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If you or a family member has been arrested or charged with a crime under the law you are presumed innocent until proven guilty. The Law Office of Robinson Iglesias can help you assemble a first rate criminal defense team that will protect your rights through your case.
In order to make an arrest, a police officer must have a reason to believe (probable cause) that you committed a crime. If you are charged with a felony, the officer must file a felony complaint in the criminal court. If you are charged with a misdemeanor, the officer must file a misdemeanor complaint in the criminal court. If you are charged with a violation, you may not have been arrested, but a police officer may have brought you to a police station to give you a desk appearance ticket (“DAT”). A DAT requires you to appear in court at a later date. If you belief you were falsely arrested, without probable cause, contact the Law Office of Robinson Iglesias immediately. Your rights may have been violated and if so, you are entitled to compensation. Call now: 718 237-2222.
After an arrest you will be brought to central booking, usually within twenty four hours, where you will be fingerprinted and photographed. An officer of the court will prepare a rap sheet (fingerprint report) which shows your criminal history. Meanwhile, the prosecutor consults with the arresting officer and makes a decision regarding the charges against you. In addition, you will be interviewed by a representative of the Criminal Justice Agency (“CJA”). The purpose of the CJA interview is to assist the judge in deciding whether:
- To set bail
- Release you on your own recognizance (“ROR”)
- Hold you without bail (Remanded)
After the CJA interview, you will be ready to see the judge and learn the charges against you. This is called an arraignment. At the arraignment, your lawyer and the prosecutor may discuss the possibility of settling your case without the need of having a trial.
It is important to hire private counsel at the early stages of your case. The decisions of your lawyer can be instrumental in a dismissal.
At the arraignment, the prosecutor will ask the judge to keep you in jail (remand) or set bail. Your lawyer will be giving a chance to response to the prosecutors’ arguments. Your lawyer’s job is to persuade the judge that you are not a flight risk and that you are not a danger to the community. The judge will then make a determination as to bail.
If release, you must appear in court every time your case is calendared. In some instances your appearance may be waived. If you fail to appear the judge will issue a bench warrant and you will be arrested.
If you are charged with a felony your case will be sent to a court part where felony cases await action of the grand jury. In rare instances, a hearing upon the felony complaint (preliminary hearing) may be held to determine whether the prosecutor has enough evidence to hold you in jail while waiting for grand jury to hear your case.
If you are charged with a felony and are in jail (remanded) or unable to post bail, the prosecutor must present evidence in your case to the grand jury no later than 144 hours (6 days) after your arrest. If the prosecutor does not represent the evidence to the grand jury within this time, you will be released from jail ROR unless the prosecutor can show a judge why the case could not be presented sooner to the grand jury.
If you are charged with a misdemeanor and cannot post bail, you will remain in jail for approximately five days. If the prosecutor fails to provide the court with certain legal documents in support of the misdemeanor complaint which was filed by the police officer who arrested you, a judge will release you ROR.
Even if you are released from jail the case will continue against you and you have to make court appearances.
Grand jury proceedings are secret and not open to the public. Grand jury are made up of sixteen to twenty three people who listen to the evidence and decide whether there is enough evidence to indict and put you on trial for a felony. If the grand jury finds that there is enough evidence that you committed a crime, it may file an indictment.
You have the right to testify before the grand jury. Although your lawyer may go with you to the proceeding, he may remain silent during your testimony. Your lawyer may not address the grand jury or object to the prosecutor’s questions. If you want to speak with your lawyer before testifying, you may do so outside the grand jury room. If you decide to testify before the grand jury, you will probably be cross examined by the prosecutor. Any questions the grand jurors may have for you will be asked by the prosecutor. You may also ask that the grand jury hear witnesses willing to testify for you, although you are not allowed to be present in the grand jury room while other people testify.
If the grand jury does not vote to indict, you will be released from jail. However, if you are indicted your case will be transferred from criminal court to Supreme Court for another arraignment where you will be formally charged.
In the calendar part, plea bargaining may take place. In addition, your lawyer will have the chance to obtain information (discovery) about the prosecution’s case against you, and to inspect any physical evidence in the prosecutor’s possession. Your lawyer may also ask the judge if there was enough evidence presented by the prosecutor to the grand jury to allow for the filing of the indictment. In order to decide whether there was enough evidence, the judge will read the transcript of the grand jury proceeding. If the judge finds that there was not enough evidence showing that you committed the crime(s) charged, the judge will dismiss the charges in the indictment or reduce the charge to less serious offenses. In rare instances, an indictment may be dismissed in the interest of justice, but only where the judge decides that the prosecution of your case would be unjust.
