Criminal Court Investigations - The Presentence investigation(PSI) is the foundation for the presentence report. After the conviction and before the sentencing hearing, a judge may order a PSI. The PSI helps the court make an appropriate disposition of the case and serves as the basis for a plan of probation and treatment. The probation officer gathers information from both interviews and record review.
Interim Probation - When the court determines that a person is eligible for a probation sentence and the defendant (who has been convicted by plea or by trial) agrees, the court may adjourn the sentencing for up to one year from the date of conviction and place a defendant under interim probation supervision as a “test” to see if the person might be successful on probation. If successful, when the person returns to court, they are generally sentenced to probation (rather than jail or prison). Interim supervision may be terminated prior to the end of the term and may result in a sentence to incarceration based on the individual’s performance while under interim supervision.
Leandras Law - In late 2009 New York State enacted “Leandra’s Law,” which added a section to the Vehicle and Traffic Law requiring the installation and use of an ignition interlock device as part of all alcohol-related DWI sentences in New York State. This law was implemented on August 15th, 2010. On July 26, 2013, Governor Cuomo signed into law Chapter 169 of the Laws of 2013 to strengthen “Leandra’s Law.” In addition to extending from 6 months to 12 months the minimum period of interlock restriction, the law ensures that all youth adjudicated as Youthful Offenders on the underlying charge of DWI and/or other alcohol related offenses will now be subject to “Leandra’s law’ provisions, including the ignition interlock mandate. The new law further authorizes the court to require installation of the interlock device prior to sentencing, as a preventative measure.
Peace Officer - In New York State a Peace Officer is a person designated by law who, pursuant to statutory authority of the Criminal Procedure Law 2.20, is authorized to exercise and may be required to exercise prescribed police-like powers such as bear arms, use of force, make arrests and conduct searches when acting pursuant to his/her job assignments. In New York State probation officers, parole officers and corrections officers are among the many titles designated as peace officers.
Police officers deal with the general public and are charged with enforcing all laws. They have a pro-active law enforcement responsibility to deter crimes, detect the commission of crimes and apprehend those responsible. Peace officers serve specific clientele and enforce the laws pertaining to those designated populations. Probation officers have primary responsibility for enforcing the conditions of probation imposed by the courts on offenders sentenced to a period of probation. All probation officers in New York State are peace officers.
Probation Intake - A generic term used to describe a function of probation which provides for the provision by probation personnel to members of the community of certain pre-adjudicatory services in Family Court matters and/or certain referral services.
Probation Sentence - A sentence imposed by a criminal court which permits the convicted/adjudicated offender to remain in the community under conditions specified by that court and to be supervised by a probation officer.
Probation - A department of government at the county or city level administering and carrying out probation functions, programs, and services pursuant to laws, policies and rules.
Probation Services - Intake/diversion, investigation, supervision, support/collection, and other special or related service delivery programs provided by a local probation department.
Recidivism - Relapse into a former pattern of behavior; especially, a tendency to return to criminal habits. Most commonly identified as a re-arrest.
Release on Recognizance (ROR) - Released on Own Recognizance also known as R.OR, is a designation for an individual who has been charged with a crime and has made at least an initial appearance before a judge and is permitted to remain within the community without bail or further guarantee to return to the same court for all future court dates.
Supervision - The sum of the activities of a probation officer, or probation officers or other authorized personnel acting as a team, which includes the review of the conditions of probation with each probationer, offering instruction with regard thereto, keeping informed of the probationer's compliance with the terms and conditions of probation; monitoring and holding a probationer accountable for his or her conduct, habits, associates, employment, recreation, and whereabouts; aiding a probationer in securing employment; and aiding and encouraging a probationer by individual or group counseling, guidance and admonition and by such other measures as may seem most suitable to bring about improvement in probationer conduct, condition, and general attitude toward society; and identifying and utilizing resources appropriate to the needs of the probationer.
Supervision Period - The length of time a person is supervised on Probation which is determined by type of crime (misdemeanor or felony) or time probationer is sentenced to or placed on probation, or from the date of completion of a condition of imprisonment imposed by a criminal court.
