Ask a Criminal Lawyer in Buffalo NY: I got criminal charges on a felony. When will I be arraigned on the felony?

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An arraignment is the formal entry of a plea to a charge. When the accused is charged and indicted on a felony, the accused generally will be arraigned on the charges in both local court, and once indicted, then in superior court.

Unlike the arraignment in the local court, where the judge decides bail, in the superior court, the accused is presented with the opportunity to enter a plea of not guilty. Although some attorneys may enter a plea of not guilty at the local court arraignment, the more appropriate time to do this is during the arraignment following the indictment. The most precise way to handle the issue at a preliminary hearing is for the Criminal lawyer in buffalo ny to state “I waive a public reading of the charges and reserve the right to enter a plea at the appropriate time and wish to be heard on the issue of bail.” Then, if the accused is indicted, he or she may enter a Not Guilty plea.

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If you are facing criminal charges, contact a Criminal attorney in buffalo ny, criminal attorneys in buffalo new york, Criminal Lawyers in Buffalo Ny or a Criminal Defense Lawyer in Buffalo New York for more information.

Ask a Criminal Lawyer in Buffalo NY: What is the Grand Jury’s Role in a felony criminal trial?

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The Grand Jury is a group of citizens who serve for a definite period of time, whose sole job is to hear felony cases presented by Prosecutors. The Grand Jury includes as few as sixteen but not more than twenty-three people.

To be clear, a Grand Jury does not determine a defendant’s guilt or innocence. A Grand Jury simply decides whether or not they believe there is reasonable cause to believe that the Defendant committed a felony offense.

In the Grand Jury, the District Attorney presents the evidence against the accused. There is no judge in the Jury chamber. It is up to the Prosecutor to make sure that he is following the applicable rules of evidence, or else risk the indictment being subsequently dismissed by a judge. The Grand Jurors are allowed to ask questions and request that they receive proof, such a photographs, testimony from certain witnesses, and or other tangible evidence. As long as what the Grand Jurors’ request is legally permissible, the District Attorney must provide it.

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There is no cross examination of witnesses in the Grand Jury. This is because the defendant and his attorney are not allowed in the chamber. Grand Jury is a secret proceeding. Only if the Defendant chooses to testify, which is his constitutional right, are he and his attorney allowed into the secret proceeding. If the Defendant testifies, the Grand Jurors can ask questions and based upon the testimony, request to hear from other witnesses or see certain documents.

If the Grand Jury believes that a felony has been committed, they vote to indict the person. This is called a true bill. An indictment is not proof of any guilt; it is only the legal mechanism by which prosecutors can proceed to trial. If the Grand Jury believes that no offense has been committed, felony or misdemeanor, they vote to dismiss the charges. This is called a no true bill. The Grand Jury can also reduce the felony charges against a person to misdemeanor charges. This is called voting a Prosecutor’s Information.

Decisions and strategy concerning Grand Jury action are critical for a defendant in a felony and must be considered with the assistance of only a qualified Criminal attorney in buffalo ny

Contact a criminal attorney buffalo ny, criminal attorneys in buffalo new york, criminal lawyer buffalo ny or a Criminal Defense Lawyer in Buffalo New York for more information.

Ask a Criminal Lawyer Buffalo NY: “Do I have a right to obtain discovery in a felony case from the prosecutor before the indictment is filed?”

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Under CPL 240.20(1), when the accused is charged by a felony complaint, and has not yet been indicted, he or she is not entitled to discovery until the grand jury acts. In fact, even in capital cases, this rule applies with equal force.

That being said, just because the prosecution is not under an obligation to provide discovery, there is absolutely no reason the accused should not seek all available information, even remotely relevant to the case. So long as the action can be defended ethically, the criminal defense attorney for the accused should strongly consider moving forward with zealousness.

