Opinion
33711.
Decided March 16, 2005.
CINDY INTSCHERT, Esq., JEFFERSON COUNTY DISTRICT ATTORNEY, TIMOTHY J. VIRKLER, Watertown, New York, for the People.
WILLIAM J. KURTZ, Esq., Cicero, New York, for the Defendant.
Cory M. Hall, JULIE HUTCHINS, Esq., Jefferson County Public Defender, MATTHEW PORTER, Watertown, New York for the Defendant M.P.
The issues in these cases deal with the executive, legislative and judicial powers in the State as they relate to the sentence of probation and the transfer of supervision over a probationer from one department to another with the concomitant decision at that time of which court will supervise the enforcement of the sentence after a transfer of probation.
In People v. K.D., 4 Misc 3rd 776, Justice Garnett addressed an issue similar to those present in these cases — the interplay between the probation department's rules and the court's order. He concluded that "[t]o the extent that [such rules are] not in conformity with the law, [they] are irrelevant" (id. p. 779).
PEOPLE V. HALL
P.L. 65.10 dealing with the conditions of probation has the legislative branch acknowledging the independent role of the court found in the wording "[T]he conditions of probation. . . . shall be as the court, in its discretion, deems reasonable . . . (65.10[1]) followed by a listing of possible "conditions relating to conduct and rehabilitation . . . the court. . . . may. . . . require" of the defendant allowing other unlisted conditions "reasonably related to . . . rehabilitation" (65.10[2] [a-L]).
In subdivisions 3,4 and 4-a of 65.10 the statute mandates certain required conditions be imposed relating to supervision, electronic monitoring and sex offenders respectively. The dispute in this case centers on 65.10(3)(b) which directs that the court "shall require as a conditional of sentence," that the defendant "remain within the jurisdiction of th Court unless granted permission to leave by the Court or Probation Officer."
At the time of sentence the defense requested that because the defendant needed to regularly travel outside of Jefferson County on his job the Court grant him permission to leave Jefferson County for that reason. The Court with no objection from the District Attorney gave the Defendant permission to leave the County when his job required him to leave the County on the record; and, the Court drew a line through that condition listed in the terms and conditions on the order of probation prepared by the probation department and dated and initialed this change.
The Jefferson County Probation Director wrote the Court stating this was an invalid sentence under CPL 440.60 as P.L. 65.10(3)(b) mandates its inclusion in all cases of probation . The Probation director bolstered this position by relating that when "Counsel's Office of the New York State Division of Probation and Correctional Alternatives was asked if a judge had the authority to eliminate any of the mandated conditions, their response was, "unequivocally No. It is a mandatory condition!" (2/3/05 letter of Probation Director, p. 2).
In order to disabuse the Probation Director of this misunderstanding of the statute the Court must make two observations.
The first point is that the Court did not eliminate the mandated condition the defendant "remain within the jurisdiction of the Court . . ." required to be listed as a condition as a condition of probation at 65.10(3)(b). This condition was listed on the order prepared by the Probation Department for the Court and the Probationer was advised of this condition at the time sentence was pronounced in Court. The Court, then, made it a condition of probation, it did not eliminate it.
The second point is that the mandated condition the defendant "remain within the jurisdiction of the Court" has an exception found in the words of the statute "unless granted permission to leave by the Court or the Probation Officer." A review of the law in light of this wording is helpful.
McKinney's Consolidated Laws of New York, Book 1, Statutes, provides in Section 235 that "[u]se of the conjunction `or' in a statute usually indicates that the language is to be construed in an alternative sense;" and, continues ". . . in it elemental sense, the word `or' as used in a statute, is a disjunctive particle indicating an alternative, and often connects a series or words or propositions presenting a choice of either" (id. p. 401). See People v. Cubiotti, 4 Misc 2d 44, Matter of NY State Dept. of Tax and Finance, Colbent v. Intern. Sec. Bureau Inc., 79 AD2d 448, and McSweeney v. Baziner, 269 App.Div. 213, Aff'd. 295 NY 797.
The Court finds that the use of the word "or" in P.L. 65.10(3)(b) is being used ". . . in its elemental sense, the word `or' as used in [this] statute, is a disjunctive particle indicating an alternative . . . presenting a choice of either" the Court or the Probation Officer as having the authority to grant "permission to leave . . . the jurisdiction of the Court" (McKinney's Cons. Laws of NY, Book 1, Sec. 235, p. 401).
