Holding Court: Felony Charges
Holding Court is a new series by retired Rye City Court Judge Joe Latwin. Latwin retired from the court in December 2022 after thirteen years of service to the City.
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By Joe Latwin
What happens to felony charges?
Readers may have seen that Rye police made an arrest for a so-called “Grandma Scam.” (see: Port Chester Man Arrested in “Grandma Scam” of Elderly Resident). The defendant was charged with one or more felonies. Since the acts allegedly occurred in Rye, the Rye City Court has initial jurisdiction. When the defendant and his attorney appeared in Rye City Court on April 25, 2023, his attorney asked for a preliminary (sometimes called a felony) hearing.
A preliminary hearing is a screening device to determine whether there is sufficient evidence to hold a defendant for Grand Jury action. Those devotees of the Perry Mason TV series will remember that most of the court scenes were at preliminary hearings before a judge and without a jury.
Before “bail reform”, the preliminary hearing was used to encourage release of an incarcerated defendant since the People had to conduct the hearing within 120 hours of his or her incarceration (144 hours if a weekend or holiday intervened). If the preliminary hearing cannot be held during the time allowed, the defendant must be released on his or her own recognizance. The only question to be determined at the preliminary hearing is whether there is “reasonable cause” to believe that the defendant committed a felony or a lesser offense – not guilt. Thus, preliminary proceedings tend to have few witnesses (often only the arresting officer) and minimal testimony.
The District Attorney may avoid a preliminary hearing by (1) reducing the felony charge to a misdemeanor; (2) getting an indictment from a Grand Jury, or (3) dismissing the felony charge.
The District Attorney must conduct the preliminary hearing on behalf of the People. The defendant may as a matter of right be present at the hearing. The court must read to the defendant the felony complaint and any supporting depositions unless the defendant waives such reading. Each witness must, unless he would be authorized to give unsworn evidence at a trial, testify under oath. Each witness, including any defendant testifying in his own behalf, may be cross-examined. The People must call and examine witnesses and offer evidence in support of the charge. The defendant may, as a matter of right, testify in his or her own behalf. Upon defendant’s request, the court may, as a matter of discretion, permit defendant to call and examine other witnesses or to produce other evidence in defendant’s behalf. At the hearing, only non-hearsay evidence is admissible to demonstrate reasonable cause to believe that the defendant committed a felony; except that certain reports of experts and technicians in professional and scientific fields may be admissible.
The court may, upon application of the defendant, exclude the public from the hearing and direct that no disclosure be made of the proceedings.
The hearing should be completed at one session.
At the end of the preliminary hearing, the Court may:
- Reduce the felony charge to a non-felony offense and direct the District Attorney to file a new charging instrument;
- Hold the defendant for the action of the Grand Jury; or
- Dismiss the felony complaint if there is no reasonable cause to believe the defendant committed any offense.
In the “Grandma Scam” case, the preliminary hearing is scheduled for May 19. Since no disclosure of the proceedings is permitted, I can only report what the outcome is.
