New York Criminal Defense Blawg

The short answer to the question above is: probably, but maybe not.  If you have been issued a Desk Appearance Ticket, the chances are that your case is an unusual misdemeanor that required some investigation by the prosecutor, or you are first-time offender charged with shoplifting, theft of services (like jumping a turnstile, for example), marijuana possession in public, or low-level possession of a controlled substance.   If your case falls into the latter category (shoplifting [Penal Law 155.25], theft of services [Penal Law 165.15], marijuana possession in public [Penal Law 221.10], or low-level drug possession [Penal Law 220.03]), and you have a genuine hardship in appearing (say, you live in a far-away state or a foreign country), you may be able to give an affidavit to an attorney authorizing him to appear on your behalf and accept a pre-arranged disposition on your behalf.  This is only true in some counties and in certain types of cases and needs to be arranged with the prosecutor in advance.

If you or a loved one have been given a Desk Appearance Ticket, you should contact the experienced criminal defense attorneys at Galluzzo & Johnson LLP.  They routinely handle a wide variety of Desk Appearance Tickets and have represented countless clients from out-of-state and foreign countries faced with the prospect of long and expensive trips for the sake of quick appearances in court on minor charges.  If you are unable to appear in court for your arraignment because of the distance or hardship, they may be able to help you.

The arrest of a friend or loved one often happens unexpectedly.  The majority of New Yorkers do not have any experience with the criminal justice system and are often thrust into a position of having to deal with the possibility of bail being set.  This post will explain a few factors that go into a judge’s decision as to whether to set bail, explain what steps should be taken immediately before the arrested person sees the judge, and finally, if bail is set, will explain the basic process.

First of all, the question may arise, “What is bail?”  Bail is simply a condition set forth by the Court that the defendant must first comply with before he can be released from the custody of the New York City Department of Corrections.  In most cases, that would be an amount of money designated by the judge in either cash or bond.  The difference between these two methods of bail will be explained later.

It should be noted that in the case of many first-time offenders, no bail will be set at all.  This is because the purpose of bail is to ensure that the defendant returns to court to answer for the charges.  Contrary to popular belief, bail is not supposed to be “preventative detention,” or a way to prevent people from committing future crimes.  Thus, if a defendant is an otherwise law-abiding citizen, and the charge is not serious enough to warrant bail, a judge may simply release him or her on their own recognizance.  This is sometimes called “ROR.”  In other cases, however, a judge may determine that a certain amount of bail is appropriate even for a first time offender.  The criteria that the judge will consider is set forth in the Criminal Procedure Law:

  2.    To  the  extent that the issuance of an order of recognizance or
  bail and the terms thereof are matters of discretion rather than of law,
  an application is determined on the basis of the following  factors  and
  criteria:
    (a)    With respect to any principal, the court must consider the kind
  and degree of control or restriction that is  necessary  to  secure  his
  court  attendance  when required.  In determining that matter, the court
  must, on the basis of available  information,  consider  and  take  into
  account:
    (i)     The  principal's  character,  reputation,  habits  and  mental
  condition;
    (ii)  His employment and financial resources; and
    (iii)  His family ties and the length of his residence if any  in  the
  community; and
    (iv)  His criminal record if any; and
    (v)   His record of previous adjudication as a juvenile delinquent, as
  retained pursuant to section 354.2 of  the  family  court  act,  or,  of
  pending  cases where fingerprints are retained pursuant to section 306.1
  of such act, or a youthful offender, if any; and
    (vi)  His previous record if any in responding  to  court  appearances
  when  required  or with respect to flight to avoid criminal prosecution;
  and
    (vii)  If he is a defendant, the weight of the evidence against him in
  the pending criminal action and any other factor indicating  probability
  or  improbability  of  conviction; or, in the case of an application for
  bail or recognizance pending appeal, the merit or lack of merit  of  the
  appeal; and
    (viii)    If  he is a defendant, the sentence which may be or has been
  imposed upon conviction.

Many of these factors are self-explanatory.  If a person has a prior criminal history, or a record of not showing up to court, the judge will probably set an amount of bail that he or she feels is necessary to secure his or her attendance in court.  However, if the charge is serious, then it is very important to try to retain an experienced New York City criminal lawyer before your friend or loved one sees the judge.  The lawyer will be able to assist in gathering information and proof that the judge will consider in making the court’s bail decision.  This material can include papers considering his or her employment, paystubs, proof of residence, and other material that will be helpful in convincing the court to either ROR the defendant or set an amount of bail that he or she can actually make.

