Legal Question in Criminal Law in New York

is it mandatory that defendant be present for felony preliminary hearing

Asked on 5/19/11, 10:54 am

1 Answer from Attorneys

John Campbell Law Office Of John Campbell

No. It is not mandatory that a defendant be present at a felony hearing in New York. However, it is the defendant's choice. The relevant statute states: "The defendant may as a matter of right be present at such hearing." See NY CPL 180.60(2). The word "may" means if defendant so chooses, he may be present. If the stature used the word "shall" than defendant's presence at the hearing would be mandatory because the word "shall" when used in a statute means "must". However, the word "may" in a statute means it is discretionary. However, you must read the whole statute here. Yes the statute says the defendant "may" be present. But it goes on to say "as a matter of right". Therefore, the defendant has a right to be present if he so chooses. Here's a real world example. I represented a client who was charged with a felony in a local criminal court in Westchester County. My client lived in California. We demanded a felony hearing and I informed the court that my client would not be appearing because he lived in California. At first the judge insisted that my client had to be there. In fairness to the judge, generally defendants have a right to be present at all meaningful stages of their case. But I pointed out to the judge that the statute clearly states that the defendant "may" be present and that if he absolutely had to be present the statute would read "shall" be present. The court then waived my client's appearance at the hearing. So, to summarize, a defendant can be present at his felony hearing if he wants to. If he wants to be present, it is his right to be present. If you want to discuss this further, feel free to call me at 914-833-9785 or visit my website at

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Answered on 5/23/11, 5:51 am

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