Do I have to allow the police into my home?

The Police cannot search your home (or office) without a Search Warrant.  You do NOT have to open your door to the Police unless they have a Search Warrant specifying your address, or an Arrest Warrant specifying your address and a person who resides there. A Search Warrant must specify the address and the illegal item sought.  Officers can only search areas where the illegal item could possibly be (Example: The Police can’t search for a Big-Screen TV in a desk drawer). 

Separate from a search, the Police must have an Arrest Warrant stating a resident’s name and address in order to arrest someone in their home.  Do NOT exit your home to speak to police and risk being lawfully arrested outside.  If they don’t have a warrant for your arrest, you may REFUSE to open your door, exit your home, or speak to Police.  Do NOT permit or consent to the search of your home following an arrest unless the Police have a Search Warrant.

If I am pulled over in my car, should I consent to the police searching the vehicle?

If you are pulled over and the Police Officer asks if he can search your car – DO NOT CONSENT!!  #1: If they had enough probable cause to search the car, they wouldn’t ask.  #2:  If you are driving someone else’s car, you don’t know what may be hidden in it.  If you have a passenger in the car, they may drop something illegal in the car.  Even if you didn’t know the illegal property was in the car, you can (and probably will) be charged with possession of it.

What should I do if the police want to question me?

Other than telling them your name, address and pedigree information, you should NEVER, NEVER, NEVER answer Police questioning or sign anything without an attorney present.  Once the Police make an arrest, it is because they are already convinced you are guilty.  You are NOT going to talk your way out of it.  The Police are now only interested in keeping you talking and getting you to say something incriminating.  DON’T HELP THEM!!  If speaking to the Police without an attorney was a good idea for an accused, why did the Supreme Court think it was so important that the Police be forced to tell that you don’t have to answer their questions?  If cooperating with the Police/District Attorney’s Office is a good idea, let a trained and experienced attorney tell you so and make sure your rights are protected.

Your Miranda rights are important!  There is a reason why the U.S. Supreme Court put them in place- to help protect the rights of those accused of crimes from overzealous police officers.  If you are in custody and before the Police can ask you questions, they must read some form of the following:

“You have the right to remain silent.  Anything you say can and will be used against you in a court of law.  You have the right to speak to an attorney, and to have an attorney present during any questioning. If you cannot afford an attorney, one will be provided for you at government expense.”
Once you indicate in any manner at any time before or during questioning that you wish to remain silent, under the law all questioning must STOP.

Under New York law, once a suspect asks for an attorney, all questioning must stop, and you can’t give up this right except in the presence of your attorney.  You must be clear and say “I WANT TO TALK TO A (or MY) LAWYER.”  It’s not enough to say something like “I think I need a lawyer,” “Maybe I should talk to a lawyer”, or “Do I need a lawyer?”

Of course, the only people who know what actually happens during questioning are the Police and you.  Police Officers will often try and pressure you to ignore your rights.  The Police will tell you anything they can think of – that talking to a lawyer will just make things harder on you or that if you cooperate they will help you get a better deal from the Judge and/or the D.A.  These are bald-faced LIES!  They will tell you that they already have all the evidence against you they need (your friend has confessed, they have fingerprints, etc.) and you might as well make it easier on yourself.  LIES!  If they had any of these things, they wouldn’t bother to try and get you to say something incriminating.

What happens when I am first brought to court?

 The first time a Defendant is brought before a Judge after arrest is called an “arraignment” (this usually occurs within 24 hours).  At the arraignment, the Defendant is informed of the charges against them and their attorney enters a plea on their behalf.  The Judge considers whether or not to set bail and, if so, in what amount.  In certain cases, the Judge will decide whether of not to issue an Order of Protection for the alleged victim.

What happens after the arraignment?

