Arrested in New York City

By
Edgar De Leon, Esq.

My years of service as a police officer taught me that persons arrested often never envisioned themselves in the Criminal Justice System. They have no previous experience with law enforcement officers and do not know how to best interact with the police. They have no knowledge of the arrest and prosecutorial procedures that will occur and what decisions must be made. Finally, they lack the financial resources to employ the full range of investigative and legal resources available under our system of justice to defend themselves. This article will provide the reader with a basic understanding of these issues. Hopefully, the information will afford the reader a level of comfort and the ability to decide what is best for them, while experiencing perhaps the most traumatic event in their life to date.

The Arrest

An arrest may be made in New York State by a law enforcement official with probable cause to believe, "reason to believe", that the person to be charged has committed a crime. An arrest may also be made by a civilian who in fact knows that the person has committed a crime. It is also important to note that a summons is issued in lieu of arrest. If you cannot be properly identified or have a warrant outstanding, you may also be arrested for an offense that normally results in the issuance of a summons. An arrest may be preceded by an investigation, or as is often the case, summarily made after the crime has allegedly been committed.

"The street" or even your home, do not constitute a court of law. There are no judges or jurors present, and no professionals to advocate for or against you. Often, the only persons present are the police and you. It is not the place to litigate your case. An arrest is a volatile situation where all individuals' safety is involved. During the initial police/citizen encounter, it is best for all parties to do all that they can to ease each others fears.

Police work is inherently extremely stressful and dangerous. Many police officers have been killed while serving us all and many more have been injured. Enforcement of the law by the police is necessary and critical to the stability and betterment of our society. Police officers overwhelmingly seek to do their jobs as professionals. At the end of the day, they wish to go home to their families and loved ones as we all do. The law recognizes the dangers police officers face and appropriately allows them to defend themselves, their co-workers and the citizenry at large.

We know much about how police officers may and should approach civilians. However, little attention is given to how a civilian may and should behave during an encounter with the police. When confronted by the police it is critical to remain as calm as possible given the circumstances. Do not make sudden moves and do everything that you can to alleviate the police officer's legitimate concerns in having to confront you. Speak in a calm voice and always keep your hands visible to the officer. If the officer has already decided that he or she has probable cause to believe that you have committed a crime, there is nothing that you can say or do to prevent your arrest. An officer in this situation is mandated to arrest you or face charges of malfeasance. Say as little as possible. Provide your pedigree information, i.e., name, address, date of birth, etcetera. Then respectfully and affirmatively advise the police officer that you will not answer additional questions until afforded the opportunity to be represented at such questioning by an attorney. The overwhelming and vast majority of police officers will respect your invoking rights and will conduct themselves professionally throughout the encounter. This is the first lesson to be learned.

Miranda Warnings

Many of my colleagues have indicated they do not believe that anyone would talk to the police if they had been truly read their Miranda rights. These rights are required to be provided by the police before they question anyone who is in their custody. They were established in the Supreme Court case of Miranda v. Arizona in 1966. Every police officer in New York City carries these rights in their memo book:

1. You have the right to remain silent and refuse to answer any questions. Do you understand?
2. Anything you say may be used against you in a court of law. Do you understand?
3. You have the right to consult with an attorney before speaking with the police and to have an attorney present now or in the future. Do you understand?
4. If you cannot afford an attorney, one will be provided for you without cost. Do you understand?
5. If you do not have an attorney available, you have the right to remain silent until you have an opportunity to consult one. Do you understand?
6. Now that I have advised you of your rights, are you willing to answer questions?

Human nature is a consistent thing. Unless you have been in the situation before, it is impossible to know how difficult it is to remain silent, when events occurring around have profound implications concerning your future. If you believe you are innocent, you are compelled to declare that innocence. If you are guilty, you want to present yourself in the best light. Either way, you are compelled to talk. This is the aspect of human nature that I focused on to get a statement when I was a Detective-Sergeant in the NYPD. It is important to note that the law allows police officers to use deception to obtain a confession. When all these factors come into play, it is much easier to understand why people do talk to the police, despite having been read their Miranda rights.

