Initial Appearance After Arrest on Federal Charges in NYC
Initial Appearance After Arrest For Federal Crimes In New York City
In all cases where an arrest is made on federal criminal charges in New York City, the arrested person must be taken ''without unnecessary delay'' for an initial appearance which is held before a federal magistrate judge. If a defendant is arrested without a warrant, the government must promptly file a complaint showing probable cause.
The requirement that an individual be produced before a magistrate judge within a reasonable time only applies to cases where the person is the federal custody. However, if the local state officials hold the arrested person, the federal government is not obligated to justify a delay in arraignment. This can be challenged if the defendant can show that the delay was caused by a special agreement between local police and federal authorities to delay federal arraignment in order to allow more time for a federal interrogation.
If there was illegal state-federal collusion to such a degree that custody was, in substance, ''federal,'' then the arrestee is deemed to be in constructive federal custody when held by state officers under state charges, and any prearraignment delay will trigger rights under federal Rule 5(a).
Where a person is arrested under a warrant charging unlawful flight to avoid prosecution, the arresting federal agent does not need to bring the arrestee before a magistrate judge if there is no intent to actually prosecute the arrestee under that charge.
In some circumstances, confessions taken from those arrested on federal charges during or following ''unnecessary delay'' in presenting them before a federal magistrate judge will be dismissed from evidence.
At the initial appearance the judge informs the accused of the charges, apprises him of his Miranda rights, advises of the right to have counsel appointed, and sets the terms of bail.
Although no constitutional right to counsel attaches at the initial appearance, every defendant unable to retain counsel is afforded counsel ''at every stage of the proceeding from initial appearance through appeal, unless the defendant waives this right.'
If the defendant is charged with a misdemeanor only, the judge must inform the defendant of the charge, the minimum and maximum penalties, the right to retain counsel or request an appointment of counsel, the right not to speak, and other procedural rights such as the right to trial before the court unless the charge is a petty offense or the defendant consents to trial before a magistrate judge.
Where the defendant is charged with a felony, the judge must inform the defendant of the following:
- the complaint against the defendant and any affidavits filed with it;
- the defendant's right to retain counsel or to request that counsel be appointed if the defendant cannot obtain counsel, and the right to consult with counsel;
- the circumstances, if any, under which the defendant may secure pretrial release;
- any right to a preliminary hearing; and
- the defendant's right not to make a statement, and that any statement made may be used against the defendant.
The magistrate judge must allow the defendant a reasonable opportunity to consult with counsel. The judge will determine whether to release the defendant or keep him in custody.
A person charged with a felony, or with a misdemeanor other than a petty offense, is entitled to a preliminary hearing at which he must be formally charged by a magistrate judge. The preliminary hearing must be held within a reasonable time, but generally no later than 10 days after the initial appearance if the defendant is in custody, or 20 days after the initial appearance if the defendant is not in custody.
