Welcome to Criminal
Law and Procedure
What are we doing?
The People of the State of New York
v
Mike Delta and Alfred Camp
The Problem
The People of the State of New York
v
Mike Delta and Alfred Camp
Mike Delta and Alfred Camp have been
arrested. Here is what happened.
On September 6, 2011, at approximately 12:30
am, Police Officers Frank Able and Officer Sal
Baker were on road patrol in Queens, when a
young woman, Patty (complainant) approached
their car.
She told them that two men forced their way into
her apartment where they beat her and robbed at
gun point.
She told the officers that one the men had just
entered the supermarket located a block away and
that the man was probably carrying a gun.
The officers drove the woman to the supermarket.
She then told the officers that she thought the
other man might be in the black Honda Civic at the
other end of the parking lot.
The officers called for police backup.
It was decided that while the additional police
arrived, Officer Able would enter the supermarket
in case the suspect was going to rob the
supermarket or harm someone else with his gun.
Officer Baker stayed with the complainant and kept
under observation the black Honda Civic.
A police car and a police van went to the
supermarket a few minutes later.
The officers in the van went into the supermarket,
while the officers in the other police car went to the
other exit and kept the black Honda under
observation. Before the backup arrived, Officer
Able entered the store and quickly spotted a black
male wearing a black jacket, approaching a
checkout counter.
Apparently upon seeing the officer, the black male
turned and ran toward the rear of the store, and
Officer Able pursued him with a drawn gun.
Officer Able saw yellow letters on the back of the
coat but could not read what it said. When the
black male turned the corner at the end of an aisle,
Officer Able lost sight of him for several seconds,
At that point, three other officers arrived on the
scene and entered the supermarket. They quickly
spotted Officer Able and went to assist him.
Officer Able noticed that the yellow letters on the
back of the coat read “Big Boy,” not “Big Ben.”
They asked the black male what his name was
and he responded, “Mike Delta.”
As the other officers pointed their guns on the
suspect, Officer Able frisked Mike Delta and
discovered that he was wearing an empty shoulder
holster.
At the time Mike Delta was surrounded by four
police officers whose guns had been returned to
After handcuffing him, Officer Able asked him where
the gun was. Mike Delta nodded in the direction of
some empty cartons and responded, “the gun is
over there.”
Officer Able then went to the boxes and seized a
loaded Glock 26 handgun.
Mike Delta was then placed under arrest by Officer
Able, and read him his Miranda rights from a printed
card.
Officer Able then asked Delta if he owned the gun
and where he had purchased it.
Mike Delta answered that he did own it and that he
When they went outside, Officer Baker, in the
police car with the complainant, asked her to look
at the person in the handcuffs and then asked her
if she recognized her. The complainant stated that
he was one of the men she told them about.
She was then taken to a hospital by EMS who had
just arrived.
Apparently, when the occupant of the black Honda
Civic saw Delta leave the supermarket in police
custody, he attempted to drive the black Honda
Civic out of the supermarket.
The other police car blocked the exit and turned on
the police lights and siren.
Officers Able and Baker went up to the car and
noticed Alfred Camp with a red coat on.
They told him to exit the car.
While he was exiting, Camp was able to slip out of
the coat and the coat remained on the front
driver’s seat. While Camp was held outside of the
car by Officer Baker, Officer Able picked up the
coat and noticed it was quite heavy on one side.
He then felt that side and felt what he believed to
be a gun.
He reached into the pocket of the coat and
removed the gun, a Ruger LCP. Camp was then
frisked and handcuffed and placed in the police
vehicle.
Officer Camp then went back into the car to look
for contraband from the robbery. Under the back
seat they found a zippered black bag. They
opened it and found women’s jewelry.
Both suspects were arrested, though Camp was
not given his Miranda warnings, and taken to the
local precinct for arrest processing by Officers Able
and Baker.
On the way, Officer Able told both suspects that
when they go into the precinct, the desk sergeant
would search them thoroughly.
He then asked them if they had anything in their
pockets or on them that would could harm the
officers searching them.
