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* SENTENCES OF PROBATION AND
OF CONDITIONAL DISCHARGE
* NB Effective September 1, 2009
Section 410.10 Specification of conditions of the sentence.
410.20 Modification or enlargement of conditions.
410.30 Declaration of delinquency.
410.40 Notice to appear, warrant.
410.50 Custody and supervision of probationers.
410.60 Appearance before court.
410.70 Hearing on violation.
410.80 Transfer of supervision of probationers.
410.90 Termination of sentence.
410.91 Sentence of parole supervision.
§ 410.10 Specification of conditions of the sentence.
1. When the court pronounces a sentence of probation or of
conditional discharge it must specify as part of the sentence the
conditions to be complied with. Where the sentence is one of probation,
the defendant must be given a written copy of the conditions at the time
sentence is imposed. In any case where the defendant is given a written
copy of the conditions, a copy thereof must be filed with and become
part of the record of the case, and it is not necessary to specify the
conditions orally.
2. Commission of an additional offense, other than a traffic
infraction, after imposition of a sentence of probation or of
conditional discharge, and prior to expiration or termination of the
period of the sentence, constitutes a ground for revocation of such
sentence irrespective of whether such fact is specified as a condition
of the sentence.
3. When the court pronounces a sentence of probation or conditional
discharge for a specified crime defined in paragraph (e) of subdivision
one of section six hundred thirty-two-a of the executive law, in
addition to specifying the conditions of the sentence, the court shall
provide written notice to such defendant concerning any requirement to
report to the crime victims board funds of a convicted person as defined
in section six hundred thirty-two-a of the executive law, the procedures
for such reporting and any potential penalty for a failure to comply.
§ 410.20 Modification or enlargement of conditions.
1. The court may modify or enlarge the conditions of a sentence of
probation or of conditional discharge at any time prior to the
expiration or termination of the period of the sentence. Such action
may not, however, be taken unless the defendant is personally present,
except that the defendant need not be present if the modification
consists solely of the elimination or relaxation of one or more
conditions. Whenever the defendant has not been present, the court
shall notify the defendant in writing within twenty days of such
modification specifying the nature of the elimination or relaxation of
such condition or conditions and the effective date thereof. In any
such case the modification or enlargement may be specified in the same
manner as the conditions originally imposed and becomes part of the
sentence.
2. The procedure set forth in this section applies to the imposition
of an additional period of conditional discharge as authorized by
subdivision three of section 65.05 of the penal law.
§ 410.30 Declaration of delinquency.
If at any time during the period of a sentence of probation or of
conditional discharge the court has reasonable cause to believe that the
defendant has violated a condition of the sentence, it may declare the
defendant delinquent and file a written declaration of delinquency.
Upon such filing, the court must promptly take reasonable and
appropriate action to cause the defendant to appear before it for the
purpose of enabling the court to make a final determination with respect
to the alleged delinquency.
§ 410.40 Notice to appear, warrant.
1. Notice to appear. The court may at any time order that a person who
is under a sentence of probation or of conditional discharge appear
before it. Such order may be in the form of a written notice, specifying
the time and place of appearance, mailed to or served personally upon
the defendant as the court may direct. When the order is in the form of
such a notice, failure to appear as ordered without reasonable cause
therefor constitutes a violation of the conditions of the sentence
irrespective of whether such requirement is specified as a condition
thereof.
2. Warrant. If at any time during the period of a sentence of
probation or of conditional discharge the court has reasonable grounds
to believe that the defendant has violated a condition of the sentence,
the court may issue a warrant to a police officer or to an appropriate
peace officer directing him or her to take the defendant into custody
and bring the defendant before the court without unnecessary delay;
provided, however, if the court in which the warrant is returnable is a
superior court, and such court is not available, and the warrant is
addressed to a police officer or appropriate probation officer
certified as a peace officer, such executing officer may bring the
defendant to the local correctional facility of the county in which such
court sits, to be detained there until not later than the commencement
of the next session of such court occurring on the next business day; or
if the court in which the warrant is returnable is a local criminal
court, and such court is not available, and the warrant is addressed to
a police officer or appropriate probation officer certified as a peace
officer, such executing officer must without unnecessary delay bring the
defendant before an alternate local criminal court, as provided in
subdivision five of section 120.90. A court which issues such a warrant
may attach thereto a summary of the basis for the warrant. In any case
where a defendant arrested upon the warrant is brought before a local
criminal court other than the court in which the warrant is returnable,
such local criminal court shall consider such summary before issuing a
securing order with respect to the defendant.
