Packet Two: Introduction to Criminal Law and Procedure Chapters 1-4. Chapter 1: Background

Packet Two: Introduction to Criminal Law and Procedure Chapters 1-4 Chapter 1: Background Review from Introduction to Law The United States Constitution is the supreme law of the land. The United States Supreme Court is the final interpreter of the United States Constitution. The New York Constitution governs in NY and in criminal matters is the supreme law of New York. 1 The New York Court of Appeals is New York s highest court and as such is the final interpreter of the New York State Constitution. The NY Supreme Court, Appellate Division ( Appellate Division ) is the intermediate appellate court in New York (so is the Appellate Term [it handles appeals from the NYC Criminal Court]). The NY Supreme Court is the trial court of general jurisdiction: it will handle the trial of all felonies. Almost all criminal cases in New York City will start in the Criminal Court of the City of New York. 1 The United States Constitution (specifically the Fourth, Fifth, Sixth and Eighth Amendments made applicable to the states through the due process clause of the Fourteenth Amendment) and specifically the United States Supreme Court s interpretation of the applicable provisions, provide for minimum standards in protecting the rights recognized in the constitution. However, the individual states may provide for a greater protection under their constitution (see Oregon v Hass, 420 US 714 [1975]). Page 1 of 40

Chapter One: Background Highest Offense: Misdemeanors and Petty Offenses Courts with Criminal Jurisdiction Highest Offense: Felonies Court of Appeals Highest Court Court of Appeals Appellate Term Intermediate Appellate Court Appellate Division Criminal Court Trial Court Supreme Court Criminal Court Commencement Criminal Court Introductory New York Statutes The following statutes provide basic definitions to terms and phrases you will be using in this course and in New York s criminal law and procedure. Primer on Criminal Statutes Three Types of Criminal Statutes 1. Define Terms: Statutes that define terms used either in statutes in the Penal Law or Criminal Procedure Law; 2. Establish Offense: Statutes that establish and define a criminal offense; and 3. Establish Process: Statutes that establish procedure (i.e., a process). Statute Type 1: Define Terms Used Either in Statutes (Example) A person is guilty of criminal sale of a controlled substance in the fifth degree when he or she knowingly and unlawfully sells a controlled substance (Penal Law 220.31). When you look at that statute, you see several terms that need to be defined. Page 2 of 40

Chapter One: Background A person is guilty of criminal sale of a controlled substance in the fifth degree when he or she knowingly and unlawfully sells a controlled substance. The Statute A person is guilty of criminal sale of a controlled substance in the fifth degree when he or she knowingly and unlawfully sells a controlled substance Terms to Be Defined & Statute Knowingly Penal Law 15.05 (2) Unlawfully Penal Law 220.00 (2) Sells (Or Sell) Penal Law 220.00 (1) Controlled Substance Penal Law 220.00 (5) and Public Health Law 3306 (Schedules I-V). The term sell is defined in statute (Penal Law 220.00 [1]): Sell means to sell, exchange, give or dispose of to another, or to offer or agree to do the same... Definitions: How to Define Terms This statute, found in Penal Law Article 220, defines what the term sell means when applied to controlled substance statutes which are found in Penal Law Article 220. Notice how the term sell in this statute is different than what you would find in a dictionary (e.g., transfer of goods or services for money). The legislature, in creating the language of the statute, gets to define a term almost any way they want to (e.g., expanding the definition of sell ). Whenever you come across a statute that uses terms, always look for a statute that defines that term. You will either find the statute in the beginning of the article (e.g., Penal Law 220.00 2 ) or in a definition article (e.g., CPL 1.20 or Penal Law 10.00). Definitions at the beginning of an article dealing with specific criminal offenses generally only apply to that article of the Penal Law (e.g., Article 130 [Sex Offenses], Article 140 [Criminal Trespass and Burglary], Article 155 [Larceny], Article 220 [Controlled Substances], Article 265 [Firearm and Weapons]). Definitions found in Penal Law 10.00 generally apply to the entire Penal Law. Definitions in CPL 1.20 generally apply to the entire Criminal Procedure Law. If the term is not defined in statute, the term is usually defined in case law by the court either defining the term or applying the term to a specific set of facts. For example, certain types of assault and robbery require a physical injury. Physical injury is defined in Penal Law 10.00 (9) as an impairment of physical condition or substantial pain. However, what those terms mean is found in case law. 2 Penal Law 220.00 means that this statute is found in Article 220 of the Penal Law and since it is.00, it is the first statute. Page 3 of 40

Chapter One: Background Process to Define Terms Step 1 Read the statute 2 Look for the.00 section of the Article for definitions particular to that Article (e.g., Penal Law 220.00 or 265.00) 3 Look at either Penal Law 10.00 or CPL 1.39 for general definitions 4 Read the Practice Commentaries for each statute that is relevant (both the Penal Law and the Criminal Procedure Law have Practice Commentaries) Example of Process to Define Terms (Criminal Possession of a Controlled Substance in the Seventh Degree [Penal Law 220.03]) 1 2 3 4 Read the statute (Penal Law 220.03) Look at the.00 section of the Article for definitions particular to that Article (Penal Law 220.00) Look at either Penal Law 10.00 or CPL 1.39 for general definitions (Penal Law 10.00 [8]) Read the Practice Commentaries for each statute that is relevant A person is guilty of criminal possession of a controlled substance in the seventh degree when he knowingly and unlawfully possesses a controlled substance. 2. Unlawfully means in violation ofpublic health law, art 33. 5. Controlled substance means any substance listed Public Health Law 3306, Schedules I, II, III, IV or V other than marihuana, but including concentrated cannabis as defined in 3306 (4) (a). Possess means to have physical possession or otherwise to exercise dominion or control over tangible property. The term possess includes actual or constructive possession of tangible property [Penal Law 10.00 (8)]. People v Sierra, 45 NY2d 56; People v Torres, 68 NY2d 677 (1986)... Page 4 of 40