Technical Violation - A violation of probation by failure to comply with the conditions of supervision.
Termination - The discharge or end of a sentence to or placement on probation by the court.
Supervised Release - To facilitate the release of pre/post-plea defendants, including those with drug, alcohol, mental health problems, or quality of life issues, for supervision by Probation and referral to community-based resources. Offenders must be Ineligible for Release on Recognizance, willing to sign conditions of release and accept pre-trial Probation supervision and services. Offenders are not eligible if they are eligible for Release on Recognizance; has warrants or holds; poses threat to public safety; currently sentenced to probation or parole.
Violations of Probation - Probation violation is an offense that occurs when a probationer breaks the terms or conditions of his/her probation. The consequences associated with probation violation usually depend on a variety of factors, such as the nature and seriousness of the violation, whether they have any prior violations, and whether there are other circumstances that may lessen (or worsen) the severity of the situation. A probation violation may result in significant penalties, such as heavy fines, extended probation, jail time, or more. Probation may be violated in many different ways. Circumstances that may lead to a probation violation include:
- Not appearing during a scheduled court appearance on a set date and time;
- Not reporting to his/her probation officer at the scheduled time or place;
- Not paying any required fines or restitution (to victims) as ordered by a court;
- Visiting certain people or places, or traveling out of state without the permission of his/her probation officer;
- Possessing, using, or selling illegal drugs;
- Committing other crimes or offenses; and
- Getting arrested for another offense, regardless of whether criminal or not
- There are two types of probation violation:
- Technical violation. When any of the conditions of probation has been violated, a
- technical violation of probation exists (does not include new arrests).
- New offense violation. When a violation involves a new crime, it is a nontechnical
- or new offense violation.
Stages of a Criminal Case
Arrest - After an arrest, law enforcement agencies present information about the case and about the accused to the prosecutor, who will decide if formal charges will be filed with the court. If no charges are filed, the accused must be released. The prosecutor can also drop charges after making efforts to prosecute (nolle prosequi).
Initial Appearance - A suspect charged with a crime must be taken before a judge or magistrate without unnecessary delay. At the initial appearance, the judge or magistrate informs the accused of the charges and decides whether there is probable cause to detain the accused person. If the offense is not very serious, the determination of guilt and assessment of a penalty may also occur at this stage.
Often, the defense counsel is also assigned at the initial appearance. All suspects prosecuted for serious crimes have a right to be represented by an attorney. If the court determines the suspect is indigent and cannot afford such representation, the court will assign counsel at the public's expense.
A pretrial-release decision may be made at the initial appearance, but may occur at other hearings or may be changed at another time during the process. Pretrial release and bail were traditionally intended to ensure appearance at trial. However, many jurisdictions permit pretrial detention of defendants accused of serious offenses and deemed to be dangerous to prevent them from committing crimes prior to trial.
The court often bases its pretrial decision on information about the defendant's drug use, as well as residence, employment, and family ties. The court may decide to release the accused on his/her own recognizance or into the custody of a third party after the posting of a financial bond or on the promise of satisfying certain conditions such as taking periodic drug tests to ensure drug abstinence.
In many jurisdictions, the initial appearance may be followed by a preliminary hearing. The main function of this hearing is to discover if there is probable cause to believe that the accused committed a known crime within the jurisdiction of the court. If the judge does not find probable cause, the case is dismissed; however, if the judge or magistrate finds probable cause for such a belief, or the accused waives his or her right to a preliminary hearing, the case may be bound over to a grand jury.
A grand jury hears evidence against the accused presented by the prosecutor and decides if there is sufficient evidence to cause the accused to be brought to trial. If the grand jury finds sufficient evidence, it submits to the court an indictment, a written statement of the essential facts of the offense charged against the accused.
Where the grand jury system is used, the grand jury may also investigate criminal activity generally and issue indictments called grand jury originals that initiate criminal cases. These investigations and indictments are often used in drug and conspiracy cases that involve complex organizations. After such an indictment, law enforcement tries to apprehend and arrest the suspects named in the indictment.
