I was in County Court for a friend last week and a person appearing in front of the Judge was requesting a preliminary conference. What is he talking about?
Well, you were in criminal court because that’s where we hear about preliminary hearings also called a “prelim.” Defendants who are (1) charged with a felony and (2) in jail unable to make bail or in on no bail on that charge, and (3) who have not been indicted for the crime by the Grand Jury are entitled to a prelim.
A prelim is a hearing where the People of the State of New York must prove to the Court that there is sufficient evidence to hold the Defendant chargeable with the crime. At the prelim, the arresting officer and other necessary parties (such as witnesses to the crime) must testify. Generally the Defendant does no testify and does not present evidence.
The Defense may request a prelim during any time that they are incarcerated. The prelim must be held within six days after request… unless the Defendant or Defendant’s counsel waives the time and allows an adjournment.
Now Defendant’s are only entitled to a prelim on felony charges. If the Defendant is charged in several jurisdictions with misdemeanors and felonies, the Defendant may be “held” in jail on misdemeanor charges only, even though the Defendant has felonies. Because of this, the Defendant is not entitled to a prelim. Additionally, if the Defendant is only being held on one felony of several, then the prelim will only address this charge and not the other ones.
The basic ideas is that the State can not jail a person unless there is reasonable suspicion that the Defendant has committed a crime. In my opinion, it’s also a “fishing expedition” for the Defense and giving them a chance to attack the witnesses. This is especially true in sexual crimes, like rape or abuse, or when the witnesses are young children. It’s very intimidating for these individuals to have face-to-face contact with the Defendant.
If the Court finds sufficient evidence to hold the Defendant, they are remanded to the jail pending further action. If the Court finds there is insufficient evidence, then the Defendant is released from jail. However, the charges are not dismissed at this point. The criminal action will continue to go forward.
As always this is a general answer to a general question. Each legal issue may contain other factors that need to be discussed with your own attorney.
If you have a question for Attorney Kukuvka, please mail them to her at 330 E. Main St., NY 14522, or cklaw@verizon.net.