The black Honda Civic was taken to the precinct
and impounded. Officer Able told his Lieutenant
what Camp told him about the gun.
Rather than seeking a search warrant, Lieutenant
Luke went to the car with a clipboard and started to
go through the entire car writing down everything
that was in the car.
He opened the glove compartment and saw the
described paper bag. He took the bag out of the and
it felt heavy and the shape of what was in the bag
was clearly a gun.
When he went into the bag, he found the gun and
an ounce of cocaine.
The officers later went to the hospital. The
complainant was still in the emergency room. In
her room she was with the physician. The
physician stated that the complainant had a broken
finger on her right hand. They saw that her right
eye was swollen shut and black and blue. She was
prescribed pain killers.
The officers then went to the apartment building.
They first went to the complainant’s apartment.
They observed a broken door and inside the
apartment was in disarray as if things were turned
over to look for things.
Backup arrived and the backup officers secured
the place. officers then went to apartment 6D
The He told the officers that two people lived there,
but he wasn’t sure who they were since they had
just moved in, though he remembered that one of
them wore a black coat with “Big Man” on it.
They then asked him if the other person wore a
red coat.
He stated that he had no idea about the second
guy, but thought both might be black men around 5
foot, ten inches tall, or that just might be a friend.
The officers went into the apartment and quickly
went through the apartment to make sure no one
else was in the apartment. They noticed that the
apartment had two bedrooms. When they looked
They seized the scale and the white powdery
substance.
In the second bedroom, they found jewelry.
They then went back to the hospital. There, they
found the complainant fully dressed and ready to
go home.
The officers asked if she could go to the precinct
with them. She went there and was asked to view
a lineup. In the lineup was Camp and five other
people. Camp was number 3. Officer Able asked
her to look carefully at each of them.
She looked at each and thought that it might be
number 2 or 4. She was then told to look carefully
The officer then asked her look at the middle
carefully. She looked at the three in the middle, Camp
(number 3) and the persons holding 4 and 5. She
stated that maybe 3 and 4 looked familiar, but she
wasn’t sure. He then said: “look, I can’t tell you who it
is, but it is definitely one of those three — look again.”
She looked again and asked him: “I am just not sure
— is it 3?” He told her that she got it right and they
will take care of the rest.
She was then shown the jewelry found in the car. She
said that it belonged to her and jewelry taken from her
without her permission. When they showed her
jewelry from the bedroom, she stated that the watch
was hers, but not the rest of the jewelry.
The Set-Up
People
v
Mike Delta and Alfred Camp
The Problem raises many issues.
They can be initially categorized two ways:
1. CRIMINAL LAW. What criminal
offenses can each defendant be
charged with?
2. CRIMINAL PROCEDURE. Were the
defendant’s rights violated, and if so,
what are the consequences?
CRIMINAL LAW
CRIMINAL LAW
1. What criminal offenses can each
defendant be charged with?
 Most criminal offenses are found in
the Penal Law
CHARGING THE DEFENDANTS
WITH CRIMINAL OFFENSES
“She told them that two men forced their
way into her apartment where they beat her
and robbed at gun point.”
• Forced entry into apartment
• Beat her
• Robbed
• Used Gun
Wrongful Acts
CHARGING THE DEFENDANTS
WITH CRIMINAL OFFENSES
“She told them that two men forced their
way into her apartment where they beat her
and robbed at gun point.”
• Burglary
• Assault
• Robbery
• Criminal Possession of a Weapon
CRIMINAL
PROCEDURE
Were defendant’s rights violated;
what are the consequences?
“Officer Able frisked Mike Delta and discovered that
he was wearing an empty shoulder holster.... After
handcuffing him, Able asked him where the gun
was. Delta nodded in the direction of some empty
cartons and responded, ‘the gun is over there.’ Able
then went to the boxes and seized a loaded Glock
26 handgun.”
• Can the statement be used against him at trial?
• Was the gun properly seized?
