This topic is of particular relevance given the publicity surrounding the indictment, arrest and detention of Sean “P. Diddy” Combs in the Southern District of New York this week. Both at the Magistrate-Judge at the initial hearing, and the District Court Judge hearing the appeal the following day, held that no conditions of release could assure that Mr. Combs would not be a danger to the community, in particular the risk of witness tampering and obstruction in his case.

In the federal system, most people charged with non-violent offenses are released after their first appearance before a Magistrate-Judge on conditions. Those conditions are to reasonably assure the appearance of the person as required and the safety of any other person or the community. 18 U.S.C. §3142(c). Those conditions of release could be as simple as release on an unsecured appearance bond, meaning no property or money is posted, travel restricted to the continental United States, surrender of passport, surrender of any firearms and reporting to Pretrial Services as required. For certain serious cases, the conditions of release could be very stringent, including home detention with electronic monitoring where the person is only allowed out of the home only for preapproved visits with their attorney or medical appointments, surrender of family members’ passports, the posting of properties with substantial equity, and release to third party custodians who are responsible to report any violations of the conditions of release to the court.

Pretrial Services (PTS) is an arm of the court that interviews the charged individual about their background, prior addresses, any prior criminal record, assets and liabilities, frequency of travel outside the United States and any health or mental health issues. After reviewing the charges and the person’s history, PTS makes a recommendation to the court as to the conditions of release.

In determining whether there are conditions of release that will reasonably assure the appearance of person and the safety of any other person or the community, the Court must consider the factors set forth in § 3142(g), not one of which is dispositive and all of which must be weighed with the underlying principle that only “a limited group of offenders” should be denied bail pending trial. Those factors include:

1. The nature and circumstances of the offense charged, including whether it is a crime of violence;
2. The weight of the evidence against the person;
3. The history and characteristics of the person, including the person’s character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, drug or alcohol problems, criminal history and any past record of missing court appearances; and the nature and seriousness of the danger posed to any person or the community if the person was released, including intimidation of prospective witnesses or jurors.

If the government moves for pretrial detention, risk of flight must be demonstrated by a preponderance of the evidence that no conditions of release can reasonably assure the presence of the defendant at trial. Dangerousness requires proof by clear and convincing evidence that no conditions of release can reasonably assure the safety of others or the community. Certain violent or drug crimes carry a presumption of detention that must be overcome by the defense to secure the person’s release pending trial. The rules of evidence and admissibility do not apply for these hearings and the government may proceed by way of proffer or witnesses. The defense has the opportunity to present their own witnesses, cross-examine any government witnesses and the defendant has the right to testify.

In the case of Sean Combs, the sex trafficking charge carries a rebuttable presumption of pretrial detention. In anticipation of these charges, his attorneys took several proactive steps to position their client in the best possible way to overcome this presumption. They had Mr. Combs pay off the remaining mortgage on his Miami home so that it could be posted as part of a $50 million bond, put his private jet up for sale so that it couldn’t be used to flee the jurisdiction, surrendered his and his family members’ passports, offered to have his travel restricted to the SDNY, SDFL and DNJ, have family members co-sign his bond, and be under strict conditions of home detention with electronic monitoring. In addition, they argued that Mr. Combs has known about the investigation and likely charges for many months and had cooperated with grand jury subpoenas and remained in the jurisdiction even though he had ample opportunity to flee.

Despite the extraordinary amount of bond and extremely strict set of conditions offered by the defense, two judges rejected those arguments and ordered that Combs be detained pending trial. The defense immediately announced that those decisions would be appealed to the Second Circuit for further review by a three judge panel.

Stahl Gasiorowski Criminal Defense Attorneys have successfully argued scores of bail and detention hearings, as well as successfully appealing detention orders. Stahl Gasiorowski Criminal Defense Attorneys actively and aggressively protect clients’ rights and offer big law skills at boutique firm prices. To contact us call 908.301.9001 for the NJ office and 212.755.3300 for the NYC office, or email Mr. Stahl at rgs@sgdefenselaw.com or Laura K. Gasiorowski at lkg@sgdefenselaw.com.

