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ARTICLE 85
SENTENCE OF INTERMITTENT IMPRISONMENT
Section 85.00 Sentence of intermittent imprisonment.
85.05 Modification and revocation of sentences of intermittent imprisonment.
85.10 Commitment; notifications; warrants.
85.15 Subsequent sentences.
S 85.00 Sentence of intermittent imprisonment.
1. Definition. A sentence of intermittent imprisonment is a revocable
sentence of imprisonment to be served on days or during certain periods
of days, or both, specified by the court as part of the sentence. A
person who receives a sentence of intermittent imprisonment shall be
incarcerated in the institution to which he is committed at such times
as are specified by the court in the sentence.
2. Authorization for use of sentence. The court may impose a sentence
of intermittent imprisonment in any case where:
(a) the court is imposing sentence, upon a person other than a second
or persistent felony offender, for a class D or class E felony or for
any offense that is not a felony; and
(b) the court is not imposing any other sentence of imprisonment upon
the defendant at the same time; and
(c) the defendant is not under any other sentence of imprisonment with
a term in excess of fifteen days imposed by any other court; and
3. Duration of sentence. A sentence of intermittent imprisonment may
be for any term that could be imposed as a definite sentence of
imprisonment for the offense for which such sentence is imposed. The
term of the sentence shall commence on the day it is imposed and shall
be calculated upon the basis of the duration of its term, rather than
upon the basis of the days spent in confinement, so that no person shall
be subject to any such sentence for a period that is longer than a
period that commences on the date the sentence is imposed and ends on
the date the term of the longest definite sentence for the offense would
have expired, after deducting the credit that would have been applicable
to a definite sentence for jail time but without regard to any credit
authorized to be allowed against the term of a definite sentence for
good behavior. The provisions of section five hundred-l of the
correction law shall not be applicable to a sentence of intermittent
imprisonment.
4. Imposition of sentence. (a) When the court imposes a sentence of
intermittent imprisonment the court shall specify in the sentence:
(i) that the court is imposing a sentence of intermittent
imprisonment;
(ii) the term of such sentence;
(iii) the days or parts of days on which the sentence is to be served,
but except as provided in paragraph (iv) hereof such specification need
not include the dates on which such days fall; and
(iv) the first and last dates on which the defendant is to be
incarcerated under the sentence.
(b) The court, in its discretion, may specify any day or days or parts
thereof on which the defendant shall be confined and may specify a
period to commence at the commencement of the sentence and not to exceed
fifteen days during which the defendant is to be continuously confined.
S 85.05 Modification and revocation of sentences of intermittent imprisonment.
1. Authorization. A sentence of intermittent imprisonment may be
modified by the court in its discretion upon application of the
defendant; and the court on its own motion may modify or revoke any such
sentence if:
(a) the court is satisfied during the term of the sentence that the
defendant has committed another offense during such term;
(b) the defendant has failed to report to the institution to which he
has been committed, or to the institution designated by the head of the
agency to which he has been committed, on a day or dates specified in
the commitment and is unable or unwilling to furnish a reasonable and
acceptable explanation for such failure; or
(c) the defendant has violated a rule or regulation of the institution
or agency to which he has been committed and the head of such
institution or agency or someone delegated by him has reported such
violation in writing to the court.
2. Interruption of sentence. In any case where the defendant fails to
report to the institution or to an institution of the agency to which he
has been committed, the term of the sentence shall be interrupted and
such interruption shall continue until the defendant either reports to
such institution or appears before the court that imposed the sentence,
whichever occurs first. If the defendant reports to the institution
before he appears before the court, he shall be brought before the
court.
3. Action by court. The court shall not modify or revoke a sentence of
intermittent imprisonment unless the defendant has been afforded an
opportunity to be heard. Any modification of a sentence of intermittent
imprisonment:
(a) may provide (i) for different or additional or fewer days or parts
of days on which the defendant is to be confined, or (ii) where the
defendant has failed to report as specified in the sentence, an
extension of the term of the sentence for the period during which it was
interrupted, or (iii) for both; and
(b) shall be by written order of the court and shall be delivered and
filed in the same manner as the original sentence, as specified in
subdivision two of section 85.10 of this article.
4. Jail time. Where a sentence of intermittent imprisonment is revoked
and a sentence of imprisonment is imposed in its place for the same
offense, time spent in confinement under the sentence of intermittent
imprisonment shall be calculated as jail time under subdivision three of
section 70.30 of this chapter and shall be added to any jail time
accrued against such sentence prior to imposition thereof.
S 85.10 Commitment; notifications; warrants.
1. Commitment. Commitment under a sentence of intermittent
imprisonment and execution of the judgment shall be in accordance with
the procedure applicable to a definite sentence of imprisonment, except
that: (a) detention of the defendant under the judgment shall be
executed during the times specified in the sentence; and (b) the court
may provide that the defendant is to report to a specified institution
on a specified date at a specified time to commence service of the
sentence and in such case the defendant need not be taken into or
retained in custody when sentence is imposed.
2. Notifications. A written copy of the sentence imposed by the court
signed by the judge who imposed the sentence shall be delivered to the
defendant and shall be annexed to the commitment and to each copy of the
commitment required to be delivered or filed. When the defendant is not
taken into or retained in custody at the time sentence is imposed, the
commitment and copy of the sentence shall forthwith be delivered to the
person whose duty it is to execute the judgment. If at any time the
defendant fails to report for confinement as provided in the sentence
the officer in charge of the institution or department to which such
commitment is made or someone designated by such officer shall forthwith
notify the court in writing of such failure to report.
3. Warrants. Upon receipt of any such notification the court may issue
a warrant to an appropriate police officer or peace officer directing
him to take the defendant into custody and bring him before the court.
The court may then commit such person to custody or fix bail or release
him on his own recognizance for future appearance before the court.
S 85.15 Subsequent sentences.
* 1. Indeterminate and determinate sentences. The service of an
indeterminate or a determinate sentence of imprisonment shall satisfy
any sentence of intermittent imprisonment imposed on a person for an
offense committed prior to the time the indeterminate or determinate
sentence was imposed. A person who is serving a sentence of intermittent
imprisonment at the time an indeterminate or a determinate sentence of
imprisonment is imposed shall be delivered to the custody of the state
department of correctional services to commence service of the
indeterminate or determinate sentence immediately.
* NB Effective until September 1, 2009
* 1. Indeterminate and reformatory sentences. The service of an
indeterminate or a reformatory sentence of imprisonment shall satisfy
any sentence of intermittent imprisonment imposed on a person for an
offense committed prior to the time the indeterminate or reformatory
sentence was imposed. A person who is serving a sentence of intermittent
imprisonment at the time an indeterminate or a reformatory sentence of
imprisonment is imposed shall be delivered to the custody of the state
department of correction to commence service of the indeterminate or
reformatory sentence immediately.
* NB Effective September 1, 2009
2. Definite sentences. If a definite sentence of imprisonment is
imposed on a person who is under a previously imposed sentence of
intermittent imprisonment, such person shall commence service of the
definite sentence immediately. Where such definite sentence is for a
term in excess of thirty days, the service of such sentence shall
satisfy the sentence of intermittent imprisonment unless the sentence of
intermittent imprisonment is revoked, or a warrant is issued pursuant to
subdivision three of section 85.10 of this article and prior to
satisfaction of, or conditional release under, such definite sentence of
imprisonment.
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