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Law of Office of McCulloh & Kelliher - Divorce Lawyer and Criminal Lawyer

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Law Office is located at:
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New York State Criminal Law

Criminal law

If you are arrested for a crime it is essential that you hire an attorney who is familiar in all aspects of the field. Mr. Mcculloh's 20 years experience with the NYPD in all facets of the department as a police officer, detective, sergeant, lieutenant, prosecutor and attorney, gives him a complete understanding of the arrest process. His familiarity with how the police department operates and the police officer duties gives him a distinct advantage in breaking down a case. In addition to this, his experience as a prosecutor for the NYPD provides him with a complete perspective from the district attorney/prosecutor's approach to a criminal case.

The first process after an arrest is probably the most important. It is the arraignment. During this process a person arrested for a crime goes before the court and the judge will decide whether bail will be necessary for your release. This is the most important phase of the arrest because if your bail is set at a high amount and you can't post it, you will be required to stay in jail until the case is adjudicated. Thus, the District Attorney will be less inclined to give you a good offer. Accordingly, it is extremely important that you have an attorney that can evaluate the case, analyze the police officer's paperwork for weaknesses and make the best possible argument to the court for little or no bail.

Our firm also specializes in criminal law. William McCulloh's experience

Stages of a Criminal Case

Welcome to “Stages of a Criminal Case.” This section contains information on what to expect at each stage of the criminal process — from arrest to sentencing.

  1. Arrest
  2. Booking & Bail
  3. Arraignment
  4. Plea Bargain
  5. Preliminary Hearing
  6. Pre-Trial Motions
  7. Trial
  8. Sentencing

Arrest

The criminal justice process typically begins when a police officer places a person under arrest. An “arrest” occurs when a person has been taken into police custody and is no longer free to leave or move about. The use of physical restraint or handcuffs is not necessary. An arrest can be complete when a police officer simply tells a crime suspect that he or she is “under arrest", and the suspect submits without the officer’s use of any physical force. The key to an arrest is the exercise of police authority over a person, and that person’s voluntary or involuntary submission. A police officer may usually arrest a person in the following circumstances:

The Police Officer Personally Observes a Crime

If a police officer personally sees someone commit a crime, the officer may arrest that individual. For example: While on street patrol, a police officer sees a purse snatching take place. The officer can apprehend and arrest the purse-snatcher, based on the officer’s personal observation of a theft/larceny or robbery. A police officer pulls over a vehicle that is being driven erratically, and after administering a Breathalyzer test, sees that the driver’s alcohol intoxication level is more than twice the state’s legal limit for safe operation of a vehicle. The police officer can arrest the driver for DUI/DWI .

The Police Officer Has “Probable Cause” to Arrest

When a police officer has a reasonable belief, based on facts and circumstances, that a person has committed or is about to commit a crime, the officer may arrest that person. This belief, known as “probable cause,” may arise from any number of different facts and circumstances. For example:

A police officer receives a report of an armed robbery that has just occurred at a liquor store, then sees a man who matches the suspect’s exact description running down the street near the store. The officer detains and searches the man, finding a gun and a large amount of cash in his pockets. The officer can arrest the man, based on a probable cause belief that he committed a robbery.

Arrest

An Arrest Warrant Has Been Issued

When a police officer has obtained a valid warrant to arrest a person, the arrest is lawful. An arrest warrant is a legal document issued by a judge or magistrate, usually after a police officer has submitted a sworn statement that sets out the basis for the arrest. When issued, an arrest warrant typically:

  • Identifies the crime(s) committed;
  • Identifies the individual suspected of committing the crime;
  • Specifies the location(s) where the individual may be found; and
  • Gives a police officer permission to arrest the person(s) identified in the warrant.

Challenging An Unlawful Arrest

At all stages of the criminal process, including arrest, police officers must protect citizens’ constitutional rights, such as the right to remain silent and the right to be free from unreasonable searches. If these rights are violated, a court may deem the arrest unlawful and order the case against the arrestee dismissed, or certain evidence may be thrown out of the case. While a criminal suspect may question the lawfulness of an arrest when it is happening, including the basis for the arrest and the actions of the police officers, that battle is best fought in court rather than on the street.

