What do you do when Someone is Arrested in New York?
When someone you care about is arrested, it is a difficult time to be calm and think rationally about what needs to be done even in the short term, let alone the sorts of things that need to be done for the long term benefit of the case.
The simplest answer to this dilemma is to say that you should call a criminal defense lawyer as soon as possible. This is of course excellent advice, if a bit self serving coming from a criminal defense lawyer. But if you decide to take this advice and contact a criminal defense lawyer, that initial conversation will be more productive if you have thought about a few issues and gathered some information.
When people call me in this sort of situation, I usually go through a fairly standard checklist of information that I need to know in order to assess the short term situation and to get a general feel for the long term situation, in much the same way that a triage nurse takes information from patients entering the emergency room.
What follows is a written version of this checklist to review in anticipation of speaking to a criminal defense lawyer. It just takes a few minutes and will prepare you to think about some issues that will be raised by any criminal defense lawyer. I also explain why the issues are important.
Where was the person arrested (as in what County)?
The location of a case is probably more important than most people realize. Although the criminal law (penal law) is the same for all of New York State, each county approaches criminal cases in slightly different ways. It is possible that the exact same case will be treated differently from county to county. This means that it is important for the lawyer to know the location of the case AND it is important that the lawyer be familiar enough with the practice in the location to understand the local court and prosecution practices. Further, for obvious practical reasons, it is important that the lawyer know the location of the case so that he can provide friends and family with specific information about the arrest to arraignment procedures for that specific location.
When was the Person Arrested?
The timing of the arrest is important primarily for two reasons.
First, if the lawyer is contacted soon enough after the arrest, it may be possible for the lawyer to prevent the person from being interrogated. This can sometimes make or break a criminal defense case. "Soon enough" probably means "within minutes". That means that if someone you know was arrested just minutes ago and you are reading this, stop reading this and call a criminal defense lawyer right now. It doesn't need to be us, but you are certainly free to call us at our emergency number 347-612-9830. This will ring to a real live criminal defense lawyer's cell phone - not a receptionist.)
Second, knowing when the arrest occurred will help the lawyer accurately predict when the person who was arrested will be ready to see a judge for first appearance (arraignment). In New York City, for example, arraignments are supposed to occur (and generally do occur almost exactly) 24 hours from the time of arrest. Therefore, if you tell the lawyer that your son was arrested at 3 PM on Tuesday in Queens County, the lawyer (if he is experienced in New York City, will know that your son will not likely be ready to be seen by the judge much before 3 PM on Wednesday. Knowing this information will save friends and family from making the mistake that many people make of essentially camping out in court for hours on end waiting for loved ones to come through.
What is the Accusation?
Sometimes, the answer is not actually known, or known precisely. When questioned by the lawyer about the type of accusation, do not confuse this for some belief on the lawyer's part that the accused committed the offense. Acknowledging that a person was arrested for assault, for example, is not the same as admitting that the person committed the assault. The fact that the lawyer is trying to find out the precise nature of the accusations simply means that the lawyer is trying to understand the severity of the situation.
Assault, for example, is graded according to the level of injury alleged to have been caused to the victim. Therefore, if you tell the lawyer that your son was arrested for assault, the lawyer may ask you questions related to the level of injuries caused to the person the police have labeled the victim. In asking you questions about the injuries to the person that the police have labeled the victim, the lawyer is not somehow forgetting about the possibility of self-defense, or misidentification defenses. The lawyer simply wants to understand the accusation.
The difference between the lowest grade of assault and the highest grade of assault in New York is the difference between a misdemeanor carrying no mandatory prison and a B violent felony offense carrying a 5 year mandatory prison sentence for someone with no criminal history at all, and up to a 25 year sentence. That, obviously, makes a huge difference in the case and is why the lawyer will not be satisfied with simply an answer of "assault" to a question about the accusation.
Be warned that you should not necessarily significantly rely on any information provided to you by the arresting officers as to the nature of the charges against someone who is arrested. One reason that information from the police on this point is n ot reliable is that the police do not have the final say about the charges.
