New York Criminal Lawyers Blog

In general prosecutors have an obligation to disclose to New York criminal defense attorneys, information which tends to establish the defendants' innocence or undermine the State's case. Unfortunately the New York Court of Appeals in People v. Fuentes restricted the right of New York criminal defense lawyers right to obtain material which undermines the case against their clients.

This ruling will undoubtedly encourage Prosecutors to withold information that undermines the case against criminal defendants and completely undermining the intergrity of criminal trials. In this blogger's opinion, the New York Courts are misconstruing the federal caselaw.

Judge Jones, the dissent in Fuentes was correct. In general Appellate Courts essentially forgive a failure to disclose unless a document is " Material". Material means there must be "a reasonable possibility" that its disclosure would have affected the outcome of the trial. In Fuentas, the defendant was charged with rape and the defendant claimed that the sexual activity was consentual. A record which was withheld from the defense, i.e., a record of a psychiatric consultation which contained information concerning the condition of the victim during her examination following the incident. The victim expressed feelings of depression, suicide, family problems, mistreatment by her mother, withdrawal and substance abuse. Clearly, these raised issues as to the complaining witness' credibility and the fact that she had recently used drugs was relevant, but the Court to protect a conviction at all costs held that it wasn't material. The Court made this decision even though New York criminal Courts have routinely held that non-disclosure of psychiatric problems justifies a reversal.

Michael Joseph is a New York criminal defense lawyer with offices in Manhattan and White Plains.

As a New York criminal defense lawyer, I have handled numerous felony cases which went into the grand jury. The decision on whether to put forward a case before the grand jury or preserve your case for trial is always a sensitive decision. Numerous factors must be considered.

As a Westchester criminal defense lawyer, I have won Assault cases and gun cases in the grand jury. The situation where clients tend to testify before the grand jury is when the client has a strong defense such as actual innocence, justification, self defense or alibi.

Usually, when clients elect to testify before a grand jury, there is usually some time pressure. For example, when clients are incarcerated and unable to make bail, the factors which weigh in favor of testifying before the grand jury outweight the risks of waiting for trial. Of course, when a client is fighting a charge while out on bail, this time pressure is not present.

The drawback in putting a client before the grand jury is that the attorney is not allowed to speak, object or otherwise participated in the proceeding except for advising the client. The Prosecutors will often do things which are improper, and ask improper questions which are aimed at unfairly prejudicing the client. Unfortunately, there is nothing the attorney can do during the proceeding. However, the Criminal Procedural law also gives a New York criminal lawyer, the right to move to dismiss the indictment if the proceeding was not done fairly.

While the lawyer cannot participate in the actual proceeding, the Criminal Procedure Law in New York, does give the defendant the right to testify and present evidence. That means, if there are witnesses that support the defendants' position, the defense can proffer them and actual evidence can be proffered by the witnesses in a grand jury. Early investigation to discover favorable witnesses and evidence is essential to successful grand jury presentation and practice.

As a Westchester criminal defense lawyer who handles yonkers criminal cases, I have noticed that some of the local Westchester criminal courts, especially Yonkers have been refusing to set bail on felony cases.

The result is that many people who are arrested on felony charges have to sit in jail until their lawyers can get them produced in the Westchester Superior Court. Many criminal defense lawyers who don't regularly practice in Westchester have been unfamiliar with these new procedures.

On average it takes a day or two to have someone who is in remand status, (incarcerated without bail) on a felony transferred to the Westchester Superior Court. These cases can be transferred by making a phone call to the criminal clerk, who upon an oral request will put the case on for a bail hearing before the Westchester Superior Court.

It is imperative that Westchester criminal attorneys, call the Superior Court the same day if their clients are held without bail in Yonkers or another local criminal court. Otherwise the clients will spend time in jail for no reason.

All New York criminal lawyers must be thoroughly familiar with the New York Criminal Procedural Law provisions concerning when a defendant facing New York criminal charges may be released after bail has been set.

With a misdemeanor charge, under Criminal Procedural Law 170.70, a person who has been incarcerated because they are unable to make bail for more than five days, not including Sunday, must be released if an information has not been filed. In simple terms, that means that there must be sworn allegations based upon personal knowledge filed with the Court that meets all of the elements of the crime charged.

Common examples of defects which require a defendant to be released are the lack of a lab report in a drug case, the lack of a supporting deposition in an assault or criminal mischief case. Another example in a petit larceny or shoplifting case is the failure of the District Attorney to file an affidavit of the owner of the property.

The only exceptions where a defendant may be held in custody is where the defendant has consented or waived the defects or if the District Attorney can establish that there was good cause why the defendant should not be released. Under New York law, good cause must include a compelling fact or circumstance which precluded the District Attorney from establishing all of the elements of the offense.

For New York Criminal Defense Lawyers, insistence on speedy trial rights are a powerful defense strategy for weeding out baseless claims. If witnesses are shaky, they often will not appear for the grand jury which prevents the People from indicting an accused. We have aggressively pursued our client's speedy trial rights which has resulted in numerous dismissals in numerous questionable assault, gang assault and sexual assault cases in New York City and Westchester.

Criminal Procedural Law § 210.20(g) states in pertinent part that after arraignment upon an indictment, the superior court may, upon motion of the defendant, dismiss such indictment or any count thereof upon the ground that the defendant has been denied the right to a speedy trial. Criminal Procedural Law § 30.30(1)(a) states in pertinent part that a motion made pursuant to paragraph (g) of subdivision one of section 210.20 must be granted where the people are not ready for trial within six months of the commencement of a criminal action wherein a defendant is accused of one or more offenses, at least one of which is a felony.