To construe the statute as argued by Probation that the granting permission for the defendant to travel outside this jurisdiction by the Court for work obligations make it an "illegal" sentence because only the Probation Officer can grant such permission would be an unreasonable interpretation of it.
In Statutes, at section 143, supra, it states ". . . . statutes must be construed in light of common sense," that "the legislature intended to enact only that which is reasonable, and that a reasonable result was intended by a statute" (id. p. 286).
P.L. 65.10(3)(b) requires that as a condition of probation the Court shall require the defendant to remain within its jurisdiction, but, the legislature also gave the Court authority to grant permission to leave as well as the probation officer. Thus, the Court has an equal right with the probation officer to grant such permission for relief from this mandated term that must be a required condition of probation. In "light of common sense . . . this is the "reasonable result intended by [the] statute" (id. p. 286).
Of course this change by the Court should be on notice to the probation department — as was done in this case — so the department can be kept informed of the defendant's residence or to otherwise monitor the situation as well as provide the probationer with any evidence such authorization has been granted by the Court. The point is that the Court had authority granted by the law to authorize the defendant's right to leave its jurisdiction equal to that of the probation officer and for it to do so did not make the sentence illegal.
PEOPLE V.M.P.
In People v. M.P., the defendant was placed on probation with the Jefferson County Probation Department on 1/24/02. On 2/14/02 the Probation Department presented an "Order of Intrastate Transfer of Probation Supervision" on Form DPCA-16. This form provided for the Court to "designate" as the "receiving department" Onondaga County Probation Department based on a local address of the probationer being in Syracuse, New York.
This Order also requested, by pre-marking with an X the box for this Court, that "[u]pon transfer of supervision to the receiving department, the Court served by the probation department to which supervision is transferred shall assume the powers and duties of the sentencing court and shall have sole jurisdiction in this case." This Court signed this Order without retaining "any of its powers and duties with respect to the supervision of said probationer" to "Syracuse City Court" as listed on the Order signed on 2/14/02.
Subsequently the Jefferson County Probation Department on 3/26/02 had returned to it from the Onondaga County Probation Department material forwarded to it pertaining to the probationer because apparently the probationer never resided at the Syracuse address as was represented to this Court on 2/14/02 when the Jefferson County Probation Department asked for the transfer of the probationer's supervision to Onondaga County and "sole jurisdiction of the case" to Syracuse City Court.
The issue is whether this Court can reassume jurisdiction of this case transferred to Syracuse City Court by Order dated 2/14/02 in order to address the probationer's violation of her conditions of probation. The Jefferson County Probation Department argues that CPL 410.80(1) and the "rules adopted by the direct of the State Division of Probation and Correctional Alternatives" referred to therein and promulgated in Part 349 of those rules vests this Court with jurisdiction over the probationer notwithstanding this Court's Order signed on 2/14/02 divesting itself of jurisdiction of the probationer's sentence when it transferred "sole jurisdiction of the case" to Syracuse City Court.
LAW
In People v. Kaslov, 126 Misc 2d 1067, the Court based on Browne v. County of Nassau, 37 NY2d 75, and a ". . . . 1973 Opns. Atty. Gen. 25, 26 (probation departments `are part of the executive branch of the County government and are no longer subject to the authority of the judicial branch of government') concluded that ". . . . judicial authority over a probation is limited to that provided in Article 410 of Criminal Procedure Law and related sections. . . .," concluded that ". . . . the Department is an executive branch agency . . . that . . . cannot be considered in any manner as part of the judiciary" (id.p. 126).
In People v. Eason, 49 AD2d 621, Justice Hopkins is his dissent made the following observations:
"Free government consists of three departments, each with distinct and independent powers, designed to operate as a check upon those of the other two co-ordinate branches. The legislative department makes the laws, while the executive executes, and the judiciary construes and applies them. Each department is confined to its own functions, and can neither encroach upon nor be made subordinate to those of another without violating the fundamental principle of a republican form of government" (Matter of Davies, 168 NY 89, 101-102, 61 N.E. 118,121, supra).
[. . .]