Chapter One: Background Statute Type 2: Establish a Criminal Offense The second type of criminal statutes are ones that establish and define a criminal offense. These statutes are found in Part Three of the Penal Law and in various statutes outside of the Penal Law (e.g., driving while intoxicated is found in the Vehicle and Traffic Law). An example of this type of statute is Assault in the third degree (Penal Law 120.00). 3 The entire statute states: Assault in the third degree (Penal Law 120.00) A person is guilty of assault in the third degree when: 1. With intent to cause physical injury to another person, he causes such injury to such person or to a third person; or 2. He recklessly causes physical injury to another person; or 3. With criminal negligence, he causes physical injury to another person by means of a deadly weapon or a dangerous instrument. Assault in the third degree is a class A misdemeanor. 1 The title 2 The introduction sentence 3 The definition; and 4 The level of the offense. Parts of this Type of Statute 3 NOTE: The numerical designation of this statute is unusual because it ends with.00 and is not a defining statute. The reason may be that the terms that need to be defined (e.g., physical injury ) are defined elsewhere. Page 5 of 40

Chapter One: Background Breaking this Statute Down The Statute Explanation Assault in the third degree (Penal Law 120.00) A person is guilty of assault in the third degree when: Title Introduction Definitions: There are three types of assault in the third degree in this statute 1. With intent to cause physical injury to another person, he causes such injury to such person or to a third person; or 2. He recklessly causes physical injury to another person; or 3. With criminal negligence, he causes physical injury to another person by means of a deadly weapon or a dangerous instrument. Assault in the third degree is a class A misdemeanor. Definition 1: The first type (intentional) Definition 2: The second type (recklessly) Definition 3: The third type (criminal negligence + deadly weapon or dangerous instrument) Level Statute Type 3: Establish a Procedure Procedural statutes establish a process: how a criminal case starts; how it proceeds; and how it ends. Here is an example of a procedure statute. This statute establishes the procedure for the demand for discovery. Discovery; When Demand, Refusal and Compliance Made (CPL 240.80) 1. A demand to produce shall be made within thirty days after arraignment and before the commencement of trial. If the defendant is not represented by counsel, and has requested an adjournment to obtain counsel or to have counsel assigned, the thirty-day period shall commence, for purposes of a demand by the defendant, on the date counsel initially appears on his behalf. However, the court may direct compliance with a demand to produce that, for good cause shown, could not have been made within the time specified. 2. A refusal to comply with a demand to produce shall be made within fifteen days of the service of the demand to produce, but for good cause may be made thereafter. Page 6 of 40

Chapter One: Background 3. Absent a refusal to comply with a demand to produce, compliance with such demand shall be made within fifteen days of the service of the demand or as soon thereafter as practicable. Process for Demand for Discovery; Where Defendant Has an Attorney Demand for Discovery (Made within 30 days of arraignment and before trial) OR People s Refusal (Made within 15 days of demand) People s Compliance (Made within 15 days of demand) NOTE: These time periods can be extended by the court if good cause is shown. Page 7 of 40

Chapter One: Background Page 8 of 40

Chapter 2: Terms You Need to Know The following are terms that you need to know in order to understand criminal law and procedure. Do not just read the terms and their definitions, but try to have a working understanding of their definition. I. Statutes Pertaining to Criminal Offenses Offense (Penal Law 10.00 [1]): Conduct where a sentence of imprisonment or a fine is provided by law. Crime (Penal Law 10.00 [6]): Misdemeanor or a felony. Felony (Penal Law 10.00 [5]): An offense where a sentence of imprisonment in of more than one year can be imposed. Misdemeanor (Penal Law 10.00 [4]): An offense (not a traffic infraction ) for where a sentence of imprisonment of more than fifteen days, but not more than one year cannot be imposed. Petty offense (CPL 1.20 [39]): A violation or a traffic infraction. Traffic infraction (Penal Law 10.00 [2]): Not a crime, but a criminal offense (Vehicle and Traffic Law 155; People v Byron, 17 NY2d 64 [1966]). Basically, any violation of the Vehicle and Traffic Law that is not designated a felony or misdemeanor (Vehicle and Traffic Law 155). Violation (Penal Law 10.00 [3]): An offense (not a crime), where a sentence of imprisonment up to fifteen days can be imposed. It is not a traffic infraction. II. Statutes Pertaining to Obtaining the Physical Presence of a Defendant Warrantless Arrest (CPL 140.05): Police can arrest someone whom they believe has committed an offense. Does not require an arrest warrant or a criminal action to have been commenced. When and Where a Warrantless Arrest by police officer (CPL 140.10 [1]):... [A] police officer may arrest a person for: (a) Any offense when he has reasonable cause to believe that such person has committed such offense in his presence; and (b) A crime when he has reasonable cause to believe that such person has committed such crime, whether in his presence or otherwise. Appearance ticket (CPL 1.20 [26]): A written notice requiring a person to appear before a local criminal court in connection with an accusatory instrument to be filed against him or her. Summons (CPL 1.20 [27]): A process of a criminal court requiring a defendant to appear the court for the purpose of arraignment. Page 9 of 40

