Against Criminal Charges
Criminal Defense Basics: by Martin D. Kane
The purpose of this short article is to explain what happens at the earliest stages of a criminal case in Queens County and what the unfortunate person who finds himself or herself so entangled can do to fight back. Please note that the procedures described are sometimes unique to Queens criminal cases and can be very different elsewhere. Please note further that the writer of this article has practiced criminal law in Queens for more than 40 years. It should not be surprising that I strongly recommend that you consult a criminal lawyer (preferably me) as soon as you have even an inkling that you might be involved in a criminal case. Before you dismiss this as just self-serving promotion, read this article carefully. I think you’ll agree that getting an attorney as early as possible (even if it’s not me) is the smartest thing you can do.
The Very Beginning
Many criminal cases in Queens begin before any arrest occurs. It starts with a phone call from an overworked detective who would much prefer that you come to him rather than the detective having to go into the “field” to pick you up. The call will usually suggest that you come down to “give your side of the story” or “clear things up.” Occasionally, the detective will refer to something like a fictitious hit-and-run, which doesn’t worry you because you don’t even own a car. Whatever the story, it’s just a way to get you to the precinct without any effort from the detective. Sometimes the detective will even tell you the simple truth; that he wants to arrest you.
If you receive such a call, you should not, under any circumstances, discuss the substance of any incident, even by telling the detective that “it wasn’t my fault” or “I was just protecting myself” or “nothing bad happened.” These are just some of the “harmless” statements that have helped convict people. If the detective persists, tell him you’ll discuss it at the precinct. Tell him you’ll come in, but make sure you get his name and telephone number. THEN CALL YOUR LAWYER IMMEDIATELY!
It can be crucial to get an attorney right away and, besides generating some modest income for me, it can result in enormous benefits for you. It will sometimes forestall any arrest or criminal process at all. If I am your attorney, I will interview you and then contact the detective, informing him that I represent you. If the detective hems and haws, I’ll ask him directly if he intends to arrest you. More often than you might expect, the detective will answer that he just wants to speak to you. Bingo! He has just told me that he doesn’t have enough evidence to make an arrest and hopes to obtain an incriminating statement from you that will give him that evidence. As the detective glumly expects, I inform him that my client will not make a statement and that the detective should not and cannot question my client outside my presence. The detective will then tell me that he’ll call me back if necessary. In my experience, that call virtually never comes and no arrest is ever made.
Unfortunately, my job isn’t usually that simple and, in the majority of cases when I call the detective, he really does want to arrest you. In this event, it is crucially important that your criminal lawyer be fully familiar with the arrest and arraignment processes that are unique in Queens criminal cases.
Even where you are going to be arrested, my first task is to make sure you don’t answer any questions or make any statement. Let me tell you again. There is no such thing as a good statement. Nothing you or I say will have any effect on whether the detective continues with the arrest. If you say something which would actually be favorable to you, it is not admissible in court. If you say something that somehow could hurt your case, something you and I aren’t smart enough to anticipate, it is admissible against you in court. It’s a one-way street and you should just keep quiet.
I will arrange with the detective to have you come in at a time and day which will insure you get to the judge as quickly as possible. Except in the most extraordinary circumstance (for instance, I have proof you were incarcerated in Chicago when the alleged crime occurred-this actually happened) there is no chance that the detective can be deterred from arresting you by anything you or I can say to him. In most cases, I will not accompany you, since you cannot be questioned and my presence will only slow the process. Because the detective knows you have an attorney, you will be treated courteously and the process, including fingerprinting and photographing, will be done quickly. Often, I can get the detective to prepare the paperwork prior to your surrender, further speeding the process. Most detectives will give me the courtesy of notifying me when the process is done and an arrest number has been assigned.
Desk Appearance Ticket
If you are arrested in Queens, the arresting officer frequently has the option, in less serious cases, to issue you a Desk Appearance Ticket (commonly called a DAT). In these cases, when the officer is satisfied as to your identity and you have no outstanding warrants, after the paperwork is done and you are fingerprinted and photographed, you will be given a DAT and released. While most defendants are held in custody to be arraigned before a judge, usually for 24 hours or more, you will be released and told to come to court yourself for arraignment on a later date, usually a month or more. Obviously, when I speak to the officer to arrange for you to come in voluntarily, I will urge him to give you a DAT if possible. Sometimes, the arresting officer is not aware that he can issue a DAT in certain cases, even some felonies.
In many cases, a DAT is not possible and an important part of your lawyer’s job is to get you before a judge as quickly as possible and get you released on bail or Released on your Own Recognizance (ROR). The process for Queens arrests is somewhat different than in other boroughs. After a defendant is initially processed at the precinct, he is transferred to Queens Central Booking (right behind the Queens Criminal Courthouse) where he is held until he goes before the judge for arraignment. You want this to happen as quickly as possible. You certainly don’t want to be held overnight in rather unpleasant conditions if it can be avoided.
If this is a situation where I have contacted the police on your behalf to arrange surrender, you are much less likely to remain in custody overnight before seeing the judge. Queens Criminal Court arraignments have their own unique rules and patterns and an experienced Queens criminal lawyer can use that to your advantage. For instance, there are certain days when the Queens Arraignment Part is usually far less busy than on other days. I always try to arrange your surrender early in the morning on one of those quiet days. For this and other reasons, it is rare that any client of mine, whose surrender I arrange, is held overnight before seeing the arraignment judge.
