Anyone who is arrested and charged with a crime on Long Island or in New York City should obtain legal help at once and arrange to meet with an experienced Long Island criminal defense attorney. Whether the charge is a misdemeanor or a felony, and whether the defendant is innocent or guilty, he or she will need an experienced New York defense attorney’s legal advice and representation.

Probation is often one of the penalties when a criminal sentence is handed down in this state. A convicted offender must agree to and sign a “Conditions of Probation” form before a judge will order probation. Of course, anyone who is being prosecuted for a crime should not sign any document or agree to any plea bargain before discussing the matter with his or her defense attorney.

In New York, anyone sentenced to probation must adhere to the conditions and terms, which typically include avoiding criminal acquaintances, finding and maintaining a job, unannounced drug tests and unwarranted searches, and meeting on a regular schedule with a probation officer. Anyone who is sentenced to probation must take it seriously. The failure to take probation seriously could lead to a violation of probation (VOP) charge.

WHAT HAPPENS WHEN A VIOLATION OF PROBATION IS ALLEGED?

When a probation officer reasonably believes that an offender has violated the terms of his or her probation, the court is told, and the offender must then appear at a violation of probation hearing, where it is imperative to accompanied by an experienced Long Island criminal defense attorney. Sometimes, a good defense attorney can persuade a judge that no violation of probation took place.

However, if the court concludes that the offender is guilty and has, in fact, violated the terms of probation, more conditions may be added to the probation, or the offender may even be ordered to serve time in jail or prison. A violation of probation charge in the state of New York is handled in four stages: the arrest, the bond hearing, the violation of probation hearing, and the sentencing.

Because an offender serving probation has already been found guilty of a crime, many of the rights that criminal defendants may typically expect will not apply to violation of probation hearings. Although the procedure is similar in most ways to any other criminal hearing, there is no right to bond and no right to a jury, and guilt may be established by a simple “preponderance of the evidence” rather than the usual “beyond a reasonable doubt” standard.

When a probation officer in New York reasonably believes that an offender has violated the terms of probation, he or she submits an affidavit to the court which explains the alleged violation and describes the probation officer’s evidence. After reviewing the affidavit, the judge will issue an arrest warrant and the offender will be taken into custody and given a date for a bond hearing.

A probation officer, without an arrest warrant, can arrest and take directly to jail anyone serving felony probation. However, in some cases, a summons will be issued, and no arrest will be made provided the offender appears in court on the date specified by the summons. A summons is more typically issued if the alleged VOP is a misdemeanor charge or if the only violation is falling behind on fines, fees, and court costs. Otherwise, a VOP charge probably means an arrest.

IS BAIL ALLOWED FOR SOMEONE CHARGED WITH VIOLATING PROBATION?

When a probationer is placed under arrest for a VOP charge, he or she will be taken to a bond hearing. Persons serving probation have already been convicted of a crime, so they have no legal right to bail. While some judges in New York will set a bond in a VOP case, most will not. Bond in a VOP case, like a summons, is more likely if the alleged VOP is a misdemeanor charge or if the only violation is falling behind on fines, fees, and court costs.

Therefore, most offenders facing a VOP charge go to jail until the VOP hearing. Depending on the jurisdiction where the case is heard in this state, a VOP hearing could be set for as little as two weeks after the bond hearing or as long as three months. If an offender’s VOP is a new criminal charge, a Long Island criminal defense attorney may suggest asking for a continuance of the VOP hearing until the new case is concluded.

Why ask for a continuance? Because in such circumstances, if the probationer is found not guilty or the charge is dropped, the VOP charge will sometimes be dismissed as well. But in other cases, the state may nevertheless proceed with a VOP hearing, because the standard of proof is less for a VOP charge – a preponderance of the evidence rather than guilt beyond a reasonable doubt – so the prosecution is more likely to win a conviction with the VOP charge.

WHAT HAPPENS AT THE VOP HEARING?

An already-convicted offender has no right to a trial by jury, so in this state, a VOP hearing is conducted by and decided by a New York judge. Both sides present their cases, a judge considers the arguments and the evidence, and then the judge issues a verdict based on a preponderance of the evidence.

For a probationer to be convicted of VOP, the state must demonstrate that the VOP was “substantial” and “willful.” A positive drug test, for instance, is strong evidence of a substantial and willful violation of probation.

In a VOP hearing, the state presents its evidence and witnesses first. Often the probation officer will be the state’s only witness. When the probationer’s attorney cross-examines the probation officer, the attorney will try to get the probation officer to indicate that the violation may not have been willful or substantial. When the state completes its case, the defense has the opportunity to present witnesses and evidence, and the prosecution will be allowed to cross-examine any defense witnesses.

If the prosecutor wishes to make a rebuttal, that happens after the defense concludes its case. Closing arguments are then heard from both sides. The judge then considers the testimony, the arguments, and the evidence. Finally, the judge renders a decision.

Under the standard of the “preponderance of the evidence,” there is no necessity for the state to prove guilt beyond a reasonable doubt. The “preponderance of the evidence” standard is essentially a 51 percent rule, so a guilty verdict simply means it is “more likely than not” that the defendant committed the violation of probation.

Of course, a probationer found not guilty of VOP is still on probation for his or her original conviction. A guilty verdict means that the offender could be sentenced to any penalty that could have been imposed for the original conviction, including time in jail or prison.

In most VOP cases, however, the sentence for a VOP conviction is “time served” (while awaiting the VOP hearing), reinstatement (of the original terms of the probation), or a new probation sentence, typically with tougher terms and conditions than the first.