Newly sworn in Manhattan District Attorney Alvin Bragg issued new policies and procedures to his staff that substantially altered existing office policy in prosecuting criminal cases. The new directive defers certain prosecutions for lower-level offenses, reduces certain felony offenses, prohibits seeking life in prison without parole, and prohibits seeking bail except in limited violent offenses.

Bragg ran on a progressive platform that promised to overhaul the system and to reduce the number of people behind bars. His first major directive seeks to implement his ideology toward charging, bail and sentencing in the face of rising crime rates throughout the city and calls from officials and the public to crack down on crime. The new policies are a reflection of the DA’s personal experiences growing up in New York, as well as his goal to link safety with fairness.

In broad strokes, the new policy calls for

1. More diversion and alternatives to incarceration for individuals in crisis and youthful offenders;
2. Reduction in pretrial incarceration, recognizing the ongoing multitude of problems in Rikers, limiting such incarceration to violent crimes and limited exceptions;
3. A focus in sentencing on accountability rather than the length of the sentence as research shows that certain longer sentences do not deter crime or provide greater community safety;
4. Limit youthful offenders (up to age 25) in adult court system; and
5. Actively support those reentering society after their prison terms.

This sweeping directive affects decisions regarding charging, pretrial
detention, dispositions, cases involving juveniles and charges against non-citizens. It represents a major shift in existing policy that called for charging the most serious offenses possible in the majority of cases. As for non-citizens, the directive calls for avoiding dispositions that would affect immigration status and lead to potential removal from the country.

Many of the directive’s goals are laudatory and long overdue. Prosecutors around the country routinely and reflexively charge the most serious possible offenses rather than examining the specific facts, background of the individuals, mitigating circumstances and other relevant information. At the charging phase, defendants are broadly categorized and face lengthy prison sentences.

The new policy requires ADAs to examine each case individually, based on the type of the offense, the age and circumstances of the defendant and other relevant factors. By doing so at the charging phase, rather than at sentencing where many jurisdictions limit judges’ discretion through sentencing guidelines and mandatory-minimum laws, DA Bragg believes that fairness will result in greater safety to the community. Time will tell whether the new policy will yield the intended results.

Stahl Gasiorowski Criminal Defense is here for all your criminal legal needs. We are experienced in all types of complex criminal matters involving a many types of electronic evidence. To contact the firm’s NJ office, call 908.301.9001 and to contact the firm’s NYC office, call 212.755.3300, or email Mr. Stahl at rstahl@stahlesq.com.

In the federal system, most people charged with non-violent offenses are released on conditions after their first appearance before a magistrate judge. Conditions of release are meant to reasonably assure the appearance of the defendant in court as required, as well as the safety of any other person or the community pursuant to 18 U.S.C. §3142(c). Conditions may be as simple as release on an unsecured appearance bond (meaning no property or money is posted); travel restricted to the continental United States; surrender of one’s passport; surrender of any firearms; and telephonic or in-person reporting to Pretrial Services. In certain serious cases, conditions of release could be very stringent, requiring home detention with electronic monitoring where the person is only allowed out of the home for pre-approved visits with their attorney or medical appointments; surrender of family members’ passports; the posting of real properties with substantial equity; and release of the defendant to third party custodians who are required to report any violations of the release conditions to the court.

What conditions, if any, the court mandates depends in part upon the recommendations of Pretrial Services (PTS). PTS is an arm of the court, and interviews the charged individual about their background; prior addresses; prior criminal record; assets and liabilities; frequency of travel outside the United States; and the existence of any physical or mental health issues. After reviewing the charges and the person’s history, PTS gives the court its position, relaying whether it believes release on conditions is possible and what conditions, if any, the court should order.

The magistrate judge presiding over the detention hearing has the final say on a defendant’s release, and can choose to adopt Pretrial Services’ recommendations in whole or in part, or reject them entirely. In determining whether there are conditions of release that will reasonably assure the appearance of a person and the safety of any other person or the community, the court will consider the factors set forth in § 3142(g), not one of which is dispositive and all of which must be weighed with the underlying principle that only “a limited group of offenders” should be denied bail pending trial.

