New York Lawyers Practical Skills Series Includes Forms on CD Criminal Law and Practice Lawrence N. Gray, Esq.* Honorable Leslie Crocker Snyder Honorable Alex M. Calabrese 2016 2017 * Lawrence N. Gray has been the update author since 2004. The Hon. Leslie Crocker Snyder and Hon. Alex M. Calabrese wrote the original monograph. NEW YORK STATE BAR ASSOCIATION Sponsored by the General Practice Section
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CONTENTS I. Introduction... 1 II. Attorney Entry... 1 III. Arraignment/Bail... 2 A. Complaint or Information... 2 B. Accused s Criminal Record... 4 C. Criminal Justice Agency Sheet... 4 D. Bail... 4 E. Plea Negotiations at Arraignment... 6 F. Notices... 6 IV. Preliminary Proceedings... 7 A. Misdemeanors... 7 B. Felonies... 7 1. Preliminary Hearing... 8 2. Grand Jury Proceedings... 8 V. Pleas and Plea Bargaining... 11 A. Generally... 11 B. Plea Bargaining Considerations... 12 1. Misdemeanors... 12 2. Felonies... 13 3. Plea Allocutions... 14 C. Alford Plea/Mental Disease or Defect/ACD... 16 D. Motion to Withdraw the Plea... 17 VI. Pretrial Motions... 17 A. Misdemeanors... 17 B. Felonies... 19 C. Motion to Dismiss in Furtherance of Justice... 19 D. Defense Demand to Produce... 21 E. Bill of Particulars... 22 F. Omnibus Motion... 22 G. Prosecutorial Discovery... 23 1. Discovery Required by Statute... 23 2. Discovery Required by Case Law... 24 a. Rosario Material... 24 b. Brady Material... 25 H. Motion for a Separate Trial or Joinder of Accuseds... 25 I. Consolidation of Indictments/Informations... 26 J. Consolidation and Severance of Codefendants... 26 K. Speedy Trial... 26 1. Constitutional Right... 27 2. Statutory Right... 27 3. Filing the Motion... 28 4. Excludable Periods... 28 5. Conversion... 29 6. Pre-Indictment Delay... 29 7. Post-Indictment Delay... 29 iii
VII. Motion to Suppress Statements... 30 A. Involuntary Statements... 30 B. Constitutional Violations... 31 C. Pre-Arrest Silence... 31 1. Fifth Amendment Rights... 31 a. Custody... 31 b. Interrogation... 32 2. Illegal Detention... 33 3. Right to Counsel... 34 a. Initiation of Proceedings... 34 b. Request for Counsel... 35 c. Representation by Counsel on an Unrelated Pending Charge... 35 d. Notification by Counsel... 36 e. Assigned Counsel Fees... 36 C. Use of Suppressed Statements... 36 D. Exceptions... 37 1. Spontaneous Declaration Exception... 37 2. Emergency Exception... 37 VIII. Motion to Suppress Evidence of an Identification... 37 A. Notice... 37 B. The Hearing... 39 C. Identification Procedures... 40 1. Lineups... 40 2. Show-ups... 40 3. Photo Identifications... 40 4. Confirmatory Identification Procedures... 41 D. Bolstering... 41 E. Right to Counsel... 42 IX. Motion to Suppress Physical Evidence... 42 A. Motion... 43 B. Standing... 43 C. Search and Seizure... 44 1. Approach to Request Information... 45 2. Common Law Right to Inquire... 45 3. Stop... 45 4. Stop and Frisk... 46 5. Arrest... 46 6. Temporary Investigative Detention... 47 7. Fruit of the Poisonous Tree Doctrine... 47 8. Independent Source and Inevitable Discovery... 48 9. Automobile Cases... 48 10. Observation of Sale Cases... 49 11. Observation of Bulge Cases... 49 12. Exceptions to the Warrant Requirement... 50 a. Abandonment... 50 b. Incident to Arrest... 50 iv
c. Consent Searches... 51 d. Exigent Circumstances... 51 e. Plain View... 52 f. Securing Premises... 52 13. Mapp Hearing... 53 14. Search Warrants... 53 a. Challenging the Warrant... 53 b. Property Subject to Seizure... 54 c. Premises to Be Searched... 54 d. Persons to Be Searched... 54 X. Pretrial Issues... 56 A. Absence of Accused... 56 B. Competence of Accused... 57 C. Sandoval Hearing... 58 D. Uncharged Crimes... 60 XI. Trial... 62 A. Accused s Presence at Trial Proceedings... 62 B. Jury Selection... 62 1. Challenges for Cause... 63 2. Peremptory Challenges... 64 3. Batson... 64 C. Nonjury Trial... 65 D. Opening Statement... 65 E. Motion to Dismiss... 65 F. Summation... 65 G. Requests to Charge... 66 H. Jury Deliberations... 67 I. Verdict... 67 XII. Sentencing... 68 A. General Considerations... 68 B. Interview Procedure... 69 C. Presentence Report... 69 1. Face Sheet... 69 2. Criminal Record... 69 a. Prior Record... 69 b. Instant Offense... 69 3. Social Circumstances... 70 a. General Considerations... 70 b. Family... 70 c. Residence... 70 d. Education... 70 e. Employment... 70 f. Drugs/Alcohol... 71 g. Other Relevant Social Data... 71 h. Mental Health... 71 i. Evaluation... 71 v
