Pirro v. Angiolillo

• Decision Date: 18 December 1996
• Citation: 675 N.E.2d 1189,653 N.Y.S.2d 237,89 N.Y.2d 351
• Parties: , 675 N.E.2d 1189 In the Matter of Jeanine PIRRO, District Attorney of Westchester County, Appellant, v. Daniel A. ANGIOLILLO, as County Court Judge, Westchester County, et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 237

653 N.Y.S.2d 237

89 N.Y.2d 351, 675 N.E.2d 1189

In the Matter of Jeanine PIRRO, District Attorney of Westchester County, Appellant, v. Daniel A. ANGIOLILLO, as County Court Judge, Westchester County, et al., Respondents.

Court of Appeals of New York.

Decided Dec. 18, 1996.

Jeanine Pirro, District Attorney of Westchester County, White Plains (Richard Longworth Hecht and Richard E. Weill, of counsel), appellant pro se.

Dennis C. Vacco, Attorney-General, New York City (Carolyn Cairns Olson, Thomas D. Hughes and Michael Belohlavek, of counsel), for Daniel A. Angiolillo, respondent.

Marilyn J. Slaaten, County Attorney of Westchester County, White Plains (Annette G. Hasapidis-Marshall and Stacey Dolgin-Kmetz, of counsel), for Rocco Pozzi, respondent.

OPINION OF THE COURT

TITONE, Judge.

Authorized by Penal Law § 60.01(2)(d), a "split sentence" is one consisting of a term of imprisonment, intermittent or definite, combined with a term of probation or conditional discharge. The issue presented in this case is whether a definite sentence that was imposed in conjunction with a term of probation is a condition of or is subsumed within the probationary part of the sentence so that it can be modified, reduced or even eliminated pursuant to the discretionary authority conferred by CPL 410.20. Having reviewed the statutory language and relevant legislative history, we conclude that the imprisonment part of a split sentence is a penalty that exists separate and apart from the probationary term and that, accordingly, it may not be altered once its service has begun.

The criminal prosecution underlying this proceeding was initiated against respondent Bryan Cohen on April 29, 1994. Cohen was charged in a felony complaint with having stolen some $5,742 from one of his insurance clients. According to the People, Cohen's wife also had a role in the thefts although she was not formally charged. Cohen was also believed to have stolen over $57,000 from two other clients.

After two days of plea negotiations, Cohen consented to waive indictment and to be prosecuted instead on a superior court information charging him with third degree grand larceny. In exchange for his plea of guilty to the reduced larceny charge, Cohen was promised a sentence consisting of four weekends of intermittent incarceration and five years' probation, provided that he met his obligation to make full restitution. If that obligation was not satisfied, it was understood that Cohen would be sentenced to a maximum of six months' incarceration and five years' probation. As an additional term of the plea agreement, the People promised not to prosecute Cohen's wife. Cohen failed to make the required restitution payments before the scheduled sentencing date. As a result, respondent County Court Judge sentenced him to a six-month term of "shock" incarceration to be served concurrently with a five-year probationary term.

Three weeks after Cohen began serving his sentence, he moved for a "modif[ication of] the terms and conditions of [his] probation." Citing personal difficulties, Cohen sought a reduction in the previously imposed term of incarceration to either time served or weekend incarceration. After Cohen's motion was made, the Westchester County Department of Probation separately petitioned the sentencing court to "modify" the conditions of Cohen's probationary term by substituting a period of home confinement with electronic monitoring for the previously imposed term of incarceration.

Having been served with notice of Cohen's motion, the People appeared to oppose the motion, arguing primarily that CPL 430.10 prohibited the court from changing a lawful sentence of imprisonment once service of the sentence has commenced. Respondent Judge rejected the People's arguments and, relying on CPL 410.20, ordered that Cohen be released from jail, substituting for the jail term a six-month period of home confinement with electronic monitoring. ¹

Following the issuance of this order, the Westchester County District Attorney took a direct appeal, purportedly under CPL 450.30(3). She also brought the present collateral CPLR article 78 proceeding seeking a judicial directive prohibiting the enforcement of the Judge's order. ² In support of both her appeal and her petition, the District Attorney argued that the Judge had exceeded his authority by using CPL 410.20, the procedural mechanism for modifying conditions of probation, as a predicate for eliminating the incarceration portion of Cohen's sentence.

