Written by attorney George Peter Conway

Preliminary Hearings In New York Criminal Cases

If you are charged with a felony and in custody, you have the right to have a preliminary hearing within 120 hours of being placed in confinement or 144 hours if a weekend or legal holiday falls within that 120 hour period. You must be released if a preliminary hearing is not timely held unless otherwise agreed or you have other holds or you have already been indicted by the grand jury. Most preliminary hearings are held in local criminal court and only last two to three hours.

A preliminary hearing is one of your few chances to gain pre-trial discovery. As a general rule, you should not waive your right to a preliminary hearing unless you have other holds (i.e. Parole Hold) or a key witness may be available to testify at the preliminary hearing but not at the trial. However, your lawyer may advise you to waive or adjourn your preliminary hearing if the prosecution makes a favorable plea bargain offer that is contingent on your waiving the preliminary hearing.

The purpose of the preliminary hearing is to determine whether you should continue to be held for the next forty-five days for action by the grand jury. The prosecution must show that there is reasonable cause to believe that you committed a felony. The prosecution will call witnesses to testify and introduce evidence at the preliminary hearing. The prosecution will usually attempt to call as few witnesses as possible to meet their burden of proof so as to keep their cards close to their vest. Your lawyer should ask the prosecutor to turn over the prior statements and the criminal record of any witness called to testify by the prosecution.

Your criminal defense lawyer will be given the opportunity to cross examine those witnesses and examine that evidence. You have the right to testify at the preliminary hearing. You may with the court’s permission call witnesses and introduce evidence. Your criminal defense lawyer in most cases will advise you to waive your right to testify and introduce evidence at the preliminary hearing. Your criminal defense lawyer will probably simply wish to use the preliminary hearing as an opportunity to gain information about the prosecution’s case against you without letting the prosecution obtain any information about your defense.

The prosecutor will likely successfully object to some of your criminal defense lawyer’s questions as being irrelevant because they seek information beyond the scope of the hearing. This should not be a source of concern for you since your lawyer is probably simply attempting to test the waters and get as much information as possible out of the preliminary hearing.

At the conclusion of the preliminary hearing, the court may: a. order you held for action by the grand jury, b. reduce the charges against you or c. release you. If the court does not release you, it may set bail unless you have two prior felony convictions or you are charged with a class A felony. The majority of defendants are held over for action by the grand jury.

The witnesses who testified at the hearing may later be called to testify at subsequent hearings or trial. Prior testimony is an excellent tool for cross examination. Therefore, your lawyer should order a copy of the transcript of the preliminary hearing to prepare for subsequent hearings or trial.

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