the least severe sanctions, generally no more than fines or jail sentences of up to fifteen days. Examples of violations include disorderly conduct and harassment.

      Misdemeanors and felonies are crimes. Misdemeanors are less-serious crimes, carrying no more than one year in jail. Examples of misdemeanors are shoplifting, minor assaults, criminal mischief, driving while intoxicated, and possession of small amounts of illegal drugs. Felonies are more serious, and carry more than a year of imprisonment, including possible life sentences for the most-serious felonies. Examples of felonies are robbery, burglary, grand larceny, selling narcotics, and murder.

      Most crimes and violations are defined in the New York State Penal Law, but some are defined in other parts of New York law, including the Correction Law, the Environmental Conservation Law, and the Agriculture and Markets Law. All traffic infractions and some crimes are also de-fined in the Vehicle and Traffic Law.

      What happens when someone is arrested?

      In most cases, an arrest is the first stage in the criminal justice process, although in cases involving non-alcohol-related traffic infractions, defendants will almost always be issued traffic citations and not be taken into custody. If a defendant is taken into custody, the police will always be legally permitted to search the defendant for evidence or weapons, and may perform additional steps in the investigation, such as taking a statement from the defendant or conducting procedures designed to determine whether witnesses can identify the defendant as the perpetrator of the crime. In most cases, other than traffic infractions, the defendant will be fingerprinted. Police officers will also prepare reports concerning the offense and the arrest. The police will then draft the charges for the offenses that the defendant is alleged to have committed, and will generally file those charges in the court that has jurisdiction over the crime, for example, the City of Middletown, the Town of Monroe, or the Village of Goshen. For many less-serious crimes and petty offenses, the arresting officer may give the defendant an appearance ticket, which allows the officer to release the defendant from custody and requires the defendant to appear in court at a later date. If an appearance ticket is not issued, a defendant will be held to appear before a judge.

      What is the function of the District Attorney?

      The Orange County District Attorney’s Office represents the People of the State of New York, and has the authority to investigate and prosecute all offenses in Orange County. In most traffic infraction cases, and all violations of municipal ordinances, the District Attorney defers prosecution authority to municipal attorneys and police officers.

      The District Attorney is elected by the residents of his or her county, to represent the state in proceedings against those accused of offenses. David M. Hoovler is the Orange County District Attorney. The approximately 42 attorneys who work in his office are called Assistant District Attorneys (ADAs).

      The District Attorney’s Office has two ADAs on-call 24 hours a day, year-round. When the District Attorney’s Office is closed, those on-call ADAs are available to respond to the scenes of major crimes, to answer inquiries from police agencies, and to make recommendations regarding amounts of bail to be set in particular cases. In addition, a District Attorney’s investigator is on-call at all times, to assist the on-call ADAs and police agencies, as necessary.

      What is an arraignment?

      An arraignment represents a defendant’s first appearance in court. At arraignment, the defendant is informed of the charges against him and a bail determination is made. He is also informed of some of his rights, including his right to an attorney, his right to an adjournment to get an attorney, his right to remain silent, his right to a trial, and, in felony cases, his right to a preliminary hearing. The defendant is notified of his next court appearance. Often a defendant will not have an attorney at arraignment. When the defendant returns to court at a later date, the defendant will then be arraigned again with an attorney present.

      What is bail and how is it set?

      In order to secure a defendant’s appearance before it, a court may set bail. Bail is money, in the form of cash or a bond, that must be posted by a defendant to ensure that he returns to court on a future date. ADAs will often request that bail be set and will give reasons for the bail conditions requested. Courts set bail based on a number of factors, including the seriousness of the charges, the defendant’s prior criminal record, the defendant’s prior history of returning to court, and the defendant’s ties to the community. If the defendant does not post bail, he is held in the Orange County Jail until his next court date. If defendant posts the amount of money required to make bail, he will be released. If the court feels that bail is unnecessary, a defendant can also be released on his own recognizance (“ROR’d”). If the defendant’s risk of failing to return to court is particularly high, the court may order that the defendant be held in custody without bail.

      In misdemeanor and petty-offense cases, the court is required to set bail, or to ROR the defendant. In a few cases involving felonies, the local criminal court does not have the authority to set bail, and must order that the defendant be held in custody. In those instances, the defendant may ask the County or Supreme Court to review his bail status.

