HOW THE CRIMINAL COURT SYSTEM WORKS IN NEW YORK STATE

Be Careful– Many people choose a plea bargain instead of going to trial because it is much faster and you can be sure of the outcome. But, make sure you understand the impact of what you are agreeing to. You give up some of your rights, like the right to a jury trial, the right to confront your accuser, and the right not to incriminate yourself. You will have to stand up in court and confess to the crime you are pleading guilty to.

Also, many sentences can affect your life in other ways than just jail time. Some convictions prevent you from holding certain jobs, or impact your housing choices or your immigration status. See Collateral Consequences. Make sure you talk about this with your lawyer.

Right to an Attorney- You have a right to a lawyer at the arraignment and for the rest of the case. You can hire your own lawyer. Or if you don’t have enough money to hire your own lawyer, the court will appoint a lawyer to defend you for free. You can also defend yourself, but understand that a criminal case is complicated and a guilty conviction can affect your life in other ways than jail time. See Collateral Consequences. A criminal lawyer can help you understand the charges, and find evidence and strategies to win the case.

If you have a good reason you cannot work with the free lawyer assigned to your case, let the Court know as you may be able to get a new lawyer assigned. You can also switch to a lawyer you hire at any time. Visit Find a Lawyer.

Release After the Arraignment– If you are in jail, the prosecutor can ask the Judge to keep you in jail or set bail. Bail is money or property that you put up as a promise to return for future court dates. Your lawyer will also have a chance to speak to the Judge about your release. If the Judge decides to set bail, then the Judge decides the amount of bail. If the Judge orders bail, you are sent back to jail until the bail is posted. Learn more about Bail.

The Judge can also release you on your own recognizance (ROR). This means that you promise to return for future dates without posting any bail. If you are arrested for a misdemeanor and do not have prior arrests, you have a good chance of being released without bail. If you are charged with a misdemeanor and bail is set and you can’t post it, you will stay in jail for approximately five days and if the prosecutor fails to give the court papers supporting the misdemeanor complaint (the papers are called the Information), a Judge will release you on your own recognizance.

If you are released after the arraignment, you must come back to court for every court date. If you don’t come to court, the Judge will order a warrant for your arrest. This is called a bench warrant. This means that the police will be notified to find and arrest you and bring you to court. If you posted bail, it may be forfeited. If the Judge orders a warrant this becomes part of your criminal record even if you are found innocent of the charges against you.

After the Arraignment– What happens after the arraignment depends on the crime you are charged with and your plea. If you plead guilty, visit Sentencing. If you plead not guilty and are charged with a felony, visit Preliminary Hearing and Grand Jury, otherwise visit Pre-trial.

Sentencing Basics

If you are found guilty or plead guilty, you will get your punishment from the judge. This is called sentencing. For violations and minor misdemeanor cases you may be sentenced right away. Where the possibility of prison time exists, you will most likely get a date a few weeks away for a sentencing hearing. A Pre-Sentence Report will be made to help the Judge decide your punishment. At your sentencing hearing, you, your lawyer, the Prosecutor and, in some cases, the victim of your crime, all have a chance to speak to the Judge about your sentence. The Judge decides your sentence.

Your lawyer and the Prosecutor may have agreed on your punishment by Plea Bargaining. But, the Judge does not have to follow any agreement between the prosecutor and your lawyer about your sentence. Your sentence depends on different things, like your background, your past convictions, what happened when you committed the crime, and the attitude of the victim (see Victim Impact Statement). Different Types of Criminal Cases have different ranges of punishments. This means that a Judge can’t sentence you to years in prison for a violation like jumping a turnstile. Your lawyer can explain the possible sentence for your crime. Also, there are many kinds of punishments besides jail or prison time that a Judge can use to punish a defendant, like probation, conditional discharge, unconditional discharge, Restitution and fines. Read Common Sentences to learn more. There are also a number of Surcharges and Fees, like the Crime Victim Assistance Fee, or mandatory surcharge, that the court orders you to pay.

