If you are arrested or facing arrest in New York or New Jersey, it is important to understand the criminal codes and procedures differ greatly from state to state. Facing the criminal defense process alone or without qualified legal counsel can be an anxious and intimidating experience for anyone. Regardless of the severity of the crime, it is still a process that can be made far more manageable with the help of a competent and effective attorney. Yan Katsnelson is licensed in both the States of New York and New Jersey.
New Jersey Criminal Procedure
In the State of New Jersey, Criminal Code violations are categorized as Indictable, Disorderly Persons, or Petty Disorderly Persons offenses, rather than felonies or misdemeanors. An Indictable offense is analogous to a felony, while a Non-Indictable offense is analogous to a misdemeanor. Indictable crimes are further separated into 1st, 2nd, 3rd and 4th degrees.
In New Jersey, Indictable offenses are leveled against an alleged criminal offender that exposes him or her to more than six months of incarceration, while alleged offenders of Non-Indictable offenses — Disorderly Persons and Petty Disorderly Persons offenses — are generally exposed to less than six months of jail.
Indictable charges are handled in the Superior Court within the County that the alleged offense was committed, while Non-Indictable offenses are handled in the Municipal Court within the City, Township or Borough where the alleged offense was committed. Additionally, a defendant is entitled to a Trial by Jury in an Indictable offense. However, the matter must be first submitted to a Grand Jury, which may pass a No Bill — refusal to indict — on the matter if it deems that to be warranted.
An exception would be if a defendant exercised his right to waive an indictment, as would be the case in a pre-indictment plea bargain.
Non-Indictable offenses are not presented to a Grand Jury, and defendants charged with Disorderly or Petty Disorderly Persons offenses are not afforded a Trial by Jury.
Pursuant to New Jersey criminal procedure, the prosecutor may not proceed against the defendant with a criminal charge in Superior Court if the Grand Jury passes a No Bill. However, related Non-Indictable charges may still proceed against the defendant in the lower court called the Municipal Court, or quasi-criminal court, where the alleged offense was committed.
Within two weeks of indictment, the Court is notified and within three weeks of notification, a Pre-Arraignment conference is scheduled whereby the defendant is advised of the charges and allowed to apply for Pre Trial Intervention (PTI). New Jersey PTI is a mechanism whereby a defendant can completely avoid criminal charges and potential incarceration, as well as the stigma of a criminal conviction and the expense of a trial. However, if the defendant is represented by an attorney, the Pre-Arraignment conference may be waived.
Arraignment & Discovery
Thereafter, an Arraignment — the reading of the complaint or the stating of the substance of the charge to the defendant by the Court, together with their rights to an attorney and right to remain silent — is scheduled whereby defendant typically pleads ‘Not Guilty’ and defense counsel is provided with the discovery, or State evidence, in the case. The State must provide any discovery that it intends to introduce at trial or that may potentially exculpate, or clear, the defendant.
Once discovery is complete, defense counsel decides what motions, if any, he or she should file. A motion is a request of the Judge to rule in your favor on a given issue that you are contesting. For example, charges barred by applicable statute of limitations, or to suppress evidence against a defendant if certain constitutional rights were violated by police action.
As with all criminal defense proceedings, representation by a qualified attorney is paramount to achieving the best possible outcome. If you are arrested in the State of New Jersey, or are contacted by law enforcement, contact the Law Office of Yan Katsnelson immediately.
New York Criminal Procedure
When facing criminal charges in the State of New York — whether for a felony, such as First Degree Assault, or a misdemeanor, such as Reckless Endangerment in the Second Degree — you need a competent and qualified criminal attorney to represent you. The stakes, which could include county jail, or even years’ imprisonment in a state penitentiary, are too high to be relegated to indifferent or inexperienced counsel.
A New York or Federal law enforcement officer can arrest a person if that officer believes there is a probable cause that the suspect has committed a criminal act. All New York criminal cases, whether the charge is a violent crime, gun possession charge, or petit or grand larceny, begin with an arrest.
