It’s only one city, but with five very different counties and five separately elected district attorneys, conviction, acquittal, dismissal and decline-to-prosecute rates vary widely, a reflection of the different demographics and dynamics in the Big Apple boroughs.
A New York Law Journal analysis of state data indicates that whether a felony case goes to trial, whether there is a conviction, whether the offender goes to state prison, whether the case is dismissed and whether the case is even prosecuted may hinge largely on where the crime occurred.
Felony defendants in Manhattan are far more likely to wind up in state prison. Defendants in the Bronx who opt for a jury trial have about even odds of getting off. In Queens, about seven of every 10 felony arrestees ends up with a conviction. Acquittals in Staten Island are few and far between. Nearly a quarter of the Brooklyn felonies are dismissed.
Still, for all their differences, the rates have remained fairly constant over the last five years—except in Manhattan, the only borough to elect a new district attorney since 2008.
The New York County conviction rate has increased steadily since Cyrus Vance Jr. became Manhattan’s district attorney in 2010, and the borough, which in 2009 convicted the lowest percentage of felony arrestees in the city, now trails only Queens, the perennial leader. Since Vance took office, convictions are up 13 percent. At the same time, the number of cases dismissed in Manhattan has decreased 13.5 percent since Vance took office, data show.
In the last two years of District Attorney Robert Morgenthau’s tenure, nearly a third of the cases were dismissed, and Manhattan had the city’s highest dismissal rate; over the past 18 months, the dismissal rate has averaged about 21 percent and the borough now has one of the lowest dismissal rates in the city, again trailing only Queens, which, year in and year out, has the city’s lowest dismissal rate.
Data obtained from the state Division of Criminal Justice Services on the city’s five district attorney offices show:
• Queens District Attorney Richard Brown consistently has the highest overall conviction rate (counting pleas and after-trial convictions) and, by far, the lowest rate of dismissed cases, roughly one-third as many as the other boroughs. Manhattan is now a close second on convictions, and well above the city average.
• Staten Island District Attorney Daniel Donovan regularly has the highest rate of convictions after trial and the lowest acquittal rate; typically, at least three-fourths of the cases Donovan’s office takes to trial each year result in convictions. On the other hand, Bronx District Attorney Robert Johnson consistently has the lowest after-trial conviction rate and highest after-trial acquittal rate; only about half of the Bronx defendants who go to trial are convicted.
• Manhattan routinely takes more cases to trial than any other borough, about 390 annually, compared to about 320 in Brooklyn, 260 in Queens, 225 in the Bronx and about 16 in Staten Island.
• Citywide, district attorneys typically decline to prosecute approximately 7.5 percent of the cases brought to them each year by police. Brooklyn, Queens and Staten Island follow that pattern, but Manhattan and the Bronx deviate substantially. Over the past five years, Johnson has declined to prosecute an average of 12.5 percent of his cases, and the Manhattan district attorney declined less than 4 percent. Johnson consistently declines to prosecute a higher percentage of his cases than any of the other district attorneys and in the first half of 2012 rejected nearly twice as many cases—as a percentage of the total disposed felonies—than the city average.
• Brooklyn District Attorney Charles J. Hynes disposes of considerably more felonies annually than any of the other boroughs, typically about 4,000-to-6,000 more a year than Manhattan, which has the next highest volume. Last year Brooklyn disposed of 26,481 felonies and Manhattan had 21,103. Other than Staten Island, which disposes of roughly 3,400 felonies annually, by far the lowest number, Queens has the smallest caseload with roughly 18,000 felonies disposed of annually.
• Citywide, only about a quarter of those who are arrested on a felony are convicted of a felony. In Brooklyn, the percentage of felony arrests that result in felony convictions is consistently on the low end, around 19 percent. By comparison, in Manhattan roughly 38 percent of those arrested on felonies in any given year are convicted of felonies. Outside of the city, about 40 percent of those arrested on felonies are convicted of felonies.
• People arrested for felonies in Manhattan end up in state prison much more frequently than those in other boroughs. Last year was fairly typical. About 23 percent of those arrested for felonies in Manhattan went to state prison, compared to about 15 percent citywide. In the other boroughs, roughly 11 to 14 percent of felony arrestees end up in state prison each year.
Outside of the city, typically 17-18 percent of those arrested on felonies go to state prison. The rest get local jail time, time served, probation, a mix of jail and probation or receive a conditional or unconditional discharge.
New Policies in Manhattan
Prosecutors, defense attorneys, academics and judges who reviewed the data said the borough-by-borough statistics illustrate the vastly different demographics and community dynamics in the various boroughs and the policies driven by those differences, and reveal little if anything about the respective competence of the district attorneys and their staffs.
One judge in New York City noted that the conviction rates tend to be higher in Queens, Manhattan and Staten Island—boroughs with a more middle and upper middle class jury pool.
