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Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 23530
Experience:  Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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Good morning. My brother is currently being held on five counts,

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Good morning. My brother is currently being held on five counts, intent to do great bodily harm less than murder and murder, domestic assault, torture, and unlawful imprisonment. He has a court appointment attorney. His attorney stated that the pretrial was going to be rescheduled due to him not being properly prepared when in fact there was a pretrial held off the record. He did not discuss this with my brother and my brother, so now there is a jury trial scheduled. The attorney will not return my calls. I don't know what to do. Can his attorney enter a plea without him knowing?
Hello Jacustomer,

I cannot tell you for sure what the lawyer is doing, and he certainly should be communicating with your brother. But I can tell you a couple of things which may help you to understand the proceedings:

An attorney can not enter a plea of guilty for his client unless the client authorizes him to do so, but he can enter a plea of not guilty on his behalf. This is because "not guilty" is the only plea that keeps all of a defendant's rights open, and while a criminal case is pending, all criminal defendents remain in a "not guilty" posture. A not guilty plea is the only one that allows the lawyer to wait for discovery on the case and file for all hearings that your brother is entitled to and negotiate for a deal, if your brother wants one.

That doesn't mean that a formal pre-trial hearing was held or that the case is really going to trial on the scheduled date. It does mean that both sides have discussed the case with the judge in general terms so that the judge gets an idea of whether this is going to involve a disposition or whether the case may remain on his calendar for a long time while the charges are fought. Homicide cases do not get tried quickly. It's simply that every case in which there is no plea yet offered or contemplated is technically bound for trial.

There is an attorney/client privilege, and while concerned family members are always interested in what is going on with their loved ones case, a lawyer is required to keep much of what he knows confidential, and that means he can't share it with family either. Some lawyers don't like to have to explain that to family so they tend not to return their phone calls. But public defenders generally work for defender organizations, and they have supervisors.

If you want to hear what little your brother's lawyer is allowed to tell you about the case, call his office, ask to speak to the lawyer's supervisor, and complain about his leaving the family -- including his client -- completely in the dark as to what is going on with his case and that he won't return your phone calls.. Believe it or not, that's known to work. The supervisor will either tell you himself or make sure that the attorney will get back to you.

Hope this helps, but if it doesn't, or if you need clarification use the reply tab below to tell me what you don't understand and I'll be happy to add to my answer.

Customer: replied 3 years ago.

what is the difference between counts and charges?

Hi Charese,

There's really no important difference. He's charged with 5 different criminal acts either way. But if he were, for example, arrested in possession with intent to sell heroin and cocaine, he'd have two drug counts on his indictment -- one for the herion and another for the cocaine, though the charge itself (possession of a controlled substance) would be the same for each count. It's not the same crime.
Customer: replied 3 years ago.

Hi! Since each is a separate charge, it's possible he could be sentenced for each individually? Is it possible that the prosecution will offer a plea deal that would consist of dropping some of them?

Hi Charese,

Yes, it is possible that the prosecutor would ask for consecutive sentences. These charges are very serious. Sometimes, the prosecutor will refuse to deal on a homicide. Other times, he'll cut a deal, reduce the homicide to a manslaughter and dismiss other counts for the sake of a disposition.

It really all depends on the facts and circumstances of the case. The uglier the facts and the worse a defendant's record, the less the prosecutor will want to compromise anything at all for the sake of a deal.

Customer: replied 3 years ago.

He has a suspended license on his record and has been in a couple of fights in which each case was thrown out. The victim is not deceased, but did have fractures to the spine and deep bruising on body, fully recovered after a couple of months.

Thanks. You said "great bodily harm less than murder and murder." So I thought the victim died.

His offenses is a misdemeanor. The charges are still serious, as the damage to the complainant are very severe, but in my experience, a deal of some sort can be negotiated which could involve some of the counts being dismissed here. It's going to be an incarceratory offer, however. So if he has a defense he may be better off going to trial on the charges.
Customer: replied 3 years ago.

Final question: I know that without the details of the case you wouldn't be able to provide me with a for certain answer. But, he has been in the county jail for almost a year. Do you think, based on your experience that he would receive time served? Or is he possibly going to prison, how long?

Hi,

Please understand that I'm just answering according to general priniciples and my experience. The charge with the most serious count is the torture, for which te maximum penalty is life. If the prosecutor is willing to dismiss that count, then the intent to commit harm less than murder is worth a maximum of ten years.

I do not see him getting out without serving a prison sentence, and without anything other than the charges to look at, I don't see anything less than 5 years -- minus the year he's already done.

There might be facts and circumstances in mitigation, but just working from only the charges, that's my best guess. It's domestic too, which is taken very seriously. While someone with no prior felonies wouldn't usually get the maximum on a non-homicide case, in my experience the penaties for something like this would fall in the middle of the range for the crime.

Remember though, it's only a guess. His lawyer would have the best indication of what kind of deals, if any have been put on the table.
Customer: replied 3 years ago.

I understand. Thank you for all the information, it had been very helpful. Have a great weekend!

Thank you! I'm sorry I didn't have better news for you, but I'm pleased to have assisted you.

Good luck to you and to your brother.
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