A Guide to Preliminary Hearing in New York State

Due to Covid, there is now an influx of Preliminary Hearings Done By Skype

What is a preliminary hearing under New York Law?

Under New York Law CPL 180.10(2), a preliminary hearing is a “prompt” hearing following arraignment on a felony complaint “upon the issue of whether there is sufficient evidence to warrant the court in holding him for action of a grand jury, but he may waive such right.”

What is a preliminary hearing in Reality?

In reality, “scholars and practitioners agree, since the prosecutor must present proof of every element of the crime claimed to have been committed, no matter how skeletally, the preliminary hearing conceptually and pragmatically may serve as a virtual minitrial of the prima facie case (see Amsterdam, Segal & Miller, Trial Manual for the Defense of Criminal Cases [3d ed., 1974], § 139 et seq.).” People v. Hodge, 53 N.Y.2d 313, 318, 423 N.E.2d 1060, 1063 (1981)

Preliminary hearings are a creature of statute and include the right of cross-examination. See CPL § 180.10. The defendant has the right to be present. CPL § 180.60(4), and the right to counsel. See People
v. Hodge, 52 NY.2d 313 (1981)(identifying a preliminary hearing as a “critical stage” in the state criminal process).

What Happens Reasonable Cause is Not Proven?

“If there is not reasonable cause to believe the defense committed any offense, the court must dismiss the felony complaint and discharge the defendant from custody . . . or . . .exonerate the bail.” CPL § 180.70(4). The court can also, under certain circumstances, reduce the charge to a non-felony charge. CPL § 180.70(3), (4).

! “Each witness including any defendant testifying in his own behalf, may be cross-examined.” CPL § 180.60(4).