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Oftentimes, the prosecution will refuse to provide information until the indictment is filed. This absolutely should not discourage Buffalo criminal attorneys for the accused from investigating the case. The criminal defense attorney buffalo ny should reach out to all witnesses, conduct background checks, and take any and all measures to find out any information which could possibly assist in the defense of the accused.

Once the accused is indicted, however, the accused must be provided with discovery, including so called Brady Material, in time for the accused to make proper use of it.

Contact a Criminal attorney buffalo ny, criminal attorneys in buffalo new york, Criminal Lawyers Buffalo ny or a Criminal Defense Lawyer in Buffalo New York for more information.

Ask a Buffalo DWI Lawyer: Can the police search your car after pulling you over?

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The Fourth Amendment to the US and NYS Constitution prohibits the government from unreasonable searches and seizures. Generally, police cannot search your car without obtaining a warrant, your consent, or absent other exceptional situations that create the automobile exception to the warrant requirement.

Now before searching your car, police will obviously need to pull you over. In order to conduct a legal traffic stop, police must have either probable cause or reasonable suspicion.

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PROBABLE CAUSE

Once probable cause is established, police have the legal right to pull you over. For instance, where police believe you violated the Vehicle and Traffic Law, police may pull you over.
On a more general level, you may wonder what is probable cause?

Probable cause is defined under New York Law as “reasonable cause to believe a person has committed an offense exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment, and experience that it is reasonably likely that such offense was committed and that such person committed it.” CPL s. 70.10(2). See also People v. Russell (2005), CPL s. 140.10.

In other words, if police see you commit any traffic infraction under the VTL (e.g., failure to use turning signal), then they have established probable cause necessary under the law to pull you over.

REASONABLE SUSPICION

Police may also stop your car if they have reasonable suspicion of criminal activity by you or others in the car (i.e., committing a misdemeanor or felony). Reasonable suspicion is defined as “the quantum of knowledge sufficient to induce an ordinarily prudent and cautious man under the circumstances to believe that criminal activity is at hand.” People v. Cantor (1975). Thus, to establish reasonable suspicion, police just need to say that they saw you or a passenger in your car committing a crime.

As you can see, it is relatively easy for police to legally stop you while you’re driving a car in the State of New York.

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Now, getting back to the main question, if you were legal pulled over, can police officers search your car?

First and foremost, keep in mind that police can always ask you for your consent allowing them to search your car. In fact, often times that is what they do! Obviously they will not ask you “do you give us consent to search your car?” They will ask you to step out of the car or to open your trunk. If you fail to say that you “refuse” or that you do not consent to the search, you have given them consent. However, if you do not consent, they must end their probe. If they search your car anyway, they are committing an illegal search under the Fourth Amendment. In that case, evidence seized may be suppressed and cannot be used against you in the court of law.

Aside from consent, police can have other legal rights to search your car. At the time of the stop, if police have probable cause to believe that the vehicle contains fruits of the crime or contraband, they can search the car without obtaining a warrant. This search arising from probable cause is known as the automobile exception to the Fourth Amendment warrant requirement. So, let’s say you were pulled over for failing to use a turning signal and officers smell the scent of marijuana coming from your car at the time of the stop, they have probable cause to search your car for more marijuana. “What about the trunk?” you may ask. This includes the search of your trunk because it is reasonable to assume that marijuana can fit into and be kept in the trunk.

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SEARCH INCIDENT TO AN ARREST

Police can also search the car incident to your arrest. This is another exception to the warrant requirement known as a search incident to an arrest. KEEP IN MIND that the law pertaining to the search incident to an arrest is different from the law in situations where probable cause exists. So let’s say you were pulled over for a simple traffic violation – which gives no probable cause to search for weapons, drugs or other evidence of a crime inside of the vehicle – and your driver’s license turns out to be suspended or revoked, you will be arrested, invoking the limited right to search incident to your arrest. At the time of your arrest, police may search the interior of your vehicle incident to your arrest if you, the arrestee, is still inside the car, unsecured and may gain access to the interior of the vehicle. This includes the search of closed containers (e.g., purses, backpacks, etc.) in your vehicle if police believe that you are armed, posing a danger to them or to the public and/or attempting to destroy evidence. But, once you exit your car, officers cannot search any containers in your car to search for weapons or other evidence of crime because you no longer pose a threat of reaching for weapons or destroying evidence.

