New York Criminal Lawyer Blog

As I type, it is likely that Plaxico Burress is sitting in a Manhattan Grand Jury testifying about the events that ultimately resulted in his arrest for possessing a loaded firearm in New York and being charged with Criminal Possession of a Weapon in the Second Degree. As a former Manhattan prosecutor who served for seven years under Robert Morgenthau and who has cross-examined many defendants in the Grand Jury and represented clients in the same, I have unique insight that many New York criminal defense attorneys do not. The following entry will address some of what happens in this "secret proceeding."

What is the Grand Jury

The Grand Jury in New York State consists of a group of people no different than you or me. Old and young. Doctors and construction workers. Men and women. Black, white and every shade in between. Although in other smaller jurisdictions prosecutors need to convene a Grand Jury, at any given time in New York County (and likely throughout NYC) there are multiple Grand Juries sitting. In fact, Manhattan often has at least three Grand Juries sitting in the morning followed by three in the afternoon. At least one Grand Jury sits all day. This does not include Grand Juries convened by the Office of the Special Narcotics Prosecutor. Grand Juries hear all charged felonies from Assault and Criminal Possession of a Forged Instrument to Identity Theft and Mr. Burress' Criminal Possession of a Weapon.

The Grand Jury consists of up to twenty three people. On any given day, sixteen Grand Jurors are needed for a quorum. A quorum is required before evidence can be heard. Regardless of whether there are sixteen or twenty three Grand Jurors present, twelve Grand Jurors are always need to vote on the evidence.

Burden of Proof

A determination by the Grand Jury to vote a "true bill" or indict a defendant is not a finding of guilt. A guilty or not guilty verdict is rendered at trial. Instead, the Grand Jury must determine whether there is "reasonable cause to believe" that the accused committed the particular felony crime. Unlike "beyond a reasonable doubt" at trial, "reasonable cause to believe" can also be viewed as whether or not a reasonable person believes that it is probable, based on evidence presented, that the accused is guilty of the crime charged. Regardless of whether the case is before the Grand Jury or before a jury at trial, the evidence must always be legally sufficient to support the charges.

Secrecy of the Grand Jury

Prosecutors cannot share with the public what happened in the Grand Jury (who testified, what was said, the result of the deliberations, etc.). In fact, there are criminal ramifications if he or she does so. However, a witness may reveal what he or she testified about, but not the names of other witnesses or their testimony if they know what that testimony was.

Role of the Prosecutor

There is no judge in the Grand Jury. A prosecutor acts as the judge. That means he or she chooses what evidence is admissible and instructs the Grand Jury on the law. Obviously, the law gives the prosecution ample room to decide how and what to present to the Grand Jury. In fact, prosecutors often provide significantly less evidence to a Grand Jury than they would present at trial. A two day Grand Jury proceeding may become a two week trial. However, being given room to interpret the law does not mean the rules of evidence can be abused or otherwise inadmissible evidence is now admissible.

A criminal defense attorney can protest or challenge the prosecution, but since it is a secret proceeding, it is not likely he or she will know what was presented until after a judge reviews the minutes of the Grand Jury proceeding. That being said, a judge is available for criminal defense attorneys and prosecutors to meet with in the event an issue presents itself during the proceeding.

One thing that is unique about the Grand Jury in New York County (Manhattan) is that the Manhattan District Attorney's Office pursues cases through vertical prosecution. In other words, the prosecutor who picks up the case from its inception is the same prosecutor who presents the case to the Grand Jury and ultimately at trial if necessary. This practice is different from other New York City offices where one prosecutor may draft the initial case, one presents it to the Grand Jury and another prosecutor handles it for trial.

Does the Accused have the Right to Testify

In New York State, a defendant has a right to testify before the Grand Jury. In fact, if the prosecution violates this right and presents the case to the Grand Jury, a judge may dismiss the indictment and require that the prosecution re-present the case to the Grand Jury to allow the defendant to testify. More often than not, however, defendants do not testify before the Grand Jury.

Ramifications of testifying after the jump...

