Everything You Wanted to Know About Probation But Were Afraid to Ask
February 13, 2008
Probation is a sentence, oftentimes of choice, that we frequently take for granted. It is also a topic, primarily because of its use in alcohol related operating offenses, that we have been interested in exploring for sometime. In a nutshell, probation consists of a sentence to a period of supervision under pre-established conditions for a specified period of time. The overriding purpose of imposing a sentence of probation in lieu of other punishment is to rehabilitate the convicted criminal by giving him appropriate treatment, in order to return him to society so reformed that he will not desire or need to commit further crimes People v. Letterlough, 86 NY2d 259, 655 NE2d 146, 631 NYS2d 105. During this term, the defendant is required to refrain from specific forms of activity as well as additional criminal conduct. As a probationer, he or she can be directed to perform additional activity such as attending alcohol rehabilitation. Inasmuch as it substantially curtails both liberty and restricts freedom of movement, it is a criminal sanction (People v. Carolyn S.) 92 Misc2d 674, 401 NYS2d 141.
So much for the generalities, but probation can constitute a labyrinthine maze replete with traps for both the Court and counsel. That being said, this week we will examine the oft used, but little understood sentence of probation.
Terms and Conditions
Interestingly, provisions relating to probation are evenly divided between the Penal Law and the Criminal Procedure Law. While this division often accounts for lost research time or delays in courtroom proceedings, as the court and counsel attempt to find the applicable proviso, much confusion can be alleviated by recognition of the fact that as an authorized sentence, probation is created by Penal Law Article 65 - Sentences of Probation, Conditional Discharge and Unconditional Discharge. Initially, Penal Law ' 65.00(1) empowers the sentencing court to place the defendant upon probation. This, however, requires that the court having regard to the nature and circumstances of the crime and to the history, character and condition of the defendant, be of the opinion that, institutional confinement for the term authorized by law of the defendant is or may not be necessary for the protection of the public; the defendant is in need of guidance, training or other assistance which, in his case, can be effectively administered through probation supervision; and such disposition is not inconsistent with the ends of justice. The statutorily listed findings are mandatory in the event that the sentencing court seeks to impose probation although quite understandably case law seems to be devoid of any such direction. Of some importance is the prohibition created by the closing paragraph of subdivision (1). Probation is not an authorized sentence in the event that the court sentences a defendant for more than one crime and has imposed a sentence of imprisonment for any of those crimes. Similarly, probation is not an authorized sentence where the defendant is yet to serve or complete service of a sentence of imprisonment which was imposed at some prior time. The latter bar, however, is applicable only in the event that the sentence of imprisonment is imposed by a court of this state.
The determination that the defendant is an eligible candidate for probation next sends the court to Penal Law ' 65.00(2). The purpose of this section is clearly mechanical, serving to direct that the term be mandated under subdivision (3) and that it be pursuant to terms and conditions mandated by Penal Law ' 65.10. Turning to the former, once the court decides to sentence the defendant to probation, it has no discretion as to the length of the sentence. Examining those provisions generally applicable to alcohol related operating offenses, Penal Law ' 65.00(3) requires imposition of five years when the offense is a felony and three years when the offense is an unclassified misdemeanor carrying an authorized maximum in excess of three months such as in the case of a misdemeanor DWI conviction.
Following calculation of the term, the court then turns to Penal Law ' 65.10. Contrary to popular belief, a court is not free to impose any particular condition as may strike its fancy. Penal Law ' 65.10 sets out thirteen permissible conditions relating to conduct and rehabilitation. These include: (a) Avoiding injurious or vicious habits; (b) Refraining from frequenting unlawful or disreputable places or consorting with disreputable persons; (c) Working faithfully at a suitable employment or vocational training; (d) Undergoing available medical or psychiatric treatment and remaining in a specified institution, when required for that purpose; (e) Participating in an alcohol or substance abuse program as deemed appropriate by the court; (f) Supporting dependents and meeting family responsibilities; (g) Payment of restitution; (h) Performing so-called community service; (i) [omitted]; (j) Posting a bond or other security for the performance of any or all conditions imposed; (k) [omitted]; (k-1) Installing and maintaining a functioning ignition interlock device, as that term is defined in section one hundred nineteen-a of the Vehicle and Traffic Law, in any vehicle owned or operated on a regular basis; and finally, a catchall, (l) Satisfying any other conditions reasonably related to rehabilitation. Not a statutory condition of conduct and rehabilitation, the condition that one refrain from the consumption of alcoholic beverages or drugs unless taken pursuant to a prescription in the prescribed dosages falls within the grasp of this last, catch-all, provision when the person is being sentenced for an alcohol related operating offense in that such is undeniably related to rehabilitation.
