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Interim Probation

February 13, 2008

You've probably done interim probation without ever knowing it. If you haven't it is a worthwhile option from all perspectives. What is Interim Probation? Well, in a nutshell, it is when the sentencing court elects to defer sentencing while the defendant obtains some sort of treatment. If the defendant successfully completes his or her treatment, the court will thereafter impose an agreed upon sentence. If he or she fails to complete the agreed upon treatment, the court is free to sentence in an alternative manner. Interim Probation, therefore, is one of those under used tools that has much to offer for each side. For the defendant, it provides a way for the defendant to prove to the court that he or she can be successfully rehabilitated in a manner far less restrictive than a sentence of incarceration. For the court, it offers means of giving a somewhat recalcitrant defendant a chance without taking the risk inherent in a sentence of straight probation. Further, it provides the court with a means of placing a defendant into treatment without the need for a probationary sentence. Likewise, Interim Probation offers the People a means of getting the defendant into treatment quickly. In some cases, it can even be used as a means of calling the defendant's bluff. By that we mean that while most defendants will jump at the chance for treatment and probation, unfortunately, a significant percentage will fail. Interim Probation allows the People to separate the wheat from the chaff long before sentencing by giving a defendant, who is truly earnest in his or her convictions, a chance to step up to the plate and make good.

Interim Probation has not always been permissible. In People v. Rodney E., (1991) 77 N.Y.2d 672, 569 N.Y.S.2d 920, 572 N.E.2d 603, the Onondaga County Court, accepted a plea of guilty but deferred sentencing for a period of three months. During this period, it placed the defendant in a program of what it called "interim probation." Thereafter, the court determined that the defendant had failed to comply with the terms and conditions of his interim probation and sentenced him to a term in a correctional facility. Upon his appeal, to the New York State Court of Appeals, the court held that the trial court lacked the requisite statutory authority to impose interim probation after conviction but prior to sentencing and reversed. At the core, of the problem, was that probation was only available after the defendant had been convicted and sentenced accordingly. Since in Rodney E., the defendant had not been convicted and sentenced, the sentence of incarceration was vacated and the defendant was remanded for resentencing.

Rodney E. involved supervision by the probation department. What if the defendant were to be sentenced to obtain treatment through the auspices of a private treatment agency? Is the holding of Rodney E. so restrictive so as to be tightly held to its own unique facts? In a word, yes. In People v. Avery, 85 N.Y.2d 503, 626 N.Y.S.2d 726, 650 N.E.2d 384 (1995), defendant pleaded guilty to felony counts of two separate indictments, charging criminal sale and criminal possession of a controlled substance. Under the terms of the plea agreement, Supreme Court promised to delay imposition of sentence to allow defendant to enter the Fortune Society Drug Rehabilitation Program. Furthermore, if defendant successfully completed the program, the agreement called for the felony pleas to be vacated and the defendant would be permitted to plead guilty to a lesser charge. In the event that the defendant failed to successfully complete the program, the defendant was to receive sentences of imprisonment on each indictment to run concurrently. As luck would have it, the defendant did not successfully complete the Fortune Society Program and was sentenced accordingly.

On appeal, he argued that the agreement constituted illegal interim probation and was indistinguishable from that presented in Rodney E. In an opinion by Judge Ciparik, the court disagreed. At the heart of the difference was that the agreement in Rodney E. called for probation supervision and in Avery the mandated treatment was by a private provider.

Our decision in Rodney E. was premised on the statutory powers of the Probation Department and, contrary to defendant's contention, was not intended to rule out analogous dispositions involving, as in this case, placement of an individual under the supervision of a private agency. Because the instant case does not involve the supervision of the Probation Department or implicate its statutory powers, and the conditions imposed fall within the court's power to oversee plea bargains tailored to individual circumstances, we now affirm.

Avery at 506.


Prior to Avery there existed a practice in the Second Department whereby if the defendant, prior to sentencing, successfully completed alcohol or drug treatment under the supervision of the local probation department, he or she could move to withdraw her guilty plea (see, People v. Mojica, 205 A.D.2d 645, 613 N.Y.S.2d 411 [1994]). This procedure was ultimately declared to be in violation of Rodney E. and was invalidated in People v. Johnson, 197 A.D.2d 638, 602 N.Y.S.2d 678 (2d Dept. 1993). Johnson, of course, played both sides of the Rodney E. - Avery line. On the one hand, the treatment was provided by a private agency. Nevertheless, the defendant's involvement in the treatment was supervised by probation. Believing that the Johnson decision was incorrect and deprived trial courts of lawful, preexisting valuable sentencing options and seriously undermined a number of successful programs, such as the Treatment Alternative to Street Crime (TASC) programs (Mem of Off of Ct Admin, L 1994, ch 509, 1994 McKinney's Session Law News of NY, at A-1067--A-1069), the Legislature, in 1994 amended pertinent provisions of the CPL and Penal Law in such a manner that interim probation would be a permissible option. By amendment to the presentence conference provisions contained in CPL ' 400.10, the Legislature provided for Pre-Sentence Conditions. Added as subdivision (4), this entirely new section provides:

4. Pre-sentence conditions. After conviction and prior to sentencing the court may adjourn sentencing to a subsequent date and order the defendant to comply with any of the conditions contained in paragraphs (a) through (f) and paragraph (1) of subdivision two of section 65.10 of the penal law. In imposing sentence, the court shall take into consideration the defendant's record of compliance with pre-sentence conditions ordered by the court.


