Question: What is a preliminary hearing?

Answer: A preliminary hearing on a felony complaint is the first opportunity for a defendant who is held in pre-trial detention on a felony charge to be heard in front of a judge. Generally speaking, it is required that the preliminary hearing be held within 120 hours from the time of arrest.

Should the preliminary hearing not be held within the 120 hour period, the defense counsel may motion the Court for the defendant's release from pre-trial confinement. If the a town or village Court denies the motion, defense counsel can make a similar motion before a county court judge. The purpose of a preliminary hearing is to determine whether the evidence against the defendant is sufficient to warrant detention pending action by the grand jury. If the Court finds that there is reasonable cause to believe that the defendant committed a felony, incarceration is not mandatory.  As an alternative, the Court may set bail, or direct other pre-trial restraints or release the Defendant on his or her own recognizance.  If the prosecution indicts a felony case within the 120-hour time limit for the preliminary hearing, then the defendant will loose the right to the preliminary hearing.  The goal of a preliminary hearing is very broad.  As such, Courts will usually allow wide latitude when it comes to the scope of questions proposed to the witnesses called to present testimony to the Court.  A defense attorney may ask probing questions to examine the weaknesses of the prosecution's case and cross-examine key witnesses like an arresting officer to provide the defense with an early opportunity to have a witness commit to their testimony to preclude later deviations in the witnesses' testimony at trial.

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

Answer: If there is a good plea offer on the table, a defendant may desire to waive the preliminary hearing while talks between the prosecutor and the defendant's attorney continue.  There is at least one potentially good reason why a defendant might waive their right to a preliminary hearing.  Plea offers are made at the discretion of the District Attorney's Office, and a preliminary hearing requires that the District Attorney's Office expend time and resources to conduct the hearing. As a result, the District Attorney's Office may alter a plea offer as a result of the hearing because further investigation to prepare for the hearing may bring forth previously overlooked details about the alleged crime that now demand more stringent punishment. 

If you, a loved one or a friend is charged with a felony and are pending a preliminary hearing, contact our office for a consultation.