New York Criminal Procedures

Criminal Court Structure

The Criminal Court of New York City – this court handles misdemeanor offenses from arrest through trial. This court also handles arraignments felony cases. If an individual is arrested in New York City, he/she will be arraigned at one of the many criminal courts in New York City. See New York City Criminal Courts.

District Court – District courts are located in Nassau County and the five western towns of Suffolk County. These courts serve as trial courts for misdemeanors; they also handle felony arraignments. See Nassau County Court and Suffolk County Courts, both in the 10th Judicial District.

City Courts and Town and Village – These courts serve as trial courts for misdemeanors. The courts also handle felony arraignments. The courts are divided into Districts by City/County. The Town and Village Court judges do not have to be lawyers.

The Supreme Court  – The New York State Supreme Court is a statewide court that handles felony prosecutions.

Arrest and Trial Procedures in New York State


There are two ways that a case will be processed after an arrest.

First, the arrested individual can be held in jail until thearraignment. At arraignment the individual, who is now the “Defendant” is formally charged with the crime(s) he/she allegedly committed; also, at arraignment, bail is determined. If the individual is arrested and held, he/she can expect to wait approximately 24 hours for arraignment.

The second way a case will be processed is by way of a Desk Appearance Ticket. In the Desk Appearance Ticket procedure, the police release the individual before arraignment. The individual is issued a desk appearance ticket; the ticket mandates that the individual bring him/herself back to court, for arraignment, on a specific date.


In most cases Desk Appearance Tickets are issued formisdemeanors and E felony offenses.


At the arraignment the Defendant will be formally charged with the crime(s) with which he/she is accused of committing.
Also, the judge will make a determination of bail. Depending on the nature of the charge, the Defendant’s criminal record, and the Defendant’s history of defaults, the judge will release the Defendant on “personal recognizance,” his/her promise to return to court, OR the judge will set an amount of bail that must be posted for the individual to be released.


The purpose of bail is simply to ensure that the Defendant returns to court. If the judge sets cash bail that is not able to be met, then a licensed bail bondsman can be hired to post the bond. As a matter of practice, bondsmen generally require a 10% fee.


When a person is arrested for a felony in New York State, the individual must be indicted by a grand jury before the state is allowed to take a defendant to trial for a crime. An indictment is, more or less, a form of permission from the grand jury allowing the prosecutor to pursue a criminal case against the defendant.

A grand jury is a group of people (between 16 and 23) that hears evidence from a prosecutor and determines, based on the evidence presented, if there is probable cause to indict the defendant with a particular crime.

If the grand jury determines that there is probable cause then it will issue the indictment. It is very easy to indict.

If/when the defendant is indicted then he/she must be arraigned on the indictment in Supreme Court. Once the case is indicted it stays in Supreme Court.

Note — In most cases, if an individual is arrested and charged with a felony in New York, and that individual is unable to make bail, the defendant must be released within 6 days. This means that if the defendant does not get indicted within that time period then he/she will be released without bail, unless the judge aggress that there is a valid reason to give the State more time to indict.


Most New York criminal cases are disposed of by a plea bargain. A plea bargain is an agreement between the prosecutor and the defendant, through his or her attorney, regarding the disposition of the case. In other words, it is a resolution of the case by compromise and negotiation between both sides.

Individuals are likely to plea because the prosecutor’s case is strong; conversely the defendant’s likelihood of an acquittal is very low. The prosecutor’s are willing to plea because their resources are limited, and trials are time-consuming.

Factors that are likely to help an individual obtain a satisfactory plea are: a non-existent or short criminal record, reputation in the community, compliance with law enforcement, courtroom decorum, amongst others.

New York Criminal Trials

Most cases do not go to trial. Only about 10% of criminal cases end by trial. In the event that a case goes to trial, the case follows certain steps:

Preliminary Motions (aka, motions in limine)

Both sides often bring motions before the court regarding certain matters, most of which are evidentiary. For instance, a defense attorney will want to make sure that the prosecution’s witnesses are sequestered (kept out of the courtroom while other witnesses testify). Additionally, a defense attorney will want to keep some evidence from being presented. The attorney will file these motions and the judge will hear argument on them.

