N.Y. Criminal Procedure Law § 410.70: Hearing on violation

§ 410.70 Hearing on violation.

1. In general. The court may not revoke a sentence of probation or a

sentence of conditional discharge, or extend a period of probation,

unless (a) the court has found that the defendant has violated a

condition of the sentence and (b) the defendant has had an opportunity

to be heard pursuant to this section. The defendant is entitled to a

hearing in accordance with this section promptly after the court has

filed a declaration of delinquency or has committed him or has fixed

bail pursuant to this article.

2. Statement; preliminary examination. The court must file or cause to

be filed with the clerk of the court a statement setting forth the

condition or conditions of the sentence violated and a reasonable

description of the time, place and manner in which the violation

occurred. The defendant must appear before the court within ten business

days of the court's issuance of the notice to appear and the court must

advise him of the contents of the statement and furnish him with a copy

thereof. At the time of such appearance the court must ask the defendant

whether he wishes to make any statement with respect to the violation.

If the defendant makes a statement, the court may accept it and base its

decision thereon. If the court does not accept it, or if the defendant

does not make a statement, the court must proceed with the hearing.

Provided, however, that upon request, the court must grant a reasonable

adjournment to the defendant to enable him to prepare for the hearing.

3. Manner of conducting hearing. The hearing must be a summary one by

the court without a jury and the court may receive any relevant evidence

not legally privileged. The defendant may cross-examine witnesses and

may present evidence on his own behalf. A finding that the defendant has

violated a condition of his sentence must be based upon a preponderance

of the evidence.

4. Counsel. The defendant is entitled to counsel at all stages of any

proceeding under this section and the court must advise him of such

right at the outset of the proceeding.

5. Revocation; modification; continuation. At the conclusion of the

hearing the court may revoke, continue or modify the sentence of

probation or conditional discharge. Where the court revokes the

sentence, it must impose sentence as specified in subdivisions three and

four of section 60.01 of the penal law. Where the court continues or

modifies the sentence, it must vacate the declaration of delinquency and

direct that the defendant be released. If the alleged violation is

sustained and the court continues or modifies the sentence, it may

extend the sentence up to the period of interruption specified in

subdivision two of section 65.15 of the penal law, but any time spent in

custody in any correctional institution pursuant to section 410.60 of

this article shall be credited against the term of the sentence.

Provided further, where the alleged violation is sustained and the court

continues or modifies the sentence, the court may also extend the

remaining period of probation up to the maximum term authorized by

section 65.00 of the penal law. Provided, however, a defendant shall

receive credit for the time during which he or she was supervised under

the original probation sentence prior to any declaration of delinquency

and for any time spent in custody pursuant to this article for an

alleged violation of probation.