Courts and Law

Judges may be given discretion in probation sentencing, Brooklyn attorneys welcome change

July 9, 2013 By Charisma L. Miller, Esq. Brooklyn Daily Eagle
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The New York State Legislature has passed a bill to amend the penal law and the criminal procedure law to allow state judges some leeway in probation sentences.

Presently, adult defendants can be given a minimum five-year probation for felony crimes and three years for misdemeanors. The new bill, S4664/A4582, would allow judges to sentence probation periods of three, four, or five years for some felonies and to give two- or three-year probation sentences for misdemeanor offenses, depending on the defendant’s circumstance. For some misdemeanors, probation terms can be as little as one year.

“I believe judges should have more discretion,” Brooklyn criminal defense attorney Howard Schwartz told the Brooklyn Daily Eagle. “Law in general, and criminal law in particular, was designed to apply to hundreds of thousands of people, but sentences are fashioned for individuals.” The new legislation, still awaiting New York Gov. Andrew Cuomo’s signature, “focus[es] on people who need probation the most when they need it,” Vincent Schiraldi, New York City’s probation commissioner, told the New York Law Journal.

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The bill, sponsored by state Sen. Martin Golden (R-Bay Ridge) and Assemblyman Daniel O’Donnell (D-Manhattan), also eliminates, primarily for New York City, the requirement of a pre-sentence investigation and subsequent written report for defendants who are convicted of a crime, or if probation has been revoked, where a sentence for imprisonment has been negotiated for a year or less.

“The task of keeping our communities safe is too important — and our resources are too precious — to have New York City’s courts and public safety agencies bogged down by policies that do little or nothing to prevent crime,” Mayor Michael Bloomberg said in a statement.

The current probation structure can, at times, prevent defendants from moving past their previous crime and on with their lives, Schwartz noted. “A lot of things are precluded for probationers. It becomes difficult to travel or work out of state. There may be times, for example, when a judge believes that a felony offender should only get two years probation but is required by law to hand down a five-year probation sentence. That defendant will have to apply to have the probation removed if he/she wanted to move on with their lives.”

“Judges will welcome this change, if approved, because it permits judges to tailor the length of probation sentences to the severity of the conviction and to the risk factors posed by the offender, e.g., prior criminal history, degree of culpability and risk of re-offense,” Brooklyn Supreme Court Justice Barry Kamins, the co-chair of New York State’s Sentencing Commission, said in a statement.

If it is signed into law by Cuomo, the bill, which was passed unanimously in the Senate and by a 110-33 vote in the Assembly, will apply statewide and go into effect immediately. It will apply to offenses committed on or after the date the bill is signed into law and to cases in which offenses were committed before the bill is signed into law but a sentence had not yet been imposed.


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