Michael Capitina
Attorney at Law
Family Law, Divorce Attorney, Criminal Law

Criminal Law

Mr. Capitina has extensive criminal law experience defending the rights of people arrested and accused of criminal offenses. The firm handles all types of criminal cases, including minor infractions and misdemeanors and the most serious felony indictments, including but not limited to:

  • Criminal Defense
  • Drunk Driving Defense (DUI)
  • Computer Crimes
  • Narcotics Sales
  • Possession of Drugs/Controlled Substances
  • Assaults
  • Juvenile Charges
  • Theft/Property Crimes

What happens if I am arrested?
If you are arrested for breaking a criminal law, the case is taken before a magistrate who may issue a warrant if necessary and set bond for appearance in court. If the defendant cannot post the bond he may be incarcerated pending appearance in court. If bond is posted, he will remain free pending appearance at an arraignment. An arraignment usually occurs within 24 hours of the arrest or the first date available if on a weekend or holiday. The arraignment is held before a judge of the courts. During the arraignment the defendant is formally told what offense he is charged with, told their constitutional rights, and of the possible penalties. The defendant will enter a plea of guilty or not guilty, bond may be reviewed, and a date for the next hearing will be scheduled.

Can they use force to arrest me?
A police officer may use as much force as is necessary to arrest you. Unreasonable force is assault. After arrest, a police officer may handcuff you if you attempt to escape or the officer considers it necessary to prevent you from escaping. If you claim that force was used to arrest you, a judge will decide whether or not the force used was reasonable in the circumstances.

What is a search warrant?
A search warrant is an order issued by a judge that authorizes police officers to conduct a search of a specific location. Before a search warrant may be issued, there must be a showing of probable cause.

What is probable cause?
This is a difficult one. There is not a bright-line rule establishing precisely what is and what isn`t probable cause. However, what has become apparent is that a finding of probable cause requires objective facts indicating a likelihood of criminal activity. A police officers hunch, with nothing more, will not satisfy the requirements.

Example: Officer Doright observes Tom and Dick walking down the street. Officer Doright has a hunch that Tom and Dick are up to no good. Armed with nothing more, Officer Doright goes to the local judge and attempts to get a search warrant for the boy`s home. Should a judge grant the warrant?

No. A police officer`s hunch, with nothing more, will not satisfy the probable cause requirement. However, if Officer Doright observed Tom and Dick conduct a drug deal, then probable cause would likely exist for a warrant to search their home.

If a police officer knocks on my door and asks to search my home, do I have to let the officer in?
Unless the officer has a warrant, you are under no legal obligation to let the officer search your residence.

What if I agree to the search?
If you voluntarily consent to a search of your home, automobile, or person, than the officer can conduct a full search without a warrant. Anything that the officer finds can later be used against you in court.

What is the Plain View doctrine?
Police officers do not need a warrant to seize contraband that is in plain view if the officer is in a place that he or she has a right to be.

EXAMPLE: Officer Doright is standing in your doorway talking to you about the weather. While talking, Officer Doright notices a bag of cocaine and a sawed-off shotgun on your couch. Officer Doright can legally seize these items without a search warrant because they are in plain view.

If I am arrested, can the officer search me?
Yes. Police officers do not need a warrant to conduct a search after making an arrest. After making an arrest, the officer can legally search the person being arrested and the area in the immediate control of the person.

What is bail?
Bail is money or other property that is deposited with the court to ensure that the person accused will return to court when he or she is required to do so. If the defendant returns to court as required, the bail will be returned at the end of the case, even if the defendant is ultimately convicted. However, if the defendant does not come to court when required or violates his or her bail conditions, the bail will be forfeited to the court and will not be returned.

What happens at a bail hearing?
The accused is brought before a magistrate or judge when an arrest happens for a violation of a criminal law. The magistrate or judge will conduct a pre-trial bail hearing resulting in four possible results. A judge holds an official arraignment later.

There are four possible results from the bail hearing:

  • Recognizance - This is the defendant's written promise to appear in court on the date set and abide by the terms set by the magistrate or judge. No monetary pledge, cash deposit or security by property or professional bondsman is required.
  • Unsecured Bond - This release pending court appearance is based on the defendant's written agreement to appear in court on the date set and abide by the conditions set by the magistrate or judge. It is backed by an agreement by the defendant to forfeit money to the court if she or he does not appear in court on the date set.
  • Secured Bond - This is secured by either a cash deposit, a pledge of real or personal property, or a pledge by a third party that the defendant will appear in court on the date set and abide by the conditions of the release. The judge may forfeit any type of security in the event the defendant does not appear in court on the date set.
  • Ineligible for Bail - The defendant is denied a release pending court appearance.

The bail decision may be appealed to a judge who will re-examine the evidence. A violation of any agreement of release pending court appearance could result in the issuance of an Order to Show Cause why the release should not be revoked. A show cause hearing may also be issued by a judge for not appearing in court as agreed.

What happens at an arraignment?
You have the right to be arraigned without unnecessary delay - usually within two court days - after being arrested. You will appear before a judge who will tell you officially of the charges against you at your first arraignment. At the arraignment, an attorney may be appointed for you if you cannot afford one, and bail can be raised or lowered. You also can ask to be released on personal recognizance, even if bail was previously set.

