Upstate New York Defense Attorneys Representing Clients in Probation Violation Hearings
In New York, as in other states, probation – a court-ordered sanction imposed upon an offender as an alternative to active jail time – can be an important tool for the justice system. It can save the state money; housing an inmate within “the system” is expensive. In addition, probation can deter further criminal behavior, while still punishing the offender. In many situations, it can also provide an offender with an opportunity for rehabilitation.
Probation is almost always granted with conditions. Some standard conditions include:
- Requirement that all laws be obeyed
- Submission to random drug tests
- Restitution to crime victims
- Attendance to group or individual therapy
- Avoidance of places and/or persons associated with criminal activity
- Prohibition of guns and other weapons
- Travel restrictions
- Requirement that offender meet regularly with a probation officer.
If the offender violates any of the conditions, his or her probation officer may file a Violation of Probation (“VOP”) with the court; if the allegations are not successfully addressed, the judge may impose the original “active” sentence or add conditions to the probation order. What can an offender expect at a probation violation hearing?
Two Categories of Probation Violations
Generally speaking, there are two categories of probation violations. First, there are “technical” violations related usually to the administration of the offender’s post-conviction case. For example, if the offender may fail to meet with the probation officer as required, the officer may file a VOP. If the probation includes a curfew, failure to comply may be considered a technical violation.
The second type is usually referred to as “substantive” violations. Committing a new crime – even a misdemeanor – can constitute a substantive violation. While many offenders feel technical violations are less important than substantive ones, one must always remember that a violation of any type can result in revocation of the probation status.
Accused is Entitled to Hearing
If a VOP has been filed, either for an alleged technical or substantive violation, the offender is entitled to a hearing to determine if an actual violation has occurred. An offender should recognize, however, that there are some significant differences between a probation violation hearing and a regular trial in criminal court. Those differences include the following:
- There is no right to a jury trial – the decision is made by the judge.
- The judge employs a different burden of proof for a probation violation hearing. While guilt beyond a reasonable doubt is the standard in a criminal trial, with probation hearings, the standard is that the violation be proved by “a preponderance of the evidence.” This is a much easier burden for the state to meet, and appeals from the judge’s decision are rarely overturned.
Many VOPs Are Resolved Through Agreement
Because the judge has such broad powers in deciding whether a probation violation has occurred, many VOPs are resolved by agreement with the judge prior to conducting the actual hearing. Depending upon the circumstances, a skilled attorney may be able to negotiate some resolution short of active prison time. If the judge is convinced that the violation was not intentional, or if the judge determines that the offender is serious about abiding by the court’s conditions, the judge may even dismiss the VOP. On other occasions, the judge may desire that the offender plead guilty to the violation, with the understanding that additional sentencing will be held off to allow the offender to “measure up.” Some attorneys refer to this as “probation probation.” If the offender has further trouble, the judge often discontinues the probation altogether and imposes a jail or prison sentence.
Alleged Violations of Probation Are Serious Matters
Some New York defendants harbor serious misunderstandings about probation violations. For example, they think they get “credit for time served” while on probation. In most cases, this isn’t true. If an offender is given a five-year active sentence and that sentence is suspended while the offender is on probation, a VOP three years into the probation period can still result in an active five-year prison sentence. Likewise, a technical violation can result in the imposition of jail or prison time, just like a more serious violation.
Skilled Attorneys Are a Must if You Face a Probation Violation
The key to fighting a VOP is to face it head-on and to do so with the help of a skilled, experienced probation violation defense attorney. If you have been charged with a probation violation, even one that you think is minor, you owe it to yourself and your family to set an appropriate strategy. The attorneys at E. Stewart Jones Hacker Murphy have the judgment and experience to handle your defense. If negotiations are possible, our defense attorneys have the experience to represent your interests vigorously. We also have the skill and tenacity required to take your case to trial if necessary.
We are one of the most highly respected law firms in upstate New York and the Capital District. We have been representing clients for more than 125 years; our law practice has stood the test of time. Make the right call. Call us now at (518) 284-3183 or complete our online form. The E. Stewart Jones Hacker Murphy law firm has a defense lawyer available to assist clients 24 hours a day, seven days a week, 365 days a year – even on holidays.