Criminal Defense Glossary - Law Firm Sarisohn Law Partners LLP Attorneys Commack, New York

Index:

Accusatory Instrument - An accusatory instrument is a written accusation filed with the court charging the defendant with one or more offenses.

A.D.A. - The lawyer representing the government in prosecuting the case. An A.D.A. is also known as an Assistant District Attorney, the People or the Prosecutor.

Adjournment - A postponement.

Arraignment - An arraignment is the first court appearance for a defendant. The judge will advise the defendant of the charges and certain rights that apply, including the right to be represented by an attorney. The accused is entitled to have the charges read to him/her and receive a copy of them. The judge may set bail.

Bail - The purpose of bail is to insure the defendant’s return to court. The greater the risk that the defendant will not return to court, the higher the bail that will be set. The defense lawyer will usually request bail at arraignment by presenting reasons why the defendant deserves to be released and what amount is appropriate. Cash and an insurance company bail bond are the two most common forms of bail. If the defendant does not appear in court when required, the bail will be forfeited to the state. A person who does not post the bail set by the court will remain in custody until the conclusion of their case. (See NYS Penal Law §180.80).

Bench warrant - A bench warrant is an order issued by the Court for a defendant's arrest if he or she fails to appear for a court proceeding.

Chemical test - A person suspected of Driving While Intoxicated (D.W.I) (D.W.A.I.) may be asked to submit to a chemical test. This test will determine the presence and quantity of alcohol or drugs within a person's blood. A chemical test may be a test of a person's breath, blood, urine or saliva. The refusal to submit to a chemical test will result in a fine and revocation of driving privileges.

Chemical test refusal hearing - A chemical test refusal hearing is an administrative hearing conducted by the Department of Motor Vehicles within 15 days from the date of the Defendant's arraignment. The purpose is to determine whether the Defendant refused to submit to a chemical test. The issues to be decided at the refusal hearing are: 1. Did the police officer have reasonable grounds to make the arrest? 2. Was the arrest lawful? 3. Was the Defendant given warning and clear and unequivocal language as to the consequences of refusal? 4. Did the Defendant refuse to take the test?

Cohalan Court Complex - A red brick building located at 400 Carleton Avenue in Central Islip. District Court (criminal), Family and Supreme Courts are all located there. Most arraignments are held on the first floor of the District Court in courtroom D11.

Conditional Driver's License - A conditional driver's license is a limited use license valid for the following: 1. To and from work, during work if driving is part of your job; 2. To and from school; 3. Transporting a child to school or childcare; 4. To and from DDP classes/treatment; 5. DMV business.

Conviction - When the Court accepts a plea of guilty or a finding of guilt by the Court or a jury after trial. A defendant who has pleaded guilty and awaits sentencing has been convicted.

D.A.T./Desk Appearance Ticket - A desk appearance ticket is a written notice given by a police officer requiring a defendant to appear in court at a later date for arraignment.

Drinking Driver Program (DDP) - The DDP is a seven-week course with sessions that total 16 hours. It involves alcohol education as well as screening and referral for treatment. The DDP is often mandated by the Court as part of its sentence for an alcohol related conviction.

Extreme Hardship - The inability to obtain alternate means of travel to or from 1. Employment, 2. Necessary medical treatment; 3. School.

Felony - A felony is a crime for which a person may be sentenced to more than one year in prison. In addition to prison, the Court can impose a sentence of a fine and/or five years probation.

Grand Jury - A grand jury is a group of citizens who decide whether the prosecutor has enough evidence to pursue charges against a person. Charges may be presented to a Grand Jury at any time. A defendant has the right to testify at the Grand Jury but in most cases, testifying at the Grand Jury is not advisable. (See Indictment)

Hardship Hearing - When the court suspends a defendant's driving privileges under the prompt suspension law V.T.L. §1193(2)(e)(7), the court may grant a Hardship Driver's License if it determines that the suspension will result in extreme hardship to the defendant. The burden of proving extreme hardship is on the defendant and must be demonstrated at a hardship hearing. If granted, the hardship privilege is for extremely limited purposes.

Indictment - An indictment is a document that contains the felony charges that were voted on by the Grand Jury. An indictment results when the District Attorney's office presents the case to a Grand Jury and the Grand Jury decides there exists reasonable cause to believe that a crime was committed and the defendant may have been involved. (See Grand Jury)

Misdemeanor - A misdemeanor is a crime for which a person may be sentenced to no more than a year in jail. In addition to jail, punishments for a misdemeanor may include probation, community service and/or a fine. Common misdemeanors are Petit Larceny (PL §155.25), Assault in the 3rd degree(PL§120.00), Criminal Mischief in the 4th degree (PL §145.00), Criminal Possession of Marijuana in the 5th degree (PL§221.10) and Criminal Possession of a Controlled Substance in the 7th degree (PL§220.03).

NYS Penal Law §180.80 -In the event a defendant is charged with a felony and held on bail which cannot be posted, the defendant will be held for 144 hours (6 days). On the 6th day, the defendant will be returned to court and if he or she has not been indicted or ordered held after a felony exam, he or she will be released pursuant to criminal procedure law §180.80.

Offense - An offense is any violation of law for which a term of imprisonment or a fine may be imposed. Felonies, misdemeanors, petty offenses, violations and traffic violations are all offenses.

