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Defendant Seeks to Shorten Probation Sentence


People for the State of New York v. T.W.

NY Slip Op. 02210

When T was a minor, she and another man sexually assaulted a 15-year-old girl. She plead guilty to 1st Degree sexual abuse (a Class D Felony). The Supreme Court said that in the interest of justice, her conviction should be vacated, and she should be sentenced under Penal Law 60.02. She received 10 years probation. The defendant appealed, arguing that the sentence exceeded the maximum for an undesignated Class E Felony.

The Appellate Court held that the sentence was correct. This court now affirms.

Under Penal Law 60.02(2) a youthful offender adjudication must be a sentence that is in keeping with a person that is convicted of a Class E Felony. So, her sentence can be no more than 5 years pursuant to Penal Law 65.00 (3)(a)(i).

When the youthful offender law was created, the Penal Law did not specify the types of Class E Felonies. Over time, various designations arose based on the type of violent drug or sex crime (Penal Law 70.02 [2][c], 70.80 [4], 70.00 [1]. Different types of probation are based on the offenses have arisen (Penal Law 65.00 (3)(iii), which lengthened the term of probation for felony sex cases. The defendant argues that when the differentiation occurred with the Class E Felonies, it didn’t affect the probationary period for a youthful offender.

The court cited People v Grey (2 AD3d 275 [1st Dept. 2003], which stated that the 10-year probation period did not preclude youthful offenders. The court said that the best was to determine legislative intent is to look at the language itself (People v. Golo 26 NY 358). Penal law section 65.00 says that sentences should be given depending on the crime involved, and the history and character of the crime. Sexual assault comes under the list of offenses that include a 10-probationary period.

The defendant cites the case People v. Jorge (109 AD3d 16 [2013]. In this case, the court held that the legislature characterized determinate sentences, and those could not be applied to youthful offenders. The court sided with the concept that youthful offenders should be held to a different standard.

T.W.’s argument relied on an improvable position that her 10-year sentence was unfairly ordered. At the same time, it is important to note that she will not be registered as a sex offender (Correction Law 168 a [1], CPL 720.20 [3]. While she plead guilty to a D Felony, all youthful offenders are sentenced as if they committed an E Felony (PL 60.02 [2]). Lastly, the trial judge can end the probation sooner than need be if the situation warrants it.

The appellate decision is affirmed.

If you have been charged with a crime such as a drug offense, robbery or sex crime, it is important to seek legal guidance as soon as possible. If convicted, the punishments for a criminal offense can be harsh and include jail time, fines and probation. If it is a sex crime, you could experience damage to your reputation, problems with your relationships with friends and family, and be required to register as a sex offender. Come speak to the legal team at Stephen Bilkis and Associates for guidance and a free consultation. We have offices in Manhattan, the Bronx, Brooklyn, Queens, Staten Island, Nassau County, Suffolk County and Westchester County. Contact us today to schedule your free consultation at 1-800-NYNYLAW.

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