Felony crimes are usually commenced in one of the following ways:
- Summary Arrest: A police officer can make a arrest without a warrant when they have reasonable cause to believe a crime (felony or misdemeanor) has been committed and the person arrested committed it, whether the crime was committed in their presence or not. A summary arrest usually occurs at or shortly after the commission of the crime, (misdemeanor or felony) and the police officer must take immediate action to terminate the commission of the crime, protect the victim or bystanders from death or injury, and prevent the perpetrator from escaping; and, there is insufficient time or opportunity for the officer to make an application to a judge (usually a Local Criminal Court judge) for an arrest warrant.
- Filing of a felony complaint is the most common method of commencing of a criminal action in a felony. A felony complaint is an accusatory instrument filed with a Local Criminal Court charging the commission of crimes, at least one of which is a felony. The felony complaint must allege facts sufficient to establish the commission of a felony and the defendant's commission of that felony. It serves to commence criminal action but can not be used as the basis for prosecution. The felony complaint can be filed with the Local Criminal Court after a summary arrest has taken place, or prior to the arrest as the basis to issue an arrest warrant. When the felony complaint is filed with the Local Criminal Court after a summary arrest, the process goes to the arraignment phase. If the felony complaint is filed with the Local Criminal Court before the arrest the Local Criminal Court judge, if satisfied with the sufficiency of the felony complaint, will in most cases issue an arrest warrant for the accused (defendant). The officer armed with the arrest warrant is authorized to apprehend the accused and proceed with processing the accused.
- Grand Jury - Indictment: The pre-arrest presenting of the facts of the felony to a grand jury is usually used for more serious felonies or in the case of long lasting and complicated investigations. This process is completely controlled by the district attorney or other prosecutorial officials (Attorney General). When the facts are presented to the grand jury and an indictment is returned, the arraignment process takes place before a Superior Court judge, Supreme Court judge or County Court judge. The procedure after arrest on an indictment closely mirrors that after the arrest on a warrant before a Local Criminal Court judge. The process is virtually indistinguishable in form. Even when the accused is represented by an attorney actually present, the court none the less will follow the formality of notification of the right to an attorney.
- The arrest warrant is frequently issued by a local criminal court judge, many of whom are not attorneys.
Once the accused has been placed under arrest either under the authority of an arrest warrant or in a summary arrest situation, the officer will transport the accused to the police station where the accused will be processed. The accused will be advised of their right to an attorney (either retained or appointed) and advised of their right against self-incrimination. If the accused knowingly waives their rights, they will probably be questioned and asked to give a written statement. Increasingly the booking process is being audio or video recorded. This recording process is extremely important to confirm whether the investigation was properly or improperly conducted. Once the accused requests counsel, the investigative process ends, but the administrative process continues.
An Accused Pedigree is the identification of personal factual information. Even in the absence of an attorney, the officer will still question the accused as to his name. date of birth, address, etc. The accused will also be photographed and fingerprinted. The accused is required to provide this basic information, and any refusal will probably be considered by the police and the court in making the release/detention decision at the arraignment. This information will eventually be obtained so there is little benefit in refusing.
Release/detention Decision: The police officer has little authority to release an defendant accused with the commission of a felony, without having them arraigned. There is some authority in the case of a class “E” felony for the accused to be released on a desk appearance ticket for a future appearance in court. All other felonies require the officer to bring the accused before a judge, (usually a Local Criminal Court judge) without unnecessary delay to be arraigned.
Most cities have a holding facility (jail) to temporarily hold the accused until the city court is next in session. Except in matters of the most serious felonies, the city court will convene every day, even on weekends and holidays, to hold arraignments. Serious felonies and felonies occurring in more rural areas will usually result in a judge being called into court immediately to arraign the accused. Middle of the night arraignments are not uncommon.
Preliminary Hearing: Testimony and exhibits are presented to the local criminal court to establish if there is probable cause to believe that a felony has been committed, and that the defendant committed it, and if the defendant should be held over for the action of the grand jury.
If the people fail to establish probable cause, the local criminal court judge has the authority to dismiss the felony complaint and discharge the accused. This can be a hollow victory since the prosecution is still able to present the same facts to a grand jury and seek an indictment, even though a Local Criminal Court judge has dismissed the felony complaint. This would seem to make holding a preliminary hearing a waste of time, however a skilled defense attorney can use the testimony at the preliminary hearing in negotiating a plea bargain on the felony if an indictment is returned of at a trial before the superior court judge.
The practical effect of a preliminary hearing is also controlled by whether or not the accused has been incarcerated after the arraignment, either with or without bail. In instances where the accused is incarcerated, the Local Criminal Court must hold a preliminary hearing within 120 hours (5 days) or, 146 hours (6 days) if a Saturday, Sunday or Holiday occurs during confinement. If the hearing is not held within the statutory time, the defendant must be released from confinement on recognizance. The time for holding the hearing may be waived by the defense counsel if the defendant is being held on a parole violation, is being held on bail on other charges, or if an indictment has been returned.
Variable Factors Controlling Length of Incarceration
- Seriousness of the crime
- Criminal record of the offenders. Persons with a prior record will, in most cases, receive an enhanced period of incarceration, either as a direct result of statutory requirements or as a result of exercising judicial discretion to the detriment of the offender.
- Violent felonies are defined by statute and require enhanced penalties.
- Violations committed with the use of a deadly weapon or dangerous instrument require enhanced penalties.
Prosecution of felonies is usually commenced in a Local Criminal Court, however the Local Criminal Court only has jurisdiction to commence the action and hold certain hearings. Trial jurisdiction for felonies is reserved for a Superior Court, Supreme Court or County Court.