Misdemeanor Trials - What are they About and Some Practical Realities

By: Don Murray, Partner, Shalley and Murray

Perhaps you feel as if you have done nothing wrong and have nevertheless found yourself accused of a misdemeanor in New York City.  Naturally, your reaction may well be that you are eager to have your day in Court so that you can show the world that you did nothing wrong.

Misdemeanor jury trials in New York City will be slightly different versions of the more serious felony trials.  One big difference is the number of jurors at a misdemeanor jury trial in New York City.  A misdemeanor jury in New York City is six people.  Therefore, jury selection tends to be much quicker than for felony cases.  Not only are there six fewer jurors needed, but the lawyers only get three "no reason" challenges each.  In felony trials, the lawyers can often have as many as 15 "no reason" challenges.  But with so few challenges, the lawyers on misdemeanor trials all but have to take whoever is first called into the jury box.

The Death of Jury Trials in Misdemeanor Cases in New York City

Jury trials on misdemeanor criminal cases in New York City are statistically pretty rare. As a practical, statistical matter, most misdemeanor charges are settled. 

To the extent that misdemeanor trials take place at all, the New York City Criminal Court system has recently taken to convincing the District Attorney Offices to systematically reduce the charges to lower level "B" misdemeanors in order to avoid the requirement for a jury.  Under the law, you are not entitled to a jury trial for B misdemeanors in New York City.  In New York City, if the District Attorney's Office reduces the misdemeanor charges against you to a B misdemeanor, you will not have a jury trial and your trial will thereby become a "bench trial".  A bench trial is a trial where the judge is also the jury.

The official analysis of this push to turn jury trials into bench trials goes as follows: Since there is no need for a jury, there is no need for jury selection.  Jury selection, even in misdemeanor cases, is a time consuming and cumbersome process, and therefore a more expensive process.  Jury trials, in order to accommodate jurors, must take place all at once over the course of consecutive days.  Bench trials can be broken up and conducted over time around a judge's other calendar responsibilities.  Therefore, they dispense with the need to bother citizens to be jurors, they are cheaper, and they allow the quicker resolution of the trial.

From the defendant's standpoint, it is at first difficult to imagine that a "reduction" of the charges to less serious charges might be troubling.  You might think that a defendant would be delighted to learn that the charges on which he must go to trial are now less serious than they were.  If a case starts out as an "A" misdemeanor, he would be facing one year in jail in the event of a conviction.  If the same case is reduced to a "B" misdemeanor, then he would be facing a maximum of 90 days in jail.  So that's great, right?

In theory, yes.

It is a bit more complicated than that, however.  In order to understand why that is, then you must realize that a conviction for both A and B misdemeanors are criminal offenses.  Conviction for either one gives you a criminal record.  In most cases, the "deal breaker" in the negotiations is not an issue of the amount of jail time.  Frequently the deal breaker in the negotiations over misdemeanors will be the desire of the district attorney's office that the defendant accept a criminal conviction.  Jail may well not be part of the offer.  For example, a person who is charged with Assault in the Third Degree is charged with an A misdemeanor, punishable by up to one year in jail.  If the person has no criminal history, and the District Attorney's Office is particularly concerned about the case, the offer to settle might be a plea to the charge of Assault and 3 years probation.  Jail time is not part of the deal.

These days, if the defendant were to force the matter to trial, the District Attorney's Office would most likely reduce the charges to "attempted assault in the third degree".  This would reduce the charges from an A misdemeanor to a B misdemeanor and reduce the defendant's exposure upon conviction to 90 days from one year.  But remember, the District Attorney wasn't looking for jail time to begin with.  They don't really lose anything by reducing the charges.  You might respond, however, that they lose the ability to convict the defendant of an "A" misdemeanor.  But they don't generally care about that.  If they are successful in getting a conviction for the B misdemeanor, that still gives the defendant a criminal record.  They weren't looking to put the defendant in jail.  They were looking to give the defendant a criminal record.

The next, and more controversial question, is whether or not the District Attorney GAINS something by reducing the charges so that there is a bench trial instead of a jury trial.  As far as the issue of potentially giving the defendant a criminal record, the District Attorney doesn't LOSE anything in the reduction of the case, but is there something to be GAINED?

Your answer to that will depend in part on how cynical you are.  Further, there will be an answer based on sort of rule of thumb perceptions, and an answer based on actual evidence.

Here's the issue.  There are those who work within the criminal justice system who will immediately fall back to the position that, for any number of reasons from a paranoia spectrum, forcing a bench trial increases the likelihood of a conviction.  Some might say that the likelihood of a conviction increases with a bench trial because judges, as trained, experienced lawyers are less likely than a jury to be moved to acquit defendants based on sympathy or misunderstandings of the law.  Others might cynically say that the likelihood of a conviction increases with a bench trial because they think judges are generally favorably disposed to convict.  

