Do I Really Need a Lawyer for a Desk Appearance Ticket?
One of the most frequent questions people ask after receiving a Desk Appearance Ticket is, “Do I really need a lawyer for something like this?”
First of all, the question of “really” needing a lawyer I think frequently comes from the accused’s sense that the charges are extremely minor. Desk Appearance Tickets, as discussed elsewhere, are generally given only for misdemeanors (less serious crimes) and are generally given to people without prior criminal history.
Second, it seems that many individual NYPD police officers affirmatively advise people that they need not hire a lawyer, either because they advise that the matter will simply be dismissed or because "Legal Aid" will just handle it for them.
In order to address these issues, you need to back up for a second and take stock of the situation. If you have received a Desk Appearance Ticket, you are almost certainly being charged with a crime.
Once you are charged with a crime, in the United States of America, the presumption is that you MUST have a lawyer. A judge has the power, after conducting a particular type of legal hearing, to determine that a person may represent himself and not have a lawyer, but the circumstances in which non-lawyers accused of crimes are permitted to defend themselves are extraordinarily rare in our system.
There is an amendment to our constitution (the sixth) that guarantees the right to counsel in criminal cases to everyone.
I think most people probably appreciate this idea, and don't actually mean to question the necessity for a lawyer. They are questioning the necessity of paying one for themselves or "going with Legal Aid".
And this is the ultimate question really. It isn't whether or not you "really" need a lawyer. You do. You are being charged with a crime and about to engage in a formal legal system that requires experience and expertise to fully understand. The judge is a lawyer. The prosecutor is a lawyer. There are rules of procedure and evidence in Court. The judge and the prosecutor are familiar with those rules of procedure and evidence and you are likely not. Therefore, in a contest within this system, you are not as likely to be as successful as the prosecutor, even if you have the truth on your side. If you are unsuccessful in this arena, you could end up with a criminal record and potentially face a jail sentence.
And so it is frankly absurd to suggest that you don't need a lawyer. The real bottom line question here is who is going to pay for it, you or someone else.
It is a mistake to believe, regardless of what your friend the police officer who arrested you says, that "Legal Aid" will represent you for more than simply the arraignment of your case.
First of all, The Legal Aid society is but one of a number of organizations that provide lawyers for some people at arraignments.
Second, assigned lawyers, like lawyers from The Legal Aid Society, DO NOT ACCEPT ALL CASES. The Legal Aid Society is not paid to represent all people who are accused of crimes by way of Desk Appearance Ticket. The Legal Aid Society mandate is to represent people who are legally unable to afford to pay for a private lawyer.
Legally unable to afford to pay for a private lawyer is not the same thing as "would prefer not to have to pay for a private lawyer". Unexpected expenses are considered to be part of everyone's life. Maybe the car breaks down. Maybe the faucet springs a leak. Maybe an unexpected health issue arises. These are all part of life and expenses that we all must endure from time to time. A Desk Appearance Ticket is no different, and The Legal Aid Society is not paid to spare everyone the trouble of needing to meet this unexpected expense.
The Legal Aid Society is governed by guidelines set forth by the Appellate Division, Second Department that spell out presumptive income guidelines as far as eligibility for free legal services is concerned.
Since most Desk Appearance Tickets are misdemeanors, the guidelines are as follows and are based on taking the Federal Poverty Guidelines and multiplying them by 250%:
For a family size of 1 person, The Legal Aid Society will represent you only if your income is LESS than $27,075. For a family size of 2 people, The Legal Aid Society will represent you only if your income is LESS than $36,425. For a family size of 3 people, The Legal Aid Society will represent you only if your income is LESS than $45,775. For a family size of 4 people, The Legal Aid Society will represent you only if your income is LESS than $55,125. For a family size of 5 people, The Legal Aid Society will represent you only if your income is LESS than $64,475.
Keep in mind that combined family income is what is considered, not just YOUR income. If you are married, for example, then it is your combined income that is considered. If you are unmarried, yet want to consider yourself a family size of 2 people because you are living with someone, you will need to calculate that person's income as well as yours. You can't use the larger family size for purposes of determining the cut off point and your smaller individual income.
These guidelines create a presumption of either eligibility or ineligibility depending on where you come out. The Legal Aid Society will screen you during the initial interview on the date that you appear for your Desk Appearance Ticket. If you think you are going to qualify under the guidelines it is a good idea to bring a copy of your prior year's tax return and current pay stubs, if any.
If you appear without a lawyer and The Legal Aid Society determines that you are NOT eligible for their services, they will do your arraignment that day, but they will not accept your case on a permanent basis. They will advise the Court that you are not eligible for their services and the Court should inform you that you must return with a lawyer at a later date.
The Legal Aid Society, or other assigned counsel organization, is not in the business of representing people who do not qualify for their services and you should not therefore count on their representing you simply because you do not have a lawyer when you appear. It is possible that in individual cases, at your arraignment, the Government may or may not make some sort of offer to resolve your case at your arraignment. If that is the case, it is at the discretion of the Court whether or not to permit the assigned lawyer to resolve the case for you when you are represented by an assigned lawyer for whose services you do not qualify.
People who receive DATs who call me report, almost without exception, that the police officer advised them that they should not bother to hire a lawyer. Since I get calls from people nearly every single day about DATs, I can only assume that this is some sort of policy of the NYPD to advise people just to "go with Legal Aid".
