People v. VarrecchiaPeople v. Varrecchia
OPINION OF THE COURT
Thе defendant, following trial before a jury, stands convicted of the crime of burglary in the third degree. The People have filed against the defendant a second felony offender statement pursuant to GPL 400.21, alleging previous felony convictions on June 9, 1976 for the crimes оf grand larceny in the third degree and an attempt to commit the crime of burglary in the third degree (class E felonies).
For the purpose of determining whether a prior conviction is a predicate felony under
As the present offense occurred on October 27, 1986, which is clearly more than 10 years after the defendant’s predicate felony conviction of June 9, 1976, the People rely on the tolling provision of the statute.
Accordingly, "[i]n calculating the ten year period * * * any period of time during which the person was incarcerated for any reason between the time of commission of the previous felony and the time of commission of the present felony shall be excluded and such ten year period shall be extended by a period or periods equal to the time served under such inсarceration”. (
The defendant, on his June 9, 1976 conviction, received a sentence of one-year incarceration аt the Nassau County Correctional Center, which, with discretionary reduction of sentence (
Thе defendant contests his second felony offender status and raises a question of law which appears to be of novel impression.
After having commenced service of his June 9, 1976 one-year sentence at the Nassau County Correctional Center, the defendant from July 30, 1976 to November 9, 1976 participated in the work release program (Correction Law art 28).
A hearing was ordered and held by this court, at which time between the District Attorney (by Assistant District Attorney Wayne Kiernan) and James J. Tini, Esq., the defendant’s attorney, the following stipulation was entered into as to the undisputed faсts:
The defendant was sentenced on his prior felonies on June 9, 1976 to a term of incarceration of one year at the Nassаu County Correctional Center. He began his incarceration that day and he was imprisoned at the Correctional Center until Novеmber 9, 1976. In the interim, on July 30, 1976 he began participation in the work release program. During the day, he reported to a job and after work, he reported back to the Correctional Center, wherein he was incarcerated. The present offense for which he now stands convicted occurred on October 27, 1986.
Pursuant to
DECISION OF THE COURT
In making its determination as to whether or not work release program time is excluded from the tolling provision of
Section 870 of the Correction Law:
"The sheriff * * * may establish a work release program pursuant to which prisoners, sentenced to and confinеd in any county jail under his jurisdiction, may be granted the privilege of leaving confinement for the purpose of working at gainful employment”. (Emphasis supplied.)
Section 877 of the Correction Law:
"while released from the jail of confinement pursuant to the terms of any work release plan * * * when a prisoner is employed by the state or a local municipality, his relationship to the state or local municipality arising out of such employ
Section 876 of the Correction Law:
"Nothing in this article shall be construed to prejudice the eligibility of any prisoner participating in a work release program for the purposes of discretionary reduction of sentence, parole or conditional release”.
Section 205.16 of the Penal Law:
"A рerson is guilty of absconding from temporary release in the second degree when having been released from confinement in a correctional institution * * * to participate in a program of work release, he intentionally fails to return to the institution or facility of his confinement at or before the time prescribed for his return.” (Emphasis supplied.)
The necessary prerequisite to the triggеring of the tolling provision of
Based on the statutory language pertaining to work release programs as found in sections 870 and 877 of the Cоrrection Law and in section 205.16 of the Penal Law, this court finds that during the time the defendant was outside the Nassau County Correctional Centеr for participation in the work release program, he was not confined or incarcerated.
All of the sections prеviously noted unequivocally refer to a person in work release status as "having been released from confinement”.
In addition, this court finds that if work release status was considered as confinement, the enactment of section 876¡ of the Correction Law (eligibility fоr reduction of sentence, parole or conditional release) would have been unnecessary.
While participаting in the work release program, the defendant during his work hours was outside the Nassau County Correctional Center and by being continued in the рrogram, demonstrated that he functioned in society in a law-abiding manner (see, People v Orr,
In computing the time which this court finds to be exempt from the tolling provision, this court has determined that the defendant, between July 30, 1986 and November 9, 1986, was rеleased for an 11-hour period on each of 73 different days.
Therefore, this court finds that the defendant has not been subjected to a predicate felony conviction for purposes of enhanced punishment for the present offense.