New York Criminal Defense Blog

Under CPL 170.55(2)

Upon application of the People made at any time not more then six months…the court may restore the case to the calendar upon a determination that dismissal of the accusatory instrument would not be in furtherance of justice, and the action must thereupon proceed.

The People can move for an immediate sealing of the ACD and do not have to wait the entire six month period. In certain situations this might alleviate some of the collateral consequences I described in my last post in accepting an ACD.  Another reason why the People might do this instead of just dismissing the case outright is that it precludes the defendant from bringing a malicious prosecution lawsuit.

Todd A. Spodek is a criminal defense attorney with Storobin & Spodek, LLP.

Restitution and Reparation are governed under New York State Penal Law Section 60.27. In parlance, the term “restitution” usually refers to both principles. The legal definition of restitution is to repay the fruits of the offense.  The legal definition of reparation is to repay the actual out of pocket losses to the victim.

Generally, restitution is compensation paid to the victim of a criminal offense paid by the perpetrator of the criminal offense.  The underlying purpose is to pay for the losses or injuries that stem from the criminal offense. The goal is to return the victim to their position he or she was in before the crime occurred. Once the victim alerts the District Attorney that he or she is seeking restitution and reparation, the Judge must order the defendant to pay back restitution unless the interests of justice dictate otherwise. If the Judge does not order restitution, then the Judge must state the reasons why not clearly on the record.

The amount paid by the defendant can not exceed the cost of the crime . Unless the defendant consents, or as a condition of probation or a conditional discharge, the amount of restitution or reparation required by the Court can not exceed $15,000 in the case of a felony conviction, and $10,000 in the case of a any other type of a conviction.

The defendant has the right to object to the determined restitution amount. The Court may hold a hearing, and consider the defendants ability to pay  back any restitution.

Restitution can include various items not limited to:

• Medical expenses
• Counseling expenses
• Funeral expenses
• Insurance deductible
• Incidental expenses
• Property expenses

A victim of a criminal offense can not recoup money for pain and suffering, mental anguish and loss of earnings.

Todd A. Spodek, Esq. is a criminal defense attorney with the trial law firm of Storobin & Spodek, LLP. Please contact us 24/7 at (212) 748-9243.

WHAT IS A DESK APPEARANCE TICKET (“DAT”)?

DAT stands for a Desk Appearance Ticket.  Under New York State Criminal Procedure Law Section 150.10, a Desk Appearance Ticket is a written notice, by a Police Officer directing an individual to appear in a criminal court on a designated time and date to face a criminal charge. The date on the Desk Appearance Ticket is called the “return date” and that is the date that the defendant will be formally arraigned. If you have received a Desk Appearance Ticket, then you have been arrested and are being charged with a crime. The granting of the desk appearance Ticket just means that the Police Officer was satisfied that you will return to Court on that date and the formal booking process (arrest, booking and incarceration) is unnecessary.

WHAT SORT OF CRIMES ARE DESK APPEARANCE TICKETS (“DAT”) AVAILABLE FOR?

Desk Appearance Tickets are available for Violations, Class A, B, and Unclassified Misdemeanors, and lastly for E Felonies. The issuing Police Officers has discretion whether to issue a Desk Appearance Ticket, or holding you until you can be arraigned – so that the Judge can decided if bail is necessary.  Police Officers will generally issue desk appearance tickets to individuals who have proper identification, and do not have a criminal record. The Police will not issue Desk Appearance Tickets for individuals who are accused of Domestic Violence (“DV”) or reside outside of New York City.

WHAT HAPPENS ON THE DATE LISTED ON THE DESK APPEARANCE TICKET (“DAT”)?

On the return date, your case will be either ready or not ready. Unlike the speedy trial calculation, this readiness just means that your paperwork is ready.

WHAT HAPPENS IF YOUR DESK APPEARANCE TICKET (“DAT”) PAPERWORK IS NOT READY?

If you appear on the return date and your paperwork is not ready, then you will just be asked to sign in and then you can leave. The purpose of signing in is so there is proof that you were there on the date and time you were supposed to be. This is important so that no warrants are issued for your arrest. The Clerk will then advise you to leave, and inform you to watch your mail, and phone for any messages regarding a new court date.

WHAT HAPPENS IF YOUR DESK APPEARANCE TICKET (“DAT”) PAPERWORK IS READY?

If your paperwork is ready then the lawyer for the defendant will be provided with defense papers. This will include the Violation, Misdemeanor Complaint or Information and any applicable notices.  This is the first step in the New York State criminal system. This is where you will be informed of the charges that are being brought against you.  This is also when you will enter into a not guilty or guilty plea to the charges.