What is most important for the reader to understand is that nothing can be gained from speaking to the police. The police cannot offer you a deal. Only the prosecutor can do that. Once arrested, the percentage of case dismissed by the police themselves is so miniscule that it makes no sense to try to talk them into voiding the arrest. The only thing that you are almost always guaranteed of achieving is making the prosecutor's job easier. One, by placing yourself at the scene. Two, by implicating yourself in the crime being investigated, or three, by tipping the prosecution off to your defense. Neither of these occurrences is preferable.

It should be clear that nothing is to be gained from speaking to the police without first obtaining legal counsel. All criminal defense attorneys will advise you not to make or sign any statement without first consulting with an attorney. This is the second lesson to be learned.

Arrest Processing

Once the arrest has been affected and you have made it clear that you will not make a statement, the police will conduct routine arrest processing. Arrest paperwork will be filled out and your photograph and fingerprints will be taken. If in the future, the case against you is dismissed or you are acquitted, these items will be destroyed. For most misdemeanor arrest, if you are properly identified, have no outstanding warrants and are not considered a threat to the community, the police at their discretion may issue you a Desk Appearance Ticket ("D.A.T."), requiring you to appear at court on a later date. Certain misdemeanor crimes, i.e., those occurring between family members, concerning prostitution or possession of illegal drugs among others, are treated same as felony arrest for which the policy is not to issue a D.A.T. Because the issuance of a D.A.T. is ultimately discretionary, it is obvious that your cooperation in the arrest processing procedure is critical if you wish to avoid going to jail until you are arraigned on the charges against you.

The Arraignment

If you are charged with a felony (a crime for which may receive a year or more in jail), or not given a D.A.T., you will kept in detention until your "arraignment", at which you will be present in court and formally told of the charges against you. If you are incarcerated, the district attorney has (6) days to present a felony case before the grand jury, so that the jurors may decide whether to indict you on the charges or to dismiss the case against you. If the district attorney misses this deadline, you must be released, although the case may still be present to the grand jury at a later date and you may still be indicted.

At the arraignment, two things will happen. One, as stated above, you will be formally charged. Two, the court will decide whether to release you on your own recognizance, set a cash bail amount, bond bail amount, or both, to ensure your return to court, or remand you back to jail until your next court date. Various criteria are argued by the prosecution and the defense and decided upon by the court in making its determination. The court will consider, the nature of the charges, your risk of flight, the strength of the prosecution's case against you, the danger to the community, your roots in the community, as well as other factors. It is critical for the defendant to be represented by an attorney that has taken the time to familiarize him or herself with the defendant and the case, so that the best arguments for your release may be made. For this reason, it is extremely critical to have an attorney involved in your defense as early in the process as possible. Another reason to have early representation is that at times, a disposition of the case may be reached as early as at arraignment. Here again it is critical to have representation that is truly familiar with your case so that he or she may effectively negotiate with the district attorney a dismissal of the case or an acceptable plea. If no disposition is reached at arraignment, one may be reached later on or the case will go to trial.

Trial Preparation & Trial

Preparing for and actually conducting trial is extremely intense. Whenever possible, an investigator should be hired to conduct the "defense investigation." Otherwise, all the defendant is going into trial with is what is provided to him by the prosecution through the process of "discovery." It is important to note that the law requires the prosecution also provide the defendant with exculpatory evidence, i.e., evidence that tends to exonerate him or her. Nevertheless, from a practical standpoint, finding defense witnesses is not the focus of the prosecutor. An investigator working on the defendant's behalf may make the difference at trial.

During trial preparation, the defendant should be re-interviewed, the scene of the alleged crime should be visited, any and all witnesses must be interviewed, as well as all of the facts of the case organized to present the defense's theory of the case. Decisions must be made as to whether it is better to have a jury or bench trial (trial before a Judge without a jury present), and if relevant, a jury "profile" must be identified. Decisions have to be made as to what evidence will be presented and as to which evidence the defense will oppose being introduced by the prosecution.

At trial itself, the prosecution and defense will make opening statements; question and cross examine witnesses, present evidence and conclude with summations. Both sides will attempt to identify and preserve issues for appeal should they lose. If that should be case, there are thirty (30) days to file a Notice of Appeal.

Postscript

It is impossible in an article of such short length to discuss all of the nuances of an arrest and its aftermath. I hope that you have been informed and better prepared should you are someone close to you find themselves arrested in New York City.