WHO IS THE DISTRICT ATTORNEY?

The New York State Constitution provides that the District Attorney is a public official elected by

the residents of a particular county to investigate and prosecute offenses committed within that

county. The District Attorney, who is the chief prosecutor, has a four-year term of office.

WHO IS THE WESTCHESTER COUNTY DISTRICT ATTORNEY?

The District Attorney for Westchester County is the Honorable Janet DiFiore, the former Supervising

Judge of all the criminal courts in the Ninth Judicial District which consists of Dutchess,

Orange, Putnam, Rockland, and Westchester Counties

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WHO IS AN ASSISTANT DISTRICT ATTORNEY?

An assistant district attorney is an attorney who has been appointed by the District Attorney to

investigate and prosecute offenses. Such a person is a public officer as defined by New York

State law and must be both a citizen of the United States and a resident of New York State.

WHAT IS AN OFFENSE?

An offense is proscribed conduct, the elements of which are defined by statute, for which a

sentence to a term of imprisonment or to a fine may be imposed by a criminal court.

WHAT IS A PETTY OFFENSE?

A petty offense is either a violation or a traffic infraction. Such offenses are not crimes.

WHAT IS A CRIME?

A crime is either a misdemeanor or a felony. A conviction for a crime is made part of a permanent

criminal record.

WHAT IS A MISDEMEANOR?

A misdemeanor is an offense for which a sentence of imprisonment for up to one year may be

imposed.

WHAT IS A FELONY?

A felony is an offense for which a sentence of imprisonment in excess of one year may be imposed.

WHAT ARE THE “CRIMINAL COURTS”?

The criminal courts are the courts where criminal trials are conducted. They consist of superior

courts and local courts.

WHAT IS A “SUPERIOR COURT”?

The superior courts in Westchester County are the County Court and the Supreme Court,

where felony trials are conducted.

WHAT IS A LOCAL COURT?

The local courts in Westchester County are the city, town, and village courts. These courts have

preliminary jurisdiction over all offenses and trial jurisdiction for misdemeanors and petty offenses.

WHAT IS AN ARRAIGNMENT?

An arraignment is a procedure whereby a defendant, a person who has been accused of a

crime, is brought before the court for the purpose of the court setting the course of further proceedings

in the action. At this time, defendants must be advised of the charges against them

and their rights with respect to those charges. Foremost among those rights is the right to

counsel.

A defendant has the right to the aid of counsel at the arraignment and at all subsequent proceedings.

If a defendant is financially unable to obtain counsel, he/she has the right to have

the court appoint him/her an attorney unless he/she is charged with only infractions.

HOW ARE CHARGES BROUGHT AGAINST A DEFENDANT?

An accusatory instrument is a document prepared accusing the person of an offense. The accusatory

instrument may be in the form of an information, complaint, superior court information

or indictment.

WHAT OPTIONS DOES A COURT HAVE WITH RESPECT TO THE LIBERTY OF A DEFENDANT?

The court may release a defendant on his/her own recognizance, set bail for a defendant to

post in order to be allowed to remain at liberty, or remand a defendant to custody pending the

outcome of the criminal proceeding.

WHAT IS BAIL?

Bail is a specific monetary amount, fixed by the court, to assure the defendant’s return to the

court for all the adjourned dates of the criminal proceeding.

HOW DOES A COURT DETERMINE THE AMOUNT OF BAIL?

The court may consider several factors in setting bail, including: the defendant’s character,

reputation, habits, mental condition, employment, finances, criminal record, family ties to the

community and length of residence in the county, the seriousness of the charged crimes, the

weight of the evidence against the defendant, and the possible sentences that may be imposed

upon conviction.

WHAT IS A GRAND JURY?

The grand jury is a body consisting of not less than sixteen but no more than twenty-three

persons, impaneled by a superior court to hear and examine evidence concerning criminal

offenses, misconduct, nonfeasance, and neglect in public office. Grand jury proceedings are

secret and while the District Attorney is the legal advisor to the grand jury, the decision whether

or not to indict someone for a crime based upon the evidence presented remains exclusively

with the Grand Jurors.

WHO PROVIDES THE GRAND JURY WITH EVIDENCE?

