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In New York, as in many other states, probation is an alternative to incarceration in criminal sentencing. Probation is a Court ordered sanction imposed upon a criminal defendant in place of jail or prison time. Individuals sentenced to probation are almost always subject to certain terms or conditions. Standard conditions of probation include a requirement that the probationer meet with/check-in regularly with a probation officer, travel restrictions, prohibitions against guns or other weapons, requirements that he/she avoid places or persons associated with criminal activity, random drug/alcohol testing, etc.
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If a probationer violates of the terms and conditions of probation, his or her probation officer may file a Violation of Probation (VOP) with the sentencing Court. The sentencing judge then may impose additional conditions to the probation order or may even impose the original sentence of incarceration.
There are two categories of probation violations, technical violations and substantiative violations. Technical violations usually relate to the probationer’s failure to meet the exact terms and conditions of probation i.e. failure to meet with probation officer as required or failure to comply with a curfew. Substantive violations are considered more serious and usually are the result of a probationer committing a new crime, even a misdemeanor. While substantive violations are considered more serious, any violation, even technical, can result in the revocation of probation and re-sentencing.
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After a VOP has been filed with the Court, the probationer is entitled to a hearing on the issue of whether an actual violation has occurred. A VOP hearing is different than a criminal trial and there is no right to a jury, the decision is made by the judge. The standard of proof in a VOP hearing is also not like a criminal trial, beyond a reasonable doubt, instead the allegations must be proven by a “preponderance of the evidence,” an easier burden to meet. Many VOPs are resolved by agreement with the judge prior to conducting an actual hearing.
If it does go to an actual VOP Hearing, both sides present their cases, a judge considers the arguments and the evidence, and then the judge issues a verdict based on a preponderance of the evidence. For a probationer to be convicted of VOP, the state must demonstrate that the VOP was “substantial” and “willful.” In a VOP hearing, the state presents its evidence and witnesses first. Often the probation officer will be the state’s only witness. When the state completes its case, the defense has the opportunity to present witnesses and evidence, and the prosecution will be allowed to cross examine any defense witnesses. Closing arguments are then heard from both sides. The judge then considers the testimony, the arguments, and the evidence. Finally, the judge renders a decision
Depending on the circumstances of the VOP, a resolution without incarceration is possible if the judge determines the violation was unintentional. Sometimes the judge may require the probationer to admit to having violated the conditions of probation and hold off sentencing to allow the probationer time to prove to the judge they are serious about abiding by the court’s conditions. In the cases where the probationer has further trouble, probation can be revoked altogether and a jail or prison sentence is imposed instead.
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