Sweeping Changes Coming to Appearance Ticket Process in New York 

By James Shalley

In April, 2019, the New York Legislature passed sweeping changes to the criminal justice system in New York that include significant changes to the use of Desk Appearance Tickets. These changes will become effective on January 1, 2020.

Under the new rules, Appearance Tickets are mandatory for most misdemeanor offenses and even some felony offenses. The police no longer will have unfettered discretion, and therefore, it is anticipated that the number of Desk Appearance Tickets will rise dramatically.

As a general rule, when a person is arrested for an offense OTHER than a class A, B, C or D felony offense, or for a violation of Penal Law section 130.25 (rape in the third degree), 130.40 (Criminal Sexual Act in the 3rd Degree), 205.10 (Escape in the 2nd Degree), 205.17 (Absconding from temporary release in the first degree), 205.19 (Absconding from a community treatment facility), and 215.56 (Bail Jumping in the 2nd Degree), a Desk Appearance Ticket will be mandatory.

This general rule makes nearly all misdemeanor offenses and some E felony offenses subject to mandatory Desk Appearance Ticket. But there are some exceptions.

The police do have discretion to choose to give a Desk Appearance Ticket in the following circumstances:

• If the arrested person has one or more outstanding warrants, the police, unsurprisingly, do not have give him a Desk Appearance Ticket.

• If a review of the person’s rap sheet indicates that he has failed to make required, scheduled appearances in court on previous cases within the last two years, a DAT is not mandatory.

• Although a person is specifically not required to present any particular photo identification in order to get a DAT, if a person is unwilling or unable to provide identifying information, and no other means of obtaining that information is readily available, no DAT is required. The statute specifically also declares that a valid driver’s license or non-driver id from anywhere in the United States OR CANADA, a valid passport from the US or ANY COUNTRY, an armed forces ID card or public benefit card IS SUFFICIENT IDENTIFICATION to get a DAT.

• A person charged with a crime against a member of the same family or household is not automatically eligible for a DAT. This is to allow for the possibility of the need for the Government to ask the Court for an Order of Protection, which is common in such cases.

• A person is charged with a crime defined in article 130 of the Penal Law. These are sex offenses.

• If the person charged reasonably appears to the police to be in such a state of distress that the person may face harm without immediate medical or mental health care.

Therefore, a person accused of shoplifting, who doesn’t appear in such distress that she is going to self harm or suffer harm, who has no outstanding warrants, and who has not failed to appear in previous court matters within the last two years, and who is able to provide a valid driver’s license (even a Canadian driver’s license) MUST get a Desk Appearance Ticket.

Prior Convictions No Longer is a Disqualifying Factor

The existence of prior contacts with Criminal Court, even extensive contacts with Criminal Court including multiple convictions will NOT exclude a person from mandatory DAT as long as the above conditions are met. This means, for example, that a person who has ten criminal convictions who is arrested for petit larceny MUST get a DAT, as long as there are no open warrants, as long as the person has made all previous court appearances for the last two years, as long as person has some means of showing identifying information, and as long as the person is not at risk for self harm.

This new requirement of Desk Appearance Tickets for people with criminal history represents a break with tradition. Under the current “old” law and traditions, people with criminal histories of almost any sort are usually simply refused desk appearance tickets altogether. That will change.

Reform of the rules regarding bail will generally shield people with criminal records from having bail set on them when they show up to court for arraignment. In the past, I have actually seen people with significant records somehow get DATs in the current system, show up to court as required, and be rewarded for their compliance with bail being set on them. This tragically unfair outcome will be a thing of the past beginning in 2020. Further, while bail is nearly never imposed on Desk Appearance Ticket cases in NYC, in Nassau County and Westchester, and other locations around New York State, bail on DATs is, if not common, certainly something that is not exactly unusual. These Courts will find the new process quite limiting in their ability to set bail on most DAT matters.

Delay Between Arrest and First Appearance Will be Shorter

Under the new law, a DAT is supposed to be set for first appearance (arraignment) “as soon as possible”. The Legislature, however, did not rely on the Courts to interpret “as soon as possible” and set a maximum time of 20 days from the arrest for the first appearance. This is much more important than many people initially realize.

Under the current “old” system, DATs are often scheduled a month or more from the date of arrest. More recently, the Courts have gotten better about it, but not too long ago, it was common to see DATs launched out as much as two months from the date of arrest.

For some people it doesn’t make much difference except psychologically, having to have this case over their heads. But for many people the fact that they have been arrested (remember, if you have a DAT, you HAVE been arrested), is enough by itself to be suspended from work, or to cause delays in immigration paperwork, or to interfere with job searches, even when the case is a relatively simple matter that might well be concluded very quickly and favorably. Not everyone can simply afford to be suspended from work pending the outcome of the case. Even more frustrating is that many cases are not going to be settled there and then at the first appearance date, so that a month or two wait for first appearance will be wasted. Typically, no specific prosecutor is assigned to the case until after first appearance, so there is not even anyone who can meaningfully negotiate the case ahead of time.

James Shalley has been practicing criminal defense in New York for more than 30 years.

Call 347-612-9830 for your free consultation with JAMES SHALLEY today.

By the Way, Exactly What is an Appearance Ticket?

An Appearance Ticket in New York, is one way to bring a person who is arrested to Criminal Court for his or her first appearance. The arrested person is given a piece of paper notifying him of the date for his first appearance in Court. This document that encourages the arrested person to come to Court at a date in the future is called a Desk Appearance Ticket, or just Appearance Ticket. The appearance ticket document is really no more significant than that. It is really just a reminder slip to come to Court. The more common alternative to an appearance ticket is to hold an arrested person in custody (often for approximately 24 hours) until the person is seen by a Judge for the first appearance. Generally, it is considered nicer to get an appearance ticket, because the arrested person is spared what can often be a lengthy time in custody waiting to see the Judge.

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