So you or someone you know has been arrested. Now you’re wondering, what’s the next step? The next step is court for the arraignment. You have probably heard the term before and seen a depiction of the process in movies and television shows, what exactly is arraignment? Arraignment is the very beginning of your criminal court case. As discussed more specifically below, at this stage you are advised of the charges against you.
Before the process is discussed, you should be aware that on April 1, 2019 New York State passed legislation that brought sweeping changes in criminal law and/or the justice system in State Court proceedings. Some of these changes have a substantial effect on the arraignment process. These changes took effect on January 1, 2020.
What is Arraignment?
After a person has been arrested and charged with a crime the court has to formally inform the accused of the charges against them. In New York State, prior to the new changes, if a person was arrested and charged with a crime, they were taken to central booking to be fingerprinted and interviewed by the police department. They were then taken to court to be arraigned. This process of going to central booking and then to court is commonly referred to as going through the system. This process typically had to be done within 24 hours of the person being arrested, no matter what type of crime they were charged with. In fact, this time period could have been longer depending on the circumstances. For example, back in October 2012, I had a client who was arrested right when hurricane Sandy struck and flooded downtown Manhattan. Their “24 hour” process turned out to be a week! Because of the flooding, none of the newly arrested were being moved from Rikers Island and courts were unable to arraign them.
The change in law has drastically altered the process. With the exception of a few specifically identified crimes, if a person is arrested and charged with either a misdemeanor or no higher than a Class E felony, they no longer are immediately taken into custody to go through the system. Now, the arresting officer must issue what is known as a desk appearance ticket (DAT) which allows for the defendant to be released with a date to return to court within 20 days for the arraignment.
Despite this dramatic change, there are still instances in which a person will have to go through the system. For those individuals, the arraignment process often involves a lot of waiting around before their case is actually called. However, when called, the arraignment hearing typically happens very quickly. It’s not uncommon for an arraignment to last a mere three minutes. If you or someone you know has to go through an arraignment, don’t be fooled into thinking that the arraignment isn’t that important because of the speed in which it takes place. It is an extremely important part of the case and can have a profound impact on the case’s outcome. The important issues addressed at arraignment include, but are not limited to the following:
- Advising you of the crimes you are charged with;
- Advising you of your right to counsel;
- You will be asked as to how you plead to the charges – guilty or not guilty;
- If you are charged with a felony, whether you reserve the right to testify at the Grand Jury;
- Whether the prosecution has any statements allegedly made by you that it plans to use as evidence; and
- Whether you will be detained or released while your case is pending.
As discussed in more detail below, each one of these issues is extremely important and can alter the outcome of your case.
One of the first things to happen after your case is called is that you are advised of the charges against you. Why? The Sixth Amendment of the U.S. Constitution affords every person accused of a crime in the U.S. with the right to be advised of the charges and the cause of such charges being brought against them. As a result, during the arraignment process the prosecutor will present the court and you with the criminal complaint detailing the charges being brought.
At this point the judge will ask you, the defendant, if you would like a formal reading of the charges or whether you waive the formal reading. Although it is your right to have the judge read the charges in open court, experienced defense counsel usually advises to waive the formal reading. Why?
While you are/were in the bull pen with the other defendants waiting for your respective cases to be called, a skilled defense attorney would have approached the prosecutor to obtain a copy of the criminal complaint to review and discuss the charges, determine and/or negotiate a possible offer and discuss the terms of your release. After doing this, they would meet with their client in the bull pen to review these issues prior the case being called. So, as long as your attorney does the above, waiving the reading doesn’t jeopardize your case. It actually helps to speed the process along which ultimately helps you.
The Sixth Amendment also provides everyone accused of a crime the right to competent counsel. What exactly does this mean? It means before the case can proceed the court needs to know if you have or need an attorney or if you are going to act as your own counsel (a person can act as their own counsel, unless they are found incompetent). Although you have the right to act as your own counsel, most non-attorneys or even attorneys who don’t practice criminal law, are not knowledgeable of the intricacies of criminal defense. Thus, it usually is a very bad idea for someone who isn’t a practitioner in criminal defense to try to represent themselves. However, it is indeed your right to do so.
As briefly touched on, the ability to have an experienced attorney working for you at the very beginning of the process is extremely beneficial. So, it is extremely wise for family and friends to find a competent attorney as soon as they become aware of the arrest or an impending arrest.
More often than not, the person being arrested doesn’t have their personal attorney waiting at the court house for them. For this reason, the State provides attorneys to represent defendants at the arraignment if they don’t have counsel of their own. If you have the financial means to retain counsel, the judge will adjourn the case, after the arraignment, to afford you time to obtain counsel before your next court date. If the judge determines that you do not have the financial means to obtain counsel (i.e. determined to be indigent) the State has to provide you with counsel (assuming you are not going to represent yourself).
You may be thinking “if the State is the entity that’s trying to convict me, how can it provide my defense? Is this system rigged?” No the system isn’t rigged. The District Attorney’s office and State appointed attorneys are separate and distinct.
