A person’s failure to satisfy the terms and conditions of probation in New York state results in a VOP, a violation of probation charge. Probation is sometimes available as an alternative to any time spent behind bars, usually imposed for five years for a felony conviction and three years for a misdemeanor conviction. If sentenced to probation in New York State, the terms and conditions likely include:
- Reporting to a probation officer
- Acquiring and retaining a job
- Attending school consistently
- Avoiding criminal activity and individuals linked to the crime
- Abiding by the law
- Subjecting oneself to searches and unscheduled drug or alcohol tests
- Avoiding travel to other counties unless approved by the probation officer
- Possible curfew
If suspected of violating one’s probation, the court will either issue a summons to the probationer to appear before the court or the probation officer will report their suspicions to the court and the court decides whether to issue an arrest warrant.
A probation violation, regardless of when it occurs, proceeds throughout the same process. In other words, it doesn’t matter if the probation violation occurs on the second or last day of probation, the procedure for determining whether a probation violation occurred and the judge’s decision will be the same.
Probationers suspected of violating their probation are not entitled to bail and do not have the right to a jury. In other words, suspicions of violating one’s probation are a very serious matter in New York given the power imbalance. The probationer must then convince a judge (often the same one who previously allowed probation) that they did not violate their probation and should not be sent to prison.
As a practical matter, nobody likes to be wrong – and judges are no exception. This might mean that the judge will take the matter very seriously because they leniently allowed probation the first time. However, judges are the exclusive decision-making authority in a VOP hearing and are rarely successfully appealed.
During the hearing
At the hearing, New York State and the probationer present their evidence. Witnesses are allowed and can be questioned by either side. After consideration of all evidence presented to the court, the judge decides whether the probationer violated their probation using a preponderance of the evidence standard. The preponderance of the evidence basically equals 51%, which means that it was more likely than not that the probationer violated their probation. This relatively low number is permissible because the state has already proven the probationer guilty of the original crime.
If the judge decides the probationer did not violate their probation, the original probation sentence continues as if nothing happened. Also, depending upon their holistic record and the severity of the probation violation, New York can usually allow the probationer to continue serving their probation, most likely subject to increased terms and conditions from their original agreement.
For more information or to schedule a consultation with us, call our Brewster office at (845) 363-1994. Call Christopher York Attorney at Law today.
NOTE: This is for informational purposes only and does not constitute legal advice.
Check out what others are saying about our services on Yelp: Read our Yelp reviews.
In New York, larceny is how the state explains most of the theft laws in the penal code. Larceny is codified under New York Penal Code Section 155.05, which identifies the definition of the crime …
Being charged with any type of theft can be very stressful and have serious consequences. A theft conviction can impact your family, health, employment, and many other aspects of a person's life. Securing a grand …
Every day thousands of individuals in the United States receive traffic tickets ranging from driving on a suspended license, speeding, running through red lights, and seat belt violations. These offenses occur regularly in New York …
Gun owners in New York should be aware of the New York Secure Ammunition and Firearms Enforcement Act of 2013, which was enacted to stop criminals from buying a gun by requiring universal background checks, …