CONSTITUTIONAL RIGHTS
• Can the statement be used against him at
trial?
 Fifth Amendment
 Fourteenth Amendment (Due Process
Clause)
–Makes the Fifth Amendment
applicable to the states
CONSTITUTIONAL RIGHTS
• Was the gun properly seized?
 Fourth Amendment
–“The right of the people to be secure
in their persons, houses, papers, and
effects, against unreasonable
searches and seizures, shall not be
violated….”
CONSTITUTIONAL RIGHTS
• Was the gun properly seized?
 Fourth Amendment
 Fourteenth Amendment (Due Process
Clause)
–Makes the Fourth Amendment
applicable to the states
THE REST OF THE
COURSE
1. The Problem
2. Intro to Criminal Law and Procedure
3. Criminal Law
4. Criminal Procedure
5. Motions to Dismiss
6. Motions to Suppress
7. And of course, Ethics
Criminal Law and
Procedure for Paralegals
The First Class
US CONSTITUTION






The United States Constitution is the supreme law
of the land.
The United States Supreme Court is the final
interpreter of the United States Constitution.
The Fourth, Fifth, Sixth and Eighth Amendments
made applicable to the states through the due
process clause of the Fourteenth Amendment);
AND
United States Supreme Court’s interpretation of
the applicable provisions.
Provide for minimum standards in protecting the
rights recognized in the constitution.
However, the individual states may provide for a
NEW YORK CONSTITUTION
 The New York Constitution governs in
New York State and in criminal matters is
the supreme law of New York.
 New York Court of Appeals is the final
interpreter of the New York Constitution
 Highest Court in New York
APPELLATE DIVISION
 The New York Supreme Court, Appellate
Division (“Appellate Division”) is the
intermediate appellate court in New York
 The Appellate Term is also the
intermediate appellate court: it handles
appeals from the Criminal Court of the
SUPREME
City
of New York. COURT
 The New York Supreme Court is the trial court
of general jurisdiction.
 Generally, it will handle the trial of all felonies.
COMMENCEMENT OF CRIMINAL
ACTION
 Almost all criminal cases in New York
City will start in the Criminal Court of the
City of New York.
ETHICS
 The role of the prosecutor is to seek
justice, not to convict.
Trial Courts
 Supreme Court, Criminal Term
 NYC Criminal Court
Courts in Statutory Language
“Criminal Court”
• Supreme Court; or
• NYC Criminal Court
“Superior Court”
• Supreme Court, Criminal Term
“Local Criminal Court”
• NYC Criminal Court
NY Courts with Criminal Jurisdiction
COURT OF APPEALS
APPELLATE DIVISION
APPELLATE TERM
SUPREME COURT
NYC CRIMINAL COURT
In the Courtroom
 Judge
 Criminal Court Judge
 Supreme Court Justice
 Prosecutor
 Defense Counsel
Primer on Criminal Statutes
There are three types of statutes:
① DEFINE TERMS:
② OFFENSES:
③ PROCEDURE:
(1) Define Terms
 EXAMPLE: A person is guilty of criminal
sale of a controlled substance in the fifth
degree when he or she “knowingly and
unlawfully sells a controlled substance”
(Penal Law § 221.31).
 When you look at that statute, you see
several terms that need to be defined.
Define Terms
 A person is guilty of criminal sale of a controlled
substance in the fifth degree when he or she
“knowingly and unlawfully sells a controlled
substance” (Penal Law § 221.31).
 To be defined:
 knowingly
 unlawfully
 sells
 controlled substance
Define Terms
To be defined:
 Knowingly (Penal Law § 15.05 [2])
 Unlawfully (Penal Law § 220.00 [2])
 Sells (Penal Law § 220.00 [1])
 Controlled Substance (Penal Law §
220.00 [5]; Public Health Law § 3306)
How to Define Terms
 Whenever you come across a statute that
uses terms, always look for a statute that
defines that term.
