Interviewer: What happens during the initial arraignment?
James Abate: At the initial arraignment you are going to be advised that you’ve been charged with a crime. You’re going to be advised that you have the right to an attorney and all the constitutional rights – that if it’s an indictable case that you have the right to have a grand jury determine that you are in fact being charged with a crime for which there is probable cause. At that point, they’re also going to fingerprint you and process you. Probation will interview you.
After that, there is a pre-indictment hearing. At the pre-indictment hearing, you would normally retain an attorney by then and the attorney has received discovery. You have the opportunity to review the discovery with your attorney. At that point, there will normally be some sort of deal made by the prosecutor. It may not be the best deal or it may be the best deal. It depends on what the evidence shows. The prosecutor would like to resolve the case at that stage because while you’re entitled to have a grand jury vote on your charges, you can waive that and just say you want to plead guilty to the charges. At that stage, since there has been very little time put in there may be an offer to put you into a pretrial intervention program where you don’t have to enter a guilty plea.
After the grand jury is empaneled and votes on the charges, now you’re into the real criminal trial proceedings. These are where the cases are getting more serious. The prosecutor now has had to do some work. He is less likely to offer a great deal at this point. When you’re in that stage, it indicates that you feel that you have a defense to the charges or you simply want to put the prosecution to put a case on against you and believe that they will not be able to prove the charges. Following that and with discovery being completed in the case, the trial starts.
Interviewer: Is there any leniency for first-time offenders?
James Abate: It’s going to depend on the charges. If you’re a first-time offender accused of distributing heroin in a school zone, there probably won’t be leniency. A first-time offender who is charged with possession of marijuana, under 50 grams, presents the best candidate for what is called a conditional discharge. The Conditional Discharge Program, which is very similar to the pretrial intervention program, is going to be that you comply with whatever probation sets as terms of your conditional discharge. That could include drug testing and going to classes on how drugs are bad for you. If you comply with the terms of the program and you do not get arrested within one year, then the charges will be dismissed against you. That’s a great result anytime you have charges dismissed against you.
However, if you don’t stick to the program – if you come back with a dirty urine sample or you have gotten re-arrested within a year – then you’ve got to go back and face the original charges again, and you now have to face charges on a second offense. Now you have a record from the first offense and you face the second offense, which means that they are going to be stricter with you.
Get your questions answered – call me for your free, 20-minute phone consultation: 908-643-7005