Muldoon, Getz & Reston

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Issues In NY Criminal Law--Vol. 1, #3©

Issue: Recalculating jail time credit on an intermittent sentence

An intermittent sentence--usually a weekend sentence--is provided for in Penal Law 85.00. The sentence may be meted out with violations, misdemeanors, and also class D and E felonies. As provided in section 60.01(2)(e)(ii), an intermittent sentence is revocable: a defendant who messes up can be resentenced. Such as getting a sentence of straight time.

If an intermittent sentence is recalculated, what time does the defendant get credit for having served?

Penal Law 85.00(3) provides that an intermittent sentence can run as long as a definite jail sentence for the same offense. This is measured by the duration of the term, rather than the number of days actually spent in jail.

Many attorneys, and all inmates, would interpret this as meaning that a defendant who has served a weekend gets credit for one full week. No so, according to the Third Department. People ex rel Fancher v Wasser, 244 AD2d 79, 676 NYS2d 289 (3d Dept 1998); see Muldoon and Feuerstein, Handling a Criminal Case in New York, sec. 21:27 (West Group 1999-2000). Rather, upon resentencing, the defendant gets credit for actual days in jail. A Friday-to-Sunday hitch earns three days, rather than a week.

BY the way, consider a situation where the judge sentences a defendant to 52 weekends in jail on a class A misdemeanor, with the first period in jail to commence on the upcoming weekend. Is such a sentence valid? While a one-year sentence on a class A misdemeanor is valid, the 52 weekends in this example cannot be served within that time period. Of necessity, the last weekend will occur after the one-year maximum length of time has elapsed. Thus, such a sentence is improper. People v White, 83 AD2d 668, 442 NYS2d 186 (3d Dept 1981).

FINALLY, where an intermittent sentence is imposed, the court must specify each day or parts thereof that must be served. People v Meredith, 256 AD2d 641, 682 NYS2d 250 (3d Dept 1998); People v White, supra.

QUOTATION: "Upon this point a page of history is worth a volume of logic." Oliver Wendell Holmes, Jr., NY Trust Co. v Eisner, 256 US 345, 41 S Ct 506, 65 L Ed 563 (1921)

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