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ARRESTED: What you should know...

What is an Arrest?

(1) a police officer or citizen takes you into custody or  (2) restrains you physically or verbally (3) for the purpose of answering to a crime or an offense.

* you may be taken into custody or be given an appearance ticket (looks like a traffic ticket).

Arrest Warrants

Arrest Warrants: issued by a court and may be executed any time, 24 hours-a-day, 7 days-a-week.  The police officer must tell you that he has a warrant and must show you the warrant, if you ask, and give you a chance to read it either at the time of the arrest, or as soon as he can reasonably get it.  If you refuse to let him in, a police officer with an arrest warrant may break open a door or window to gain entrance, after he has given you notice of his purpose. He may enter without notice if he reasonably believes that you will escape, destroy evidence or that such notice will endanger him.

Arrest Without a Warrant

Arrest Without a Warrant: A police officer may arrest you without a warrant if: (a) He reasonably believes that you are attempting, committing or have committed a crime, violation or offense in his presence  AND/OR (b) He has reason to believe that you were lawfully arrested by a private person. When being arrested without a warrant, a police officer must state the reason for the arrest, unless you are in the act of committing the alleged crime or are being chased; a police officer may chase you beyond his geographical area.

Use of Force

Use of Force: If you resist, a police officer may use all necessary means to restrain you, including force.

Citizen's Arrest

Citizen’s Arrest: A private citizen may arrest you without a warrant if you have committed a felony in fact or if you have committed a non-felony in his presence. He should tell you the reason for the arrest. If you are arrested by a private citizen you must be taken before a judge or turned over to a police officer “without unnecessary delay.”   You may sue a private citizen for unlawful arrest if you did not commit any crime, even if the individual had reasonable cause to believe you had committed a crime.  You may use reasonable force to resist an unlawful arrest being made by a private citizen: however, what amount of force is “reasonable” is a complex legal question answered only by the facts of a situation and the law.

Questioning Without Arrest

Questioning Without Arrest: The law permits a police officer to approach any person in a public place to request information if he reasonably suspects that person is committing, has committed or is about to commit a crime. He may demand to know your name, address and an explanation of your actions.  You are not required to answer; the right to remain silent is guaranteed you by the Federal and New York State constitutions.

Being Searched

Being Searched: When you are lawfully arrested, your person may be searched. In addition, the immediate area of the place of your arrest may be searched.  If you are held for questioning by a police officer and he reasonably suspects that he is in danger, he may search you for weapons or instruments that could cause serious injury.  If he finds a dangerous weapon or instrument on you, he may keep it until he finishes questioning you. If he does not arrest you, he must give you back the weapon (provided you have a permit to carry it). If the police officer, while searching you for dangerous weapons, finds anything else on you which is a crime to possess, he may take it, and arrest you for possessing it.

Search Warrants

Search Warrants: A search warrant is a written order signed by a judge charging a police officer to search a certain place and/or person for specific property and to bring that property to court. The warrant must describe the place and/or person to be searched and the property to be obtained. The police officer has to show the search warrant, and give notice of his authority or purpose before making entry and beginning to search. However, the warrant may authorize the police to break in and search without notice. A police officer can break in if you refuse to admit him after being given notice.   In all situations, the police officer needs a warrant to search you, except when the search is immediately following your lawful arrest or under other special circumstances set out under the law.  Anything unlawfully taken by the police may not later be used as evidence against you.

Criminal Law

All persons taken into police custody (including juveniles) have the following rights:

  1. You have a right to telephone your lawyer, friend or family member(s) to notify them of your arrest.
  2. You have a right to speak with your lawyer at the place where you are being held.
  3. You have a right to remain silent. This means you can remain completely silent or answer some questions and not others.
  4. You have a right to have your lawyer present if you are placed in a police line-up.
  5. Before the police question you, they must tell you that:
    1. you have the right to remain silent;
    2. any statement made by you may be used as evidence against you;
    3. that you have a right to first speak with a lawyer and, if you wish, to have a lawyer present when you are being questioned.   The police must also tell you that if you want to speak with a lawyer before questioning and you cannot afford a lawyer, one will be assigned to you without cost. The questioning must stop until you have a lawyer.  If you agree to allow the police to question you and they begin questioning you, you may still change your mind and ask for a lawyer before the police continue the questioning.

If you have been arrested, “explaining your side of the story” is not recommended. Keeping silent is the most important right to exercise. The arrest is based upon the belief of  those questioning you that you are guilty of a crime.   The stakes are too high: you should speak with a lawyer regardless of whether you feel that you can handle the situation yourself.  Bypassing a lawyer’s advice does not gain any advantage in dealing with the arresting agency.
Once arrested and booked, the person must be taken to court “without unnecessary delay.” If the court is not then open, you may be held in custody until it is open.