After the arraignment, the case is adjourned for a future date in another courtroom for one of a variety of purposes.  If you are charged with a felony, the case is adjourned to monitor whether or not a Grand Jury votes to Indict the case.  If the you are charged with a  misdemeanor, the case will be adjourned for the prosecutor to provide certain documents and information that your attorney will review and evaluate so you can decide how to go forward.

Unless told otherwise, you should arrive at the courthouse no later than 9:30 a.m.  There is almost always a line at the metal detectors, and it can often take quite a long time to actually get inside.  Go to the courtroom your case is assigned to and sit down.  Before you go into the courtroom, shut off any cell phones or pagers (Judges and court officers often go nuts when they hear these).  You cannot read while the Judge is on the bench, nor is there any talking allowed.  If your case is called, just stand and tell the Judge that you are waiting for your attorney - they will ask you who your attorney is, and they will put the case on “2nd Call.”  This means the case is put on hold until your attorney gets there.

How should I behave when my case is called and I’m standing before the Judge?

When you are standing beside your attorney before the judge, do not speak out loud.  No matter what you hear anyone say, no matter how wrong what they say might be, you must not speak out loud.  If there is something you think your attorney needs to know, lean over and whisper it in my ear.  (ONLY DO THIS IF THE JUDGE IS NOT TALKING TO YOU DIRECTLY!!). The reason you’ve hired your attorney is that they are an expert in the criminal justice system.  Allow them to do their job and decide what information should be said out loud in open court and what should only be discussed in private.

If the Judge does speak to you directly (AND ONLY IF THE JUDGE IS ASKING YOU A DIRECT QUESTION), reply in a loud, clear voice.  You should follow every answer with “Your Honor.”  (Examples:  “Yes, Your Honor.” “No, Your Honor.”  “Thank you, Your Honor.”)  Judges can be VERY sensitive to anything that could be perceived as disrespectful, and they often get angry with defendants who answer with “Yeah”, “Uh-huh”, “Nope”, “Nah” or by just nodding or shaking their heads.

What are the differences between a violation, a misdemeanor and a felony?

In New York State, a violation is not considered a crime and carries a maximum sentence of 15 days incarceration.  The maximum sentence for a misdemeanor is 1 year in a local jail.  A felony, however, can carry a sentence of anywhere from 1 year to Life in prison in a state penitentiary.

I’m charged with a Felony – what kind of jail time am I facing?

(***Please be advised that the following is a general guide to State charges – Federal Sentencing is even more complex and not meant to be a substitute for the advice of a qualified attorney.  There are numerous factors that must be taken into account in calculating a possible sentence that are not included below, and sentencing laws are subject to change***)   

The first factor to consider is the offense itself – New York grades felonies from A to E, with A Felonies being the most serious and E Felonies being the lease serious.  Some felonies are classified as “Violent” and they carry greater penalties.  This classification can be tricky – New York defines certain crimes as “Violent” that in fact do not involve actual physical violence.  For example, Burglary in the Second Degree and various degrees of Criminal Possession of a Weapon are classified as a “Violent” Felonies even though violence isn’t an element of these crimes.  There are other potential aggravating factors that can increase a potential sentence.

The amount of time someone faces is also dependent on their criminal history.  Some Defendants have no prior felony convictions.  A Defendant is usually treated as if he has no prior felony convictions if he has no felony conviction within 10 years (NOTE:  this period doesn’t begin to run until Defendant was released from jail on previous felony).  Some Defendants are classified as “Predicate Felony Offenders”, which means that they have been convicted of a felony within the last 10 years.  A Defendant can be determined to be a “Persistent Felony Offenders” if they have 2 or more felony convictions in their past.

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The Central Islip, New York, law firm of Bassett & Bassett, P.C., provides legal services and representation for residents of Nassau County and Suffolk County Long Island communities such as Central Islip, Bay Shore, Brentwood, East Hampton, Hempstead, Huntington, Mastic, Mineola, Riverhead, Shirley, Smithtown, Southampton, and Wyandanch, New York.