Federal and State Criminal Procedure

Bail, one of the primary considerations after a client has been arrested, is set at the client’s arraignment or presentment. Bail may be modified at other times, but not absent a change in circumstances, or by a higher court. An attorney can describe the process by which bail is set in greater detail, but the following are factors considered by the judge in setting bail:
Federal Court
– The nature and circumstances of the offense charged;
– The weight of the evidence against the defendant;
– The history and characteristics of the defendant, including
▪ The defendant’s character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court appearances;
▪ Whether, at the time of the current offense or arrest, the defendant was on probation, on parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under Federal, State, or local law; and
– The nature and seriousness of the danger to any person or the community that would be posed by the person’s release.
See 18 U.S.C. 3142(g).
New York State Court
– The defendant’s character, reputation, habits, and mental condition;
– The defendant’s employment and financial resources;
– The defendant’s family ties and length of his residence in the community;
– The defendant’s criminal record, if any;
– The defendant’s prior adjudication as a juvenile delinquent;
– The defendant’s previous record, if any, in responding to court appearances when required or with respect to flight to avoid criminal prosecution;
– The weight of the evidence against the defendant in the pending criminal action, as well as any other factors indicating the probability or improbability of conviction;
– The sentence the defendant potentially faces, should he or she be convicted.
See New York State Criminal Procedure Law Section 510.30(2)(a).

Under certain circumstances, federal and state authorities can wiretap your conversations, eavesdrop on your in-person conversations, monitor your faxes, e-mails, and other
electronic communications. All wiretap investigations are governed by sections 2510 through 2522 of Title 18 of the United States Code. Similarly, New York State codifies its wiretapping and eavesdropping provisions in Article 700 of the New York State Criminal Procedure Law. If the federal or state governments secure judicial authorization to overhear your conversations, review your communications, or otherwise obtain authorization to intercept your private communications, you can challenge the legality of the government’s conduct. A detailed description of the legal challenges you can raise is beyond the scope of this discussion, but we can describe your options.

The most effective time to secure legal representation in a criminal case is prior to being arrested. If you receive a call, visit, or subpoena from a government agent, you should immediately contact and retain us. The reasons for this vary, but the common thread is that we can protect your legal interests.

Both Federal and New York law permit you to obtain discovery from the government in your criminal case. Discovery is information that the government must provide you to help you in your defense. We can help you pursue the discovery to which you are entitled and maximize both the information obtained and the benefits derived from your discovery.

Under certain circumstances, the judge in your case will schedule pretrial hearings to resolve an issue of fact or law. These hearings will most commonly occur when you have filed pretrial motions. For instance, if you challenge the legality of the government’s seizure of property or of the government’s taking a statement of things you said or wrote,
you may have a pretrial hearing. There are any number of other circumstances where you may ask for, and be granted, a pretrial hearing.

Pretrial motions are requests of the court to issue an order. In criminal cases, pretrial motions are governed in the federal court system by Rule 12 of the Federal Rules of Criminal Procedure and in the New York State Court System by New York State Criminal Procedure Law Article 255, specifically Section 255.20 thereof. Rule 12 of the Federal Rules of Criminal Procedure permits the defendant to “raise by pretrial motion any defense, objection, or request that the court can determine without a trial of the general issue.” On the other hand, the defendant must raise by pretrial motion:
(1) any challenge to the institution of the prosecution;
(2) any challenge alleging a defect of the indictment or the information, except challenges to the court’s jurisdiction;
(3) any request that the court suppress evidence;
(4) any request to sever either charges or defendants;
(5) any challenge to the discovery offered by the government.                                                     Section 255.20 of the New York State Criminal Procedure Law requires that the defendant serve and file his pretrial motions within 45 days after his or her arraignment. The judge can extend this period under certain circumstances. If the prosecutor intends to use eavesdropping or wiretapping evidence, then the 45 day period is extended from the date that the prosecutor provides the defendant with the eavesdropping warrant and application. The New York State Criminal Procedure Law generally requires that all pretrial motions, supporting affidavits, exhibits, and memoranda of law be included in the same set of motion papers and be made returnable the same day.

Trials are your opportunity to challenge the government’s claim that you are guilty of a crime or crimes. You may have a trial with jurors or, under certain circumstances, a bench trial, which means that the judge makes the determination of whether or not you are guilty. Whether you should have a jury trial or bench trial is a decision that is, under most circumstances, up to you. You should discuss this with us. At trial, the prosecutor gets the chance to tell the jury what the evidence will be that he or she claims will prove you guilty. Your attorney gets to answer the prosecutor’s claims. These are called opening statements. Next the prosecutor presents his or her evidence to persuade the jury that you are guilty. As the prosecutor calls each of his or her witnesses, your attorney gets the chance to cross-examine the prosecutor’s witnesses. You can help your attorney cross examine the witnesses by suggesting questions or telling your attorney things about the witness or evidence that may help him or her effectively cross examine the government’s witnesses. After the prosecutor presents his or her case, your attorney can present your case. He or she can call witnesses, including you, to present your side of the story. After your case is done, both your attorney and the prosecutor have the opportunity to present closing arguments, which are essentially speeches, based upon the evidence, where the attorneys attempt to persuade the jury or judge that that side should win the trial. After the closing arguments, if there is a jury, the judge reads them some legal instructions and then the jury deliberates about the case. If there is no jury, the judge will deliberate and will come to a decision on whether or not you are guilty.

Both Federal and New York law permit you to challenge your conviction and sentence after you have been sentenced and you have finished your appeals. The nature of these
challenges depends upon the circumstances and your case.