Below is a brief overview of the criminal procedure process to assist individuals and families as they begin their journey through the legal system. Once a person comes to the attention of the criminal justice system it is important they seek out a qualified attorney. If a person cannot afford an attorney they should contact their local public defender’s office immediately.
An investigation into a crime is often conducted without the knowledge of the would be defendant. If there is sufficient evidence that a crime has occurred, law enforcement will move to the next step.
In some cases a search warrant will be executed to acquire evidence in the case. During contact with officers, a person should refuse to answer questions by law enforcement and ask to speak with an attorney.
An arrest can come at the scene of an incident, during a search warrant, or may come many months after further investigation in which some defendants may be permitted to surrender to authorities. Once a person is formally arrested they should refuse to answer any questions and ask to speak with an attorney.
Arraignment is the first court appearance for a defendant. Typically this will take place within 24 hours of arrest. A judge will ask the defendant to plead guilty or not guilty. The judge will take into consideration the nature of the crime, the person’s criminal history, as well as their ties to the community in deciding if bail is appropriate. If possible the defendant should be represented by their attorney, who may be able to negotiate a favorable outcome.
Based on the information gathered at arraignment the judge will make a decision on bail. If a person is denied bail, they will be remanded to custody (jail), typically until sentencing. If bail is granted, the defendant will be released under conditions imposed by the court.
Discovery includes all evidence in the case including search warrant results, officers notes, statements made by the defendant, the victims, or witnesses, photographs, and any other evidence related to the case. The defendant and his or her attorney is entitled to review all discovery materials.
At this stage, the prosecution may offer a plea deal to the defendant. The defendant’s attorney will negotiate the most favorable terms on behalf of the client. If a defendant pleads guilty and accepts the plea deal, they will appear before the court to accept the plea deal. The case will then move to the pre-sentencing phase. If the defendant decides to plead not guilty, the attorney and the prosecution will prepare for trial.
After a plea deal is agreed to, a probation officer assigned by the court will prepare a pre-sentence investigation report, also known as a PSR or PSI.
The PSR is a document that will follow an individual throughout the criminal proceedings and well beyond sentencing. It is a pivotal juncture in the process. The probation officer, in theory, works for the judge as an independent party tasked with gathering information to present to the court. This includes factual background information such as criminal history, family upbringing, financial condition, education level, employment history, living situation, marital status, drug or alcohol history, and more. It will also include in great detail, the facts surrounding an individual’s case. If at all possible, the defendant’s attorney should be present during the pre-sentence interview.
The criminal procedure process culminates with sentencing. In most cases, this is the final court appearance for the defendant. There are many possible outcomes depending on the charges. A specific sentence may be agreed to in a plea which the judge will impose. In others the judge will have great latitude to use his or her discretion regarding the penalty. This can range from probation to many years in custody. In some instances the defendant will be released to community custody (probation), be permitted to self-surrender to jail or prison, or be taken into custody immediately.
NYS Sex Offender Registration Act (SORA)
Any person found guilty of a registerable sexually based offense will be required to comply with SORA. In “state” cases handled in local courts, a defendant may go through the SORA proceeding at the time of sentencing. In some instances the SORA hearing will be adjourned for a short period of time, typically 30-45 days. Through this hearing, a level (1, 2, or 3) will be assigned to the defendant which will determine how much information will be available to the public via internet posting and community notification.
Federal defendants will experience a slightly different process. Upon release from Federal prison, the defendants case will be reviewed by the Sex Offender Board of Examiners in Albany. The Board will make a recommendation to the Court and the defendant will be scheduled for a hearing. This process typically takes about three months after release.
See SORA History under the Legal Resources tab to learn more about SORA.
It is imperative that a defendant be represented by a qualified attorney experienced in handling SORA cases. You can find NYS SORA attorney’s listed under Legal Resources. The SORA hearing will have lifelong ramifications and its importance cannot be overstated.
Modification or Reduction of SORA Level
NYS Law provides an opportunity for individuals to have their risk level modified or reduced. Read more under the Legal Resources tab.