Relates to appeals of orders modifying or enlarging conditions of probation

BILL NUMBER:S5652

Title of bill

An act to amend the criminal procedure law, in relation to appeals of orders modifying or enlarging conditions of probation

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 the Criminal Procedure Law to allow a defendant to appeal a court order modifying or enlarging conditions of probation. The Court of Appeals recently held that a defendant may not appeal a trial court's decision to modify or enlarge a condition of probation. Instead, any challenge must be taken by an Article 78 proceeding (People v Pagan, 19 NY3d 368 (2012)). CPL 450.30(3) defines an appeal from a sentence to mean "an appeal from either the sentence originally imposed or from a resentence following an order vacating the original sentence." The Court in Pagan held that the sentence "originally imposed" was the one issued when the court first sentenced the defendant. Subsequent modification of the sentence by way of an order modifying or enlarging a condition of probation falls outside the terms of the statute. As the Court concluded, "because the ... modification order was not a 'sentence' within the meaning of CPL 450.30(3), there is no statutory basis for defendant to pursue an appeal" (19 NY3d at 371).

The Pagan decision has significant consequences for indigent defendants. Indigent defense providers are not compensated for Article 78 proceedings and, except for the Legal Aid Society in New York City, they do not handle such cases. Thus, throughout most of New York State, indigent defendants have no recourse to challenge changes in conditions of probation. Ironically, an indigent defendant has counsel when he or she has little need of appellate review of the standard conditions of probation imposed at the time of sentence. Subsequent modification of the conditions are likely more onerous than standard conditions because the changes are normally requested by the probation department in response to their perception that the defendant has engaged in negative behavior. Thus, when an indigent defendant has the most need to review a court's decision, he or she has the least ability to do so.

We believe that modification or enlargement of conditions of probation are an integral part of a court's sentence and should be recognized as such. Accordingly, this measure provides that an appeal will lie when a court modifies or enlarges conditions or probation.

This measure would take effect immediately, and would apply to all criminal proceedings pending on or after such effective date.

Legislative History: None. New proposal.