Referenced therein, Penal Law ' 65.10 paragraphs (a) through (f) provide:


(a) Avoid injurious or vicious habits;


(b) Refrain from frequenting unlawful or disreputable places or consorting with disreputable persons;


(c) Work faithfully at a suitable employment or faithfully pursue a course of study or of vocational training that will equip him for suitable employment;


(d) Undergo available medical or psychiatric treatment and remain in a specified institution, when required for that purpose;


(e) Participate in an alcohol or substance abuse program or an intervention program approved by the court after consultation with the local probation department having jurisdiction, or such other public or private agency as the court determines to be appropriate;


(f) Support his dependents and meet other family responsibilities;


Thus, by virtue of the power conferred upon the sentencing court at the pre-sentence conference, the defendant may be required to participate in an alcohol or substance abuse program, work gainfully, abstain from alcohol and refrain from violating the law. In short, with the notable exception of restitution, this pretty much covers the gamut of options available to the court as part of a probationary sentence that might otherwise be imposed. The real difference, as we see it, is that the unique nature of this provision is not that it is to replace probation as a sentencing option, but that its real significance is that it may be utilized in cases like Rodney E. where the court would be otherwise inclined to impose a sentence of incarceration. Bear in mind that this is not a sentencing option, but rather a dry run to assist the court in the close-call case in determining the most appropriate sentencing option. This fact is made clear by the final sentence of CPL ' 400.10: In imposing sentence, the court shall take into consideration the defendant's record of compliance with pre-sentence conditions ordered by the court.

As noted by Professor Preiser, in his commentary on this section, the amendment actually failed to revitalize the pre-Johnson procedure whereby the defendant would be able to withdraw his or her plea to the charge thereby enabling him or her to plead to a lessor included offense upon successful completion. Since the amendment mandates that upon completion the defendant must be sentenced, it appears that the broad step of permitting the defendant to withdraw the plea was one that the Legislature was unwilling to take.

This raises the question of whether, in light of CPL ' 400.10(4), an agreement may still be made whereby the defendant can be permitted to withdraw a plea and plead to a lessor included offense in the event of successful completion. In our opinion, the option still remains. Avery, in which the Court of Appeals approved of just such an arrangement, was decided after the enactment of CPL ' 400.10. Although the statute has not been afforded retroactive treatment (People v. Krings, 210 A.D.2d 350, 620 N.Y.S.2d 280 [1994, 2nd Dept]), if the agreement calls for private treatment, which is not supervised by the probation department, the agreement falls within the purview of Avery and is unaffected by the limitation contained in CPL ' 400.10(4). Thus, the defendant will be free to plead to a lessor included offense in the absence of some remaining statutory provision.

Since CPL ' 400.10 was amended, virtually every challenge to drug or alcohol counseling as illegal interim probation has been rejected. Indeed, so uniform are these decisions that one can legitimately wonder how they continue to be brought. In People v. Black, 266 A.D.2d 399, 697 N.Y.S.2d 531 (3rd Dept, 1999), for instance, the defendant was placed in a voluntary drug treatment program pending sentencing. Apparently he did not succeed. On appeal, the Third Department, in a brief memorandum decision, noted that his participation in such a program did not amount to illegal interim probation. In People v. LaValley, C AD2d C, C NYS2d C, 2000 WL 676078 (3rd Dept, 2000.), N.Y. Slip Op. 05148, the defendant pleaded guilty to the crime of Driving While Intoxicated and waived his right to appeal. County Court postponed sentencing for an 11 month period during which defendant was required to complete an alcohol rehabilitation program and refrain from consuming alcohol. The defendant subsequently admitted to consuming alcohol during that period and, following a sentencing hearing, was sentenced to a 1 to 4 year prison term and ordered to pay restitution in the amount of $1,158.23, which sum represented the cost of extraditing defendant from Florida for his arraignment. While the Third Department found that the defendant's waiver of his right to appeal effectively precluded the argument relating to illegal interim probation, the court opined that, were it to reach the issue, it would nonetheless find that no violation of the defendant's rights had occurred. Of some note, however, it vacated the restitution provision by finding that extradition is included among the St. Lawrence County's normal law enforcement operating costs (see, People v. Watson, 197 A.D.2d 880) and is not considered an "actual out-of-pocket loss caused [by defendant's offense]" (Penal Law ' 60.27[1]). Moreover, it observed that the County is not considered to be a "victim" of the defendant's crime so as to be entitled to restitution (see, Penal Law ' 60.27[1], [4][b]; see also, People v. La Fave, 265 A.D.2d 740, 742; People v. Storm, 177 A.D.2d 767).

In closing, interim probation is a good concept. In either of its two permissible forms, Avery or CPL ' 440.10, it is well-worth exploring.

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