Jury Selection (aka, voir dire)

The jury will be selected from a large pool of potential jurors. After the potential jurors are seated, the Judge usually introduces everyone by name, reads a list of potential witnesses, and reads at least a summary of the charges. Any jurors with any knowledge of the people involved or the case itself will be required to raise their hands.

After this the Judge makes a few more preliminary remarks. Next, a jury is empanelled and the judge, the prosecutor and defense attorney, in that particular order) ask the jurors questions (this is called voir dire). The prosecutor and defense attorney then attempt to have unfavorable taken off the jury.

The jury selection process is fairly complicated and difficult to summarize in general. Your lawyer can go over the jury selection process when you face this step in your New York criminal trial.

Opening Statements

After the jury is selected, the attorneys make opening statements. Opening statements are essentially “roadmaps” of each side’s theory of the case. The prosecutor will explain to the jury that evidence he/she introduces supports a finding of Guilt. The defense attorney does the same, except he/she spins the evidence to suggest that there is not enough to support a guilty finding.

As a matter of law, each side may not be argumentative in making the statement. Additionally, opening statements must not mention any evidence that will not be introduced.

An opening statement is incredibly important for the defendant; it is the first time in the trial where the jury hears information that doesn’t cut against the accused. Up until this point it has been one-sided; the jury has heard the complaint or indictment read once or twice, and they have heard the prosecutor’s statement. This stage is one where a defense attorney’s rhetorical skills are most important.

The State’s Case

After the opening statement the State of New York puts forth its case. Most of the evidence introduced comes through the testimony of live witnesses. The prosecutor asks questions of each witness. This is called “direct examination.” The answers given by the witnesses are evidence. Through direct examination the state builds its case; it needs enough evidence to prove the defendant’s guilt beyond a reasonable doubt.

The defense attorney then cross-examines the witnesses. Many attorneys feel that cross-examination is the most important part of a trial. Cross-examination gives the defense the opportunity to weaken the State’s case.

The Balloon Analogy:

An individual has a limp balloon. This airless balloon is the State’s case. The balloon has no air because the defendant is presumed innocent. The state blows helium into the balloon by introducing evidence; the more helium in the balloon, the stronger the State’s case. A balloon that is full enough to float away is a case that has been proven beyond a reasonable doubt.

The defense’s job is to poke holes in the balloon; to take the helium out of the balloon and render it flightless. The defense pokes holes in the State’s case through cross-examination of the State’s witnesses. The defense does so by such tactics as: impeaching the witness’ credibility, questioning the witness’ memory, suggesting bias, etc.

The Defense’s Case

After the Prosecution finishes, defense has the option of putting on its own case. In many cases, the defense will choose not to call any witnesses. The decision to call witnesses or introduce evidence depends on the individual case.

It is often dangerous to call defense witnesses because doing so allows the prosecutor to cross-examine the witness. This can be devastating to a defendant’s case, particularly if the defendant takes the stand.

Closing Arguments

After all the evidence has been introduced the attorneys make closing arguments. Closing arguments are often the most dramatic and theatrical part of a trial. Closing arguments give the attorneys the opportunity summarize the case and make the evidence fit into each side’s particular theory.

Though no evidence is being introduced, the rhetoric from each side is presented with the intention of swaying the jury.

Judge’s Charge

After both sides have made their closing arguments, the judge explains the law to the jury. This is called the “charge.” The judge “charges” the jury about general principles of law, such as “reasonable doubt” and the specific law about the crimes with which the defendant is charged.

The charge to the jury is filled with legalese and much of the language is lost of the jurors, most of whom are not lawyers. Though incredibly important, it is boring to most people who sit on the jury.


After the judge charges the jury, the jury deliberates. During deliberations the jury is supposed to consider all the evidence then render a verdict of “Guilty” or “Not Guilty.” In New York the verdict must be unanimous. If a jury is unable to reach a verdict then the judge will declare a mistrial. After a mistrial the State may then try the case again, to a different jury.


If the defendant is found Not Guilty, he or she is free to leave. If the defendant is found Guilty, the case is usually continued for sentencing. See my New York criminal sentences page.

Free Consultation on New York Criminal Procedures

If you have questions about criminal charges you are facing in New York, contact us for a free legal defense consultation, and we’ll be able to answer your questions.

(888) 435-4744

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