Preliminary Hearings and Grand Jury Action *
Plea Bargaining *
Legal Representation in Criminal Cases
The New York State Penal Law encompasses three types of offenses: felonies,
misdemeanors and violations. Felonies are generally defined as those crimes
which are punishable by a prison sentence in excess of one year. Misdemeanors
are defined as those crimes which are punishable by a prison sentence
up to one year. Violations are not considered crimes by the Penal Law,
but they are punishable by up to 15 days in jail.
Generally, within the first 24 hours following a person's arrest they
are brought before a judge or magistrate for what is known as an arraignment.
The purpose of the arraignment is to formally advise the defendant of
the charges being brought against him or her, advise the defendant of
his or her rights and - in most cases - set bail in an appropriate amount
deemed necessary to ensure the defendant's return to court. It should
be noted that defendant may be represented by counsel and, in fact, it
is advisable to do so since such matters as the defendant's bail and
continued custody status will be decided upon.
At the conclusion of the arraignment the presiding judge will set the next
court date; depending on whether or not the defendant it is anticipated
the defendant will still be in custody or out on bail, the court will
set an in-custody date or an out-of-custody date. In-custody dates are
normally much shorter, usually one week following the arraignment, whereas
out-of-custody dates may be as long as a month or more from the arraignment.
If a defendant is to be released without bail in his or her own recognizance
(i.e. "R.O.R.") he or she will normally be given an out of custody
Preliminary Hearings and Grand Jury Action
In cases where it is alleged that defendant has committed a felony and
continues to be held in custody following the arraignment, the prosecutor's
office has 120 hours within which they are required to take one of the
following actions: (1) present the case to the grand jury for consideration
of a formal indictment; (2) conduct a preliminary hearing to establish
that there is "reasonable cause" to believe that the defendant
committed the crime, or; (3) release the defendant in accordance with
New York Criminal Procedure Law section 180.80.
By virtue of the serious nature of most felonies, the law requires that
they be prosecuted by way of a grand jury indictment. An indictment is
merely a charge which must be proved at trial by proof beyond a reasonable
doubt. It is only an accusation. However, it is the physical means by
which a defendant is brought to trial in felony cases.
Grand juries are comprised of at least 16 but no more than 23 people who
are empowered to collect and receive evidence and determine whether or
not there is legally sufficient evidence to return an indictment (i.e.
formal charge). Where there is insufficient evidence, the grand jury may
vote "no true bill" which, effectively, amounts to a dismissal
of the criminal charges against the defendant.
While the defendant is required to be notified of grand jury proceedings
and may even testify or present evidence, it is important to note that
his attorney's role in said proceedings is strictly circumscribed
and limited. Defense counsel is not permitted to address the grand jurors,
although he can submit a written request to the foreperson requesting
that the grand jury subpoena certain witnesses.
Plea bargaining is the process by which the defense and the prosecution
work out a mutually acceptable disposition of the criminal case subject
to the court's approval. Normally, it involves the defendant's
agreeing to plead guilty to a lesser offense or to only one or some of
the counts of a multi-count indictment in return for a lighter sentence
than could be imposed were the defendant to go to trial and found guilty
on the present charges.
Plea bargaining considerations are rather complex since they necessarily
involve weighing a number of different factors which are unknown, including
- but not limited to - the perceived strength of the prosecution's
case, defendant's ability to mount a credible defense, time and cost
considerations in preparing for and going to trial and potential sentences
which could be imposed by a judge if found guilty after trial.
Legal Representation in Criminal Cases
The foregoing is merely a brief overview of some of the more pertinent
aspects of a criminal case. It goes without saying that mounting a successful
defense to any criminal charge is largely dependent upon the particular
facts of the case, the availability of witnesses and evidence to support
the defense and the experience of trial counsel in protecting defendant's
rights at every stage of the proceedings from arrest up to the time of
trial and beyond.
Accordingly, it is imperative that a defendant select experienced defense
counsel, knowledgeable with the law and the particular court's procedures,
in order to mount the best defense possible.
The attorneys and support staff at Rayano & Garabedian, P.C. have extensive
experience providing legal counsel to defendants charged with felonies,
misdemeanors and violations. Our knowledge of the criminal court procedures,
practices and forms, as well as the pertinent statutory and case law,
will necessarily facilitate and make less daunting the difficult tasks
facing those charged with committing a crime.