Those factors include:

1. The nature and circumstances of the offense charged, including whether it is a crime of violence;
2. The weight of the evidence against the person;
3. The history and characteristics of the person, including the person’s character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, drug or alcohol problems, criminal history and any past record of missing court appearances; and
4. The nature and seriousness of the danger posed to any person or the community if the person was released, including intimidation of prospective witnesses or jurors

If the government moves for pretrial detention, risk of flight must be demonstrated by a preponderance of the evidence; it must prove that no conditions of release can reasonably assure the presence of the defendant at trial. Dangerousness requires proof by clear and convincing evidence that no conditions of release can reasonably assure the safety of others or the community. Certain violent crimes and drug offenses carry a presumption of detention that must be overcome by the defense to secure the person’s release pending trial. The rules of evidence and admissibility do not apply to these hearings, and the government may proceed by way of proffer of evidence or witnesses. The defense has the opportunity to present their own witnesses, as well as cross-examine any government witnesses, and the defendant has the right to testify.

Stahl Gasiorowski Criminal Defense has successfully argued numerous bail and detention hearings, as well as successfully appealed detention orders. We at Stahl Gasiorowski Criminal Defense Lawyers aggressively defend individuals charged with complex federal and state crimes. To contact the firm, call 908.301.9001 for the NJ office and 212.755.3300 for the NYC office, or email Mr. Stahl at rstahl@stahlesq.com.

I’ve posted before about the line of case following United States v. Trujllo-Alvarez, 900 F. Supp. 2d 1167 (D.Or. 2012), which held that ICE could not detain and attempt to remove a non-citizen defendant charged with the federal crime of illegal re-entry, once the defendant has been released under the Bail Reform Act. Trujillo and its progeny affirm that when the Executive Branch decides that it will defer removal and deportation in favor of first proceeding with a federal criminal prosecution, it is obligated to follow all applicable laws governing such prosecution, including, of course, the Bail Reform Act. Once the Secretary of Homeland Security opts for prosecution over deportation, and invokes the jurisdiction of the district court, that court has priority, and administrative deportation proceedings stall until and unless the criminal prosecution concludes or is dismissed. United States v. Blas, Crim. Action No. 13-378, 2013 WL 5317228, at *3 (S.D. Ala. Sept. 20, 2013). In United States v. Galitsa, 17 Cr. 324 (VEC), Judge Caproni followed the Trujillo-Alvarez reasoning, as did Judge Irizzary in United States v. Rosario Ventura, 17-cr-418, in the Eastern District of New York, holding that the Government must either release the defendant under the bond conditions set in the matter and proceed with prosecution, or dismiss the indictment and proceed with removal.

Now in another opinion out of the Eastern District of New York, United States v. Benzadon Boutin, No. 17-cr-590 (DLI), Judge Irizzary has reiterated that Trujillo and the line of cases issuing from this decision stand for more than just the narrow proposition that ICE custody cannot be used to end run around a district court’s order of release under the Bail Reform Act. In that case, the Government invoked the jurisdiction of the Court, charging defendant with non-immigration related federal crimes, including money laundering, and consented to his release on bail bond. Simultaneously, DEA agents were seeking an ICE detainer which they then lodged, so that once the defendant met his bail conditions, he was taken into ICE custody. The original date for the removal proceeding was advanced, with no explanation; as a result, the defendant was unable to retain counsel and was ordered removed in absentia, making ICE detention mandatory despite the fact that ICE’s own regulations provide that removal of an alien during the pendency of a criminal prosecution is prejudicial to the interests of the United States. 8 C.F.R. Section 215.3(g).

As one may imagine, the Court criticized the lack of coordination between the Department of Homeland Security and the DOJ, and marveled that DHS, under the auspices of ICE, would deport an alien regardless of the prejudice to criminal prosecution and in flagrant violation of the Bail Reform Act, especially in light of case law, statutes and DHS’s own regulations which would seemingly permit guide the resolution of how to proceed when there are pending immigration and criminal proceedings. Rejecting all of the Government’s rather weak attempts to distinguish the case from Trujillo and Ventura, the Court cited its grave concerns over the apparent denial of defendant’s due process rights by the machinations of DHS and ICE.

The Court did more than chastise the government for attempting to simultaneously pursue civil and criminal remedies despite the constraints of law and immigration regulations, however. In anticipation of an order of dismissal of the criminal indictment, the government requested a dismissal without prejudice, and a stay in order to seek an appeal.The Court was having none of this, observing quite correctly that dismissal without prejudice would frustrate the very purpose of dismissal, which was to force the government to make a choice: prosecution or removal.The Court also rejected the request for a stay, and ordered the government to make a decision either to release the defendant from ICE custody and proceed with the criminal case, or to retain the defendant in ICE custody and proceed with removal.