The search incident to an arrest is limited to your wingspan, which includes your clothing and anywhere in the car where you are able to reach. Keep in mind that an arrest may be custodial. In other words, you do not have to be handcuffed to be arrested. Once you are detained and have no right to leave, you are under custodial arrest. Unlike many other jurisdictions, New York does not give officers the right to search the trunk or any containers (e.g., purses, backpacks, etc.) incident to an arrest UNLESS they have reasonable suspicion of illegality such that you are armed, posing a threat of danger to them or to the public and/or attempting to destroy evidence.

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Let’s say you are arrested for driving while intoxicated (DWI) and indicate no threat of danger to the officers. As they arrest you, officers find a pack of cigarettes in your wingspan (can be in your pocket or in the cup holder) and begin to go through your cigarette pack and find crack. Legally, the evidence of the crack cannot be used against you in the court of law because the search of the “container” in this case is unlawful. A DWI arrest without reasonable suspicion that you are armed, posing a threat of danger to them or to the public and/or attempting to destroy evidence does not give New York police the right to illegally search any closed containers in your wingspan at the time of your arrest.

REMEMBER that in order for police to conduct this type of search legally, the arrest must be lawful, the search must be justifiable such that it is conducted for preservation of evidence and safety of the police officers and public, and the search must be limited in geographic scope such that police officers only search your wingspan. Remember, in NY officers cannot search containers in your wingspan unless they reasonably suspect that you are armed, posing a threat of danger to them or to the public and/or attempting to destroy evidence.

Contact a Criminal attorney in buffalo ny, criminal attorneys in buffalo new york, Criminal Lawyer Buffalo Ny or a Criminal Defense Lawyer in Buffalo New York for more information.

Ask a Criminal Lawyer in Buffalo NY: “What is the difference between fines and criminal restitution in a criminal proceeding in New York?”

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For many crimes, fines and criminal restitution are common punishments. Depending on the situation, you may face one or both, in place of or in addition to prison time.

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What is criminal restitution?

Restitution is payment to victims of a crime. Generally, in New York, where the the victim suffers a financial loss, restitution will be awarded. The payment is intended to make the victim whole again and prevent you from benefiting from your crime.

Several examples include: paying the value of destroyed artwork; covering the costs of medical care for someone you punched; paying the funeral costs of someone who died as a result of your negligence; returning stolen items; or paying back their value.

Victims may be persons businesses, and even the public in cases like welfare fraud. For crimes against society, you’d likely pay the value of your fraudulent activity to a state restitution fund.

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What are criminal fines?

A fine is money paid to the government as punishment for your crime. The amount of the fine is unrelated to the victim’s financial loss. They are common in all kinds of crimes, from infractions to felonies.

In New York, a judge may sentence you to just a fine or may combine it with other punishments like community service, probation or jail time.

For minor crimes—infractions and many misdemeanors—just a fine or a fine plus community service is common, especially for a first offense. For more serious crimes and repeat offenders, common sentences include a fine plus jail time. Depending on your situation, you might be able to plea bargain for a fine plus probation.

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Will you get a fine or have to pay restitution?

In many cases you’ll have to pay both a court fine and restitution to your victim. For serious crimes you may face fines, restitution, and jail time. Your specific punishment will depend on many different things, including what the law says, the facts in your case, and any plea deal you make

It’s usually a good idea to talk with a Criminal Lawyer in Buffalo Ny before making a plea in your case. A criminal attorney buffalo ny can evaluate your case to see if you can avoid a conviction. If not, the criminal defense lawyer buffalo ny can negotiate to get you the best deal possible.