Continue reading "The New York Grand Jury, Plaxico Burress and Any Person Accused of a Crime: Beyond a Possible Indictment What Happens Behind Closed Doors" »

Whether you are under investigation for a white collar crime or have already been arrested for a weapon crime, it is imperative to retain an experienced New York criminal defense attorney before you talk with law enforcement. It may be that without an admission or statement on your part to the police or FBI, law enforcement has no case against you...that is right...nothing. Whatever the circumstances, whether you voluntarily go to a precinct to talk to the police to “clear the air” or you are already under arrest, you may be waiving your rights and jeopardizing your case. Even more importantly, your fatal mistake may cost you your freedom. Unfortunately for one particular defendant in Nassau County, he learned this lesson the hard way.

In a decision rendered on May 8, 2009, a Nassau County District Court Judge ruled in People v. Alfredo Pena, 2008NA011705, that a defendant’s statements were not the result of a “custodial interrogation” and therefore admissible and not obtained in violation of his rights. This “custodial interrogation” is the key element or principle in New York’s cases involving Miranda and admissions. In the Pena case, the police were investigating the defendant for the crime of Harassment through phone calls. The defendant went to the station voluntarily, waited for about 45 minutes until the detective was available and ultimately made admissions of his involvement. During this entire period of time the defendant was never handcuffed or forced to remain in the precinct. Moreover, no threats or promises were made and the defendant was not arrested. Shortly thereafter, the defendant was read his Miranda warnings, which he voluntarily waived, and he spoke further with the police. Ultimately, as you have probably guessed by now, the police arrested the defendant and the prosecutors indicated that they were going to use all the admissions against the defendant at trial. After motions were made by the defendant’s counsel, a Huntley Hearing (a hearing where a judge determines the admissibility of a defendant’s statement) was ordered and conducted.

More after the jump...

Continue reading "“Miranda Warnings,” Your Right to Remain Silent and Your NY Criminal Defense" »

An aggressive and skilled criminal defense lawyer can assist his client in navigating the criminal justice system in New York. Whether you are being prosecuted in Manhattan, Brooklyn, the Bronx, White Plains or Yonkers, one possible outcome of your criminal case that you may navigate to, and a very good one under the right circumstances, is an adjournment in contemplation of dismissal or ACD. See CPL 170.55.

If, for example, you are charged with a misdemeanor such as Assault, Criminal Possession of a Controlled Substance (drug possession), Petit larceny, or Menacing, an ACD, other than an outright dismissal, is the best possible outcome. When accepting an ACD you are not admitting to any crime, pleading guilty or stating you were involved in any wrongdoing. In practical terms, the case is being dropped and if you stay out of trouble and abide by certain conditions, the case will be dismissed and sealed within six months (or one year if it is a "family" criminal matter). If, however, you do not abide by certain conditions as set forth at the time of the ACD, the prosecution may seek to re-open your case and proceed on the original charges during the six months or one year the case is not active and prior to its dismissal. Once it is dismissed the prosecution cannot reopen the matter as it will be sealed.

In the case of an arrest and charge of Criminal Possession of Marijuana or Criminal Sale of Marijuana, an ACD is only available if, for example, you have not previously received an ACD or you have not been previously convicted of any offense involving controlled substances. See CPL 170.56.

A New York criminal defense attorney must analyze each case individually before advising his or her client to accept an ACD. It may be that an ACD is an acceptable disposition in your criminal matter, but it in some circumstances it may not be appropriate. For example, if you are considering suing the city or the police due to brutality, violation of your rights or another matter, an ACD may make that suit more difficult.

As an Assistant District Attorney who served in the Manhattan District Attorney's Office for seven years and as a New York criminal defense attorney, I have prosecuted, investigated and defended a wide spectrum of crimes ranging from Identity Theft, Forgery and Grand Larceny to Possession of a Weapon, Rape and Kidnapping. Through my years of experience I have heard the same question asked by witnesses of crimes over and over again. That is, "I received a subpoena for the Grand Jury. Do I have to go to the prosecutor's or District Attorney's Office?" The answer to this question is always and absolutely in the negative. In fact, ther is "no power in the District Attorney under our existing law to employ a subpoena to [require a] witness to attend his office or any other place where a Grand Jury is not sitting or where a court is not convened in action or proceeding." People v. Boulet.

Prosecutors are entitled to issue subpoenas on behalf of the Grand Jury that require your personal appearance in front of that body. On the face of the subpoena or the cover letter, the prosecutor will often indicate that he or she would like you to come to the office prior to going to the Grand Jury. Prosecutors are not being dishonest or trying to trick you to come down to their office first in lieu of going to the Grand Jury. There is no reason for them to behave in this manner. In fact, it may save both parties the time and energy of going into the Grand Jury or it may turn out that after a few questions from the prosecutor it will be determined that you are not needed and you can go back home or back to work. At bottom, there are many valid reasons why a prosecutor would request that you come to the office first.

