Articles Posted in CRIMINAL PROCEDURE

So your New York Criminal case is heading to jury selection. At jury selection both your criminal defense attorney and the prosecutor will have an opportunity to question potential jurors chosen from the jury pool. (Jury selection itself will be discussed in a later blog). How is the jury pool assembled? Where does the commissioner of jurors for the county your case is be tried in get the names of people to summon for jury duty?

Potential jurors’ names are selected from such lists as voter registration, drivers’ license holders, registered motor vehicle owners, tax payers, those on public assistance, those collecting unemployment and/or those who have volunteered for jury duty. NY Jud. Law § 506. Therefore, that old-time belief that if you don’t vote you won’t be chosen for jury duty is no longer the case. Because one might be discouraged from voting for fear of being selected for jury duty does violate one’s right to vote. Marcus v. Levin, 198 A.D.2d 214, 603 N.Y.S.2d 323 (2nd Dept. 1993).

From the above mentioned lists, the commissioner of jurors randomly selects the names of potential jurors. This random selection may be done mechanically or by any other method to ensure random selection. NY Jud. Law § 507. The randomly selected individuals will make up the jury panel from which your jury will ultimately be selected.

How jury pools are chosen in a New York misdemeanor cases depends on what type of court your case is in. Section 2012 of New York’s Uniform District Court Act, New York’s Uniform City Court Act or of New York’s Uniform Justice Court Act, prescribes how jury panels are chosen in each of the aforementioned courts. In the New York City Criminal Court, the jury pool or panel is chosen in the same manner as in the Supreme Court in counties within cities having populations of one million or more.

When one reviews Section 2012 of the aforementioned acts, one realizes the section is not very enlightening. Both the New York State District Court Act and the New York State City Court Act merely tell us that jurors may be summoned as prescribed by the rules of the appellate department in which the particular court sits. So in reality, to determine how a jury pool is selected in a District or City Court we first turn to the CPL 360.10(2) which directs us to Section 2012 of the District or City Court acts as the case may be. After we look up Section 2012 in either act, it directs us to the appellate division rules for the department in which the particular city or district court sits. Now you know why lawyers like to get paid by the hour. It’s as if these statutes and rules were written by 3 different people who had no idea what the others were writing.

Section 2012 of the Uniform Justice Court Act is evening less enlightening bordering on comical. This section simply informs us that the jury panel in Justice Court trials is to be selected in accordance with the rules. What?! What Rules?! This is really comedic. Therefore, if you are going to trial in a local Justice of Village Court, the jury panel will be selected in accordance with the Rules – whatever they may be.

The order of proceeding in a jury trial in a New York State local criminal court is the same as those in a jury trial in a superior court when one is charged by indictment. CPL § 360.05. Therefore, the order of a jury trial in local criminal court is guided by CPL § 260.30. See CPL § 360.05.

The order of a jury trial in New York local criminal courts is as follows:

1. A jury must be selected and then sworn in. CPL § 260.30(1)

As a New York criminal defense attorney, at a law firm that handles a lot of criminal trials, I often am asked by clients charged with misdemeanors and/or violations in a New York State local criminal court if they must appear in court with me for trial. Generally a defendant must be present during his or her trial. CPL § 340.50 (1).
However, where a defendant is represented by an attorney, a court may, upon written motion by the defendant, waive the defendant’s appearance at trial provided the prosecutor doesn’t object. The defendant must file a written signed and notarized statement declaring the he or she waives their right to be present at trial and authorizing their attorney to conduct their defense in their absence. CPL § 340.50(2).
A defendant may also be excluded from his or her trial if they act in disruptive and disorderly manner to the point that the trial cannot proceed. Before a judge can exclude a defendant from his or her own trial, the defendant must be accorded a warning indicating that the defendant will be removed from the courtroom if he or she continues to act in a disruptive and disorderly manner. CPL § 340.50(2).
In reality, it is common place for defendants not to appear for traffic violation trials but instead to hire an attorney who appears with a signed and notarized “Authorization to Appear”. The written notice requirement is very often overlooked by the court and the prosecutor. However, there are some courts that require the formality of a written motion where the defendant chooses to go to trial on a traffic violation but not where the defendant chooses instead to have his attorney plead guilty to a reduced charge.
One judge who employs this policy is J. Glenn Galbreath of the Cayuga Heights Village Court. J. Galbreath has no problem waiving a traffic violator’s appearance at trial and taking pleas from attorneys with authorizations to appear signed by their clients. However, where a defendant chooses instead to proceed to trial on his or her traffic matter, J. Galbreath requires a written motion. Did somebody say coercive? Take a plea and save a trip to court or proceed to trial and either come to court or pay a lawyer to draft a motion. Sounds a bit coercive to me.
Not only does a defendant have a right to be present at trial, both the United States Constitution and the New York State Constitution grant a defendant the right to be present at all material stages of trial. Therefore, reversal of conviction was required where a defendant was not present during closing arguments and had not waived his presence or waived his presence by disorderly conduct. Benn v. Stinson, 917 F.Supp. 202 (1995).

