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Court Discusses Lifetime Probation Sentence for Defendant

A Nassau Criminal Lawyer said that, this is an appeal by defendant from a judgment of the County Court, Nassau County, rendered April 3, 1979, convicting him of criminal sale of a controlled substance in the third degree, on his plea of guilty, and imposing an indeterminate sentence of one year to life. By order dated August 20, 1979, this court remitted the matter to the Administrative Judge of the Nassau County Court for further proceedings with respect to his disapproval of a sentence of lifetime probation and the appeal has been held in abeyance in the interim. The Administrative Judge has complied.

A New York Criminal Lawyer said that, on January 22, 1979 defendant pleaded guilty to criminal sale of a controlled substance in the third degree, a class A-III felony, in satisfaction of an indictment charging him with criminal sale of a controlled substance in the second degree and criminal possession of a controlled substance in the third and fifth degrees. Pursuant to subdivision 1 (par. (b)) of section 65.00 of the Penal Law, the sentencing court forwarded a letter dated February 15, 1979 to the Administrative Judge of the Nassau County Court stating that in his opinion the ends of justice would best be served by imposing a sentence of lifetime probation on the defendant and requesting concurrence in the imposition of such a sentence. The request was denied by the Administrative Judge by crossing out the word “approved” at the foot of the letter, leaving the word “disapproved”. No reasons were stated. On April 3, 1979 the County Court imposed an indeterminate term of imprisonment of a minimum of one year and a maximum of life, the minimum sentence permissible in the absence of the concurrence of the Administrative Judge.
The issue in this case is whether defendant is entitled to probation.

This court held the appeal from the judgment of conviction in abeyance and remitted the matter to the Administrative Judge of the Nassau County Court for a statement of the basis for his determination and for the taking of proof if he deemed it necessary or advisable to do so.
Pursuant to our remission the Administrative Judge has rendered an opinion, dated August 30, 1979, without a hearing, setting forth the basis for his denial of the application. As we held upon remitting this matter, the discretion exercised by an administrative judge in denying an application for concurrence in the imposition of a sentence of lifetime probation is reviewable. Pursuant to that power of review we find that such discretion was not properly exercised in this case and that the sentence should be reduced to lifetime probation.

A New York Criminal Lawyer said Subdivision 1 (par. (b)) of section 65.00 of the Penal Law provides that the court, with the concurrence of either the administrative judge of the court or the administrative judge of the judicial district, may impose a sentence of probation upon a person convicted of a class A-III felony if the prosecutor recommends such a sentence on the ground that the defendant has or is providing material assistance in the investigation, apprehension or prosecution of any person for a felony defined in article 220 of the Penal Law. Four criteria are set forth to guide the court in the exercise of its discretion: (i) that institutional confinement of the defendant is not necessary for the protection of the public; (ii) that guidance, training or other assistance can be provided to the defendant through probation supervision; (iii) that the defendant has or is providing material assistance in the investigation, apprehension or prosecution of a person for a felony pursuant to article 220 of the Penal Law; and (iv) that such a sentence would not be inconsistent with the ends of justice.

A Queens Criminal Lawyer said this case the District Attorney of Nassau County recommended that the court impose a sentence of probation on the basis that the defendant had provided assistance in the investigation, apprehension and prosecution of major felony violators as defined in article 220. That recommendation was supported by a letter from an agent of the Drug Enforcement Administration stating that as the result of the defendant’s co-operation two cases were initiated, one of which resulted in the purchase of one ounce of cocaine and another of which resulted in the purchase of approximately 1,000 non-controlled pills and that both investigations were still active.

A Long Island Criminal Lawyer said the presentence report prepared by the Nassau County Probation Department indicated that the defendant was a student at Adelphi University at the time of his arrest and that he had no prior criminal record and recommended that he be considered for lifetime probation. The report did reveal that an A-III felony charge was pending against the defendant in Suffolk County.

A Brooklyn Criminal Lawyer said in our opinion, as implicitly found by the sentencing court, all the criteria set forth by the Legislature in enacting section 65.00 have been met in this case. The nature and circumstances of the crime indicate that institutional confinement is not necessary for the protection of the public. Clearly, the necessary guidance, training or other assistance can be effectively administered through probation supervision. The District Attorney, whose expertise places him in the best position to evaluate the matter, has stated that the defendant has provided assistance in the investigation, apprehension and prosecution of major violators of felonies as defined in article 220 of the Penal Law. Plainly, the imposition of probation here is not inconsistent with the ends of justice. This would seem to be a case in which no worthwhile purpose is to be served by incarceration of the defendant.

In his written opinion the Administrative Judge of the County Court addressed himself only to the criterion relating to the providing of material assistance in connection with other criminal investigations and concluded, based upon a comparison of the criminal acts committed by the defendant and the investigations for which he had provided assistance, notwithstanding the statements of the District Attorney, that the defendant had not in fact provided the requisite material assistance. However, in so doing, the Administrative Judge indicated that his finding was influenced by a basic dissatisfaction with the statutory sentencing scheme by pointing out that many defendants convicted of class A-I or A-II drug felonies who themselves may have been unsophisticated youngsters who became involved in a single transaction would have willingly co-operated with law enforcement authorities in exchange for a sentence of probation if the statute had afforded them the opportunity to do so. He concluded as follows: “In the light of this defendant’s involvement and failure to demonstrate substantial cooperation of the type contemplated by the statute, it would not appear to be in the interest of justice to accord him this special treatment not available to others less involved, and through no fault of their own incapable of cooperating to the extent required.”

In sum we find that the refusal by the Administrative Judge of the Nassau County Court to concur in the imposition of a sentence of lifetime probation in this case constituted an improvident exercise of discretion.

Accordingly, the court held that the judgment is modified, as a matter of discretion in the interest of justice, by reducing the sentence to a term of lifetime probation. As so modified, judgment affirmed and case remitted to the County Court, Nassau County, to fix the conditions of probation.

If you have been charged of a crime, seek the immediate representation of a Nassau Criminal Attorney and Nassau Order of Protection Attorney at Stephen Bilkis and Associates in order to know if you are qualified for probation. Call us now.

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