Friday, January 12, 2018

Understanding New York Judges and Plea Bargains

Judges At the Apex of the Legal Triangle
After a few decades of practicing law you start to get a better overview of not only the legal process but the dynamics of how judges think about cases. It is not always the same way because not all judges act, think, or feel the same way about every single case.

That said, there are specific types of judges. I'm not talking about criminal versus civil versus family versus federal versus bankruptcy versus administrative judges. What I am talking about is the overall way that a criminal judge handles the prosecutor/criminal defense lawyer relationship.

What types of New York State criminal judges are there?

How do these judges sort their cases?

How do these judges make final decisions on sentencing?

New York State Criminal Judges in Local Courts Versus County Courts

At the onset, all felonies in New York State will be heard by a County Court Judge. All misdemeanor level offenses will be heard by a judge in a village, town, or a city court judge. Felony cases expose people to prison time of over a year not just local county jail time of up to one year.

Approximately 2/3 of all Village and Town court judges in New York state are not lawyers. They have not gone to law school, they have not passed a bar exam, and they may have little to no experience with legal matters. While that can be frightening to not only lawyers but lay people, those are the facts. Many of these judges are excellent but some may judge in ways IMHO is inconsistent. I respect the judiciary as any licensed lawyer must but I do not always agree with the opinions and decisions of all of the judges.

Most Criminal Cases in NewYork Resolve with Plea Bargaining

Most criminal cases nationwide not just in New York State are resolved with a plea bargain. Trials are risky, outcomes are uncertain, and often taking a chance with six or twelve people is a crap shoot. Misdemeanors in NYS get a jury of 6 people, and felonies get a jury of 12. You can read the statistics but plea bargaining is somewhere between 93% to 96% of all criminal cases. So how a plea bargain goes down is as Important if not more important that any other aspect of criminal defense law.

New York Judges ALWAYS Have the Final Say in Sentencing

In every case the judge has the final word. They make the ultimate sentencing decision. NOT the local ADA (assistant district attorney), NOT the probation department, NOT the police, NOT the county District Attorney... the judge makes the final decision. They either agree or disagree with everyone else. They can agree with the prosecutor, can agree with the police, agree with the probation department OR they can go against everyone involved and make their own decision.

This is where the rubber meets the road. Judges can fall into some general categories. There are hybrids (combinations of categories) but generally speaking after many years standing in front of them, talking with them, and listening (sometimes) the is my take. This is with again all due respect to the judges as well as the process.

The Four Different Types of New York State Criminal Court Judges

I. The Judge that rubber stamps the prosecutor's or prosecution's plea bargain.

Some NY judges will completely go along with the prosecution. The exact terms of any plea bargain between the parties (the defense and prosecution) will be honored to the letter. No changes to any of the sentencing deal. If it's 40 hours of community service it's 40 hours of community service. If it's a $1,000 fine then it's exactly a $1,000 fine. Often this is great from a criminal defense standpoint if you have a great deal from a DA or ADA but not so great if your deal is ok or just plain bad.

Who wants a rubber stamp of a bad plea bargain? Answer, NO ONE!
But a rubber stamp of a good one, everyone.

II. The Judge Who Sets a High-Low or set of conditions to Plea Bargaining

Some judges will give the high and the low to a defendant. They will "promise" to give no more than a certain number of days, weeks, or months of jail. They will state during court that they will go along with whatever the probation department recommends or they will as they say give NO more than the PSI. PSI is the pre-sentence investigation report of the probation department making a recommendation about your criminal case. No more than the PSI means that if probation says they think a conditional discharge (NO probation) is warranted then that's what you will get at sentencing. If the PSI report states they feel that a split sentence (jail plus years of probation) is in order (warranted/needed/appropriate) then that is your final sentence by this judge.

III. The Judge that listens to the DA, the PSI, the Defense, and makes a Surprise Decision at Sentencing

Some judges will state they are willing to listen to everyone. They will take in all the information from all the parties. They will then decide on their own accord entirely what is an appropriate sentence in a criminal case based upon all of it.

This can be scary or great depending on that judge's track history. Yes, even judges have a history, a history of being very harsh on some types of cases or situations and sometimes a lenient history. Not knowing their prior record, their prior history is unsettling to say the least because NO ONE likes that type of uncertainty. Least of all your criminal defense lawyer. Walking into a final sentencing not knowing about incarceration or how the judge is leaning is nerve wracking.

Sometimes this type of judge can offer salvation and redemption because when everyone is against you you need to know hope is not lost. Sometimes you have a district attorney hell bent on punishment and a probation department that writes up a horrible PSI report. In those cases the judge can over ride everyone else's opinion. Offering a reasonable solution because they have the bird's eye view from high above it all.

IV. The Judge that enters into and participates in the Plea Bargaining Process between the parties

Lastly is the judge that joins in with plea bargaining. They do not wait till the end to give their opinion, they have a full on conference with the defense lawyer and the prosecution. They give input, they offer solutions, they ask questions, they are open to receiving early reports, evaluations, and want to know about the particulars of a person and a case.

Some judges also state that if a plea bargain is too generous they will NOT go along with it. They tell the prosecutor and the defense lawyer to go back and come up with another compromise. Yes, every plea bargain is a give and a take, a compromise between the parties to avoid the uncertainties and the risks of a jury trial. Neither party is 100% happy or satisfied but able to live with the agreed negotiation.

New York Judges Can NIX Even Speeding Ticket Plea Bargain Reductions

I have had judges not even accept a simple speeding ticket reduction. Some judges feel as though speeders need to be punished and not just let off easy in their towns. That is why knowing the judge's demeanor towards different criminal charges and situations is so important. How a judge feels about marijuana or harder drugs or older people or younger people or domestic violence can help you prepare a better defense and sometimes a better argument for leniency in any case.

In our best blog post I will discuss how judges deal with plea bargaining in New York state DWI and DWAI drugs cases specifically.

Lawrence Newman is a partner in Newman and Cyr which focuses on DWI and criminal defense in the Fingerlakes region of New York State. contact