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what is a new york preliminary hearing

March 21, 2024 Uncategorized

What is a New York Preliminary Hearing?

A preliminary hearing in New York is a critical early step in a felony criminal case. It allows a judge to determine if there is sufficient evidence and probable cause to proceed with felony charges against a defendant before the case goes to a grand jury.

Overview of Preliminary Hearings

A preliminary hearing is typically held within 144 hours (6 days) after a defendant is arrested and arraigned on felony charges in New York. The hearing takes place in the local criminal court, such as the New York City Criminal Court.The main purpose of a preliminary hearing is for the judge to determine if probable cause exists to believe the defendant committed a felony offense. Probable cause means there are reasonable grounds to believe the defendant committed the crime based on the evidence presented.During the hearing, the prosecutor presents evidence and calls witnesses to show probable cause. The defense can cross-examine witnesses and present their own evidence. If probable cause is found, the judge will order the defendant to be held for grand jury action. If not, the charges may be reduced or dismissed.

When a Preliminary Hearing Occurs

There are two main ways a preliminary hearing can occur in New York:

  • Automatic: If the prosecutor wants to pursue felony charges against a defendant in local criminal court, a preliminary hearing must automatically be held within 144 hours of arraignment. This time limit may be extended if the defendant consents or contributes to a delay.
  • By request: The defendant can request a preliminary hearing after arraignment. This may occur if the prosecutor initially proceeds by grand jury and the defense wants a chance to challenge the evidence earlier.

Preliminary hearings do not replace grand juries in New York. Once probable cause is found, felony cases still ultimately proceed to a grand jury for potential indictment. But preliminary hearings allow an early assessment of the evidence.

The Hearing Process

Here is how a typical preliminary hearing unfolds:

  • The defendant is brought before the judge, along with both attorneys.
  • The prosecutor calls witnesses and presents evidence aiming to establish probable cause that the defendant committed a felony. Police officers often testify about the investigation and arrest.
  • The defense can cross-examine the prosecution’s witnesses and object to evidence introduced. However, the hearing has relaxed evidentiary rules compared to a criminal trial.
  • Once the prosecutor finishes presenting evidence, the defense can put on their own witnesses and evidence. The defendant has a right to testify, but often does not in order to avoid self-incrimination.
  • Both sides can make arguments about whether the evidence establishes probable cause or not.
  • The judge then decides whether probable cause exists based on the hearing evidence. If probable cause is found, the case proceeds to the grand jury. If not, the judge can dismiss or reduce the charges.
  • The entire hearing typically lasts around 2-3 hours due to time limits under New York law.

Defense Strategies and Outcomes

Defense attorneys have several strategic options during preliminary hearings:

  • Cross-examine prosecution witnesses to challenge their credibility and testimony. Pointing out contradictions or gaps can undermine the probable cause finding.
  • Object to evidence that would be inadmissible at trial to prevent it from influencing the probable cause determination.
  • Present affirmative defenses like self-defense or alibi to cast doubt on the prosecution’s theory of the case early on. However, this preview of defenses can also help the prosecution prepare its trial strategy.
  • Argue for dismissal or charge reduction by contending the evidence fails to establish probable cause for the felony charges. The judge can dismiss the case entirely or reduce felony charges to misdemeanors or violations.
  • Waive the hearing to avoid revealing defense strategy or if the prosecution makes an acceptable plea offer conditioned on waiver. Waiving may also allow more time to negotiate or investigate the case.

While preliminary hearings offer an early chance to undercut the prosecution’s case, the probable cause standard is relatively low. But the hearing creates opportunities to assess the evidence and prepare for trial or plea negotiations down the line.

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Relationship to Grand Juries

In New York, felony cases require indictment by a grand jury in addition to a preliminary hearing. The grand jury process happens after the preliminary hearing is held and probable cause is found.There are key differences between preliminary hearings and grand juries:

  • Preliminary hearings are adversarial – both prosecution and defense present evidence and examine witnesses. Grand juries are one-sided – only the prosecution presents evidence to the grand jurors.
  • At preliminary hearings the judge decides if probable cause exists. At grand juries the grand jurors decide if probable cause exists based on the prosecution’s presentation.
  • Preliminary hearings must happen within 144 hours of arraignment. Grand juries meet less frequently and indictment can take weeks or months.
  • Evidence and testimony at preliminary hearings can provide a preview of the prosecution’s case for the defense. Grand jury proceedings are secret – the defense cannot access the evidence presented.

While serving different roles, both preliminary hearings and grand juries must find probable cause to proceed with felony charges against the defendant.

Implications of Probable Cause Findings

The judge’s ruling on probable cause at a preliminary hearing has several implications:

  • If probable cause is found, the felony case continues forward. The defendant is held for grand jury action and the case proceeds toward possible indictment.
  • If probable cause is not found, the judge can dismiss some or all charges, or reduce felony charges to misdemeanors or violations. This terminates or reduces prosecution of the case.
  • A finding of no probable cause can also lead to the defendant’s release from custody or a bail reduction. Probable cause often supports high bail amounts.
  • Even if probable cause is found, the hearing creates opportunities for dismissal or plea negotiations later on by previewing the prosecution’s evidence.

While not eliminating the case entirely, a no probable cause finding significantly shifts leverage to the defense in ongoing proceedings.

Defendant’s Rights at Preliminary Hearings

As a critical stage in prosecution, preliminary hearings provide defendants with important due process rights:

  • The right to be present at the hearing. Defendants can waive this right in some cases.
  • The right to cross-examine witnesses called by the prosecution.
  • The right to call their own witnesses and present evidence, including taking the stand themselves.
  • The right to make legal arguments challenging the probable cause finding.
  • The right to have an attorney present at the hearing. Defendants without an attorney will be appointed one.
  • The right to an interpreter if needed to understand the proceedings.
  • The right to a public hearing, unless the judge grants a motion to close the courtroom.

Robust participation by the defense during preliminary hearings is crucial to protect the defendant’s rights and interests in the early stages of a felony prosecution.


Preliminary hearings are important pre-indictment proceedings in New York felony cases that allow judges to weed out weak prosecutions lacking probable cause. They provide an early opportunity to challenge the prosecution’s evidence and secure dismissal or reduction of charges. While not eliminating the need for grand juries, preliminary hearings give the defense valuable insight into the state’s case and a chance to shift momentum in their favor early on. With proper strategic use, they can be an important tool for defendants fighting felony charges.



 https://ypdcrime.com/cpl/article180.php – New York Criminal Procedure Law on preliminary hearings


 https://www.nycourts.gov/courts/6jd/madison/oneida/criminal/proceedings.shtml – Overview of criminal court proceedings in New York


 https://www.justice.gov/usao/justice-101/preliminary-hearing – DOJ explanation of preliminary hearings


 https://nassaucountytrafficlawyer.com/the-criminal-case-in-a-nut-shell-a-9-part-series-part-3-the-preliminary-hearing-or-grand-jury-proceedings/ – Article on preliminary hearings in New York by defense attorney


 https://fastlawpc.com/what-is-a-new-york-preliminary-hearing/ – Outline of the preliminary hearing process in New York

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