A criminal sentence can also punish other areas of your life in ways you may not realize. It is important to understand what can happen. Speak to your lawyer and read Collateral Consequences Basics and use the calculator to see the possible consequences. Some consequences, like losing your apartment or a license for your job, can be avoided by getting a special certificate that gives you back your rights. See Getting Rights Back. You may be able to ask the Judge for this at your sentencing. It can also be asked for later.

Pre-Sentence Report

A Judge uses a pre-sentence report to help decide the defendant’s punishment for the crime. The pre-sentence report is made by probation officers. The report is made after the conviction and before the date for Sentencing in felony and serious misdemeanor cases.

A probation officer (or a social worker or psychologist working for the probation department) interviews the defendant and checks the defendant’s criminal record. The probation officer may talk to the crime victim, the arresting officer, and the defendant’s family and friends. The pre-sentence report includes a statement about what happened, the defendant’s personal history and criminal record and a Victim Impact Statement. The report makes recommendations for sentencing.

The pre-sentence report is a chance for the defendant’s lawyer to say good things about the defendant, like that the defendant is in a counseling program or has a steady job and takes care of an ailing family member. The pre-sentence interview is a chance for the defendant to try to make a good impression and explain why he or she deserves a lighter punishment. The pre-sentence report is also a chance for a crime victim to explain how he or she has suffered and what he or she has lost.

Bail

Bail is the money or other security given to the court in exchange for releasing a defendant from jail and the defendant’s promise to come back for the next court date. Posting bail allows the defendant to go back to his or her normal life until the case is finished. The Judge decides the amount of bail. Bail may be denied in serious felony cases or where the defendant has two prior felony convictions. A defendant may also be released without bail (see Arraignments). Bail is returned after the case is over. If the defendant is convicted, a percentage of the money is not returned.

Many courts require bail to be paid in cash. Check with the Court Clerk to see if credit cards or other forms of payment are accepted and where to pay. If the defendant is in jail, bail is usually posted there. The Department of Corrections has information that will tell you how to post bail in New York City. If you are with the defendant when the defendant is in court, take cash with you and you may be able to post bail at the courthouse and take the defendant home. Keep your bail receipt! The person that posts the bail is called the surety.

If the defendant can’t post bail then he or she has to stay in jail until the next court date. A bail bondsperson can help with bail.

Bail Bondspersons– When people do not have enough money to post bail they can use a bail bondsperson. These people do not work for the court. A bail bondsperson sells a legal paper called a bond to give to the court instead of money. This bond guarantees that if the defendant doesn’t come to court as ordered, the bondsperson will pay the amount of money on the bail bond to the court. The bondsperson may only charge you 10% of the value of the bond. The bondsperson may take security against your house or other assets.

Getting Cash Bail Money Back-In most cases, bail is not given back until the case is over. There is a surcharge on all cash bail if the defendant is convicted. This means that the government keeps 3% of the amount of bail posted. If the case is dismissed or the defendant is found not guilty, you get all the bail money back. If the defendant fails to come back to court, the bail money will not be given back and a warrant is issued for the defendant. If this happens, it will be hard to get the money back. You can ask the court to give you back the bail money by filing a motion. This is called Bail Remission.

If the defendant went to all the court dates, and the case was in New York City, cash bail will be mailed in a check to the surety (the person who paid the bail), when the case is over. If you don’t get the money in the mail after 8 weeks, contact the NYC Department of Finance. If the case was outside New York City, the person who paid the cash bail and is named on the bail receipt must bring the bail receipt and photo ID to court to ask for the bail money. If you lost the bail receipt, you must submit a notarized statement explaining this. See sample City Court Lost Bail Receipt Affidavit. You can ask that the bail money be given to someone else by submitting a notarized affidavit. See sample City Court Affidavit for Assigning Bail.

