Criminal Litigation: Step-By-Step

Criminal Law & Procedure For Paralegals Criminal Litigation: Step-By-Step 2 Getting Defendant Before The Court! There are four methods to getting the defendant before the court 1) Warrantless Arrest 2) Appearance Ticket 3) Arrest Warrant 4) Summons Probable Cause! In order to seize a person, there must be probable cause (CPL 70.10 [2]).! Probable cause = Reasonable cause Reasonable Cause! Reasonable cause (can be based on hearsay): 1) Reasonably likely that a criminal offense was committed; and 2) Reasonably likely that the defendant committed it. 1

(1) Warrantless Arrest (CPL Art 140)! A person who is believed to have committed a criminal offense and who is at liberty within the state may be arrested for such offense.! No need for a warrant! No need for a criminal action to have started.! Next stop is court When Can a Police Officer Make an Arrest?! It depends on what kind of Criminal Offense is committed! Crime; or! Petty Offense! Criminal Offense (Crime or Petty Offense).! If the Police Officer witnesses the criminal offense and has probable cause, the Police Officer can arrest (CPL 140.10 [1] [a]). Making Arrest for Crime! Crime (Felony or Misdemeanor) (can be hearsay).! If the Police Officer does not witness the crime BUT has probable cause from an eyewitness, the Police Officer can arrest (CPL 140.10 [1] [b]).! Petty Offense (Violation or Petty Offense) (no hearsay).! Police Officer MUST witness the offense (CPL 140.10 [1] [a]). 2

(2) Appearance Ticket (CPL Art 150)! Police officer arrests defendant! Police officer gives the defendant a written notice! Defendant gets to go home! Directs the defendant to appear in criminal court on a particular date in connection with his alleged commission of a designated offense (for arraignment) (CPL 150.10 [1]).! Available for defendants who are charged with Misdemeanors and some Class E Felonies (CPL 150.20). (3) Arrest Warrant (CPL Art 120)! A warrant of arrest is a process (CPL 120.10)! People file accusatory instrument against defendant! Criminal court judge issues the warrant! Directs police officer to arrest defendant; and! Directs police officer to bring defendant before such court in connection with accusatory instrument. (4) The Summons (CPL Article 130)! There must be a valid accusatory instrument! Issued by criminal court directing the defendant to appear before it (CPL 130.10). 3

Commencement of a Criminal Action & Arraignment 1) A criminal action commences with the filing by prosecutor of an accusatory instrument with court. 2) Once the instrument is filed, the next step is to get defendant to appear in court. 3) Once the defendant appears in court, arraignment can occur. Accusatory Instruments! A written document or series of documents! Notifies the defendant: 1) What criminal offenses he or she is being charged with and 2) the factual basis for that charge or charges.! Only certain instruments Types of Accusatory Instruments 1) Indictment; 2) Information; 3) Prosecutor s Information; 4) Misdemeanor Complaint; 5) Felony Complaint; and 6) Simplified Information. 4

Types of Accusatory Instruments! Based on! The highest crime charged! Whether there is hearsay! Whether the Grand Jury has indicted Preliminary Versus Trial Jurisdiction! Preliminary Jurisdiction (CPL 1.20 [25])! To commence a criminal action, the court needs it.! Any accusatory instrument gives preliminary jurisdiction! Cannot take a plea! Cannot go to trial! Trial Jurisdiction (CPL 1.20 [24])! In order to take a plea or to go to trial! Need Indictment (CPL 1.20 [3]) or Information (CPL 1.20 [4]) Preliminary Versus Trial Jurisdiction! Trial Jurisdiction (CPL 1.20 [24])! In order to take a plea or to go to trial! Need Indictment (CPL 1.20 [3]) or Information (CPL 1.20 [4]) 5

Accusatory Instruments The Four Biggies Preliminary Jurisdiction Misdemeanor Complaint Felony Complaint Trial Jurisdiction Information Indictment (1) Misdemeanor Complaint (CPL 100.10 [4])! Written accusation! sworn under the penalty of perjury! Can be based on hearsay! Filed with a local criminal court (Criminal Court),! Can charge one person or more than one person (acting in concert)! Must charge at least one misdemeanor (can be more than one) Misdemeanor Complaint! In addition can also charge petty offense! Starts the criminal action (preliminary jurisdiction)! If the defendant waives prosecution by information there can be a plea (CPL 170.65 [3]) 6

(2) Information (CPL 100.10 [1])! Written accusation! sworn under the penalty of perjury! Filed with a local criminal court (criminal court),! Can charge on person or more than one person (acting in concert) Information (CPL 100.10 [1])! Must charge at least one misdemeanor (can be more than one)! In addition can also charge petty offense.! Cannot charge a felony! Starts the criminal action (preliminary jurisdiction)! Can! take a plea! go to trial with it (trial jurisdiction) Information Versus Misdemeanor Complaint! Other than trial jurisdiction, what s the difference?! An information cannot have hearsay 7