 You will find the statute either:
 IN THE BEGINNING OF THE
ARTICLE (e.g., Penal Law § 220.00);
or
 IN A DEFINITION ARTICLE (e.g., CPL
DEFINITIONS AT BEGINNING OF
ARTICLE
 Deal with specific criminal offenses
 Usually only apply to that article of the
Penal Law.
DEFINITIONS AT BEGINNING OF
ARTICLE
 For example:
 Article 130 [Sex Offenses],
 Article 140 [Criminal Trespass and
Burglary],
 Article 155 [Larceny],
 Article 220 [Controlled Substances],
 Article 265 [Firearm and Weapons]).
Terms at the Beginning of Penal Law
 Definitions found in Penal Law § 10.00
generally apply to the entire Penal Law.
 For example:
 Felony
 Misdemeanor
 Physical Injury
Terms at the Beginning of CPL
 Definitions in CPL 1.20 generally apply to
the entire Criminal Procedure Law.
 Criminal action
 Criminal proceeding
 Accusatory instrument
 Warrant of arrest
Definitions In Cases
 After you find the definitions in the statutes, of
course you have to look for case law.
 PENAL LAW § 120.00: Assault in the third
degree requires a physical injury
 PENAL LAW § 10.09: Physical injury requires
an impairment of physical condition or
substantial pain.
 SUBSTANTIAL PAIN? Need to find case law
to define it.
(2) Establish a Criminal Offense
 The second type of criminal statutes are
ones that establish and define a criminal
offense.
 These statutes are found in
 Part Three of the Penal Law; and
 Various statutes outside of the Penal
Law (e.g., driving while intoxicated is
found in the Vehicle and Traffic Law).
EXAMPLE OF A CRIMINAL
OFFENSE
Assault in the third degree (Penal Law §
120.00)
A person is guilty of assault in the third degree
when:
1. With intent to cause physical injury to another
person, he causes such injury to such person or
to a third person; or
2. He recklessly causes physical injury to another
person; or
PARTS OF A CRIMINAL
OFFENSE
1.
The title
2.
The introduction sentence
3.
The definition; and
4.
The level of the offense.
PARTS OF A CRIMINAL
OFFENSE
Title
Assault in the third degree (Penal
Law § 120.00)
Introductio A person is guilty of assault in the
n
third degree when:
Definition
With intent to cause physical injury to
another person, he causes such
injury to such person or to a third
person
(3) Establishes a Procedure
Example: Discovery; When Demand,
Refusal and Compliance Made (Criminal
Procedure Law § 240.80)
 Demand for Discovery within 30 days
 People provide discovery within 15
days
 If there is a refusal to comply with
demand, defendant can seek a court
order (motion to compel discovery)
Criminal Law
Versus
Criminal Procedure
Offense (Penal Law § 10.00 [1])
 Conduct for which a sentence to a term of
imprisonment or to a fine is provided by law.
 Wrongful act where the penalty is either prison
or fine
Crime (Penal Law § 10.00 [6])
 Misdemeanor; or
 Felony.
Felony (Penal Law § 10.00 [5])
 An offense for which a sentence to a term of
imprisonment can be over one year.
Misdemeanor (Penal Law § 10.00 [4])
 An offense for which a sentence to a term of
imprisonment over 15 and up to one year can
be imposed.
 Not a traffic infraction
Petty Offense (CPL 1.20 [39])
 A violation; or
 A traffic infraction.
Traffic infraction (Penal Law § 10.00 [2])
 Any offense in the Vehicle and Traffic Law
(Vehicle and Traffic Law § 155).
 Not a felony or misdemeanor
Violation (Penal Law § 10.00 [3])
 An offense, other than a “traffic infraction,”
 Sentence can be a term of imprisonment up to
fifteen days.