Applying Bail to a Fine or Fee

If the case was outside New York City, and the court set a fine, a mandatory surcharge or a crime victim assistance fee in the case, the surety can ask that the cash bail money be applied to pay the fine or fee. To do this, the surety (the person who posted the bail) submits a notarized statement asking to apply the bail money to the fine or fee to the Court Clerk. You may be able to do this by mail. Ask the Court Clerk. Use the court locator box to find the phone number for the court. See City Court sample Apply Bail to Fine Affidavit.

In New York City, you can’t ask to deduct the fine or fee from the bail money.

Bail Remission

The court can order that bail be forfeited when the defendant misses a court date. Forfeited means that if you posted cash bail money and the defendant didn’t show up, the court will keep the money. You will be notified if bail is forfeited. You may still be able to get your money back by asking the court for remission of forfeited bail if the defendant eventually came to court. The motion must be made within 1 year of the court order that forfeited the bail.

Important! The motion for bail remission can only be made by the person who posted the bail for the defendant.

In the motion papers tell the court good reasons for giving you back the money, like that the defendant didn’t come to court because he was sick, or that you really need the money to pay your bills, or that the court didn’t spend any money to get the defendant back in court. You can attach an Affidavit from the defendant, bills or any other proof that supports your request.

The motion for remission of forfeited bail must be served on the District Attorney and give the District Attorney at least 5 days notice. The District Attorney will have a chance to submit papers arguing against returning your bail money.

Types of Criminal Cases

A person commits a crime when he or she does something that goes against the laws in the New York State Penal Code. There are three types of criminal cases: Violations, Misdemeanors and Felonies. Each one has different possible punishments. This is called Sentencing.

Violations- A violation, like trespassing, unlawful possession of marijuana, or disorderly conduct, is not considered a crime. The most you can be punished for a violation is 15 days in jail.

Misdemeanors- A misdemeanor is more serious than a violation, but less serious than a felony. Examples of misdemeanors are prostitution and making graffiti. Misdemeanors are divided into 3 groups: Class A, Class B and Unclassified. The most you can be punished for a Class A misdemeanor is 1 year in jail. The most you can be punished for a Class B misdemeanor is 3 months in jail. The punishment for most Unclassified misdemeanors is 3 years of probation. But you can be punished for a DWI Unclassified misdemeanor up to one year in jail.

Felonies– Felonies are the most serious crimes, like murder, rape and arson. If you are found guilty of a felony, you may be sent to jail for at least 1 year. The Judge may sentence you to less time in jail and give you probation for the rest of the time. Felonies are divided into different groups based on how serious the crime is: A-I or A-II, B, C, D, and E. The most you can be punished for a Class A-I or A-II felony is life imprisonment, unless it is a drug felony. The most you can be punished for a Class B felony is 25 years in jail. The most you can be punished for a Class C felony is 15 years in jail. The most you can be punished for a Class D felony is 7 years in jail. The most you can be punished for a Class E felony is 4 years in jail.

Difference Between Violent and Non-Violent Felonies– There is no set formula for knowing whether a felony is classified as violent or non-violent. For example, Robbery in the 1st and 2nd Degree is a violent felony, but Robbery in the Third Degree is a non-violent felony.

Punishments for violent felonies are for a fixed amount of time. Punishments for non-violent felonies are usually for a range of time if it is the first felony conviction. After serving the minimum sentence, a person becomes eligible for parole. See Common Sentences.

Mandatory Surcharge, Crime Victim Assistance Fee and Other Fees

At Sentencing, there are a number of fees and surcharges that the defendant may be charged with. The amount of the surcharge or fee depends on the crime you are convicted of committing. Possible fees include:

  • Mandatory Surcharge: this fee is charged to every convicted defendant.
  • Crime Victim Assistance Fee: this fee is charged to every convicted defendant.
  • Town and Village Court Fee.
  • Sex offender Registration Fee: this fee applies to defendants convicted of sex offenses.
  • DNA Databank Fee.
  • Supplemental Sex Offender Victim Fee.
  • Vehicle and Traffic Law Surcharges and Fees.