§ 410.50 Custody and supervision of probationers.
1. Custody. A person who is under a sentence of probation is in the
legal custody of the court that imposed it pending expiration or
termination of the period of the sentence.
2. Supervision. The probation department serving the court that
imposed a sentence of probation has the duty of supervising the
defendant during the period of such legal custody.
3. Search order. If at any time during the period of probation the
court has reasonable cause to believe that the defendant has violated a
condition of the sentence, it may issue a search order. Such order must
be directed to a probation officer and may authorize such officer to
search the person of the defendant and/or any premises in which he
resides or any real or personal property which he owns or which is in
his possession.
4. Taking custody without warrant. When a probation officer has
reasonable cause to believe that a person under his supervision pursuant
to a sentence of probation has violated a condition of the sentence,
such officer may, without a warrant, take the probationer into custody
and search his person.
5. Assistance by police officer. In executing a search order, or in
taking a person into custody, pursuant to this section, a probation
officer may be assisted by a police officer.
§ 410.60 Appearance before court.
A person who has been taken into custody pursuant to section 410.40 or
section 410.50 for violation of a condition of a sentence of probation
or a sentence of conditional discharge must forthwith be brought before
the court that imposed the sentence. If the court has reasonable cause
to believe that such person has violated a condition of the sentence, it
may commit him to the custody of the sheriff or fix bail or release such
person on his own recognizance for future appearance at a hearing to be
held in accordance with section 410.70. If the court does not have
reasonable cause to believe that such person has violated a condition of
the sentence, it must direct that he be released.
§ 410.70 Hearing on violation.
1. In general. The court may not revoke a sentence of probation or a
sentence of conditional discharge unless (a) the court has found that
the defendant has violated a condition of the sentence and (b) the
defendant has had an opportunity to be heard. The defendant is entitled
to a hearing in accordance with this section promptly after the court
has filed a declaration of delinquency or has committed him or has fixed
bail pursuant to this article.
2. Statement; preliminary examination. The court must file or cause to
be filed with the clerk of the court 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 before the court and the court must
advise him of the contents of the statement and furnish him with a copy
thereof. At the time of such appearance the court must ask the defendant
whether he wishes to make any statement with respect to the violation.
If the defendant makes a statement, the court may accept it and base its
decision thereon. If the court does not accept it, or if the defendant
does not make a statement, the court must proceed with the hearing.
Provided, however, that upon request, the court must grant a reasonable
adjournment to the defendant to enable him to prepare for the hearing.
3. Manner of conducting hearing. The hearing must be a summary one by
the court without a jury and the court may receive any relevant evidence
not legally privileged. The defendant may cross-examine witnesses and
may present evidence on his own behalf. A finding that the defendant has
violated a condition of his sentence must be based upon a preponderance
of the evidence.
4. Counsel. The defendant is entitled to counsel at all stages of any
proceeding under this section and the court must advise him of such
right at the outset of the proceeding.
5. Revocation; modification; continuation. At the conclusion of the
hearing the court may revoke, continue or modify the sentence of
probation or conditional discharge. Where the court revokes the
sentence, it must impose sentence as specified in subdivisions three and
four of section 60.01 of the penal law. Where the court continues or
modifies the sentence, it must vacate the declaration of delinquency and
direct that the defendant be released. If the alleged violation is
sustained and the court continues or modifies the sentence, it may
extend the sentence up to the period of interruption specified in
subdivision two of section 65.15 of the penal law, but any time spent in
custody in any correctional institution pursuant to section 410.60 of
this article shall be credited against the term of the sentence.
§ 410.80 Transfer of supervision of probationers.
1. Authority to transfer supervision. In any case where a sentence of
probation is pronounced, if the defendant resides or desires to reside
in a place other than one within the jurisdiction of the probation
department that serves the sentencing court, such court may designate
any other probation department within the state to perform the duties of
probation supervision and may transfer supervision of the defendant
thereto. Any such designation must be in accordance with rules adopted
by the director of the state division of probation and correctional
alternatives.
2. Transfer of powers. Where supervision of a probationer is
transferred pursuant to subdivision one, the probation department and
probation officers to which the duties of probation supervision have
been transferred have the same powers and duties as otherwise would have
been possessed by those serving the sentencing court. Unless the
sentencing court indicates otherwise at the time of transfer, the court
served by the probation department to which supervision is transferred
shall assume the powers and duties of the sentencing court and shall
have sole jurisdiction in the case including jurisdiction over matters
specified in article twenty-three of the correction law. Where
jurisdiction has been transferred, the sentencing court shall
immediately forward its entire case record to the receiving court.