Chapter Two: Terms You Need To Know Warrant of arrest (CPL 1.20 [28]): A process of a local criminal court directing a police officer to arrest a defendant and to bring him or her before the court for arraignment. Requires that a criminal action be commenced. III. Statutes Pertaining to Definitions of Criminal Actions Criminal action (CPL 1.20 [16]): A criminal action: (1) commences with the filing of an accusatory instrument against a defendant in a criminal court; (2) includes the filing of all further accusatory instruments directly derived from the initial one; (3) includes all proceedings, orders and motions conducted or made by a criminal court in the course of disposing of this accusatory instrument; and (4) terminates with the imposition of sentence or some other final disposition in a criminal court of the last accusatory instrument filed in the case. Criminal proceeding (CPL 1.20 [18]): Any proceeding which: (a) constitutes a part of a criminal action; or (b) occurs in a criminal court and is related to a prospective, pending or completed criminal action, either of this state or of any other jurisdiction, or involves a criminal investigation. Commencement of criminal action (CPL 1.20 17]): A criminal action is commenced by the filing of the first accusatory instrument against a defendant in a criminal court. Arraignment (CPL 1.20 [9]): A proceeding where: (1) an accusatory instrument is filed; (2) defendant appears for the first time appears before the court; (3) court acquires and exercises jurisdiction over defendant; and (4) sets further proceedings in the action. IV. Statutes Pertaining to Accusatory Instruments In General Accusatory instrument (CPL 1.20 [1]): An indictment, an information, a simplified information, a prosecutor s information, a superior court information, a misdemeanor complaint or a felony complaint. Every accusatory instrument constitutes an accusation on behalf of the state as plaintiff and must be entitled The People of the State of New York against a specific person (the defendant). Felony Accusatory Instruments Indictment (CPL 1.20 [3]): The indictment: (1) Written accusation by a grand jury filed with a supreme court; (2) Charges one or more defendants with the commission of one or more offenses, at least one of which is a crime; and (3) Serves as a basis for prosecution. Felony complaint (CPL 1.20 [6]): The felony complaint: (1) Verified written accusation by a person filed with a local criminal court; (2) Charges one or more defendants with the commission of one or more felonies; (3) Serves to commence a criminal action; and (4) Does not serve as a basis for plea or trial. Page 10 of 40

Chapter Two: Terms You Need To Know Misdemeanor Accusatory Instruments Information (CPL 1.20 [4]). An information: (1) Verified written accusation by a person filed with a local criminal court; (2) Charges one or more defendants with the commission of one or more non-felony offenses, none of which is a felony; (3) Serves to commence a criminal action; (4) Serves a basis for prosecution. Misdemeanor complaint (CPL 1.20 [7]). A misdemeanor complaint: (1) Verified written accusation by a person filed with a local criminal court; (2) Charges one or more defendants with the commission of one or more non-felony offenses (at least one is a misdemeanor); (3) Serves to commence a criminal action; (4) Not the basis for plea or trial. EXCEPT the defendant can waive this requirement. Supporting deposition (CPL 100.20). The supporting deposition: (1) Written instrument accompanying or filed in connection with an information or a misdemeanor complaint; (2) Subscribed and verified by a person other than the complainant of such accusatory instrument; (3) Contains factual allegations of an evidentiary character, based either upon personal knowledge or hearsay, that supplement those of the accusatory instrument; (4) Supports, or tend to supports, the charge or charges contained in the information of misdemeanor complaint. V. Statutes Pertaining to Jurisdiction Preliminary jurisdiction (CPL 1.20 [25]). Where a misdemeanor or felony complaint has been properly filed, court can conduct proceedings that lead (or may lead) to prosecution and final disposition of the action in a court having trial jurisdiction. Trial jurisdiction (CPL 1.20 [24]). Where an indictment or an information charging is properly filed with the court, the court has authority to accept a plea 4 to, try or otherwise finally dispose of such accusatory instrument. VI. Statutes Pertaining to Bill of Particulars and Discovery Definition of Terms Pertaining to Discovery Demand to produce (CPL 240.10 [1]). Written notice served by one party on the other party to a criminal action. It is not a motion and is done without leave of the court. It demands to inspect property under CPL article 240. Gives reasonable notice of the time at which the party wants to inspect the property. Property (CPL 240.10 [3]). Existing tangible personal or real property. Not limited to books, records, reports, memoranda, papers, photographs, tapes or other electronic recordings, articles of clothing, fingerprints, blood samples, fingernail scrapings or handwriting specimens, but excluding attorneys work product. 4 Plea (Criminal Procedure Law 1.20 [10]). Plea, in addition to its ordinary meaning as prescribed in sections 220.10 and 340.20, means, where appropriate, the occasion upon which a defendant enters such a plea to an accusatory instrument. Page 11 of 40

Chapter Two: Terms You Need To Know Discovery; upon demand of defendant (CPL 240.20) 1. When the defendant makes a demand, the prosecutor must disclose to the defendant and make available for inspection, photographing, copying or testing (unless there is a protective order), the following property (a) (b) (c) (d) (e) (f) (g) (h) (i) Any written, recorded or oral statement of the defendant (or co-defendant) made: to law enforcement activity; to a person then acting under his direction or in cooperation with the public servant. Does not apply to a statement made in the course of the criminal transaction Any grand jury transcript of testimony of the defendant or co-defendant. Any written report or document on a physical or mental examination, or scientific test or experiment, relating to the criminal action or proceeding. The report must be made either: at the request or direction of a public servant engaged in law enforcement activity, or by a person whom the prosecutor intends to call as a witness at trial, or which the people intend to introduce at trial Any photograph or drawing relating to the criminal action or proceeding. It must be made or completed by: law enforcement, or by a person the prosecutor intends to call as a witness at trial, or which the people intend to introduce at trial Any photograph, photocopy or other reproduction made by or at the direction of a police officer, peace officer or prosecutor of any property prior to its release (Penal Law 450.10) Any other property obtained from the defendant, or a co-defendant to be tried jointly Any tapes or other electronic recordings which the prosecutor intends to introduce at trial Anything required to be disclosed, prior to trial, to the defendant by the prosecutor, pursuant to the constitution of this state or of the United States. The approximate date, time and place of the offense charged and of defendant s arrest... 2. The prosecutor must make a diligent, good faith effort to ascertain the existence of demanded property and to cause such property to be made available for discovery where it exists. NOTE: This applies even if it is not in the possession, custody or control of the prosecutor. However, if the defendant can obtain this property through the issuance of a subpoena duces tecum, the People are not required to issue a subpoena. Bill of particulars (CPL 200.95 [1]) (a) Definitions. It is a written statement by the prosecutor that specifies items of factual information which are not recited in the indictment. These items pertain to the offense charged. Includes: (1) the substance of each defendant s conduct encompassed by the charge which the people intend to prove at trial on their direct case; (2) whether the people intend to prove that the defendant acted as principal or accomplice or both. The prosecutor is not required to include matters of evidence relating to how the people intend to prove: (1) the elements of the offense charged or (2) any item of factual information included in the bill of particulars. Page 12 of 40

