BILL NUMBER:S5107

TITLE OF BILL:  An act to amend the penal law, in relation to the
revocation of sentences of probation or conditional discharge imposed
under the child passenger protection act

This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of her Advisory
Committee on Criminal Law and Procedure.

This measure would amend section 60.01 of the Penal Law to authorize
courts to reimpose a requirement of an ignition interlock device as a
condition of probation or conditional discharge following revocation
of a sentence of probation or conditional discharge imposed under
Leandra's Law.

The Child Passenger Protection Act (Leandra's Law) provides, in
relevant part, that a defendant convicted of a DWI offense under VTL
§§ 1192(2), (2-a) or (3) must be sentenced to a period of probation or
conditional discharge that includes a condition that the defendant
install an ignition interlock device (IID) on any automobile he or she
owns or operates (L. 2009, c. 496). In addition, the sentence of
probation or conditional discharge must be consecutive to any period
of incarceration imposed (PL § 60.21). Under the current statutory
scheme, however, a problem arises when a defendant violates a
Leandra's Law sentence of probation or conditional discharge and the
              

court revokes the sentence. CPL 410.70(5) sets forth the options
available to a court when it revokes a sentence of probation or
conditional discharge, and it currently does not authorize a court to
re-sentence a defendant pursuant to PL § 60.21. Without any reference
to PL § 60.21, courts are limited to re-sentencing in accordance with
PL §§ 60.01(3) or (4), neither of which authorizes a consecutive
period of probation upon which to attach a condition of an IID.

As a result of this lapse in the statutory scheme, defendants who
violate probation or conditional discharge will be relieved of the
obligation to install an IID on their vehicles in any case where the
court imposes a misdemeanor jail term in excess of sixty days or a
felony term of imprisonment in excess of six months. Moreover, under
current law, the court lacks the authority to re-impose any form of
conditional discharge after revoking a sentence of conditional
discharge. Given the expanded use of a conditional discharge sentence
under Leandra's law, we believe this restriction was unintended, and
that it unnecessarily hinders a court when fashioning a sentence that
may best insure that a defendant does not continue to drink and drive
following release from incarceration.

This measure amends section 60.01 of the Penal Law to provide explicit
authority to impose a sentence of conditional discharge in accordance
with PL § 60.21, and further clarifies that any new sentence imposed
after revocation of a sentence of probation will include a period of
probation that includes a condition requiring a defendant to install
an HD on any vehicle defendant owns or operates.

This measure, which would have no meaningful fiscal impact on the
State, would take effect immediately.


2012 Legislative History:

OCA 2012-73
Senate 6680 (Sen. Saland) (Passed)