Subscribe for 33¢ / day

Several recent court cases have made headlines relating to the post-incarceration probation that derives from Leandra's law DWI sentencing. The issue is not one of legislative oversight, but rather a conflict between public sensibilities and well-established principles of Constitutional law.

It has long been held in New York that when a defendant receives a final sentence of incarceration, that sentence defines the defendant's debt to society, and upon completion of that sentence his debt to us is paid. For this reason, the state Court of Appeals has held in several different contexts that once a sentence is complete, a new crime is necessary for new time. This is nothing new, and I cannot conceive of any "tweak" to Leandra's law that would allow the Legislature to override this Constitutional mandate.

Courts often use "shock probation" sentences to give defendants a "taste" of jail, but the statutes provide clear limits on how much jail (and it's always local jail) that a defendant may serve before he crosses the line into the final sentence range. The post-incarceration probation on felony DWI charges is not meaningless; it provides the necessary basis to maintain the ignition interlock requirement. This requirement cannot be placed on an individual's license without a supervising agency, and in many cases that agency is probation. If the individual fails to cooperate with probation, then when caught driving he will be charged with a new misdemeanor and face up to a year in jail on his new crime. This is not a bug in the law, but rather working as intended.

Thomas F. Turturo Esq.

Auburn

0
0
0
0
1