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Criminal Court Arraignments and Bail

An arraignment is the first court appearance for a criminal defendant, who appears before a judge and is advised of the charges against him/her. The timing of the arraignment depends upon the manner in which the defendant's presence in court is obtained. A defendant arrested pursuant to an arrest warrant generally must be taken to central booking without unnecessary delay (CPL 120.90(1)).

At arraignment, the defendant is entitled to be advised of certain rights that apply in a criminal proceeding. A defendant is entitled to be represented by an attorney during his/her arraignment and to have an attorney assigned if the defendant is indigent. During the arraignment, the prosecutor will typically serve upon the defendant's attorney a notice that relates to any witness identifications and to statements made by the defendant (CPL 710.30). These notices must be served within 15 days of arraignment. At the arraignment, the defendant also enters a plea of guilty or not guilty.

Typically, a defendant who has been in custody since arrest makes an application for release on his/her own recognizance or for bail in an amount that he/she can meet.

Bail is money that some criminal defendants must deposit with the clerk of the court guaranteeing that they will return to court. The amount of money that the person arrested must pay as bail is determined by the judge at the arraignment. The purpose of bail is to ensure the defendant's return to court. Therefore, the greater the risk that a defendant will flee, the higher the bail that will be set. It is important to hire a Manhattan or Brooklyn defense attorney who realizes that bail is NOT to function as either preventive detention or as punishment (People v. Silvestri, 132. Misc. 2d 1015 (1986)). A defense attorney must be alert to prosecutors who attempt to use jail detention and high bail for these purposes and if so, should point out to the judge that the crime is not serious enough to warrant such high bail. The defense has the right to be heard when bail is set. The defense attorney's bail application to the court is usually made orally, who presents reasons why the defendant deserves to be released. The following are factors that the court is supposed to consider when setting bail:

-character of the accused

-employment and financial resources

-family ties and length of residence in the community

-prior criminal record

-previous record of bench warrants

-strength of evidence of the current case

-seriousness of case and length of sentence that may be imposed

If bail is set, it may be posted as "cash" or through a "bond." If the person posting cash bail is in court, the cash may be posted at the courthouse and the defendant can be released from the courthouse rather that being transferred to jail. Bail posted in the courthouse must be paid in cash. The cashiers do not accept any form of check. If you are posting bail in court, it is important to tell a court officer so that the defendant will be held in court and not transferred to jail. Bail can also be paid at any NYC jail, although defendants are released faster if the bail is paid at the facility where the defendant is staying. City jails will often accept certain kinds of certified checks, but there are restrictions.

A "bond" is insurance that another person pays (bondsman) on behalf of the person charged. It is a legal contract that requires the bondsman to pay money if the defendant fails to return to court. The bond is guaranteed by assets such as real estate, bank accounts or valuable personal property. If you are posting bond, you will need to find a bail bondsman who is licensed in NYS.

At the end of the case, if the defendant has made all court appearances, cash bail will be returned to the person who posted the bail. This is done by the judge "exonerating the bail." Following this final court appearance, the NYC Department of Finance will issue a check to the person who deposited the bail (minus 3% if the case resulted in a conviction). This usually takes 6-8 weeks. If a defendant fails to make all court appearances, the judge can "forfeit" the bail, and the money will not be returned but kept by the City.

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