Chapter Two: Terms You Need To Know (b) Request for a bill of particulars. A written request served by defendant upon the people. It is done without court order. It requests a bill of particulars: (1) specifying the items of factual information desired, and (2) alleging that defendant cannot adequately prepare or conduct his defense without the information requested. VII. Statutes Pertaining to Pre-trial Motions Pre-trial motion (CPL 255.10 [1]): Any defense motion which seeks a court order. Types of Pre-Trial Motions (CPL 255.10 [1]): (a) Dismissing (or reducing) an indictment (CPL art 210) (b) Dismissing an information or misdemeanor complaint (CPL article 170) (c) Granting discovery (CPL article 240) (d) Granting a bill of particulars (CPL 100.45 or 200.90) (e) Removing the action (CPL 170.15, 230.20 or 230.30) (f) Suppressing the use at trial of any evidence (CPL article 710) (g) Granting separate trials (CPL article 100 or 200). VIII. Statutes Pertaining to Trials Trial (CPL 1.20 [11]): A jury trial commences with the selection of the jury and includes all further proceedings through the rendition of a verdict. A non-jury trial commences with the first opening address, if there be any, and, if not, when the first witness is sworn, and includes all further proceedings through the rendition of a verdict. Verdict (CPL 1.20 [12]): The announcement by a jury in the case of a jury trial, or by the court in the case of a non-jury trial, of its decision upon the defendant s guilt or non-guilt of the charges submitted to or considered by it. Conviction (CPL 1.20 [13]): The entry of: (1) a guilty plea; or (2) a guilty verdict of guilty Sentence (CPL 1.20 [14]): The imposition and entry of sentence upon a conviction Judgment (CPL 1.20 [15]): A judgment is comprised of a conviction and the sentence imposed thereon and is completed by imposition and entry of the sentence. Page 13 of 40

Chapter Two: Terms You Need To Know Page 14 of 40

Chapter 3: Introduction to Criminal Law & Procedure Laws That Govern Criminal Law & Criminal Procedure Criminal law and procedure are governed by constitutional law, statutory law, administrative law, and case law. In order to provide and implement constitutional protections and to fairly and justly prosecute individuals accused of criminal acts, there are statutes and rules. Establishing Justice Establishes Criminal courts and the procedure by which those courts are run Criminal acts Prosecution of those accused of those acts Defense of the accused Statute or Regulation Criminal Procedure Law, Judiciary Law, New York Codes, Rules and Regulations Penal Law Criminal Procedure Law Penal Law Judiciary Law and New York Codes, Rules and Regulations (for the Code of Professional Responsibility) Constitutional Law Both the United States Constitution and the New York Constitution govern criminal procedure. The way they relate to each other is somewhat complicated and is explained when we get to search and seizure. The Constitution of the United States has several amendments that govern criminal procedure. It is through the Fourteenth amendment that certain other amendments govern state prosecutions. Page 15 of 40

Constitutional Amendments That Govern Criminal Procedure Amendment Fourth Amendment What it is Search and Seizure Fifth Amendment Right Against Self-Incrimination Right Against Double Jeopardy Sixth Amendment Right to Counsel Speedy Trial Public Trial Right to Confrontation Eighth Amendment Right Against Cruel and Unusual Punishment Right Against Excessive Bail Statutory Law The basic rule for all legal matters is that New York State statutes govern New York State prosecutions and federal statutes govern federal prosecutions. This book pertains to New York State prosecutions. There are many different statutes that govern prosecutions that are grouped in different chapters. First, there is the Penal Law, which governs criminal law. Next, there is the Criminal Procedure Law and Judiciary Law, which govern procedure. Then there are other criminal acts that are found outside of the Penal Law in such volumes as the Vehicle and Traffic Law and Labor Law. Area Criminal Law Criminal Procedure Statute Title Penal Law Vehicle and Traffic Law, Labor Law, etc Criminal Procedure Law Judiciary Law Administrative Law The rules of the various courts including the rules of the chief judge govern the operations of the courts. These laws are found in the New York Codes, Rules and Regulations 5 (NYCRR). Case Law Courts are constantly interpreting constitutional, statutory, and administrative law. For example, in order for there to be an assault in the third degree, 6 there must be a physical injury. A physical injury is defined in the Penal Law as an impairment of physical condition or substantial pain. 7 The definition of physical condition or substantial pain is subject to the court s interpretation. Consider the following facts: The defendant punched the complainant two times on the forehead. The complainant testified 5 Title 22. 6 Penal Law 120.00. 7 Penal Law 10.00 (9). Page 16 of 40