Contact a Criminal attorney in buffalo ny, criminal attorneys in buffalo new york, Criminal Lawyers in Buffalo Ny or a Criminal Defense Lawyer in Buffalo New York for more information.

Ask a Criminal Lawyer in Buffalo NY: “How does a jury work in a criminal case?”

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During the trial, the jury listens to and examines all of the evidence presented. Although jurors have historically not been allowed to ask questions during the trial, some jurisdictions do actually permit juror questions.

While some courts may allow jurors to take notes, the majority of courts do not allow  this practice. Jurors may not discuss the case with anyone else, even other jurors, until deliberation begins.

Before jury deliberation, the jury receives instructions on the law related to the case and the implications of guilty or not guilty verdicts. Jury instructions may also tell jurors how to deal with certain types of evidence or testimony presented during the trial.

Jury instructions also help jurors understand the standards they must reach to convict defendants. The evidence must show beyond a reasonable doubt that defendants committed the crime.

In most states, the jury instructions are a standardized set of guidelines, also called pattern jury instructions, with the name and circumstances of the case filled in. The judge or Criminal Attorneys buffalo ny  for both sides may be able to add additional instructions to cover issues specific to the case.

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Jurors are not permitted to read, watch, or listen to outside news or discussion about the trial, such as newspaper, website, or TV coverage. They may not conduct their own research into the circumstances of the case or into the law.

In exceptional cases, if the jury does not reach an agreement at the end of the first day of deliberations, they may be required to stay in a hotel until the case is over, where their access to outside news and information is restricted.

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Jurors are not allowed to accept money or other benefits from any parties in the trial or in exchange for their votes.

After Criminal Lawyers in Buffalo ny make the closing arguments, jury deliberations begin. Using the instructions given by the judge, the jury evaluates the trial evidence.

The jurors discuss whether the evidence proves beyond a reasonable doubt that the defendant is guilty or not guilty of each of the charges. They may ask for clarification of law or evidence during the deliberations.

Criminal Lawyers in Buffalo New York know the jury’s decision must be unanimous; Oregon and Louisiana are the only states where non-unanimous criminal verdicts are allowed, and even then there are some restrictions on how they may be used.

If the jurors cannot agree on a verdict, the jury is considered “hung” and the case is declared a mistrial. Mistrial cases may be tried again later with a different jury, or the prosecutor may decide not to bring the case again, in which case the charges are dropped and the defendant goes free.

Contact a Criminal attorney in buffalo ny, criminal attorneys in buffalo new york, Criminal Lawyers in Buffalo Ny or a Criminal Defense Lawyer in Buffalo New York for more information.

Ask a Criminal Attorney in Buffalo NY: “I’m on parole for a non-violent offense, a drug sale and was accused of shoplifting at 12am (past my curfew), arrested by the police, and brought into criminal court by buffalo police. What happens next?”

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First, just because an individual is arrested while on parole does not guarantee the Senior Parole Officer will violate him or her. The Parole Officer must do a thorough investigation, including, speaking to witnesses–police officer, store security, a complaining witness—and based upon that, make a determination as to whether there is enough evidence to sustain a charge.

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In the scenario described above, there are three potential “technical charges” the individual can be violated for: (1) breaking the law; (2) staying out past curfew; and (3) and possibly not reporting police contact to his or her Parole Officer

Cases are conferenced between the Parole Officer and the Senior Parole Officer and it is determined whether it is necessary to issue a warrant because either the individuals is a danger to the community, himself, or he is in violation of his parole conditions.

Criminal Lawyers in Buffalo New York should remember that alternatives to incarceration may be considered later in the process, however, at this point the individual is taken into custody, generally, all other alternatives should have been exhausted and sanctions should have been imposed.

