The Police and the Arrest

What is the function of the police?

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In addition to ensuring the security of the citizenry and using the means at their disposal to prevent crimes, the police investigate crimes and arrest individuals who are suspected of committing crimes.

What is a lawful arrest?

Most criminal actions begin when a person is taken into police custody.  An arrest is lawful when the police officer has probable cause to believe that the person being arrested has committed a particular offense.

What happens when someone is arrested?

Once the defendant is in custody, he may be identified by the victim or witnesses, and he may make a statement to the police.  He will always be searched, and the officers are entitled to seize any contraband or evidence found during the search.  Evidence includes the proceeds of the crime, any tools used to commit the crime, distinctive clothing, or other items that help to connect the defendant with the crime, the victim or with the scene of the crime.  The arresting officer takes seized property to be vouchered by the NYPD Property Clerk’s Division.

Once transported to the precinct, the defendant will be fingerprinted.  The arresting officer also prepares the arrest report, the complaint report, and other police forms at this time.

For some less serious crimes, the arresting officer may give the defendant a Desk Appearance Ticket (DAT).  A DAT releases a defendant from custody before arraignment and requires the defendant to appear for arraignment on a specified date.  If the defendant does not meet the criteria for a DAT, he will be taken from the precinct to Central Booking for further processing. Meanwhile, an Assistant District Attorney speaks with the arresting Police Officer about the case.
What types of charges are there in New York?

In New York there are three major classes of offenses for which a person may be prosecuted. They are violations, misdemeanors and felonies.  Some are defined in the Penal Law of New York State, and others can be found in statutes such as the Vehicle and Traffic Law or in local ordinances, such as the New York City Administrative Code.

A violation is an offense that carries the lowest sanction, and is not defined as a crime.  The maximum term of imprisonment is fifteen days. Examples of violations are unlawful possession of marijuana, drinking alcohol in public, harassment, and disorderly conduct.

A misdemeanor is the less serious crime.  It is higher than a violation.  Misdemeanors are divided into two classes: “A” and “B.”  The maximum terms of imprisonment are one year in county jail for an “A” misdemeanor and three months in jail for a “B” misdemeanor.  Examples of misdemeanors are shoplifting, trespassing in a building, and jumping a turnstile.

A felony is the more serious crime.  Felonies are crimes for which more than one year of imprisonment may be imposed.  Felonies are divided into five classes: “A” through “E.” An “A” felony is the most serious, an “E” felony is the least serious.  Examples of felonies are robbery, burglary, grand larceny, sale of narcotics, and murder.


The District Attorney’s Office

What does the District Attorney’s office do when someone is arrested?

After the police make an arrest, an Assistant District Attorney will review the facts with the arresting officer and sometimes with the complainant (the suspect) or other witnesses.  The ADA will then determine the sufficiency of the evidence to support the charges originally brought by the police, determine the final charges to be brought against the suspect, and draft the formal criminal complaint upon which the defendant will be prosecuted.  The complaint must allege specific facts providing probable cause to believe that the person charged committed specific offenses.

In some instances, after evaluating the evidence, the District Attorney’s Office will decline to prosecute a case and drop the charges against the defendant. Arrests made without probable cause, a substantial lack of evidence or a poorly written police report (for a low-level crime) could be the basis for declining to prosecute a case.

A case is ready for arraignment when the complaint has been filed, the defendant has been interviewed by the attorney, and the defendant’s criminal history is available.

What is the function of the District Attorney?

There are five District Attorneys’ Offices in New York City, one for each of the city’s five boroughs. The District Attorneys’ Offices represent the People of the State of New York in bringing charges against a suspect in a court of law.  Victims of crimes do not bring charges. They are witnesses for the prosecution, not the prosecutors.

The New York County District Attorney’s Office has the responsibility and authority to investigate and prosecute crimes in the borough of Manhattan. Cyrus R. Vance, Jr, is the District Attorney. The approximately 550 attorneys who work in his office are called Assistant District Attorneys (ADAs).

The Kings County District Attorney’s Office investigates and prosecutes crimes in the borough of Brooklyn. Kenneth Thompson is the District Attorney of Kings County (Brooklyn); Robert Johnson is the District Attorney of the Bronx; Richard Brown is the District Attorney of Queens. Daniel Donovan is the District Attorney of the Richmond County (Staten Island). In New York, DA’s are elected by the people of that borough.


New York City Criminal Court

What is the function of the Courts?