The six month period is generally determined by computing the time elapsed between the filing of the first accusatory instrument and the People's declaration of readiness, subtracting any periods of delay that are excludable under the terms of the statute and then adding to the result any postreadiness periods of delay that are actually attributable to the People and are ineligible for an exclusion. People v. Cortez, 80 NY2d 201, 208, (1992).

Unless the defendant has consented, the preindictment period is wholly under the control of the People and there is nothing defendant can do to prevent or delay presentment of the case to the grand jury. People v. McCaffery, 78 A.D.2d 1003, 433 N.Y.S.2d 909 (N.Y.A.D. 4 Dep't 1980). Therefore, unless a defendant consents to waive the speedy trial time, the entire pre-indicment time is chargeable to the People.Unlike the postreadiness delays, the absence of a valid indictment during this period is a circumstance that directly impaired their ability to proceed to trial. People v. Cortes, 80 N.Y.2d 201, 211 (1992). Once the defendant has made a showing of an unexcused delay greater than six months, the burden then shifts to the People to prove that any periods of that time should be excluded. People v. McCaffery, 78 A.D.2d 1003, 433 N.Y.S.2d 909 (N.Y.A.D. 4 Dep't 1980).

The District Attorneys will sometimes try to have this time excluded by claiming that the uncooperative witnesses were unavailable. However, the Courts have narrowly construed exceptions which permit the People to exclude time under CPL 30.30 because the People's obligation to exercise due diligence to procure a witness before he/she becomes unavailable is strictly construed. People v. Mims, 587 N.Y.S.2d 536 (N.Y.Sup.1992).

Also, as a pre-requisite for the People to exclude time under C.P.L. § 30.30, it must be shown that the People have "exercised due diligence "to obtain " the presence of the witness. See CPL § 30.30(4)(g). Jurisprudence has recognized that in order to demonstrate due diligence, the People must undertake "credible, vigorous activity" to make the witness available. People v. Figaro, 245 A.D.2d 300 (N.Y.A.D. 2 Dept.1997); People v. Salazar, 688 N.Y.S.2d 401 (N.Y.Sup.,1999).

The mere unavailability of a witness, without more does not exclude the time from running against the People. People v. Barenzano, 875 N.Y.S.2d 822 ( N.Y.City Crim.Ct.,2008).There are no exceptional circumstances where the witnesses avoid cooperating for their own reasons. People v. Salazar, 688 N.Y.S.2d 401 (N.Y.Sup. 1999).

Where a witness resides out of State, the Courts have found no exceptional circumstances where the People fail to make efforts to secure a material witness order or otherwise to secure the witness' attendance. People v. Salazar, 688 N.Y.S.2d 401 (N.Y.Sup. 1999). Likewise in People v. Meyers, 114 A.D.2d 861 N.Y.A.D. 2 Dept.,1985), the Court held that the People did not demonstrate due diligence or exceptional circumstances where the witnesses were unwilling to testify before the Grand Jury because the People made no attempt to make the recalcitrant witnesses available. An example of taking definitive steps to secure the attendance of a reluctant witness was found in People v. Khan, 146 A.D.2d 806 (N.Y.A.D. 2 Dep't 1989), where upon learning that the out of state witness was reluctant to testify, the People immediately prepared a material witness order, had it signed and forwarded it to the Florida State Attorney's Office.

As a White Plains Criminal Defense Lawyer I handle a fair amount of sex crimes in Westchester County. To successfully prosecute a sex crime, corroboration is required and normally an accusation without more is not sufficient to convict.

The Westchester County Police and some the local Police have become very aggressive in getting confessions. We have observed that the police are doing interviews in which they suggest that certain answers will help our clients, then they turn on a recording device. The initial promises and sometimes threats and practice sessions are not on the recording. We recently found one instance where the tapes themselves were edited and were missing information.

If you are arrested and facing sexual assault charges based on a taped confession in Westchester, it is advisable to have the tapes reviewed by a forensic professional as you may find discontinuities which will support a claim that the confession was obtained improperly.

We have also argued that when these issues arise, the defense has a right to the technical information concerning the making of the recording and the mechanics of the recording system. These new police tactics require Westchester criminal defense attorneys to be especially vigilant in handling cases where there was a taped statement.

Michael Joseph is a New York and Westchester criminal defense attorney who regularly defends sex cases in White Plains and New York City.

New York criminal defense lawyers who handle felonies need to be familiar with NY criminal procedural law 180.80. Where a defendant is charged with a felony and they are incarcerated because they cannot make bail for more than one hundred twenty hours or one hundred forty-four hours if there is an intervening Saturday, Sunday or legal holiday, must be released if they have not been indicted or had a felony hearing, which is also known as a felony exam. This provision is a powerful tool for New York criminal defense attorneys.

The only exceptions to this rule are where there was a delay due to the defendant's request, action or condition, or if the delay occurred with his consent. Aside from consent or action by the defendant which prevented the indictment or felony examination, the District Attorney must show good cause why the defendant should not be released. This good cause must be a compelling reason that prevented the indictment or that the release would not be in the interest of justice.

At a felony examination or felony hearing, the district attorney must prove reasonable cause to believe the defendant committed a felony. If they meet this burden, the Court can keep the defendant in jail and hold him for grand jury action.

If there has been no grand jury action and the defendant has been held in custody for more than 45 days, the defendant has a right to be released unless the defendant consented to the delay.

Michael Joseph is a New York Criminal Defense Lawyer, who defends felony cases in New York City and Westchester.