If you’ve been arrested for a felony in New York, you will face a felony hearing—a critical court proceeding that determines whether there is probable cause to believe you committed the crime. Understanding felony hearings, your rights, and how to prepare is essential to protecting your freedom and future.
This page explains what happens at felony hearings, the purpose of the hearing, your rights, and how to prepare for this crucial proceeding.
A felony hearing (also sometimes called a “preliminary hearing”) is a court proceeding held in the local criminal court to determine whether there is probable cause to believe you committed the felony you’ve been charged with. It’s a critical early proceeding that can significantly impact your case.
The felony hearing serves several purposes: to determine whether there is probable cause that you committed the felony (not guilt beyond a reasonable doubt, just probable cause), to preserve testimony from witnesses who may not be available at trial, to lock in witness testimony under oath, to test the strength of the prosecution’s case, and to create a record for appeal if necessary.
The hearing does not determine guilt or innocence. The standard is much lower than “guilt beyond a reasonable doubt.” The prosecutor only needs to show probable cause—a reasonable basis to believe that a crime has been committed and that you committed it. This is a relatively low standard, but it can be challenged through aggressive cross-examination and presentation of defense evidence. Probable cause is sometimes referred to as “reasonable cause” under New York law.
A felony hearing must be held within a specific timeframe. If you’re arrested on a felony complaint (not an indictment), a felony hearing must be held within 120 hours (5 days) of arraignment if you’re in custody (144 hours, or 6 days if you are held over a Saturday, Sunday or legal holiday). These are firm deadlines but can be extended upon consent of the defendant for certain reasons, or if “good cause” is shown (like a witness is hospitalized).
The prosecutor presents evidence through witness testimony and documents. Typically, police officers testify about the facts of the case. Civilian witnesses (victims, complainants, eyewitnesses) may also testify. The judge presides and determines whether probable cause exists. You have the right to be present at the hearing. Your attorney cross-examines the prosecution’s witnesses and presents evidence on your behalf.
The prosecutor calls witnesses to testify about the alleged felony. Usually, this is a police officer who conducted the investigation or made the arrest. The prosecutor asks questions to establish the facts supporting probable cause. The testimony is given under oath.
After the prosecutor finishes questioning, your attorney cross-examines the witness. This is a critical opportunity to: challenge the officer’s credibility, expose holes in the prosecution’s story, show inconsistencies in the officer’s testimony, test the strength of the probable cause, and preserve testimony for trial (lock in what the officer said).
Your attorney can present evidence on your behalf. This might include: testimony from defense witnesses, physical evidence supporting your position, documents or records that help your case, and potentially your own testimony (though this is usually strategic to avoid). The decision to present evidence depends on the specific facts of your case and strategy.
The judge decides whether the prosecution has established probable cause. The judge will almost always rule immediately.
If the judge finds reasonable cause, the case is “bound over” to the grand jury for indictment. You will be prosecuted for the felony in supreme court (felony court). The hearing has not determined guilt or innocence—it simply means there’s sufficient basis to proceed with the case.
If the judge finds there is no reasonable cause to believe a felony was committed, any felony complaint is dismissed. However, the prosecutor may be able to file an indictment directly without a hearing (in some cases), or refiling charges is possible. But a finding of no probable cause is a significant victory. If there are separate misdemeanor charges that remain, the case will continue in the local criminal court on those non-felony charges.
The felony hearing is an opportunity to test how strong the prosecution’s case really is. Through aggressive cross-examination, your attorney can expose weaknesses in the evidence, credibility problems with witnesses, and gaps in the prosecution’s narrative. Even if probable cause is found, this information is valuable for trial preparation.
When witnesses testify under oath at the felony hearing, their testimony is locked in. If a witness later changes their story at trial, you can use the felony hearing testimony to impeach them (show they’re lying or inconsistent). Police officers may be less careful about their testimony at a preliminary hearing, which can be advantageous.
If your attorney effectively cross-examines witnesses and exposes weaknesses in the prosecution’s case, the prosecutor may become more willing to negotiate a favorable plea agreement. A strong felony hearing performance can convince the prosecutor that trial is risky.