Unless you receive a Desk Appearance Ticket, or DAT, the police will bring a criminal defendant to Central Booking where fingerprints and photographs are recorded. The police will then cross-reference this information to determine whether the defendant has a prior criminal history. A criminal lawyer is not allowed to accompany a criminal defendant through the Central Booking process. Subsequent to Central Booking, the paper work from the police, listing the crime or crimes, will ultimately result in a criminal charge against the defendant. This paperwork will be sent to the Office of the District Attorney. The New York Assistant District Attorney will evaluate the case and make a determination whether the criminal charge should be raised or reduced, and whether or not additional criminal charges should be brought, or the criminal charge should be dismissed. After the District Attorney has completed their paper work and the criminal defendant has been processed, the defendant will be taken to Criminal Court for Arraignment.
The criminal defendant has a Constitutional right to have a New York criminal lawyer to defend him or her at an Arraignment. The purpose of the Arraignment in New York State Court is to let the defendant know what crime or crimes the District Attorney is bringing against them, and their right to enter a plea of Not Guilty. The Arraignment also protects your right to a Trial by Jury, if necessary, and allows the parties to discuss your bail status.
After hearing oral argument from your criminal lawyer and office of the District Attorney, the New York Criminal Court has three options. Require bail or bond, which must be paid in order for the criminal defendant to be released; set no bail and allow the criminal defendant to release on their own recognizance; or remand the criminal defendant, in which case no bail is set and the Court can hold the defendant in custody. Generally, the Court can hold the defendant in custody until bail is posted or until the conclusion of the case. At the conclusion of the Arraignment, the defendant is given a new court date.
Beware that New York State Arraignments are held in different locations and the location depends on the County in which the crime was perpetrated.
When the criminal defendant returns to court for a felony case, assuming a plea bargain has not been reached between your criminal defense lawyer and the District Attorney, the case goes to the Grand Jury. In New York, the Grand Jury consists of 16-23 people who determine whether a crime has been committed and if the criminal defendant was responsible for the commission of the crime. It is important to note that this is not a vote of innocence or guilt with respect to the crime. Moreover, this process determines whether or not there is enough evidence for the case to proceed. In the Grand Jury, the District Attorney presents his case and witnesses. However, while the criminal defendant is allowed to testify, his criminal lawyer is not allowed to make an opening or closing statement nor call witnesses or cross-examine the witnesses of the District Attorney. Additionally, there is no judge directly involved, making the procedure relatively easy to indict a criminal defendant.
If the Grand Jury votes to indict the case, then the New York Criminal Court is required to arraign the defendant on the Indictment. This arraignment is very similar to the original arraignment the defendant experiences in criminal court at which both the District Attorney and the criminal lawyer are present and the Judge has the right to raise or lower bail, set bail for the first time, or remand the criminal defendant.
Very often in criminal cases, a criminal lawyer and the District Attorney will attempt to resolve a criminal case without a trial. This is known as a plea bargain. Frequently, a plea bargain induces the District Attorney to reduce the criminal charge against the defendant. Normally, if a fair deal is reached between the District Attorney and the criminal defense lawyer, what follows will be a discussion between the criminal Lawyer and the defendant. A plea bargain avoids the risk of a trial, and in exchange, the District Attorney gets a conviction after the defendant pleads guilty to the reduced charges. Usually, there is a discussion between the Judge, the criminal lawyer and the District Attorney with regard to the plea bargain to ensure that the sentence is acceptable to all parties. The Judge must approve of all plea deals.
If no plea bargain has been agreed upon between the District Attorney and the criminal defense lawyer, the next step is a trial. There are two types of criminal trials in New York State. The first is a Bench Trial where the Judge decides the case. The second type of criminal trial in New York is called a Trial by Jury. This is where the Jury decides the outcome of the criminal case.