that his face was sore to the touch and badly bruised or scratched, but not bleeding. Also, he testified that his collar bone was sore at the time... for a while as a result of the incident. An Emergency Medical Services worker applied ice to the complainant s head, but otherwise the complainant received no medical treatment. Is this proof of substantial pain? The Appellate Division, Second Department said it was not proof of substantial pain. 8 Courts have found that minor injuries do not constitute substantial pain. Examples include: a one centimeter cut above the lip, 9 superficial scratches, 10 a small abrasion requiring one stitch, 11 being hit, resulting in a red mark and some degree of pain. 12 Even being struck in the head with a gun 13 and a gunshot wound 14 do not, in the absence of other factors, meet the statutory mandate of substantial pain. In practice, constitutional law is the interpretation of the constitution by the courts. These decisions constitute case law. Criminal Law & Criminal Procedure Criminal law and criminal procedure are the laws that allow the government to take away someone s liberty, charge them with a certain act that the government has determined to be criminal, and prosecute that person. The Difference Between Criminal Law and Criminal Procedure Substantive criminal law determines the types of wrongful conduct that are criminal. It also provides punishment for that criminal conduct. For example, assault in the third degree 15 is criminal law. The sentence, if convicted, is also criminal law. Criminal procedure is the set of rules that govern the method for dealing with the criminal case. In other words, it governs everything from the investigation of a criminal act to the procedure for the sentencing of the convicted. For example, all laws pertaining to motion practice 16 is criminal procedure. 8 People v DiStefano, 252 AD2d 530 (2d Dept 1998). 9 People v Jiminez, 55 NY2d 895 (1982). 10 People v Ruttenbur, 112 AD2d 13 (4th Dept 1985). 11 People v Contreras, 108 AD2d 627 (1st Dept 1985). 12 Matter of Philip A., 49 NY2d 198 (1980). 13 People v Chandler, 120 AD2d 542 (2d Dept 1986). 14 People v Rojas, 61 NY2d 726 (1984); People v Francis, 112 AD2d 167 (2d Dept 1985). 15 Penal Law 120.00. 16 See e.g. Criminal Procedure Law 255.10 et seq. Page 17 of 40

Criminal Law Criminal law in New York is found, for the most part, in the Penal Law. The New York Penal Law 17 1 Criminal Act Defines what is a criminal act (i.e., criminal offense) 2 Penalty Defines the seriousness of that offense and proscribes the penalty based on that seriousness 3 Defenses Provides defenses for those acts The Criminal Act The legislature determines what acts are deemed criminal. Most of these laws are found in the Penal Law. The Penal Law contains familiar wrongful acts that are criminal offenses such as different types of homicide (i.e., murder and manslaughter), 18 robbery, 19 rape and other sexual assaults, 20 burglary, 21 and assault. 22 It also contains not so familiar criminal offenses such as disruption or disturbance of religious service, 23 criminal anarchy, 24 offensive exhibition, 25 bigamy, 26 and adultery. 27 The specific offenses are found in articles 100 through 275 of the Penal Law. Other criminal offenses are found in laws outside the Penal Law. In New York, for example, the criminal offense of driving while impaired or intoxicated is not found in the Penal Law, but rather in the Vehicle and Traffic Law specifically, Vehicle and Traffic Law 1192. Other criminal offenses can be found in the Labor Law, Education Law, Judiciary Law and the Administrative Code of the City of New York. The Level of the Criminal Act There are three levels or classifications of criminal offenses. 28 From the highest to the lowest they are: (1) felonies; (2) misdemeanors; and (3) petty offenses. 29 The difference among the three levels is 17 Penal Law 1.05. 18 Penal Law article 125. 19 Penal Law article 160. 20 Penal Law article 130. 21 Penal Law article 140. 22 Penal Law article 120 23 Penal Law 240.21. 24 Penal Law 240.15. 25 Penal Law 245.05. 26 Penal Law 255.15. 27 Penal Law 255.17. 28 Penal Law 55.10. 29 Id. Page 18 of 40

the severity of the penalty of imprisonment a convicted defendant can serve in prison for a particular offense. A person convicted of a petty offense faces up to 15 days imprisonment; 30 a person convicted of a misdemeanor faces up to one year imprisonment; 31 and a person convicted of a felony faces over one year imprisonment and up to life imprisonment. 32 New York s death penalty has been declared unconstitutional by the Court of Appeals in 2004. 33 Misdemeanors and felonies are also divided into classes. Misdemeanors are divided into class A and class B misdemeanors. The maximum jail time for a class A misdemeanor is one year, while the maximum time for a class B misdemeanor is 90 days. The significance of the time a defendant faces in prison has other ramifications. Because the penalty for a class B misdemeanor is less than six months, where a defendant is charged with a class B misdemeanor, he or she is not entitled to a jury trial. 34 Misdemeanors outside the Penal Law are not classified and the penalty can be found in the penalty section of that offense. 35 Felonies are divided into classes from class A (the highest) to class E felony (the lowest felony). 36 Criminal offenses Crimes Felonies Misdemeanors A1 A2 B C D E Class A B Petty Offenses Violations Traffic Infractions 30 Penal Law 70.15, 85.00. 31 Penal Law 70.15, 85.00. 32 Penal Law Art 70. 33 People v LaValle, 3 NY3d 88 (2004) 34 Criminal Procedure Law 340; Morgenthau v Erlbaum, 59 NY2d 143 (1983) 35 Penal Law 55.10 (2) (c), 70.15, 85.00 36 Penal Law 55.05 Page 19 of 40