There is another procedure that is unique to defendants charged with felonies in Queens County that, besides being outrageous in its own right, results in significant delays in a defendant getting in front of the judge. The Queens District Attorney (the only DA’s office I’m aware of) has initiated a policy of attempting a videotaped interview of every felony defendant while he is in Central Booking awaiting arraignment. The defendant will be brought into a small room where he will be met by an assistant district attorney (ADA) and an investigator with a video camera. The ADA will read from a prepared speech informing the defendant that “this is his only opportunity (!) to speak with the district attorney prior to arraignment” and that the district attorney will investigate any favorable information the defendant gives him. Believe it or not, nearly every defendant agrees to make a statement to the nice, helpful assistant district attorney. I have never seen a case where any information given in one of these meetings has been used to help a defendant. To the contrary, these recorded statements are frequently used to bury the defendant, often when there is not other sufficient evidence to convict him. Be very clear. This prearraignment interview process is in no way intended to help the defendant. It is a devious means of getting him to incriminate himself before he gets the protection of a lawyer.
You, of course, were smart enough to retain me even before the arrest, or your family contacted and retained me shortly after your arrest. My solution to this problem was ridiculously simple. All I had to do was contact the Queens District Attorney Intake Bureau and inform them that I represent you. As the District Attorney well knows, he cannot under any circumstances speak to you if you have a lawyer. Like magic, you are taken off the long line of unfortunates awaiting their turn before the video camera and are taken to court to be arraigned. By this simple phone call, I have saved you from likely harming your case by making a statement and have probably gotten you in front of the judge several hours sooner. See how easy it is to be a criminal lawyer? Unfortunately, many lawyers who don’t regularly practice criminal law in Queens are not familiar with this procedure and would not have made this simple phone call.
After spending several hours that seem like forever in the confines of Central Booking, you are finally about to see the judge. While in Central Booking, you have been moved through (usually) three different rooms. You may be puzzled and dismayed that your lawyer has not visited you in Central Booking. Unfortunately, lawyers are no longer permitted to go into Central Booking. There are, however, telephones available where you can call your lawyer or family. When you’re transferred into the second room, you are disappointed to find that you’re still not ready to see the judge and have more waiting to do. Finally, when you reach the third room, you’ll see that there are booths where you will finally speak to your attorney shortly before seeing the judge. If I am your lawyer, I recommend that you call me on the available phone to let me know you’re in the third room. I probably know it anyway and may even be waiting there for you, but that call from you can’t hurt.
The arraignment itself is pretty much what you might think. You will be brought before the judge with me at your side. Some important legal issues will be addressed (more about this in a different article), but your primary concern is getting the most favorable conditions for your release from custody. The ADA will present his position on bail or other release options along with his reasons. In many cases, I may already have spoken to the ADA informally and convinced him to lower his bail recommendation. I will have spoken in great detail to you and your family about your background, employment, education, family and housing circumstances and just about everything that can convince the judge to set as low a bail as possible or even to release you with no bail. I put a great deal of effort into preparing and presenting my bail argument to the judge and I try to make sure as many family members and friends as possible are in court when I make my bail argument. This is one of the most important stages of a criminal case. If bail is set beyond your family’s means, you are likely to remain incarcerated for many months. Once bail is set, it is extremely unlikely that another judge will change the bail conditions, so your attorney must present his most convincing argument regarding bail at this initial court proceeding.
Once the bail amount has been set by the judge, assuming you have not been released on your own recognizance, you will be escorted back into the jail cells behind the courtroom. One of only two possible things will happen within the next fifteen minutes. If your bail is immediately posted (and I mean immediately, not “I’ll be right back with the money”), you will be released within a few minutes. If your family and friends cannot post the bail right now, you will, within a few minutes, be taken from the cells behind the court and transported to Rikers Island or another facility. Bail then cannot be posted in the court and you cannot be released until, at the earliest, the next day. For these reasons, I strongly suggest to your family and friends that they be present at the arraignment and that they have as much money with them for bail as they can possibly raise. It is much better to go through the inconvenience of raising too much money than take the chance of having you remain incarcerated for an extra day or more.
After The Arraignment
Following the shock and stress of having been incarcerated for even a brief period, most people tend to think their ordeal is largely over once they are released on bail or ROR. For some defendants, this is largely true, as their cases will proceed in a predictable and orderly path with no serious consequences. Unfortunately, for most defendants, the arraignment is only the first step on a treacherous path. Sometimes, the dangers are obvious, such as the threat of jail, long probation terms, and large fines. Most people are also aware of the permanent harm of a criminal record, but don’t realize that there are a myriad other collateral consequences that can result from a criminal case. Unfortunately, I can’t list them all, because every case is different. Moreover, the facts of your specific case and personal circumstances will dictate the best way for you to proceed. No one, certainly not me, can predict the best path for your particular case without knowing every fact and circumstance about it. I have only two suggestions at this point. First, don’t rely on your own “common sense” in deciding how to proceed. You will likely miss or misinterpret something important and cause yourself permanent harm. Second, retain the best criminal lawyer you can find, particularly a criminal lawyer who has extensive experience and ties to Queens. You will not regret it.
To find out more about The Law Office of Martin D. Kane, contact our law firm at (718) 793-5700.
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