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Criminal attorneys in buffalo ny must know that if the Senior Parole Officer decides to issue the warrant, the parolee is taken into custody, and held in jail. As noted elsewhere, a preliminary hearing must occur within 15 days from which the warrant is lodged, and If the parolee waives the preliminary hearing, he or she must have a final hearing within 8 business days of the lodge of the warrant.

Contact a Criminal attorney in buffalo new york, criminal attorneys in buffalo new york, Criminal Lawyers in Buffalo New York, or a Criminal Defense Lawyer in Buffalo New York for more information.

Ask a Criminal Lawyer in Buffalo NY: Know Your Rights: Parole Revocation Process in New York

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What Happens If A Violation Occurs?

When an individual violates a condition of his or her release, such as not making curfew or failing to report to parole officer, a parole violation warrant may be issued. Once the warrant is issued the individual is taken into custody at a local facility and may not be released on bail. Within three days of the warrant being filed, the parolee is served with both a Notice of Violation and a Violation of Release Report detailing the parolee’s rights and the charges against him. Within fifteen days of the warrant’s filing a Preliminary hearing must be scheduled unless the individual waives such hearing.

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What is a Preliminary Hearing?

A preliminary hearing is a brief, informal inquiry into the alleged violations. The purpose of the hearing is to determine whether or not probable cause exists to believe that the individual has violated one or more conditions of their release in an important respect. It is important to note that there is no absolute right to counsel, meaning the parolee may be represented by counsel at the preliminary hearing but the state is under no obligation to provide or appoint a Criminal attorneys in buffalo ny at this stage. At the preliminary hearing the parolee is entitled to:

(1) Speak on his own behalf or obtain a Criminal lawyer in buffalo ny

(2) Introduce letters and documents in support of his case;

(3) Present witnesses to provide relevant information in his favor; and

(4) To confront and cross-examine witnesses testifying against him

If, at the preliminary hearing it is determined that no probable cause exists to believe that the individual has violated a condition of release, the warrant will be cancelled and the parolee will be restored to parole supervision. If probable cause is found at the preliminary hearing or if the parolee waives the preliminary hearing, a member of the Parole Board will review the case and decide whether the parolee will be declared delinquent or restored to supervision. Where the parolee is declared delinquent there is an arraignment during which the parolee may be offered a plea. If the parolee pleads guilty his parole will be revoked and he can be returned to prison or he may be restored to supervision and sentenced to a community program. Alternatively, if declared delinquent parolee will have a final hearing no more than 90 days after the probable cause determination.

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What Is A Final Revocation Hearing?

To revoke an individual’s parole, the Division of Parole must show at the final hearing that it is more likely than not that the parolee violated at least one of the conditions of release in an important respect. The final hearing is more like a standard trial where the Division of Parole will present witnesses and evidence to prove charges and a Criminal lawyer in buffalo ny representing the parolee will introduce evidence and witnesses to counter the charges. The parolee’s rights at the final hearing are essentially the same as those at the preliminary hearing with two additional benefits. Unlike the preliminary hearing, here the parolee has an absolute right to a Criminal lawyer in buffalo ny and has the right to present mitigating evidence in support of restoring parole supervision.

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How Do The Parole Revocation Guidelines Work?

Where it has been determined at the final hearing that an individual has violated one or more conditions of release, parole guidelines mandate a certain sanction or range of sanctions. Under the amended guidelines, criminal history, crime of conviction, number of prior parole violations, and current behavior leading to the parole violation are taken into consideration. The sanctions imposed under the guidelines are intended to provide individuals with a history of violent behavior with the most severe penalties and those with substance abuse problems with the necessary treatment.

Under the new regulations there are five sets of mitigating circumstances which if established, allow for a departure from the mandatory penalties imposed under the revocation guidelines. These include factors such as the parolee’s track record on parole prior to the current violation and whether parolee is the custodial parent or primary caregiver to a dependent child. If one or more mitigating circumstances apply, the parolee can be revoked and restored to supervision if it is determined that: (1) the parolee’s needs could be adequately addressed in the community with supervision; and (2) restoration to supervision would not compromise public safety.

