A petty offense is either a violation or a traffic infraction. Such offenses are not crimes.

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1 F REQUENTLY A SKED Q UESTIONS A BOUT T HE C RIMINAL J USTICE S YSTEM WHO IS THE DISTRICT ATTORNEY? The New York State Constitution provides that the District Attorney is a public official elected by the residents of a particular county to investigate and prosecute offenses committed within that county. The District Attorney, who is the chief prosecutor, has a four-year term of office. WHO IS THE WESTCHESTER COUNTY DISTRICT ATTORNEY? The District Attorney for Westchester County is the Honorable Janet DiFiore, the former Supervising Judge of all the criminal courts in the Ninth Judicial District which consists of Dutchess, Orange, Putnam, Rockland, and Westchester Counties. WHO IS AN ASSISTANT DISTRICT ATTORNEY? An assistant district attorney is an attorney who has been appointed by the District Attorney to investigate and prosecute offenses. Such a person is a public officer as defined by New York State law and must be both a citizen of the United States and a resident of New York State. WHAT IS AN OFFENSE? An offense is proscribed conduct, the elements of which are defined by statute, for which a sentence to a term of imprisonment or to a fine may be imposed by a criminal court. WHAT IS A PETTY OFFENSE? A petty offense is either a violation or a traffic infraction. Such offenses are not crimes. WHAT IS A CRIME? A crime is either a misdemeanor or a felony. A conviction for a crime is made part of a permanent criminal record. WHAT IS A MISDEMEANOR? A misdemeanor is an offense for which a sentence of imprisonment for up to one year may be imposed. WHAT IS A FELONY? A felony is an offense for which a sentence of imprisonment in excess of one year may be imposed.

2 WHAT ARE THE CRIMINAL COURTS? The criminal courts are the courts where criminal trials are conducted. They consist of superior courts and local courts. WHAT IS A SUPERIOR COURT? The superior courts in Westchester County are the County Court and the Supreme Court, where felony trials are conducted. WHAT IS A LOCAL COURT? The local courts in Westchester County are the city, town, and village courts. These courts have preliminary jurisdiction over all offenses and trial jurisdiction for misdemeanors and petty offenses. WHAT IS AN ARRAIGNMENT? An arraignment is a procedure whereby a defendant, a person who has been accused of a crime, is brought before the court for the purpose of the court setting the course of further proceedings in the action. At this time, defendants must be advised of the charges against them and their rights with respect to those charges. Foremost among those rights is the right to counsel. A defendant has the right to the aid of counsel at the arraignment and at all subsequent proceedings. If a defendant is financially unable to obtain counsel, he/she has the right to have the court appoint him/her an attorney unless he/she is charged with only infractions. HOW ARE CHARGES BROUGHT AGAINST A DEFENDANT? An accusatory instrument is a document prepared accusing the person of an offense. The accusatory instrument may be in the form of an information, complaint, superior court information or indictment. WHAT OPTIONS DOES A COURT HAVE WITH RESPECT TO THE LIBERTY OF A DEFENDANT? The court may release a defendant on his/her own recognizance, set bail for a defendant to post in order to be allowed to remain at liberty, or remand a defendant to custody pending the outcome of the criminal proceeding. WHAT IS BAIL? Bail is a specific monetary amount, fixed by the court, to assure the defendant s return to the court for all the adjourned dates of the criminal proceeding. HOW DOES A COURT DETERMINE THE AMOUNT OF BAIL? The court may consider several factors in setting bail, including: the defendant s character, reputation, habits, mental condition, employment, finances, criminal record, family ties to the community and length of residence in the county, the seriousness of the charged crimes, the weight of the evidence against the defendant, and the possible sentences that may be imposed upon conviction. 2