Payment– Fees and surcharges are paid to the Clerk of the Court. Mandatory surcharges and crime victim assistance fees can be paid by cash, money order or credit card. Some Courts accept personal checks. Outside New York City, you can ask the Court to apply Bail money to pay a surcharge or fee. Fees must be paid:

  • For defendants with no prison time or who go to prison less than 60 days, fees and surcharges must be paid within 60 days of the sentence.
  • For defendants who go to prison for more than 60 days, the money owed is taken from your inmate fund.

If you need more time to pay, you can ask the court. Contact the court to find out how to do this. You can use the Court locator box to find the court’s phone number.

If you do not pay on time, depending on your crime, you could end up with a warrant for your arrest, suspension of your driver’s license, or a civil judgment against you that can affect your credit rating.

Collateral Consequences Basics

Besides direct consequences that can include jail time, fines, and treatment, a criminal conviction can trigger many consequences outside of the criminal court system. These consequences can affect your current job, future job opportunities, housing choices, immigration status, etc. For example:

  • A Class B Misdemeanor conviction, like possession of graffiti instruments, means you cannot live in a New York City Housing Authority apartment for at least 3 years after you finish your sentence.
  • Two convictions for jumping a turnstile in the subway make a green card holder deportable.

Finding Out the Consequences– Your lawyer is supposed to tell you about the collateral consequences that come with any conviction, but your lawyer many not know about all the civil penalties.

Use the Collateral Consequences Calculators below to get an idea of what else can happen to you if you are convicted of a crime.

  • Columbia Law School Collateral Consequences Calculator New York (NYC public housing and immigration consequences only)
  • National Inventory of the Collateral Consequences of Conviction – New York

You can also look for information by choosing a topic from the Collateral Consequences menu.

Getting Rights Back– After a criminal conviction, sometimes you can get relief from the collateral consequences of your conviction by getting a special certificate. Visit Getting Rights Back.

Getting Rights Back

There are a number of laws and rules that bar people convicted of certain jobs from getting certain licenses, or having access to certain benefits, like public housing. This is why it is important to understand the Collateral Consequences of your criminal conviction when you are plea bargaining or sentenced. There are certain certificates called Certificate of Relief from Civil Disabilities and Certificate of Good Conduct that can remove the consequences. The certificates can get rights back that you lost because of your conviction. If you get one of these certificates you won’t be automatically disqualified for a particular job or license. If you have a certificate when you apply for a job or occupational license, the employer or licensing agency must assume that you are rehabilitated unless there is something to say otherwise.

Certificate of Relief from Disabilities

A Certificate of Relief from Disabilities (CRD) is a way to remove certain Collateral Consequences of a criminal conviction. Having the CRD can remove bars to applying for jobs, licenses, public housing and more. If you apply for and receive a CRD, you will have the right to apply just like someone without a conviction. But, having a CRD is not a guarantee that your application will be granted. And, even if you have a CRD, you still have to say that you have a criminal conviction when you fill out a job application.

If it has been more than 10 years since you were convicted of a crime, you may be able to ask the Court to seal your records. 

Requirements– You are eligible to get a CRD if you have been convicted of any number of misdemeanors or violations, but have not been convicted of more than 1 felony (2 or more felony convictions in the same court on the same day are counted as 1 felony for the CRD). If you have been convicted of 2 or more felonies (not at the same time), or if you want to apply for a public office job, you can’t apply for a CRD, but you may be able to get a Certificate of Good Conduct. See Certificate of Good Conduct. You need a separate CRD for each conviction. If you are not sure about your criminal history visit Criminal Records & Sealing to learn more.

When and Where to Apply

  • At Sentencing: You can apply for a CRD at Sentencing. This can be done by asking the Judge for a CRD. If you are going to lose an employment license or public housing because of your conviction, it is important to ask for a CRD at sentencing.
  • After Sentencing: You can apply any time after sentencing for a CRD, except you can’t apply while you are in a state prison. After sentencing, you apply to the court that sentenced you as long as your conviction did not result in state prison time. See Applying to Court for a Certificate of Relief from Disabilities.
  • After State Prison: If you served time in a state prison and have been released you apply to the Department of Corrections and Community Supervision to get a CRD.