I'm not sure what the statistics show on this point, but I wouldn't be surprised to learn that actual numbers do not show a substantial difference in conviction rates.  In my own experience with bench trials in misdemeanors over more than 20 years, I have to confess that I believe that I have won more than I have lost, so I don't suppose I can really complain based on my individual anecdotal experience.

We defense lawyers like to have juries, as a general rule.  Juries are familiar.  We tend to be suspicious of things that prosecutors want.  If prosecutors want to have a bench trial, our first reaction is that if they want a bench trial, they must have something up their sleeve, or they must perceive an advantage.  And certainly it is true that there are some judges I would prefer over others if I had to have a bench trial.  As a whole, looking at the whole process however, I have to wonder at the statistics.  I have seen some jury panels I would trade for a judge any day.   Personally, I think the defense lawyers who automatically bemoan bench trials that are forced upon them are just as wrong as prosecutors who assume that forcing a bench trial means automatic victory.  In the end, you have to play the hand you are dealt and life offers no automatic victories.

Being accused of a crime is a terrible thing, and the entire process, if you take it the entire way, is going to be sprinkled with instances of good and bad fortune.  Is there a risk that a bench trial will send you to a judge who you would prefer did not sit as fact finder in your case?  Absolutely.  But there is also a risk that a limited jury selection process will not weed out someone who will all but sleep through your trial and vote to convict you at all costs just to get out as soon as possible.

Risks in life are everywhere, even in our criminal justice system.  That risks exist is not unique to our system.  No system can guarantee perfection in the process and therefore perfection in results.


Practical Realities for Those Who Feel They Did Nothing Wrong But Are Charged with Misdemeanors in NYC

Over the years, I have learned that many people who feel as if they did nothing wrong when charged with misdemeanors can hardly believe some of the practical realities they face.  I will discuss a couple of these practical realities, not to try to discourage anyone from seeking his day in court, but simply to make sure it is understood up front the world that is being entered.  As a criminal defense lawyer, it is trials that are often the most interesting, demanding, and rewarding part of the job.  From a professional and academic standpoint, settling cases is about as exciting as watching paint dry.  Therefore, you'll never hear any complaints from the lawyers at Shalley and Murray about going to trial on a case that merits going to trial.  Nevertheless, the decision to pursue a case to the final battle of a trial does involve some practical considerations that are worth considering.  Not everyone will choose to alter their course because of any of these considerations, but everyone should think about them.  It is the job of a lawyer to make sure the client understands the big picture.  

The Justness of Your Cause Will Not Be Obvious to Everyone

Often times, people who have no experience in the Criminal Justice System have a sense that if they are innocent, then they don't even really need legal advice.  They believe that the truth will somehow be so obvious or speak for itself, that a lawyer will simply just get in the way and make things more complicated than necessary.  They assume that all they need is opportunity to "talk to the judge" or show certain pieces of evidence "to the judge" and the judge will somehow see the absurdity of it all and dismiss the case.

This is not going to happen.  The judges who you see in the initial appearances of a misdemeanor case are not sitting as fact finders in your case.  They are not there to be convinced of anything related to guilt or innocence.  In the initial appearances in court, the role of the judge is deal with various legal issues involved in getting cases ready to be sent out for trial.  There is no forum to "show things to judges".  

Even once a case gets to trial, the assumption is that the case will be a jury trial and therefore, there may well NEVER be time when the judge's view of the facts makes any difference at all.  We exist in a JURY system.  Jurors decide facts.  Jurors decide guilt or innocence, although more and more misdemeanor jury trials are reduced to bench trials where judges DO decide facts, but only in the context of a formal trial according to the law and the rules of evidence.  There is no such thing as just showing things to judges.

If you are looking to convince a judge of your innocence prior to trial, then you are wasting your time because factual issues related to guilt or innocence are not for the judge to decide (unless, at the point of trial, a jury is waived in favor of a judge trial).

Therefore, showing up to court with a pile of documents, pictures and other evidence, with the expectation that this will somehow be shown to the judge who will then be impressed with the justness of your cause is not going to work.

Facts or debates about the facts, even if you think you have rock solid proof about those facts, are what trials are about.  All court appearances prior to trial, prior to the point where facts are presented and debated, are NOT ABOUT COLLECTING EVIDENCE.

If you go to court expecting to have a conversation that begins with a discussion of facts about your case and you are hoping that the conclusion of the conversation will be the judge saying "Case Dismissed" what you are REALLY saying, in the language of the law is this: "I want to go to trial!"

And there is nothing at all wrong with this.  Jury trials are one of the key features of our criminal justice system that distinguish it from many other criminal justice systems around the world.

The difficulty, if you want to call it that, is that if you feel like you have done nothing wrong, and if you feel like you have amazing evidence to support your belief, you probably are outraged at the prospect of having to go through some long drawn out legal process involving, God forbid, lawyers.  You feel like if only you had five minutes to explain things to the Judge or Prosecutor, all would be resolved and they would realize the error of their ways.  It all may seem so crazy and wasteful to you.