      What happens to a misdemeanor or violation case after arraignment?

      Local criminal courts have jurisdiction over all aspects of prosecution for misdemeanors and petty offenses, including the assignment of counsel, discovery, pretrial motions, trial, and sentencing. The court is also authorized to accept guilty pleas, which may occur at any time after arraignment.

      What happens to a felony case after arraignment?

      After arraignment in the local criminal court, the defendant is either sent to jail in lieu of bail or ROR’d. If he is sent to jail, and if he is not indicted by a grand jury within the next several days, he is entitled to a preliminary hearing in the local criminal court, before he may be held further for action by a grand jury. At a preliminary hearing, a judge determines whether there is enough evi-dence that the defendant committed a felony. After that hearing, if the court determines that the defendant should not be held, he is released. The defendant’s release at this early stage does not mean that the case is over. It simply means that the defendant is released while proceedings in the case continue. If the court determines that there is enough evidence to hold the defendant for grand jury action, he will remain in custody, pending action by a grand jury.

      If the District Attorney decides not to prosecute the case as a felony, the case will not be presented to the grand jury. Instead, the District Attorney will request that the local criminal court approve a reduction of the felony charges to non-felony charges, and the case will be prosecuted in the local criminal court.

      If a grand jury indicts the defendant, the local criminal court loses jurisdiction over the case, and further proceedings are held in Orange County Court in Goshen.

      What is a grand jury?

      Under New York law, all felony cases must be presented to a grand jury, unless the defendant formally waives that requirement. Grand juries are empowered to hear evidence presented by prosecutors, and to take various actions regarding the evidence and legal charges that they consider. The grand jury can also conduct independent investigations. In Orange County, normally two grand juries sit for staggered terms of approximately two months each. Each grand jury is composed of 23 Orange County citizens, who hear evidence concerning offenses and take action based on that evidence. At the end of each grand jury term, the grand jury is discharged and a new grand jury is empaneled.

      The ADA is the legal adviser to the grand jury, and questions all witnesses who testify before it, including any defendant or defense witnesses. At least sixteen grand jurors must be present for the grand jury to hear evidence and take action. Furthermore, at least twelve of the members who have heard all of the evidence must agree before any action can be taken.

      In certain instances, a defendant may waive his right to have a felony presented to a grand jury and, instead, agree to be prosecuted by superior court information, a charging document similar to an indictment, which the prosecutor files in County Court. Defendants usually waive indictment only if the prosecutor and defense attorney have worked out a plea agreement before the case is presented to a grand jury.

      What decisions can a grand jury make?

      After hearing evidence, a grand jury can make one of several decisions:

      1. Vote an indictment, which can contain felonies, misdemeanors, and petty offenses, and often contains charges different from those for which the defendant was initially arrested.

      2. Direct the filing of a prosecutor’s information, containing non-felony charges, in the local criminal court.

      3. Direct the removal of the case to the Family Court, in cases where the defendant is too young to be prosecuted as an adult.

      4. Issue a grand jury report.

      5. Dismiss the case.     

      For the first three actions, the grand jury must determine that the evidence is legally sufficient and that it provides reasonable cause to believe that the defendant committed the crime.

      Are grand jury proceedings open to the public?

      Grand jury proceedings are secret and only specifically authorized people can be present in the grand jury chamber, including the grand jurors, the ADA, a stenographer, the witness being questioned, and a few other classes of people necessary to support certain witnesses or to assist the functioning of the grand jury. Only the members of the grand jury may be present while the grand jury deliberates.

      What happens after a grand jury votes an indictment?

      The grand jury must file the indictment with the County Court, and the defendant must be ar-raigned on the indictment. The arraignment process, bail proceedings, and pretrial proceedings conducted in County Court will be similar to those described above with respect to local criminal courts. In addition, at the County Court arraignment, the prosecutor gives the defendant a copy of the indictment and a voluntary disclosure form, a document that discloses information about the case, such as the date, time, and place of the crime, and of the arrest. The defendant enters a plea of guilty or not guilty to the indictment. Bail may be reviewed and different conditions set.

      What is a trial?