(3) Felony Complaint (CPL 100.10 [5])! Written accusation! sworn under the penalty of perjury! Filed with a local criminal court (criminal court),! Can charge on person or more than one person (acting in concert)! Must charge at least one felony (can be more than one)! Can also charge misdemeanor and/or petty offense(s)! Starts the criminal action! Cannot go to trial with it (4) The Indictment (CPL 200.10)! Verified written accusation by grand jury! Filed in Supreme Court! Charges one or more defendants with at least a felony (though it can be a misdemeanor)! It is the product of a grand jury Types of Accusatory Instruments! Based on! the highest crime charged! Whether there is hearsay! Whether the Grand Jury has indicted 8

If the Highest Crime is a! Felony! Felony Complaint! Grand Jury! Indictment! Misdemeanor! Misdemeanor Complaint! Supporting Deposition! Information! Petty Offense! No hearsay is allowed Arraignment Proceeding! Once accusatory instrument is filed, defendant(s) named in Accusatory Instrument appear before the court! Court acquires personal jurisdiction! Court sets course for further proceedings! When a misdemeanor complaint, felony complaint or information is filed with the court, the defendant must be arraigned on that accusatory instrument! Defendant must personally appear! Defendant must be informed of charges against him or her Arraignment Process (CPL 170.10), continued! Defendant must be given a copy of the accusatory instrument! Defendant has right to counsel! If defendant is without counsel they must be allowed time to get an attorney (retain or if indigent, free of charge) 9

After Arraignment (CPL 170.10 [7]) 1. Final Disposition! Guilty plea (misdemeanor or petty offense)! Sentence 2. Towards Trial! Bail Remand! Released on His/Her Recognizance (ROR) (1) Final Disposition: (a) Guilty Plea! Defendant can plead guilty to the accusations in an Information! Defendant can plead guilty to the accusations in a misdemeanor complaint if defendant waives prosecution by information (1) Final Disposition: (b) Dismissal! Rare at Arraignment! Dismissal order is in response to a motion! A motion must be in writing! People must be given an opportunity to be heard 10

(2) Towards Trial: Securing the Defendant! ROR, Bail, Remand! When the People request recognizance or bail, the court must issue a securing order: 1) Granting the application and releasing the defendant on his own recognizance (ROR); or 2) Granting the application and fixing bail; or 3) Denying the application and remanding the defendant to corrections. (2) Towards Trial: Securing the Defendant It has long been known that a defendant at liberty pending trial already stands a better chance of not being convicted or, if convicted, of not receiving a prison sentence, than those who are detained before trial, even after controlling for factors such as prior criminal record, seriousness of the charge, bail amount, type of counsel, community ties and employment status (People v Johnson, 27 NY3d 199 [2016]; citing Barker v Wingo, 407 US 514, 533 n. 35 [1972]). (2) Towards Trial: Securing the Defendant! What is necessary to secure the defendant s court attendance when required.! Bail factors/criteria! Non-family offenses! Family offenses 11

(2) Towards Trial: Securing the Defendant! Factors/Criteria for Bail for Non-Family Offenses! character, reputation, habits and mental condition;! employment and financial resources;! family ties and the length of residence in the community;! criminal record if any;! previous record in responding to court appearances when required or with respect to flight to avoid criminal prosecution. (2) Towards Trial: Securing the Defendant! Additional Factors/Criteria for Bail for Family Offenses! any violation by the principal of an order of protection issued by any court! history of use or possession of a firearm; and! weight of the evidence against him in the pending criminal action! the sentence which may be or has been imposed upon conviction. Pre-Trial Stage 1. Obtain Trial Jurisdiction 2. Disclosure a) Bill of Particulars b) Discovery 3. Pre-Trial Motions 12

(1) Obtaining Trial Jurisdiction: Misdemeanors! A Misdemeanor Complaint only gives the court preliminary jurisdiction.! An Information gives the court Trial Jurisdiction! A Misdemeanor Complaint contains hearsay! Must eliminate hearsay! Need to file a document to eliminate hearsay Supporting Depositions (CPL 100.20)! Written instrument! Subscribed and verified by a person other than the complainant! Contains factual allegations of an evidentiary character! The purpose to eliminate the hearsay,! it must be based upon personal knowledge! Support or tend to support the charge or charges contained in the misdemeanor complaint. Supporting Depositions: The Laboratory Report! If defendant is charged with possession of a weapon (i.e., gun), there must be a test to see if the gun is operable.! This lab report is filed as a supporting deposition.! If defendant is charged with possession of a controlled substance, must there be a lab report confirming that the drugs are indeed drugs?! It depends. 13