Order of Protection – An order of protection is an order issued by the Court directing the defendant to comply with certain conditions. The order may be issued at the request of a complainant or by the Court on its own. A "stay away" Order of Protection will generally direct a person not to have any contact or communication with someone. A "refrain from" Order of Protection will be less restrictive and allow the parties to communicate or even be with one another, so long as the defendant doesn't commit any crime or offense against the complainant. Only a Court can remove or discontinue the conditions of an Order of Protection.

Plea bargain - A plea bargain is an agreement between the defendant, prosecutor and judge in which the defendant admits guilt in exchange for a promise that the charge is reduced or that a particular sentence will be imposed. Most criminal cases are resolved by plea bargain so as to avoid a trial or the risk of receiving a more severe sentence.

Pre-conviction conditional driver's license - When a driver's license is suspended pending prosecution, the Defendant may be eligible to receive a conditional license 30 days after the suspension takes effect. It shall remain in effect for as long as the alcohol related charge is pending.

Probation - Probation is the release into the community of a defendant who has been convicted of a crime. A defendant placed on probation will be supervised by a probation officer and will be required to report to him or her on a regular basis. A defendant sentenced to probation will typically have certain conditions to follow based upon his or her prior background and crime for which he or she was convicted. Common conditions of probation may include alcohol or psychological counseling, community service and payment of restitution. Depending upon the crime, the defendant may be sentenced to either 1, 3 or 5 years probation.

Prompt Suspension Law/V.T.L. §1193 (2)(e)(7) - The Prompt Suspension Law applies to a defendant who is charged with DWI and who is alleged to have had a Blood Alcohol Content (BAC) of .08% or more at the time of arrest. The Court must suspend the defendant's driver's license pending prosecution for 30 days. Upon the conclusion of 30 days, the defendant may obtain a pre-conviction conditional license provided he or she is otherwise eligible to receive one from the Department of Motor vehicles. (See Hardship Hearing)

R.O.R. - At arraignment, the Court may R.O.R. a defendant. This means that he or she has been released on his or her own recognizance. A defendant who has been R.O.R.’d is released from custody without having to post bail while a case is pending.

Shoplifting/Petit Larceny/Petty Larceny - Petit larceny is a misdemeanor. A person is guilty of Petit Larceny (shoplifting) when he or she steals property having a value that does not exceed $1,000.00.

Traffic infraction - A violation of the New York State Vehicle and Traffic Law that has not been classified as a misdemeanor or felony is a traffic infraction. A traffic infraction is not a crime, but punishment upon a conviction can result in a jail sentence of up to 15 days, fines and the revocation of a person's driving privileges. Common examples of a traffic infraction would be speeding (VTL §1180(a), VTL §1180 (d)), leaving the scene of an incident without reporting (VTL §600.1) and driving without proper insurance (VTL §319).

Violation - An offense for which a person may be sentenced to no more than 15 days in jail. Two common violations are Disorderly Conduct (PL §240.20) and Harassment in the 2nd degree (PL §240.26).

V.T.L. - The Vehicle and Traffic Law

V.T.L. Section §1192.1 /Driving While Impaired - V.T.L. §1192.1 states that no person shall operate a motor vehicle while the person's ability to operate it is impaired by the consumption of alcohol. Driving While Ability Impaired (D.W.A.I.) is a traffic infraction for which a conviction will result in a sentence of a fine and suspension of driving privileges.

V.T.L. §1192.2/DWI - Driving While Intoxicated per se. V.T.L. §1192.2 states that no person shall operate a motor vehicle while such person has .08% or more by weight of alcohol in their blood as shown by a chemical analysis of that person’s blood, breath, urine or saliva. DWI is a misdemeanor for which a conviction will result in a penalty of revocation of the defendant’s driver’s license, mandatory minimum fine of $500.00, up to one year in jail and/or three years probation.

V.T.L. §1192.3/DWI -This section of the V.T.L. states that no person shall operate a motor vehicle while in an intoxicated condition. Defendants who refuse to submit to a chemical test are often charged with this misdemeanor. This DWI charge is based upon the observation by the police officer of the defendant's driving, physical appearance, demeanor and ability to perform sobriety tests.

V.T.L. §1192.4/DWI - A person accused of driving while their ability is impaired by drugs will be charged under §1192.4 of the V.T.L. It states that no person shall operate a motor vehicle while that person’s ability to operate such a vehicle is impaired by the use of a drug.

V.T.L. §511.1/AUO 3rd Degree - Aggravated Unlicensed Operation in the 3rd degree is a misdemeanor. A person is guilty of AUO in the 3rd degree when he or she operates a motor vehicle upon a public highway while knowing or having reason to know that his/her license or privilege of operating a motor vehicle is suspended or revoked. Punishment upon a conviction of V.T.L. §511.1 is a fine between $200-$500 and or up to 30 days imprisonment.

V.T.L. §511.2/AUO 2nd Degree - Aggravated Unlicensed Operation in the 2^nd Degree is a misdemeanor. A person is guilty of AUO in the 2^nd degree when they have committed Aggravated Unlicensed Operation in the 3^rd degree plus one of the following: 1. They have had a prior conviction for V.T.L. §511.1 in the preceding 18 months or, 2. The suspension or revocation is based upon: (A) A refusal to submit to a chemical test or (B) a conviction of Driving While Impaired or Intoxicated or such person has three or more suspensions imposed on at least three separate dates. Punishment for a conviction of V.T.L. §511.2 will include a minimum fine of $500 and a term of imprisonment up to 180 days and/or probation.