      Although most defendants plead guilty before trial, some cases do go to trial. A criminal trial is a formal examination of evidence in court to determine whether the defendant is guilty beyond a reasonable doubt of the charges brought against him. Trials may include, among other forms of evidence, testimony of witnesses; physical evidence, such as a gun; photographs or videos; and scientific evidence. Trials may be conducted for any offense. For felonies and most misdemean-ors, the defendant has the right to a jury trial or a non-jury trial, at the defendant’s option. In the case of a non-jury trial, the judge determines guilt or non-guilt of the defendant. In the case of a jury trial, the jury determines guilt or non-guilt. It is the prosecutor’s burden to prove the defend-ant guilty. A defendant does not have to prove anything or to testify.

      Trials generally consist of several distinct stages:

      1. Jury selection. In a jury trial, the court and the parties question prospective jurors to determine who they feel is best-qualified to hear the case. Jurors who are not qualified to sit are excluded. Each side also has a certain number of peremptory challenges that they can exercise to exclude otherwise-qualified jurors from the case.

      2. Opening statements. The prosecutor first must, and then the defense may, give the jury, or the court in a bench trial, a synopsis of the evidence that they expect to be presented at the trial. Opening statements assist the jury or the court by providing a framework for understanding the evidence to be presented.

      3. The People’s direct case. The prosecutor must present enough evidence to support a legally sufficient case proving the defendant’s guilt. Each witness that the prosecutor calls will first be subject to a direct examination by the prosecutor, to be followed by a cross-examination by the defense attorney, if the defense decides to do so. Each witness may then be subject to additional rounds of redirect examination and re-cross examination, until all appropriate ques-tions are exhausted, or until the court exercises its discretion to cut off further questioning.

      4. The defendant’s direct case. The defendant may, but is not obligated to, present evidence in his own defense. Defense witnesses are subjected to direct and cross-examination in a manner similar to People’s witnesses.

      5. Summations. After all the evidence is received, first the defendant then the prosecutor may deliver a closing argument, or summation, to the jury or, in a bench trial, to the court. Sum-mations summarize the evidence and provide the jury or the court with arguments that each party believes the evidence supports.

      6. Jury charge. In a jury trial, after both parties have presented a summation, the court must provide the jury with a charge on the law. The charge must contain all of the legal rules relevant to the case, so that the jury is aware of what rules it is required to follow in deciding the defendant’s guilt or non-guilt.

      7. Deliberations and verdict. After the jury charge in a jury trial, or the summations in a bench trial, the jury or the court will retire to consider the evidence and render its verdict. If the defendant is acquitted, that is, found not guilty, of every offense he is charged with, he is dis-charged from court. On any charges that the defendant is found guilty of, he must be sentenced.

      What types of sentences may be imposed if a person pleads guilty or is found guilty after a trial?

      Depending on the circumstances of the particular case, sentencing may occur right after the plea or trial, or may be delayed for several weeks so that the Orange County Probation Department may prepare a presentence report. Sentencing is in the discretion of the judge. Unless a sentence is negotiated as part of a plea agreement, the judge will determine the defendant’s sentence based on the facts of the case and the laws governing permissible sentences. A person can be sen-tenced to incarceration, probation, a fine, or a combination of those sentences. A defendant can also be sentenced to a conditional discharge, whereby the defendant is released with conditions imposed on him that order the defendant to, for example, complete community service or domestic violence classes, to abide by an order of protection, to pay restitution, or to remain arrest-free. A defendant can also be sentenced to an unconditional discharge, whereby the defendant is released without any conditions imposed on him.

      Can a convicted defendant or the District Attorney take a case to a higher court?

      A defendant who is convicted by plea of guilty or convicted after trial may appeal his conviction, or sentence, or both, to an appellate court. If an appellate court affirms a conviction, the defendant loses his appeal and his conviction and sentence are not disturbed. If an appellate court reverses a judgment of conviction, the defendant can either undo his guilty plea or receive a new trial, or, the verdict or plea may stand, but the defendant can be resentenced.

      The District Attorney may not appeal an acquittal after trial. The District Attorney may, however, appeal a dismissal by a judge that occurred before commencement of trial or a suppression ruling that renders the District Attorney unable to prosecute a case based on that ruling. The District Attorney may also appeal an illegal sentence.