The sentencing court may retain its power and duties with respect to
the supervision of said probationer. Unless the sentencing court
indicates otherwise at the time of transfer the court served by the
probation department to which supervision is transferred has the powers
specified in sections 410.20, 410.30, 410.40, subdivision three of
section 410.50, and section 410.60. If it appears that the defendant has
violated a condition of his sentence, such court also has the power to:
(a) Commit the defendant to the custody of the sheriff, and direct
such official to bring the defendant promptly before the court that
imposed the sentence; or
(b) Conduct a hearing on the violation pursuant to subdivisions one
through four of section 410.70 and make findings of fact. In such case,
the court may then either (i) continue or modify the sentence, or (ii)
commit the defendant as provided in paragraph (a) and send a certified
copy of the transcript of the hearings and its findings to the court
that imposed the sentence.
In transfers involving a defendant sentenced to probation upon
conviction of a felony, the court served by the probation department to
which supervision is transferred shall be the superior court within the
jurisdiction of the probation department. In transfers involving a
defendant sentenced to probation upon conviction of a misdemeanor, the
court served by the probation department to which supervision is
transferred shall be the appropriate local criminal court within the
jurisdiction of the probation department. The probation department that
serves the sentencing court shall consult with the probation department
to which supervision will be transferred and recommend the appropriate
local criminal court to receive the case.
3. Procedure upon return of the defendant. When a defendant is
returned to the court that imposed the sentence the transfer is
terminated and such court must proceed in accordance with the provisions
of sections 410.60 and 410.70. In any case where a hearing was conducted
pursuant to paragraph (b) of subdivision two, the hearing and findings
have the same effect as a hearing conducted by and findings made by the
sentencing court. No person who has been returned to such court may be
transferred back to supervision in the county that returned him without
consent of the court that returned him.
4. Costs of returning a probationer. The costs incurred by a county in
returning a probationer transferred thereto, including any costs
necessary for a hearing conducted in such county, are charges upon the
county in which the sentencing court is located.
5. Interstate compact. Nothing contained in this section affects or
limits the provisions of section two hundred fifty-nine-m of the
executive law relating to out-of-state probation supervision.
6. Federal transfer of custody and supervision. Notwithstanding the
provisions of any other law, the court served by the probation
department may consent to the transfer of custody and supervision of a
probationer to the United States Department of Justice pursuant to the
Witness Security Act of nineteen hundred eighty-four.
§ 410.90 Termination of sentence.
1. The court may at any time terminate either a period of probation,
other than a period of lifetime probation, for conviction to a crime or
a period of conditional discharge for an offense.
2. The court may terminate a period of probation for a person who is
subject to lifetime probation and who has been on unrevoked probation
for at least five consecutive years.
3. (a) The court shall grant a request for termination of a sentence
of probation under this section when, having regard to the conduct and
condition of the probationer, the court is of the opinion that:
(i) the probationer is no longer in need of such guidance, training or
other assistance which would otherwise be administered through probation
supervision;
(ii) the probationer has diligently complied with the terms and
conditions of the sentence of probation; and
(iii) the termination of the sentence of probation is not adverse to
the protection of the public.
No such termination shall be granted unless the court is satisfied
that the probationer, who is otherwise financially able to comply with
an order of restitution or reparation, has made a good faith effort to
comply therewith.
(b) The court shall grant a request for termination of a sentence of
conditional discharge under this section when, having regard to the
conduct and condition of the defendant, the court is of the opinion
that:
(i) the defendant has diligently complied with the terms and
conditions of the sentence of conditional discharge; and
(ii) termination of the sentence of conditional discharge is not
adverse to protection of the public.
* § 410.91 Sentence of parole supervision.
1. A sentence of parole supervision is an indeterminate sentence of
imprisonment which may be imposed upon an eligible defendant, as defined
in subdivision two of this section. Such sentence shall have a minimum
term and a maximum term within the ranges specified by subdivisions
three and four of section 70.06 of the penal law. Provided, however, if
the court directs that the sentence be executed as a sentence of parole
supervision, it shall remand the defendant for immediate delivery to a
reception center operated by the state department of correctional
services, in accordance with section 430.20 of this chapter and six
hundred one of the correction law, for a period not to exceed ten days.