Assuming that the judge sets bail, one needs to be informed as to the precise method specified by the court.  For example, a judge may set bail in the amount of $100,000 bond over $50,000 cash.  The best way to explain this is to start with the cash alternative.  In this example, if a family member has $50,000 in cash, that can be posted to secure the defendant’s attendance, with no other steps being necessary.  Bail can be paid either at the courthouse or the corrections facility where the defendant is being held.  If the bail is going to be made at the court, it is probably best to speak with an attorney to get an idea of how much the bail may be so that you can come prepared with money necessary.  On the other hand, if the defendant chooses to go with the $100,000 bond alternative, he or she must deal with a bail bondsperson.  The bondsperson’s job is simply to gauge the amount of risk he or she is willing to take that the defendant will return to court when required.  In exchange for taking on this risk, he or she takes a fee.  Every situation is different, but a bondsperson will usually ask the friend or family member of the arrested person to pay a percentage of the total bond amount, and then provide some sort of security for the remainder.  Again using the example of a $100,000 bond, the bondsman may ask for $10,000 cash, and the deed to a home or other form of collateral to secure the other $90,000.  At the end of the case, the bondsperson will give you back the cash you posted, less a fee that he or she takes for assuming the risk.

Remember that in dealing with a bondsperson, they may have reporting requirements or “check ins” that will occur periodically to ensure that they are in touch with the defendant.  If the defendant does not comply with the conditions of the bond, the bondsperson can go to the court and ask that the bond be revoked and that the defendant be taken into custody.

With that said, the best possible thing to do is to retain an attorney before the initial hearing because the attorney can do two things: (1) make a reasoned and cogent argument to the judge as to why no bail should be set (“ROR”) or that a lower amount of bail is necessary than what the Assistant District Attorney may ask for and (2) if bail is set, put you in touch with a respectable bail bondsperson and assist in the bail making process.

Should you need advice as to how any of this works, you should contact a New York City bail attorney.

A very common arrest charge in New York City is Theft of Services, a Class A misdemeanor under Penal Law Section 165.15.  It is punishable by up to one year in jail.  Sometimes people get arrested for this crime and have to spend a night in jail, and sometimes they just receive a Desk Appearance Ticket, or DAT, which allows them to come back to court on another date without having to go through Central Booking.

There are eleven different subsections in Penal Law Section 165.15, meaning that it is possible to commit this crime in a wide variety of ways. By far the two most common type of arrests stem from subsections (2) and (3), however.  Subsection 2 states that a person is guilty of Theft of Services when, “[w]ith intent to avoid payment for restaurant services rendered, or for services rendered to him as a transient guest at hotel, motel, inn, tourist cabin, rooming house or comparable establishment, he avoids or attempts to avoid such payment by unjustifiable failure or refusal to pay, by stealth, or by any misrepresentation of fact which he knows to be false.”  Thus, a person who intentionally skips out on a restaurant or hotel bill can be arrested and convicted and sentenced to up to one year in prison.  Plea bargains are common in these types of cases, however, where the accused agrees to pay back the money owed.  Interestingly, though, there is no “aggravated theft of services” charge, meaning that even if the hotel bill is in the tens of thousands of dollars, the worst possible crime that can be charged is an A misdemeanor, generally speaking.  In short, the Grand Larceny statutes in Penal Law Chapter 155 do not apply to restaurant or hotel services.  Perhaps this is one of the reasons why “dining and dashing” is supposedly on the rise at swanky restaurants in New York City.

Subsection 3 states that a person is guilty of theft of services when “[w]ith intent to obtain railroad, subway, bus, air, taxi or any other public transportation service without payment of the lawful charge therefor, or to avoid payment of the lawful charge for such transportation service which has been rendered to him, he obtains or attempts to obtain such service or avoids or attempts to avoid payment therefor by force, intimidation, stealth, deception or mechanical tampering, or by unjustifiable failure or refusal to pay.”

Basically, this is the subsection applied to those people caught “jumping the turnstile” at the subway station, or using a school-issued subway pass on the weekend, for example.  We have also represented people that got into taxis while intoxicated and were arrested after arriving at their destination without any money to pay the driver; again, subsection 3 can apply to this situation.  Finally, we understand that many New Yorkers regularly decline to pay their bus fare, though, in our experience, they are rarely arrested or apprehended.

The other subsections can be quickly summarized as follows:

1. Using a credit/debit card that you know is stolen;

4. Stealing a utility service (gas, electric, cable TV, etc.);

5. Stealing telephone service;

6. Tampering with a meter to avoid paying a fee;

7. Intentionally accepting/receiving utility services when the meter is broken;

8. Tampering with utility equipment with intent to steal said utility service;

9. Attending a movie or theatre show without paying the required admission (i.e. stealing admission);

10. “Stealing” labor – i.e. fooling your employees into doing work that you don’t intend to pay them for;

11.  Stealing computer services.

If you or a loved one have been arrested or issued a DAT for Theft of Services or some other crime, you should strongly consider hiring the experienced criminal defense attorneys at Galluzzo & Johnson LLP to represent you.  Their team of former prosecutors has successfully represented numerous individuals charged with violations of Penal Law Section 165.15, and their prices are reasonable.  Give them a call to schedule a consultation: 212-918-4661.