Arraignment

After the arrest, booking, and initial bail phases of the criminal process, the first stage of courtroom based proceedings takes place — arraignment. During a typical arraignment, a person charged with a crime is called before a criminal court judge, who:

  • Reads the criminal charge(s) against the person (now called the “defendant");
  • Asks the defendant if he or she has an attorney, or needs the assistance of a court-appointed attorney;
  • Asks the defendant how he or she answers, or “pleads to", the criminal charges — “guilty,” “not guilty,” or “no contest";
  • Decides whether to alter the bail amount or to release the defendant on his or her own recognizance (Note: These matters are usually revisited even if addressed in prior proceedings); and;
  • Announces dates of future proceedings in the case, such as the preliminary hearing, pre-trial motions, and trial.

Also at the preliminary hearing, the prosecutor will give the defendant and his or her attorney copies of police reports and any other documents relevant to the case. For example, in a DUI/DWI or drug possession case, the prosecutor may provide the defense with lab reports of any blood or chemical tests that were performed, and may be used in the case.

The Right to Counsel

If a criminal defendant faces the possibility of jail time if convicted for the crime(s) charged, the defendant has a constitutional right to the assistance of an attorney, or “counsel.” If the defendant wishes to be represented by an attorney but cannot afford to hire one, a government-appointed attorney will be assigned at no cost to the defendant. Usually employed as “public defenders", these government-appointed defense attorneys are responsible for zealously protecting a criminal defendant’s rights at all stages of the criminal process.

Plea Bargains

The vast majority of criminal cases are resolved through a “plea bargain", usually well before the case reaches trial. In a plea bargain, the defendant agrees to plead guilty, usually to a lesser charge than one for which the defendant could stand trial, in exchange for a more lenient sentence, and/or so that certain related charges are dismissed. For both the government and the defendant, the decision to enter into (or not enter into) a plea bargain may be based on the seriousness of the alleged crime, the strength of the evidence in the case, and the prospects of a guilty verdict at trial. Plea bargains are generally encouraged by the court system, and have become something of a necessity due to overburdened criminal court calendars and overcrowded jails.

What Kind Of Plea Bargain Might Be Made?

A “plea bargain” might be reached in one of three ways:

The prosecuting attorney handling the case approaches the Defendant and his attorney, and offers to:

  • Allow the Defendant to plead guilty to a less serious charge, such as simple assault/battery or even disorderly conduct; or
  • Have the Defendant agree to plead guilty to one charge or “count” of aggravated assault/battery, in exchange for dismissal of the second count; or
  • The government’s evidence against an Defendant is so strong, and the injuries suffered by the assault victim so serious, that Defendant agrees to plead guilty to the original charge of aggravated assault/battery, in exchange for a less severe sentence than he would likely receive if a jury found him guilty at trial.

Preliminary Hearing

Usually held soon after arraignment, a preliminary hearing is best described as a “trial before the trial” at which the judge decides, not whether the defendant is “guilty” or “not guilty,” but whether there is enough evidence to force the defendant to stand trial. In making this determination, the judge uses the “probable cause” legal standard, deciding whether the government has produced enough evidence to convince a reasonable jury that the defendant committed the crime(s) charged.

What to Expect at the Preliminary Hearing

In reaching this probable cause decision, the judge listens to arguments from the government (through a government attorney, or “prosecutor"), and from the defendant (usually through his or her attorney). The prosecutor may call witnesses to testify, and can introduce physical evidence in an effort to convince the judge that the case should go to trial. The defense usually cross-examines the government’s witnesses and calls into question any other evidence presented against the defendant, seeking to convince the judge that the prosecutor’s case is not strong enough, so that the case against the defendant must be dismissed before trial.

Preliminary Hearing — Not in Every Case

A preliminary hearing may not be held in every criminal case in which a “not guilty” plea is entered. Some states conduct preliminary hearings only when a felony is charged, and other states utilize a “grand jury indictment” process in which a designated group of citizens decides whether, based on the government’s evidence, the case should proceed to trial. Last but not least, the possibility always exists that any time prior to the preliminary hearing a criminal case will be resolved through a pl ea bargain between the government and the defendant.