Continue reading

So you’ve decided to take your New York criminal case to trial. The People’s plea offer is unacceptable and your attorney, after carefully weighing the odds and risks, has advised you to reject the People’s offer and go to trial. As I said in my last blog, at the New York criminal defense law firm of Tilem & Campbell, if we take a New York criminal case to trial, we generally advise our clients to have a jury trial instead of a being tried by a single judge. So what happens next? How does a New York criminal trial proceed in a local criminal court?

Where a defendant is charged in a local criminal court with a misdemeanor, he or she is entitled to a jury trial. However, within New York City, one charged with a misdemeanor is only entitled to a jury trial if the potential sentence is more that six months. CPL § 340.40(2). The right to a jury trial in misdemeanor cases is statutory only as the New York State Constitution does not provide a right to a jury trial where the charges are less than a felony. People v. Erickson, 302 N.Y. 461, 99 N.E.2d 240 (1951); see also Article I, § 2 and Article VI, § 18 of the NYS Constitution; NY Civil Rights Law § 12 (In all criminal prosecutions, the accused has a right to a speedy and public trial, by an impartial jury. However, it has been held that this section only guarantees the same right to trial found in the Sixth Amendment to the federal constitution and that right only applies where a defendant is facing more than six months incarceration).

However, the statutory right to a jury trial in misdemeanor cases in New York was passed by the Legislature in response to the United States Supreme court’s 1970 ruling in Baldwin v. New York, which essentially held that the Sixth Amendment to the

While some New York Criminal Attorneys will waive your right to a jury trial in a New York local justice court, instead opting for a trial before the judge, at Tilem & Campbell, we think that is usually a mistake. At Tilem & Campbell, our policy is that if our client is charged with a misdemeanor and the People (the prosecution) will not reduce the charge below a misdemeanor, we often advise our clients to choose a jury trial. Why? Unfortunately, at the local court level in New York, far too many Judges work hand-in-hand with the prosecution to ensure a defendant’s conviction. That is the simple truth.

Judges at the local level in New York need not be attorneys and many are not. Whether they are attorneys or not, far too many local court judges simply have no apparent understanding about the defendant’s presumption of innocence and the People’s burden to prove a defendant’s guilt beyond a reasonable doubt. In many small villages and towns in New York, the police station and Courthouse are in the same building. The local police and the Judge share the same parking lot, ride the elevator together and see each other regularly in the building. Therefore, only on the rarest occasion will a Judge at the local court level find that a police officer lacked probable cause at a suppression hearing or that an accusatory instrument is insufficient or otherwise rule in a defendant’s favor on a meaningful issue. It would be very hard for the same judge that sees that police officer in the building to now decide that he didn’t tell the truth at your trial.

Trials before judges in local criminal courts are far too often nothing more that an exercise in futility. The defendant’s guilt is a foregone conclusion. Do you really think a local judge is going to go against the local police and prosecutor that he or she must deal with on a regular basis?