The Courts are charged with ensuring the fair application of the law. Judges preside over all legal proceedings in court.

Almost all Manhattan cases—felonies, misdemeanors, and violations—are arraigned in the Criminal Court of the City of New York.  Arraignment Parts are staffed in Criminal Court seven days a week, 365 days a year, both day and night. After arraignment, Criminal Court handles only misdemeanors and violations.  The Supreme Court of the State of New York handles felony cases after indictment.  (Note: in New York State, the highest appellate court is the Court of Appeals, not, as one might expect from the name, the Supreme Court.)

What is an arraignment?

In New York City, defendants are usually brought before a judge of the Criminal Court of the City of New York for arraignment within 24 hours of arrest.  Once the case has been docketed by the Court and the complaint and the defendant’s criminal history are ready, the defendant is produced for arraignment in Criminal Court.

At arraignment in Criminal Court, the defendant is informed of the charges against him and a bail determination is made.  He is also given various notices, including: whether the case will be considered by a Grand Jury; whether he made statements to the police; and whether there was an identification by witnesses.  If the defendant cannot afford an attorney or obtain one in time, one is appointed prior to the arraignment.

If the defendant is charged with a violation or a misdemeanor, he may plead guilty at arraignment.  In some cases, a defendant charged with a felony is offered a misdemeanor plea at arraignment.  Many defendants plead guilty at arraignments, though guilty pleas also can be entered at later stages in the case. The defendant can plead guilty to all of the charges in the complaint, or to less than all of the charges or to a lesser charge when offered by the Assistant District Attorney.  If a defendant pleads guilty, the judge delivers the sentence.  With a felony, where there is no misdemeanor offer, a defendant is not asked to enter a plea at criminal court arraignment.

What is Bail and how is it set?

Bail is collateral, in the form of cash or bond, which must be posted by the defendant to ensure that he or she returns to court on a future date.  If appropriate, the ADA in the Arraignment Part will request that bail be set and give reasons for the bail conditions requested. Once the defense counsel responds, the court will set the bail amount.  If the defendant or someone on his or her behalf posts the amount of money or bond required to make bail, he or she will be released.  A defendant can also be released on his own recognizance (“ROR’d”) if the court feels that bail is unnecessary.  If the case is particularly serious, the court may remand the defendant, who is then held in custody without bail.

What happens to a misdemeanor or violation case after arraignment?

If the defendant does not plead guilty, misdemeanor and violation cases are adjourned from arraignments into calendar parts in Criminal Court.  If bail is set and the defendant cannot post the bail, the New York City Department of Correction detains him in jail until the next court date. Defendants who are released on their own recognizance or who posted bail must appear in court on the appointed date.  If a defendant fails to appear, the Judge will issue a bench warrant for the defendant’s arrest.

Once a defendant has been arraigned, his case does not go straight to trial.  First, a number of legal issues must be addressed.  In the calendar part, legal motions and other pretrial matters are addressed.

Defendants may choose to enter a guilty plea in the calendar part.

What happens to a felony case after arraignment?

Felonies are crimes for which more than one year of imprisonment may be imposed.  In a few felony cases, plea offers may be made at Criminal Court arraignment.  Otherwise, the Judge presiding at Criminal Court arraignments will adjourn the case to Part F, pending action by a Grand Jury.  The case will remain in Part F for all proceedings prior to indictment or, if appropriate, a misdemeanor disposition.

The Grand Jury

What is a Grand Jury?

Under New York State law, unless the defendant consents, all felony cases must be presented to the Grand Jury.  Grand Juries are empowered to hear evidence presented by prosecutors, and to take various actions regarding the evidence and legal charges they are to consider.  The Grand Jury can also conduct independent investigations.  Grand Juries sit for a term of approximately one month.  Each Grand Jury is comprised of 23 citizens who hear and examine evidence concerning offenses and take action based on such evidence.

What Can a Grand Jury Do?

The Grand Jury can vote an indictment (a written statement charging an individual with the commission of a felony), direct the filing of a prosecutor’s information (which contains non-felony charges), direct the removal of a case to Family Court, or issue a report.  For the first three actions, the Grand Jury must determine that the evidence is legally sufficient and that it provides reasonable cause to believe that the defendant has committed the crime.  Otherwise, the Grand Jury dismisses the matter.  If the Grand Jury votes an indictment, the case is adjourned to a Supreme Court Arraignment Part.

