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Breakdown Of The Process After An Arrest

Interviewer: What happens when someone gets arrested and they call you up and say, “Hey, I’ve just been arrested.  I need a lawyer”, what’s the process going to be look from there?

Glen Malia: Normally, the defendant’s going to have his appearance in court which is called the arraignment. At that appearance, the charges are given and what happens is normally speaking, the charge that would be given, let’s say possession of controlled substance, there will not be a lab report yet. Depending upon how the charge is written, at the arraignment, there shouldn’t be or there would be no plea entered because most of the times, the district attorney’s office is not what they call ready for trial.  To be ready for trial, they have to have a lab report that shows that there actually is cocaine because in New York State, the charges have to be supported by non-hearsay allegations.  A police officer, even though it looks like cocaine smell and stuff like that, you can’t prove it’s cocaine without the lab report.

At the Arraignment the Charges Against the Defendant are Given to the Defense Attorney

The first appearance in court is the arraignment, the charges are given to the defendant or the defendant’s attorney, the attorney will normally what they call waive a reading of the charge and there’s no reason for the judge to physically read the charges that the defendant’s facing in courts, so you’ll waive a reading of the charges. In addition, the attorney will waive the reading of the defendant’s right so we’re talking about the rights, supposedly the right to have an attorney and if you can’t afford an attorney, the court will appoint an attorney to represent you with no charge, so we’ll waive a reading of the rights. Depending upon what type of charge it is, if it’s what they call a complaint, then there’ll be no plea entered, or if it’s what’s called information and the people say that they are ready for trial, they’ll enter a plea of not guilty. 

A Bail Application is Submitted to the Courts if the Defendant Hasn’t Been Released

Sometimes, also at the arraignment, if the defendant has not been released either without bail by the police or with some sort of what’s sometimes referred to as stationhouse bail. At that time, if the defendant’s in jail, the defense attorney will make an application for bail or release without bail and/or the prosecutor could ask for more bail than the defendant had been given by the police department.  So, there is also a bail application and in which case, the judge will make a determination of what the bail should be. In Westchester County, another frequent thing at an arraignment for a drug possession case is what they call a referral to an agency which is called TASC. TASC is a county-funded agency which basically acts as a go between the courts when you need to have a treatment program and that’s TASC. 

A Defendant Needs to Have an In-Depth Discussion About His Case With the Defense Attorney

What they will do the defendant will then be required to make an appointment with TASC and they’ll do an initial evaluation and then the defendant will be referred out for more in-depth evaluation as to whether the defendant has a substance abuse problem.  So, that’s the first court appearance, that’s the arraignment. The case then generally gets adjourned and it gets adjourned for several different reasons.  The first is so that an attorney can pretty much sit down in his or her office and go over, in-depth, with the defendant, the facts of the case and things of that nature, so that the defense attorney can interact with the prosecutor frequently. They can also review and do what’s called open file discovery, in other words, to review the paperwork that’s in the prosecutor’s file to see what the police say what the basis to stop was, how they got about the search assuming that there was a search issue involved.

The Purpose of the 71030 Notice is to Inform the Defense Attorney if they Need to Suppress Anything or Challenge Anything in the Case

That’s where the attorney can make a determination as to whether there’s effectively any grounds to contest whether it’s stop, the search, the arrest to contest that. Then within 15 days of arraignment, it usually happens at the arraignment that district attorney’s office is required to provide to the defense counsel a notice, under the New York State criminal procedure law which is called 71030 notice. If the defendant made any statement that the prosecutor intends to offer at trial. The purpose of this notice is so that the defense attorney knows whether or not there’s anything that they need to seek to have the court suppress in terms of an oral statement. Any statement the defendant makes, the defense attorney can ask the court to suppress for various reasons, whether it was given because it was given while the defendant in custody but Miranda warnings hadn’t been given or the defendant was in custody and should not have been in custody, it was an illegal arrest, those statements would not be allowed to be used at trial against the defendant.

Most Courts in New York Have a Pre-Trial Conference Prior to Commencing Trial

Ultimately down the road, the case maybe gets adjourned a couple of times and ultimately, the DA’s office gets a lab report to establish the fact that it is a controlled substance. Now, the prosecutor’s ready for trial and plea bargaining negotiations taking place and if some sort of acceptable plea bargain is not worked out. At some point in time, that has to be scheduled for trial and most courts actually will have a plea trial conference before the trial and then, ultimately you end going to trial.  If it’s going to go to trial, the decision that the defendant has to make is whether we want to have a bench trial, in other words, just the judge deciding the facts, or wants to have a jury trial. If there is an acceptable plea bargain worked out, then the defendant enters a plea of guilty. 

A Plea Bargain May Require the Defendant to Be Interviewed by the Department of Probation

If that plea bargain requires the defendant to be interviewed by the Probation Department and that the judge wants to review a report from the Probation Department, then the case gets adjourned for about 3 months for that to take place.  If there is no need for the defendant to be interviewed by the Probation Department, then we have the sentencing.  And generally speaking, with the plea bargain, you know what defense there’s going to be, so that’s one of the benefits of the plea bargain is you agree to a certain plea, DA agrees to a certain sentence and if the judge has agreed to everything and you entered the plea, you’re going to get the sentence whether it’s without a presentence report or after presentence report, you know what defense is going to be and you ultimately get sentenced.


Malia Law, LLC located in Cortlandt Manor, NY represents Landlords/Tenants throughout Westchester County, Putnam County and Southern Dutchess County, NY.



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