Violation of Probation
Judges often impose a sentence of Probation for misdemeanors and felonies in New York. The length of Probation is dependent on what you are charged with. For misdemeanors, the mandatory term of probation is three years. For, felonies, if sentenced to probation, the mandatory term of probation is five years. In the case of sex crimes, the terms of probation are doubled. Call Jeffrey Cohen at 718-275-5900 with experience in all types of Violations of Probation in Queens, Manhattan, Bronx, Brooklyn, Nassau and Suffolk Counties.
Upon a person’s conviction by jury/bench trial or that person´s pleading guilty to a charge, the judge can impose probation in the following four ways:
- Probation can be the entire sentence for a crime.
- Probation can be a portion of a sentence:
If you are convicted of a Misdemeanor: a Judge can sentence an individual to jail and three years probation to be served concurrently with jail time. In other words, time in jail is considered time on Probation. When released from jail, the person completes the balance of the three-year Probation. If the person is sentenced to more than 60 days in jail, then according to the law, no probation can be imposed.
If you are convicted of a Felony: a Judge can sentence an individual to jail and five years probation to be served concurrently with jail time. In other words, time served is considered time on Probation. When released from jail, the person completes the balance of the five-year Probation. If a person is sentenced to more than six months in jail, then according to the law, no probation can be imposed.
- Intermittent Sentences and Probation – if an individual is sentenced to serving an intermittent sentence, such as weekends in jail and Probation, for either a misdemeanor or felony, the weekend component can be up to four months of weekends. After that jail time is served, the person completes the balance of his probation.
- Time served while awaiting trial and Probation – upon a conviction, time served is automatically credited to the jail sentence imposed by the Judge. Even though the time served may exceed the maximum cited in #2 above with regard to time served in jail, in this situation, the judge can still impose probation upon sentencing.
Violation of Probation in New York:
Probation Violation is an offense that occurs when you break the terms or conditions of your Probation. The consequences associated with a probation violation usually depend on a variety of factors, such as the nature and seriousness of the violation, whether you have any prior violations, and whether there are other circumstances that may lessen or worsen the severity of the situation. A probation violation may result in significant penalties, such as heavy fines, extended probation, jail time, or more.
Judges are extremely hard on those accused of violating Probation because they feel that the person is not living up to the promises he or she made to the court. Probation violations can be filed at any time and can result from even minor offenses. The Probation Department can file a violation at any time. When they do, they file what is called “Specifications” against someone they believe is not following all of the orders of probation and the judge. Each specification alleges a violation. An individual may have just one specification or they may have several.
The usual requirements of probation are maintaining employment, not being rearrested, and going to a drug program if it is determined you have a drug problem. You will also have to regularly check in with the Probation Department and meet appointments. In addition to these general terms, the Probation Department or the Judge can also order additional conditions of your probation. This could include restitution to a victim, intense supervision, or various classes or programs that the judge or probation office deems appropriate.
How Probation Is Violated in New York:
Probation Violation laws vary among the states and are governed by federal and state laws. A Probation Violation usually occurs when you ignore, avoid, refuse, or otherwise break the terms or conditions of your Probation at any time during the Probation period.
Probation may be violated in many different ways. Circumstances that may lead to a probation violation in New York include:
- Failure to appear for a scheduled court appearance on a set date and time
- Failure to report to your probation officer at the scheduled time or place
- Failure to pay any required fines or restitution (to victims) as ordered by a court
- Visiting certain people or places, or traveling out of state without the permission of your probation officer
- Possessing, using, or selling illegal drugs
- Committing other crimes or offenses
- Failure of a court mandated drug or alcohol test
- Failure to submit to alcohol or drug testing
- Altering or diluting the sample to conceal drug or alcohol use
- Failure to attend or complete court-ordered treatment
- Failure to complete community service
- Curfew violations
- Failure to report an address change
- Visiting prohibited people or places
- Violating any other term or condition contained within your probation order
When Probation Is Violated — What Happens Next?
- When Probation violates an individual, he or she can be immediately arrested, be required to appear in court for a violation hearing, or be issued a warning.
- In deciding what to do when an individual violates, a probation officer may consider the severity and type of condition violated, past probation violations or warnings, and other considerations.
- Once a violation is filed, the individual is arraigned on the specific “specifications”. At this time, he or she may plead guilty and be sentenced or request a violation hearing. During a hearing, the Prosecution must prove that the individual violated their probation by a “preponderance of the evidence”, meaning “it is more likely than not.”
- If you are found guilty of probation violation, you will mostly likely be sentenced on that same day or within a short period of time.
- Sentences may include: extension of probation, additional probation terms, jail time, or revocation of your probation altogether and require you to serve out any remaining time of your original sentence in prison.
- When imposing a sentence, the Judge will look at the nature and manner of the offense and whether the offender was a “first-time” or “repeat” offender, among other considerations. Why do you need an attorney if you violate your probation?
- When a person violates their probation, they often do not know which rights they have, such as a right to see the specifications or a right to a hearing.
- Since the Judge has broad discretion during sentencing, a Criminal Defense Attorney must present the strongest defense possible. An experienced attorney can put together a compelling defense and show the Judge mitigating factors in your case.
- Also, a Criminal Defense Attorney can help you avoid the severe penalties that are likely with a violation of probation, such as significant fines, a revoked probation or, more significantly, jail time.