Stahl Gasiorowski Criminal Defense Lawyers aggressively defend individuals charged with complex federal and state crimes. Founder Robert G. Stahl is recognized as one of the top criminal defense attorneys in the NY/NJ area for his skills, knowledge and success. To contact us to discuss your case, call 908.301.9001 for our NJ office and 212.755.3300 for our NYC office, or email us at rgs@sgdefenselaw.com.

In the federal system, a person may be charged and arrested by way of a complaint or indictment. A complaint is a written statement of essential facts establishing the offense charged made under oath by the agent before a magistrate-judge. Based upon the complaint, an arrest warrant may be issued upon the establishment of probable cause to believe that an offense has been committed and that the defendant committed it. The warrant must list the defendant’s name, or description by which he can be identified, the offense charged, command that the defendant be brought without unnecessary delay before a magistrate-judge and be signed by the judge.

An indictment is returned after a properly impaneled grand jury, consisting of 23 grand jurors with a minimum quorum of 16, hears evidence from the U.S. Attorney’s Office and at least 12 grand jurors find probable cause to believe that a crime has been committed and that the defendant committed the crime. The grand jury presentation is done in secret, with evidence presented by the prosecution through agents and witnesses. The defendant, and his counsel, are not permitted to attend and may not even be aware of the grand jury investigation or presentation. Once the grand jury votes on the indictment drafted and presented to them by the Assistant U.S. Attorney (AUSA), an arrest warrant may issue by a magistrate-judge based upon the probable cause finding of the grand jury.

If a person is charged by way of a complaint, they are entitled to a preliminary hearing before a magistrate-judge within 14 days of the arrest to determine whether there is probable cause that the crime charged was committed by the defendant. At such a hearing, the defense may cross-examine adverse witnesses and may introduce evidence. However, most defendants, if they do not waive the preliminary hearing, are indicted by a grand jury before the scheduled hearing as the government usually does not want to reveal and expose their witnesses and case to the defense at this early stage.

In either event, the magistrate-judge will set the conditions of release, or in particularly serious cases to pre-trial detention, at the initial appearance. In the federal system, if the defendant is released on bail, the judge will set the conditions of release which customarily require the signing of a bond by the defendant and other responsible parties, travel restrictions to the District of the offense or the person’s home state, surrender of passport, and other conditions to reasonably assure the defendant appears at all court proceedings and is not a danger to the community.

Stahl Gasiorowski Criminal Defense Lawyers aggressively defend individuals charged with complex federal and state crimes. Founder Robert G. Stahl is recognized as one of the top criminal defense attorneys in the NY/NJ area for his skills, knowledge and success. To contact us to discuss your case, call 908.301.9001 for our NJ office and 212.755.3300 for our NYC office, or email us at rgs@sgdefenselaw.com

When an individual is charged with a federal crime, whether by Complaint or Indictment, they are entitled to a Bail Hearing under Title 18 U.S.C. Section 3141 et seq. Under the relevant statute, a person may be released on a personal recognizance bond or unsecured appearance bond; on a condition or combination of conditions; or detained. The standard for the court is whether the person will appear for all proceedings and not be a danger to the community.

A personal recognizance bond or unsecured appearance bond is a document that the defendant signs, at times along with other family members or friends who are “responsible parties,” that states that the defendant will abide by all conditions of release and appear at all court appearances. If the defendant fails to do so, he and the responsible parties will owe a set sum of money to the government. In the District of New Jersey, even an unsecured appearance bond may result in a lien being placed on the signors real estate holdings until the case is completed.

Release on conditions — or a combination of conditions — is done to reasonably assure the court that person will appear and will not endanger the safety of any other person or the community. Such conditions may include: that the person not commit any other federal, state or local crime; remain in the custody of a designated person; maintain employment or continue in school; no drug or alcohol use; avoid all contact with victims or witnesses; regular reporting to Pre-Trial Services; the setting of a curfew; travel restrictions; electronic monitoring; no firearms in house; undergo psychological counseling; execution of an agreement to forfeit property is there is a violation of these conditions; or any other reasonable condition set by the court.