And yet, the reality is that you will not get five minutes with the judge for the purpose of making your case prior to a trial.  And the reality is that if you want your day in Court it is going to cost you in a few different ways.

Having your day in Court is going to cost you TIME.

 Even though you may believe your case is so blindingly simple, trial is such an important right in our Country that legally there are any number of legal matters that must be resolved before our system allows a case to be considered ready for trial.  Even if you think the matter is really silly, the stakes are high.  You are facing criminal conviction if the case doesn't go your way, and even the theoretical possibility (if maybe not the highest likelihood) of jail time.

Therefore, for YOUR OWN protection, the system builds in a number of legal steps that must happen before your case can be declared ready for trial.  Realize that part of the reason for this is that there are no do-overs in Criminal Court.  You don't get to have your "sort of serious, half hearted, casual" trial and then if it doesn't go your way you then get to do it over "for real".  You get ONE and ONLY ONE trial in this country.  You only get a do over if you are convicted and then an appeals court finds a legal error that merits a retrial.  Realize that even if an appeals court finds a mistake in the conduct of a trial, that doesn't mean you get a retrial.  Nobody is entitled to a perfect trial.  A fair trial is not a perfect a trial.  Many errors, even if they are preserved for review, are found not to create the legal need for a retrial.

Therefore, if you are only going to get ONE chance to have your trial, the system wants (as you should) to make sure that everything that needs to be done to be absolutely totally completely ready has been done.

Also, these intermediate steps from arrest to trial must take place in the context of a very busy Criminal Justice System engaged in many many other cases just like yours.  That means that the gaps in time from one appearance to the next may be rather long.  It also means that even if everyone is ready for trial to proceed, it could easily be that the Court is engaged in some other trial and doesn't have the time to start your trial.

In the end, if your goal is have a trial of a misdemeanor case in New York City, you could easily wait six months all the way to a year before you actually conduct your trial (counting from when you were first arrested).  And in the meantime, you will be required to return to court for various appearances along the way.

Therefore, taking a misdemeanor case to trial will involve a substantial investment of your time.

Legal Fees will be More for a Trial

Along with the time cost to you, will be the cost in Money.  Clearly if you are engaged in the Criminal System and being prosecuted for a crime, even a misdemeanor, your chances of success are going to be substantially higher if you have lawyer.  This hardly even bears explaining, but a lawyer who has experience with the law, the rules of evidence and trial practice is going to have a better chance of success than someone who has no knowledge of the law, the rules of evidence or trial strategies.

Therefore, you will need to hire a lawyer.  The fact that a trial will involve quite a number of appearances over a long period of time as well as the time required to prepare a trial, as well as the concentrated burst of time required to conduct the trial itself (typically 1 - 3 days for a misdemeanor), means that the cost will not be trivial.

This may be especially frustrating to someone who feels as if he did nothing wrong and does not deserve to be needing to endure the expense of hiring a lawyer.  I can understand the frustration, even though I am a lawyer and am often the person being hired.  I feel the same sense of frustration when I get sick and I have to pay a Doctor make me better.  I don't think I deserved to get sick.  It isn't nice being sick.  I didn't choose to be sick.  But if I am sick I need a Doctor.  I feel the same sense of frustration when my car breaks down and I have to pay a mechanic to fix it.  I don't think I deserve to have to my car break down.  I didn't ask for my car to break down.  But when my car breaks down I need a mechanic.

Being charged with a crime when you did nothing wrong is much the same sort of thing.  Life isn't always fair or kind.  Sometimes it takes the patience of Job to get through the day.  But you have to deal with the things life throws at you, even when they are not fair or kind.

So if you feel like you did nothing wrong and you want your day in Court, you are going to need to hire a criminal lawyer if you want to have the best chance to be successful in Criminal Court.  If you meet Federal poverty guidelines, the system will appoint you a public defender.  

If you think you might be able to afford a lawyer but aren't sure, there is a very easy way to find out.  Call one.

At Shalley and Murray (718-268-2171), we offer free consultations where we will really take the time to discuss your case with you, by telephone, by appointment in our office, even by way of video conference on your computer if you like.

If you want your day in Court at a trial on a misdemeanor in New York City, call Shalley and Murray at 718-268-2171.  We can help you as we have helped others in the same way.  

It may be a long haul, but we can be there with you.


Don Murray, pictured above, is one of the founding partners at Shalley and Murray who has been practicing criminal defense exclusively in New York City for more than 27 years.  Mr. Murray has extensive experience handling criminal trials in New York City at the misdemeanor and felony level.  If trial is what you require, Mr. Murray has the experience and skill to position you for the highest likelihood of success.



Texting is often a fantastic way to reach an attorney quickest.  Our attorneys are often in Court where they are obviously unable to answer the telephone or listen to voice messages, but they can often see and respond to text messages from Court.  Text us now and you will likely be in touch with a criminal lawyer, as opposed to a receptionist, right away.