WHAT HAPPENS IF YOU LOSE YOUR DESK APPEARANCE TICKET (“DAT”)?

The best thing to do would be call Central Booking in the County in which you were arrested, and let them know that you received a Desk Appearance Ticket (“DAT”) but misplaced it.  Their numbers are as follows:

Bronx Central Booking (718) 590-2817

Queens Central Booking (718) 268-4523

Manhattan Central Booking (212) 374-5880

Staten Island Central Brooking (718) 876-8493

Brooklyn Central Brooking (212) 374-5880

I would continually check in with both Central Booking, and the Clerks Office in the County to confirm that no warrants were issued for your arrest.

WHAT HAPPENS IF YOU FAIL TO RETURN TO COURT ON THE DATE ON YOUR DESK APPEARANCE TICKET (“DAT”)?

If you do not appear on the return date on your desk appearance ticket, then the Prosecutor can request a bench warrant for your arrest.  The New York Police Department Warrant Squad will be then be looking for you.  If you do miss Court, you should immediately contact the criminal defense lawyers at Storobin & Spodek, LLP to arrange a surrender.

WHAT IS “STATION HOUSE BAIL” OR “POLICE BAIL” OR “PRE-ARRAIGNMENT BAIL”?

The Police Officer who issued the Desk Appearance Ticket (“DAT”) can accept bail as a condition to granting an individual a Desk Appearance Ticket.

If the arrest was for a Class E felony, any amount up to $750.00.

If the arrest was for a Class A Misdemeanor, any amount up to $500.00

If the arrest was for a Class B Misdemeanor or Unclassified Misdemeanor any mount up to $250.00

If the arrest for a Violation, any amount up to $100.00

The Judge at Arraignment can then continue, increase or exonerate the bail.

WHAT ARE POSSIBLE CONSEQUENCES OF A DESK APPEARANCE TICKET (“DAT”)?

Ordered to pay a fine

Ordered to do community service

Jail

Probation

Criminal Record

WHAT COURTS HEAR DESK APPEARANCE TICKETS (“DAT”)?

New York County Criminal Court

Queens County Criminal Court

Bronx County Criminal Court

Richmond County Criminal Court

Kings County Criminal Court

Midtown Community Court

Red Hook Community Justice Center

WHAT ARE THE GOVERNING LAWS FOR A DESK APPEARANCE TICKET (“DAT”)?

Below are summaries of the key provisions.

Criminal Procedure Law 150.10

A Desk Appearance Ticket must be a written notice, issued and subscribed by a Police Officer or other authorized Public Servant directing an individual to appear at a Criminal Court at at future time. Also if a Desk Appearance Ticket is issued with a traffic ticket, then there must be language on the Desk Appearance Ticket alerting the defendant that he can receive a supporting deposition.

Criminal Procedure Law 150.20

A Desk Appearance Ticket can be given by a Police Officer and/or a Public Servant with the assistance of a Police Officer for all Violations, Class A, Class B, and Unclassified Misdemeanors, and Class E felonies.  Further, pre-arraignment bail can be set.

Criminal Procedure Law 150.30

The Police Officer(s) can set bail as a condition of them granting you a Desk Appearance Ticket according to this schedule:

If the arrest was for a Class E felony, any amount up to $750.00.

If the arrest was for a Class A Misdemeanor, any amount up to $500.00

If the arrest was for a Class B Misdemeanor or Unclassified Misdemeanor any mount up to $250.00

If the arrest for a Violation, any amount up to $100.00

Also, that individuals shall be able to post pre-arraignment bail by Credit Cards.

Criminal Procedure Law 150.40

The Desk Appearance Ticket is returnable in the local criminal court. The defendant must personally receive the Desk Appearance Ticket in his or her hand.

Criminal Procedure Law 150.50

The Police Officer must cause a legally correct Desk Appearance Ticket (“DAT”) to be filed with the local Criminal Court.  Further, if the Judge at Arraignment is satisfied that based on the available facts and evidence it would be impossible for the Police Officer to file a legally correct accusatory instrument – then the Judge must dismiss the Desk Appearance Ticket.

Criminal Procedure Law 150.60

If the defendant does not show up in Court when he or she is supposed to then the Court can issue a Summons or Warrant of Arrest for the defendant to appear.

Criminal Procedure Law 150.70

Certain offenses require the defendant to be fingerprinted. If it is one of those offenses, the defendant must appear at the directed time and place for fingerprints.

