Brooklynlaw

Diversionary Programs

2010-08-02T10:56:00.000-07:00

Often times criminal defendants have become involved in criminal activity based on underlying factors that have contributed to their instant problems. Substance abuse, mental health problems, poor social choices, employment, and education issues often lead a person into situation that become the predicate for arrests and criminal prosecution.
In many counties the courts and District Attorneys offices have moved from a prosecution-only stance to attempting to deal with those underlying issues. When the defendant is willing, the courts and prosecutors often allow a defendant to enter a diversionary program to deal with the underlying issues. Often, upon successful completion of the appropriate program, charges can be reduced or completely dismissed. Some of the programs available include drug/alcohol treatment, mental health, anger management educational and vocational training. In some counties these are special courts designated to deal with specific issues such as substance abuse and mental health.
It is important to note that the defendant, the prosecutor and the court must agree to entry to these programs. The defendant’s sincerity to improve is of paramount importance as no program will be successful unless there is a real desire to change. This factor is extremely important as most diversionary programs have substantial jail alternatives for those situations where the defendant does not complete the program or gets rearrested.

BAIL-NEW YORK CITY CRIMINAL ATTORNEY

2010-04-13T09:32:00.000-07:00

BAIL

When a defendant is first brought before a court on criminal charges one of the first, and most important, decisions made by the court is the issue of a person's custody status pending the outcome of the case. Although the bail status can be modified during the pendancy of the action, in many cases the original custody decision stands and has serious implications in the ultimate outcome of the case.

In New York when a defendant's future court attendance at a criminal action or proceeding is required the court must, by a securing order, either release him on his own recognizance, fix bail or commit him to the custody of the sheriff.

In cases where the granting or denial of release or bail is within the discretion of a judge, Section 510.30 of the Criminal Procedure Law states the the application should be determined on factors and criteria relative to the kind and degree of control or restriction that is necessary to secure a defendant's appearance at future court appearances or proceedings. Some of these factors include:
1. The principal's character, reputation, habits and mental condition;
2. The person's employment and financial resources;
3. The person's family and community ties;
4. The person's criminal record or lack thereof;
5. The weight of the evidence against a criminal defendant, and
6. The sentence that may or has been imposed upon conviction.

In Federal Cases the United States Constitution provides that "excessive bail shall not be required..." In federal criminal proceedings determinations relating to release and detention are governed by the Bail Reform Act of 1984.

If a judicial officer determines that the release of a defendant on "personal recognizance" or an "unsecured appearance bond" would not "reasonably assure" the defendant's future appearance at mandated court proceedings or might "endanger the safety of any other person or the community" then there is no obligation to order a release. In those situations the court can release a defendant on a condition or combination of conditions as defined by Section 3142(c).

Some of the factors that a judicial officer must take into consideration, pursuant to Section 3142(g) relating to a defendant's eligibility for release include:
1. the nature and circumstances of the offense;
2. the weight of the evidence against the person;
3. the history and characteristics of the person;
4. the nature and seriousness of the danger to any person or to the community
that would be posed by the person's release.

In both the federal and state systems, the court has the right to inquire as to the basis of any property being used to insure a person's appearance in court proceedings.

ARRESTS

2010-03-24T05:24:00.001-07:00

Once someone has been arrested a number of tasks must be completed before the individual in custody is brought before a Judge. In New York City the average time which elapses between arrest and arraignment is 12 to 24 hours. There are situations where someone can be held more than 24 hours before seeing a Judge.
The reasons for the time lapse are numerous. A number of activities are performed by various agencies before an individual is brought to court. Some of these include:
1. The drafting of a complaint by the District Attorney's office;
2. Sending an arrested individual's fingerprints to Albany to get the criminal history of the
defendant (commonly called a rap sheet);
3. The determination of a bail recommendation prepared by the Criminal Justice Agency;
4. Movement of the prisoner from the precinct of arrest to the courthouse.

The Criminal Courts in Brooklyn, Bronx, Manhattan and Queens are open 16 hours per day, 365 days per year. The reason for this is that there are often over 200 people processed per day in each borough. In situations where the family or friends of an arrested individual are unable to hire an attorney, one will be provided for the Court for the initial appearance. It is always very important for the defendant to have people in the audience when they see the Judge.
Often, numerous decisions must be made shortly after the time of arrest and for that reason it can be very helpful to obtain legal advice as soon as possible. At the time a defendant goes before a Judge for his/her initial post-arrest appearance a number of issues will be dealt with including the custody status of the person who is in police custody. At the time of the first appearance a Judge will decide the bail status of the defendant meaning the person arrested can be released on their own recognizance, released upon the posting of bail, or remanded and held without bail.
An experienced criminal defense attorney can help individuals navigate the numerous issues that arise between the arrest and arraignment of one who has been arrested.

Criminal defendants and Homeland Security

2010-03-23T12:11:00.001-07:00

There are substantial inequities that arise when one is facing criminal charges while there residency status in our country has not been finalized. Often a criminal defendant posts bail relating to pending criminal charges and is unable to be released based on an immigration hold. There are occasions when someone is alleged to have committed a crime, has been granted a provisional release by the criminal court system only to be removed from the jurisdiction where the case is being heard and sent to some holding facility in another state. This makes it very difficult for an attorney to meet with a client and prepare for a defense. Situations actually arise when someone is in this country with a legitimate visa and finds themselves being held without being allowed to be bonded out by an Immigration Judge even in situations when a Criminal Court Judge has set a bail to ensure the defendant's return to court. There should be some equitable solution where Immigration Judges are mandated to follow the lead of Criminal Court Judges in situations where a criminal defendant has some standing to stay in the country.