COURT MUST PROVIDE A DEFENDANT SENTENCED TO PROBATION FOR A NEW YORK DWI WITH A WRITTEN COPY OF ANY PROBATION CONDITIONS, INCLUDING THE SPECIFIC “DRIVING WHILE INTOXICATED CONDITIONS”

February 22, 2012 by Tilem & Associates

When one is convicted for Driving While Intoxicated [VTL 1192] in New York, probation is a possibility. As most experienced criminal defense lawyers know, when one is sentenced to probation, the court usually imposes fairly standard probation conditions which are provided to the defendant in writing at the time of sentence. The defendant must sign these conditions in court at the time he or she is sentenced. When the conviction is for DWI, courts often impose “Driving While Intoxicated Probation Conditions” in addition to the standard probation conditions.

The New York State Criminal Procedure Law requires the sentencing court to specify any sentencing conditions and provide the defendant with a written copy of any conditions of probation at the time of sentencing. More specifically, where “the court pronounces a sentence of probation . . . . it must specify as part of the sentence the conditions to be complied with. Where the sentence is one of probation, the defendant must be given a written copy of the conditions at the time sentence is imposed.” CPL § 410.10(1).

The New York State Penal Law also mandates that the sentencing court specify the conditions a probationer must comply with. For example, Penal Law § 65.00(2) states “When a person is sentenced to a period of probation the court shall . . . . specify, in accordance with section 65.10, the conditions to be complied with.” see also Penal Law § 65.10(1)(“The conditions of probation . . . . shall be such as the court, in its discretion, deems reasonably necessary . . .”).
Probation conditions imposed as part of the sentence must be clearly stated leaving nothing to doubt. “It is fundamental that such conditions should be sufficiently clear and explicit so that both the defendant and the probation officer will have notice thereof.” People v. Turner, 27 A.D.2d 141 at 145 (4th Dept. 1967) see also People ex rel. Benacquista v. Blanchard 267 A.D. 1018 (3rd Dept. 1944)(“The conditions of probation . . . . must be determined by the court and imposed upon the defendant in a manner to give him due notice thereof.”).

For example, if a defendant convicted of Driving While Intoxicated (whether by plea bargain or trial verdict) as a misdemeanor is sentenced to probation, in addition, his or her license will be revoked for a least one year. When the defendant reapplies for his or her driver’s license, the Department of Motor Vehicles, not the original sentencing court, decides whether to reissue the license. In fact, the Department of Motor Vehicles can terminate any court imposed suspension or revocation in certain circumstances where the defendant completes the Drinking Driver Program.

However, the court can undermine the DMV’s authority to re-issue the defendant’s license or terminate the revocation early by adding a probation condition that prohibits the defendant from re-applying for his or her driver’s license for the duration of the probationary period or until cleared to reapply by probation. This means that a defendant could be restricted from all driving for the entire three year probationary period.

But, as explained above, probation conditions must be specified by the court and provided to the defendant in writing at the time of sentencing. If the court fails to do so, the Department of Probation cannot order the defendant to sign any conditions of probation at a later date. The Department of Probation is bound by the conditions imposed by the court. Furthermore, the sentencing judge can’t sign and add probation conditions at a later time after the defendant has been sentenced and is no longer in the court. In other words, if the court forgets to impose certain probation conditions, it can’t simply try to “correct” the error clerically by signing and adding additional conditions. If the original sentence was lawful, the court is without authority to alter it. The Department of Probation should not have any conditions of probation signed by the judge that were not provided to the defendant at the time of sentencing.

Requirement That Sentencing Court Provide Written Copy Of Probation
Conditions At Time Of Sentencing Not Strictly Enforced IF Court Explains
Conditions Verbally At Time of Sentencing

The Appellate Division, Fourth Department has apparently carved out an exception to CPL 410.10(1) by holding that a sentencing court need not strictly comply with the requirement that a defendant be provided with a written copy of the conditions of probation at the time of sentencing. However, this exception applies only if the defendant is told of the conditions at the time of sentencing. People v. Bernstein, 163 A.D.2d 842, 559 N.Y.S.2d 71 (4th Dept. 1990).

The Appellate Division, Third Department has also held that that a sentence need not be vacated where a sentencing court fails to provide a defendant with a written copy of the probation conditions at the time of sentencing if the sentencing court explains the conditions to the defendant at the time of sentencing. People v. Nazarian, 150 A.D.2d 923, 541 N.Y.S.2d 262 (3rd Dept. 1989). Indeed, in Nazarian, the sentencing court actually read the probation conditions into the record.

For more information about sentencing issues in New York State, feel free to contact us toll free at 1-877-377-8666 or visit us on the web at www.tilemandcampbell.com.

Post a comment

(If you haven't left a comment here before, you may need to be approved by the site owner before your comment will appear. Until then, it won't appear on the entry. Thanks for waiting.)