After you are arrested, in most cases, you will be taken to a police station, fingerprinted and photographed. The officers will interview you and take down your pedigree information such as name, address, date of birth, height, weight eye color. You have a right to remain silent and not make any statements about the case but providing basic truthful pedigree information is the best course of action. Providing a false name or pedigree information is a crime called criminal impersonation and withholding pedigree information will increase your chances of bail being imposed (see below).
After being processed at the police station, in less serious cases you will be given a desk appearance ticket (“DAT”) and released. The DAT is a slip of paper directing you to appear in court on a specific date and time. It may also have an arrest number and section of the law you are accused of violating. In more serious cases, the police will transport you to court for an arraignment.
The arraignment is your initial court appearance in front of a judge in a town or village court, district court, city court or criminal court. These are all considered lower criminal court’s in New York that initially handle all criminal cases including felonies. At the arraignment, the judge will read the charges and determine whether bail should be imposed or you should be released on your own recognizance (“ROR”). You are entitled to a copy of the charges and should ask for a copy if the judge does not provide them to you.
Bail is an amount of money you, a friend or family member “post” with the court to ensure that you return to court to face the charges. Bail is not a punishment, and should only be imposed if you are a “flight risk” or charged with certain dangerous felonies. Imposing bail because the judge does not like you or the facts of the case or for some other improper reason is unconstitutional because the presumption of innocence applies at arraignment and making bail determinations.
Cash bail and bail bonds
Usually bail may be posted in two forms: in cash or by bail bond. The bail bond amount will generally be higher than the cash amount. Bail bonds must be obtained with the help of a licensed bail bondsman who reviews the finances of the person who wants to obtain the bond to make sure he or she can pay the bondsman should you run away. The bail bondsman usually imposes a fee (usually between 5%-15%) for the bond which is how they make money. Different bondsmen will impose different fees so the person posting the bond should call around to compare fees. If you run away after bail is posted, the person who posted the bail will forfeit the amount of the bail, you will be charged with the felony of bail jumping and a warrant will be issued for your arrest. Bail (cash or bond) is refundable at the end of the case less a court imposed percentage that the court keeps as a fee. If the case is resolved in your favor, such as dismissal on the merits or acquittal after trial, you are entitled to a refund of the full amount of bail without any fees being imposed.
Your right to an attorney at arraignment
New York’s highest court has held that you have the right to have an attorney present at your arraignment because it is a critical stage of a criminal case. If you are charged with a felony or serious misdemeanor and find yourself at an arraignment and you are not able to have your private attorney present or provided with an attorney to speak on your behalf, you should tell the judge that you do not wish to proceed with the arraignment until you are provided with an attorney experienced in criminal law. If you are not sure if the charge is serious enough to warrant bail, then ask the judge if he intends to impose bail and if so, you wish to have an attorney present to argue against the imposition of bail. If you cannot afford an attorney or your private attorney is not available for the arraignment, the court must provide an experienced attorney at arraignment free of charge. If the court refuses to provide you with an attorney and proceeds with the arraignment, you should contact an attorney who will order the transcript of the arraignment and may move to vacate any bail that was set because the judge violated your Sixth Amendment right to counsel at arraignment. Unfortunately, many courts in upstate New York routinely violate this Sixth Amendment requirement so you should insist on having an attorney speak on your behalf at your arraignment because it could mean the difference between having bail set and going to jail or being released on your own recognizance while the case is pending. Your chances of getting release or lower bail is greater with an attorney because judges often have very little information before them at an arraignment and your attorney can interview you, review the charges and then argue to the judge why you should be released. Judges tend to impose bail when they have insufficient information in an attempt to “cover” themselves which makes the role of an attorney at arraignment vital. If bail is imposed and you are able to post bail, you will be released from the court or from the jail. You will then be given a date and time for your next court appearance. Contact an experienced criminal defense attorney immediately.
*The opinions expressed in this blog are not to be deemed legal advice. Each criminal case is different and you should always consult an attorney familiar with the facts and circumstances of your individual case. For a free consultation regarding your criminal case in New York call 845-876-3024.