When the police arrest a person "for" a particular crime, what they are really doing is making a recommendation to the prosecutor that a person be charged with that crime. It is the job of the prosecutor, as a lawyer, to evaluate that recommendation and decide whether to follow the police officer's recommendation or not.
In most situations, the prosecutors do agree to follow the recommendations of the police. Occasionally, however, the prosecutor in "intake" will choose to follow a different course from the recommendation of the arresting officer. The prosecutor may conclude, after reviewing the case, that the police officer's recommendation was based on some misunderstanding about the law and that a less serious crime should be charged, a more serious crime should be charged, or even (more rarely) no crime at all should be charged.
Sometimes, the prosecutor will make a charging decision based on some discretionary policy rather than a strict interpretation of the law. For example, if a person is arrested stealing quarters out of laundry room in an apartment building, the police might arrest the person for burglary in the second degree because technically, the law probably supports this charge. But in some cases, the prosecutor might evaluate the case and choose not pursue the very serious violent offense of burglary in the second degree in favor of a less serious burglary in the third degree charge. The prosecutor might reason, that even though they may have the defendant on burgarly 2, the facts of the case suggest that the person probably ought not be pursued for burglary 2 since the person wasn't really burglarizing an apartment or home. The law would allow burglary 2, but a prosecutor could easily decide only to pursue the case as the lesser charge of burglary 3.
In any event, this can explain some of the differences between what the police may say up front about the accusations and what ends up coming out on the criminal court complaint at the arraignment.
How Old is the Person?
The arrested person's age is important because different rules, both as to the arrest procedures and as to potential options for sentencing if there were to be a plea or conviction after trial. Those under 19, for example, may be eligible for special treatment called "Youthful Offender" for felonies. "Youthful Offender" status is mandatory for misdemeanor offenses for those under 19.
Has the Person Ever Been Convicted of a Crime?
This is important because it helps the lawyer understand the severity of the problem faced by the person being accused. A person's criminal history can dramatically change the severity of punishment faced. A person with a prior felony conviction within the last ten years in New York, MUST receive a state prison sentence upon conviction of a new felony.
What is the Background of the Arrested Person?
Is the person employed? Where? What does he do for a living? Where does he live? With whom? This sort of information is important for the lawyer to be able to make an effective bail argument in front of the judge at the first appearance (arraignment). Judges who work arraignment shifts like to see that a defendant has "community ties" before they are usually willing to allow them to leave the courtroom without bail (released on recognizance - ROR).
Who is Available to Come to the First Appearance (Arraignnment)
Judges like to see that people care about he arrested person enough actually to be there for the arraignment. Therefore, think about who, if anyone, can be available to be in the courtroom for arraignment.
How Much Bail Money Could be Made if Needed?
It is almost always possible that bail could be set on any case. The setting of bail is a highly discretionary act and judges vary wildly in the setting of bail. The exact same case that one judge sets $25,000 bail on, another judge might not set any bail at all. Unfortunately, this can mean that there is distinct element of luck involved in the arraignment process - the luck of the draw of the judge. It also means that the ability to predict a precise dollar amount of bail on a given case is going to be next to impossible.
Nevertheless, it is important to hedge against the possibility of bail and have someone in court with cash for bail. This may not always be possible but it should be considered. It is true that bail can be posted 24 hours a day at the local jails, but the process at the jails can be a long one. If you have the cash in court at the moment bail is set, it is usually possible to post it right there with relatively little delay between posting the bail and the release of the person.
Are there any Witnesses?
Finally, are there any witnesses that are known or accessible to friends or family? If so, their contact information should be made available to the defense lawyer as soon as possible. This information may be turned over to a private investigator, or in a pinch, used by the lawyer himself directly. It is generally better practice to have an investigator involved, but sometimes timing is such that the lawyer must be involved. The danger here is that a lawyer who speaks to a witness runs the risk of thereby becoming a witness himself. Anyone who has seen Woody Allen attempt to question himself in court in the movie Bananas will quickly understand the problem with a lawyer becoming a witness in his own case.