For the most part self-explanatory, over the years certain conditions have generated some notable case law. In the area of restitution, it should be pointed out that prior to inclusion of a term requiring such a payment, the sentencing court must fix the amount thereof, the manner of performance, and specifically state the date when restitution is to be paid in full prior to the expiration of the sentence. This requirement is consistent with Penal Law ' 60.27 In People v. Bauer (1996, 3rd Dept) 229 AD2d 502, 645 NYS2d 323, the sentencing court deferred the finding until some unstated point after sentencing. While the Appellate Division rejected the claim that such deferral served to deny the sentencing court of jurisdiction to impose restitution, it nonetheless determined that the County Court should have fixed the amount and terms of restitution at the time it pronounced the sentence of which restitution was to be a part. Of further interest, the Bauer court also imposed a mandatory surcharge along with a direction to pay restitution. This, of course, was error. Penal Law ' 60.35(6) obviates that requirement when restitution is imposed. Restitution also became an issue in People v. Barnett, (1997, 4th Dept) C AD2d C, 645 NYS2d 918. In this case, the defendant claimed that the cost of repair incurred by the police department in repairing a motor vehicle damaged in his apprehension was an improper contribution to the operating expenses of law enforcement which are voluntarily incurred. Holding it was not, the Fourth Department found that although a hearing should have been held to determine the amount of the damage, it was damage that was directly attributable to the defendant's criminal conduct (but see, People v. Watson, 197 AD2d 880, 602 NYS2d 471, [no restitution for expenses incurred returning the defendant on a bench warrant]; cf., People v. Cruz, 81 NY2d 996, 998, 599 NYS2d 533 [defendant liable for sick leave paid to police officer injured effecting arrest of defendant]).
Although the catch-all contained in subdivision (l) is indeed broad, it is not without limits. In People v. Letterlough, the Court of Appeals served notice that despite the apparent breadth of this provision, it did not cut a great enough swath to compel the defendant to post a sign that he had been Convicted [of] DWI.:
[P]ublic disclosure of a person's crime, and the attendant humiliation and public disgrace, has historically been regarded strictly as a form of punishment. Undeniably, the condition of the DWI license plate sign imposed here was in large part intended to punish defendant, but the legislature has determined that purpose is better served by other penal sanctions not authorized by '65.10.
Equally enlightening, and perhaps indicative of the rather narrow construction the court deems appropriate for subdivision (l) was invalidation by the Court of Appeals, in People v. McNair, (1996) C NY2d C, C NYS2d C, of electronic home confinement as a sanction falling within the purview of the final provision. Notwithstanding that the sentencing court declared that its' primary purpose was to promote public welfare by severely restricting the freedom of the defendant, this goal, although laudable, was found to fall outside the purview of the statutory provision:
As the sentencing court itself stated, the electronic monitoring was imposed primarily to assure [the court] that the world is safe from [defendant's] driving. This is plainly a public safety aim. According to Letterlough, questions of public safety, such as the degree of threat this defendant posed to society, may not be considered in determining whether a condition of probation is proper under the catch‑all provision (86 NY2d, at 265, supra). The promotion of public safety, while commendable, is not a fundamentally rehabilitative purpose and will not validate a condition of probation under Penal Law ' 65.10(2)(1).