“The one surprise in the ranking was that New York County was ranked 4th and 5th [in convictions] in 2008 and 2009 respectively and rose and held the number two rank for the last three years,” the judge said. “I do not think this can be attributed to a change in demographics in the county. I would argue that the rise in the conviction rate may have to do more with an internal change in either the policies or personnel in the DA’s office with the election of Cyrus Vance Jr. in 2009.”
Vance, in an interview, said the jump in the conviction rate and drop in dismissals is reflective of new policies and approaches he instituted after taking office nearly three years ago.
His office points to a large reduction in drunken driving cases dismissed on speedy trial grounds: In 2008, 22 percent of the misdemeanor DWI cases were dismissed for speedy trial violations, more than 400 cases annually; over the past two years, only 2 percent of the DWIs, roughly 20 cases, were thrown out under Criminal Procedure Law §30.30, according to Vance’s office.
“Both in felony court and misdemeanor court, we have sought to really understand exactly what was happening, what was succeeding and what was not,” Vance said. “We came to understand there were certain kind of cases that needed to be evaluated as to why we were getting so many dismissals. One of them was in DWIs. Once we focused in on that we were able to then work with the assistants and make sure that those important cases were getting prepared and were ready for trial.”
Vance said supervisors are reviewing difficult cases in roundtable discussions where they “talk through what we have, where are we weak, whether a case should be brought, whether it should be dismissed.”
“There is a more collective analysis of certain kind of cases which I think is getting us better results on the more difficult cases,” Vance said. “We are not just leaving it to a young assistant to figure out what to do on a difficult case. Those cases are now being supported by the bureau chiefs and other senior assistants around the office to get better results.”
Manhattan defense attorney Joel Rudin said the Vance administration has made it more difficult to get dismissals.
“There is a much closer review by the top brass and much less discretion in the hands of the assistant prosecutor to do what they think is right, which is an unfortunate development in my view,” Rudin said. “It has become a lot more bureaucratic.”
In Queens, one judge suggested that the perennially low dismissal rate is a factor of Brown’s “aggressive policies for plea bargaining, particularly pre-indictment. These policies could create an up front incentive to take a plea, reducing the number of cases that may have been dismissed.”
Defense attorney Ronald Kuby of Manhattan said Brown’s willingness to take a case to trial is well-known in the defense community.
“In the defense bar most of us know that they will be willing to try cases in Queens that they are not willing to try anywhere else,” Kuby said. “Bad cases, crazy cases, they are going to trial.”
Kevin Ryan, spokesman for the Queens district attorney, said that Brown will not engage in post-indictment plea bargaining, a fact that he said results in a large number of superior court informations.
“Because we stand firm on our plea policy post-indictment, we try a higher percentage of our indicted cases than the other counties and some of those cases may be more difficult,” Ryan said. “Queens County actually tries a higher percentage of our Supreme Court cases than any other county. Likewise, we dismiss the lowest percentage of cases in Supreme Court of any county.”
Michael Weinstock, a former Brooklyn felony prosecutor, said that in communities with higher poverty rates and more citizen run-ins with police, such as the Bronx and Kings County, jurors are skeptical of authorities and cases that rely heavily on police testimony are often weeded out.
“Getting convictions in Brooklyn and the Bronx are the toughest, because of distrust of the police,” Weinstock said. “Queens is the only borough that doesn’t have any neighborhoods that live in abject poverty. Not surprisingly, the residents have greater respect for the police, in comparison to the other boroughs, and that translates to higher conviction rates.”
Weinstock said that while police testimony may be all that is needed for a conviction in some jurisdictions, it is not enough in others.
“If I were a prosecutor and I had a case that relies 100 percent on police testimony, I would have no problem winning a conviction in Poughkeepsie, but I wouldn’t want to even bring that case before a jury in the Bronx or Brooklyn,” Weinstock said.
Kuby said distrust of police in the Bronx is pervasive, and Johnson has no choice but to take that into consideration when he decides whether to prosecute any particular case.
“You have the worst imaginable police-community relations and Robert Johnson is incredibly aware of the fact that Bronx juries are not going to trust, and for good reason, much of the police work that a Staten Island jury would trust,” Kuby said. “The high rate of dismissals and declinations is really due to an issue of these are not good cases, these are bad cops, these were bad arrests.”
One judge said a community’s perception of police and the believability of their testimony factors heavily into trial conviction rates and the cases that district attorneys choose to take to a jury.
“It makes a whole lot of difference to your trial conviction rate if you have Staten Island jurors or Bronx jurors,” the judge said. “The only people who get convicted in the Bronx are police officers, and in Staten Island they are the last people who would be convicted. Queens isn’t much different [from Staten Island] and Brooklyn is in between.”
Steven Zeidman, director of CUNY School of Law’s criminal defense clinic, said the common notion of “Bronx juries randomly and rampantly acquitting Bronx defendants” is both simplistic and racist. Zeidman said a study he undertook several years ago shows that the disparity in Bronx conviction rates “evaporates” when police testimony is not central to the case.