If no combination of conditions can reasonable assure that the person will not flee or is a danger to the community, then the court may order that person to be detained. Certain violent crimes and drug offenses have a presumption of detention that the defendant must overcome to be released.

The court has wide discretion in setting the combination of conditions for release. Property may be posted by the defendant or close friends or family members. The court will require sufficient equity in the property to satisfy the monetary amount set for bail, and will require a copy of the deed, proof that the mortgage and taxes are up to date, and an appraisal of the property. The court will also limit the defendant’s travel, usually to the District or state of the charges, with permission to travel outside of that area with preapproval by the court and/or Pre-Trial Services. The court may also require electronic monitoring – usually a device placed on one’s ankle – that alerts Pre-Trial Services if the person leaves their home during hours they are not permitted to.

Often, defense counsel and the Assistant U.S. Attorney, working with Pre-trial Services, can agree on a set of conditions for release. When no agreement can be reached, then the individual must have a contested bail hearing before a Magistrate-Judge who will determine whether there is a combination of conditions that will insure the defendant’s appearance and the safety of the community.

Regardless of how stringent the release conditions, none of the time on pre-trial release is counted towards the person’s sentence. Even strict home confinement with electronic monitoring does not count. Only pre-trial detention is counted as part of the ultimate sentence.

Experienced federal criminal defense counsel is essential when an individual is charged with a federal crime. The requirements to be released can be complex and are always case specific.

Stahl Gasiorowski Criminal Defense Lawyers aggressively defend individuals charged with complex federal and state crimes. Founder Robert G. Stahl is recognized as one of the top criminal defense attorneys in the NY/NJ area for his skills, knowledge and success. To contact us to discuss your case, call 908.301.9001 for our NJ office and 212.755.3300 for our NYC office, or email us at rstahl@stahlesq.com.

The change has been dramatic for criminal practitioners, who must learn a brand new procedural system and engage in frequent litigation over the yet-unresolved legal questions in the gray areas of the statute. But it is has been even more dramatic for certain defendants who, having been accused of a crime, now must spend several days in jail until they have the opportunity to appear before a judge and plead for release, rather than being able to secure immediate release by posting monetary bail. In this new bail regime, the fast retention of competent counsel is critical, not only to secure the defendant’s release, but also to obtain valuable information about the State’s case during newly-expanded pretrial hearings.

Why Bail Reform?

Bail Reform is rooted in the principles that defendants are presumed innocent until proven guilty, and that no defendant should be penalized with incarceration as a direct result of his or her inability to post monetary bail. Notwithstanding the presumption of innocence afforded defendants in New Jersey, prior to Bail Reform, on average more than 5,000 people were incarcerated in New Jersey county jails awaiting trial at any given time. More than 12% of inmates were held because of their inability to post $2,500 or less. The primary purpose of Bail Reform is to remove economic considerations from the difficult question of whether a defendant, who is presumed innocent, should be held in jail until trial.

The Process

Prior to Bail Reform, judges set a monetary bail based on the severity of the offense, the defendant’s prior record, and other factors related to the likelihood that the defendant would appear in court if released. A chart contained ranges of monetary bail for given offenses, and judges normally set a monetary bail within that range. The process of setting a bail usually took minutes for any given defendant, and the process was typically complete within a few hours of arrest. A defendant with the resources to post monetary bail could often secure release even before he or she was transferred to county jail.

Under the old system of monetary bail, the defendant would simply lose his bail money if he failed to appear in court, providing the incentive to be present at future court proceedings. Legally, the only purpose of bail under the old system was to secure the defendant’s presence at the next proceeding – not to promote public safety – though in practical terms, prosecutors requested high bails to protect the community on those defendants they felt were likely to reoffend. The new system of bail does away with that fiction, and makes likelihood of re-offense one of the primary determinants of whether a defendant will be detained until trial. The factors the court now considers are the following:

