by
Janet C. Somes
Assistant Monroe County Public Defender

Jim's Eckert recently posted a column on consecutive sentences on misdemeanors (see). This post addresses an additional aspect of that issue

Sometimes courts try to extend a person's liability as far out as possible, and use probation on the second offense to do so by imposing a maximum sentence of a year or six months on one crime and imposing a probationary sentence on another. It is important for attorneys (and judges) to know that, in fact, it is impermissible to impose a probation sentence, where the court has imposed another sentence of over 60 days. In other words, a court may not use probation as a rider to extend a person's exposure where it is also imposing a sentence of more than 60 days.

Penal Law § 60.01(2)(d) provides that “[i]n any case where the court imposes a sentence of imprisonment not in excess of sixty days, for a misdemeanor . . . it may also impose a sentence of probation . . .” Even where sentences are imposed upon separate charges or counts, the provisions of Penal Law 60.01 (2)(d) apply to prohibit the imposition of a sentence of probation as to one charge, where a sentence of imprisonment in excess of the limits set forth therein (60 days for a misdemeanor) have been imposed on another charge (see People v Cerilli, 80 NY2d 1016 [1992][sentencing court’s imposition of probation, along with a term of incarceration on a separate charge in excess of that permitted under PL 60.01 (2)(d), prohibited]; People v Curkendall, 141 AD2d 891 [3d Dept 1988] [imposing sentence in excess of 60 days for misdemeanor and five year probation for felony did not comply with statutory proscriptions for sentencing on more than one crime]; People v Singh, 213 AD2d 568 [2d Dept 1995][impermissible to impose sentence of probation on one felony count and a sentence of imprisonment in excess of six months on another felony count - - appellate court vacated “split” and imposed the definite sentence only]; People v Bucci, 122 AD2d 562 [4th Dept 1986][sentencing defendant to intermittent incarceration in excess of four months on one charge, and probation on the other, prohibited]; People v McIntyre,135 AD2d 920 [3d Dept 1987] [sentencing defendant to incarceration in excess of six months for one felony count and probation on the other, prohibited]; People v Edwards, 108 AD2d 686 [2d Dept 1985] [sentencing defendant to incarceration in excess of 60 days for misdemeanor, and probation, prohibited]).

This prohibition applies even where crimes are unrelated, non-transactional and ordered to run concurrent or consecutive. The reason a court may not impose a concurrent sentence of probation on a defendant who is also sentenced to imprisonment on another charge is because probation is inappropriate for a defendant who is incarcerated as the basic purpose of probation is to provide supervision for an offender without removing him from the community (Cerilli, 80 NY2d 1016). And, a court may not impose a sentence of probation in any case, where a defendant has an undischarged sentence of incarceration of more than one year on a previous crime (Penal Law § 65.00 [1][b][iv]).