Are Grand Jury proceedings open to the public?

No. Grand Jury proceedings are secret and only specifically-authorized persons can be present.  In addition to the Assistant District Attorney and the Grand Jurors, there is a stenographer and a Grand Jury Warden, who oversees administrative aspects of the proceedings.  The ADA is the legal adviser of the Grand Jury and examines all witnesses who testify before it, including any defendant or defense witnesses.  At least 16 Grand Jurors must be present for any Grand Jury to hear evidence and take action.  Furthermore, at least 12 of the members who have heard the evidence must agree before any affirmative action can be taken.

New York State Supreme Court

What happens after a Grand Jury votes an indictment?

Once a defendant has been indicted for a felony charge and the indictment has been filed, he or she is arraigned on the indictment in Supreme Court. Criminal Court no longer has jurisdiction over a defendant once an indictment has been filed.

At Supreme Court arraignment, the prosecutor gives the defendant a copy of the indictment and the Voluntary Disclosure Form, which includes information about the case, such as the date, time and place of the crime, and of the arrest.  The defendant is also informed about the substance of his statements and of his identification.  The defendant then enters a plea of guilty or not guilty to the indictment.  Bail may be reviewed and different conditions may be set.

Can a defendant plead guilty to a felony charge at Supreme Court Arraignment?

Yes. The majority of cases do not go to trial.  The defendant can plead to all of the charges in the indictment, or to fewer or lesser charges offered by the Assistant District Attorney.  Unless a sentence is negotiated as part of a plea agreement, the judge will determine the defendant’s sentence based on the facts of the case, the defendant’s prior criminal history, and the laws governing permissible sentences.

What happens if a defendant pleads not guilty at Supreme Court Arraignment?

After a Grand Jury indictment has been voted and the defendant has been arraigned in Supreme Court, his case does not go straight to trial.  Instead, the case is adjourned to a Supreme Court Calendar Part.  In the Supreme Court Calendar Part, attorneys file motions to address a number of legal issues and defendants can plead guilty.

Numerous legal motions and court hearings can occur before a trial in both Criminal Court and Supreme Court, some of which are described below.

  • Discovery: Prior to trial, the defendant presents motions to the court to obtain information and documents and to examine the physical evidence.  The defendant is entitled to a copy of his statement and, if applicable, to those of co-defendants being tried jointly.  This includes any statements made before a Grand Jury.  Photographs, drawings, scientific reports, or evidence seized from the defendant must also be made available.
  • Motions to Dismiss: The defendant can move to dismiss the complaint or indictment as being technically defective, for not being supported by sufficient evidence, in the interest of justice, or because he was denied a speedy trial.
  • Motions to Suppress Evidence: Before trial, the defendant can move to prohibit the introduction of evidence at trial on the grounds that it was unlawfully or improperly obtained. Suppression motions most commonly seek to prohibit the introduction of identifications, evidence seized from the defendant, and the defendant’s statements.
  • Admissibility of Identification EvidenceIdentification evidence, for example a line-up, is examined during a Wade hearing.  At issue is whether the police conduct during the identification procedure was proper.  If the judge finds that the police acted improperly, he can decide if the witness’ “independent basis” for the identification is strong enough to withstand the pressures of police impropriety.  If the independent basis for the identification is weak or non-existent, the witness is not permitted to identify the defendant at trial.
  • Admissibility of Statements Made by the Defendant: Statement or admission evidence is litigated in a Huntley hearing.  The issues include whether the defendant was given his Miranda warnings, whether those warnings were complete, and whether his decision to confess to the police was knowing, intelligent, and voluntary.
  • Admissibility of Physical Evidence Seized from the Defendant: The admissibility of physical evidence seized from the defendant is litigated in a Mapp hearing.  The main question is whether certain physical evidence seized from the defendant can be introduced at trial.  Issues include an officer’s probable cause to arrest the defendant, the propriety of his stop or frisk of the defendant, and the pertinent details surrounding the seizure of the evidence.
  • Sandoval Motion: A Sandoval motion is made just before the trial begins.  In such a motion, the defendant seeks to prevent the ADA from cross-examining him on any prior convictions or bad acts should the defendant choose to testify at trial.

The Trial

What is a Trial?

A criminal trial is a formal presentation of evidence before a court of law or a jury to determine whether a defendant is guilty beyond a reasonable doubt of the criminal charges brought against him.  Trials may be conducted for felonies, misdemeanors, or violations. However, relatively few misdemeanor or violation cases proceed to trial.