An assistant district attorney acting as the People of the State of New York presents evidence

through either the testimony of sworn witnesses and/or exhibits. The grand jury may also direct

the assistant district attorney to present additional evidence. The People are under no

obligation to inform an individual that a grand jury proceeding against him/her is pending or

about to begin unless that person has already been arraigned in a local criminal court on a

felony complaint charging an offense which is the subject of the grand jury proceeding. Such an

individual has a right, upon his/her request, to testify before the grand jury and he/she may

request that additional evidence be presented.

Every witness before a grand jury is required to give evidence regardless of a claim that he/she

may incriminate him/herself. Thus all witnesses in the grand jury receive immunity from prosecution

for any offense about which they gave evidence. If the subject of the investigation requests

to testify, he/she must waive immunity from prosecution.

WHAT IS AN INDICTMENT?

An indictment is a written accusation by a grand jury that charges a defendant with one or more

offenses, at least one of which is a crime. In order to indict a defendant, at least twelve grand

jurors must find that the evidence before it provides reasonable cause to believe a defendant

committed such offense. This burden of proof is less than the People’s burden of proof at a trial

which requires evidence of guilt beyond a reasonable doubt as found by the unanimous verdict

of a jury of twelve or a judge in a non jury setting.

IF A DEFENDANT PLEADS NOT GUILTY, WHAT IS THE NEXT STEP IN A CRIMINAL

PROCEEDING?

In general, the case will be adjourned for pretrial proceedings, which may include pretrial motions.

WHAT IS A MOTION?

A motion is an application seeking relief from the court. Defendants are permitted to make one

all-inclusive, written motion within forty-five days of arraignment. The motion may include a

request for dismissal of the charges, discovery of evidence, and suppression of evidence.

WHAT HAPPENS AFTER A DEFENDANT MAKES SUCH A MOTION?

The district attorney’s office is given an opportunity to respond and the court will then render a

decision. Both sides are given time to comply with the decision and order of the court and to

prepare for trial. When the court has determined that the case is ready for trial, the case will

be adjourned to a specific date for any pretrial hearings and/or trial.

WHAT IS A PLEA BARGAIN?

A plea bargain is an agreement among the court, the district attorney and the defendant,

whereby the defendant pleads guilty to an offense in exchange for a specific promised sentence.

A defendant cannot plead guilty to less than all the charges in the accusatory instrument

without the consent of the district attorney. If a defendant pleads guilty to all the charges,

the district attorney’s consent to the sentence imposed is not required by law.

WHAT IS THE ORDER OF A JURY TRIAL IN A CRIMINAL CASE?

The order of a criminal jury trial is the following: a jury must be selected and sworn; the court

must give preliminary instructions to the jury; the prosecutor must give an opening statement

to the jury; the defendant may deliver an opening statement to the jury; the prosecutor must

offer evidence in support of the criminal charges against the defendant; the defendant may

offer evidence in his/her defense; the prosecutor may offer rebuttal evidence; at the conclusion

of the evidence, the defendant may deliver a summation to the jury; the prosecutor may

deliver a summation to the jury; the court must then deliver final instructions to the jury; and

the jury must then deliberate and, if possible, render a verdict.

WHAT IS MEANT BY A JURY RENDERING A VERDICT?

A jury renders a verdict when it announces the guilt or non-guilt of a defendant. To find a defendant

guilty of any charge submitted to them, all jurors must agree that the defendant’s guilt

was proven beyond a reasonable doubt. A verdict must be unanimous.

WHAT HAPPENS IF THE JURY IS UNABLE TO RENDER A UNANIMOUS VERDICT?

The court will give a special instruction to the jury to encourage further deliberations. If the

jury is still unable to unanimously agree, the court will declare a mistrial and discharge the jury.

The defendant may be retried in the future.

WHAT HAPPENS IF THE JURY FINDS THE DEFENDANT GUILTY OF THE CHARGES?

Thereafter, the defendant will be sentenced by the court.

WHEN IS A DEFENDANT SENTENCED?

When a defendant is convicted of a felony, a court must order a pre-sentence investigation

conducted by the Department of Probation and may not pronounce sentence before receipt

and review of a written report of that investigation. When a defendant is convicted of a misdemeanor,

a pre-sentence report may not be required and a defendant may be sentenced

immediately.