N.Y. CPL Law § 410.70 — New York Code / Act CPL / Part 2 / Title L / Article 410 / Section 410.70
Hearing on violation
Status: in_force

§ 410.70 Hearing on violation.\n  1. In general. The court may not revoke a sentence of probation or a\nsentence of conditional discharge, or extend a period of probation,\nunless (a) the court has found that the defendant has violated a\ncondition of the sentence and (b) the defendant has had an opportunity\nto be heard pursuant to this section. The defendant is entitled to a\nhearing in accordance with this section promptly after the court has\nfiled a declaration of delinquency or has committed him or has fixed\nbail pursuant to this article.\n  2. Statement; preliminary examination. The court must file or cause to\nbe filed with the clerk of the court a statement setting forth the\ncondition or conditions of the sentence violated and a reasonable\ndescription of the time, place and manner in which the violation\noccurred. The defendant must appear before the court within ten business\ndays of the court's issuance of the notice to appear and the court must\nadvise him of the contents of the statement and furnish him with a copy\nthereof. At the time of such appearance the court must ask the defendant\nwhether he wishes to make any statement with respect to the violation.\nIf the defendant makes a statement, the court may accept it and base its\ndecision thereon. If the court does not accept it, or if the defendant\ndoes not make a statement, the court must proceed with the hearing.\nProvided, however, that upon request, the court must grant a reasonable\nadjournment to the defendant to enable him to prepare for the hearing.\n  3. Manner of conducting hearing. The hearing must be a summary one by\nthe court without a jury and the court may receive any relevant evidence\nnot legally privileged. The defendant may cross-examine witnesses and\nmay present evidence on his own behalf. A finding that the defendant has\nviolated a condition of his sentence must be based upon a preponderance\nof the evidence.\n  4. Counsel. The defendant is entitled to counsel at all stages of any\nproceeding under this section and the court must advise him of such\nright at the outset of the proceeding.\n  5. Revocation; modification; continuation. At the conclusion of the\nhearing the court may revoke, continue or modify the sentence of\nprobation or conditional discharge. Where the court revokes the\nsentence, it must impose sentence as specified in subdivisions three and\nfour of section 60.01 of the penal law. Where the court continues or\nmodifies the sentence, it must vacate the declaration of delinquency and\ndirect that the defendant be released. If the alleged violation is\nsustained and the court continues or modifies the sentence, it may\nextend the sentence up to the period of interruption specified in\nsubdivision two of section 65.15 of the penal law, but any time spent in\ncustody in any correctional institution pursuant to section 410.60 of\nthis article shall be credited against the term of the sentence.\nProvided further, where the alleged violation is sustained and the court\ncontinues or modifies the sentence, the court may also extend the\nremaining period of probation up to the maximum term authorized by\nsection 65.00 of the penal law. Provided, however, a defendant shall\nreceive credit for the time during which he or she was supervised under\nthe original probation sentence prior to any declaration of delinquency\nand for any time spent in custody pursuant to this article for an\nalleged violation of probation.\n