How is a jury selected?

Voir Dire is the name given to jury selection.  In Criminal Court, 6 jurors are chosen and 1 or 2 alternates.  In Supreme Court, 12 jurors and 2 to 4 alternates are chosen.  When prospective jurors are brought to the courtroom, the judge will explain certain principles of law, and question the prospective jurors.  The Assistant District Attorney (ADA) then questions the jurors.  After the ADA has finished, the defense attorney asks further questions.  Out of earshot of the jury and following established rules, the attorneys will excuse jurors they believe should not sit on the case.  The remaining jurors are sworn.  The process continues until the full number of jurors and alternates is chosen.

What is Rosario material?

Rosario material includes any previously recorded statements of a witness who will testify at trial.  Police forms that summarize a witness’ statement, a signed statement by a witness, and paperwork prepared by a testifying police officer are examples of Rosario materials.  Rosario material must be given to the defense before the opening statements.

After Jury Selection, How Does a Trial Proceed?

There are seven steps in a trial, which proceed in the following order:

  1. Opening Statement: At the beginning of the trial, the Assistant District Attorney makes an opening statement.  A defense attorney may make an opening statement, but is not required to do so.  In an opening, the attorney explains what he or she contends the evidence will show at trial.
  1. Direct Case: The direct case brought by the District Attorney’s Office involves the calling of witnesses and the introduction of physical objects or records into evidence.  The ADA asks questions of each witness.  The defense attorney then asks questions on cross-examination.  The ADA may ask clarifying questions on redirect.  This process continues until all of the prosecution’s witnesses on the direct case have testified.  At the end of the direct case the defendant may move to dismiss certain charges on the theory that the trial evidence is insufficient to establish the crime(s) charged.
  2. Defense Case: The defense case may involve many witnesses, including the defendant, or there may be no witnesses at all.  The defendant is not required to present any evidence, or to testify at trial.  If defense witnesses are called, the ADA may cross-examine each witness.
  3. Rebuttal: The District Attorney’s Office may have a rebuttal case, and if so, defense counsel may cross-examine the rebuttal witnesses.
  4. Summation: The defense is the first to deliver a summation, or concluding arguments.  In its summation, the defense will usually question the evidence presented by the District Attorney’s Office and generally try to establish that the case has not been proven beyond a reasonable doubt.  The prosecution’s summation explains the evidence presented, counters defense arguments into perspective, and affirmatively asserts reasons for finding the defendant guilty beyond a reasonable doubt.
  5. Jury Charge: The Court then instructs the jury on the law and explains legal concepts such as the presumption of innocence, the burden of proof, and the elements of each crime charged.  After the judge’s instructions, the ADA and the defense attorney are given an opportunity to ask for additional instructions or to object to the legal instructions already given.
  6. Deliberation: Jury deliberation begins after the judge’s legal instructions and may last any length of time.  During deliberation the jury may ask to review evidence introduced at trial or to have instructions or testimony re-read.  The jury may find the defendant guilty, not guilty, or may be unable to agree.  A jury that cannot reach a unanimous verdict is called a hung jury. When there is a hung jury, the case may be retried.  A not guilty verdict means that the jury concluded that the case was not proven beyond a reasonable doubt; it does not always mean that a defendant is innocent.


What types of sentences may be imposed if a person is found guilty?

After a jury renders a guilty verdict or after a defendant pleads guilty, a defendant will be sentenced.  A judge may sentence a defendant to a term of imprisonment, a term of probation, a conditional discharge, an unconditional discharge, or impose a fine.

Sentencing is governed by statutes that indicate those crimes for which imprisonment is mandatory and the permissible minimums and maximums for each class of crime.  To determine the sentence within the ranges permitted by law, the judge examines the crime and the defendant’s level of participation, his background, and history.

Probation may be given when a jail term is not considered necessary for the protection of society.  The court may decide that probation can provide needed training, guidance, or assistance to the defendant and can add conditions to the sentence of probation to reflect those needs.

A conditional discharge is imposed when the court believes that neither jail nor probation is appropriate.  The court can require the defendant to lead a law-abiding life, to participate in a specific program, or to avoid contact with certain people.

A sentence of an unconditional discharge is imposed when the judge does not believe that it would be helpful to impose any conditions on the defendant.

A fine may be imposed in addition to the other types of sentences, or it can be the only sentence imposed.

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