Not specifically keyed to the rehabilitation of the defendant, certain other conditions are nonetheless included to permit the court to exercise necessary control over the probationer. Included at Penal Law ' 65.10(3) are three administrative directions. Subdivision 3(a) mandates that the probationer report to a probation officer as directed by the court or the probation officer and permit the probation officer to visit him at his place of abode or elsewhere. Subdivision 3(b) requires the probationer to remain within the jurisdiction of the court unless granted permission to leave by the court or the probation officer and subdivision (c) mandates that the probationer answer all reasonable inquiries by the probation officer and notify the probation officer prior to any change in address or employment. While the historical purpose for grouping in this fashion is all but lost, it appears that placement of these terms within a separate subsection unrelated to the rehabilitative aspects of the sentence has been accomplished so as to insulate any claim of violation from a defense that it was technical in nature and unrelated to rehabilitation.
Obviously concerned of running afoul of the rehabilitative doctrine espoused in both Letterlough and McNair, in 1996 the Legislature added an entirely new subdivision geared entirely to home confinement. Presently contained at subdivision (4) this provision, if mandated by the court, requires the defendant to submit to the use of an electronic monitoring device and/or to follow a schedule that governs the defendant's daily movement. While the first clause seems clear enough, we should point out that the balance of that sentence seems to say that the confinement need not be electronic to pass the statute's muster. Surely a curfew or a direction that the defendant go directly from his or her place of employment to home and remain there until returning to work adequately comports with a schedule that governs the defendant's daily movement.
The final provision of ' 65.10, subdivision (5), just might constitute an undiscovered land mine. Initially, recall that this subdivision, like its immediate predecessor, was enacted following the decisions of the Court of Appeals in McNair and Letterlough. Further recall that we opined in 2 NY DWI Bulletin 14 that if, in the future, the court is faced with a legislative directive permitting such a condition, that such may sway what was the thinnest of majorities in Letterlough. It may well be that subdivision (5) was enacted with Letterlough in mind. Subdivision (5) sets out that:
When imposing a sentence of probation the court may, in addition to any conditions imposed pursuant to subdivisions two, three and four of this section, require that the defendant comply with any other reasonable condition as the court shall determine to be necessary or appropriate to ameliorate the conduct which gave rise to the offense or to prevent the incarceration of the defendant.
Ameliorate the conduct, is indeed interesting. Given the right set of circumstances, it may well be that amelioration will prove to be advising the public that the motorist has been previously convicted. A sort of social restitution if you will. In light of subdivision (5), would such a condition be approved? It very well might. In Letterlough, the sole reason that the license plate advisement met with the condemnation of the majority was that it was not an approved purpose of probation, a theme that the court would repeat less than one year later in McNair. This having been said, such a condition crafted about the amelioration doctrine of subdivision (5) may be sufficient to persuade the one needed vote.
Before leaving the Penal Law provisions, one final section is worth pointing out. From time to time we represent an individual who has multiple offenses both of which are resolved in with sentences consisting of terms of probation. Is it permissible for these terms to run consecutively as a result of their separate occurrence? It is not. Penal Law ' 65.15(1) declares that Multiple periods, whether imposed at the same or at different times, shall run concurrently. Of further note, in this section, is that subdivision (2) dictates that the running of the probationary period is tolled by the filing of a petition for a declaration of delinquency. In such event, the clock will not recommence until a final determination is made.