Certificate of Good Conduct

A Certificate of Good Conduct (CGC) gives you a legal finding that you are reformed after a conviction. The CGC removes some of the Collateral Consequences of a criminal conviction. The CGC allows you to apply for certain jobs, licenses, public office, housing or other rights that you lost when you were convicted. But, having a CGC is not a guarantee that your application will be granted. And, even if you have a CGC, you still have to say that you have a criminal conviction when you fill out a job application.

You are eligible to apply for a CGC if you have been convicted of 2 or more separate felonies, or if you want a job that is a Public Office (for public office jobs it doesn’t matter how many convictions you have, you need a CGC). When counting felony convictions, federal and out-of-state charges count too. If you are not sure about your criminal history visit Criminal Records to learn more. If you have been convicted of less than 2 felonies, 

visit Certificate of Relief from Civil Disabilities.

One CGC will cover all your felony and misdemeanor convictions.

 

When to Apply

You must wait before you can apply for a CGC. You must show that you have completed a period of good conduct in the community:

  • If you have been convicted of an A or B felony, you must wait 5 years before getting a CGC.
  • If your most serious conviction is a C, D or E felony, you must wait 3 years before getting a CGC
  • If you have only been convicted of misdemeanors, you must wait 1 year before getting a CGC.

The waiting period starts from the last time you got out of prison (onto parole or maxed out) or the date of your last conviction if you didn’t get state prison time, whichever was last.

Where to Apply

You apply to the Department of Corrections and Community Supervision to get a CGC. You do not apply to the court.

Sealed Records: After 10 Years (CPL 160.59)

If you have no more than two misdemeanor convictions or one felony and one misdemeanor conviction, you may be eligible to have those convictions sealed. You must apply to the court to have your records sealed. If the court approves your application, your criminal convictions can only be seen by qualified agencies and federal, state, and local law enforcement. If you are not a United States citizen, Immigration can still see your sealed convictions.

Sex offenses, violent felonies, and serious felonies are not eligible for sealing. See instructions #8 for List of Offenses not eligible for sealing.

Read CPL 160.59.

Who is Eligible?

You are eligible if:

  • You have been crime-free for at least 10 years since your conviction and/or release, and
  • You have 2 convictions or less on your criminal record. This means no more than two misdeameanor convictions OR one felony and one misdemeanor conviction.

The ten year period starts from the date of conviction or release from prison, whichever is later.

You cannot have had any new criminal convictions or have a current criminal case pending.

Courts have the discretion to seal up to two convictions, only one of which may be a felony.

If you have more than 2 convictions, you may still be eligible if your convictions are related to the same one or two incidents. For example, if you were charged and convicted of multiple crimes during one incident, the court may decide to treat the multiple convictions as one conviction.

Expunged marijuana convictions do not count toward your total number of convictions. These are treated as if they never happened.

How to Apply

The sealing of these records is not automatic. You need to do paperwork and apply to the court:

