Antinore v. Genesee County Local Conditional Release Com'n

• Decision Date: 03 January 1990
• Citation: 146 Misc.2d 520,551 N.Y.S.2d 733
• Parties: Samuel ANTINORE, Petitioner, v. GENESEE COUNTY LOCAL CONDITIONAL RELEASE COMMISSION, Respondent.
• Court: New York Supreme Court

Page 733

551 N.Y.S.2d 733

146 Misc.2d 520

Samuel ANTINORE, Petitioner, v. GENESEE COUNTY LOCAL CONDITIONAL RELEASE COMMISSION, Respondent.

Supreme Court, Genesee County.

Jan. 3, 1990.

Clark J. Zimmermann, Batavia for petitioner.

John L. Rizzo, Genesee County Atty., for respondent.

CHARLES F. GRANEY, Justice.

Samuel Antinore, the petitioner herein, was previously sentenced by the Genesee County Court to a period of five years' probation, the first six months of which were to be served in the Genesee County Jail. This disposition is authorized by Section 60.01(2)(d) of the Penal Law. The petitioner commenced this period of incarceration on October 23, 1989. Subsequently the petitioner applied for conditional release pursuant to Section 70.40(2) of the Penal Law as amended by Chapter 79, Laws of 1989. The petitioner's application was rejected by the respondent on the basis that the petitioner was not eligible for release because he was not serving a "definite sentence".

Petitioner now applies to this Court pursuant to Article 78 of the CPLR for an order setting aside the decision of the respondent and granting the release of the petitioner. This Court may vacate the respondent's determination if it finds it was affected by an error of law (see, CPLR, Section 7803(3)).

The respondent based its determination upon a memorandum of the Division of Probation and Correctional Alternatives. That memorandum advises that a sentence such as that imposed upon the petitioner is not a "definite sentence" for purposes of conditional release. That determination apparently relies on a sentence in Section 60.01(2)(d) of the Penal Law which states that "The sentence of imprisonment shall be a condition of and run concurrently with the sentence of probation ...". It reasons that, since a sentence of probation is a revokable sentence, the term of imprisonment imposed on the petitioner is not a "definite sentence". This interpretation was adopted by the Supreme Court, Nassau County in the case of Bracken v. Nassau County Conditional Release Commission, 146 Misc.2d 265, 550 N.Y.S.2d 535.

This Court respectfully disagrees with the Bracken decision and the determination of the Division of Probation and Correctional Alternatives. Their analysis puts the "cart before the horse" and overemphasizes the fact that by operation of Penal Law Section 60.01(2)(d) the sentence of imprisonment is made a condition of probation, if probation is also imposed. The portion of Section 60.01(2)(d) that should be emphasized is that portion which reads "In any case where the Court imposes a sentence of imprisonment ..." The statutory scheme does not permit a sentence of probation with a condition of incarceration. Rather it permits a sentence of probation to be added to a sentence of imprisonment in certain situations.

In the instant case, the petitioner was sentenced pursuant to Penal Law Section 70.00(4). That section provides for a definite sentence. The sentence of imprisonment stands on its own feet. This Court...