Interviewer: What if someone feels they're guilty, believes they're guilty, they may want to know, "Should I just throw myself on the mercy of the court, or should I fight the charges?" Glen Malia: Really, as the attorney for the client, the criminal defense attorney, quote, "Filing charges" is basically a last-case scenario, okay? Because, let's take a guy charged with petty larceny, for example. If you go to trial, a jury is going to say you're either guilty or you're not guilty, and if the jury says you're guilty, then you've got a criminal conviction and you're going to get some sort of sentence, whether it's a jail sentence, probation or something of that nature. The first step is really, particularly for a first-time offender, is to see if something can be done and we've all heard the terminology, "plea bargaining," something can be done short of pleading guilty as charged and short of going to trial, try and negotiate a plea. The District Attorney's Office, the Prosecutor's Office, they recognize the fact that people make mistakes. They also recognize the fact that they could never try every case out there, so that's why plea bargaining exists. It Is Never Advisable For a Defendant to Plead Guilty and Expect Mercy From the Court There are some levels of crime, like, for example, using a petty larceny case. If you steal a five-cent piece of bubble gum, that's a Class A Misdemeanor Petty Larceny in New York State. If you steal a $900 television set, that's also a Class A Misdemeanor Petty Larceny in New York State, so there's obviously less severity in terms of the conduct of the client, the conduct of the defendant, so the District Attorney's Office will evaluate cases. The bottom line is a defendant should never just go in and plead guilty and throw himself on the mercy of the court, because that's the last ditch thing. The first step is to try to see if something less than a guilty plea to the charge can be worked out, and then if that can't be worked out, before pleading guilty, finding out what the judge would do in terms of sentencing. There Are Two Levels of Negotiation for the Lawyer, One is What Crime the Client Pleads Guilty to and Getting The Least Severe Sentence Obviously, there's basically two levels of negotiation for the lawyer. Number one is negotiation as to what, if any, crime my client pleads guilty to, and then, okay, if my client pleads guilty, what will the sentence be? There's lots of variations, what can the sentence be. Sometimes the best thing you can do as the lawyer is, okay, I can't get the prosecutor to let my client plead guilty to less than what he’s charged with. Okay. Let's get the least severe sentence we can on this case. The Prior History and Conduct of a Person Does Matter Once You’ve Been Charged With a Crime Interviewer: What about for an individual that hasn't been in that situation before? Does it matter whether you're a good person or have a family and never been in trouble before? Glen Malia: Absolutely it matters. Absolutely it matters. Things that matter, how old the person is, what the past background is, because once you're charged with a crime in New York State, it's up to the District Attorney's Office, the prosecutor, to decide how that case will proceed, and there's several different options that can happen, that the prosecutor can say, "You know what? I'm not going to plea bargain this case. I'm going to hold the person guilty as charged. If they want to plead guilty, fine, they can plead guilty, but otherwise I'm ready to go to trial” and things of that nature. Or the prosecutor can say, "Hey, this person, they've never been arrested before. They're a young person." Or they're an old person. “They're 60 years old. They've never been arrested before.” This is not a serious, like, for example, petty larceny. It may be an elderly person goes into the store and steals something. They've never been arrested before. This is not a major theft and we have in New York State, In some places it's referred to as a deferred dismissal. In New York State it's referred to as Adjournment and Contemplation Dismissal. That's the ACD. An ACD or Adjournment and Contemplation Dismissal Can result in Dismissal of Charges The prosecutor might go along with that, so if the person doesn't get in trouble again for the next six months, the charges are dismissed as if they were found not guilty at trial and things of that nature. Obviously, your background, your age, the severity of the crime and things like that come into play in terms of what the prosecution will offer and/or allow you to plead, because in New York State unless you plead guilty as charged you have to have the permission of the prosecutor to do any other type of plea or any other type of disposition. Then the judge will also consider all those same factors in terms of what they think an appropriate sentence will be. Maybe the prosecutor, take a DWI case, for example, first time offense, the person is a working person, maybe they're in their mid-forties. They've never had any other type of problem before. They've got a family. They support their family, and the District Attorney's Office. Judges Also Consider Prior History Before Sentencing a Person in a Criminal Case They get an evaluation showing they really don't have a drinking problem although they got stopped for this DWI. The District Attorney’s Office, these various factors, says, "Hey, look, this guy, I'm going to hold him to the DWI. I'm not going to consider any less severe charges," so now your client has a choice, go to trial or plead guilty. Let's negotiate the plea. Let's see what the judge will do. The judge will consider all of those factors in terms of determining whether to send the client to jail, whether to give the guy probation or whether to give him what's called a conditional discharge which says, "Over the next year you have to stay out of trouble but you don't have to report to a probation officer and things of that nature. Obviously, the background and the person's age and things of that nature are all very, very important. In fact, probably the most important thing the District Attorney's Office looks at when they decide what type of plea offer, if any, to make would be the defendant's criminal history. Do they have any prior criminal convictions? |