Even if probable cause is found, your attorney should make objections at the felony hearing that preserve issues for appeal. For example, objections to illegally obtained evidence can be preserved for later appeal even if the hearing judge allows the evidence.
You have several critical rights at a felony hearing:
Before the hearing, your attorney should investigate the arresting officer: prior complaints against the officer, history of dishonesty or misconduct, training background, prior felony hearing experiences. This information can be used to impeach credibility.
If you’ll present defense witnesses, they must be thoroughly prepared. Your attorney will explain the questions they’ll be asked, prepare them for cross-examination by the prosecutor, and ensure they understand the importance of clear, consistent testimony.
If the prosecution relies heavily on hearsay (out-of-court statements), your attorney can object. At felony hearings, the rules of evidence still apply always apply, so hearsay objections can still be effective.
Through cross-examination, your attorney should expose gaps in the police investigation: witnesses not interviewed, evidence not collected, alternative suspects not investigated, inconsistencies not followed up.
If probable cause is found, the case is “held for action” of the grand jury. The grand jury will review the evidence and decide whether to indict you. In most cases, the grand jury indicts based on the prosecutor’s recommendation. Once indicted, you’ll be arraigned again in supreme court (felony court) and the case proceeds to trial, plea negotiations, or other resolution.
If no probable cause is found, the felony complaint is dismissed. However, the prosecutor may try to refile charges or seek an indictment through other means.
Felony hearings require specific skills and preparation. An experienced criminal defense attorney will: thoroughly investigate the case before the hearing, identify weaknesses in the prosecution’s evidence, prepare effective cross-examination questions, know how to challenge evidence and testimony, present defense evidence strategically, preserve issues for appeal, and use the hearing as leverage for favorable plea negotiations.
Possibly. At your arraignment, your attorney can argue for your release on bail or recognizance before the felony hearing. If you’re released, you’ll remain free pending the hearing (unless bail conditions are violated). You can post bail before the felony hearing.
If the prosecutor doesn’t hold the felony hearing within the required time and cannot show good cause for doing so, you can be released from custody under CPL 180.80. Your attorney should be ready to move for dismissal if the deadline is missed.
One of the biggest misconceptions defendants often have is that the prosecution must always run a felony hearing in a felony case, i.e. that they are always entitled to a felony hearing. It is standard practice that where a defendant is held in custody on other matters that prevent the defendant from being released, or where the defendant is out of custody by the time of the hearing, a felony hearing will not be run as a matter of practice. For example, if a defendant is arrested and awaiting a felony hearing on a robbery charge but is also held in custody on a parole hold, or unable to post bail on another pending case, the felony hearing will not be held.
This is a strategic decision. Testifying allows you to tell your side of the story but subjects you to cross-examination by the prosecutor. Your attorney will advise based on your specific case. In many cases, it’s better to let your attorney cross-examine the prosecution’s witnesses without putting you on the stand.
No, not directly. A finding of reasonable cause at the felony hearing cannot be appealed. However, the issues raised at the felony hearing (such as suppression of illegally obtained evidence) can be appealed after conviction if they’re preserved properly.
No. Prosecutors often present minimal evidence at felony hearings—usually just police officer testimony. They save their stronger evidence for trial. This means the felony hearing may not show the full strength of their case, and they may surprise you with additional evidence later.
If you’re facing felony charges and have a felony hearing coming up, contact Parker MacKay immediately. Your felony hearing is critically important—it’s your first opportunity to challenge the prosecution’s case and test their evidence. With experience in felony cases, appellate work, and criminal procedure, Parker MacKay will aggressively cross-examine the prosecution’s witnesses, expose weaknesses in their case, and fight for the best possible outcome.
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This page is for informational purposes only and does not constitute legal advice. Every case is unique. Consult with a qualified New York criminal defense attorney for legal advice on your specific situation.
Whether you are facing criminal charges, a complex business dispute, or need to protect a hard-won result on appeal, we bring the trial-tested experience your case demands.