146 Misc. 2d 265 | N.Y. Sup. Ct. | 1989
OPINION OF THE COURT
This CPLR article 78 proceeding by the petitioner seeks eligibility for consideration for conditional release pursuant to
The petitioner, having completed 30 days of a six-month sentence of imprisonment, applied for consideration for conditional release to respondent Nassau County Conditional Release Commission (Commission) pursuant to the provisions of article 12, § 273 of the Correction Law. The Commission, in turn, denied the application on the grounds that the petitioner has not received a definite sentence of imprisonment. The Commission concluded that because the sentence of imprisonment was also a condition of a concurrent sentence of five years’ probation pursuant to the authority of Penal Law § 60.01 (2) (d), the application had to be (and was) denied.
The respondent is empowered by article 12, § 272 (1) of the Correction Law to determine "which persons sentenced within the county and serving a definite sentence of imprisonment and eligible for conditional release pursuant to subdivision two of Section 70.40 of the Penal Law may be released on conditional release”.
The court is authorized, in the first instance, to impose a definite sentence of imprisonment and fix a term of one year or less pursuant to section 70.00 (4) of the Penal Law.
Moreover, Penal Law § 60.01 (2) (d) permits the court, when the sentence for a felony is not in excess of six months, to also impose a sentence of probation with the sentence of imprisonment as a condition of, and to run concurrently with, the sentence of probation. Penal Law § 60.01 (2) (a) specifies such manner of sentence as a "revocable sentence”.
After considering all of the above-cited portions of the sections of law relevant to the question presented in the petition at bar, the court concludes that the petitioner is not the recipient of a "definite sentence” but rather of a "revocable sentence” of imprisonment and probation, referred to generally as a "split sentence.” It is manifest that the petitioner has already received the benefit of Penal Law § 70.00 (4) which permits alternative definite sentence for certain felonies. In addition, he has received the benefits afforded by Penal Law § 60.01 (2) (d), subject to the terms and type of sentence defined therein. At this juncture, there appears to be no further "eligibility” under Penal Law § 70.40 nor the current status of an inmate serving a "definite sentence” as expressly required by Correction Law § 272 (1).
The petition, therefore, is dismissed.