63 A.D.2d 45 | N.Y. App. Div. | 1978
OPINION OF THE COURT
The question involved on this appeal is whether the defendant, when found guilty of violation of probation, was entitled to jail time credit for the time he was out on the street on probation. We hold that he was not and, therefore, the amended judgment appealed from should be affirmed.
The defendant was indicted in 1970 for manslaughter in the first degree. On May 12, 1971 he pleaded guilty before the late Mr. Justice Nicols to attempted manslaughter in the second degree in satisfaction of the indictment and was sentenced on December 14, 1971 to a five-year probationary term.
On January 10, 1973 the defendant was arrested on a Federal charge of conspiring to violate the narcotics laws in 1969-1970. On January 18, 1973 he was arrested on a State charge of attempted murder, allegedly committed on October 19, 1972. He was held on the State charge until September 11, 1973 when he was released on his own recognizance because no indictment had been returned. Based on those arrests the defendant was charged with violation of the terms of his probation.
On September 17, 1973 an indictment was filed on the attempted murder charge. On his arraignment on that charge, on September 24, 1973, he was remanded to jail. On June 5, 1975 he pleaded guilty to attempted manslaughter in the first degree in satisfaction of the State indictment and was sentenced on that conviction by Judge D’Amaro to an indeterminate term of five years’ imprisonment. At about the same time, the defendant pleaded guilty to the Federal conspiracy charge. The record does not show whether the defendant was sentenced on that charge, but his brief states that the Federal Judge promised that he would receive a prison sentence not exceeding eight years.
On July 30, 1975 the defendant pleaded guilty before Mr. Justice Nicols to a violation of probation on the basis of his State conviction of attempted manslaughter in the first de
The defendant contends that Mr. Justice Nicols’ denial to him of jail time credit for the time he was on the street while on probation denied him his rights under the equal protection of the laws and the double jeopardy clauses of the Federal and State Constitutions.
It is that difference in treatment which is the basis for the defendant’s claim that he has been denied the equal protection of the laws. However, it is well settled that such apparently disparate legislative solutions "must be respected if the 'distinctions drawn have some basis in practical experience,’ South Carolina v. Katzenbach, 383 U.S. 301, 331 (1966), or if some legitimate state interest is advanced, Dandridge v. Williams, 397 U.S., at 486. So long as the state purpose upholding a statutory class is legitimate and nonillusory, its lack of primacy is not disqualifying” (McGinnis v Royster, 410 US 263, 276). The defendant contends that the restrictions imposed on persons released on probation are exactly the same as those imposed on those released on parole or conditional
In the case of parole and conditional release, however, the sentencing court has found that there is ground to subject the convicted defendant to a term of imprisonment both for purposes of punishment and rehabilitation, leaving it to the parole authorities to determine, at the expiration of the defendant’s minimum sentence, whether and when his rehabilitation will best be furthered by his release. The discretion to be thus exercised lies with the parole authorities, not the courts, and is based largely upon how the convicted defendant has adjusted to his confinement, a factor not present when the sentencing court makes its decision not to imprison the convicted defendant but to release him on probation or on conditional discharge (see People v Johnson, 43 AD2d 878).
We are not unaware of the recent decisions of the Supreme Court of the United States in Morrissey v Brewer (408 US 471) and Gagnon v Scarpelli (411 US 778), that the revocation of parole and probation entails a "grievous loss” of liberty (see 408 US, at p 482; 411 US, at pp 781-782) and that therefore such revocations require certain minimal protections for the defendant (see Note: Revocation of Conditional Liberty for the Commission of a Crime: Double Jeopardy and Self-Incrimination Limitations, 74 Mich L Rev 525, 526). But the Supreme Court’s recognition of similarities between probation and parole does not carry with it an implication that probation and parole must receive the same treatment under the equal protection clauses of the State and Federal Constitutions on the question of whether jail time credit must be granted alike to probationers and parolees for time spent by them while on
The defendant contends that in dealing with the equal protection question this court must use as its test whether the difference in treatment afforded defaulting parolees as against defaulting probationers is required by a pressing State necessity, because the denial of jail credit for street time to a probationer involved a denial of liberty. We find no merit to this argument since a defendant who receives a sentence of probation has been found guilty of a crime and has escaped incarceration only because the sentencing court, in the exercise of its discretion, has decided that his rehabilitation, a goal of the penal system, can best be furthered by his release and close supervision by probation authorities. As the court noted in People ex rel. Robinson v Warden (58 AD2d 559, mot for lv to app dsmd as moot 42 NY2d 810), "[a] probation term differs from a prison term in that it is intended to afford a sentencing court an opportunity to determine whether its confidence is misplaced (Hechtman, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law, § 65.15, subd 1).” In like view, the Supreme Court of the United States, in McGinnis v Royster (410 US 263, 276, supra), held that differential treatment as to good time credit for time spent in a county jail as against time spent in a State prison need meet only the legitimate State purpose test, not the "strict judicial scrutiny” test. Applying that test here we find that the statutory distinctions drawn by the Legislature have "some basis in practical experience” and advance "some legitimate state interest”. They do not, therefore, offend the equal protection clauses.
The defendant also contends that the denial to him of jail time credit for time he was out on the street on probation violates the Federal and State constitutional bans on double jeopardy insofar as it imposes on him multiple punishments for the same offense. However, this is not a case of a retrial for the same offense as was the situation in People v Brown (40 NY2d 381, 386), cited by the defendant. "Accordingly,
We have also considered the defendant’s contention that the sentence imposed on his conviction of violation of probation, a maximum of seven years’ imprisonment to run consecutively to his other sentence, should be modified in the interests of justice and have determined that under the facts of this case we would not be warranted in modifying the sentence imposed.
The amended judgment appealed from should therefore be affirmed.
Mollen, P. J., Hopkins, Suozzi and O’Connor, JJ., concur.
Amended judgment of the Supreme Court, Kings County, rendered July 30, 1975, affirmed.
. Although advised of the constitutional question involved in this case, the Attorney-General has declined to intervene.
. In Roberts v United States (320 US 264), the court dealt with whether, under the Federal Probation Act, a court could, after a violation of probation, revoke the sentence previously imposed on the probationer and suspended, and impose on the probation violator a more severe sentence than that originally imposed. The majority of six held that the statute contained no such authority. In his dissent Mr. Justice Frankfurter, after stressing the flexibility of the statute, read it broadly as allowing the imposition of a more severe sentence after a violation of probation than that originally given and suspended. The dissenters also would have reached and rejected the issue of whether the imposition of such a sentence violated the ban on double jeopardy, an issue raised by the appellant in Roberts but not reached by the majority.