1. The Public Safety Assessment

Under Bail Reform, any defendant who is charged on a warrant is temporarily detained in jail to allow the preparation of a “risk assessment” that includes a recommendation to the judge whether the defendant should be detained, released, or released with certain conditions. The risk assessment, known as the “Public Safety Assessment”, or PSA, attempts to objectively measure a defendant’s risk of absconding or committing another offense if released, using metrics such as age; the nature of the charged offense; whether the defendant had another charge pending at the time of the present offense; and whether the defendant has prior convictions, prior violent offenses, prior failures to appear in court, and whether the defendant was previously incarcerated. Each of those factors generates a score, and the total determines whether the PSA will recommend release or detention. Perhaps most important to defendants, however, is the fact that the statute affords a full 48 hours from the time of arrest for completion of the PSA. That means that a person arrested on a warrant will wait in jail for up to 48 hours just to get to the first step in the process.

1. Conditions of Release, Pretrial Supervision, and Electronic Monitoring

Prior to bail reform, there was no official mechanism for the widespread use of technology-based alternatives to pretrial detention, such as GPS monitoring and remote reporting. Unlike the federal system of pretrial release, which the New Jersey system largely emulates, there was no administrative agency in New Jersey dedicated to the monitoring of defendants out on bail. Now, the court may order that a defendant report to a pretrial services program or be placed on home supervision with electronic monitoring, under the supervision of pretrial services.

1. The Prosecutor’s Motion for Detention and the Detention Hearing

The statute also authorizes the prosecutor to file a motion seeking detention of a defendant if the defendant is charged with certain serious crimes (or any offense involving domestic violence, regardless of severity), or where the prosecutor believes there is a “serious risk that the defendant will not appear in court as required, will pose a risk to another person or the community, or will attempt to obstruct justice.” A successful motion for detention means that the defendant must stay in jail until his trial. The constitutional right to bail that was previously afforded all defendants no longer exists, but the prosecution must make a greater showing of proof at the detention hearing.

If the prosecutor files a detention motion, a defendant is entitled to a hearing within three days. At the hearing, the defendant has the right to counsel, the right to testify, present evidence, cross-examine witnesses, and to present information by proffer (though the precise evidentiary parameters of the detention hearing are the subject of pending litigation). Such detention hearings did not exist under the old bail regime.

Quite significantly, at the detention hearing the prosecutor must also “establish probable cause that the eligible defendant committed the predicate offense.” Never before has the prosecutor had a duty to establish “probable cause” or present evidence at such an early stage of a criminal proceeding. So while it is never a positive for a defendant to be the subject of a prosecutor’s motion for detention, the silver lining is that the defendant’s attorney will gain an invaluable opportunity to obtain discovery and cross-examine witnesses. A savvy defense attorney understands that bail reform provides new tools by which to build a strong defense early in a prosecution.

The overall impact of the detention motion on the liberty of defendants remains to be seen. It is premature at this point to conclude whether a given defendant who might have made bail under the old system will now be forced to wait for his trial in jail. The decision on whether to release a defendant with conditions is made by individual judges.

Speedy Trial Guarantees

The Bail Reform legislation also places time limits on prosecutors to reach certain stages of the prosecution. A defendant who is detained must be indicted (i.e., the case presented for a finding of probable cause by a grand jury) within 90 days), or else the defendant must be released. A defendant who is detained must go to trial within two years of being detained, or he must be released, notwithstanding the risk to the community.

The Challenges in Implementation

The primary challenge facing the courts, prosecutors, and defense attorneys is the dramatic increase in litigation at the early stages of a criminal case. Whereas judicial involvement in a case was fairly minimal until months after an arrest, now an extremely important decision – whether the defendant must remain in jail until trial – is made within days of arrest, in many cases with a criminal investigation still ongoing. This places great pressure on prosecutors and police to build their cases quickly, as they will have to establish probable cause at a hearing within just a few days. As this article is being written, several appeals are being litigated to establish how much discovery must be provided to a defendant and the extent to which the State must present witnesses at detention hearings. And the simple increase in court time will tax judicial resources across the board.

How Defendants Can Benefit

Obviously, the greatest benefit of Bail Reform accrues to those defendants of limited means who would have remained in jail on relatively minor charges due to their inability to pay monetary bail. But Bail Reform is not just about economic equity. Experienced practitioners understand that the new procedural vehicles created by Bail Reform also provide new opportunities to learn more about the State’s case – and perhaps even cross-examine critical witnesses – early on in the proceeding. A good defense attorney, if retained early, will be able to spot weak cases sooner and will gain ammunition by which to mount more efficient and focused independent investigations.

