Know Your Rights

Miranda Rights

This Article is for informational purposes only and is not meant to give legal advice. If you have an issue concerning the topic in this Article, you should consult a knowledgeable attorney.

You have probably seen cops shows on TV or movies with cop/crime themes where a suspect is given his “Rights”. It is likely that these shows or movies are referring to what are called “Miranda Rights”. The name comes from a landmark US Supreme Court case named Miranda v. Arizona. [384 US 436 (1966)] In that case, the Supreme Court said that a suspect must be given the rights below before questioning:

You have the right to remain silent.
Anything you say, can and will be used against you.
You have the right to an attorney
If you cannot afford an attorney, one will be appointed for you.
Do you understand these rights?
With these rights in mind, do you wish to speak to me?

There are a lot of misconceptions about Miranda Rights. The issue of Miranda Rights only comes into play if a suspect makes statements that the Prosecution seeks to use against that suspect. If there are no statements, whether the police gave or did not give Miranda rights, is immaterial. Law enforcement is only required to give Miranda Rights if the suspect is in “custody” and the questioning is “accusatory”.

In New York State, “custody” is generally defined as to whether the suspect thought that they were free to go at the time of questioning. “Accusatory” questioning generally means that the police think the person/suspect has committed a crime. “Accusatory” questioning is distinguished from “investigatory” questioning, which the police may do before giving Miranda Rights, even if a suspect is in “custody”. The terms ”custody” and “accusatory” have been the subject of thousands of pages of legal decisions. Whether a person is in “custody” or subject to “accusatory” questioning is often dependent on all the factors in a particular situation.

Police have the right to ask persons arrested what is called “pedigree” information. This is background information such as name, address, and date of birth. “Pedigree” information is not subject to Miranda analysis. Another class of information where police do not have to give Miranda Rights is called “spontaneous” statements. Even if a person is in custody and they are being accused of a crime, if a person blurts out information that is not in response to police questioning, those statements can be used against that person at a trial.

Proper police procedure requires the police to give a person arrested the above rights as soon as possible after arrest and certainly before any substantive questioning. There can be situations where Miranda Rights are required before arrest if the person was in custody and they were a suspect.

We have had clients tell us that they were not given their Rights so their case must be dismissed. This is rarely the case. If a Court finds that law enforcement did not properly give a defendant Miranda Rights, the statements made by the defendant in violation, cannot be used by the Prosecution. This is called suppression, or said another way, the statements are suppressed.

If a defendant proceeds to trial, and the prosecution wants to use statements made by him/her against the defendant at trial, a hearing must be held in front of a Judge before the trial begins. In New York State we call this a Huntley Hearing. [People v. Huntley, 15 N.Y.2d 72 (1965)] The Prosecution must show either that Miranda Rights were not required, or, that the Rights were properly given. The Prosecution must prove this beyond a reasonable doubt.

At a trial, defense counsel can argue to a Jury, that the police violated the client’s Miranda Rights, even if the Judge at a previous hearing found no violation. If the Jury believes that the police violated the client’s Miranda Rights, the Jury must disregard the statements made by the client.

Recognizance, Bail, and Jail

This Article is designed to give an overview of Recognizance, Bail, and Commitment in New York State. There can be many variations to the general rules stated below. You should always consult a knowledgeable attorney for your particular situation.

In New York State, a person charged with a crime must be in one of four states relating to custody. The person can be “released in their own recognizance,” which is universally known as “ROR.” This means that the person is not in jail and was not required to post bail. The second state is that a person can have posted bail. More about that below. The third state is that the person can be in jail because they could not post bail. Lastly, a person can be incarcerated without the option to post bail. This is known as Commitment or Remand. Remand also refers to the status of a person in jail who is unable to post bail.

Recognizance, Bail, and Commitment are governed by Article 500 of the NYS Criminal Procedure Law (CPL). The Law was substantially changed effective January 1, 2020. Further amendments were made to the Law, effective July 2, 2020. The reader is cautioned that future changes to the Article 500 may happen soon which may affect the currency of the information in this article.

The 2020 changes to this area of law state, “The court must impose the least restrictive kind and degree of control or restriction that is necessary to secure the principal’s (the person charged with a crime) return to court when required.”[CPL 510.30 (sub 1)] The least restrictive alternative applies to all charges, whether felonies, misdemeanors, or violations. “Dangerousness” is not a factor Judges are supposed to consider before and after the 2020 changes, but it is our opinion that Judges often do consider it when setting bail.

Generally speaking, a person charged with a violation or misdemeanor must be released in their own recognizance (ROR). There are exceptions for domestic violence offenses, sex crimes, and some other crimes.[CPL 510.10 (sub. 1)] A court must also release a person ROR, charged with a “non-qualifying” felony[CPL 510.10 (sub. 4)].”

This generally means a non-violent felony. But there are many exceptions, particularly in the case of domestic violence felonies and non-violent sex felonies. In NYS Law, when analyzing whether a felony is violent, what matters is the classification of the felony, not whether violence actually occurred. For example, a person charged with possessing a loaded operable gun is charged with a violent felony just by having the gun.

Judges can set bail for “qualifying” offenses, which generally means for those felonies classified as violent. Judges have the option of not setting any bail for a “qualifying” offense[CPL 510.10 (sub 4)]. This means the person will remain in jail until the conclusion of their case. This happens rarely, usually only in cases where the person is charged with multiple serious crimes and/or murder, or is a severe flight risk.

