Hearing on violation

§ 360.3. Hearing on violation. 1. The court may not revoke an order of probation or conditional discharge unless: (a) the court has found that the respondent has violated a condition of such order; and (b) the respondent has had an opportunity to be heard. The respondent is entitled to a hearing in accordance with this section promptly after a petition of violation has been filed.

2. At the time of his first appearance following the filing of a petition of violation the court must: (a) advise the respondent of the contents of the petition and furnish him with a copy thereof; (b) determine whether the respondent should be released or detained pursuant to section 320.5; and (c) ask the respondent whether he wishes to make any statement with respect to the violation. If the respondent makes a statement, the court may accept it and base its decision thereon; the provisions of subdivision two of section 321.3 shall apply in determining whether a statement should be accepted. If the court does not accept such statement or if the respondent does not make a statement, the court shall proceed with the hearing. Upon request, the court shall grant a reasonable adjournment to the respondent to enable him to prepare for the hearing.

3. At such hearing, the court may receive any relevant, competent and material evidence. The respondent may cross-examine witnesses and may present evidence on his own behalf.

4. The respondent is entitled to counsel at all stages of a proceeding under this section and the court shall advise him of such right at the outset of the proceeding.

5. The presentment agency shall present the petition in all stages of this part.

6. At the conclusion of the hearing the court may revoke, continue or modify the order of probation or conditional discharge. If the court revokes the order, it shall order a different disposition pursuant to section 352.2 of this article provided, however, that if the court finds a violation of an order of conditional discharge where the underlying finding had been for an act solely constituting a violation as defined in subdivision three of section 10.00 of the penal law, the court may modify the conditions of the conditional discharge but may not order any other disposition under section 352.2 of this article. If the court continues the order of probation or conditional discharge, it shall dismiss the petition of violation.