That does not mean that the three branches of government are completely independent of one another. The principle of constitutional import is not so much of the separation of powers, as it is sometimes referred to, but rather the distribution of powers, (see, e.g. . . .; Matter of Brown v. County of Nassau, 37 NY2d 75, 371 N.Y.S.2d 449, 332 N.E.2d 323 [dec. June 9, 1975]).
CPL 410.80Prof. Peter Preiser explained that before CPL 410.80 was enacted the Court had authority "to transfer the case of a person under probation supervision to another Court."(Preiser, Practice Commentary, McKinney's Cons. Law of NY, Book 11A, CPL 410.80, p. 365).
He said, however, because "of a lack of procedure to cope with violations and re-sentencing" it was "rarely" used. He said that when the CPL was enacted "[T]he purpose of the present section was to provide a simple, workable procedure" to fill this need (id. P. 365).
He pointed out the "tortured history of the five amendments to subdivision two" instigated by the State Division of Probation and Correctional Alternatives referring to his 1983 "Supplementary Practice Commentary" (id. p. 365).
He concluded in his 1988 Commentary "[A]mendments to this section since its original enactment . . . in 1971 have reshaped the basic concept of the transfer procedures of responsibility for only probation supervision and services (with retention of jurisdiction over sentence) to one that is primarily a transfer of court jurisdiction over sentence" (Preiser Supplementary Practice Commentary, supra, 1988, p. 129).
He went on to state that "[D]ue to this gradual change through engrafting amendments, the section as presently structured fits neither concept" suggesting what was needed was "a complete revision" of the section. (Id. P. 129) — an opinion he again expressed in his 1994 Commentary ". . . what subdivision two really needs is complete redrafting" (Preiser, supra, 1994, p. 365).
Transfer of Probation Supervision of Defendant
CPL 410.80(1) allows the Court to designate another probation department in the State "to perform the duties of probation supervision and may transfer supervision of the defendant there to [. . .] in accordance with the rules adapted by the Director of the State Division of Probation and Correctional Alternatives" Part 349.
CPL 410.80(2) (Transfer of Powers) opens, "[W]here supervision of a probationer is transferred pursuant to subdivision one. . . ." This is a clear statement that not until the procedures
8 outlined under Part 349 of the "adopted rules" can the Court then "in accordance" with them designate the next probation department to supervise the probationer and order the transfer to that department.
Transfer of Jurisdiction Between Courts
The sentencing court has historically had the right to transfer a case of a person on probation to another court (Preiser, supra, p. 365). CPL 480.10 recognizes that power giving the court two choices: "[T]he sentencing court may retain its power and duties with respect to the supervision of said probationer;" or it may transfer jurisdiction to a court serving the receiving probation department which "shall assume the powers and duties of the sentencing court and shall have sole jurisdiction in the case . . ." (CPL 480.10[2]).
The sentencing court may specifically order this jurisdictional transfer to the other court by a written order or sub silentio by not "indicating otherwise at the time" the transfer of probation order is signed by it.
In order to retain jurisdiction, however, the sentencing court must affirmatively so indicate "at the time" the transfer order is signed by the judge.
Part 349 and Form DPC A-16
The Probation Department's Form DPCA-16 is used for an intrastate transfer of a probationer's supervision from one department to another one in New York.
The standard form is presented to the Court when a proposed transfer is requested. The information on it states where the probationer's new address will be, the name of the department to which supervision will be transferred and the name of the court that serves this proposed transferee department. All this information is supplied by the probation department.
This form can be submitted to the court before or after the new residence has been verified by the procedures set out in Part 349 of the rules. If, in either case, the residency is not verified by the receiving department before or "after the sixtieth day the transfer order is received," the transfer becomes effective (DPCA-16 [3/04]).
In the event non-residency is found and notice is given to the sending department before the sixtieth day, the transfer is ineffective according to Part 349 of the rules.
Form DPCA-16 also provides a section specifically offering the three choices available to the sentencing court: to (1) retain jurisdiction, (2) retain some jurisdiction so specified thereon or (3) to transfer total jurisdiction as provided at CPL 410.80(2).
The Court may elect to indicate its preference by using this section on the DPCA-16 form, it can prepare and issue its own order or allow the automatic transfer of jurisdiction to the court serving the receiving probation department by the CPL 410.80(2) statutory presumption by not indicating otherwise "at the time of transfer."