4. Department Recommendation... 71 D. Preparation of Accused s Presentence Memorandum... 72 E. Appendices... 72 F. Submission of Presentence Memorandum... 72 G. Presentence Conference... 72 H. Felony Sentencing... 73 1. Predicate and Persistent Felon... 73 2. Hate Crimes... 74 3. Other Felony Sentences... 75 a. Indeterminate Sentence... 75 b. Determinate Sentence and Post-Release Supervision... 75 c. Parole Supervision... 76 d. Other Possible Sentences... 76 4. Sentencing Chart Synopsis... 76 a. Nonpredicate Felons... 76 b. Predicate Felons... 79 c. Persistent Violent Felons... 80 d. Nonviolent Persistent Felony Offenders... 80 I. Certificate of Relief From Disabilities... 80 J. Juvenile Offenders and Youthful Offenders... 81 XIII. Special Problems in Narcotics Cases... 81 A. Buy and Bust... 81 B. Narcotics Found on Premises... 82 1. Constructive Possession... 82 2. Room Presumption... 83 C. Conspiracy Cases... 84 D. Defenses... 85 1. Agency Defense... 85 2. Criminal Facilitation... 86 3. Entrapment... 87 E. Other Issues in Narcotics Cases... 88 1. Closing the Courtroom... 88 2. Disclosure of the Confidential Informant s Identity... 89 3. Disclosure of Search Warrant Affidavit... 90 XIV. The Sex Offender Registration Act... 91 A. Statute... 91 1. Definition... 91 2. Incarcerated Offenders... 92 3. Nonincarcerated Offenders... 92 4. The Right to Counsel... 93 5. Registration and Dissemination... 93 B. Case Law... 94 1. Federal... 94 2. State... 94 XV. Anti-Terrorism... 95 A. Anti-Terrorism Act of 2001... 95 vi
1. Definitions... 95 2. Crimes... 95 a. Crime of Terrorism... 95 b. Soliciting or Providing Support for an Act of Terrorism... 96 c. Making a Terrorist Threat... 96 d. Hindering Prosecution of Terrorism... 96 B. Other Terrorism-Related Laws... 96 1. Falsely Reporting Any Incident... 96 2. Placing a False Bomb or Hazardous Substance... 97 3. Placing a False Bomb or Hazardous Substance in a Sports Stadium or Arena, Mass Transportation Facility or Enclosed Shopping Mall... 97 Criminal Law Forms Index... 101 Table of Authorities... 151 About the Authors... 171 vii
CRIMINAL LAW FORMS
INDEX OF FORMS* Notice of Appearance... 103 Notice of Bail Motion... 104 Affirmation in Support of Bail... 105 Notice of Omnibus Motion... 107 Affirmation... 109 Request for a Bill of Particulars... 113 Demand for Discovery... 115 Mandate of Commitment... 119 Order to Show Cause (Sample)... 121 Sample Arrest Warrant... 123 Appendix A Additional Sample Orders to Show Cause Sample Order to Show Cause #1... 127 Sample Order to Show Cause #2... 129 Sample Order to Show Cause #3... 131 Sample Order to Show Cause #4... 133 Sample Order to Show Cause #5... 135 Appendix B Additional Sample Mandates of Commitment Sample Mandate of Commitment #1... 139 Sample Mandate of Commitment #2... 141 Sample Mandate of Commitment #3... 143 Appendix C Sample Arrest Orders for Failure to Obey Order to Show Cause Commanding Appearance for Contempt Proceeding Sample Arrest Warrant #1... 147 Sample Arrest Warrant #2... 148 Sample Arrest Warrant #3... 149 * All of the forms contained in this monograph are included on the Forms CD accompanying this publication. For additional helpful resources see the following: Criminal and Civil Contempt (NYSBA 2012); Contempt and the Courtroom (NYSBA 1996); Criminal and Civil Contempt: Some Sense of a Hodgepodge 72 St. John s Law Review 337 (1998); Judicial and Penal Law Contempt in New York: A Critical Analysis, Brooklyn Law School Journal of Law and Poverty, Vol. III, No. 1 (1994).