The imposition of a sentence of probation and the administrative aspects of a term of probation are relegated to the Criminal procedure law, Article 410 in particular. Section 410.10(1) commences by setting forth the essential requirement that the court must specify the conditions and further that the probationer shall be provided with a written copy of the conditions at the time sentence is imposed which thereafter must become a part of the file of the case. Frequently a point of appellate review, is the failure of the sentencing court to specify the conditions at the time of sentence and to provide a copy of the conditions at the time sentence is imposed. Neither provision, however, has been afforded strict judicial interpretation. In People v. Hurst (1993, 3rd Dept) 197 AD2d 730, 602 NYS2d 244, for instance, the Third Department affirmed a finding that the defendant had violated his probation notwithstanding the fact that the conditions were not specified at the time of sentence. The fact that on the day of sentencing the defendant signed a written copy of the conditions of probation acknowledging that he had read, understood, received a copy of the conditions combined with testimony of the defendant's probation officer that he reviewed them with the defendant was found to serve the intent of CPL 410.10(1). In People v. Griswold (1993, 4th Dept) 197 AD2d 841, 602 NYS2d 253, the defense maintained that his probation was improperly revoked because he was not given a written copy of the conditions of probation at the time sentence was imposed. Disagreeing, the court made note of the fact that at sentencing the defendant was told of the conditions, received the conditions in writing while he was incarcerated, and signed a written copy of the conditions. Finding that the defendant had notice of the precise conditions of his probation, the court held that the failure to give him a written copy at sentencing does not vitiate his conviction for violating probation (Griswold, at 254; see also, People v. Bernstein, 163 AD2d 842, 559 NYS2d 71, lv. denied, 76 NY2d 938, 563 NYS2d 67; and see, see also, People v. Nazarian, 150 AD2d 923, 541 NYS2d 262, lv. denied 74 NY2d 744, 545 NYS2d 119).
To be distinguished, however, is specification of the terms as opposed to the mere ministerial function of providing the terms. Notwithstanding the relatively inconsequential analysis that has been provided the latter, the Court of Appeals has made it abundantly clear that the duty of crafting the conditions belongs to the sentencing court and cannot be delegated to an administrative agency. In People v. Fuller (1982) 57 NY2d 152, 455 NYS2d 253, the sentencing court mandated that restitution be paid as a term and condition of probation but left to the probation department the task of determining the conditions under which the restitution would be repaid. On appeal, the Court of Appeals struck that portion of the sentence which required that restitution be paid and remanded the defendant for resentencing. While it is true that the only condition at issue in Fuller was restitution, the means in which the court reached its determination seems to be enlightening on the issue of whether or not the duty to establish conditions of probation is one that may be delegated to the probation department. In Fuller, the defendant did not contest illegality of the sentencing condition at either the trial or appellate level. Generally, failure to challenge a procedure at a time when a trial court still has an opportunity to take effective correction action as a general rule will forfeit the right of review by the Court of Appeals (CPL ' 470.05, subd. 2; People v. Drummond, 40 NY2d 990, 391 NYS2d 67, cert. den. sub nom. New York v. Luis J., 431 US 908, 97 SCt 1706, 52 LEd2d 394). Nevertheless, the court found it had jurisdiction noting: it has long been the law that the "essential nature" of the right to be sentenced as provided by law, though not formally raised at the trial level, preserves a departure therefrom for review in this court (Fuller, at 156).
Subdivision (2) provides that commission of an additional offense other than a traffic infraction constitutes a violation of probation or of conditional discharge. Of importance, it should be noted that this condition is automatically bestowed upon all who undergo probation. It need not be specified in the terms and conditions annunciated by the trial court to become operative (see, People v. Hemphill (1986, 3d Dept.) 120 AD2d 767, 501 NYS2d 503, app. den. 68 NY2d 668, 505 NYS2d 1034). Additionally, although we don't necessarily agree, it may not even be required that the probationer be notified of this basis to sustain a revocation. In People v. Gagnon (December 4, 1997, 3rd Dept) C AD2d C, C NYS2d C, 1997 WL 748675, the defendant pled guilty to violating probation based on his admission of facts satisfying the elements of disorderly conduct as defined by Penal Law ' 240.20. Problems arose, however, in that the petition only alleged that the defendant violated specific conditions of his probation prohibiting him from imbibing alcoholic beverages or frequenting establishments where they were served. When defendant pled guilty to violating probation, however, he denied that he had violated those conditions but admitted committing the additional offense of Disorderly Conduct. Accordingly, he protested the obvious, that since the petition did not charge him with the additional violation of Disorderly Conduct, his plea upon the petition was invalid. Also not to be forgotten is that a violation under this subdivision is not contingent upon a conviction. To sustain a violation, the State need merely prove by a preponderance of the evidence (see, CPL ' 410.70 ) that the offense occurred and that the defendant committed it (see, People v. Schneider (1992, 3rd Dept) 188 AD2d 754, 591 NYS2d 550. Finally, as pointed out by Professor Prieser in his learned commentaries, the use of the words traffic infractions are not to be overlooked. Such was apparently carefully chosen to warrant the inclusion of violations.