Your lawyer may file motions asking that evidence against you be suppressed in a hearing. Some of these suppression hearings are called:
- Mapp hearing; to determine whether police legally seized property from you
- Huntley hearing; to determine whether police officers acted legally when you made statement to them and whether the statements were voluntary
- Wade hearing; to determine whether police officers used fair methods when they had witnesses identify you as having committed a crime
- Dunaway hearing; to determine whether police officers acted legally in arresting you
During the suppression hearing, testimony is taken from police officers and witnesses. Your lawyer will have a chance to cross examine the prosecution witnesses, and you will also be given a chance to testify and call witnesses. If the prosecutor does not prove that the officers acted legally, or if you, through the evidence you present, prove that the officers acted illegally, the judge will suppress the evidence. Once the judge suppresses the evidence the prosecutor will not be able to introduce that particular evidence at trial. If there is no other evidence against you then your lawyer can file a motion to dismiss.
The prosecutor must also bring your case to trial within a certain time period. Generally, the prosecutor must be ready to try the case within six (6) months of the filing of the felony complaint.
In a misdemeanor the prosecutor must be ready to try the case within ninety (90) days of filing the misdemeanor complaint.
If the prosecutor is not ready to try the case within the appropriate time period, the judge upon motion by your attorney must dismiss the case. However, if you are responsible for delays in bringing your case to trial, those periods are not included in the time period.
Once pre-trial hearings are finished your case will go to the jury part. In most cases, you may waive a trial by jury and your case may be decided by a judge. The prosecutor has the burden of proof; the prosecutor has to proof you are guilty beyond a reasonable doubt.
If you are charged with a felony, your lawyer may select twelve jurors and two or more alternate jurors. If you are charge with class “A” misdemeanor, six jurors and two or more alternate jurors. Class “B” misdemeanors and violations are tried before a judge.
In jury selection, the judge, prosecutor and your lawyer will ask the jury questions about whether or not he or she can be fair and impartial in the case. If any juror expresses bias or a belief that he or she cannot be fair, that person will be challenged for cause and will not be permitted to serve. In addition, your lawyer will have an opportunity to exclude certain people from the jury based on peremptory challenges. However jurors may not be challenged based on race, religion, ethnicity, gender or sexual orientation.
The judge will explain the trial procedure, the basic principles of law and the juror’s duties. The prosecutor then makes an opening statement to the jury. In the opening statement, the prosecutor tells the jury how he expects to prove the defendant committed the crime. Your lawyer is also giving a chance to make an opening statement. The prosecutor will than introduce evidence such as testimony of witness under oath and exhibits. Your lawyer may cross examine those who testify against you. After the prosecutor has presented the case against you, your lawyer will want to present a defense. You have an absolute right to testify if you want. However, you cannot be forced to testify. If you present a defense, the judge may allow the prosecutor to present additional evidence in a rebuttal. Your lawyer may surrebuttal afterwards with additional evidence.
After all the evidence is presented the case will move on to summation. This is where your lawyer and the prosecutor will make closing arguments to the jury. This is a critical part where each side tries to persuade the jury to convict or acquit. Following summation, the judge will explain the law to the jury as it applies to your case. The jury will then privately deliberate and eventually come out with a verdict.
If the jury decides the evidence presented does not prove beyond a reasonable doubt that you are guilty, the verdict will be not guilty. The verdict of the jury must be unanimous. In other words, all of the jurors must agree on the verdict. If the juries do not agree, this is called a hung jury. The judge will declare a mistrial and the prosecutor will decide whether or not to seek another trial in your case. However, once you are acquitted--found innocent of all the charges-you can never be tried again in State court for those same charges.
If you lose the trial you will be sentence. You may want to consider post trial motions. For example you can make a motion to set aside the verdict. If the judge sets aside the verdict, you will be entitled to a dismissal, a reduction of the charges, or a new trial. In addition, you have a right to appeal your conviction or sentence.
The Law Office of Robinson Iglesias was able to get a verdict vacated for a man who was wrongfully convicted 25 years ago. As a result, we were able to prevent his deportation and he is now able to remain in the United States with his family and is eligible for Citizenship. The Law Office of Robinson Iglesias is here to help. Call now; 718 237-2222.
