The Process Of Indictment In The State Of New York

Interviewer: What does it mean to be indicted?

Glen Malia: An indictment is interesting. An indictment, which the news media always besmirches everyone's reputation when they've been indicted. An indictment in New York State is merely a formal felony charge. New York State … and I briefly touched on this. We haven't gone into yet. Crime is broken down into serious crimes which are felonies and are punished by state prison sentences. They're broken down into A, B, C, D and E Felonies. Then you have less serious. Felonies can only be tried. You can only have a trial on a felony in a county court or Supreme Court, an upper level court. Then you have misdemeanors, which are less serious crimes. The maximum sentence on a misdemeanor is one year in county jail. You can't go to state prison, and those are broken down into the A and B category, and those trials, outside of New York City, would either be tried in a city court or a town or a village court.

In a Felony Charge , a Person Cannot Got to Trial Unless There is an Indictment

When there's a felony charge, in New York State a person doesn't go to trial on a felony unless and until there's an indictment. Technically, what the indictment is just the formal felony charge that a defendant is going to trial on. What happens is a grand jury, which is up to 24 people, 18 and 24 people, are presented with evidence by the District Attorney's Office, and that grand jury has to vote as to whether or not there is enough evidence to go to trial on. It's basically, what they call it, is there probable cause to believe that a felony was committed and probable cause to believe this defendant committed this felony, well below the standard of proof at trial, which is beyond a reasonable doubt.

A Defendant Can Testify in Front of a Grand Jury but They’d Have to Waive Immunity so Anything They Say May Be Used Against Them

It's merely just a finding by the grand jury, and the interesting thing is the defendant, who may be charged with the felony, if he or she wants to testify before the grand jury, has to waive immunity so anything they say could be used against them, number one. The defendant has the right to testify but would have to give up the right to and anything can be used against them. Number two is the defendant does not have the automatic right to call witnesses to testify to present his side of the case to the grand jury and a District Attorney's Office does not have to call witnesses who the defendant may request that they call. Basically, you have a one-sided presentation done by the District Attorney's Office, all the evidence and asking the grand jury to find that there's sufficient evidence for this defendant to go to trial or probable cause that this defendant should go to trial, and that's what the indictment is. The indictment is the formal charges, all the charges, that you then go to trial on.

New York State Does Not Have an Expungement Statute

Interviewer: What about expungements? Can someone get something expunged?

Glen Malia: New York State does not have an expungement statute. The closest thing that we'd be talking about would be having a case sealed, and there's various ways of having a case sealed. Some cases are automatically sealed, and some cases you have to make an application.  The cases right now that you can go back and try to get sealed because of recent changes within the last five or so years under the New York drug laws, old drug convictions, you may be able to get sealed, but generally speaking, there is no provision for adult cases to be sealed or to be expunged. In New York State if you're under the age of 19 at the time you are arrested, you may be eligible or it may be mandatory depending upon what your background is and what the case is for you to receive youthful offender treatment, and if you get youthful offender treatment, the case is, in fact, sealed.

For a Felony Charge a Court May be Asked to Grant a Certificate of Relief from Civil Disability

Also, if you are charged with a misdemeanor or even a felony and you plead guilty to a lower level violation, that can have a sealing. That charge would be sealed. But outside those circumstances there really is very little opportunity in New York State to have any files sealed or expunged. Going back to the expungement thing, though, what I frequently recommend to a client, what I frequently advise clients is that their only real alternative sometimes is to go to court and ask that the court, if it's a felony charge, grant what they call a Certificate of Relief from Civil Disability. If you get convicted of a felony, there's certain things you're not allowed to do anymore, but the court can remove those disabilities. That's about the closest thing you can get after the fact or even at sentencing if you're an adult on a felony conviction unless it falls within the small category of drug cases that they can seal.

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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