Relates to the revocation of sentences of probation or conditional discharge imposed under the child passenger protection act.
Ayes (59): Adams, Addabbo, Alesi, Avella, Ball, Bonacic, Breslin, Carlucci, DeFrancisco, Diaz, Dilan, Duane, Espaillat, Flanagan, Fuschillo, Gallivan, Gianaris, Golden, Griffo, Grisanti, Hannon, Hassell-Thomps, Johnson, Kennedy, Klein, Krueger, Lanza, Larkin, LaValle, Libous, Little, Marcellino, Martins, Maziarz, McDonald, Montgomery, Nozzolio, O'Mara, Oppenheimer, Parker, Peralta, Perkins, Ranzenhofer, Ritchie, Rivera, Robach, Saland, Sampson, Savino, Serrano, Seward, Skelos, Squadron, Stavisky, Stewart-Cousin, Storobin, Valesky, Young, Zeldin
Excused (3): Farley, Huntley, Smith
TITLE OF BILL: An act to amend the penal law, in relation to the revocation of sentences of probation or conditional discharge imposed under the child passenger protection act
This is one in a series of measures being introduced at the request of the Chief Administrative Judge upon the recommendation of her Advisory Committee on Criminal Law and Procedure.
This measure would amend section 60.01 of the Penal Law to authorize courts to re-impose a requirement of an ignition interlock device as a condition of probation or conditional discharge following revocation of a sentence of probation or conditional discharge imposed under Leandra's Law.
The Child Passenger Protection Act (Leandra's Law) provides, in relevant part, that a defendant convicted of a DWI offense under VTL §§ 1192(2), (2-a) or (3) must be sentenced to a period of probation or conditional discharge that includes a condition that the defendant install an ignition interlock device (IID) on any automobile he or she owns or operates (L. 2009, c. 496). In addition, the sentence of probation or conditional discharge must be consecutive to any period of incarceration imposed (PL §60.21). Under the current statutory scheme, however, a problem arises when a defendant violates a Leandra's Law sentence of probation or conditional discharge and the court revokes the sentence. CPL 410.70(5) sets forth the options available to a court when it revokes a sentence of probation or conditional discharge, and it currently does not authorize a court to re-sentence a defendant pursuant to PL §60.21. Without any reference to PL §60.21, courts are limited to re-sentencing in accordance with PL §§ 60.01(3) or (4), neither of which authorizes a consecutive period of probation upon which to attach a condition of an IID.
As a result of this lapse in the statutory scheme, defendants who violate probation or conditional discharge will be relieved of the obligation to install an IID on their vehicles in any case where the court imposes a misdemeanor jail term in excess of sixty days or a felony term of imprisonment in excess of six months. Moreover, under current law, the court lacks the authority to re-impose any form of conditional discharge after revoking a sentence of conditional discharge. Given the expanded use of a conditional discharge sentence under Leandra's law, we believe this restriction was unintended, and that it unnecessarily hinders a court when fashioning a sentence that may best insure that a defendant does not continue to drink and drive following release from incarceration.
This measure amends section 60.01 of the Penal Law to provide explicit authority to impose a sentence of conditional discharge in accordance with PL §60.21, and further clarifies that any new sentence imposed after revocation of a sentence of probation will include a period of probation that includes a condition requiring a defendant to install an IID on any vehicle defendant owns or operates.
This measure, which would have no meaningful fiscal impact on the State, would take effect immediately.
LEGISLATIVE HISTORY: None. New proposal.
STATE OF NEW YORK ________________________________________________________________________ 6680 IN SENATE March 8, 2012 ___________Introduced by Sen. SALAND -- (at request of the Office of Court Adminis- tration) -- read twice and ordered printed, and when printed to be committed to the Committee on Codes AN ACT to amend the penal law, in relation to the revocation of sentences of probation or conditional discharge imposed under the child passenger protection act THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Subdivision 3 of section 60.01 of the penal law is amended by adding a new paragraph (f) to read as follows: (F) FOLLOWING REVOCATION OF A SENTENCE OF CONDITIONAL DISCHARGE IMPOSED PURSUANT TO SECTION 60.21 OF THIS ARTICLE, PROBATION AS PROVIDED IN SECTION 65.00 OF THIS CHAPTER THAT INCLUDES THE INSTALLATION AND MAINTENANCE OF A FUNCTIONING IGNITION INTERLOCK DEVICE, OR A SENTENCE OF IMPRISONMENT AND PROBATION AS PROVIDED FOR IN SECTION 60.21 OF THIS ARTICLE. S 2. Subdivision 4 of section 60.01 of the penal law, as amended by chapter 548 of the laws of 1984, is amended to read as follows: 4. In any case where a person has been sentenced to a period of probation imposed pursuant to section 65.00 of this chapter, if the part of the sentence that provides for probation is revoked, the court must sentence such person to imprisonment or to the sentence of imprisonment and probation as provided for in paragraph (d) of subdivision two of this section. FOLLOWING REVOCATION OF A SENTENCE OF PROBATION IMPOSED AS PROVIDED FOR IN SECTION 60.21 OF THIS ARTICLE, ANY NEW SENTENCE IMPOSED SHALL INCLUDE PROBATION AND THE INSTALLATION AND MAINTENANCE OF A FUNCTIONING IGNITION INTERLOCK DEVICE AS PROVIDED FOR IN SECTION 60.21 OF THIS ARTICLE. S 3. This act shall take effect immediately.EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD14175-01-2