Tips From a New York Attorney If You Have Violated Probation

Posted on: July 16, 2018

If you have been arrested or charged with a probation violation, the first step you should take is to contact a New York probation violation attorney.  Regardless, if your previous conviction was a felony or a misdemeanor, you will need an experienced probation violation attorney to represent you and offer you skilled advice.

Conditions of Probation Form

Probation is a common consequence of being convicted or accepting a plea for either a felony or a misdemeanor.  A defendant will sign a form known as “Conditions of Probation,” acknowledging the defendant’s understanding of the requirements of their probation and the length.  The defendant must sign this form in front of a judge before sentencing.

Signing a legally binding document creates significant consequences. 

Tip:  A defendant should never agree to sign any document, for purposes of this article primarily this form, before reviewing it with a probation violation attorney.

Common Conditions of Probation

Once the form is signed, typical conditions of probation include obtaining housing, employment, random unannounced drug tests, avoiding any place where criminal activity exists or criminal acquaintances, random searches of the ex-offender or their residence, and regular meetings with a probation officer.

Tip: Make sure you review your conditions with your probation violation attorney and fully understand your probation conditions.

The Arrest

If a probation or police officer believes an ex-offender has violated probation, the ex-offender will be cited, possibly arrested, and a court date is given for the probation offender to appear. 

In New York, a probation violation occurs in four steps: the arrest, bond hearing, court hearing on violation of probation, and sentencing.  If a probation officer determines that the ex-offender violated probation they submit an affidavit, which includes the alleged violation and evidence, to the judge.  If the judge determines a violation took place, they will issue an arrest warrant.

Once the arrest warrant has been issued, the offender will be arrested and taken into custody.  If the offender violated a felony probation the probation officer can take the offender right into custody without submitting an affidavit to a judge.

Tip: It is imperative that the defendant is represented by a probation violation attorney immediately after arrest or knowledge of the violation.

Bond Hearing

Once the arrest has occurred, the offender will be given a date for a bond hearing.  The bond hearing is very different from a typical criminal hearing.  Because the offender has already been found guilty of a crime, they have no legal right to bail.

Most judges in New York will not issue bail in a violation of probation offense.  Bail set in a violation of probation offense is usually given if the underlying crime the offender was found guilty for was a misdemeanor. This also applies if the only probation violation is late fees, fines or court fees. As a result, most offenders will remain in jail until the violation of probation hearing. 

Tip: You are more likely to receive bail if you are represented by a probation violation attorney.  These attorneys know how to present evidence that reassures the judge that the offender is not a flight risk.

VOP Hearing

Violation of probation, also known as a “VOP,” hearing typically takes place anywhere from two weeks to three months.  The offender does not have a right to a jury in the state of New York,  the hearing is decided completely by a judge.

The elements the state of New York must prove based on a preponderance of the evidence is that the defendant committed the VOP and that the actions were “substantial” and “willful.” After hearing both sides and their witnesses the judge renders a verdict.

Tip: A skilled probation violation attorney will be able to cross-examine the probation officer to prove that the violation was not willful or substantial. 

Following these tips can help ensure that your rights are protected and you receive the minimum consequences if you are found guilty of a violation.  Being represented by an experienced probation violation attorney can reduce that risk.

NOTE: This blog is for informational use only and does not constitute legal advice.