FAQs

Before the police question you, they must tell you (1) of your right to remain silent; (2) that any statement you make may be used as evidence against you; and (3) that you have a right to first speak with a lawyer and, if you wish, to have a lawyer present when you are being questioned.

The police must also tell you that if you want to speak with a lawyer before questioning and you cannot afford a lawyer, one will be assigned without cost to you. The questioning must stop until you have a lawyer.

If you agree to allow the police to question you and they begin questioning you, you may still change your mind and ask for a lawyer before the police continue the questioning.

(e) If you already have a lawyer in the same case or in another case and ask for him, you have a right to have the lawyer present before being placed in a police lineup.

Arrest records 

When you are arrested for felonies or misdemeanors, a record is made of your arrest. You will be fingerprinted and photographed. If you are found not guilty or the case is dismissed, your arrest record must be sealed and your fingerprints and photographs returned to you or destroyed.

If personal property or money is taken from you, you must be given a receipt showing the amount of money or the kind of property taken.

Once you are arrested and booked, you must be taken to court “without unnecessary delay.“ If the court is not then open, you may be held in custody until it is open.

Your right to have a lawyer is a fundamental one at every stage of a criminal proceeding. 

If you appear in court without a lawyer,
the judge must allow you a “reasonable time” to find one before proceeding with the case, which usually means a few days. In addition, the judge must tell you of your right to use the telephone or to send a letter free of charge in order to get a lawyer and to tell a relative about your arrest.

If you do not have a lawyer at the time of your first appearance before the judge, you have the right to insist that the court assign you an attorney if you cannot afford one. If you have waived your right to counsel earlier and you now decide you want one, you may exercise your right at this stage.

Depending on the local plan in effect for providing a lawyer in such cases, you may get a private attorney, or you may be assigned someone from a legal aid society. A public defender will be assigned if your community has one.

You have been the victim of a crime. Perhaps you were injured or had your money or property stolen. An arrest has been made and the police have told you that the case will be going to court. Now what? What is your role from here on? Where can you get help? What rights do you have as a crime victim?

The victim’s role in a criminal prosecution 

Initially, it is important to understand the part the victim plays in a criminal case. A criminal prosecution is not the same as a civil suit. In a civil suit the injured party brings a court action for money damages directly against the person who caused the injury. In a criminal prosecution charges can only be brought by the district attorney’s office, not by the victim. In a criminal case the victim’s testimony is part of the evidence that the district attorney (also called the prosecutor) needs to convict the arrested defendant. The victim’s testimony may not even be the most important evidence in the case. For instance, if you had your handbag or briefcase snatched out of your hand but did not see who did it and the defendant was only caught because a bystander witnessed the crime and identified the defendant to the police, then the bystander’s testimony is the most important evidence in the case, not your testimony. Also, it is up to the district attorney to decide if enough evidence exists to charge anyone with a crime and, if so, what the appropriate charge should be. This is to prevent unprovable or unfair charges from being brought.

Victim’s right to be consulted 

Even though a victim cannot order the district attorney to prosecute or not prosecute, the victim of a felony offense should be consulted with by the district attorney before the prosecutor decides to either dismiss the case or allow the defendant to plead guilty or take the case to trial. If the victim is a child or a homicide victim, the district attorney should consult with the victim’s family.

Victim’s limited right to mediation as an alternative to court 

If the victim does not want to pursue a prosecution, the law provides that, except for certain felonies, the court case can be adjourned in contemplation of dismissal if the victim wants to meet with the defendant to try to talk out their disagreement before a mediator at a dispute resolution center. This generally occurs only where the victim and the defendant know each other well. The district attorney must consent to this.

Victim’s right to information about the case 

A victim is entitled to free copies of police reports documenting the crime. The victim also has a right to be kept informed of judicial proceedings in the case such as the initial appearance of the accused before a judge and whether the judge set bail or released the defendant.

If the defendant is released on bail or escapes from jail the victim must be notified by the Department of Corrections. When a defendant, who has been convicted of committing a violent felony offense, is sentenced to serve time in a state prison, the victim can request to be notified of the escape, discharge or parole of the defendant from prison. The district attorney must provide the victim or a family member with a “request to be notified” form prior to defendant’s sentencing. When an escaped inmate is recaptured, the victim must be notified within 48 hours
by prison authorities.

In addition to keeping the victim informed about court proceedings, the district attorney should provide information to the victim about available victim protection, compensation and counseling programs whenever appropriate.

Victim’s right to be free from harassment and intimidation 

A victim has a right not to be threatened or intimidated; witness intimidation is a crime. Anyone who attempts to stop a victim or a witness from testifying by assaulting them, damaging his or her property or threatening to hurt the victim or a witness is guilty of a felony. Also, if the defendant is out of jail on bail, the bail can be revoked.