The following section CPL ' 410.20, modification or enlargement of conditions, can present both as a useful tool. In the first instance, it is where the practitioner turns when circumstances dictate that a modification may be in order. When the modification consists of elimination or relaxation of a condition, the defendant's presence is not necessary. Otherwise, the defendant must be present.
CPL ' 410.30 and ' 410.40 collectively deal with the immediate steps to be taken in the event of an alleged violation. CPL ' 410.30 directs that upon reasonable cause to believe that a violation has occurred, the court shall issue and file a written declaration of delinquency. Thereafter, it must take the steps set forth in CPL ' 410.40 and either issue a notice to appear or issue a warrant for the defendant's arrest. As a practical matter, upon becoming aware that a violation has occurred, the probation officer will prepare and file a petition for delinquency with the court. Thereafter, upon review of the paperwork, should the court find that the allegations contained in the petition create reasonable cause to believe that the defendant violated the conditions of his or her probation, it will issue a notice, which is mailed, or a warrant, which is served in the traditional manner. While these procedures are well-known, several caveats exist. Should the defendant believe that the court did not have reasonable cause to file a declaration of delinquency or to issue a bench warrant for arrest of the probationer, such objection must be raised prior to the entry of a plea of guilty on the petition to be preserved (see, ' CPL 470.05; People v. Justin ZZ (1997, 3rd Dept) C AD2d C, 656 NYS2d 519). More important to the substance of the litigation is that CPL '' 410.30 and 410.40 actually create alternative and somewhat competing means toward commencing the action. Essential in understanding the distinction in a grasp of the precise role played by the declaration of delinquency. The declaration, as set out in Penal Law ' 65.15(2), states that:
[w]hen a person has violated the conditions of his probation ... and is declared delinquent by the court, the declaration of delinquency shall interrupt the period of the sentence as of the date of the delinquency and such interruption shall continue until a final determination as to the delinquency has been made by the court pursuant to a hearing held in accordance with the provisions of the criminal procedure law.
Turning to CPL ' 410.30(1), it is important to note that a declaration of delinquency is not necessary to trigger the notice. Indeed, under subdivision (1), no reason at all need be asserted for the issuance of the notice. Thus, if the court, upon being presented with a petition for delinquency merely orders the person to appear, assuming the probationer appears, the running will not be tolled during the pendency of the proceeding. Likewise, subdivision (2) does not require the issuance of a declaration of delinquency as a basis for the issuance of a warrant but merely requires the existence of reasonable grounds to believe that a violation has occurred. If, however, a declaration of delinquency is filed, the running of the probationary sentence is tolled and the court may avail itself of either of the techniques set forth in CPL ' 410.40.
As one can see, particularly in the late stages of the probationary period, the decision as to whether to issue and file a declaration of delinquency can prove dispositive. In People v. Simmons, ([1996, Sup. Ct. NY County] 169 Misc2d 223, 643 NYS2d 919), the court (Kahn, J.), opined, quite correctly we believe, that because the Legislature specified that a probationary term is tolled by the filing of a declaration (see PL ' 65.15 ), but did not provide that the issuance of a bench warrant to secure a probationer's appearance would also toll a probationary term (see CPL ' 410.40 ), it must be inferred that the Legislature intended that the tolling be accomplished exclusively by the filing of the declaration. While the argument can be made that imposition of the reasonable cause standard for the issuance of a warrant and for the declaration of delinquency renders the effect of a warrant or a declaration identical, the court found the similarity to be merely coincidental. In the former instance, the term is traceable to the mandated due process requirement (U.S. Const. XIV Amend.; see, Gagnon v. Scarpelli (1973) 411 US 778, 781-782, 93 SCt. 1756, 1759-1760, 36 LEd2d 656; Morrissey v. Brewer (1972) 408 US 471, 481-82, 92 SCt 2593, 2600- 2601, 33 LEd2d 484), while in the latter it is brought about as a result of the warrant clauses of the Federal and State Constitutions (U.S. Const. IV Amend.; N.Y.Const. art. I, ' 12; see, People v. Jackson (1978) 46 NY2d 171, 412 NYS2d 884; People v. Huntley (1977) 43 NY2d 175, 401 NYS2d 31; see also Griffin v. Wisconsin (1987) 483 US 868, 107 SCt 3164, 97 LEd2d 709).