Effective Date of Court's Orders
The goal of Part 349 of the rules is to have a verification of the probationer's residency in the receiving department's jurisdiction before it is obligated to accept the responsibility to supervise a new probationer. That can be done before the transfer order is signed, after it is signed and before "the sixtieth day after it is received" (DPCA-16[3/04] after which it is automatically effective.
If notice of non-residency is given to the sending probation department by the receiving probation department before "the sixteenth day" after the transfer order has been received or, if no order were issued before such a determination, then the sentencing court which has retained jurisdiction over the case at the time the order was signed or still has jurisdiction in the event no order was yet presented to it by the sending department pending confirmation of the defendant's new residency, has jurisdiction to deal with any issues arising from the defendant's failure to keep the probation department informed of a current address.
The sentencing court would also be the forum for the receiving Probation department if it had retained jurisdiction at the time the transfer order was signed and supervision over a defendant that had never resided in the receiving department's jurisdiction was acquired by default because it never notified the sending department within the period before the "sixtieth day."
In the case where the sentencing court signs the order transferring probation and at the same time signs an order transferring to the court serving the receiving probation department "sole jurisdiction in the case" whether by indicating such choice as provided on the DPCA-16 Form or by its own written order on a separate document, that order of the court takes effect immediately and not when as stated by Part 349 of the rules: "the transfer becomes effective" for the transfer of supervision of the probationer to the receiving department" once residency is verified before the sixtieth day after the order is received by the receiving probation department or automatically thereafter if no verification report is received by the sending probation department (DPCA-16 [3/04]) from it.
This is because since the ". . . Department is an executive branch agency . . . that . . . cannot be considered in any manner a part of the judiciary" ( People v. Kaslov, supra, p. 126). It is not within the power of the executive branch of government to determine the effect of a court's order transferring jurisdiction once it has been signed because "[E]ach department is confined to its own functions, and can neither encroach upon nor be made subordinate to those of another without violating the fundamental principle of a republican form of government" Matter of
11
Davies, 168 NY 89, 101-102 (cited in People v. Eason, supra, p. 623).
The placement in the DPCA-16 Form prepared by the Probation Department to implement Part 349 of the rules of a section for the Court to order transfer of the probationer's case to the court serving the transfer probation department named thereon or to elect to retain jurisdiction in the sentencing court by marking the Court's choice, does not subject the date the Court's Order transferring jurisdiction takes effect to Part 349 of the rules governing when the "transfer becomes effective" (DPCA-16 [3/04]) as between the sending and receiving probation departments. The Court's Order to transfer jurisdiction to the other Court takes effect once it is signed by the Court.
The fact that one transfer's effective date may not match up with the other date resulting in a premature change of courts before the defendant's change of residency is verified is a choice made by the sending probation department when it requested such of the Court of the DPCA-16
Form. This leaves open the possibility the receiving probation department may make a finding of "non-residency" and return the case back to it after a change in th Court's jurisdiction — as happened in this case.
Jefferson County Probation Department can only petition for a declaration of delinquency in the Court which has "sole jurisdiction in the case" Syracuse City Court. While the department may argue that Part 349 of the rules once adopted by the department "became law" that would be true only to the extent these administrative rules adopted by this executive agency as provided in CPL 410.80(1) do not infringe upon the effective date of a Court's Order. This is because "[E]ach department is confined to its own functions, and can neither encroach upon nor be made subordinate to those of another . . ." People v. Eason, supra p. 623).
12
In Kaslov the Court made this point saying that as the probation ". . . . department is an executive branch agency . . . [and] . . . can not be considered in any manner a part of the judiciary [branch]" (id. p. 126), so too the judiciary branch "cannot be considered in any manner a part of" the executive branch (Probation).
In conclusion to paraphrase Justice Garnett in People v. K.D., "the [position] of the [department], devised to exercise the Department's discretion, and argued here as justification of the Department's [position on the effective date of a court's jurisdiction based on the rules of Part 349], does not determine the . . . statutory obligation [of] the Court" (id. P. 779) vis-a-vis it's lack jurisdiction; and, ". . . [t]o the extent that the [department's] policy is not in conformity with the law, the policy is irrelevant" (id. P. 779).
The Court finds that it does not have jurisdiction of the case of M.P. having diverted itself of jurisdiction on 2/14/02 and transferred "sole jurisdiction in the case" to Syracuse City Court.
This Decision shall serve as the Judgement and Order in People v. Cory Hall and People v. M.P.