There are nine forms of bail: 1. Cash bail, 2. Insurance Company Bail Bond, 3. Secured Surety Bond, 4. Secured Appearance Bond, 5. Partially Secured Surety Bond, 6. Partially Secured Appearance Bond, 7. Unsecured Surety Bond, 8. Unsecured Appearance Bond, and 9. Credit Card.[CPL 520.10 (sub 1)] The terms used above are defined in CPL 500.10. If the Court is setting bail, the Court must set three forms of bail. [CPL 520.10 (sub. 2)] Our experience since the 2020 changes in the law is that invariably the court sets the forms of bail as 1. Cash, 2. Insurance Company Bail Bond and 5. Partially Secured Surety Bond. Courts are supposed to consider the accused’s ability to make bail [CPL 510.30 (1) (f)], but in our experience, this rarely happens.

A court may impose non-monetary conditions on a person whether they are charged with a “qualifying” or “non-qualifying” offense. These conditions are reporting to Pre-Trial Services [CPL 500.10(3-a)], Electronic Home Monitoring [CPL 500.10 (21)] restrictions on travel [CPL 500.10(3-a)], and other related conditions. Our experience since the 2020 changes in the Law, is that Judges do not impose Electronic Home Monitoring or Pre-Trial Services.

Traffic Stops

This article is for informational purposes and is not meant to give specific legal advice. If you feel you have been treated wrongly by police in a traffic stop, you should consult an attorney.

If you are driving, you are required to have a valid driver’s license, the registration for the vehicle, and proof that the vehicle is insured. You must have these documents with you when driving. The registration and “insurance card” can be copies.

Let’s say you are driving and suddenly you see lights flashing in your rear-view mirror and a marked police car behind you. You must pull over as soon as possible where you can do so safely. Once you are pulled over, stay in your vehicle, unless the officer tells you to exit your vehicle. I am assuming the officer will be in uniform driving a marked police car. If you are stopped by a person who says they are a police officer but is not in uniform, ask the alleged officer his name and department and ask to see identification, if you are suspicious the person is not a real police officer. If you are still suspicious, tell the alleged officer you are calling his police department to verify his identity. Call 911 and ask to be connected to the police department the alleged officer says he/she is from. Speak to the person who answers to verify the person who stopped you is who he/she says they are. An officer in uniform should have a name tag displayed. If not, you can ask him/her, their name. If you are issued a traffic ticket, the name of the officer will be on the ticket.

The officer will likely ask you for your license, registration, and insurance card. You should provide these documents. If you do not have any of these documents, tell the officer which documents you do not have. If you have to reach in your wallet or pocketbook or bag to get these documents, tell the officer that is what you are doing. Police officers do not like traffic stop surprises. The officer will probably return to their vehicle to check the status of your license, registration, and insurance. Do not get out of your car unless you are instructed to do so.

At some point, the officer will come back to your car. Even if you have violated some section of the NYS Vehicle & Traffic Law, you may get lucky. The Officer may say something like: “Do you know you were traveling at 30 miles per hour in a 20 miles per hour zone? I am just going to give you a warning this time.” You thank the Officer and be on your way.

You may be given a traffic ticket. The ticket will have instructions on what happens next. Do not ignore the traffic ticket.

It is a matter of discretion and judgment as to whether you should talk to Police for just a traffic violation. In the example above, let’s say that the officer says you were doing 30 mph in a 20 mph zone when first approaching your car. You might want to say “I’m sorry officer, I did not realize that” or any number of statements similar to that.

A deferential attitude and being nice may help you avoid getting a ticket. But you must be aware that any statement admitting guilt will be used against you at a future trial, should you have a traffic trial. It is always a guess as to whether admitting wrong to the officer will benefit you. But it is certain, that in a court, your admission will hurt you. If you are going to “plead” your case to the officer who stops you, do that before he writes a traffic ticket, or it will be too late. You should never argue or be rude to the officer who stops you. Save your argument for the Judge.

The Police may be recording the incident through a police car dashboard camera or a body camera worn by a police officer. If the officer is wearing a body camera, there is usually a small light lit that indicates the camera is recording. You might desire to record the incident on your cell phone camera. This will probably annoy the police officer. But you have the right to do so, if you are openly recording. It is very important that if you reach for your cellphone, you announce to the officer “I am reaching for my cellphone”. You do not want the officer to think you are reaching for a weapon. The recording of the interaction between the officer and you may prompt the officer to issue a traffic ticket, when one otherwise would not have been issued.

If you do not have a valid license and there is no one else in the car, you will be probably be arrested, and the car will be seized. The police cannot let you drive away. If there is a passenger in the car with a valid license, he or she will probably be allowed to drive away. If your registration is invalid, the car may be seized. If your insurance has lapsed, the car may be seized.

The Police may ask you for consent to them searching the car. You do not have to consent. If you have contraband in the car such as an illegal weapon or drugs, do not consent. If the Police tell you that they stopped the car because you are a suspect in a crime, and you did something you should not have done, do not talk to the Police other than to give your name, address and date of birth. If the Police suspect you of a crime, or if their actions lead you to that belief, do not speak to the Police.

If you feel that you have been treated improperly by the officer who stopped you, there may be a few options. You can write a letter to the officer’s chief of police or make a telephone call. If the jurisdiction has a Police Internal Affairs Unit, you can contact them. If the jurisdiction has a Civilian Complaint Review Board or a Civilian Oversight Board, you can file a complaint with them. You can also retain an attorney to present your grievance.