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How to Vacate a Bench Warrant

Jason Stern, one of New York’s top criminal defense attorneys, has been featured in the NY Times, Good Morning America, CNN and Fox News.

What is a Bench Warrant?

A bench warrant is issued when a criminal defendant fails to appear in court on the specified court date. The bench warrant is NOT issued by police or the district attorney -- it is issued by the presiding judge. Because of this, the only person who can vacate a bench warrant is the judge.

Every day in New York Criminal Courts, there are thousands of bench warrants issued for failure to appear. All bench warrants are entered into the New York Criminal Database and are immediately made available to all New York State police officers. In the event that a person with an outstanding bench warrant is pulled over by police or stopped on the street, he or she will be arrested and taken directly to jail for processing and will be held overnight until he is taken to the court where the outstanding warrant is pending.

Once before the court, the judge will determine whether or not to set bail or whether to provide the person with a second chance to return to court. The decision to set bail is up to the judge, but the District Attorney will make a bail application if the person has missed more than one court appearance and that bail application will be taken into consideration by the judge.

For most violations and misdemeanors, the police will not pursue a bench warrant by showing up at a person's house or apartment or place of business. However, for more serious crimes, such as felonies, the police will attempt to locate the whereabouts of the alleged felon and have him arrested. These police officers are usually in the Warrant Squad.

The Warrant Squad differs from a bail bondsman in that a bail bondsman is not a member of law enforcement or government and the bail bondsman does not attempt to retrieve a defendant unless bail has been posted. In the event that the defendant was released on his or her own recognizance (without a bail requirement), there is no bail bondsman.

Author Jason Stern

Author and New York Criminal Defense Attorney Jason Stern

Author and New York Criminal Defense Attorney Jason Stern

How to Find Out about a Bench Warrant

If a defendant failed to appear at a hearing or court appearance and his or her attorney did not successfully convince the judge to 'stay' (prevent) the bench warrant, then it is highly likely that there is an outstanding bench warrant for the defendant's arrest.

Most people become aware of an outstanding bench warrant in one of two ways:

  1. Arrest: The police have the absolute right to ask any person to produce identification. Once a person produces that identification, the police will run the ID and its information through the NYSCIS database. If the search turns up a hit, the police may ask for additional information. Once they confirm that the match is accurate, they will arrest the person and take them back to the police precinct for processing. This will occur whether the original charge was as trivial as an open container of alcohol or public urination violation or as serious as a murder charge. For many people, their first awareness of the bench warrant comes when stopped for a traffic violation or on the street and asked to produce identification. The identification matches up with the information in the police computer and that person is arrested and notified of the existence of the outstanding warrant. Because the person who is arrested is automatically returned to the court where the warrant was issued, the warrant is vacated at the time of the defendant's return to court and he or she does not need to do anything additional to vacate the warrant.
  2. Employment Background Check: The second manner in which individuals become aware of outstanding bench warrants is through a job background check that turns up the warrant for the job applicant. In this case, the employer has searched or had its sub-contractor search the NYSCIS and located the warrant that way. Many employers will give the applicant the benefit of the doubt and give them a few days or weeks to sort out the matter. Given this opportunity, most applicants will contact a criminal defense lawyer to find out the steps and procedures involved in vacating the bench warrant.

Although the process of vacating the bench warrant is not particularly complicated, the important thing to remember is this: At the time the bench warrant is vacated, the underlying matter (original case) will be dealt with immediately! This means that if a person was originally charged with assault and never returned on the court date, he can have the warrant vacated by voluntarily returning on the warrant to the court, but that once in front of the judge, the assault case will be dealt with. This means that having an excellent criminal defense lawyer by your side is mandatory.

Vacating the Warrant

In order to vacate a warrant, one needs to go to the Court where the original matter was pending. It is of no use to go to the criminal court in Brooklyn to vacate a warrant that was issued in Queens. Despite the seemingly obvious nature of this, every day people walk into the wrong court expecting to be able to vacate their outstanding warrants.

Once a person locates the court where the original missed court appearance was, he or she needs to go to the clerk's office.

  • One of the questions that is frequently asked is whether the person is likely to be arrested upon appearing in court. The answer is no because the clerk's office is not in the business of arresting people and the court officers at the security desk do not ask for identification.
  • Although unlikely, there IS the possibility that the clerk's office will notify the court officers or police if the person appearing on the voluntary return is considered a dangerous felon.

At the clerk's office, the person will be asked to provide identification and complete a short form. Once this is done, the clerk will usually direct the person to head directly to the courtroom where his or her case will be resolved. The time it takes to locate the file from the archives, have it reviewed by a supervising district attorney and make its way to the courtroom can vary from anywhere between one and six hours!

  • Attorney Tip: Having an attorney with you will usually result in your case being handled much more quickly than without an attorney. Typically cases are handled in this order: (1) Private attorney cases; (2) Cases in which the Defendant is locked up; (3) Public Defender cases; (4) Bench Warrant cases with Private attorney; and (5) Bench Warrant cases without private attorney.

Once the case reaches the court, it is handed to the Assistant District Attorney in that particular courtroom who reviews the recommendations of his or her Supervising District Attorney. When the case is called by the Court, the ADA may make an offer to resolve the case. On bench warrant cases, this offer is usually not as good as the offer that was originally made or would have been made had the defendant appeared at his or her original court appearance. The reason for this is that the ADA has a lot of leverage in this situation: If the defendant fails to accept the proposed deal, the ADA can make a bail application -- which means that the ADA will request that the judge require the defendant to post bail to secure his or her appearance at the next court date.

If the defendant turns down the proposed deal from the ADA and the judge grants the ADA's bail application, the defendant will be immediately handcuffed and returned to jail until proof is provided to the court that bail has been posted. Because of the likelihood of incarceration and the unfair amount of leverage possessed by the ADA in these matters, it is imperative that a defendant showing up in court on a voluntary return on a bench warrant is properly represented in court by an attorney who is capable of professionally handling the underlying charges.

  • Attorney Tip: If you ABSOLUTELY must do it yourself, always bring a friend along with PLENTY of cash or available credit, just in case bail is set at a large amount!

Bench Warrant Criminal Court 100 Centre Street

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