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Feb 24, 2017

What is plea bargaining?

Strategic plea bargaining is an essential part of the criminal justice process. There is no question, that the more criminal case are disposed of through plea bargaining then through hearings and trials. Part of the NY criminal defense lawyer’s job is to provide the best plea bargain for their client and let the client make an educated decision whether to attempt to win at trial or accept a plea bargain. Plea bargains are governed by the criminal procedure law as well as formal and informal policies at particular district attorneys offices. Felonies are governed by CPL 220.10 and misdemeanors are governed by CPL 340.20 for misdemeanors. The goal in plea bargaining is different for felonies then it is for misdemeanors. For misdemeanors the goal is to obtain an Adjournment in Contemplation of Dismissal (“ACD”), or a sealed violation. In felony criminal cases, the goal is to obtain the lowest permissible offense which the defendant could plead guilty to and the minimum permissible sentence under that offense.

Plea bargaining rules:

A criminal defendant can plea guilty to the entire information or indictment except for the charge to murder in the first degree unless the district attorney and the court consents.
If the indictment or criminal court information charges only one count, then the defendant can plead guilty to a lesser included offense to cover the indictment or information. This can only be done with the consent or the district attorney and the judge.
If the indictment or criminal court information charges more then one count, then with the consent of the assistant district attorney and the judge the defendant can plea guilty to
one or more, but not all of the offenses charged
a lesser included offense with respect to any of the offenses charged
any combination of offenses charged and lesser included of the other offenses charged
If you are charged with a misdemeanor the defendant can plead to an information or can waive their right to an information and plead to a criminal complaint. In New York, a criminal defense attorney can recommend the defendant waive prosecution by information, the right to a pre-sentence report, and formal allocution. A pre sentence report can be waived as long as the defendant is not sentenced to any of the following: a) a term of probation, b) a term of city time in excess of 90 days and c) consecutive terms of imprisonment aggregating more then 90 days.

A pre-sentence report can still be waived by mutual consent of the parties and the court if:

a sentence of jail has been agreed to by all of the parties and will be satisfied by the defendants already served jail time (time served)
a sentence or probation has been agreed and has been imposed
a pre sentence report has been prepared in the prior 12 months, or
a sentence of probation has been revoked
If a defendant charged with a misdemeanor waives the pre-sentence report then they can be sentenced at teh time of plea. They “stand ready for sentencing.” In New York City, is it common to dispose of misdemeanor criminal cases by accepting a plea to a violation such as disorderly conduct under PL 240.20 or harassment under PL 240.25.

The plea bargaining restrictions for indicted felony criminal cases in New York are:

If the highest charge in the indictment is for a non-drug class A felony, the lowest permissible plea is to a C violent felony
If the highest charge in the indictment is for a class A1 drug felony, the lowest permissible plea is to an A2 drug felony.
If the highest charge in the indictment is a class A2 drug felony, the lowest possible plea is a class B felony
If the highest charge in the indictment is a class B violent and armed felony, the lowest possible plea a criminal defendant can get is a C violent felony
If the highest charge in the indictment is a class B violent (not armed) felony, the lowest possible plea a criminal defendant can get is a D violent felony
If the highest charge in the indictment is a class B drug felony, the lowest possible plea a criminal defendant can get is a D felony
If the highest charge in the indictment is a class B felony, the lowest possible plea a criminal defendant can get is a class E felony
If the highest charge in the indictment is a class C violent felony, the lowest possible plea a criminal defendant can get is a class D felony
If the highest charge in the indictment is a class C non-violent felony, there are no limitations.
If the highest charge in the indictment is a class D violent felony, there are no limitations.
If the highest charge in the indictment is a class D felony, there are no limitations
If the highest charge in the indictment is a class E felony, there are no limitations.

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Phone

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Phone

888-977-6335

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