Misdemeanor cases and some felony cases proceed by the issuance of an information, a formal, written accusation submitted to the court by a prosecutor. In some jurisdictions, indictments may be required in felony cases. However, the accused may choose to waive a grand jury indictment and, instead, accept service of an information for the crime.
In some jurisdictions, defendants, often those without prior criminal records, may be eligible for diversion from prosecution subject to the completion of specific conditions such as drug treatment. Successful completion of the conditions may result in the dropping of charges or the expunging of the criminal record where the defendant is required to plead guilty prior to the diversion.
Arraignment -Once an indictment or information has been filed with the trial court, the accused is scheduled for arraignment. At the arraignment, the accused is informed of the charges, advised of the rights of criminal defendants, and asked to enter a plea to the charges. Sometimes, a plea of guilty is the result of negotiations between the prosecutor and the defendant.
If the accused pleads guilty or pleads nolo contendere (accepts penalty without admitting guilt), the judge may accept or reject the plea. If the plea is accepted, no trial is held and the offender is sentenced at this proceeding or at a later date. The plea may be rejected and proceed to trial if, for example, the judge believes that the accused may have been coerced.
Trial -If the accused pleads not guilty or not guilty by reason of insanity, a date is set for the trial. A person accused of a serious crime is guaranteed a trial by jury. However, the accused may ask for a bench trial where the judge, rather than a jury, serves as the finder of fact. In both instances the prosecution and defense present evidence by questioning witnesses while the judge decides on issues of law. The trial results in acquittal or conviction on the original charges or on lesser included offenses.
After the trial a defendant may request appellate review of the conviction or sentence. In some cases, appeals of convictions are a matter of right; all States with the death penalty provide for automatic appeal of cases involving a death sentence. Appeals may be subject to the discretion of the appellate court and may be granted only on acceptance of a defendant's petition for a writ of certiorari. Prisoners may also appeal their sentences through civil rights petitions and writs of habeas corpus where they claim unlawful detention.
Sentencing -In arriving at an appropriate sentence, a sentencing hearing may be held at which evidence of aggravating or mitigating circumstances is considered. In assessing the circumstances surrounding a convicted person's criminal behavior, courts often rely on presentence investigations by probation agencies or other designated authorities. Courts may also consider victim impact statements.
The sentencing choices that may be available to judges and juries include one or more of the following:
- the death penalty* not in all states
- incarceration in a prison, jail, or other confinement facility
- probation - allowing the convicted person to remain at liberty but subject to certain conditions and restrictions such as drug testing or drug treatment
- fines - primarily applied as penalties in minor offenses
- restitution - requiring the offender to pay compensation to the victim.
In some jurisdictions, offenders may be sentenced to alternatives to incarceration that are considered more severe than straight probation but less severe than a prison term. Examples of such sanctions include boot camps, intense supervision often with drug treatment and testing, house arrest and electronic monitoring, denial of Federal benefits, and community service.
In many jurisdictions, the law mandates that persons convicted of certain types of offenses serve a prison term. Most jurisdictions permit the judge to set the sentence length within certain limits, but some have determinate sentencing laws that stipulate a specific sentence length that must be served and cannot be altered by a parole board.
Jail versus State Prison - Offenders sentenced to incarceration usually serve time in a local jail or a State prison. Offenders sentenced to less than 1 year generally go to jail; those sentenced to more than 1 year go to prison. Persons admitted to the Federal system or a State prison system may be held in prisons with varying levels of custody or in a community correctional facility.
A prisoner may become eligible for parole after serving a specific part of his or her sentence. Parole is the conditional release of a prisoner before the prisoner's full sentence has been served. The decision to grant parole is made by an authority such as a parole board, which has power to grant or revoke parole or to discharge a parolee altogether. The way parole decisions are made varies widely among jurisdictions.
Offenders may also be required to serve out their full sentences prior to release (expiration of term). Those sentenced under determinate sentencing laws can be released only after they have served their full sentence (mandatory release) less any "goodtime" received while in prison. Inmates get goodtime credits against their sentences automatically or by earning them through participation in programs.