Despite the valid reasons, the prosecutor may believe that you are involved in criminal activity or have information about criminal activity. If you are concerned that you are the target of an investigation or you believe that you may implicate yourself or a loved one in a criminal matter, it may be in your best interest to retain a New York criminal defense attorney to accompany you to the Grand Jury. In the alternative, a criminal defense attorney may be able to challenge the subpoena or tell the prosecutor that you will not come to his or her office. At a minimum, a criminal defense attorney might be able to speak with the prosecutor to better understand the purpose of the subpoena or arrange for a mutually agreeable time for you to come down to the Grand Jury or the District Attorney's Office. On the other hand, and more importantly, an experienced NY criminal defense attorney can stop you from implicating yourself or a loved one to a prosecutor who may decide to prosecute you or further his or her investigation.

You have a trial in Manhattan Supreme Court or Brooklyn Criminal Court and you fail to return on the scheduled date. In the alternative, you pleaded guilty in Bronx Criminal Court after bargaining with the prosecutor and the judge scheduled a date for sentencing, but you didn't return. The question you now have is can the judge proceed with the trial against me or can he sentence me or increase my sentence without me being there?

Judges, prosecutors and criminal defense attorneys often throw around a term that is applicable to this question. That is, did you receive your Parker Warnings? The Court of Appeals, in People v. Parker and the line of cases that followed, has held that a defendant must be present at the time of trial and sentence. This right can be waived, but the defendant must be informed at the time he pleaded guilty or the case was adjourned for trial that the case would proceed without his presence. Moreover, in the event of a sentencing, the defendant must also be advised that he may receive a harsher sentence if he does not return and he will not be permitted to withdraw his plea.

In the event a defendant does not return for sentencing or trial, a Parker Hearing should be ordered to determine that the defendant's absence was voluntary or whether the defendant may be located within a reasonable amount of time. When these hearings take place, the prosecution is usually required to establish that the defendant was not hospitalized, jailed in another jurisdiction or had other issues impacting his ability to return to court. In other words, a defendant's absence does not give the prosecution or the court the blanket authority to proceed with the case.

Regardless of your situation, it is always important to get to court on time and on the scheduled date. Even if the case does not proceed in your absence, a bench warrant may be issued authorizing your immediate arrest. If there is a legitimate reason for your absence and you know in advance (such as hospitalization), you should supply a criminal defense attorney with any and all applicable information and documentation so that he can prevent any warrant from being ordered.

A Manhattan Judicial Hearing Officer recently ruled in People v. Moustapha Diagne, that prosecutors in New York County (Manhattan) failed to adhere to speedy trial requirements set forth under the New York State Criminal Procedure Law. Therefore, the case against the defendant was dismissed. Specifically, the prosecutor did not file a “certificate of readiness” (a document declaring a prosecutor ready for trial and stopping the speedy trial clock from ticking) in a matter that was adjourned for approximately four months after motion practice ended, but before a hearing or trial commenced. Although this decision is not controlling over judges in other counties in New York State such as Westchester, Brooklyn, Bronx and Queens, it is a well thought out argument that an experienced defense attorney could add to his arsenal of weapons to attack a prosecutor’s case and defend his client.

By way of background, prosecutors are required to be ready for trial and in 90 days from arrest, less excludable time. One example of excludable time is where a defense attorney makes motions (papers filed on a defendant’s behalf to challenge evidence and the sufficiency of the criminal complaint) and a prosecutor responds to the motions. However, when a case is adjourned after motions, the law does not say precisely how much time is included or excluded within this 90 day period prior to trial.

Although there are some established cases that allow a “reasonable” amount of time for a prosecutor to prepare for trial, the Judicial Hearing Officer in Moustapha Diagne ruled that the instant case was simple and did not require extensive preparation. The Judicial Hearing Officer reasoned that two weeks should be sufficient for such preparation. Furthermore, where there is a long adjournment, as in this case multiple months, a prosecutor should file a “certificate of readiness,” or advance the case on the court calendar to start the trial. Although a two week rule is far from set in stone, an aggressive, skilled and zealous attorney advocating for your rights should site this case, when applicable to, to seek to have your case dismissed.