“The fact that the acquittal rates are higher in the Bronx is because more people living in the Bronx and serving as Bronx jurors have experienced more police misconduct than people living in any other borough and they carry that experience into the jury room, especially in cases where they are asked to consider whether a particular police officer was honest and truthful,” Zeidman said. “Johnson has to and should take that into account and seems to be taking the data seriously.”
Zeidman suggested that “rather than asking about ‘Bronx juries’ and low conviction rates we should be asking why predominantly white juries convict at such high rates.”
Steven Reed, spokesman for the Bronx District Attorney’s Office, said the raw numbers reveal little since decisions on how, and whether, to prosecute a case are made on an individual basis.
“Charging decisions and resulting dispositions are very case specific,” Reed said. “Without a case-by-case analysis, it is difficult to determine whether any of the statistics…have much significance. This is particularly true when you go from felony arrest numbers to felony dispositions because a great deal of evaluation goes on in between those results.”
Brooklyn Deputy Assistant District Attorney Dino Amoroso said the higher-than-average dismissal rate in Kings County (roughly 24 percent annually in Brooklyn compared to about 22 percent citywide) is reflective of Hynes’ long-standing commitment to diverting drug addicts, veterans suffering from post-traumatic stress disorder and the mentally ill to programs where they can be effectively treated rather than incarcerated. Amoroso said the office usually requires a defendant to plead guilty and then offers to have the charge dismissed if the offender successfully completes a diversion program.
Defense attorneys agreed with that assessment.
“Joe Hynes is perfectly willing to incarcerate people who need to be incarcerated, no problem with incapacitating people who are a danger,” Kuby said. “But he neither needs to put people in prison for political reasons nor does he enjoy putting people in prison. Joe has been the pioneer of finding ways to avoid incarcerating people who don’t need to be incarcerated.”
Defense attorney Joseph Tacopina of Tacopina Seigel & Turano said Brooklyn’s dismissal rates are almost definitely distorted at least to some extent by Hynes’ willingness to divert and dismiss cases involving drug addiction.
“The justice system is about preventing recidivism and enhancing quality of life in the community and tempering justice with mercy,” Tacopina said. “If diversion programs are increasing dismissals, I see that as a positive.”
Amoroso said Brooklyn has a jury pool skeptical of any single-witness case, whether that witness is a police officer or victim.
“Cases here tend to be victim-driven here, which is atypical of what happens at most other offices,” Amoroso said. “When your case is police-driven, you know where your witness is and all you have to do is ask them to come and you have your case. Here, you have to cajole, you have to counsel, you have to mediate, you have to convince them of the merits of the case, and pray that it all holds together until it gets to court.”
Amoroso said it is not uncommon in Brooklyn, especially in domestic violence cases, for the victim to cease cooperating just as the matter gets to trial, leaving the prosecutor with the choice of trying a case based solely on evidence and without victim testimony, or dismissing the case altogether.
According to DCJS statistics, Brooklyn routinely carries the city’s largest domestic violence caseload, usually amounting to about a third of the total for the five boroughs.
Overall, Richard Greenberg, attorney-in-charge of the Office of the Appellate Defender, noted that citywide only about a quarter of the defendants arrested for felonies are ultimately convicted of felonies. Roughly 40 percent of felony arrestees end up convicted of a misdemeanor, and about a third of the felony cases are resolved with a conviction for a non-criminal offense. Upstate and on Long Island, statistics show, roughly half the felony arrests result in felony convictions.
“What that shows, I think, is that the police overcharge those they arrest,” Greenberg said. “On rap sheets, you see the arrest charges and the arraignment charges. Often the arrest charges are for serious felonies [e.g., burglary, robbery, etc.], while the arraignment charges are much less serious [e.g., trespass, petit larceny, etc.], and then the disposition might be disorderly conduct. Either the police are overcharging or the DAs are exercising their discretion to lodge less serious charges.”
No one seems to have a good explanation for why Manhattan felons are so much more likely to land a state prison term, and observers doubt that the judges in New York County are any harsher than other jurists in the city. One judge speculated that Manhattan’s seemingly out-of-line state imprisonment rate reflects the fact that the Office of the Special Narcotics Prosecutor handles a large portion of the borough’s drug cases, which increasingly are not resulting in state prison sentences. The judge suggested that drug prosecutions in the other boroughs may be driving down the percentage of felons getting state time.
In any case, Tacopina said the respective conviction, acquittal, decline to prosecute, dismissal and imprisonment rates of the five boroughs have to weigh into a defense attorney’s strategy.
“Those are factors that are there but not factors you can control,” Tacopina said. “Does it adjust how you evaluate a case and determine if your client is going to contemplate a plea or go to trial? Absolutely. One hundred percent.”
@|John Caher can be contacted at email@example.com.