Pre-Trial Motions

After the preliminary hearing and before a criminal case goes to trial, the prosecutor and the defense team usually appear before a criminal court judge and make pre-trial motions — arguments that certain evidence should be kept out of the trial, that certain persons must or cannot testify, or that the case should be dismissed altogether. Pre-trial motions are tools used by the government and the defense in an effort to set the boundaries for trial, should one take place: What physical evidence and testimony can be used? What legal arguments can and cannot be made? Is there any reason that the defendant should not be forced to stand trial?

What Arguments are Made During Pre-Trial Motions?

While specific possibilities are endless, following are some examples of pre-trial motions that might be made in a criminal case: In a drug possession case, the defense asks the judge to “exclude,” or keep out of the case, drug paraphernalia that the defense argues was obtained through an illegal search of the defendant’s apartment. The defense argues that the defendant’s confession should be excluded, because it was made in response to questions from a police officer who failed to first read the defendant his Miranda rights. The prosecutor argues that one of the defendant’s key witnesses, an elderly neighbor with Alzheimer’s disease, is not legally competent to testify and should be excluded as a witness at trial. The defense asks the judge to dismiss the case against the defendant altogether, arguing that the police did not have “probable cause” to arrest the defendant in the first place, or that insufficient evidence exists for any reasonable jury to find the defendant guilty.

Trial

In a criminal trial, a jury examines the evidence to decide whether, “beyond a reasonable doubt,” the Defendant committed the crime in question. A trial is the government’s opportunity to argue its case, in the hope of obtaining a “guilty” verdict and a conviction of the defendant. A trial also represents the defense’s chance to refute the government’s evidence, and to offer its own in some cases. After both sides have presented their arguments, the jury considers as a group whether to find the defendant guilty or not guilty of the crime(s) charged. (Note: Although a trial is the most high-profile phase of the criminal justice process, the vast majority of criminal cases are resolved well before trial — through guilty or no contest pleas, plea bargains, or dismissal of charges.)

A complete criminal trial typically consists of six main phases, each of which is described in more detail below:

  • Choosing a Jury
  • Opening Statements
  • Witness Testimony and Cross-Examination
  • Closing Arguments
  • Jury Instruction
  • Jury Deliberation and Verdict

Choosing a Jury

Except for rare cases that are heard only by a judge, one of the first steps in any criminal trial is selection of a jury. During jury selection, the judge (and usually the plaintiff and the defendant through their respective attorneys) will question a pool of potential jurors generally and as to matters pertaining to the particular case— including personal ideological predispositions or life experiences that may pertain to the case. The judge can excuse potential jurors at this stage, based on their responses to questioning. Also at this stage, both the defense and the prosecution may exclude a certain number of jurors, through use of “peremptory challenges” and challenges “for cause.” A peremptory challenge can be used to exclude a juror for any non-discriminatory reason, and a challenge for cause can be used to exclude a juror who has shown that he or she cannot be truly objective in deciding the case.

Opening Statements

Once a jury is selected, the first “dialogue” at trial comes in the form of two opening statements — one from the prosecutor on behalf of the government, and the other from the defense. No witnesses testify at this stage, and no physical evidence is ordinarily utilized. Because the government has the “burden of proof” as to the defendant’s guilt, the prosecutor’s opening statement is given first and is often more detailed than that of the defense. In some cases, the defense may wait until the conclusion of the government’s main case before making its opening statement. Regardless of when opening statements are made, during those statements:

The prosecutor presents the facts of the case, from the government’s perspective, and walks the jury through what the government will try to prove — what the defendant did, how, and why. The defense gives the jury its own interpretation of the facts, and sets the stage for rebutting key government evidence and presenting any legal defenses to the crime(s) charged.

Witness Testimony and Cross-Examination

At the heart of any criminal trial is what is often called the “case-in-chief,” the stage at which each side presents its key evidence to the jury. In its case-in-chief, the government methodically sets forth evidence in an attempt to convince the jury beyond a reasonable doubt that the defendant committed the crime. It is at this point that the prosecutor calls eyewitnesses and experts to testify. The prosecutor may also introduce physical evidence, such as photographs, documents, and medical reports.

Trial

Whether a witness is called by the government or the defense, the witness testimony process usually adheres to the following timeline:

The witness is called to the stand and is “sworn in,” taking an oath to tell the truth.