Your Green Card is put at risk when you are alleged to have committed a crime. A guilty plea may have very serious immigration consequences such as deportation. For example, section 237(a)(2)(A)(i) of the Immigration Nationality Act (INA) provides for the removal of any alien who is convicted of a crime involving moral turpitude committed within five years after the date of admission, provided the crime is punishable by a sentence of imprisonment of 1 year or longer. To protect your rights and immigration status contact The Law Office of Robinson Iglesias immediately. 718 237-2222
American’s have a bill of rights that people envy around the world. These rights include the right not to be detained or falsely arrested, without probable cause. Protection from malicious prosecution and protection from excessive force while in government’s custody. If your rights are violated you may have a claim pursuant to state law and federal law under 42 U.S.C. § 1983.
The elements of a false arrest in New York are:
- Defendant intended to confine plaintiff
- Plaintiff was conscious of the confinement
- Plaintiff did not consent to the confinement and
- The confinement was not otherwise privileged or justified
The elements of malicious prosecution in New York are:
- The defendant initiated a criminal proceeding
- Proceeding terminated favorably to the plaintiff
- There was no probable cause for the criminal charge
- The defendant acted maliciously
An excessive force claim is typically brought under state common law assault and battery causes of action, and under § 1983 for violating the plaintiff’s Fourth Amendment right to be free from an unreasonable search and seizure. In order to establish an excessive force claim, a plaintiff must show that the force used by the officer was, in light of the facts and circumstances confronting him, “objectively unreasonable” under Fourth Amendment standards.
- Bruising Is Enough
A beating severe enough to leave marks is sufficient proof of a compensable injury. A judge found that $150,000 was a proper compensatory damage award for plaintiff who suffered a physical blow to the mouth that resulted in no bruise or cut, 29 hours in custody, the pendency of disorderly conduct and assault charges for six months, prior to their dismissal; and emotional distress. Atkins v. New York City, 143 F.3d 100, 104 (2d Cir. 1998).
- Hot Car
Leaving a suspect in a hot, unventilated squad car for a lengthy period of time can give rise to a Fourth Amendment violation. Burchett v. Kiefer, 310 F.3d 937, 945 (6th Cir. 2002). Evidence that the suspect was left in the back of the unventilated car for three hours, for example, is sufficient to state a claim of excessive force. Id. One-half hour in a hot car, however, generally is not. Glenn v. City of Tyler, 242 F.3d 307, 314 (5th Cir.2001).
- Drawn Firearm
In Kerman v. City of New York, 261 F.3d 229, 239-40 (2d Cir. 2001) the court found that officers’ name-calling and threat to “blow [arrestee’s] brains out” amounted to “verbal abuse [and] humiliation” which “might well be objectively unreasonable and therefore excessive”); Also in Jacobs v. City of Chicago, 215 F.3d 758, 774 (7th Cir.2000), it was held that holding a gun to a person's head and threatening to pull the trigger is a use of deadly force.”
- Tight Handcuffing
When analyzing a claim of excessive force based upon the use of handcuffs, in addition to evidence of the fact that the handcuffs were too tight and that the plaintiffs’ requests for them to be loosened went unanswered, the court may consider the degree of injury suffered by the Plaintiffs. Vogeler v. Colbath, WL 2482549, *9 -10 (S.D.N.Y.,2005). While tight handcuffing, alone, can give rise to a cause of action under § 1983, Simpson v. Saroff, 741 F. Supp. 1073, 1078 (S.D.N.Y. 1990), the plaintiffs must suffer some form of injury from the tight handcuffs in order for such a claim to be actionable. Id. (excessive force claim proper when tight handcuffing lead to bloody wrist and scarring). Though the Plaintiffs’ injuries need not be severe or permanent, some injury must be asserted. Esmont, 371 F. Supp 2d at 215.
- Unlawful Strip Searches Standard
In Shain v. Ellison, 273 F.3d 56 (2d Cir. 2001), the Second Circuit held that the Fourth
Amendment to the United States Constitution prohibits officials from performing strip
searches of pretrial detainees charged with misdemeanors or other lesser offenses unless there exists reasonable suspicion that the detainee is concealing a weapon or other contraband based on the crime charged, the particular characteristics of the arrestee, or the circumstances of the arrest. Dodge v. County of Orange, 2002 WL 1683917, *7 (S.D.N.Y.).