The Criminal Arraignment

The arraignment is usually the first opportunity for the accused to appear before a judicial officer. The Judge before whom the accused will appear for arraignment will have definite authority and responsibility as to the arraignment process and the accused. This responsibility and authority varies depending on the seriousness of the charge, but in every case includes:

  • Convening the court
  • Confirming the identity of the accused
  • Reviewing the complaint
  • Advising the accused of the alleged violation
  • Advising the accused to their right to an attorney
  • Permit the accused to immediately attempt to contact an attorney. The accused is also entitled to contact any person to notify them of the pending action.
  • If the accused requests the assistance of an attorney, the arraignment process stops and the accused is permitted to contact their attorney orapply for a court appointed attorney (as in 6 above) In this instance a plea of not guilty will be entered on the record.
  • If the accused waives their right to an attorney (except for matters classified as a felony) the accused is allowed to enter a plea of guilty or not guilty.
  • In all cases when the top count of the accusatory instrument alleges a felony, the only plea available in Local Criminal Court is a plea of not guilty.   Local Criminal Courts do not have the authority to accept a guilty plea for felonies.
  • In all cases when the top count of the accusatory instrument is not a felony, the Local Criminal Court has the authority to accept a plea of guilty when the judge is satisfied that the following conditions are satisfied.
    • The accusatory instrument is sufficient on its face, and conforms to legal requirements
    • The accused possesses the faculties to appreciate the seriousness of the charge and potential punishment
    • The accused right to an attorney has been understood freely and knowingly waived.

Release decision:  Upon the request for an adjournment to retain an attorney or apply for a court appointed attorney, and the entering a plea of not guilty, the court is in the position to make a release decision. The release decision is largely left to the discretion of the Local Criminal Court judge, however in certain circumstances, the Local Criminal Court judge is specifically prohibited from setting bail or is required to seek the recommendation of the District Attorney as to the amount of bail.

The Local Criminal Court judge is specifically prohibited from setting bail when the accused is charged with a Class “A” felony or has two prior felony convictions, or is charged with being a fugitive from justice.  In these matters bail can only be set by a Superior Court judge.

In all other felony matters the district attorney must be contacted and is entitled to input as to the amount of bail. The Local Criminal Court may accept or reject the district attorney’s recommendation, however, the court is required to consider the recommendation and after reviewing the defendant's criminal history, facts and circumstances of the crime charged and other factors bearing directly on the likelihood of the defendant's re-appearance in court when required, the court may set a bail in accordance with the recommendation or set a bail in a lower or higher amount.

The release decision may be conditioned on faithful compliance by the accused to certain requirements.  These requirements include, but are not limited to, compliance to the terms of an Order of Protection, or other release terms.  The issue of release, either on recognizance (without bail) or with bail, is controlled by the following facts:

  • The nature of the crime charged
  • Probability of the accused reappearing in court when required
  • Accused ties to the community (homeowner – employment)
  • General demeanor of the accused.   Courts will usually interpret disrespectful, combative and antagonistic attitude as reflecting negatively on the likelihood of the accused re-appearance when required.

Release or commitment:  The court makes a release decision and either releases the accused, either on recognizance or bail, or commits the accused to the local detention facility.  The local detention facility is usually the county jail or in some cases another facility if secure detention. Accused are sent to this facility either if they have failed to meet the judicial or legal standards for recognizance or has been unable to post the required cash bail or bail bond to secure their reappearance in court when required.

Options available to the accused - excessive bail:  If the accused or their attorney believes the release decision of the court is incorrect or the bail amount is excessive, an application to reconsider can be made to the court. A competent attorney may put forth arguments designed to convince the court to reconsider the recognizance decision or lower the amount of bail. If the court denies the application to reconsider the decision as to recognizance, or lowering of the bail is denied, an application can be made to the superior court to adjust the bail amount or release the accused without bail.
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