The party who called the witness to the stand questions the witness through “direct” examination, eliciting information from the witness through question-and-answer, to strengthen the party’s position in the case.

After direct examination, the opposing party has an opportunity to question the witness through “cross-examination"— attempting to poke holes in the witness’s story, attack their credibility, or otherwise discredit the witness and his or her testimony.

After cross-examination, the side that originally called the witness has a second opportunity to question him or her, through “re-direct examination,” and attempt to remedy any damaging effects of cross-examination.

After the government concludes its case-in-chief, the defense can present its own evidence in the same proactive manner. However, in some cases the defense may choose not to present a “case-in-chief,” instead deciding to make its key points through cross-examination of the government’s witnesses, and challenges to its evidence. Once the prosecution and defense each have had an opportunity to present their case and to challenge the evidence presented by the other, both sides “rest,” meaning that no more evidence will be presented to the jury before closing arguments are made.

Closing Arguments

Similar to the opening statement, the closing argument offers the government and defense a chance to “sum up” the case, recapping the evidence in a light favorable to their respective positions. This is the final chance for the parties to address the jury prior to deliberations, so in closing arguments the government seeks to show why the evidence requires the jury to find the defendant guilty. In turn, the defense tries to establish that the

government has fallen short of its “burden of proof,” so that the jury must find the defendant “not guilty.“

Jury Instruction

After both sides of the case have had a chance to present their evidence and make a closing argument, the next step toward a verdict is jury instruction — a process in which the judge gives the jury the set of legal standards it will need to decide whether the defendant is guilty or not guilty.

The judge decides what legal standards should apply to the defendant’s case, based on the criminal charges and the evidence presented during the trial. Often, this process takes place with input and argument from the prosecution and defense. The judge then instructs the jury on those relevant legal principles decided upon, including findings the jury will need to make in order to arrive at certain conclusions. The judge also describes key concepts, such as “guilt beyond a reasonable doubt,” and defines any crimes the jury may consider, based on the evidence presented at trial.

For example, if the defendant has been charged with voluntary manslaughter, the judge may:

  • Define the elements of voluntary manslaughter, the charged crime;
  • Define the elements of related crimes such as involuntary manslaughter and second-degree murder; and
  • Set out the findings the jury would need to make in order to convict the defendant of each of those crimes.

The case then goes “to the jury."

Jury Deliberation and Verdict

After receiving instruction from the judge, the jurors as a group consider the case through a process called “deliberation,” attempting to agree on whether the defendant is guilty or not guilty of the crime(s) charged. Deliberation is the first opportunity for the jury to discuss the case, a methodical process that can last from a few hours to several weeks. Once the jury reaches a verdict, the jury foreperson informs the judge, and the judge usually announces the verdict in open court.

Most states require that a jury in a criminal case be unanimous in finding a defendant “guilty” or “not guilty.” In such states, if the jury fails to reach a unanimous verdict and finds itself at a standstill (a “hung” jury), the judge may declare a “mistrial,” after which the case may be dismissed or the trial may start over again from the jury selection stage.

Sentencing

After a person is convicted of a crime, whether through a guilty plea, plea bargain, or jury verdict, the appropriate legal punishment is determined at the sentencing phase. A number of different kinds of punishment may be imposed on a convicted criminal defendant, including:

Fines;

  • Incarceration in jail (shorter-term);
  • Incarceration in prison (longer-term);
  • Probation;
  • A suspended sentence, which takes effect if conditions such as probation are violated;
  • Payment of restitution to the crime victim;
  • Community service; and
  • Drug and alcohol rehabilitation.

Sentencing usually takes place almost immediately after convictions for infractions and minor misdemeanors, or when a defendant has pled guilty. In more complex criminal cases, such as those involving serious felonies, the sentencing judge usually receives input from the prosecutor, the defense, and the probation department (which prepares recommendations in a “pre-sentence report").

The sentencing judge will also consider punishments and sentencing ranges identified in applicable criminal statutes, as well as a number of case-specific factors, including:

  • The defendant’s criminal history, or lack thereof;
  • The nature of the crime, the manner in which it was committed, and the impact on victims, i.e. whether injuries resulted;
  • The defendant’s personal, economic, and social circumstances; and
  • Regret or remorse expressed by the defendant.

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