Preliminary Hearings for Felony Charges in New York

Question: What is a preliminary hearing?

Answer: A preliminary hearing on a felony complaint (sometimes called a PH, a felony hearing, or a preliminary examination) is the first opportunity for a defendant who is being held on a felony charge to be heard in front of a judge. It needs to be held within 120 hours of the time the defendant was arrested, or 144 hours if there is a weekend that falls during the 120-hour window. If the PH is not held within that time, defense counsel can make a motion to the local court judge for the defendant’s release. If the local court judge denies the motion, defense counsel can make a motion before a county court judge. The purpose of a PH is to determine whether the evidence against the defendant is sufficient to hold her for action by the grand jury. If the judge presiding over the PH finds that there is reasonable cause to believe that the defendant committed a felony (any felony – not necessarily the one charged), incarceration is not mandatory. The judge can still set bail, or in counties where it is available, utilize Pre-Trial Services to monitor the defendant at such time as the judge releases her.

If the prosecution indicts a felony case (presents it to a grand jury and gets a response back) within the 120 or 144-hour time limit for the PH, then the defendant loses her right to a PH. This often happens in large areas with well-staffed District Attorney offices or in very serious cases.

The goal of a PH is very broad – to determine whether the defendant committed any felony. As such, judges usually (and reasonably so) allow wide latitude when it comes to the scope of questions that the witnesses are being asked. As such, when a PH is held, defense counsel accomplishes a few things. First, and most importantly, the PH may give defense counsel insight into the weaknesses of the prosecution’s case. It also gives the defense an opportunity to cross-examine key witnesses, most notably (and likely) the arresting officer. This cross-examination gives the defense an early opportunity to lock a witness’ recollection into the record. Later, at a probable cause hearing or trial, if the witness tries to offer testimony different from what was offered at the PH, defense counsel can call the truthfulness of the witness’ new testimony into question.

As you can see, there is good reason for a defense attorney to hold a PH. So why is it that your defense attorney might be suggesting you waive your right to a PH?

Question: Why would I waive my right to a preliminary hearing?

Answer: There is at least one potentially good reason why a defendant might waive her right to a preliminary hearing. First, you need to remember that plea offers are made at the discretion of the District Attorney’s Office, and they tend not to like preliminary hearings for all the reasons that defense attorneys do like them. Prosecutors also don’t like that preliminary hearings take valuable time and resources. If a defendant demands that the District Attorney run a preliminary hearing on a case, the DA is allowed to alter their plea offer. The DA doesn’t say that they are altering the plea offer because the defendant is exercising her right to a hearing, they say that in the course of their investigation to prepare for the PH, they came to realize that the circumstances surrounding the alleged crime demand a more severe punishment. If there is a good plea offer on the table, a defendant may want to waive the PH while talks between the prosecutor and the defendant’s attorney continue forward.

If you or someone you know is charged with a felony in Rochester or Geneseo and are now in jail awaiting a preliminary hearing, contact the Rochester criminal defense lawyers at Jeannie D. Michalski for a free consultation. Our number is (585) 351-2500. We will talk to you about the case, and come up with a strategy for getting you out of jail as soon as possible.