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Article 85 - NY Penal Law

• NY Laws ›
• Penal Law ›
• Part 2 ›
• Title E ›
• Article 85

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.

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