Senate Bill S5652

                                BILL NUMBER:S5652

TITLE OF BILL:  An act to amend the criminal procedure law, in
relation to appeals of orders modifying or enlarging conditions of
probation

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 the Criminal Procedure Law to allow a
defendant to appeal a court order modifying or enlarging conditions of
probation. The Court of Appeals recently held that a defendant may not
appeal a trial court's decision to modify or enlarge a condition of
probation. Instead, any challenge must be taken by an Article 78
proceeding (People v Pagan, 19 NY3d 368 (2012)). CPL 450.30(3) defines
an appeal from a sentence to mean "an appeal from either the sentence
originally imposed or from a resentence following an order vacating
the original sentence." The Court in Pagan held that the sentence
"originally imposed" was the one issued when the court first sentenced
the defendant. Subsequent modification of the sentence by way of an
order modifying or enlarging a condition of probation falls outside
the terms of the statute. As the Court concluded, "because the ...
modification order was not a 'sentence' within the meaning of CPL
450.30(3), there is no statutory basis for defendant to pursue an
appeal" (19 NY3d at 371).
              

The Pagan decision has significant consequences for indigent
defendants. Indigent defense providers are not compensated for Article
78 proceedings and, except for the Legal Aid Society in New York City,
they do not handle such cases. Thus, throughout most of New York
State, indigent defendants have no recourse to challenge changes in
conditions of probation. Ironically, an indigent defendant has counsel
when he or she has little need of appellate review of the standard
conditions of probation imposed at the time of sentence. Subsequent
modification of the conditions are likely more onerous than standard
conditions because the changes are normally requested by the probation
department in response to their perception that the defendant has
engaged in negative behavior. Thus, when an indigent defendant has the
most need to review a court's decision, he or she has the least
ability to do so.

We believe that modification or enlargement of conditions of probation
are an integral part of a court's sentence and should be recognized as
such. Accordingly, this measure provides that an appeal will lie when
a court modifies or enlarges conditions or probation.

This measure would take effect immediately, and would apply to all
criminal proceedings pending on or after such effective date.

Legislative History: None. New proposal.