Pre-Charge Criminal Investigations

Watch the following educational legal video by New York Criminal Defense Attorney Robert Aiello as he discusses pre-charge criminal investigations and how to protect your rights, even before you are charged.

Nowadays we have a lot of cases that require long term investigations, particularly with white collar cases that may involve such charges as sales tax evasion or collecting disability benefits to which one is not entitled. These cases usually involve people who have committed some type of fraud in the application process, and they might have collected benefits for many years when, at some point, an investigation was conducted and they were caught. Either there was a random check or they had a confrontation with someone who knew what they were doing and they were “ratted out.” Now, all of a sudden, there’s an investigation.

These investigations are generally fairly complex, so they go on for a long period of time. While the investigation’s under way, you may learn that something is going on. Either you notice an unfamiliar vehicle parked in front of your house or someone’s following you around, or paperwork is requested from your bank or some other place, or someone calls you and says, “Hey, Joe. I just got a call from someone at the police department asking me about you and whether you’re able to go to work or not and things like that.” You will usually find out about the investigation before it’s completed.

In those types of cases, you’ll be best served by getting an attorney involved as soon as possible. If someone is doing an investigation, and if they’re expending those kinds of resources, it’s very likely that they’re going to find that you’ve done something wrong. You’re in the best position to know whether or not you’ve done anything wrong and, if you have nothing to worry about, that’s fine. I tell most people, “If they’re investigating you, chances are there’s probably something you’ve done wrong.” I also say to most people, ”There but for the grace of God go I.”

Here’s a question clients ask me all the time. “Mr. Aiello, why’d they arrest me? Everyone else out here is doing the same thing I’m doing. Why didn’t they get caught?” I use this example and tell them, “Look. Everyone speeds on the highway. The speed limit’s 55 miles an hour and everyone’s going by at 60 or 70 miles an hour. They can’t pull everyone over, so it was your lucky day. They got to pull you over. They caught you and pulled you over. Now you have to be proactive.”

You need to protect yourself by hiring an attorney who’s experienced in handling those types of cases. Depending on the type of case it is, that attorney will probably want to speak with you. He will interview you to get all the facts. It’s very important that you tell him everything about what you’ve done – the good, the bad, and the ugly – so that he is in the best possible position to give you the advice you’ll need to deal with your case. That investigation may continue for weeks or even months after you’ve already retained an attorney.

At some point, there will, in all likelihood, be an arrest. Your attorney will contact the investigator and, more importantly, the Assistant United States Attorney assigned to handle your case (if yours is a federal case), or the Assistant District Attorney assigned to handle your case. Every investigation is run by the police department or the FBI’s Special Agents, depending on the organization involved and the type of crime under investigation. Ultimately, there will always be a prosecutor who will direct the investigation and determine whether search warrants need to be issued and whether wire taps and other surveillance mechanisms will be involved. That will always go through the attorney who is the prosecutor in the case.

Early on, you’ll learn which prosecutor is assigned to the case. Then, at some point, your attorney will contact that person and say, “Look. I’m representing this particular client. I know he’s under investigation. I want you to know he’s not going anywhere. We’re aware of the investigation and he’s not fleeing the country. Here’s my name and number. If and when the time comes when you are going to make an arrest, please give us the courtesy of contacting my office and I will arrange for my client’s voluntary surrender.”

Why is it important to arrange a voluntary surrender? One of the most important things to address at the inception is that, when you get arrested, you want to get out of jail as quickly as possible. When you go to get arraigned – the arraignment is the court appearance at which you’re formally charged – you’ll see the judge for the first time and enter your plea of not guilty. At that point, the judge will decide what, if any, bail should be set in this case.

The purpose of bail is to ensure that a client returns to court at the appointed time. If I’m able to arrange a voluntary surrender with the prosecuting attorney, I’m basically saying to the world, “I’m aware of the charges, I’m not going anywhere, so we don’t even need bail in this case. If I were going to leave, I would’ve been on the next plane out of here before you came and tried to arrest me.” That may not be an issue. Sometimes you can arrange a voluntary surrender and, if so, that’s a great thing.

Sometimes, even though you arrange a voluntary surrender, the prosecutors may demand some bail. Yours may be a case involving fraud that adds up to multiple millions of dollars. They have a strong case, and they’re afraid that, when they announce the charges to you, you will realize how bad it looks for you. Now that you’ve found out, they might say, “He didn’t flee before because he didn’t know how bad the case was. Now that he knows the charges are really bad, he’ll want to get on a plane and take off.” At that point, if bail is going to be set, your attorney will try to arrange for a bail package.

A bail package might mean that, as your attorney, I will speak to the prosecutor and say, “Okay, what amount of bail would ensure my client’s return? He’s lived in the community his whole life. He’s married. He has kids. He has roots here, including family, etc., but I understand that you need bail. He owns his own home. Let’s see if we can agree on a bail package.” The advantage of a bail package is that I will have been in touch with a bail bondsman or the person who will post the bail in cash before I go to court for that first time,. I will know that, by the time your case gets called, I’ve already lined up everyone. You’ll go before the judge and, right after you see the judge – within minutes – you’ll get out of jail. That’s very important because, if we can get you out of jail, it’s much easier to defend your case because you can come to my office and review the documents. That’s far preferable to working with a client who’s in jail and can’t make bail. In that case, I’d have to go over there with boxes of material and sit in a little cubicle to review the case.

Robert J. Aiello is a principal and founding member of the law firm and a trial attorney.  His practice is devoted primarily to criminal defense in State and Federal Courts. Mr. Aiello has been involved in many high-profile cases throughout his career. Contact us at our Maspeth, Queens office today to schedule a free and confidential consultation with experienced New York criminal defense attorney Robert Aiello.