Violations of Probation in New York City Criminal Court (Queens Bronx Brooklyn Manhattan)
By Don Murray, Esq.
Violations of probation represent a serious problem for those on probation. The possibility of them being filed makes a sentence of probation a less attractive option than perhaps it might otherwise seem. Here’s why…
While a person is on probation he is assigned a probation officer to whom he must report. A person who is on probation is also subject to a number of restrictions, that might include a curfew, the requirement to stay in school or at work, or other conditions. Also, a person who is on probation is expected to avoid further criminal activity.
If someone fails to abide by any of the conditions of probation, his probation officer has the power to file a Violation of Probation (or VOP) with the Court. In a VOP, the person is usually brought before the judge who originally sentenced him to the probation and formally accused of violating probation.
There are essentially two categories of potential violations. First there are “technical” violations related to following administrative requirements like reporting to the probation officer as directed. Second, there are more “substantive” violations like committing a new crime while on probation. Although “technical” violations may seem less important than violations related to the commission of new crimes, both can serve to violate a person on probation equally.
Also, a person can be violated on probation AT ANY TIME during the course of probation and still face the same amount of punishment for the violation. This means that if you violate probation on your first day of probation, you face the same amount of time for violating that probation as you would for violating probation on the last day of probation. In other words, you don’t get “credit for time served” for time you spend outside of jail on probation.
A person who is violated on probation is entitled to a hearing on whether or not he actually violated probation. This hearing is usually conducted by the judge who sentenced the person to probation. The VOP hearing is conducted without a jury. The judge decides the facts and determines the outcome. In order to find a person guilty of violating probation, the judge need only decide the case on the burden of proof called “preponderance of evidence”. Essentially that means that if the judge believes that the person probably did what probation says he did to violate probation, then the judge will find him guilty. Because the burden of proof with respect to VOPs is so low, and because the judge is the finder of facts, the judge’s decision in a VOP hearing is realistically almost unappealable.
And there lies the great difficulty associated with VOPs. Because judges’ decisions after VOP hearings are virtually unappealable, AND because judges KNOW that their decisions after VOP hearings are virtually unappealable, a person charged with a VOP is almost entirely at the mercy of the judge. The bottom line is the judge can just about do whatever he or she likes with almost any VOP, almost without regard to argument, explanation, or defense by the attorney.
Therefore, most VOPs are resolved by agreement with the judge under the theory that whatever can be agreed to in advance of a formal hearing will be a better deal than the likely sentence after forcing the judge to conduct a formal hearing.
The range of possible sentences for a VOP depends on the crime to which the defendant originally pleaded guilty.
VOP Sentencing - Real World Example
For example, suppose defendant pleads guilty to a C non-violent felony and is sentenced to 5 years probation. The original plea was to a C non- violent. The maximum sentence on a plea to a C non-violent is 5-15 years in state prison. Therefore, if he violates probation at any time for the next five years (even after 4 years, 11 months, and 29 days), the defendant could be sentenced by the judge to up to 5-15 years in state prison.
Many times people are violated on probation for seemingly minor “technical” reasons (called specifications or “specs”) like failure to report or failure to notify of a new address. In such cases it is often possible to convince the judge to agree to give the defendant another opportunity. In extremely minor cases, some judges might even agree simply to dismiss the violation and restore the defendant to probation right there and then.
On other occasions the judge may want the defendant to plead guilty to the violation of probation, but agree to hold off on sentencing. The defendant is then monitored in court periodically to make sure he continues to do the right thing. This is sort of a “probation probation”. If the defendant satisfies the court that he is back on track, the sentence becomes to restore the defendant back to probation. If the defendant continues to perform unfavorably, the judge then usually discontinues probation and imposes a jail or prison sentence.
When defendants are violated on probation because of new arrests, some special difficulties are presented. One might expect that a probation judge must wait until the underlying criminal case is resolved before deciding whether or not there has been a violation of probation.
This is NOT the case. A probation judge is in NO WAY bound by the outcome of an underlying criminal case of a person on probation. A person with a new case could take the new case to trial, BE FOUND NOT GUILTY, and the judge could still find that he violated probation by the conduct alleged in the new case.
The reason for this goes back to the difference between the burden of proof in a criminal case and the burden of proof in a VOP. If a person is found not guilty after a trial, that technically only means that the Government has not proved the case beyond a reasonable doubt. Beyond a reasonable doubt is an extremely high burden of proof.
