Plea Deals: Taking a Felony or Misdemeanor Plea in Court

If you are accepting a plea offer, the judge taking your plea is required to make sure that you know your rights. The judge is also obligated to make sure that you actually committed the crime to which you are pleading. Reading this page before you take a plea in court will help you know what to expect.

First: In felony matters, before a case can be prosecuted, you have the right to have a Grand Jury hear the charges against you. By taking a plea, you may be waiving that right.

In some instances, you might be taking a plea without having your case presented to a Grand Jury. This sometimes happens if your lawyer has worked out a favorable plea agreement for you. Your lawyer will tell the judge that you want to "proceed by Superior Court Information (SCI)." If you proceed by SCI, you will be waiving your right to have your case presented to a Grand Jury. Without that waiver, before you could be prosecuted, a Grand Jury would have to find probable cause to believe that you committed the crimes with which you are charged. By waiving your right to a Grand Jury presentation, your lawyer is speeding up the process, saving the prosecutors time, and in some cases, getting a more favorable plea deal for you as a result.

Second: You have the right to a jury trial. By taking a plea, you are waiving that right.

When the judge is informed that you want to accept a plea, she will tell you that you have the right to have a trial by jury. If you choose to have a trial by jury, you can only be convicted if the prosecution proves beyond a reasonable doubt every element of the charges against you. Whether the prosecution has met that burden would be decided by a jury. At trial, your attorney could call witnesses on your behalf, and could also cross-examine witnesses who are called to testify against you. At trial, you would also have the right to testify on your own behalf, although nobody can make you do that, and your decision not to testify cannot be held against you.  The judge will tell you that a plea has the same force and effect as a conviction after a trial by jury, and she will ask you if you want to waive your right to a trial.

Third: You have the right to remain silent. In order to take a plea, you must waive that right.

At trial, you have the right to remain silent. If you take a plea, the judge will ask you to waive that right and to admit to certain facts that make up the elements of the crime. The judge needs to make certain that you actually committed the crime you are pleading to, and so you will have to admit to committing that crime. (More on this in a minute.) If you want to take a plea offer, you must give up your right to remain silent.

Fourth: You have the right to know what the hell is going on.

The judge will ask you a series of questions to make sure you are making a "knowing and voluntary plea." She may ask how far you went in school, and whether you can read and write in English. She may also ask if you are under the influence of alcohol or any drugs that effect your ability to understand the court proceedings. It's important that you understand what is happening, so these questions help the judge know if the court needs to call in an interpreter, or give you more time to speak with your lawyer, or adjourn sentencing because you are under the influence of a drug that is impairing your ability to understand.

Fifth: You have the right to appeal your conviction and sentence. By taking a plea, you may be waiving that right.

Almost every plea offer that gets made by prosecutors includes a waiver of your right to appeal your conviction and sentence. In other words, if you think you are innocent, you should go to trial and fight the charges, because accepting a plea deal will dramatically limit your ability to appeal a conviction and sentence. (Certain issues, such as jurisdiction, can always be appealed.) The judge will ask if you understand that your right to appeal is separate and distinct from your right to a trial and that by accepting a plea offer, you are waiving your right to appeal.

Sixth: "The factual colloquy," also known as "admitting that you did it."

In court, "a colloquy is a routine, highly formalized conversation." It is the series of questions that the judge or prosecutor asks you to determine: (1) if you understand your rights; (2) f you are able to make a knowing and voluntary plea to a charge, and (3) if you actually committed the crime to which you are pleading.

The colloquy is divided into two parts: a legal colloquy, and a factual colloquy. The legal colloquy is made up of all the questions I just explained above; it's designed to make sure you know your rights.

The factual colloquy is designed to make sure that you actually committed the crime you are pleading to. The questions may be asked by either the judge or prosecutor. In a misdemeanor DWI case, it goes something like this:

Prosecutor: Mrs. Smith, directing your attention to August 29, 2018, at approximately 1:30 am, were you operating a motor vehicle on I-590, a public highway in the Town of Brighton, County of Monroe, State of New York?

Defendant: Yes.

Prosecutor: And before operating that motor vehicle did you voluntarily consume beverages of an alcoholic nature?

Defendant: Yes.

Prosecutor: Please tell the court what, and how much, you had to drink.

Defendant: I had about four mixed drinks.

Prosecutor: And those mixed drinks contained alcohol?

Defendant: Yes.

Prosecutor: And as a result of your voluntary consumption of alcohol, did you lose the mental and physical capability required to operate your motor vehicle as a reasonable and prudent driver to a substantial extent?

Defendant: Yes.

Prosecutor: And as a result of your voluntary consumption of alcohol, were you intoxicated?

Defendant: Yes.

Prosecutor: The People are satisfied, Your Honor.

Judge: How do you plead to one count of New York State Vehicle and Traffic Law § 1192(3), Driving While Intoxicated?

Defendant: Guilty.

That is the process of taking a plea in court. Once you plead guilty, the court moves on to sentencing. In a case that includes (or may include) a sentence of probation supervision, the next step is to undergo a Pre-Sentence Investigation. Most first-time offenders don't get sentenced to probation, but are instead sentenced to a conditional discharge.

The Militello Law Firm
2480 Browncroft Boulevard
Rochester, New York 14625
Phone: (585) 485-0025 Fax: (585) 286-3128