Felony
Crime
Misdemeanor
Offense
Violation
Petty Offense
Traffic
Infraction
Class A
Class B
Felony
Class C
Class D
Class E
Class A-I
Class A-II
Class A-I Felony Examples
 Murder in the First Degree
 Murder in the Second Degree
 Criminal Sale of a Controlled Substance in the
First Degree
 Kidnapping in the First Degree
Class A-II Felony Examples
 Criminal Sale of a Controlled Substance in the
Second Degree
 Criminal Possession of a Controlled Substance
in the Second Degree
Class B Felony Examples
 Rape in the First Degree
 Assault in the First Degree
 Manslaughter in the First Degree
 Criminal Possession of Stolen Property in the
First Degree
Class C Felony Examples
 Criminal Possession of Stolen Property in the
Second Degree
 Criminal Sale of a Controlled Substance in the
Fourth Degree
 Grand Larceny in the Second Degree
Class D Felony Examples
 Burglary in the Third Degree
 Grand Larceny in the Third Degree
 Rape in the Second Degree
Class E Felony Examples
 Criminal Sale of Marihuana in the Third Degree
 Bigamy
 Arson in the Fourth Degree
Class A
Misdemeanor
Class B
Unclassified
Class A Misdemeanor Examples
 Assault in the Third Degree
 Criminal Possession of Stolen Property in the
Fifth Degree
 Criminal Possession of a Controlled Substance
in the Seventh Degree
 Sexual Misconduct
Class B Misdemeanor Examples
 Conspiracy in the Sixth Degree
 Sale of Fireworks
 Public Lewdness
 Criminal Sale of Marihuana in the Fifth Degree
Unclassified Misdemeanor Examples
 Driving While Intoxicated
Violation
Petty Offenses
Traffic Infraction
Petty Offense Examples: Violation
 Disorderly Conduct
 Trespass in the Fourth Degree
 Unauthorized Recordings in a Movie Theater
 Unlawful Possession of Marihuana
Petty Offense Examples: Traffic
Infraction
 Driving While Impaired
CRIMINAL LAW
STATUTES
• Penal Law
• Vehicle and Traffic Law
• Labor Law
• And other Titles (Chapters)
Criminal Law Statutes
Penal Law
① Defines what is a criminal act (i.e.,
criminal offense)
② Defines the seriousness of that
offense and proscribes the penalty
based on that seriousness
③ Provides defenses for those acts
1. Defines what is a criminal act
(i.e., criminal offense)
Assault in the Third Degree
(Penal Law § 120.00 (1)
With intent to cause physical injury, the defendant
causes physical injury
2. Defines seriousness of offense &
proscribes penalty based on seriousness
 Assault in the Third Degree is a class A
misdemeanor
 Assault in the Second Degree is a class D
violent felony
 Assault in the First Degree is a class B
violent felony
2. Defines seriousness of offense &
proscribes penalty based on seriousness
Assault
Degree
Sentence
Class
MIN
MAX
Third Degree
A
Misdemean
or
0
1
Second
Degree
D Violent
Felony
2
7
Sentencing Examples: Class A-I Felony
Crime
Min
Max
Murder in the First Degree
20 to Life
25 to Life
Murder in the Second
15 to Life
25 to Life
Degree
Criminal Possession of a
8
20
Controlled Substance in
the First
Degree
Sentencing
Examples: Class A-II
Felony
Crime
Criminal Possession of a
Controlled Substance in the
Second Degree
Min
Max
3
10
Sentencing Examples: Class B Felony
Crime
Rape in the First Degree
Criminal Possession of a
Stolen Property in the
First Degree
Min
5
Max
25
1 to 3
8 ⅓ to 25
Sentencing Examples: Class C Felony
Crime
Criminal Possession of a
Stolen Property in the
Second Degree
Min
Max
1 to 3
5 to 15
Sentencing Examples: Class D Felony
Crime
Rape in the Second
Degree
Burglary in the Third
Degree
Min
2
Max
7
1 to 3
2 ⅓ to 7
Sentencing Examples:
Class E Felony
Crime
Bigamy
Min
1 to 3
Max
1 ⅓ to 4
Sentencing Examples:
Misdemeanor and Violation
Level
From 0 days to…
Class A Misdemeanor
1 year
Class B Misdemeanor
90 days
Violation
15 days
Defenses
Provide Defenses
 Types of Defenses:
 Simple
 Affirmative
 Specific
 Common Law
Simple Defenses
 Burden of Proof
① Defendant has the initial burden
② Then People have the burden to
disprove it beyond a reasonable doubt
 Examples
 Justification
 Infancy
Simple Defense of Infancy
 Depending on what defendant is charged
with, defendant is under:
 13 (charged with Murder in the
Second Degree)
 14 (charged with first degree
Kidnapping; Assault; Manslaughter;
Rape; Burglary; or Robbery)
 16 (all other criminal offenses)
Simple Defense of Infancy
 INITIAL BURDEN:
 At trial, defense counsel will raise the
defense by showing that the defendant
is under a certain age through a
witness (e.g., a birth certificate)
 ULTIMATE BURDEN:
 People then must disprove it beyond a
reasonable doubt.