But VOPs are not decided by the standard of proof beyond a reasonable doubt. VOPs are decided based on the standard of proof by a preponderance of evidence. The “preponderance” standard is far LOWER than the beyond a reasonable doubt standard. That means that a person could be NOT GUILTY for the purposes of a criminal accusation, but GUILTY of the violation of probation. Therefore, notions of Double Jeopardy do not apply to VOPs.
Nevertheless, most judges will usually give a defendant who is found not guilty the benefit of the doubt and let a VOP go, but they are not required to do so. Certain recent policies have suggested that the concept of a benefit of the doubt may be losing steam. Read the following real world example to find out more:
THE POWER OF A VOP - Real World Example
I represented a person accused of a serious assault in New York City who happened also to be on D felony probation. The Government filed a VOP based on the new arrest.
As the new case progressed, it became apparent that the prosecutors were going to have a tough time proving the case, but they didn’t like the defendant very much and were looking for a way to get at him. They had the VOP, but since it was based on the same charge as the new case, they were going to need the same witnesses, and the availability of witnesses was part of the problem.
The Government then discovered that some time ago, but while on D felony probation, the defendant got arrested for shoplifting about $2 worth of model paint from a Toys-R-Us. He was not represented by Mr. Murray at this time and he plead guilty to a non-criminal offense of Disorderly Conduct the first time he appeared before a judge at the arraignment.
Normally such a minor offense would not even appear on the radar screen or cause significant difficulty. But in this case it represented the means by which the Government would get this defendant.
They caused the Probation Department to file new “specs” on the VOP that included the arrest for shoplifting and plea to disorderly conduct. Despite the legal argument over this irregular procedure, ultimately the judge permitted it.
Then, even as the new assault case was being dismissed, the Government elected to proceed on a VOP based on the shoplifting charge. Remember that the VOP judge was not bound by the fact that the defendant only plead guilty to disorderly conduct. The Government brought in the security guard to prove the underlying shoplifting (petit larceny, A misdemeanor) charge. At the hearing the Government presented a security guard who showed that the defendant shoplifted about $2 worth of model paint from Toys-R-Us.
The judge found that the defendant had violated his probation and made aware of the Government's desire to hurt this defendant essentially for the case they had to dismiss, sentenced him to the maximum of 2 1/3 to 7 years in state prison.
The violation of probation proceeding took place in a courtroom solely devoted to leveraging the enormous power of VOPs against defendants with open cases. The express purpose of this courtroom was to "encourage" defendants with VOPs to plead guilty to their VOP and any new matters or face maximum sentencing on the VOP before the new case is sent out for trial.
That meant that a defendant who dared to buck the system by daring to suggest that he was not guilty of some new accusation would NOT be given the opportunity to be acquitted and then possibly receive the benefit of the doubt with his VOP. Instead a defendant would almost certainly be convicted of any VOP, sentenced to maximum time AND THEN have to face the risk of going to trial on any new matter.
The obvious idea behind this policy was that anyone who was on probation must necessarily be guilty of any new offense and should therefore be punished for having the audacity to go to trial or suggest that he might actually not be guilty. As a technical legal matter, however, the process was AOK, however cynical and coercive it may have seemed. As a practical note, this policy of aggressively pushing VOPs ahead of new cases seems to have eased into obscurity for the time being. Although a host of reasons related to fairness and justice could be advanced to explain this, the real reason may well be something else.
The defendant’s new felony case was dismissed, yet he ended up being shipped upstate to prison for 2 1/3 to 7 years anyway. This is the power of a VOP. In this particular case, as in other cases, the Government used the VOP to achieve a result it either could not achieve otherwise or could not achieve as easily. Mr. Murray won the battle (the felony case was dismissed) but lost the war (client went upstate for 2 1/3 to 7 years anyway) all because of a VOP based on a $2 container of model paint.
Violation of Probation in New York City
New York City criminal defense attorney Don Murray provides an overview of violation of probation proceedings in New York City in this article that includes real world examples to illustrate the power of violation of probation proceedings.
Call 718-268-2171 for more information about violation of probation cases in New York City or to schedule your free consultation with a New York City criminal defense lawyer from Shalley & Murray.
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