Notes on Sentences Lowest Highest Parole When you see a possible minimum sentence of 1 to 3 years, it means that the defendant serves at least one year and at the most three years. When you see the maximum sentence of 8 a to 25 years, it means that the defendant serves at least 8 and one-third years and at the most 25 years. The difference between the time when the defendant gets released and the highest year, that is the amount of time a person serves on parole. For example, if the person has a sentence 1 to 3 years and gets released after one year, this means that the 2 years remaining in the sentence will be served on parole. Determinate This is for violent felonies. When the minimum sentence is 8 and the maximum sentence is 20 years. This means that a person will be sentenced to a determinate sentence of either 8, 9, 10, 11... 19, or 20 years. Once the person is released, they will serve a sentence of post-release supervision. Examples Class A-I Felony Penal Law Possible Sentence Minimum Murder in the First Degree 125.27 20 yrs to Life Maximum Life w/o parole; or 25 yrs to Life Murder in the Second Degree 125.25 15 yrs to Life 25 yrs to Life Kidnapping in the First Degree 135.25 15 yrs to Life 25 yrs to Life Criminal Sale of a Controlled Substance in the First Degree 220.43 Criminal Possession of a Controlled Substance in the First Degree 220.21 8 20 Class A-II Felony Examples Penal Law Criminal Sale of a Controlled Substance in the Second Degree 220.41 Criminal Possession of a Controlled Substance in the Second Degree 220.18 Possible Sentence Minimum Maximum 3 10 Page 20 of 40

Class B Felony Possible Sentence Examples Penal Law Minimum Maximum Rape in the First Degree 130.35 Assault in the First Degree 120.10 5 25 Manslaughter in the First Degree 125.20 Criminal Possession of Stolen Property in the First Degree 165.54 1 to 3 yrs 8a to 25 yrs Class C Felony Possible Sentence Examples Penal Law Minimum Maximum Criminal Possession of Stolen Property in the Second Degree 165.52 1 to 3 yrs 5 to 15 yrs Criminal Sale of a Controlled Substance in the Fourth Degree 220.09 1 5 ½ Bribery in the Second Degree 200.03 Grand Larceny in the Second Degree 155.40 1 to 3 yrs 5 to 15 yrs Criminal Possession of a Weapon in the Second Degree 265.03 3½ yrs 15 yrs Class D Felony Possible Sentence Examples Penal Law Minimum Maximum Grand Larceny in the Third Degree 155.35 Escape in the First Degree 205.15 Burglary in the Third Degree 140.20 1 to 3 yrs 2a to 7 yrs Obscenity in the First Degree 235.07 Rape in the Second Degree 130.30 2 7 Page 21 of 40

Class E Felony Examples Penal Law Bigamy 255.15 Arson in the Fourth Degree 150.05 Criminal Sale of Marihuana in the Third Degree 221.45 Patronizing a Prostitute in the Second Degree 230.05 Possible Sentence Minimum Maximum 1 to 3 1a to 4 yrs Class A Misdemeanor Examples Penal Law Assault in the Third Degree 120.00 Criminal Possession of Stolen Property in the Fifth Degree 165.40 Criminal Possession of a Controlled Substance in the Seventh Degree 220.03 Sexual Misconduct 130.20 Rent Gouging in the Second Degree 180.56 Possible Sentence Minimum Maximum 0 1 year Class B Misdemeanor Examples Penal Law Conspiracy in the Sixth Degree 105.00 Fortune Telling 165.35 Unlawfully Dealing with Fireworks 270.00 Criminal Sale of Marihuana in the Fifth Degree 221.10 Public Lewdness 245.00 Possible Sentence Minimum Maximum 0 90 days Page 22 of 40

Violation Examples Penal Law Disorderly Conduct 240.20 Harassment in the Second Degree 240.45 Public Appearance under Drugs 240.40 Trespass in the Fourth Degree 140.05 Unauthorized Recordings in a Movie Theater 275.32 Possible Sentence Minimum Maximum 0 15 days Examples Driving While Impaired Traffic Infraction Penal Law Vehicle & Traffic Law 1192 (1) Possible Sentence Minimum Maximum 0 15 days The sentencing structure for felonies is somewhat complicated with indeterminate sentences which produce minimum and maximum sentences. The sentencing structure for felonies is further complicated by felonies that are considered violent offenses 37 and sentence enhancements for convicted persons who have been previously convicted of felonies. 38 For example, if a defendant is convicted of a violent felony, then it depends what class the offense is. Once you determine the class, then a determinate sentence in a fixed number of years will be given to the defendant. The defendant, if he or she has good behavior while in prison, can be credited with one-seventh of the sentence (i.e., serve one-seventh less time). 39 Once the defendant is released, he or she will then be subjected to post-release supervision (PRS) depending on the class of the offense. 37 Penal Law 70.02 38 Penal Law 70.04, 70.06, 70.08. 39 MATH: In order to determine the time the defendant will serve if he or she has served with good behavior take the sentence and multiply it by.86 (six-sevenths). For example, if the defendant is sentenced to 13 years, multiple 13 years by.86 and you get 11.18 years. This means that if the defendant is eligible for time off for good behavior, they will serve 11.18 years (or 11 years and about 66 days). Don t be scared; use a calculator! Page 23 of 40

