COA considers jail-time credit issue with split sentences

In People v. Zephrin (Ct. App. 3/30/2010) (Ciparick, J.), the Court of Appeals unanimously held that jail-time credit reduces a term of probation for split sentences of incarceration and probation.  The defendant was convicted of Grand Larceny 3º and given a split sentence of six months' incarceration and five years' probation.  At the time of the defendant's conviction, he had been incarcerated for nearly five months.  Therefore, the court gave the defendant credit for his time served.  Four years later, the defendant was rearrested for Forgery 2º, and the Department of Probation subsequently filed a declaration of delinquency.  The defendant later pleaded guilty to Possession of a Forged Instrument; additionally, in a separate proceeding, the defendant admitted to violating his probation.  On appeal, the Appellate Division "unanimously reversed . . . concluding that the probationary period had expired prior to the filing of the declaration of delinquency."  

In its analysis, the Court observed that, in dealing with split sentences, Penal Law § 60.01(2)(d) provides  for a "sentence of imprisonment ... [to] run concurrently with the sentence of probation[.]"  Additionally, while Penal Law § 65.00(3)(a) "authorizes a five-year of probation for most felony offenses[,]" the Court recognized that Penal Law § 60.01(2)(d) "may trump the time period set forth in section 65.00(3)(a)."  Accordingly, the court reasoned that these "statutory provisions create a cap of five years that the two components of a split sentence[, incarceration and probation,] together may not exceed."  Relying on this reasoning, the Court held that a "defendant's probationary term is ... reduced by the period [he] was incarcerated prior to sentencing."  However, the court limited its holding by "not[ing] that a defendant's term of probation should not be reduced by time-served credit longer than the sentence of imprisonment."  Accordingly, the probationary periods of split sentences could "only be reduced by time-served credit up to six months," since that is the maximum period a defendant could be imprisoned under a split sentence.  Thus, the court reasoned, felony defendants would never spend less than 4 1/2 years in probation.  Thus, the court affirmed the judgment of the Appellate Division.  (JTR/LC)

Comments

[Robert Nieto]

What about the implications of Zephrin for "time served" split sentences? For example, the PSR shows 23 days time served, and the court sentences defendant to a time served split (23 days incarceration plus five years probation). Would not Zephrin require the court to deduct the 23 days from the five year term of probation? It is not a given that the Probation Department will make those calculations for the sentencing court, and it is up to the court to fill in the expiration date of the five year term on the terms and conditions order. I found a website (www.timeanddate.com/date/dateadd.html) that can quickly subtract the time served and calculate the new expiration date. Alternatively, a court can simply convert the number of days into months and round off the fractional number to the next highest whole number and subtract the whole number from 60 to come up with the proper expiration date. That kind of mental calculation can be quickly done without resort to the internet. Or, if the court is too busy for even that type of mental calculation, the court can just go with 4 1/2 years? And why not? It is not unusual for Probation to recommend early discharges. Any thoughts on that?