ABOUT THE AUTHORS 171 HONORABLE ALEX M. CALABRESE Alex M. Calabrese is an Acting Supreme Court Justice of the State of New York and the Presiding Judge of the Red Hook Community Justice Center. As one of the most comprehensive community courts in the United States, the Justice Center hosts national and international visitors on a regular basis. Judge Calabrese has lectured nationally and internationally on community justice, speaking to government officials, judges, probation officers and social work professionals throughout the United Kingdom and in New Zealand. He began his legal career as a trial attorney with the Legal Aid Society s Criminal Defense Division in Manhattan, where he served from 1979 to 1986. For the next 11 years, he served as a principal law assistant to the Honorable Leslie Crocker Snyder, assisting the court with organized crime narcotics cases and gang-related homicide cases. In 1997, he was appointed as a judge to the Criminal Court for the City of New York by Mayor Rudolph Giuliani. Judge Calabrese is an Adjunct Professor at the New York University Graduate School of Social Work where he teaches a course in Therapeutic Jurisprudence. He and the Red Hook Community Justice Center received the 2006 Problem-Solver Award from the American Bar Association. The Community Justice Center was the first courthouse to receive this prestigious award. LAWRENCE N. GRAY, ESQ. Lawrence Gray is a former Special Assistant Attorney General in the appellate section of the Attorney General s Medicaid Fraud Control Unit. He was previously a Special Assistant Attorney General in the Office of the Special State Prosecutor for the Investigation of the New York City Criminal Justice System; prior to that he was an Assistant Attorney General in the Bureau of Real Estate, Securities Fraud and Theatrical Syndications. He began his career as an Assistant District Attorney in Bronx County. Mr. Gray is a 1969 graduate of St. John s University School of Law, where he was an associate editor of the St. John s Law Review. His other publications include Criminal and Civil Contempt, Second Edition (NYSBA, 2012); Evidentiary Privileges Grand Jury, Criminal and Civil Trials, Fifth Edition (NYSBA, 2012); Contempt and the Courtroom (NYSBA, 1996); Criminal Discovery: A Statutory and Appellate Court Analysis (NYSBA 2012); A Practice Commentary to Judiciary Law Article 19, 1 Cardozo Public Law, Policy & Ethics Journal 61 (2003); Criminal and Civil Contempt: Some Sense of a Hodgepodge, 72 St. John s Law Review 337 (1998); and Judiciary and Penal Law Contempt in New York: A Critical Analysis, Brooklyn Law School Journal of Law and Policy, Vol. III, No. 1 (1994). He is Editor-in-Chief of NYSBA s New York Criminal Practice, Fourth Edition, and its Supplements. He continues practicing law by representing indigent criminal defendants pro bono. HONORABLE LESLIE CROCKER SNYDER Judge Snyder is a former Acting Supreme Court Justice for New York County, Special Narcotics Part. She has presided over A-I multiple defendant narcotics cases. Judge Snyder was formerly Assistant District Attorney, New York County, and founded the first Sex Crimes Prosecution Unit in the country. She is a graduate of Case-Western Reserve Law School and received a certificate from Harvard Business School. Judge Snyder is a member of the New York Women s Bar (President, 1982 1983), The Association of the Bar of the City of New York, the New York State Bar Association and the Criminal Procedure Law Advisory Committee to the Chief Judge. In addition to serving as chairperson for the NYSBA program, Trial of a Drug Case (1987), Judge Snyder has served as a lecturer on narcotics, sex
172 NEW YORK LAWYERS PRACTICAL SKILLS SERIES, 2016 2017 crimes, and criminal trial matters for various bar associations, professional associations and law enforcement. She also co-authored legislation in the sex crimes area, including Criminal Procedure Law section 60.42, limiting cross-examination of the victims of sex crimes.