Sentence for First Violent Felony Conviction Determinate Sentence + Post Release Supervision Felony Convicted of Minimum Maximum Minimum Maximum Class B Violent Felony 5 years 25 years 2½ years 5 years Class C Violent Felony 3½ years 15 years 2½ years 5 years Class D Violent Felony 2 years 7 years 1½ years 3 years Class E Violent Felony 1½ years 4 years 1½ years 3 years For example, if a defendant is convicted of assault in the second degree (Penal Law 120.05), a class D violent felony, the defendant could be sentenced to five years since that is between two and seven years. If he has good behavior, he will serve four years and about three months (five years minus one-seventh credit). Once released, he would be on post-release supervision (similar to parole) between one and one-half and three years. If a defendant is convicted of a violent felony and previously he or she was convicted of a felony, then that defendant will be subjected to enhanced sentencing. The sentence will be determined by first determining the felony that he or she was convicted of, then looking at the previous felony conviction, determine whether that was a violent or not a violent felony. Once released, the defendant will be subjected to five years post-release supervision. Sentencing Where Defendant Has Been Previously Convicted of a Felony Violent Where Previous Felony Conviction Was for a Violent Felony OR Non-violent Where Previous Felony Conviction Was for a Non-violent Felony Felony Now Convicted of Determinate Sentence Determinate Sentence Minimum Maximum Minimum Maximum Class B 10 years 25 years 8 years 25 years Class C 7 years 15 years 5 years 15 years Class D 5 years 7 years 3 years 7 years Class E 3 years 4 years 2 years 4 years There are other types of leveling in offenses, known as degrees. Murder, for example is divided into murder in the first degree (Penal Law 125.27) and murder in the second degree (Penal Law 125.25). Criminal possession of a controlled substance (Penal Law article 220) is divided into six degrees (first, second, third, fourth, fifth, and seventh degree there is no sixth degree). First degree is the highest degree the higher the degree, the more severe the crime and the greater the sentence. There are also crimes that are aggravated which also create a different level. Page 24 of 40

Levels of Murder and Possible Sentence Type of Murder Murder in the First Degree Aggravated Murder Murder in the Second Degree Possible Sentence Life without parole (NOTE: the death penalty was declared unconstitutional); or from 20 to Life, to 25 years to Life Life without parole from 15 years to Life, to 25 years to Life Defenses The Penal Law also provides defenses to criminal offenses. When a defendant pleads not guilty, he or she denies every element of the offense charged. 40 The burden of proving every element beyond a reasonable doubt falls upon the prosecution. 41 A defense, in basic terms, is the reason why the person who would otherwise be guilty of the offense charged cannot be found guilty of the offense charged. For example, a person who is charged with assault and can use the defense of justification (commonly known as self-defense ). What the defendant argues is that he or she assaulted the victim, but was justified in doing so because of he or she was defending him- or herself. If the jury finds that the defendant assaulted the other person, they must, nevertheless, find the defendant not guilty if they believe that the defendant in assaulting the other person was justified in self-defense. The defenses recognized in the Penal Law are: infancy; 42 justification; 43 duress; 44 entrapment; 45 renunciation; 46 and mental disease or defect. 47 Definitions of Defenses Defense Explanation Infancy A person less than sixteen years old is not criminally responsible for conduct except 13, 14 and 15 year olds can be criminally responsible for certain offenses. Justification Duress The justifiable use of physical force Coerced to commit a crime by the use or threatened imminent use of unlawful physical force physical force 40 Criminal Procedure Law 220.40 41 Criminal Procedure Law 70.20 42 Penal Law 30.00. 43 Penal Law 35.00-35.30. 44 Penal Law 40.00. 45 Penal Law 40.05. 46 Penal Law 40.10. 47 Penal Law 40.15. Page 25 of 40

Defense Entrapment Renunciation Mental Disease or Defect Explanation Defendant was induced or encouraged to commit a crime by a public servant. Defendant withdrew from participation in criminal offense prior to the commission of the crime and made a substantial effort to prevent the crime. Defendant lacked criminal responsibility by reason of mental disease or defect because, he lacked substantial capacity to know or appreciate either: (1) the nature and consequences of such conduct; or (2) that such conduct was wrong. The Penal Law divides these defenses into two categories: (1) simple, ordinary or traditional defenses and (2) affirmative defenses. The division is based on the burden of proof. Simple Ordinary or Traditional Defenses. Once the defendant meets the initial burden of sufficiently raising a simple defense at trial, the burden shifts to the prosecutor to disprove the defense beyond a reasonable doubt. The simple defenses under the Penal Law are justification (e.g., selfdefense), and infancy. Affirmative Defenses. Affirmative defenses, on the other hand, are defenses that the defendant must affirm and prove by a preponderance of the evidence (i.e., the burden is always on the defendant). These affirmative defenses are mental disease or defect, entrapment, duress, and renunciation. Specific Defenses. There are defenses that apply to specific offenses. These defenses are found not in the defense section of the Penal Law, but rather in the section for the specific offense. They too are divided in simple and affirmative defenses. An example of an affirmative defense applicable to specific offenses is extreme emotional disturbance where a person is charged with either murder in the first or second degree. 48 Common Law Defenses. In addition to simple and affirmative defenses found in the Penal Law, there are defenses found in common law. An example of these defenses is agency. 49 This defense is available to a defendant charged with criminal sale of a controlled substance who acted as an agent to the buyer of the drugs and not the seller. It is treated as a simple defense for burden of proof purposes. 48 Penal Law 125.27 (2) (a); 125.25 (1) (a). 49 See e.g. People v Lam Lek Chong, 45 NY2d 64 (1978). Page 26 of 40

Defenses: Burden of Proof and Example Defense Burden of Proof Example Simple Affirmative Defendant has initial burden to sufficiently raise defense at trial Burden shift to People to disprove defense beyond a reasonable doubt. Defendant must affirm and prove by a preponderance of the evidence. Justification Infancy Entrapment Mental disease/defect Duress Renunciation Specific It depends Extreme emotional disturbance Common Law Defendant has initial burden to sufficiently raise defense at trial Burden shift to People to disprove defense beyond a reasonable doubt. Agency Criminal Procedure Criminal procedure in New York is found in the Criminal Procedure Law, the New York State Constitution, and the United States Constitution, and court cases interpreting these laws and constitutional provisions. The Parties in a Criminal Action Criminal actions are prosecuted by the State of New York. Since all criminal actions are entitled The People of the State of New York against [defendant s name] the prosecutor is usually referred to as the People. The Prosecutors in New York City Office District Attorney New York City Corporation Counsel New York State Attorney General Special Prosecutor Government County (elected) City (appointed by Mayor) State (elected) Appointed by Governor A defendant is the other party. Defendants have various titles throughout the whole thing: before arrest, they are the suspects; upon arrest, they are the arrested; when they appear before the court, they are the defendants; after they are found guilty or plead guilty, they are the convicts; if sentenced to incarceration, they are the inmates; if sentenced to probation, they are probationers; if they appeal they are the appellants; then when they are released on parole, they are the parolees. Page 27 of 40

