Packet Two: Criminal Law and Procedure Chapter 1: Background

Packet Two: Criminal Law and Procedure 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. (Misdemeanors) Courts with Criminal Jurisdiction (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 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 16

Chapter One: Introduction 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. 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 four terms that we need to have defined are: (1) knowingly; (2) unlawfully; (3) sells; and (4) controlled substance. Page 2 of 16

Chapter One: Introduction 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 and is found in subdivision one of Penal Law 220.00. Controlled Substances; Definitions (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. 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 16

Chapter One: Introduction 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. 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) Page 4 of 16

Chapter One: Introduction Example of Process to Define Terms (Using Criminal Possession of a Controlled Substance in the Seventh Degree [Penal Law 220.03]) Step 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 of article thirty-three of the public health law. 5. Controlled substance means any substance listed in schedule I, II, III, IV or V of section thirty-three hundred six of the public health law other than marihuana, but including concentrated cannabis as defined in paragraph (a) of subdivision four of section thirty-three hundred two of such law. 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)... 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: 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 16

Chapter One: Introduction 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 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 Page 6 of 16

Chapter One: Introduction 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. 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 16

Chapter One: Introduction Page 8 of 16

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 Term Penal Law Statutory Definition Offense 10.00 (1) Conduct where a sentence of imprisonment or a fine is provided by law. Crime 10.00 (6) Misdemeanor or a felony. Felony 10.00 (5) An offense where a sentence of imprisonment in of more than one year can be imposed. Misdemeanor 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 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 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 When and Where a Warrantless Arrest by police officer 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. 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. Page 9 of 16

Chapter Two: Terms You Need To Know Appearance ticket 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 1.20 (27) A process of a criminal court requiring a defendant to appear the court for the purpose of arraignment. Warrant of arrest 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 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; 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 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 1.20 (17) A criminal action is commenced by the filing of the first accusatory instrument against a defendant in a criminal court. Arraignment 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; 4 sets further proceedings in the action. Page 10 of 16

Chapter Two: Terms You Need To Know IV. Statutes Pertaining to Accusatory Instruments In General Accusatory instrument 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 1.20 (3) 1 The indictment is a written accusation by a grand jury filed with a supreme court; 2 The indictment charges one or more defendants with the commission of one or more offenses, at least one of which is a crime; and 3 The indictment serves as a basis for prosecution. Felony complaint 1.20 (6) 1 The felony complaint is a verified written accusation by a person filed with a local criminal court; Misdemeanor Accusatory Instruments 2 The felony complaint charges one or more defendants with the commission of one or more felonies; 3 The felony complaint serves to commence a criminal action; and 4 The felony complaint does not serve as a basis for plea or trial. Information 1.20 (4) 1 An information is a verified written accusation by a person filed with a local criminal court; 2 An information charges one or more defendants with the commission of one or more non-felony offenses, none of which is a felony; 3 An information serves to commence a criminal action; 4 An information serves a basis for prosecution. Page 11 of 16

Chapter Two: Terms You Need To Know Misdemeanor complaint 1.20 (7) 1 The misdemeanor complaint is a verified written accusation by a person filed with a local criminal court 2 The misdemeanor complaint charges one or more defendants with the commission of one or more non-felony offenses (at least one is a misdemeanor); 3 The misdemeanor complaint serves to commence a criminal action; 4 But the misdemeanor complaint will not serve as a basis for as a basis for plea or trial. EXCEPT the defendant can waive this requirement. Supporting deposition 100.20 1 The supporting deposition is a written instrument accompanying or filed in connection with an information or a misdemeanor complaint; 2 The supporting deposition is subscribed and verified by a person other than the complainant of such accusatory instrument; 3 The supporting deposition contains factual allegations of an evidentiary character, based either upon personal knowledge or hearsay, that supplement those of the accusatory instrument; 4 The supporting deposition supports, or tend to supports, the charge or charges contained in the information of misdemeanor complaint. V. Statutes Pertaining to Jurisdiction Preliminary jurisdiction 1.20 (25) 1 A misdemeanor or felony complaint has been properly filed; 2 court may conduct proceedings that lead or may lead to prosecution and final disposition of the action in a court having trial jurisdiction. Trial jurisdiction 1.20 (24) 1 An indictment or an information charging is properly filed with the court; 2 court has authority to accept a plea 4 to, try or otherwise finally dispose of such accusatory instrument. 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 12 of 16

Chapter Two: Terms You Need To Know VI. Statutes Pertaining to Bill of Particulars and Discovery Discovery, definition of terms 240.10 (1), (3) 1 Demand to produce means a 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... 3 Property means any 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. Discovery; upon demand of defendant 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) Any written, recorded or oral statement of the defendant (or codefendant) 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 (b) Any grand jury transcript of testimony of the defendant or co-defendant. (c) 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 (d) Any photograph or drawing relating to the criminal action or proceeding. It must be made or completed by: Page 13 of 16

Chapter Two: Terms You Need To Know Bill of particulars 200.95 (1) (a) Definitions. 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 (e) 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) (f) Any other property obtained from the defendant, or a co-defendant to be tried jointly (g) Any tapes or other electronic recordings which the prosecutor intends to introduce at trial (h) 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. (i) 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. A written statement by the prosecutor It specifies items of factual information which are not recited in the indictment. The items pertains to the offense charged. It includes: the substance of each defendant s conduct encompassed by the charge which the people intend to prove at trial on their direct case. whether the people intend to prove that the defendant acted as principal or accomplice or both Page 14 of 16

Chapter Two: Terms You Need To Know The prosecutor is not required to include matters of evidence relating to how the people intend to prove: the elements of the offense charged or any item of factual information included in the bill of particulars. Request for a bill of particulars (b) A written request served by defendant upon the people It is done without court order It requests a bill of particulars: specifying the items of factual information desired, and alleging that defendant cannot adequately prepare or conduct his defense without the information requested. VII. Statute Pertaining to Pre-trial Motions Pre-trial motion 255.10 (1) Any defense motion which seeks a court order Types of Pre-Trial Motions 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 (to CPL article 100 or 200). Page 15 of 16

Chapter Two: Terms You Need To Know VIII. Statutes Pertaining to Trials Trial 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 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 1.20 (13) The entry of: a guilty plea; or a guilty verdict of guilty Sentence 1.20 (14) The imposition and entry of sentence upon a conviction Judgment 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 16 of 16