When the victim must appear to testify in court, the district attorney should provide a secure waiting area where possible, so that the victim need not have any contact with the defendant or the defendant’s family or friends.

The judge has the power to issue an order of protection to the victim to stop the defendant from having any contact with the victim. If the defendant violates the order an arrest can be made or if out on bail the judge can revoke the bail. An order of protection can be issued to protect the victim for a period of time after the defendant has been convicted or has been released from prison.

Finally, in those rare cases where a victim’s life may be in danger, the victim may be able to get temporary help from the district attorney to relocate under a witness protection program.

Victim’s right to have stolen property returned 

Where the crime involves a theft of the victim’s property and the police recover the stolen property, the victim has a right to a prompt return of the property unless the district attorney needs to hold onto the property as evidence in the case. Once the case is finished the property must be returned to the victim.

A victim is entitled to free replacement of his or her driver’s license, registration or license plates stolen during the commission of a crime.

Victim’s right to financial assistance and continued employment 

If the victim requests it, law enforcement agencies or the district attorney must contact the victim’s employer and explain the need for the victim to miss work because the victim must testify in the grand jury or in court. Also, if as a result of the crime the victim suffers a financial loss (such as a theft of money or an injury that prevents the victim from working), law enforcement agencies or the district attorney, if the victim requests it, should contact the victim’s employer or anyone the victim owes money to and explain that because of the crime the victim is unable to work or to meet all of his or her financial obligations.

It is against the law for an employer to fire or punish a victim or a witness if that person could not be at work because he or she had to testify in court.

Victim’s right to be heard at sentencing and parole proceedings 

If a defendant is being sentenced for a felony, the victim has the right to make a statement at the time of sentencing. In order to be allowed this opportunity, the victim must make a request to the court at least ten days prior to the date of sentencing. It is suggested that the victim signal an intention to speak at sentencing by sending a written notice to the judge. Assistance in this regard can usually be provided by the prosecutor.

Where the defendant has been charged with a homicide, or where the victim is a child, or is so mentally or physically disabled as to make it impractical for them to appear in court, a member of the victim’s family or the victim’s legal guardian may make a statement on behalf of the victim.

Additionally, a judge generally cannot pronounce sentence upon a defendant convicted of a felony, or sentence a defendant convicted of any crime to probation, until the judge has received a pre-sentence investigation report prepared by the Probation Department. This report should include information about any injury or economic loss suffered by the victim and the victim’s views as to what type of punishment is appropriate. In the case of a homicide, or if the victim is unable to assist in the preparation of the victim impact statement, this information may be acquired from the victim’s family. A copy of this victim impact statement must be given to the victim or the victim’s family by the prosecutor before the defendant is sentenced.

If the crime was committed by a youth and the youth has been adjudged a juvenile delinquent in Family Court, a victim impact statement must also be prepared for the judge to consider in determining whether the youth needs supervision, treatment or confinement.

Where the defendant has been sentenced to a term of imprisonment, the victim has the right to be notified of any parole release decision involving the defendant. The victim can write to the Parole Board members to express his or her opinion as to whether the defendant should be released on parole.

Victim’s right to restitution from the defendant at the judge’s discretion 

When a judge is deciding what sentence to impose
on a convicted defendant, the judge must consider forcing the defendant to make restitution to the victim as part of the sentence. The judge can order the defendant to pay money to the victim as a consequence of the crime (such as reimbursement for the victim’s medical expenses). When a judge orders restitution, the victim does not have to deal directly with the defendant. Payments are made by the defendant to a public agency which transfers the money to the victim.

The judge may order the defendant to pay a lump sum amount or to make payments over a period of time. The judge can order the defendant to make restitution to the victim even when the judge also sentences the defendant to a term of imprisonment or a fine. If the defendant is sent to prison, the restitution will be collected from the inmate’s earnings while in prison and while on parole.

The fact that the judge has ordered the defendant to make restitution to the victim as part of the defendant’s criminal sentence does not prevent the victim from filing a civil suit against the defendant for damages in excess of the amount the defendant has paid in restitution.

Special rights of children and victims of domestic violence 

Under New York law, special consideration must be given to child crime victims by all agencies throughout the criminal justice process. Since testifying before a group of strangers can be a particularly frightening experience for a child, special procedures are available to try to lessen the trauma of testifying. When a child who is 12 years old or younger must testify before a grand jury regarding a sexual offense, a homicide or the abandonment or endangerment of the child, the district attorney can allow a social worker, psychologist or other professional to be present in the grand jury room to provide emotional support to the child. The district attorney may also videotape a child’s testimony and show the videotape to the grand jury instead of having the child appear in person before the grand jurors. The taping can be done at the child’s home or anywhere else the child feels secure.

RUSSO AND PEDRANGHELU

PHONE

(516) 822-1600

Address

16 East Old Country Road
Hicksville, New York 1180

FAX

(516) 822-6160
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