Provides that following the revocation of a sentence of probation any new sentence shall include the installation of an ignition interlock device

BILL NUMBER:S5107

Title of bill

An act to amend the penal law, in relation to the revocation of sentences of probation or conditional discharge imposed under the child passenger protection act

This is one in a series of measures being introduced at the request of the Chief Administrative Judge upon the recommendation of her Advisory Committee on Criminal Law and Procedure.

This measure would amend section 60.01 of the Penal Law to authorize courts to reimpose a requirement of an ignition interlock device as a condition of probation or conditional discharge following revocation of a sentence of probation or conditional discharge imposed under Leandra's Law.

The Child Passenger Protection Act (Leandra's Law) provides, in relevant part, that a defendant convicted of a DWI offense under VTL §§ 1192(2), (2-a) or (3) must be sentenced to a period of probation or conditional discharge that includes a condition that the defendant install an ignition interlock device (IID) on any automobile he or she owns or operates (L. 2009, c. 496). In addition, the sentence of probation or conditional discharge must be consecutive to any period of incarceration imposed (PL § 60.21). Under the current statutory scheme, however, a problem arises when a defendant violates a Leandra's Law sentence of probation or conditional discharge and the court revokes the sentence. CPL 410.70(5) sets forth the options available to a court when it revokes a sentence of probation or conditional discharge, and it currently does not authorize a court to re-sentence a defendant pursuant to PL § 60.21. Without any reference to PL § 60.21, courts are limited to re-sentencing in accordance with PL §§ 60.01(3) or (4), neither of which authorizes a consecutive period of probation upon which to attach a condition of an IID.

As a result of this lapse in the statutory scheme, defendants who violate probation or conditional discharge will be relieved of the obligation to install an IID on their vehicles in any case where the court imposes a misdemeanor jail term in excess of sixty days or a felony term of imprisonment in excess of six months. Moreover, under current law, the court lacks the authority to re-impose any form of conditional discharge after revoking a sentence of conditional discharge. Given the expanded use of a conditional discharge sentence under Leandra's law, we believe this restriction was unintended, and that it unnecessarily hinders a court when fashioning a sentence that may best insure that a defendant does not continue to drink and drive following release from incarceration.

This measure amends section 60.01 of the Penal Law to provide explicit authority to impose a sentence of conditional discharge in accordance with PL § 60.21, and further clarifies that any new sentence imposed after revocation of a sentence of probation will include a period of probation that includes a condition requiring a defendant to install an HD on any vehicle defendant owns or operates.

This measure, which would have no meaningful fiscal impact on the State, would take effect immediately.

2012 Legislative History:

OCA 2012-73 Senate 6680 (Sen. Saland) (Passed)