Right to a Lawyer

Right to a Lawyer: Your right to have a lawyer is vital at every stage of a criminal proceeding.  If you appear in a court without a lawyer, the judge will allow you a “reasonable time” to find one before proceeding with the case, which usually means a few days.  You have the right to insist that the court assign you an attorney if you cannot afford one, but your ability to afford a lawyer is measured by a strict formula set out in the law.  Depending on the local plan in effect for providing a lawyer in such cases, you may get a private attorney, or you may be assigned someone from a legal aid society. A public defender will be assigned if your community has one. The court has persons who will interview all those requesting a lawyer to be assigned to them. In addition, the judge must tell you of your right to use the telephone or to send a letter free of charge in order to get a lawyer and to tell a relative about your arrest.

Police/Arrest Records

Police/Arrest Records: Except for traffic violations,  a record is made of all arrests, regardless of the final outcome of the case. Fingerprints and photographs are required. If you are found not guilty or the case is dismissed, you may apply for return or destruction of your fingerprints and photographs.  If personal property or money is taken from you, you must be given a receipt showing the amount of money or the kind of property taken.

CRIME VICTIMS: Help when you need it...

If you are injured or your money or property is stolen, an arrest is made, what’s next? Where can you get help?

The victim is important in a criminal case. He/She is not a party to the action. Instead, the victim is a witness and his/her testimony is part of the evidence which the district attorney (also called the prosecutor) needs to convict the arrested defendant. The victim’s testimony may not even be the most important evidence in the case. For instance, if you had your handbag or briefcase snatched out of your hand but did not see who did it and the defendant was only caught because a bystander witnessed the crime and identified the defendant to the police, then the bystander’s testimony is the most important evidence in the case, not your testimony. Also, it is up to the district attorney to decide if enough evidence exists to charge anyone with a crime and, if so, what the appropriate charge should be. This is to prevent unprovable or unfair charges from being brought.

Victim's right to be consulted

Even though a victim cannot order the district attorney to prosecute or not prosecute, the victim of a felony offense should be consulted with by the district attorney before the prosecutor decides to either dismiss the case or allow the defendant to plead guilty or take the case to trial. If the victim is a child or a homicide victim, the district attorney should consult with the victim’s family.

Victim's limited right to mediation as an alternative to court

If the victim knows the defendant well and does not want prosecution, the law provides that, except for certain felonies, the court case, having the district attorney’s consent, can be adjourned in contemplation of dismissal if the victim wants to meet with the defendant to try to talk out their disagreement before a mediator at a dispute resolution center.

Victim's right to information about the case

A victim is entitled to free copies of all police reports documenting the crime and to information about judicial proceedings in the case such as the first appearance of the accused in court and if bail was set or if the defendant was released from custody. If the defendant is released on bail or escapes from jail the victim must be notified by the Department of Corrections. When a defendant, who has been convicted of committing a violent felony offense, is sentenced to serve time in a state prison, the victim can request to be notified of the escape, discharge or parole of the defendant from prison. The district attorney must provide the victim or a family member with a “request to be notified” form prior to defendant’s sentencing. When an escaped inmate is recaptured, the victim must be notified within 48 hours by prison authorities. The district attorney should also have information about available victim protection, compensation and counseling programs.  The New York State Crime Victim’s Compensation Program is mainly to help victims having physical injury leading to financial difficulty as a result of a crime. It covers medical expenses and lost wages, property losses in some cases, and some victims do not need to always prove financial difficulty. A compensation claim can be filed by the victim, or by the surviving spouse, parent, child or dependent of a victim who dies as a result of a crime; or a person who pays for a victim’s burial expenses. A claim can only be filed for costs not reimbursed from some other source.

Victim's right to be free from harassment and intimidation

A victim has a right not to be threatened or intimidated; witness intimidation is a crime. The judge has the power to issue an order of protection to the victim to stop the defendant from having any contact with the victim. If the defendant is out of jail on bail, the bail can be revoked. When the victim must appear to testify in court, the district attorney should provide a secure waiting area so that the victim need not have any contact with the defendant or the defendant’s family or friends.

Stolen Property

Once the case is completed, a victim has the right to have his/her property promptly returned. If you are unable to get this property back from the State, your attorney can help you get the answers you need.

Restitution and Civil Actions

If a judge orders the defendant to pay money to the victim (“restitution”) as part of his/her criminal sentence,  the victim still has the right to file a civil suit against the defendant for any damages over and above the amount of restitution paid.

The above described rights and benefits are not automatic, and only by the victim’s active pursuit are these rights and benefits utilized.

Use of Force

Use of Force: If you resist, a police officer may use all necessary means to restrain you, including force.

Citizen's Arrest

Citizen’s Arrest: A private citizen may arrest you without a warrant if you have committed a felony in fact or if you have committed a non-felony in his presence. He should tell you the reason for the arrest. If you are arrested by a private citizen you must be taken before a judge or turned over to a police officer “without unnecessary delay.”   You may sue a private citizen for unlawful arrest if you did not commit any crime, even if the individual had reasonable cause to believe you had committed a crime.  You may use reasonable force to resist an unlawful arrest being made by a private citizen; however, what amount of force is “reasonable” is a complex legal question answered only by the facts of a situation and the law.

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