Parole revocation is a highly individualized process that takes into account the various factors and circumstances surrounding individual violations.

Contact a Criminal attorney in buffalo new york, criminal attorneys in buffalo new york, Criminal Lawyers in Buffalo New York, or a Criminal Defense Lawyer in Buffalo New York for more information.

 Ask a Criminal Lawyer Buffalo NY: “Can a criminal court judge set bail on someone being held on a parole violation? If bail is set, is there any reason I should not post it?”

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Criminal Attorneys in Buffalo New York know that regardless of whether the court sets bail, the accused will not be released until the Department of Corrections drops their hold on him. It may be best not to post bail or bond because the time he’s serving involuntarily because of the DOC’s hold will not inure to his benefit later if he should be sentenced to any jail time. In other words, if the accused is likely to be sentenced to serve some jail time, based on discussions you should have with your criminal defense lawyer buffalo ny, then the time he is currently serving will “count” towards the sentence.

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Criminal lawyers in Buffalo New York know that, before posting bail, it is vital that you make sure the hold no longer exists. As Criminal attorneys buffalo ny understand, the worst case scenario is if you were to post bail, but because the hold exists, he nevertheless must stay in jail. Making matters worse, he would not get “good time” jail credit for the time he does because he was effectively “out on bail” and the only thing that kept him in jail was the DOC hold. In other words, it’s better to not post bail for him until the hold is dropped, if it’s dropped.

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Contact a Criminal attorney in buffalo in new york, criminal attorneys in buffalo ny, Criminal Lawyer Buffalo NY, or a Criminal Defense Lawyer in Buffalo New York today.

Ask a Criminal Lawyer Buffalo NY: “I was charged with a misdemeanor. What is that?”

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Criminal attorneys in buffalo new york know a misdemeanor in New York State is defined as a crime punishable by less than one year in prison. There are three categories of misdemeanors in New York:

(1) Class A misdemeanors, such as Petit Larceny and Assault in the 3rd Degree, which are punishable by: –Up to one year in prison –Three years probation, or –A combination of prison (up to 60 days) and three years probation;

(2) Class B misdemeanors, such as Criminal Possession of Marijuana in 5th Degree and Criminal Trespass in the 3rd Degree, which are punishable by: –Up to 90 days jail or –One year probation

(3) Unclassified Misdemeanors, which often fall under the Vehicle and Traffic Law, such as Driving While Intoxicated and Driving with a Suspended License. These offenses can be punishable by up to one year in prison.

Criminal Lawyers in Buffalo New York are aware that New York also has numerous violation-level offenses, such as Disorderly Conduct and Harassment in the Second Degree, which are not considered “crimes” per se but can be punishable by up to 15 days in prison.

Criminal Defense Lawyers in Buffalo New York must advise the accused about the consequences of pleading guilty. First, Criminal Lawyers in Buffalo NY know a misdemeanor conviction becomes part of a person’s permanent criminal record, which can be accessed by law enforcement, government agencies and civilian employers. If you have been convicted of a misdemeanor offense, you have been convicted of a crime.

Often those charged with a misdemeanor offense are arrested and brought to a police station where they are “processed.” A person must be fingerprinted for all felony and most misdemeanor cases and this is typically done as part of the arrest processing. In addition, pedigree information will be taken by the police officer processing the arrest, and the defendant may be questioned about the incident unless the defendant has invoked his right to counsel or an attorney has appeared on his behalf.

The arrest process itself can take several hours. Depending on the time of arrest a defendant may have to spend a night in police custody before he appears in court to be arraigned.

Decisions and strategy in any legal case should be considered only with the assistance of a qualified Criminal Lawyer in Buffalo NY

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