The victim of the criminal act is not a party in a criminal matter, but rather referred to as a complainant or a complaining witness. SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF PRINCE THE PEOPLE OF THE STATE OF NEW YORK - AGAINST - INDICTMENT 1234-2009 [DEFENDANT S NAME] Page 28 of 40

Chapter 4: Arrest to Trial The Procedure from Arrest to Trial 1 Arrest (and securing the presence of the defendant) 50 2 Commencement of criminal action and arraignment 51 3 Pretrial procedures, including discovery, bill of particulars and motions 52 4 Pretrial motions 53 5 Trial 54 Facts from the class Problem: Derek Defendant was handcuffed and placed under arrest around 7:30 pm. The defendant was taken to the 116th precinct and held overnight. Derek Defendant was taken to Central Booking. Arrest (And Securing the Presence of the Defendant) When a police officer arrests a person and takes that person to the local police precinct, the police have the option of taking the person to court immediately after processing or, if the person is going to be charged with a violation, misdemeanor, or certain low level felonies, the police may issue that person an appearance ticket. 55 This appearance ticket is a legal notice that the person arrested must go to court on a particular date usually a month later for arraignment. In 1988, a group of arrestees challenged in Federal Court the way New York City processed the arrestees from arrest to arraignment and the amount of time it took. 56 All arrestees in New York must now be arraigned within 24 hours of being arrested or the burden is on the state to explain why there is a delay (the penalty is release, not dismissal). 57 50 See generally Criminal Procedure Law art 110. 51 See generally Criminal Procedure Law art 100. 52 See generally Criminal Procedure Law art 240 and 200.95. 53 See generally Criminal Procedure Law art 255. 54 See generally Criminal Procedure Law arts 260-440. 55 compare Criminal Procedure Law arts 140 and 150 56 Williams v Ward, 845 F2d 374 (2d Cir 1988), cert denied 488 US 1020 (1989). 57 People ex rel. Maxian on Behalf of Roundtree v Brown, 77 NY2d 422 (1991) Page 29 of 40

Appearance of The Defendant An arrest or an appearance ticket are two ways for the arrestee to get to court for arraignment. Both of these methods take place after the police have taken a person into custody. When a person is arrested, it is safe to assume that the arrestee might be charged with something. What about if a person is not arrested? Sometimes an incident is investigated prior to anyone being arrested and the prosecutor gets an indictment for a particular person through the grand jury. 58 How do you get that person into court for arraignment (in order for the court to get personal jurisdiction)? Once an accusatory instrument is filed, the court has the power to compel or require the appearance of the defendant. 59 This is accomplished by the issuance and execution of an arrest warrant or the issuance and service upon a defendant of a summons. 60 The Summons A summons is a process issued by a criminal court judge directing the defendant named in either a filed information, a misdemeanor complaint, or prosecutor s information to appear in criminal court at a designated time for the purpose of being arraigned upon the accusatory instrument. 61 The Arrest Warrant An arrest warrant is a process by which a Criminal Court judge directs a police officer to take into custody the defendant designated in the accusatory instrument filed. It is also utilized when a summons is issued and the defendant does not appear in court. 62 Obtaining the Presence of the Defendant in Court Method Warrantless Arrest Appearance Ticket Summons Arrest Warrant Process Police officer arrests a suspect and the suspect is held pending arraignment in court. Police officer arrests a suspect, suspect is released by police and told the date to come to court for arraignment. Prosecutor files accusatory instrument and judge sends out a notice to named defendant to come to court for arraignment on a particular date. Prosecutor files accusatory instrument and judge issues an order for the police to seize the named defendant and bring him or her to court immediately upon arrest. 58 See Criminal Procedure Law art 190. 59 Criminal Procedure Law 110.10 60 Id. 61 See Criminal Procedure Law art 130 62 See Criminal Procedure Law art 120 Page 30 of 40

Commencement of a Criminal Action & Arraignment A criminal action commences with the filing by the prosecutor of an accusatory instrument with the court. 63 Once the instrument is filed, the next step is to get the defendant to appear in court. Once the defendant appears in court, arraignment can occur. 64 Introduction Accusatory Instruments The accusatory instrument is a written document or series of documents that notifies the defendant as to what criminal offenses he or she is being charged with and, with certain instruments, the factual basis for that charge or charges. 1. Indictment 2. Information 3. Prosecutor s Information 4. Misdemeanor Complaint 5. Felony Complaint 6. Simplified Information Types of Accusatory Instruments 65 All valid accusatory instruments give the court preliminary jurisdiction, but only a few give the court trial jurisdiction. Preliminary jurisdiction is the power of the court to commence a criminal action. 66 Trial jurisdiction is the power of the court to take a plea and, if necessary, try the case. 67 Trial Jurisdiction Accusatory Instruments Indictment Information Prosecutor s Information Simplified Information 63 Criminal Procedure Law 1.20 (16), (17). 64 Criminal Procedure Law 1.20 (9). 65 See Criminal Procedure Law 1.20 (1) (8). 66 Criminal Procedure Law 1.20 (25). 67 Criminal Procedure Law 1.20 (24). Page 31 of 40