Here at the law offices of Stahl Gasiorowski Criminal Defense Lawyers, we see Bail Reform as a way to get even better outcomes for our clients. If you or a loved one has been arrested on an indictable charge, it is imperative to retain an experienced defense attorney who understands the finer points of Bail Reform.

Stahl Gasiorowski Criminal Defense Lawyers aggressively defend individuals charged with white collar crimes, domestic violence, drug crimes and criminal charges. Mr. Olesnycky’s cases have been widely covered in the news, including the New York Times, CBS This Morning, NBC4 New York, the Associated Press, the Boston Globe, NJ.com, the Star Ledger, and ESPN. To contact us to discuss your case, call 908.301.9001 for our NJ office and 212.755.3300 for our NYC office, or email us at aolesnycky@stahlesq.com.

When a person is arrested and charged with a crime, they are in most cases entitled to bail. Bail is not supposed to be punitive, rather it is designed to help insure that the person charged attends all court appearances and follows all conditions of release set by the court. Standard conditions may include travel restrictions to the state, no additional arrests, to report any contact with law enforcement (including motor vehicle stops), surrender of all weapons, regular reporting to pretrial services, and an order against contacting the alleged victim, if applicable.

In many jurisdictions, whether bail is granted and what form the bond takes, is informed by bail schedules or guidelines. The court will usually examine the person’s ties to the community, the nature of the offense, the person’s prior record, their financial circumstances, the amount and frequency of out-of-country travel, their work history, family circumstances and citizenship status.

In setting bail, a judge typically has four choices:

1. Refusing to grant bail at all (most common in federal system);
2. Allowing an unsecured bond, otherwise referred to as personal recognizance;
3. Requiring a cash bond; or
4. Permitting a secured or corporate surety bond

An unsecured bond allows the accused to be released without paying any money up front. The person signs a document attesting to the conditions of release and agrees to abide by those conditions. Should the person violate any of the terms of release, they may face additional charges or a new bail with a monetary amount set or detention.

The most typical bail requires a specific amount of money to be posted. If the person posts the bail amount himself, the funds will be returned upon the completion of the case if all requirements have been met. If the person violates the conditions, or becomes a fugitive, the bond amount will likely be forfeited. If the person uses the services of a bail bondsman, they will usually incur a fee of approximately ten percent of the bail amount set. For instance, if the bail is set at $100,000, a bail bondsman usually charges a fee of $10,000. That non-refundable fee covers the insurance bond he must obtain and his profit for posting the bond with the government.

Bail may also be posted by using real property with significant equity. The person may post her own home, or that of family or friends to secure their release. The court usually requires that the equity be as much or more than the monetary amount of bail set. This method usually takes longer to secure the person’s release because the court may require an appraisal, proof that the mortgage and tax payments are current, copy of the deed and the property owner(s) to appear in court.

There are cases in which a magistrate may refuse to grant bail altogether. In serious cases involving murder, kidnapping, large-scale drug distribution and the like, a court may determine that there are no conditions of release that guarantee the safety of the community and that the risk of flight is too great.

While an attorney is not required simply to pay bail to the court or hire a bondsman, it is critical for an experienced criminal defense attorney to represent the person at a bail hearing where the court is determining whether to release the person and on what conditions. An attorney is also necessary to effectively challenge the sum of their assigned bail or the denial of bail.

Stahl Gasiorowski Criminal Defense Lawyers aggressively defend individuals charged with complex federal and state crimes. Founder Robert G. Stahl is recognized as one of the top criminal defense attorneys in the NY/NJ area for his skills, knowledge and success. To contact us to discuss your case, call 908.301.9001 for our NJ office and 212.755.3300 for our NYC office, or email us at rgs@sgdefenselaw.com.

The stages of a criminal case as it proceeds through the legal system can be confusing for individuals who find themselves on the wrong end of legal charges for the first time. Though popular media has no shortage of stories set within the criminal justice system, these fictional depictions often leave out important details. When a substantial portion of your personal and professional future hangs in the balance, it’s critical to have a complete and accurate understanding of the steps through which your criminal case will proceed.