Criminal Procedure Law 150.75

If the defendant is charged with Unlawful Possession of Marijuana (“UPM”) under Penal Law 221.05, then he or she should get a Desk Appearance Ticket.  Pre-Arraignment Bail should only be set if the Police Officer

1. is not able to ascertain the defendant’s identify or address
2. believes that the defendant provided false identification or address
3. believes that the defendants does not reside in New York State

Todd A. Spodek, Esq. is a criminal defense attorney at Storobin & Spodek, LLP.  Our firm handles desk appearance tickets in the five boroughs of New York City. Our Manhattan office can be reached at (212) 748-9243 and our Brooklyn office at (718) 596-3700.

MACD is a form of dismissal, and all of the records (court, police agency, etc) in the defendant’s case will be sealed. They will not be available to anyone, and will not appear on a criminal record background check. Once a year passes, the defendant will be put back in the same position he or she was prior to the arrest. The defendant can honestly say then that you were never arrested. Additionally the NY Executive Law prohibits anyone from asking you about an arrest that is not currently pending, and that was terminated in the defendants favor as per criminal procedure law 160.50.

Below are the relevant statutes:

Criminal Procedure Law 160.50(3)(b)

For the purposes of subdivision one of this section, a criminal action or proceedings against a person shall be considered terminated in favor of such person where:
(b) an order to dismiss the entire accusatory instrument against such person pursuant to 10 section 170.56

Criminal Procedure Law 170.56(4) -

Upon the granting of an order pursuant to subdivision three, the arrest and prosecution shall be deemed a nullity and the defendant shall be restored, in contemplation of law, to the status he occupied before his arrest and prosecution.

New York Executive Law 296 (16)

It shall be an unlawful discriminatory practice, unless specifically required or permitted by statute, for any person, agency, bureau, corporation or association, including the state and any political subdivision thereof, to make any inquiry about, whether in any form of application or otherwise, or to act upon adversely to the individual involved, any arrest or criminal accusation of such individual not then pending against that individual which was followed by a termination of that criminal action or proceeding in favor of such individual, as defined in subdivision two of section 160.50 of the criminal procedure law, in connection with the licensing, employment or providing of credit or insurance to such individual; provided, however, that the provisions hereof shall not apply to the licensing activities of governmental bodies in relation to the regulation of guns, firearms and other deadly weapons or in relation to an application for employment as a police officer or peace officer as those terms are defined in subdivisions thirty-three and thirty-four of section 1.20 of the criminal procedure law

Todd Spodek, Esq. is a criminal defense attorney with the criminal defense firm Storobin & Spodek, LLP.  He can be reached at (212) 748-9243.

A person is guilty of unlawful possession of marijuana when he knowingly and unlawfully possessed marijuana

Penalties:

This statute is the decriminalization of marijuana in New York State. This is a violation punishable only by a fine of not more then one hundred dollars.

If the defendant has previously been convicted of an offense in Article 221, or Article 220, committed within the three years immediately preceding such violation, it will be punishable by:

• A fine of not more then two hundred dollars, if the the defendant was previously convicted of one such offense committed during such period, and
• A fine of not more then two hundred and fifty dollars or a term of imprisonment not in excess of 15 days or both, if the defendant was previously convicted of two such offenses committed during such period.

If you would like to speak to a Marihuana Criminal Defense Lawyer, please contact the Criminal Defense Firm of Storobin & Spodek, LLP at (212) 748-9234.

In New York State, Criminal Defendants can assign their bail to their defense attorney – or for that matter anyone else. This is especially helpful for defendants who have exhausted their financial resources to secure their temporary release pending trial.  The individual who posted the cash bail on the defendants behalf (commonly known as the surety) has the right to receive the money that they posted once the case is finished. They also have the right to assign it to someone else. They can assign all, or just part of the funds to someone else.

To assign bail to your criminal defense attorney; the following steps need to be taken:

1. The surety needs to provide the criminal defense attorney with the original bail receipt.
2. The surety needs to fill out completely a bail assignment application, and sign it in front of a notary.
3. The surety needs to provide the criminal defense attorney with copies of two forms of identification; valid NYS drivers license or out of state license or non driver ID, passport, ATM Bank/Credit Card, voters reigstration ID, employment ID, NYC library card or utility bill.  Note – one form of ID must have a photo.
4. The criminal defense attorney then must submit a signed letter on his or her letterhad stating that they represent the defendant

The above documents must be brought or sent to:

NYC Department of Finance

Client Services

1 Centre Street, Room 2200

New York, NY 10007

For more information on the process, please contact the NYC Department of Finance at 212-669-2879 or visit them online at:

If you or are a loved one needs the service of a criminal defense law law firm please contact us at 212-748-9243. Our phones are answered live 24/7.