Evidence and Notices
Typically after the prosecutor formally provides you/your attorney and the court with the criminal complaint detailing the charges, they will also advise of any notices regarding evidence the prosecution plans to use against you. For example, if you are alleged to have made incriminating statements at the time of your arrest, the prosecutor will serve what is known as a “710.30(1)(A) notice”. If your identification and/or the identification process are at issue (i.e. a witness identified you through a line-up or pointing you out at the scene of the crime), the prosecution will serve what is known as a “710.30(1)(B) notice”.
Another notice that the prosecution may advise of is notice of Grand Jury action – “190.50 notice”. This happens when the defendant is charged with a felony and advises that the case will eventually be presented to the Grand Jury. As a defendant you have the right to testify at the Grand Jury, but you are not required to.
Quite often it doesn’t benefit the defendant to testify at the Grand Jury, but in some instances it does. With that said, regardless of how seasoned the defense attorney is, it is almost impossible to determine at the time of arraignment whether the accused should testify at the Grand Jury. For this reason, skilled defense counsel will almost always reserve the right for the defendant to testify at the Grand Jury, by serving cross Grand Jury notice. This way defense counsel has the opportunity have an in-depth interview with their client in a better setting, to find out as much as possible about the case and determine whether testifying at the Grand Jury is beneficial.
If you are charged with a felony, there will be a second arraignment after you have been indicted by the Grand Jury. If the Grand Jury votes not to indict, the charges will be dismissed.
How do you Plea?
Probably the most important issue presented at arraignment comes after the judge has read the charges and asks “how do you plea, guilty or not guilty?” Entering a plea of guilty at such an early stage is usually not advisable. Remember, in a criminal case the prosecution has the burden of proving your guilt beyond a reasonable doubt. The prosecution usually hasn’t presented enough evidence at this stage to meet the burden of proof required for a criminal conviction.
However, it is not uncommon for the prosecution to make an offer at arraignment. Again, the benefits of having skilled counsel at such an early stage comes into play. An experienced defense attorney will be able to evaluate the offer and/or negotiate a possibly better offer.
Conditions of Release or Detention
After you have been advised of the charges, entered a plea and all the notices have been given, there’s the last issue of whether you will be detained or released with conditions. As previously discussed, one of the changes in New York State’s laws has dramatically reformed the laws around this issue. Bail reform has eliminated the use of bail and pre-trial detention for most arrests in New York State. In fact, the changes have eliminated bail for all misdemeanors and only applies to nine specific felonies.
However, for those cases in which bail and pre-trial detention still apply, the judge will ask the prosecutor “what’s the People’s position on bail?” The prosecutor will then have the opportunity to make an argument as to why you should be detained without bail, or in the alternative be released with conditions.
After the prosecution makes their argument, your attorney will then have the opportunity to make an argument for the terms of your release. Again, the benefits of having skilled counsel at arraignment is presented. Prior to your case being called, your attorney would have interviewed you to obtain information that they know the judge considers when deciding the issue of bail, as discussed in more detail below.
After hearing both sides, the judge will make a decision as to continued detention or your release with conditions.
The new law encourages judges to release defendants on their own recognizance (ROR) unless they pose a flight risk. In the event the judge determines there is a flight risk, the judge has a number of options at their disposal, including:
- Pre-trial supervision;
- Monetary bail; and
- Being remanded – remain detained for the course of your court case.
If the judge determines that you should be released with specific conditions, the judge will advise you of those conditions and issue an Order detailing the conditions of your release. If the conditions are ROR, you will be released based upon your promise to come back to every court date. If the conditions are bail, the judge will set the bail amount.
When setting a bail amount the judge takes into consideration a wide variety of factors, including but not limited to:
- “Each defendants individual financial circumstances”;
- “Ability to post bail without undue hardship”; and
- “Ability to obtain a secured, unsecured, or partially secured bond.”
The judge can also impose non-monetary conditions, including but not limited to:
- Supervision by a pre-trial services agency certified by the New York State Office of Court Administration;
- Court appearance reminders (i.e. text messages, phone calls, emails or first class mail); and
- Electronic monitoring (i.e. ankle bracelet)
Whether you’re ROR’d or released with bail and/or other conditions, if you fail to adhere to the conditions of your release, a warrant can be issued for your arrest after 48 hours. If this happens, you could wind up with increased release conditions.
Benefits of Counsel
The benefits of having skilled counsel as early as possible in your case is extremely important. An experienced and skilled attorney will do a thorough analysis of your case even at such an early stage of your case. Counsel should take the time to speak with you while you’re being held in court prior to your case being called. This enables counsel to get an idea as to the facts and circumstances of your arrest from YOUR perspective. Such interview often reveals extremely important information that is not contained in any of the notices the prosecution may advise the court of. Such interview also enables the attorney to obtain personal information about you to make the most effective argument for the terms of your release.
It is always best to have a skilled attorney from the earliest stages of your court case. The results of all criminal prosecutions are determined by the facts and circumstances of your specific case. Moreover, the outcome of a criminal case is often determined by what occurs at the beginning stages.
If you or someone you know has been arrested in New York call the Law Office of Kevin J. Deloatch, Esq. at (646) 792-2156. The office has an extensive criminal law practice. The outcome of a criminal case is often determined by what occurs at the beginning stages of the prosecution. Call today for a free consultation.