Criminal Arrest

A criminal case begins with an investigation into alleged criminal conduct. The formal process begins when an individual accused of a crime is taken into custody by law enforcement. To make an arrest, the law enforcement officer must either be present at the time the crime is committed and see it happen, or have an arrest warrant for the suspect in question. Arrest warrants may be obtained by law enforcement when they can present probable cause that a given individual committed the crime. There are certain procedures, determined by the jurisdiction, that an arresting officer must follow for a legitimate arrest.

Criminal Charges

The accused has the right to be informed of the crime(s) for which they are being charged, either at the time of the arrest or as promptly thereafter as is practical.

Initial Appearance

This is usually the first occasion on which a given criminal case comes before a judge. Generally the initial appearance must occur within 24 hours of the arrest. During this appearance, the identity of the accused is confirmed, the criminal charges against them are explained, and the accused is informed of their rights (to remain silent, and to be represented by an attorney). Public defenders are assigned to defendants who cannot afford a lawyer.

Preliminary Hearing

An accused defendant has the right to be present and represented by an attorney at this hearing, the purpose of which is to present and challenge evidence that shows probable cause to believe that a criminal act was indeed committed, and that the defendant was the perpetrator. Evidence may be presented at this stage to support or dispute these claims. If the Judge determines that the State failed to demonstrate that there was probable cause to believe that the defendant committed a crime, the charges are dismissed and the defendant released. The State can avoid a probable cause hearing by presenting the case to the grand jury and obtaining an indictment. The indictment is proof that the grand jury found sufficient probable cause to believe that the defendant committed the crime(s)charged.

Bail or Detention Hearing

If not already determined at the defendant’s initial appearance before the court, a separate hearing is convened to establish whether bail is appropriate, and if so, in what amount.

Grand Jury

Felony cases in some jurisdictions involve a grand jury indictment rather than a preliminary hearing. In these cases, a grand jury consisting of private citizens sworn to secrecy hears evidence only from the prosecutor, the defense is not permitted to participate. The grand jury in a criminal case has the power to compel testimony from concerned parties, including the victim. After investigating, the grand jury votes on whether to indict or dismiss.

Arraignment

At this stage of a criminal case, the defendant is formally presented with the charges against them contained in the indictment and enters a plea.

Pre-Trial Hearings

Before the trial begins, both the prosecution and the defense may introduce motions to address outstanding issues pertaining to the case, which are ruled upon by the judge.

Plea Negotiations

Instead of proceeding to trial, the defendant may choose plead guilty to the original charge or a lesser charge, in exchange for some form of consideration from the prosecution – often involving either dropping other charges or recommending a specific sentence. The court has the option to accept or reject the plea agreement; if it is rejected, the defendant may withdraw their plea.

Criminal Trial

If the case is not dismissed or resolved with a plea agreement, it goes to trial before a jury. This is perhaps the most well-recognized portion of a criminal case. Jurors are selected, evidence is presented, witnesses are questioned and cross-examined. The burden of proof rests on the prosecution to prove the defendant’s guilt beyond a reasonable doubt. If they cannot, the defense attorney may ask for a judgment of acquittal.

Verdict

If the trial is completed without a judgment of acquittal, dismissal, or plea agreement, the jury withdraws to consider the facts and reach a verdict, which is then presented to the court. If the jury finds the defendant not guilty, the defendant is released. Otherwise, the case proceeds to sentencing.

Sentencing

The sentence received by the defendant is often determined at a separate hearing. Both the prosecution and the defense present evidence regarding the appropriate punishment, and the judge makes the final determination.

Appeals

You may appeal the ruling in your criminal case to a higher court if you believe an error or inappropriate action resulted in an unfair decision. Appeals are difficult to win, and your attorney can help you determine whether you have grounds for an appeal.

The experienced attorneys at Robert G. Stahl Gasiorowski Criminal Defense Lawyers aggressively defend individuals charged with complex federal and state crimes. Founder Robert G. Stahl is recognized as one of the top criminal defense attorneys in the NY/NJ area for his skills, knowledge and success. To contact us to discuss your case, call 908-301-9001 for our Mountainside, New Jersey office and 212-755-3300 for our New York City office, or email us at rgs@sgdefenselaw.com.