The Appellate Division rejected petitioner's argument, holding that prohibition was unavailable because the District Attorney had "failed to demonstrate a clear legal right to the relief sought" (222 A.D.2d 438, 635 N.Y.S.2d 510). At the same time, the Court dismissed the People's direct appeal from the order issued in the criminal case on the ground that "the People do not possess the right to appeal from an order lawfully modifying a condition of probation pursuant to CPL 410.20" (People v. Cohen, 222 A.D.2d 447, 448, 635 N.Y.S.2d 38, citing CPL 450.20, 450.30[2], [3] ). In so ruling, the Court stated its view on the merits, opining that the incarceration portion of a "split sentence" is a "condition of" the term of probation and, as such, may subsequently be modified by the sentencing court (People v. Cohen, supra, at 448, 635 N.Y.S.2d 38). This Court subsequently granted the District Attorney leave to appeal from the dismissal of her article 78 petition. ³ As a threshold matter, we hold that anarticle 78 proceeding seeking relief in the nature of a writ of prohibition was the appropriate procedural vehicle for the assertion of petitioner's claim. While a proceeding for prohibition relief is unavailable to review an error of law, "however egregious and however unreviewable" (Matter of State of New York v. King, 36 N.Y.2d 59, 62, 364 N.Y.S.2d 879, 324 N.E.2d 351), that remedy "is available * * * 'to prevent a court from exceeding its authorized powers in a proceeding over which it has jurisdiction' " as well as to challenge the court's subject matter jurisdiction over the proceeding as a whole (Matter of Holtzman v. Goldman, 71 N.Y.2d 564, 569, 528 N.Y.S.2d 21, 523 N.E.2d 297, quoting La Rocca v. Lane, 37 N.Y.2d 575, 578-579, 376 N.Y.S.2d 93, 338 N.E.2d 606). Since petitioner's contention was that the Judge was without the power to alter Cohen's term of incarceration, her choice of aCPLR 7801proceeding to test the merits of her position was the correct one. ⁴ It remains for us to consider the separate question of whether under the circumstances the extraordinary writ of prohibition lies. In that regard, the question of whether petitioner has established a clear legal right to that relief is critical (see, e.g., Matter of Holtzman v. Goldman, supra, at 569, 528 N.Y.S.2d 21, 523 N.E.2d 297).

Resolution of this question requires an inquiry into the relationship between the term of incarceration and the probationary term that are imposed as part of a split sentence pursuant to Penal Law § 60.01(2)(d). As a general principle, once its service has begun, a sentence of continuous incarceration cannot be interrupted or modified except as specifically authorized by law (CPL 430.10). In contrast, a sentence of probation or intermittent incarceration is revocable and may be modified at any time before its expiration (Penal Law § 60.01[2]; § 85.05; see, CPL 410.70[5] ). Under CPL 410.20(1), "[t]he court may modify or enlarge the conditions of a sentence of probation" without notice to the People, although the defendant must be notified and be personally present if the modification is adverse to him.

Respondents contend that the incarceration portion of a "split sentence" is really nothing more than a condition of probation and that, consequently, it may be reduced or even eliminated pursuant to this provision, without notice to the People, if the court deems such a modification appropriate. As authority for this position, respondents rely almost exclusively on a 1978 amendment to Penal Law § 60.01(2)(d) (see, L.1978, ch. 274). ⁵ That amendment added the following italicized language:

"In any case where the court imposes a sentence of imprisonment * * * not in excess of six months for a felony * * * it may also impose a sentence of probation * * * provided that the term of probation * * * together with the term of imprisonment shall not exceed the term of probation * * * authorized by [Penal Law article 65]. The sentence of imprisonment shall be a condition of and run concurrently with the sentence of probation" (Penal Law § 60.01[2][d] ).

Although a literal and out-of-context reading of the added sentence might support the view that the "sentence of imprisonment" is "a condition of" the "sentence of probation," a closer analysis of the amendment's history and of the statutory scheme as a whole makes clear that the incarceration portion of a split sentence was never intended to be subordinate to the probation portion, nor was it intended to be modifiable in the same way that the terms of the probationary sentence are. "The letter of a statute is not to be slavishly followed when it leads away from the true intent and purpose of the Legislature" (McKinney's Cons. Laws of N.Y., Book 1, Statutes § 111, at 226-227).

Initially, the language of the statute as a whole belies respondents' proposed interpretation. The first sentence of the statute states that the court "may also impose a sentence of probation" "[i]n any case where the court imposes a sentence of imprisonment" (emphasis supplied), thereby suggesting that in split sentencing decisions the term of incarceration was intended to be the fixed or core element and the probationary sentence was intended to be the flexible variable. Given this hierarchy, treating the sentence of imprisonment as a modifiable condition of probation "puts the 'cart before the horse' " (see, Antinore v. Genesee County Local...