An individual who receives such a sentence shall be placed under the
immediate supervision of the state division of parole and must comply
with the conditions of parole, which shall include an initial placement
in a drug treatment campus for a period of ninety days at which time the
defendant shall be released therefrom.
2. A defendant is an "eligible defendant" for purposes of a sentence
of parole supervision when such defendant is a second felony offender
convicted of a specified offense or offenses as defined in subdivision
five of this section, who stands convicted of no other felony offense,
who has not previously been convicted of either a violent felony offense
as defined in section 70.02 of the penal law, a class A felony offense
or a class B felony offense, and is not subject to an undischarged term
of imprisonment.
3. When an indeterminate sentence of imprisonment is imposed upon an
eligible defendant for a specified offense, as defined in subdivision
five of this section, the court may direct that such sentence be
executed as a sentence of parole supervision if the court finds (i) that
the defendant has a history of controlled substance dependence that is a
significant contributing factor to such defendant's criminal conduct;
(ii) that such defendant's controlled substance dependence could be
appropriately addressed by a sentence of parole supervision; and (iii)
that imposition of such a sentence would not have an adverse effect on
public safety or public confidence in the integrity of the criminal
justice system.
4. If the sentence is for a specified offense that is a class D
felony, the court may not impose a sentence of parole supervision
without the consent of the people. If the conviction is as a result of a
plea of guilty, the people must communicate their consent, or lack
thereof, at the time of the plea. If the conviction is not as a result
of a plea of guilty, the people must communicate their consent, or lack
thereof, at least ten days before sentencing. In either case, if the
people do not consent, they must state on the record or in writing the
reason or reasons for their opposition.
5. For the purposes of this section, a "specified offense" is an
offense defined by any of the following provisions of the penal law:
criminal mischief in the third degree as defined in section 145.05,
criminal mischief in the second degree as defined in section 145.10,
grand larceny in the fourth degree as defined in subdivision one, two,
three, four, five, six, eight, nine or ten of section 155.30, grand
larceny in the third degree as defined in section 155.35 (except where
the property consists of one or more firearms, rifles or shotguns),
unauthorized use of a vehicle in the second degree as defined in section
165.06, criminal possession of stolen property in the fourth degree as
defined in subdivision one, two, three, five or six of section 165.45,
criminal possession of stolen property in the third degree as defined in
section 165.50 (except where the property consists of one or more
firearms, rifles or shotguns), forgery in the second degree as defined
in section 170.10, criminal possession of a forged instrument in the
second degree as defined in section 170.25, unlawfully using slugs in
the first degree as defined in section 170.60, or an attempt to commit
any of the aforementioned offenses if such attempt constitutes a felony
offense; or any class D or class E controlled substance or marihuana
felony offense as defined in article two hundred twenty or two hundred
twenty-one.
6. Upon delivery of the defendant to the reception center, he or she
shall be given a copy of the conditions of parole by a representative of
the division of parole and shall acknowledge receipt of a copy of the
conditions in writing. The conditions shall be established in accordance
with article twelve-B of the executive law and the rules and regulations
of the division of parole. Thereafter and while the parolee is
participating in the intensive drug treatment program provided at the
drug treatment campus, the division of parole shall assess the parolee's
special needs and shall develop an intensive program of parole
supervision that will address the parolee's substance abuse history and
which shall include periodic urinalysis testing. Unless inappropriate,
such program shall include the provision of treatment services by a
community-based substance abuse service provider which has a contract
with the division of parole.
7. Upon completion of the drug treatment program at the drug treatment
campus, a parolee will be furnished with money, clothing and
transportation in a manner consistent with section one hundred
twenty-five of the correction law to permit the parolee's travel from
the drug treatment campus to the county in which the parolee's
supervision will continue.
8. If the parole officer having charge of a person sentenced to parole
supervision pursuant to this section has reasonable cause to believe
that such person has violated the conditions of his or her parole, the
procedures of subdivision three of section two hundred fifty-nine-i of
the executive law shall apply to the issuance of a warrant and the
conduct of further proceedings; provided, however, that a parole
violation warrant issued for a violation committed while the parolee is
being supervised at a drug treatment campus shall constitute authority
for the immediate placement of the parolee into a correctional facility
operated by the department of correctional services, which to the extent
practicable shall be reasonably proximate to the place at which the
violation occurred, to hold in temporary detention pending completion of
the procedures required by subdivision three of section two hundred
fifty-nine-i of the executive law.
* NB Repealed September 1, 2009
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