CRIMINAL ARRESTS AND CHARGING

Who:  Anyone can be subject to arrest and criminal charges for alleged wrongdoing. The police are the investigating and arresting agency. The prosecutor (not the police) is the one who decides whether charges will be filed and the prosecutor is the one who must prove the charge.  The witnesses or victims are not in control of the case, but they are free to express their wishes.  The judge makes decisions regarding release from jail, legal issues and sentencing.  The defense attorney is the guide, protector and advocate for the accused.

What:  County, state and federal governments all have codes and statutes which identify some conduct as criminal. The significance of a crime is that someone can lose his or her liberty, upon arrest and upon conviction.  The next significant thing is that a criminal conviction can be a liability in other ways.  A criminal conviction can result in loss of immigration status, future goals, educational and career opportunities etc.   This is different from a civil case in which no jail can be imposed and it’s usually about money.

When: An arrest can occur at any time – usually the most inconvenient time (since there is rarely a convenient time to be arrested anyway).  Charges must be filed within 24 hours if the arrestee is held in custody. Charges can be filed at a later time, but the arrestee cannot be held in jail longer than 24 hours without charges being filed.  If the filing of charges is delayed, the prosecutor has s maximum of two and one half years from the arrest to file charges for simple misdemeanors and the timeframe gets longer the more serious the charge.  Once a charge is filed, there are speedy trial timelines and customary case processing timelines that vary based on the court and custody status of the defendant.

Where:  Misdemeanor cases are handled by local courts and criminal courts or courts of limited jurisdiction (called Justice Courts, etc).  Felony offenses are handled in the NYS Supreme courts.  Juvenile cases are handled in Family Court with some exceptions.

How:  A mere allegation can trigger a police response and investigation. The investigation can be thorough or incomplete or somewhere in between. It is the prosecutor who has the power to review police reports and make a decision whether to charge a crime. There is no grand jury that makes that decision in misdemeanor cases, again with some exceptions. The judge does not have veto power over a charge.  But a jury does!  A criminal charge is distressing, but it is only the beginning and not the end.

This is where the quick overview ends. Each case is unique and the best approach and defense varies from case to case.  A strong and knowledgeable case strategy by a knowledgeable criminal defense attorney requires establishing a working relationship as soon as possible.

 


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disclaimer: The information on this web site is not, nor is it intended to be, legal advice. You should contact an attorney for advice on your individual situation. 

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Copyright Stewart Orden 2012