If you are charged with a misdemeanor, you can plead guilty or not guilty at the arraignment. Or, if the court approves, you can plead nolo contendere, meaning that you will not contest the charges. Legally, this is the same as a guilty plea, but it cannot be used against you in a non-criminal case.

Before pleading guilty to some first time offenses, such as drug possession in small amounts for personal use, you may want to find out if your county has any drug diversion programs. Under these programs, instead of fining you or sending you to jail, the court may order you to get counseling which can result in dismissal of the charges if you complete the counseling.

If misdemeanor charges are not dropped, a trial will be held later in county court of law. If you are charged with a felony, however, and the charges are not dismissed, the next step is a preliminary hearing.

PRETRIAL HEARING

Every person who is charged with a misdemeanor crime is entitled to a pretrial hearing after arraignment on the charges filed and before trial.

At a pretrial hearing, the prosecutor, defense attorney, and judge discuss the charges and events surrounding the arrest to see whether a "plea bargain" may be reached short of trial. At this stage, the prosecutor and defense attorney will explore the strengths and weaknesses of their respective cases.

The judge will usually, at this stage, give an indicated sentence on the charge, or amended charge, if the prosecutor and defense attorney can come to an agreement. The amended charge is usually a "lesser included offense" carrying less severe penalties as a result of the "plea bargain".

What will happen at a preliminary hearing?
Every person who is charged by warrant is entitled to a preliminary hearing if charged with a felony. If a person remains in jail, he or she is entitled to a preliminary hearing usually within 10 days of arrest. If a person is released from jail on bond, he or she is entitled to a preliminary hearing usually within 30 days of arrest.

A preliminary hearing is an examination of the charge against the accused. The prosecutor must present evidence and witnesses that prove that it appears that an offense has been committed that there is probable cause to believe that the person accused committed it. The accused may cross-examine witnesses and may present evidence if he or she wishes.

If the judge makes a finding of probable cause after hearing the evidence, the charge is sent to the grand jury. If the judge does not find that it appears that an offense has been committed or that the accused is likely the person who committed an offense, the accused is discharged and the charge is dismissed. If the accused is discharged and the charge dismissed after a preliminary hearing, the prosecutor may still present evidence to the grand jury to see if they will find probable cause.

TRIAL

It is at trial that the prosecution must convince a jury of ____ people, ( people if charged as a misdemeanor with no possible sentence to state prison) beyond a reasonable doubt, that the accused is guilty of all the elements which make up the alleged crime.

The trial consists of jury selection, motions in liminae, jury instructions, and the presentation of the case to the jury. Voir dire of each prospective juror is an opportunity for the prosecutor, defense attorney and judge to question each potential juror to determine if they hold any bias that would affect their ability to give a fair judgment on the facts presented. Should a bias be found, the prospective juror would be excused "for cause". Each side also has _____ peremptory challenges which allow them to excuse a prospective juror for any reason.

Outside of the jury's presence, and usually in the judge's chambers, motions in liminae and proposed jury instructions, which are given to the jury at the end of the testimony and before they deliberate, are discussed between the prosecutor and the defense attorney, and then ruled on by the judge.

After the jury is seated, and all in limiae and jury instructions are decided, the actual trial will start, This usually consists of an opening statement by each side during which they address the jury and explain what they believe the evidence will show.

After the opening statement, the prosecution will call their first witness. This is called "direct examination". After each witness testifies under direct examination, the defense may "cross examine" them in an attempt to discredit the direct examination.

After the prosecution rests, the defense may call their own witnesses, including the defendant. The defendant does not have to testify, should he or she so choose, and the jury is not allowed to form any opinion as to why he or she did not testify.

After each side has presented their respective "case in chief", closing arguments begin. In closing arguments each side will try to persuade the jury as to what the evidence has actually shown. Each side will try to show how the evidence helped their case and hurt the other sides' case.

Following closing arguments, the judge reads the jury instructions to the jury setting the ground rules and the parameters as to how the jury may deliberate on the evidence and the elements of the crime which must be proved.

Once the jury comes to a unanimous decision as to either guilt or innocence, a verdict is returned. If the verdict is innocent, charges are dismissed with prejudice. If the verdict is guilty, the defendant will need to go to a sentencing hearing.

Should the jury be unable to come to a unanimous decision as to guilt or innocence the result would be the judge declaring a mistrial, more commonly known as a "hung jury". In the case of a mistrial the prosecutor may re-file charges and a new trial will be initiated.

SENTENCING

Should a defendant be convicted by trial or by plea, the judge will sentence the defendant. For lesser misdemeanor charges the judge will typically sentence the defendant without the aid of a probation sentencing recommendation.

For more serious misdemeanor or felony charges, the judge will request a probation sentencing report. The defendant will need to appear before a probation officer for an interview. After the interview the probation officer will make a recommendation to the judge as to what the sentence should be.

Once the sentencing recommendation report is received, there will be a hearing before the judge. At sentencing, victims are allowed to make an "impact statement" explaining how the crime has affected their lives, and the defendant may make a statement on his or her own behalf.

After the sentencing report has been received and all the statements made, the judge will give his sentence within the allowable sentencing guidelines for the given crime for which the defendant was convicted. The sentence is the sole purview of the judge.