In certain circumstances, the Assistant District Attorney (“ADA”) and/or the Defense Attorney and/or the Defendant will want to set up an informal meeting with the District Attorneys (“DA”) office.  This meeting is called a “proffer” or “queen for a day.” The title queen for a day comes from the vintage television show of the same title, which was the predecessor to modern reality television. The contestant would tell the host all of their problems, and the audience would then ring an applause meter and the contestant would then get the relief she requested. Unlike the television show, the defendant who participates in a proffer session does not always leave as happy.

The meeting generally takes place at the ADA’s office and depending on the nature of the crime there will be various additional people from the DA’s office there. There could be Detectives, senior or junior District Attorneys, computer experts, forensic accounting people, etc.

A proffer is set up when a Defendant believes that he/she would get a favorable plea deal from the ADA if he/she proffer’s information to them. This information could lead them to new arrests, drugs, weapons, search warrants, etc. Further the Defendant might be willing to cooperate with the DA’s office as a Confidential Informant (“CI”.) The DA’s office will not always be open to setting up a proffer sessions. In certain cases, they feel that they have nothing to gain from you coming in. They might have an air tight case against you, or the information you can provide to them is so limited that it does them no good.

Generally before a proffer is set up, the defense attorney will have numerous discussions with the ADA regarding the scope of the meeting and what the defendant can reasonably expect to get out of cooperating. The defense might limit the meeting to information regarding crimes that the defendant is not a part of.  Also, it is imperative at all times the Defendant be 100% truthful at a proffer session. If the ADA finds out that the defendant is lying, and is not credible then they will discount everything they are being told, and they will not go through on any plea bargain promises. The Defendant can very well find themselves in the unfortunate situation where they have disclosed incriminating information, and put themselves in a compromising situation at a subsequent trial.

Before any proffer goes forward, the ADA, the defendant, and the Defense Attorney will enter into a “Debriefing Agreement.” This agreement will have three main points.

1. Case-in-chief Prosecution – If the DA’s office brings an action against the defendant, they will not use on their case-in-chief any statements made by the defendant in the proffer meeting. However, the ADA can use any statements in an action against the defendant for perjury or false statements.
2. Statements Leading to new Evidence - The ADA can use any statements in this meeting for the purpose of obtaining leads to other evidence, and if that new evidence is developed, it can be used in a new prosecution of the defendant. Further, if the Defendant decides to go to trial, and testify the ADA can use any statements made at the proffer on cross-examination, as well as to rebut any evidence offered by the Defense.
3. Merger Clause – The agreement only deals with statements made at this meeting at the specified date and time. It does not apply to any statements made at any other time. No promises as to the DA’s position as to the Defendant and a plea deal are binding, unless it is in a writing singed by all parties.

Proffer sessions are risky business.  As it is clear from above, the DA’s office can use the information the defendant provides to follow-up leads and conduct further investigations. If those subsequent investigations reveal new evidence against the defendant, it can be used to prosecute and convict the defendant. Further, the ADA has now had an opportunity to see how you are under pressure, under examination, and your underlying theory of the facts of the case. The debriefing agreement is specifically written broadly so that the DA’s office has great latitude in its options against you. By proffering, you basically give up your right to present a full defense at trial.  Now, what do you do if you do not get the deal that you expected.

Before you decide to enter into a proffer agreement with the DA’s office a Defendant and his/her counsel must consider a few questions:

• How strong is the DA’s case against you?
• Do you have any defenses? If so, how strong are they?
• What are the possible sentences if you cooperate?
• Are there any plea bargain limitations?
• What about the possible sentences if you are convicted at trial?
• Could you weather the storm that a trial brings?
• Is the DA trustworthy? Is he/she authorized to plea out this matter as they fit? Do they need a supervisor/bureau chief’s permission?
• How much information can you provide?
• What sort of information can you provide?
• Are you or your family at risk if you provide information?
• Can you testify at trial of any of the future defendants that your information led to their arrest?
• Are you confident that you can be truthful even if it is incriminating?
• Do you have any professional licenses at stake if you are convicted?
• Is your family or loved ones at risk of arrest, indictment, etc.?
• Is there any pending civil/forfeiture action?

Once a thorough analysis of the above questions and answers is done, one can make an informed decision as to whether a proffer session is in their best interests.  As in any interaction with law enforcement, one must guide themselves accordingly.