Supporting Depositions: Laboratory Report! If the officer in the misdemeanor accusatory instrument: 1) adequately identifies the particular drug, 2) alleges that defendant possessed that drug, 3) states familiarity with and training regarding the identification of the drug, 4) provides some information as to why s/he concluded that the substance was a particular type of illegal drug, and 5) supplies sufficient notice of the charged crime to satisfy the demands of due process and double jeopardy. Supporting Depositions: Laboratory Report! Then the misdemeanor information is facially sufficient for the following drugs:! Cocaine! Crack-cocaine (and residue in pipe)! Heroin! Ketamine! Oxycodone pills; and! Marijuana Trial Jurisdiction! Upon filing a supporting deposition, the Misdemeanor Complaint will be deemed converted to an Information! Since the information will be a new accusatory instrument, the defendant must be arraigned! At this arraignment, the defendant will now be asked how he or she pleads 14

Trial Jurisdiction For Felonies: The Indictment 1. Felony Complaint 2. Grand Jury 3. Indictment Grand Jury Process In a Nutshell! The People present the case to a Grand Jury! Grand Jury consists of up to 23 Jurors! Minimum of 16 jurors must be present! Prosecutor is present! Defense counsel and defendant are not present (except when and if defendant testifies). Grand Jury Process in a Nutshell! Prosecutor examines witnesses (jurors can also ask questions)! Defendant can testify! People instruct the GJ on the law! Standard is reasonable cause to believe! Need at least 12 to indict 15

Felony Trial Jurisdiction! Once the Grand Jury votes a true bill, an indictment signed by the foreperson of the Grand Jury and the District Attorney is filed in the Supreme Court! Once it is filed, arraignment can take place! At arraignment, the court will have trial jurisdiction and the defendant can enter a plea. (2) Disclosure a) Bill of Particulars b) Disclosure (a) Bill of Particulars (CPL 200.95)! Written statement by the prosecutor! Specifies items of factual information not recited in the indictment [and information]! Items pertain to the offense charged! Includes substance of each defendant s conduct encompassed by the charge! Whether the People intend to prove that the defendant acted as principal or accomplice or both! Contains the what and not the how 16

(b) Discovery: What is it? (CPL Art 240)! Not an instrument! A process! Purpose is to discover certain evidence that the People possess What is available (CPL 240.20) 1. Statements to Law Enforcement Official 2. Grand Jury Testimony of defendant and co-defendant 3. Reports on Examinations 4. Photos and Drawings 5. Defendant s Property 6. Recordings 7. Favorable Evidence 8. Information in Arrest What is available (CPL 240.20)! Statements to Law Enforcement Official (CPL 240.20 [1] [a]).! Any written, recorded or oral statement of the defendant, and of a co-defendant to be tried jointly, made to a public servant engaged in law enforcement activity or to a person then acting under the officer s direction or in cooperation with the police! Does not include any statements made during the criminal transaction; 17

What is available (CPL 240.20)! Grand Jury Testimony of Defendant and/or Co-defendant (CPL 240.20 [1] [b]).! Any transcript of testimony relating to the criminal action or proceeding pending against the defendant, given by the defendant, or by a co-defendant to be tried jointly, before any grand jury; What is available (CPL 240.20)! Reports on Examinations (CPL 240.20 [1] [c]).! Any written report or document of a physical or mental examination, or scientific test or experiment, relating to criminal action or proceeding! made by, or at request or direction of a public servant engaged in law enforcement activity, or! made by a person the prosecutor intends to call as a witness at trial,! or the people intend to introduce at trial. What is available (CPL 240.20)! Photos and Drawings by Law Enforcement (CPL 240.20 [1] [d]).! Any photograph or drawing relating to the criminal action or proceeding! made or completed by a public servant engaged in law enforcement activity, or! made by a person whom the prosecutor intends to call as a witness at trial, or! which the people intend to introduce at trial; 18

What is available (CPL 240.20)! Photos of Released Property (CPL 240.20 [1] [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), irrespective of whether the people intend to introduce at trial the property or the photograph, photocopy or other reproduction. What is available (CPL 240.20)! Defendant s Property (CPL 240.20 [1] [f]).! Any other property obtained from! the defendant, or! a co-defendant to be tried jointly;! Tapes (CPL 240.20 [1] [g]).! Any tapes or other electronic recordings that the prosecutor intends to introduce at trial What is available (CPL 240.20)! Favorable: Exculpatory or Brady Material (CPL 240.20 [1] [h]; Brady v Maryland, 373 US 83 [1963]).! 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.! Information on the Arrest (CPL 240.20 [1] [i]).! The approximate date, time and place of the offense charged and of defendant s arrest. 19