Affirmative Defenses
 Burden of Proof
① Defendant has the burden to prove
by a fair preponderance of the
evidence
② People have no burden
 Examples
 Entrapment
 Duress
Specific Defenses
 Burden of Proof
 See specific statutory defense to see
burden
 Example:
 Extreme Emotional Disturbance
Common Law Defenses
 Burden of Proof
① Defendant has the initial burden
② Then People have the burden to
disprove it beyond a reasonable
doubt
 Examples
 Agency (in sale of CS, defendant
steered buyer and never touched the
CRIMINAL
PROCEDURE
Criminal Procedure Laws
 Criminal Procedure Law
 Judiciary Law
 Court Rules
 Rules of Professional Conduct
 Code of Judicial Conduct
 NYCRR
 Administrative Rules of of the courts
Constitutional Criminal Procedure Laws
 The United States Constitution
 The New York State Constitution
 Cases interpreting these constitutions
 The United States Constitution
 Fourth Amendment
 Fifth Amendment
 Sixth Amendment
 Eighth Amendment
 Fourteenth Amendment
Constitutional Criminal Procedure
AMENDMENT
WHAT IT IS
Fourth
Amendment
Search and Seizure
Fifth
Amendment
e.g., Right against Self
Incrimination
Sixth
Amendment
e.g., Right to Counsel
Criminal action (CPL 1.20 [16])
① Commences with the filing of an accusatory
instrument against a defendant in a criminal
court;
② Includes the filing of all further accusatory
instruments directly derived from the initial one;
③ Includes all proceedings, orders and motions
conducted or made by a criminal court in the
course of disposing of this accusatory
instrument;
④ Terminates with the imposition of sentence or
Criminal proceeding (CPL 1.20 [18])
Any proceeding which
a) constitutes a part of a criminal action
or
b) occurs in a criminal court
c) Related to a prospective, pending or
completed criminal action, either of
this state or of any other jurisdiction, or
involves a criminal investigation.
Commencement of criminal action
(CPL 1.20 [17])
 A criminal action is commenced by the
filing of an accusatory instrument against
a defendant in a criminal court, and,
 if more than one accusatory instrument is
filed in the course of the action, it
commences when the first of such
instruments is filed.
Arraignment (CPL 1.20 [9])
 A proceeding where:
① there is an accusatory instrument filed;
② the defendant on that accusatory instrument
appears for the first time appears before the
court;
③ court acquires and exercises control over
defendant with respect to such accusatory
instrument
④ sets the course of further proceedings in the
Process
Commencement
Arraignment
Pre-Trial
Trial
Appeal
Commencement
 Filing of Accusatory Instrument by the
prosecutor
Arraignment
 Arraignment before a judge
 Notify the defendant of
 The charges against the defendant
 The rights of the defendant
Pre-Trial Stage
①
Obtain Trial Jurisdiction
②
Disclosure
 Bill of Particulars
 Discovery
③
Pre-Trial Motions
Trial Stage
 Motion in-limine
 Trial
 Sentencing
 Post Judgment motions
Appeal
 Appeal to
 Intermediate Appellate Court
 Appellate Term
 Appellate Division
 Court of Appeals