Todd A. Spodek, Esq. is a Partner at Storobin & Spodek, LLP a criminal defense firm located in New York City. He can be reached at (212) 748-9243.

In New York State there is no such things as an expungement of criminal records. There is what is called “sealing.” Sealing basically means that all fingerprints, palm prints, photographs and official records and papers are destroyed or returned to the defendant.

Under Criminal Procedure law 160.50(1) when a case is resolved in favor of a defendant, the record of the action must be sealed, unless the Court directs otherwise.

In Favor of a Defendant includes the followingg:

• Acquittal at Trial
• Dismissal by Grand Jury – No True Bill
• Dismissal in the Interests of Justice – Clayton Motion
• Dismissal of Information
• Adjournment in Contemplation of Dismissal (“ACD”)
• Decline Prosecution (“DP”)
• Decline to File Accusatory Instrument (By the Police)
• Order Setting Aside the Verdict
• Order Vacating a Judgement
• Habeaus Appeal
• Unlawful possession of Marijuana – Penal Law 221.05

In these situations, the records are automatically sealed. The records with the Police, the Prosecutor, Division of Criminal Justice Services (“DCJS”), and the Court are all sealed. These records are available to the defendant or his/her agent.

The other type of sealing that occurs is with Violations and Traffic Infractions. In these circumstances, the DCJS, Police and prosecutors files are all sealed. The difference here is that the Court records are not sealed. The Court needs to keep a record of these convictions.

When a third-party does a criminal history record search (“CHRS”) on an individual only the convictions of misdemeanors and felonies will come up. Offenses will no longer show.

Common Infractions and Violations include the following:

• Trespass
• Disorderly Conduct
• VTL Violations
• Harassment in the 2nd Degree

The only time that sealing does not occur under these circumstances, is when the District Attorneys office moves upon not less than 5 days notice to stop the sealing in the interest of justice.

Lastly, a record of a sealed arrest remains in a confidential file at DCJS and can only be accessed under the following circumstances:

• The client requests it
• The client applies for a gun license
• The client applies for a job as a law enforcement or peace officer
• The client is arrested while on probation or parole
• If a prosecutor or law enforcement establishes that “justice requires” it.

“Speedy Trial” refers to one of the rights that defendants facing criminal charges have under the 6th Amendment to the United States Constitution. The Sixth Amendment provides in part that

“In all criminal cases the accused shall enjoy the right … to a speedy trial.”

The underlying purpose of this right is that defendants should not be subject to unreasonable lengthy incarceration prior to a trial. It protects defendants against egregious prosecutorial conduct to delay cases.  Besides the right granted under the U.S. Constitution, the right is also codified in New York in Criminal Procedure Law Section 30.30. Unlike the constitutional right, the NY right was enacted to enforce prosecutional readiness and to address delays by prosecutorial inaction.  The criminal defendant has two rights, both the speedy trial right under the U.S. Constitution and the one under the NYS Penal Law.  Depending on the type of offense an individual is charged with will depend on the applicable time period under New York State Law.

New York State Statutory Speedy Trial Rights:

Applicable Time Periods:

Felonies – 6 Months

Class A misdemeanors – 90 Days

Class B misdemeanor – 60 Days

Violations – 30 Days

Traffic Violations – No Time period for statutory Speedy Trial but Constitutional Speedy Trial still applies

To be “ready for trial” under CPL 30.30, the Prosecution must in fact be ready to proceed and communicate that readiness on the record.  Once the Prosecution states ready on the record they have met the statutory requirement.  This can’t be a prediction or expectation of future readiness.

Subsequently, they are only charged with a delay that directly implicates their ability to proceed to trial.  The People are not charged with the time that is due to court congestion. To calculate the speedy trial time you look at the time between the filing of the first accusatory instrument and the Peoples declaration of rediness. You then subtract excludable periods of delay, and add any post-readiness delays which are attributable to the People and are excluded under the statute.

Excludable Time Periods:

The Actual Day the Accusatory Instrument was Filed

Pretrial motions filed by the Defendant and the period they are under review.

Discovery by Stipulation (“DBS”)

Peoples need for a reasonable time to prepare for trial

Adjournments based on consent of both the Prosecution and Defense

The Burden:

When a motion is made pursuant to CPL § 30.30, a defendant meets his burden of going forward by demonstrating that a delay greater than the allowable statutory time limit has occurred since the commencement of the action. Once shown, the burden then shifts to the People to show that certain periods of time should not be charged against them.