The criminal courts in New York can be quite intimidating and confusing, especially to anyone who’s being arrested and charged with a crime for the first time. In the state of New York, a law enforcement officer can make an arrest if the officer believes that a crime has happened or is currently taking place. To make an arrest, a law enforcement officer must have a warrant, observe the crime, or have probable cause. Arresting officers must also inform suspects about their “Miranda” rights, which are the right to remain silent and the right to an attorney.

After an arrest, the booking process includes fingerprinting and having a “mug” shot taken. The suspect’s personal items are confiscated. Booking in the state of New York often also includes a medical screening and/or a body search. Suspects must be arraigned within 24 hours unless the arrest is made on a Friday or a Saturday, when arraignments are held on the following Monday. Arraignment is the suspect’s initial appearance before a judge. It’s where a bail amount is determined, the charges against a defendant are formally read, and a defendant may enter a plea.


Most criminal cases in this state conclude with a plea bargain, which is an agreement between the prosecutor and the suspect’s own New York criminal defense attorney. Typically, the prosecutor offers a reduced sentence in exchange for a guilty plea to a lesser charge. A suspect might be allowed to plead guilty to manslaughter, for example, to avoid a murder prosecution. But merely having an agreement between attorneys is never the end of the story. No plea bargain agreement is official until the prosecution and the defense present the agreement to a judge and that judge approves it.


For judges, the main reason to accept plea bargains is that they simply do not have the time to try every case that comes through the courthouse door. Prosecutors face similar pressures, and to keep judges happy, prosecutors must keep the cases moving. Jail and prison overcrowding are additional reasons for plea bargaining. Plea bargains are also quicker and less work than trials, so they help a District Attorney’s office smartly use its money and resources.


Most plea bargain negotiations take place privately, outside of the courtroom, between the defense attorney and the prosecutor. The judge has no formal role until the plea deal is offered in court. On occasions, however, a judge will provide informal guidance to the defense and prosecuting attorneys by indicating what sort of a plea bargain agreement would be acceptable. Attorneys use the following terms to describe different kinds of plea bargains:

  • Charge Bargaining: A defendant pleads to a charge that’s less serious than the original charge or than the most serious of the charges. For example: The prosecution originally charges a suspect with burglary, but the suspect is allowed to plead guilty to trespassing and the prosecution dismisses the burglary charge.
  • Count Bargaining: The defendant pleads to only one or several of the original charges, and the prosecution drops the remainder. For example, the prosecution charges a suspect with both robbery and assault. The attorneys agree that if the suspect will plead guilty to the assault charge, the prosecution will drop the robbery charge.
  • Sentence Bargaining: The defendant pleads guilty or no contest to the charge in return for a reduced sentence. For example, a suspect agrees to plead guilty to a misdemeanor, and in return, the prosecutor agrees to recommend that the judge not impose jail time.
  • Fact Bargaining: The defendant pleads in exchange for the prosecutor’s omission of particular facts in the case. For example, the state prosecutes a suspected drug trafficker who is caught with more than five kilograms of cocaine. Five kilograms triggers a lengthy prison term, so the suspect agrees to plead guilty in exchange for the prosecution’s “stipulation” that the suspect possessed fewer than five kilograms.


Before accepting or rejecting a plea bargain proposal, the judge must know all the of the conditions of the proposal, including any unusual terms or aspects. For example, if testimony against another defendant is expected in the future in return for a lighter sentence, the attorneys must persuade the judge of the value of that testimony. A judge must also determine if the proposed punishment is appropriate in light of the severity of the charges, the defendant’s prior criminal history, and the other facts in the case. When a reduced sentence is a part of the plea bargain offer, a judge must also take into account the interests of the crime’s victims and the safety of the general public.


A judge has the discretion to accept or reject all of the terms of a plea bargain proposal, but those are not necessarily the judge’s only options. In some jurisdictions, a judge may accept a plea bargain on certain terms but reject the proposed sentence, or the judge can recommend that the suspect plead without an agreement. In most jurisdictions, a judge can delay any decision regarding a plea bargain until he or she receives a presentencing report. Some jurisdictions allow a defendant to withdraw a plea if the judge doesn’t agree to the attorneys’ sentencing recommendations.


If a judge accepts a negotiated plea bargain agreement that requires that something in return from the defendant, the court retains jurisdiction over the case until the terms are satisfied. If the defendant doesn’t satisfy the conditions of the agreement, the judge can reject the plea bargain and resentence the defendant. An example might be a defendant ordered to perform community service instead of jail time who fails to appear for or fails to complete the community service.


The decision about whether or not to accept a plea bargain ultimately rests with the defendant. For practical purposes, however, a defendant’s own New York criminal defense attorney may recommend accepting or rejecting the deal, and defendants typically take the deals that their attorneys recommend. If you want to know whether a judge might reject an actual or potential plea bargain, or if you simply want to understand more about the plea bargaining procedure, a criminal defense lawyer will be able to explain the rules in your own jurisdiction.

By: Kimberly Pelesz

Family law and criminal defense attorney Kimberly A. Pelesz received a B.S. degree magna cum laude and an M.P.A. degree summa cum laude from Binghamton University. She earned her J.D. from Pace University School of Law in White Plains, where she was selected for Phi Alpha Delta. Her charitable activities include work with My Sisters’ Place in White Plains and the Westchester County District Attorney’s Humane Education Taskforce.

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