If you have been convicted of an offense in New York or elsewhere that triggers New York State’s sex offender registration laws, your criminal defense attorney must be familiar with the New York Sex Offender Registration Act (hereinafter “SORA”). Registration as a sex offender in New York is governed by Article 6-C of the New York Correction Law. Article 6-C is referred to and cited as the Sex Offender Registration Act. NY Corr. Law 168. The New York State Legislature’s passage of SORA brought New York into compliance with the federal Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Program (hereinafter the Wetterling Act) (42 U.S.C.A. ‘ 14071). Any state that failed to comply with the Wetterling Act would lose ten percent of its Omnibus Crime Control and Safe Streets Act funding. 42 U.S.C.A. 14071(g)(1)(A).

Under the Wetterling Act, the United States Attorney General shall establish guidelines for State programs that require a person who is convicted of a criminal offense against a minor or of a sexually violent offense or who is considered a sexually violent predator to register a current address with the local chief law enforcement officer.. 42 U.S.C.A. ‘ 14071(a)(1). One required to report in one state must inform that state when they move to another state and must also inform their new state of residence that they were required to report in their old state. The state they are leaving must also have procedures in place to inform the state the offender is moving to that the offender was required to register in their state. 42 U.S.C.A. ‘ 14071(b)(5).

The Wetterling Act also set forth guidelines establishing the length of time an offender must register for. The length of registration is either 10 years or life depending on the offense. The registration period commences on the date the offender is either released from incarceration, placed on parole or placed in supervised release. 42 U.S.C.A. ‘ 14071(b)(6).

A New York State Prison inmate retains some basic due process rights despite being imprisoned. An inmate charged with a serious violation faces substantial punishment and should seek the advise of an experienced New York lawyer. When serious violations are alleged against the inmate, a Superintendent’s Hearing will be held. If the inmate is found guilty at the hearing, he must first file an administrative appeal. If his administrative appeal is denied, he can then file an Article 78 petition. An experienced New York attorney should be retained to represent the inmate on his or her Article 78 petition. One due process violation that should result in the reversal and even expungement of a guilty finding is the failure of the prison officials to tape record the hearing. All Superintendents’ Hearings must be “electronically recorded”. 7 NYCRR 254.6(a)(2).

The absence of the tape of the evidence relied upon by a hearing officer in a disciplinary hearing is a violation of the prisoner’s fundamental due process rights. Scott v. Coughlin, 161 Misc.2d 777, 615 N.Y.S.2d 828 (Dutchess Cnty 1994).

The Scott case involved a Tier III Superintendent’s Hearing where Michael Scott was found guilty of assault and was sentenced to 365 days in the Special Housing Unit and six months loss of good time. Scott’s administrative appeals were denied.

Experienced New York Criminal Attorney’s who are familiar with the New York Criminal Procedure Law are familiar with CPL § 210.40 which authorizes Judges to dismiss cases in the “Interest of Justice” and the 10 factors that Judges need consider when deciding whether to grant such a motion. The Motion to Dismiss in the Interest of Justice is also known to many New York lawyers as a “Clayton” motion after the 1973 case that originally discussed the parameters of this type of motion. At Tilem & Campbell, our criminal lawyers have successfully used Clayton Motions to resolve difficult cases and protect the interests of our clients.

Our experienced criminal attorney’s have also used the factor delineated in CPL §210.40 to resolve serious criminal cases by addressing the factors in letters to prosecutors. By using the Clayton factors to show a prosecutor that a Judge might dismiss the case, we are sometimes able to convince a prosecutor to offer an ACD or a Violation when they had previously refused to do so. This strategy has been used by lawyers at this firm to resolve cases such as Assault, Insurance Fraud and Gun Possession.

Recently Judge Rory Bellantoni, of the Westchester County Court in White Plains, after an analysis of all of the factors delineated in CPL §210.40 dismissed a felony Sexual Abuse case in the interest of justice. In that case, prosecutors were offering an ACD or a dismissal of the charges and then suddenly withdrew the offer. A number of other factors also supported the dismissal. The case demonstrates that even very serious felony cases can be dismissed under Clayton and not only less serious misdemeanors.