3 WHAT IS A GRAND JURY? The grand jury is a body consisting of not less than sixteen but no more than twenty-three persons, impaneled by a superior court to hear and examine evidence concerning criminal offenses, misconduct, nonfeasance, and neglect in public office. Grand jury proceedings are secret and while the District Attorney is the legal advisor to the grand jury, the decision whether or not to indict someone for a crime based upon the evidence presented remains exclusively with the Grand Jurors. WHO PROVIDES THE GRAND JURY WITH EVIDENCE? An assistant district attorney acting as the People of the State of New York presents evidence through either the testimony of sworn witnesses and/or exhibits. The grand jury may also direct the assistant district attorney to present additional evidence. The People are under no obligation to inform an individual that a grand jury proceeding against him/her is pending or about to begin unless that person has already been arraigned in a local criminal court on a felony complaint charging an offense which is the subject of the grand jury proceeding. Such an individual has a right, upon his/her request, to testify before the grand jury and he/she may request that additional evidence be presented. Every witness before a grand jury is required to give evidence regardless of a claim that he/she may incriminate him/herself. Thus all witnesses in the grand jury receive immunity from prosecution for any offense about which they gave evidence. If the subject of the investigation requests to testify, he/she must waive immunity from prosecution. WHAT IS AN INDICTMENT? An indictment is a written accusation by a grand jury that charges a defendant with one or more offenses, at least one of which is a crime. In order to indict a defendant, at least twelve grand jurors must find that the evidence before it provides reasonable cause to believe a defendant committed such offense. This burden of proof is less than the People s burden of proof at a trial which requires evidence of guilt beyond a reasonable doubt as found by the unanimous verdict of a jury of twelve or a judge in a non jury setting. IF A DEFENDANT PLEADS NOT GUILTY, WHAT IS THE NEXT STEP IN A CRIMINAL PROCEEDING? In general, the case will be adjourned for pretrial proceedings, which may include pretrial motions. WHAT IS A MOTION? A motion is an application seeking relief from the court. Defendants are permitted to make one all-inclusive, written motion within forty-five days of arraignment. The motion may include a request for dismissal of the charges, discovery of evidence, and suppression of evidence. 3

4 WHAT HAPPENS AFTER A DEFENDANT MAKES SUCH A MOTION? The district attorney s office is given an opportunity to respond and the court will then render a decision. Both sides are given time to comply with the decision and order of the court and to prepare for trial. When the court has determined that the case is ready for trial, the case will be adjourned to a specific date for any pretrial hearings and/or trial. WHAT IS A PLEA BARGAIN? A plea bargain is an agreement among the court, the district attorney and the defendant, whereby the defendant pleads guilty to an offense in exchange for a specific promised sentence. A defendant cannot plead guilty to less than all the charges in the accusatory instrument without the consent of the district attorney. If a defendant pleads guilty to all the charges, the district attorney s consent to the sentence imposed is not required by law. WHAT IS THE ORDER OF A JURY TRIAL IN A CRIMINAL CASE? The order of a criminal jury trial is the following: a jury must be selected and sworn; the court must give preliminary instructions to the jury; the prosecutor must give an opening statement to the jury; the defendant may deliver an opening statement to the jury; the prosecutor must offer evidence in support of the criminal charges against the defendant; the defendant may offer evidence in his/her defense; the prosecutor may offer rebuttal evidence; at the conclusion of the evidence, the defendant may deliver a summation to the jury; the prosecutor may deliver a summation to the jury; the court must then deliver final instructions to the jury; and the jury must then deliberate and, if possible, render a verdict. WHAT IS MEANT BY A JURY RENDERING A VERDICT? A jury renders a verdict when it announces the guilt or non-guilt of a defendant. To find a defendant guilty of any charge submitted to them, all jurors must agree that the defendant s guilt was proven beyond a reasonable doubt. A verdict must be unanimous. WHAT HAPPENS IF THE JURY IS UNABLE TO RENDER A UNANIMOUS VERDICT? The court will give a special instruction to the jury to encourage further deliberations. If the jury is still unable to unanimously agree, the court will declare a mistrial and discharge the jury. The defendant may be retried in the future. WHAT HAPPENS IF THE JURY FINDS THE DEFENDANT GUILTY OF THE CHARGES? Thereafter, the defendant will be sentenced by the court. WHEN IS A DEFENDANT SENTENCED? When a defendant is convicted of a felony, a court must order a pre-sentence investigation conducted by the Department of Probation and may not pronounce sentence before receipt and review of a written report of that investigation. When a defendant is convicted of a misdemeanor, a pre-sentence report may not be required and a defendant may be sentenced immediately. 4

5 WHAT HAPPENS AFTER A DEFENDANT IS SENTENCED? A defendant has the statutory right to take an appeal from the judgment of conviction by filing a notice of appeal within thirty days of the imposition of sentence. If the defendant is unable to afford an attorney, the intermediate appellate court will appoint one to represent him/her. A convicted defendant can also make post-conviction motions in the original criminal court seeking to have the judgment vacated on certain grounds such as newly discovered evidence or improper conduct not appearing in the record of the previous proceedings. A defendant can also seek to have his/her conviction reviewed by the federal courts within one year of the conviction becoming final, if he/she claims that the state violated any of his/her rights granted under the United States Constitution and as a result he/she is currently being deprived of liberty. A defendant however, must have first given the state court an opportunity to remedy this claim before raising it in federal court. WHAT IS AN ORDER OF PROTECTION? An order of protection is a written court order issued on behalf of a victim or witness proscribing certain conduct by the defendant. A temporary order of protection may be issued during the pendency of criminal proceedings. A final order of protection may be issued upon the conviction of a defendant. A defendant who violates one or more conditions of such order may be prosecuted for the crime of criminal contempt. 5

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