Criminal Law 1 – Professor Klein – Fall 2015
NYC Courts
· NYC Criminal Court – Arraignments, Misdemeanor trials, violations.
· Supreme Court – Felonies
Nassau and Suffolk County Courts
· District Court – Arraignments, Misdemeanor trials, violations
· County Court – Felonies
Arraignment
· The defendant is formerly told of the charges.
· Bail is set based upon the following criteria:
o Defendants character
o Defendants place in the community
o Defendants employment and financial resources (generally the greater the financial resources the lower the bail)
o Defendants’ family ties and length of time living in the jurisdiction. (the longer the lower the bail)
o Defendants criminal record (more prison time = greater flight risk)
o Defendants record for trial appearances
o Weight of the evidence against the defendant.
o What the sentence would be if convicted.
· The purpose of bail is to ensure that the defendant returns to the court.
· If a defendant cannot make bail he is remanded to the jail to await trial.
· Lawyers cannot put up bail money because it is a conflict of interest because the lawyer will not be working in the best interests of their client.
· When the judge holds a defendant without bail he is remanded to the custody of the Department of Corrections.
· Bail procedure is found under Section 510.30 of the New York State Criminal Procedure Law.
Types of Charges – NY State
· Felony – carries a sentence of more than 1 year in prison
· Class A Misdemeanor – 6 + months in jail.
· Class B Misdemeanor – 90 days in jail.
· Violation – 15 days in jail.
Grand Jury Indictments
· If the defendant is arraigned on a felony charge the DA’s office must be given a grand jury indictment to proceed with the matter.
· Grand Jury consists of 23 members
· To obtain an indictment the State must prove probable cause.
· An indictment is returned with a majority of the juror’s votes.
· No Defense Counsel may be present during grand jury proceedings unless the Defendant is testifying. The Defense counsel plays no role in the examination, only there as a legal advisor.
· Grand jury proceedings are not adversarial.
· A grand jury can:
o Return a true bill of indictment.
o No indictment, defendant not prosecuted for felony charges anymore.
o Return prosecutors information, the defendant should be charged and tried with a misdemeanor charge.
· Indicting a ham sandwich: too much power in grand jury. Defense is not present. Grand juries operate more often as the prosecutor's pawn than the citizen's shield.
· After indictment the defendant is arraigned again for the felony charge in Supreme Court in NYC or County Court on LI, the charges are read and a plea is entered on the indictment, bail is reviewed.
Preliminary Hearing
· Held before a judge
· Adversarial, both the prosecutor and defense counsel are present and participate.
· Can be used instead of a grand jury.
· Must prove probable cause to the judge in order for the case to proceed.
· District Attorney wants to avoid a preliminary hearing for the following reasons:
o Defense Counsel is present.
o DA will have to disclose its case.
o Prosecutor would rather be in front of a grand jury than a judge because the judge may be stricter in the application of the facts.
Voir Dire (Jury Selection)
· Questioning of jurors by judge, DA, and Defense Counsel in NY Courts
· In federal cases questioning by judge only.
· 12 person juries for felonies (NYS)
· 6 person juries for Misdemeanors
· Challenges:
o For Cause (Jurors would not be able to make an unbiased determination of fact)
o Peremptory (no reason why challenge is given, but you cannot exercise a preemptory challenge based upon race, gender, or religion) Batson Challenge
Trial
· Prosecutor has the burden of proof
· The Order of the Criminal Trial:
o Prosecutor gives opening statement.
o Defense gives opening statement.
o Prosecutor presents case, calls witnesses, direct examination of witnesses.
o Defense cross-examines the prosecutions witnesses.
o Prosecutor re-directs.
o Defense re-cross (can only bring up points from re-direct).
o Prosecution rests.
o Defense motion for directed verdict.
o Defense call witnesses, direct examination.
o Prosecution cross-examination
o Defense re-directs.
o Prosecutor re-cross
o Defense rests.
o Motion for directed verdict.
o Defense closing statement. (Prosecutor closing statement – Federal Trials)
o Prosecution closing stateme
n anytime.
· A defendant may appeal a plea bargain based on ineffective assistance of counsel.
Sentencing
· Punishment in NYS
o Dismissal
o ACOD – Adjournment in Contemplation of Dismissal.
o Unconditional Discharge
o Conditional Discharge
o Fine
o Probation (1 year B Mis., 3 years A mis., 5 years Felony) – must see a probation officer.
o Incarceration – Time served -> 90 days (B Mis.), 1 year (A mis), Life without Parole (Felony)
· 2 Types of Sentencing
o Determinate – a given exact number of years
o Indeterminate – a minimum and maximum sentence (25 to Life)
o Trend in NY is towards determinate sentencing.
· Mandatory sentencing – legislation has set standards which the judge must follow when sentencing.
· In federal system it is the Federal Sentencing Guidelines.
· NY doing away with indeterminate sentencing, replaced with fixed sentencing.
· A jury must give the death penalty.
Justification for Punishment
utilitarian theory
Basic principle: punishment is itself an evil b/c it deliberately inflicts harm on a human being, therefore we should only hurt criminals if some “good” is achieved by this act. The “good” reason is found in various social benefits to the law-abiding – reducing future crimes
· Deterrence – An increase in the detection, arrest, and conviction rate is of greater deterrence than an increase in the severity of the penalty upon the conviction.
o General Deterrence – Deters potential defendants.
o Specific Deterrence – Deters the specific defendant from committing future crimes.
· Incapacitation – The removal of dangerous individuals from society, to protect society from that person.
· Rehabilitation/Reform – This is a goal of the punishment, the theory is that offenders will be changed into non-offenders if given proper treatment. In the mid 1970’s this theory was rejected.