CPL ' 410.50 governs the rather mechanical process of supervision. Initially, it places the person in the custody of the sentencing court and under the supervision of the probation department in the county where the defendant was sentenced. Two provisions contained therein pertaining to searches are worthy of examination. Initially, subdivision (3) provides that the court may issue a warrant for a search of the probationer and/or his or her property upon the constitutionally mandated reasonable cause. Subdivision (4), on the other hand, authorizes a probation officer, who has reasonable cause to believe that a violation of a condition has occurred, to take custody of the probationer and to search his or her person. In the situation usually encountered within the pages of this journal, the reasonable cause will be the smell of alcohol or observations made of the probationer as he or she has left a bar or tavern. In such a situation, this will form the basis for administration of an AlcoSensorJ or similar test. On the other hand, what of an anonymous call? Will this trigger either of these provisions? Probably not inasmuch as anonymous tips have not been equated with reasonable suspicion or reasonable cause (see, People v. Royko (1994, 4th Dept) 201 AD2d 863, 607 NYS2d 515; compare, People v. Marley (1994, 4th Dept) 201 AD2d 925, 607 NYS2d 768). Do not, however, assume that either of these provisions will preclude a visit of the probationer's home. As discussed above, a condition related to supervision under CPL ' 65.10(3) is that the probationer permit the probation officer to visit him at his place of abode or elsewhere. If such a permitted search discloses the scent of alcohol on the probationer's breath, the officer then has reasonable cause to take the probationer into custody and administer an AlcoSensorJ test under CPL ' 410.50(4) as a search of the person. While it is impossible to cover all of the search scenarios, the following is of interest because of its frequent occurrence. Assume that the terms and conditions of probation preclude the probationer who is single and resides by himself from possessing alcohol in any form. Now assume that on a home visit the probation officer looks in the refrigerator and sees a six pack of Bud. Is there an issue as to the legality of the search? Probably. By virtue of the fact that the Legislature included the reasonable cause provisions in CPL '' 410.50(3) and 410.50(4) under established rules of statutory construction, it may fairly be assumed that the home visit provision contained in CPL ' 65.10(3) were not intended to be displaced by this condition of probation.
CPL ' 410.60 details the conduct of the first appearance. If the court finds that there is reasonable cause, it may remit the defendant to the sheriff, fix bail or release the probationer upon his or her own recognizance.
CPL ' 410.70 forms the statutory basis for a hearing. Subdivision (1) mandates the holding of a prompt hearing irrespective of whether the court has filed a declaration of delinquency, committed him or her, or has fixed bail. Pursuant to subdivision (2), the court must file a statement setting forth the condition or conditions of the sentence violated and a reasonable description of the time, place and manner in which the violation occurred. The defendant must appear personally and is requested to make a statement. Although such a statement is not required, the making of a statement may enable the court to proceed to decision. Presumably, if the decision would be adverse to the probationer, the court must proceed with the hearing. In the event that the defendant is not prepared to proceed at this initial appearance, subdivision (2) sets forth that the court must grant a reasonable adjournment to the defendant to enable him to prepare for the hearing.
Subdivision (2) calls for only a summary hearing. The rules of evidence at such a hearing are quite broad, it being quite clear that the court is able to receive evidence which it would not otherwise be able to hear in a trial on the issue of guilt. Hearsay is admissible (People v. Krzykowski, 121 AD2d 831, 504 NYS2d 262), although hearsay alone is insufficient to prove that a defendant has violated a condition of probation (People v. Davis, 155 AD2d 610, 547 NYS2d 666, lv. denied, (75 NY2d 812, 552 NYS2d 562). Even so, a finding of a revocation need only be based "upon a preponderance of the evidence * * * which requires a residuum of competent legal evidence in the record" (People v. Machia, 96 AD2d 1113, 1114, 467 NYS2d 708; see also, People v. Ramos (1996, 2nd Dept) 232 AD2d 433, 648 NYS2d 449; People v. Rennie, 190 AD2d 830, 593 NYS2d 829, leave to appeal denied 81 NY2d 975, 598 NYS2d 777).
