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S. Huband, Esq.
S. Huband, Esq., Attorney
Category: Criminal Law
Satisfied Customers: 1252
Experience:  Experienced and knowledgeable criminal defense attorney.
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My wife has been incarerated for over 7 months now without

Resolved Question:

My wife has been incarerated for over 7 months now without a grand jury action. Her court appointed attorney is doing nothing about it. What can I do?
Submitted: 1 year ago.
Category: Criminal Law
Expert:  S. Huband, Esq. replied 1 year ago.
Hello! If you find my response helpful, please rate it positively so that I can receive credit for my work. Doing so will NOT cost you any additional fee.

Q) What can I do?

This depends on how your wife was arrested and the charge or charges she was arrested for. Was she arrested on a felony arrest warrant? Has she gone to court to have a probable cause hearing to determine whether there should be a trial on the felony charge or charges? If so, when was that hearing?

Once I have this information, I'll do my best to help you. Thank you for your assistance.

Shuband
Customer: replied 1 year ago.

She was arrested on 6 felony charges of child rape on August 2, 2012. She plead not guilty of August 4th 2012. She has not even had a preliminary hearing yet. She has no future court dates scheduled. She was been awaiting a grand jury action since. There is no grand jury date scheduled as of yet. What can we do?

Customer: replied 1 year ago.
Relist: Incomplete answer.
My wife was arrestd on 6 counts of felony child rape on August 2, 2012. She plead not guilty on August 4, 2012. Since then her case has been removed from the court calender awaiting grand jury action. Its been 7 months of incareration and there is not grand jury action scheduled anytime in the near future. What can I do?
Expert:  S. Huband, Esq. replied 1 year ago.
Hello, and thanks for the update.

You stated "relist: incomplete answer" but I never answered. I only asked you for additional information, which you've now provided. Do you still want me to try to answer your question, or would you like someone else to help you?

Thanks,
Shuband
Customer: replied 1 year ago.


no plz if u can help me sorry about that

Expert:  S. Huband, Esq. replied 1 year ago.
No problem.

When a person is arrested on a felony warrant, she has a right to a preliminary hearing. This hearing is to determine whether or not there is probable cause to believe a crime or crimes occurred and that the person accused is the person who committed the crime(s). It is not a trial, so the "guilt beyond a reasonable doubt" standard does not apply.

Generally, these hearings take place within a month or two of arrest, depending on the evidence required, the available court dates, etc. I have had some preliminary hearings not happen for many months, even a year, after arrest. While those cases are rare, it could be that there was D.N.A. evidence being tested that took a long time to come back from the lab, or for a myriad of other reasons. The solution is generally to demand that the court give the accused a bond, i.e. a chance to get out of jail pending the preliminary hearing and trial. After all, it's not my client's fault (or your wife's, if applicable) that the government is not able to timely prosecute its case!

It's up to your wife and her attorney to determine why the case has been removed from the docket and why so much delay has occurred. If it was done with the agreement of her attorney, I assume (and hope) he would have a good reason why to agree to such a delay, especially without a bond. Perhaps the attorney can ask the court for a bond for your wife, if the delay is going to be much longer.

The other remedy is to file a habeas corpus action. This is a civil lawsuit against the government claiming that a person (i.e. your wife) is being held illegally and indefinitely against her rights to due process. This is a complicated lawsuit to bring, and she will need a separate attorney for that.

The final issue I can let you know about is called "speedy trial" rules. There are two types of speedy trial rules: constitutional and statutory. Again, the constitutional part is complex, and sometimes difficult to prove. She would bring this up as a defense in the felony trial court, assuming the cases ever get there.

As for the statutory version of speedy trial, the New York Code has a very strict speedy trial statute. You can read it here. But, note there are many exceptions to the time limits, and it all depends on what your wife and/or her attorney have agreed to in terms of continuances or delay of the cases.

If you or she do not feel this attorney is handling the case properly, perhaps another attorney is in order? If you do not know other attorneys in your area, you could consult the New York State Bar attorney referral service for help. They should be able to point you in the right direction.

I hope this information helps. If so, please rate my answer positively so that I can receive credit for my work. Doing so will NOT cost you any additional fee. Thank you for your consideration, and I wish you and you wife the very best with these cases.

Shuband
Customer: replied 1 year ago.


I know that she did not waive her rights to a speedy trial. Her attorney might have without my wifes's permission. I have been to everyone of the court appearances and my wife as of March 2nd, 2013 has not had a preliminary hearing thou she did request a probable cause hearing at the begining back in August 2012. What can I do for her? Her court appointed attorney is doing nothing. I cannot afford an attorney for her.

Expert:  S. Huband, Esq. replied 1 year ago.
Thanks for the update. I've discussed the options in my answer above.

I don't know why your wife's attorney may have agreed to continue the cases, if in fact that's what he or she has done. The attorney is obligated to explain this to your wife, but not to you.

If the attorney will not speak with her, or the attorney's explanation is unsatisfactory, she can file a bar complaint against the attorney. You can investigate a bar complaint through the New York State Bar. They should be able to help you or her to start the process.

If I have been helpful to you, please rate my answer positively so that I can receive credit for my work. Doing so will NOT cost you any additional fee. Thank you for your consideration, and I wish you and you wife the very best with these cases.

Shuband
S. Huband, Esq., Attorney
Category: Criminal Law
Satisfied Customers: 1252
Experience: Experienced and knowledgeable criminal defense attorney.
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S. Huband, Esq.
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Experienced and knowledgeable criminal defense attorney.