I'm not sure precisely what attitude this advice represents. It could represent an attitude that no legal advice is necessary at all. If being accused of a crime is for you a category of situations in which you don't think legal advice is necessary, then perhaps the official NYPD advice in this regard is just the ticket.
On the other hand, I would think that most people, when faced with criminal charges would instinctively lean toward getting some legal advice.
So if you assume that legal advice (from someone other than the police officer who arrested you who a) probably isn't actually a lawyer and b) is not legally bound to look out for your best interests) is a good idea, then why would the NYPD be advising people not to hire a lawyer?
Perhaps the idea is that the case is so stupid and pointless that it is just going to be dismissed anyway with or without a lawyer. Many of my potential DAT clients report being advised by the NYPD that their DAT is "just going to be dismissed".
But I have a question. If the DAT case is so stupid and pointless that it is just going to be dismissed anyway...why is the police officer bothering to make the arrest in the first place? Why not instead devote his time to a case that isn't so stupid and pointless that it is just going to be dismissed? Does it really stand to reason that the police are just making all these pointless, stupid arrests for no reason other than to have them all dismissed? This doesn't sound too plausible and also is in fact not the case. I would hope that the NYPD would be devoting its time to making arrests that were not stupid and pointless because they were simply going to be "automatically dismissed".
As reported to me by many clients, the police frequently will advise people that they do not need to hire a lawyer. This I can only understand by assuming that they advise the people they arrest of this in an effort to keep them tame and easy to deal with while they are arresting them. It is astonishing to me that human nature is such that people can be so easily convinced that the police officer who is arresting them is their trusted advisor who is looking out for their interests, and it is everyone else who is going to try to lead them astray.
But why on earth is the police officer bothering to go through the hassle of arresting you and processing you if he “knows” your case is just going to be dismissed to the point that you shouldn’t even bother to seek legal advice? It just doesn’t make any sense.
You are likely being charged with a crime. If being charged with a crime doesn’t concern you, then don’t seek legal advice. If the risk of receiving a criminal record doesn’t concern you, then don’t seek legal advice.
How do you think the police officer would have reacted if you simply told him that you didn’t think the case was serious enough to bother dealing with him and you refused to go down to the precinct to get the DAT?
I’ll tell you exactly how he would have reacted.
He would have promptly sought you out, put you in handcuffs, driven you to the police station, and thrown you in steel cage while he wrote up the case. You would have been held in the cage until you saw a judge for arraignment about 24 hours later. No DAT for you.
Doesn’t sound like such a silly unimportant case now, does it? And by the way, do you think the police officer would seek out a lawyer if HE were arrested and given a DAT?
Right or wrong, innocent or guilty, if you are accused of a crime you are forced to engage the world in criminal court. Do you have experience in criminal court? Are you familiar with the procedures of criminal court? Do you know and understand the rules of evidence in criminal court? Are you familiar with the terminology of criminal court? Do you know how to conduct a trial in criminal court?
Imagine being given a ticket that says that you have to report to the hospital in two weeks for “surgery”. Not being a doctor, you don’t know precisely what the surgery involves, how dangerous it is, how the surgery is going to happen, when it is going to happen, the likelihood of success, or anything else. The person who gives you the ticket isn’t a doctor, but tells you that in his opinion, “everything will be fine.” He tells you just to show up at the hospital when he tells you and everything will work out.
Can you imagine in a million years that you would not seek immediate medical advice? Can you imagine in a million years being satisfied to wait “to see what happens” with respect to your “surgery”?
Could it be that you will arrive at the hospital and the “surgery” will take place quickly, painlessly, and without great fanfare? Sure. But could you imagine showing up at the hospital without having obtained medical advice beforehand? Probably not.
Well a Desk Appearance Ticket is, in the legal world, much like that ticket telling you to appear at the hospital for “surgery”. Could it be that it ends up being something that can be dealt with relatively painlessly? Absolutely. No question about it. But do you really want simply to show up and see what happens? Or would you think that you just might want to have the advice of a lawyer?
It seems to me that you would want to seek the advice of a lawyer.
Another bit of misinformation frequently provided by the police who make a DAT arrest relates to people who are given DAT dates to appear that will be difficult or impossible for them to make. Inexplicably, the police will advise people that all they need to do is to "go to court" the following day (no matter the day of the day of the week) and get the case called then instead.
There are only two possible explanations for this advice, really.
The first possibility is that an amazing number of police have a shocking ignorance of how the criminal justice system works in New York City, because the advice to "go to court" and get the case called then or get the date changed is utter garbage that will result in nothing but frustration to the person who actually tries to follow it. At this stage of the process, "the court" has NO IDEA about the DAT because the case is not docketed yet and won't be for some time (possibly not even until the day scheduled for the DAT). The only organization that is aware of the DAT is possibly the District Attorney's Office.
The second possible explanation for police advising people to go to court the next day to get the date changed for a DAT is pure maliciousness to cause the accused person the frustration and confusion of attempting to do what is virtually impossible in the context of an often unforgiving bureaucracy.
Neither explanation is particularly comforting. Either a more than trivial number of police are shockingly ignorant of their own system or a more than trivial number of police seem to take a sick pleasure in setting people on wild goose chases through the criminal justice system.
In the end, it is my unsurprising conclusion that yes, you do really need to a lawyer even when you are given a Desk Appearance Ticket. Perhaps this seems self serving, since I am a lawyer. But I would be
Don Murray, Esq.
Shalley & Murray
718-268-2171