PROBATION – New York Appellate Digest

Hearsay Alone Will Not Support Revocation of Probation/Failure to Pay Restitution Will Not Support Revocation of Probation If Due to an Inability to Pay

In reversing the judgment revoking defendant’s probation, the Third Department noted that hearsay alone cannot be the basis for revocation and failure to pay restitution will only support revocation if defendant has the ability to pay:

It is settled that, “in revocation proceedings for failure to pay a fine or restitution, a sentencing court must inquire into the reasons for the failure to pay” … . “If the probationer willfully refused to pay or failed to make sufficient bona fide efforts legally to acquire the resources to pay, the court may revoke probation and sentence the defendant to imprisonment within the authorized range of its sentencing authority” … . If, on the other hand, “the probationer could not pay despite sufficient bona fide efforts to acquire the resources to do so, the court must consider alternate measures of punishment other than imprisonment” … .

Here, there was neither an adequate inquiry into defendant’s ability to pay nor a determination that his failure to pay was willful … . Accordingly, the matter must be remitted for further proceedings to determine whether defendant’s failure to make the required monthly restitution payments was willful and, if so, whether such failure, standing alone, serves as a valid basis for revocation of his probation and the imposition of a sentence of incarceration … . People v Songa, 2015 NY Slip Op 07704, 3rd Dept 10-22-15

October 22, 2015

A Defendant’s Status as an Undocumented Alien Cannot Be the Sole Ground for Imposing Incarceration As Opposed to Probation

In a case of first impression, the Second Department, in a full-fledged opinion by Justice Dillon, determined that a defendant’s status as an undocumented alien cannot constitute the sole reason for a sentence of incarceration as opposed to probation. County Court reasoned that as soon as a sentence of probation was imposed upon an undocumented alien, the defendant would be in violation of probation by virtue of his/her undocumented status. Therefore, County Court concluded, a sentence of probation was not available to any undocumented alien. The Second Department disagreed, holding that a defendant’s status as an undocumented alien can be considered in determining the appropriate sentence, but it cannot be the sole ground for imposing a sentence of incarceration. To pre-determine that an undocumented alien is not eligible for probation violates due process and equal protection, constitutional rights which are afforded undocumented aliens:

… [W]e reach two conclusions. First, courts may appropriately consider a defendant’s undocumented immigration status in imposing criminal sentences. The decision to impose or not impose a sentence of probation may legitimately be affected by factors directly related to undocumented status. Those factors include, but are not necessarily limited to, the likelihood of the defendant’s deportation during the probationary period, the defendant’s history, if any, of repeated departures from and illegal reentries into the United States, the presence or absence of family in the United States, the defendant’s employment history, and the defendant’s legal employability. Second, it is impermissible for a sentencing court to refuse to consider a sentence of probation for an undocumented defendant solely on the basis of his or her immigration status. Doing so violates the Due Process and Equal Protection clauses of the Federal and New York constitutions by treating certain defendants differently from others based upon their undocumented presence in this state. In other words, a defendant’s undocumented immigration status may be a factor a court takes into account in determining whether to include probation as part of a sentence, but such status cannot be the sole factor a court relies upon in denying a probationary sentence and in imposing a term of imprisonment instead. People v Cesar, 2015 NY Slip Op 06252, 2nd Dept 7-22-15

July 22, 2015

Criminal Law

Transfer to Another County for Probation Did Not Divest Sentencing Court of Jurisdiction Over Defendant’s Violation of His Intermittent Sentence

In this case Columbia County Court sentenced defendant to intermittent imprisonment in the Columbia County jail and five years probation in Greene County where defendant resided. After defendant failed to report to Columbia County Jail, County Court revoked the intermittent sentence and sentenced defendant to four months. Defendant contended Columbia County Court had relinquished jurisdiction by transferring the probation term to Greene County. The Third Department disagreed:

Defendant’s reliance on CPL 410.80 – which provides for transfer of probation supervision by the sentencing court to the Probation Department in the jurisdiction (county) where the defendant resides at sentencing – is misplaced … . Defendant was not charged with violating probation but, rather, was alleged to have violated his intermittent sentence of imprisonment. The transfer in CPL 410.80 (2) of “all powers and duties” of the sentencing court over supervision of probationers to the receiving court does not, as defendant argues, divest the sentencing court of its express jurisdiction to modify or revoke a sentence of intermittent imprisonment pursuant to Penal Law § 85.05 (1) (b) … . People v Dick, 104424, 3rd Dept, 5-23-13

May 23, 2013

Tag Archive for: PROBATION

Hearsay Alone Will Not Support Revocation of Probation/Failure to Pay Restitution Will Not Support Revocation of Probation If Due to an Inability to Pay

A Defendant’s Status as an Undocumented Alien Cannot Be the Sole Ground for Imposing Incarceration As Opposed to Probation

Transfer to Another County for Probation Did Not Divest Sentencing Court of Jurisdiction Over Defendant’s Violation of His Intermittent Sentence

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