Request & Demand: Request for a Bill of Particulars & Demand for Discovery 1. Defense: Within 30 days of Arraignment! Demand for Discovery! Request for a Bill of Particulars 2. People: Within 15 days of Demand and/or Request! Comply! Do not comply! Protective Order 3. Defense: Motion to Compel (if necessary) Motion Practice For Disclosure! When the Request and/or Demand Fail! People unlawfully refuse to hand over everything requested and demanded! Defendant can move for court-ordered discovery and a bill of particulars! Should be a part of the omnibus motion Step Three: Motion Practice 1. Defense Motion 2. People Answer 3. Court Order! No factual dispute: Summary Grant or Deny! Factual dispute: Hold Hearing 4. After Hearing! Judge s findings of fact and conclusions of law 20

Defense Motion Process (CPL 255.20)! 45 Day Rule.! Motion must be made within 45 days of arraignment on the trial-ready accusatory instrument (unless good cause)! Omnibus Motion Rule.! All motions must be grouped together (unless they can t be)! People s Response! People must respond within a reasonable time Motions (CPL 255.10) 1. Dismissing or reducing an indictment 2. Dismissing an information, or misdemeanor complaint 3. Granting discovery 4. Granting a bill of particulars 5. Removing the action 6. Suppressing the use at trial of any evidence 7. Granting separate trials Trial Steps 1. Jury Selection: People, then defendant 2. Opening Statements: People, then defendant 3. Presentation of Evidence: People, then defendant! Examination of witness, then cross examination 4. Closing Arguments: Defendant, then People 5. Verdict 21

Jury Selection: Assembling the Petit Jury! Felony Trials: 12 Jurors! Misdemeanor Trials: 6 Jurors Voir Dire is the Process by which a jury is chosen from a panel Voir Dire: Questioning of Potential Jurors 1. Challenges for Cause 2. Peremptory Challenges For Cause Lacks Qualifications! Not Qualified under Judiciary Law 510! Not US citizen! Not resident of county! Under 18 years old! Has felony conviction! Can t understand and communicate in English 22

For Cause Lacks Qualifications! State of mind that is likely to preclude him/her from rendering an impartial verdict based upon the evidence adduced at trial (CPL 360.25 [1] [b]);! Juror is related within the sixth degree to defendant, victim, prospective witness, counsel for defendant or People (CPL 360.25 [1] [c]);! Juror is or was party in a civil action against defendant, victim, prospective witness, counsel for defendant or People (CPL 360.25 [1] [c]); For Cause Lacks Qualifications! Juror complained against or has been accused by defendant, victim, prospective witness, counsel for defendant or People in a criminal action (CPL 360.25 [1] [c]);! Juror bears some other relationship to defendant, victim, prospective witness, counsel for defendant or People of such a nature that it is likely to preclude juror from rendering an impartial verdict (CPL 360.25 [1] [c]);! Juror is to be a witness at the trial (CPL 360.25 [1] [d]); For Cause Lacks Qualifications! Juror was a witness at the Grand Jury proceeding or at the preliminary hearing (CPL 360.25 [1] [e]);! Juror served on a trial or grand jury in a prior civil or criminal case involving the same conduct (CPL 360.25 [1] [e]). 23

For Cause Lacks Qualifications! Judiciary Law 524 (a)! Exemption based on prior service! 6 year exemption. Served on a grand or petit jury in the New York State or in the Federal court system in the last 6 years.! 8 year exemption. Served on a grand or petit jury in the New York State or in the Federal court system for more than 10 days in the last 8 years. Peremptory Challenges! Batson v Kentucky.! Cannot eliminate jurors based on! race,! sex,! religion or! other protected class Peremptory Challenges Class Class A Felony Class B Felony Class C Felony Class D Felony Class E Felony Misdemeanors Number 20 peremptory challenges 15 peremptory challenges 15 peremptory challenges 10 peremptory challenges 10 peremptory challenges 3 peremptory challenges 24

Trial Steps 1. Jury Selection: People, then defendant 2. Opening Statements: People, then defendant 3. Presentation of Evidence: People, then defendant! Examination of witness, then cross examination 4. Closing Arguments: Defendant, then People 5. Verdict! Guilty! Sentencing! Judgment! Not Guilty! Double jeopardy! Hung Jury! New Trial? Verdict Appeal Process! Appeal is of right to intermediate appellate court! Appellate Division or! Appellate Term! Appeal by permission to Court of Appeals 25