|85.00||Sentence of intermittent imprisonment.|
|85.05||Modification and revocation of sentences of intermittent imprisonment.|
|85.10||Commitment; notifications; warrants.|
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 corrections and community supervision to commence service of the indeterminate or determinate sentence immediately. * NB Effective until September 1, 2019 * 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 corrections and community supervision to commence service of the indeterminate or reformatory sentence immediately. * NB Effective September 1, 2019 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. Top of Page
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