  1. Request a criminal Certificate of Disposition for CPL 160.59 Sealing application from the court.
    • Complete a separate request for each case you will be asking the court to seal.
    • Bring the completed form to the court. Use the locator box to find the court’s contact information
    • There is a fee of $5 for courts located outside of New York City, and a fee of $10 for courts located within the five boroughs of New York City.
  1. After you get your Certificate of Disposition from the court, complete the Sealing Application (this is also known as the Notice of Motion and Affidavit in Support).
    • Sign this form in front of a notary public.
    • Important! You should attach any evidence you have of proof of rehabilitation, like a certificate of relief from civil disabilities, verification of employment, community service, volunteer or charity work; educational transcripts; letters of recommendation or commendation from employers, teachers/professors, community leaders, charitable organizations, certificates of successful completion of a drug or alcohol treatment program, etc. Read more about getting Evidence of Rehabilitation.
  1. The District Attorney must be notified about your application. Make a copy of the Certificate of Disposition, the Sealing Application (Notice of Motion and Affidavit in Support), and any other supporting documents you’re including with your application. The copy of the papers can be served on the District Attorney’s Office by mail or by hand delivery.Important! If you’re asking the court to seal more than one conviction and the convictions occurred in different counties, then each District Attorney must get a copy of the papers.
  2. After the papers have been mailed or delivered to the District Attorney’s Office, the person who mailed or delivered the papers must fill out the Affidavit of Service and sign it in front of a notary public. If more than one District Attorney’s Office were served, a separate Affidavit of Service must be completed for each by the person who served them.
  1. Make a copy of all the papers for your own records.
  2. File the originals of the Sealing Application (Notice of Motion and Affidavit in Support), Affidavit of Service, Certificate of Disposition, and any other supporting documents with the court.
    • Important! These papers must be filed in court. Use the court locator to find the court’s contact information.
    • There is no fee to file these papers.
    • The papers must be filed in the court where the most serious conviction was entered. If both cases involve convictions of the same class, the motion should be filed in the court where the most recent conviction was entered.

What to Do After Getting a Seal Order– If your sealing application is approved, you will get a court signed Seal Order. To confirm that your NYS Criminal History Record has been sealed, fill out this Request for Seal Verification form and mail it with a copy of the court signed Seal Order to the NYS Division of Criminal Justice Services (address is on the Request form).

Sealed Records: Drug-Related Cases (CPL 160.58)

Since 2009, if you were convicted of certain drug-related misdemeanor and felony convictions (see Rockefeller Drug Law Reform for a list of eligible crimes) you can ask the court to have your records for those crimes sealed if:

  • You have successfully completed a Judicial Diversion Program, DTAP (Drug Treatment Alternative to Treatment Program), or a similar substance abuse treatment program recognized by the court, and
  • You completed any other sentence following completion of treatment, and
  • You have no other pending charges against you

Read CPL 160.58.

Sealing Request– The sealing of these records is not automatic. You need to do paperwork – a motion, appear in court, and convince the Judge. The motion should explain how you have changed after treatment and how the conviction has affected your life. It is helpful to speak to an attorney. If granted your record will be conditionally sealed. The Judge can extend the sealing to up to 3 more drug-related misdemeanor convictions as long as the sentences are completed.

Conditional Sealing- The sealing of felonies and misdemeanors is conditional, meaning that if you are arrested again for a misdemeanor or felony, the cases will be unsealed. If you get a good result on the new charges, the old convictions will be resealed. Fingerprints and palm print cards, booking photos, and DNA samples are NOT destroyed.

Sex Offender Petition for Relief or Modification

Corrections Law §168-o says when a sex offender can ask to be removed from the registry or change his or her risk level. The way to ask is by filing a motion. After filing the motion, the sex offender is entitled to a court appointed attorney if he or she can’t afford one.

Removal: After 30 years, a level 2 sex offender who has not been designated a sexual predator, sexually violent offender or predicate sex offender, can petition the court to be relieved from all registration requirements and be removed from the registry. This petition can be made once every 2 years starting 30 years after the first registration.

Modification: A registered sex offender can petition the sentencing court or the court which made the determination regarding the level, for an order downwardly modifying his or her risk level. This petition can be made once per year. The petition should say which new level is being requested and the reasons why the change should be granted. For example, a level 3 sex offender might ask the court to change to level 2 because there have been no new sexual offenses for many years, and/or the sex offender has been in treatment, and/or the risk level is keeping the sex offender from getting a job or housing, and/or the sex offender has changed his or her life. It is helpful to speak to an attorney.

The District Attorney can also ask the court to modify the risk level when the sex offender has been convicted of a new crime or has violated a condition that the District Attorney thinks increases the risk of re-offense.

For information on serving legal papers, contact undisputedlegal.com or (212) 203-8001. Representative are ready to assist you, we serve all legal papers, call now!