In People v. Styles (1991, 3rd Dept) 175 AD2d 961, 573 NYS2d 541, the defendant was required to complete a specific counseling program at a treatment center as a condition of his probation. Thereafter, he was administratively discharged prior to the completion of said program, his probation was revoked and he was sentenced to a term of imprisonment. On appeal, he challenged acceptance of the treatment center report at the hearing because the same did not meet the requirements to constitute a business entry exception. Although the Third Department conceded that the discharge report did not meet the business record exception, it was nonetheless admissible. Noting that hearsay unaided is insufficient to prove a violation, the court nonetheless affirmed observing that there was "a residuum of competent legal evidence in the record" to establish a finding of a probation violation. In addition to the testimony of the probation officers, defendant himself testified that he was not cooperative and that his own actions led to his discharge. Finding that the defendant did not successfully complete the treatment program as he was required to do, County Court did not abuse its discretion in revoking the defendant's probation.
What of evidence illegally seized? Will the relaxed format of the hearing permit such to be used? In all likelihood it will not under New York Constitutional principles. Evidence seized in violation of Article I ' 12 of the New York State Constitution cannot be used at a parole revocation hearing (People ex rel. Piccarillo v. New York State Bd. of Parole (1979) 48 NY2d 76, 83, 421 NYS2d 842). While it would present a case of first impression, Piccarillo would appear strong authority given the more rigid, non-administrative format, that such evidence could not be used.
While on the topic of evidence, there remains the effect of Miranda, currently, it appears that statements made in the absence of warnings will be received at a revocation hearing although the same may not be received as evidence of a new crime. By analogy, it has been held that a parole officer, of course, is a law enforcement official for purposes of Miranda. Therefore, a parole officer is required to administer Miranda warnings prior to any custodial questioning of a parolee when he or she assumes the role of a law enforcement agent (People v. English (1989) 73 NY2d 20, 537 NYS2d 987; People v. Parker (1982) 57 NY2d 815, 455 NYS2d 600, affg for reasons stated in 82 AD2d 661, 442 NYS2d 803), which has been construed as investigating activity unrelated to the basis of parole.
Commonly seen in alcohol related operating offenses, intermittent, or shock incarceration actually appears in two forms, both of which are governed by Penal Article 60. Penal ' 60.01(2) creates a type of sentence known as a revocable sentence. The term revocable means that the court can later amend the sentence but that it is final for all other purposes. Generally seen for alcohol related felonies, revocable sentences are of two types. Weekend incarceration with the balance to be served as a period of probation and a straight period of incarceration also calling for a probationary period. Both of these hybrid sentences are to be found in Penal Law ' 60.01(2)(d). Pursuant to this section, when the court imposes a sentence of imprisonment not in excess of 60 days for a misdemeanor or not in excess of six months straight time for a felony, it may also impose a period of probation provided that the term of probation and imprisonment when combined do not exceed the term of probation otherwise authorized. Thus, a court may sentence up to six-months straight time in combination with four and one-half years of probation. Should the court elect to sentence the defendant to a period of weekends, the same section applies, however, in this event the maximum period of weekends is fixed at four months notwithstanding that the probationary period remains four and one-half years.
One caveat should remain in the minds of all that consider this form of sentence. If the defendant completes the maximum period of incarceration but is violated on his or her probation, the only alternative will be straight time. Weekends or an additional month will not be an option since such would violate the provisions of Penal Law ' 60.01 and constitute an illegal sentence. What if the defendant has served that maximum period of weekends (four months) and is violated? Will he or she receive credit for four months or the 34 days actually spent? As we pointed out in 4 NY DWI Bulletin 19, an argument can be made either way,
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