| People v White |
| 2010 NY Slip Op 08808 [79 AD3d 1160] |
| December 2, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Aditep White,Appellant. |
—[*1] Kevin C. Kortright, District Attorney, Fort Edward, for respondent.
Kavanagh, J. Appeal from a judgment of the County Court of Washington County (McKeighan,J.), rendered July 17, 2009, which revoked defendant's probation and imposed a sentence ofimprisonment.
In 2003, defendant was charged in three separate accusatory instruments filed in two differentcounties—Warren and Washington—with forging and fraudulently negotiating checks hehad stolen from his parents. He eventually entered guilty pleas to charges contained in each accusatoryinstrument and received sentences in each county that included a period of incarceration, a term ofprobation and a requirement that he make full restitution.[FN1]After [*2]defendant served his jail sentence, he was placed under thesupervision of the Washington County Probation Department and began to make restitution. Whendefendant failed to fulfill this obligation, two petitions were filed against him—one alleging that heviolated the terms of his probation in Warren County and the other claiming that he did not abide by theterms of the restitution order issued in Washington County. While these petitions were pending,defendant made full restitution on the Warren County probation and that petition was withdrawn. Yet,some eight months later, defendant entered an admission in Washington County Court that he violatedhis Warren County probation by failing to make restitution, and was resentenced to 1 to 3 years inprison. Defendant now appeals.
Defendant claims that his period of probation imposed in Warren County had expired when theviolation was filed and, as a result, County Court was without authority to vacate his probation andimpose a new sentence. In Warren County, as noted, defendant was sentenced to six months in jail tobe followed by five years of probation. The jail sentence was specifically ordered to run concurrentlywith the jail sentence defendant had already begun to serve in Washington County, and he was toreceive credit for time already served. The terms of this sentence, in effect, meant that defendant'sprobation sentence in Warren County began not on October 6, 2003 when it was imposed, but byAugust 5, 2003, while defendant was serving his Washington County jail sentence.
CPL 410.30 provides that a declaration of delinquency may be filed "at any time during the period. . . of probation" (see People vZephrin, 14 NY3d 296, 299 [2010]). Moreover, "where a defendant has been incarceratedpending sentencing and, as a result, receives credit for time served," a term of probation that is anintegral part of such sentence "is also reduced by the period the defendant was incarcerated prior tosentencing" (People v Zephrin, 14 NY3d at 300-301; see Penal Law § 70.30[3]). Since defendant had been in jail in Washington County on his sentence since—at thelatest—August 5, 2003, the probationary sentence imposed in Warren County is deemed tohave commenced, at the very latest, on that date and not, as the District Attorney argues, on the datethat the sentence was actually imposed.[FN2]Therefore, defendant's period of probation in Warren County ended no later than August 5, 2008, ormore than one month prior to the petition that was filed on September 23, 2008 claiming he hadviolated probation. As a result, County Court lacked any authority to proceed on that violation (see People v Teddy W., 56 AD3d697, 698 [2008], lv denied 12 NY3d 860 [2009]), and the judgment revokingdefendant's period of probation and imposing a new sentence must be reversed.
Moreover, we also find that it was error for County Court to have proceeded on defendant'sadmission to violating the terms of his Warren County probation when the underlying petition had beenwithdrawn and defendant had already fully complied with his obligation to [*3]make restitution. As a result of the conclusion reached herein, we neednot address defendant's remaining claims.
Peters, J.P., Spain, Lahtinen and Garry, JJ., concur. Ordered that the judgment is reversed, on thelaw, and violation of probation petition dismissed.
Footnote 1: In Washington County, defendantwas sentenced on August 5, 2003 on his guilty plea to grand larceny in the third degree (two counts)and petit larceny, to a total of one year in prison, plus five years of probation, and was ordered to makerestitution. In Warren County, defendant was sentenced on October 6, 2003 on his guilty plea tocriminal possession of a forged instrument in the second degree to six months in jail and five years ofprobation, with a condition that he make restitution. It was specifically provided that this jail sentencewould run concurrently with the jail sentence defendant had already begun to serve in WashingtonCounty and that he would receive credit for time served.
Footnote 2: While there is some dispute as towhen defendant was incarcerated, the record is clear that he was incarcerated, at the latest, by August5, 2003, when he was sentenced in Washington County.