Chapter 159 of the Laws of 1998 and Chapter 216 of the Laws of 1999 respectively add and amend subdivision six of Section 390.30 of the Criminal Procedure Law, governing scope of presentence investigations and reports. The additions and amendments were designed to recognize the authority of local probation to supervise certain convicted defendants prior to formal sentencing under Interim Probation Supervision (IPS) and the ability to impose mandatory and additional permissive IPS conditions. The text of the entire Chapter 159 addition is reflected below, and Chapter 216 changes are in bold text:
"6. Interim Probation Supervision. In any case where the court determines that a defendant is eligible for a sentence of probation, the court, after consultation with the prosecutor and upon the consent of the defendant, may adjourn the sentencing to a specified date and order that the defendant be placed on interim probation supervision. In no event may the sentencing be adjourned for a period exceeding one year from the date the conviction is entered. When ordering that the defendant be placed on interim probation supervision, the court shall impose all of the conditions relating to supervision specified in subdivision three of section 65.10 of the penal law and may impose any or all of the conditions relating to conduct and rehabilitation specified in subdivisions two, four and five of section 65.10 of such law; provided, however, that the defendant must receive a written copy of any such conditions at the time he or she is placed on interim probation supervision. The defendant's record of compliance with such conditions, as well as any other relevant information, shall be included in the presentence report, or updated presentence report, prepared pursuant to this section, and the court must consider such record and information when pronouncing sentence."
Section 243 of the Executive Law authorizes the State Director of Probation and Correctional Alternatives to exercise general supervision over probation departments and correctional alternatives programs throughout New York State. The State Director is authorized to provide guidance for methods and procedures in the administration of local probation departments and other correctional alternative programs. As a result of this authority, the state maintains a statewide oversight system for the functions of probation services, providing continual development, refinement and revision of statewide standards of practice and providing technical assistance to local programs through training, model policies and procedures, and programmatic guidelines.
These guidelines are applicable to any probation department utilizing IPS for defendants, wherein the criminal court has adjourned sentencing to a specified date, not to exceed one year, from the date the conviction was entered, by virtue of the defendant's plea or a finding of guilt. The use of interim probation supervision is only applicable if prior consent of the defendant has been secured.
This law originally went into effect October 5, 1998; the modification allowing inclusion of PL §65.10(4) & (5) became effective October 4, 1999.
Any interim probation supervision service should be designed to achieve the following objectives:
- Development of a mechanism through which the court may adjourn a case for up to one year;
- Provision to the Courts of an appropriate release option, in a manner consistent with public safety;
- Provision of relevant information to assist courts in making sound sentencing decisions, that will incorporate graduated sanctions and services, in the interests of public safety and offender rehabilitation;
- Establishment of a record of compliance with interim conditions and any other relevant information, to be included in the pre-sentence report or the pre-sentence supplemental report, for the review and consideration of the Court, when pronouncing the sentence; and
Establishment of a mechanism that will allow the defendant to continue support for dependants in order to continue to meet family responsibilities and generally, to maintain community ties.
VI.Program Operational Principles
- Interim Probation Supervision (IPS) is not a sentence of probation. It is a voluntary agreement entered into by a defendant eligible for a probation sentence to demonstrate compliance with terms and conditions of the interim supervision period, which will help the court determine whether the defendant should receive a sentence of (a) conditional discharge, (b) probation, (c) fine, (d) or combination thereof, in lieu of incarceration.
- A satisfactory finding of the defendant's IPS period at the time of sentencing should be a major factor in the court's determination of a defendant's suitability towards an appropriate non-incarcerative sentence (i.e. probation).
- IPS is an investigative and sentencing tool to assist public officials and the court in determining whether a sentence of probation is consistent with the interest of justice. There should be mutual consideration among the prosecutor's office, local probation departments, the court and defense counsel to carefully weigh whether the eligible and consenting defendant might not otherwise be considered for a sentence of probation without IPS.
- Courts should be sensitive to the resources of probation departments and not ordinarily use IPS as an additional sanction upon individuals who would normally receive a sentence of probation in order to lengthen the period of probation supervision.
- There exists no statutory language which allows an IPS defendant to receive credit for time spent under IPS towards the final sentence which the court may impose, nor is there specific IPS authorization for the case to be dismissed upon satisfactory completion of IPS.
Any interested probation department should establish objective eligibility criteria for determining suitability for this release option. Such eligibility criteria shall consider the following:
- the criminal history of the defendant;
- the current criminal offense;
- community ties and likelihood of compliance with mandatory and/or authorized probation-related conditions of the IPS period;
- an assessment of the defendant's risk to the community and needs for rehabilitative services;
- whether the nature and circumstances of the crime and the history, character and condition of the defendant indicates that the individual might appear to meet criteria of a probation sentence, namely that institutional confinement may not be necessary for the protection of the public; that the defendant is in need of guidance, training or other assistance which can be effectively administered through probation supervision, and that probation release is consistent with the ends of justice.
- the requirement that the defendant must be at least 16 years old or juvenile offender otherwise eligible for youthful offender consideration [see, CPL §720.10 (1)];
- include the requirement of the defendant's consent to the nature and type of IPS conditions;
- not discriminate against any individual in accordance with the New York State Human Rights Law (Article 15 of the Executive Law);
- be consistent with State statute and applicable case law relative to probation eligibility and supervision requirements.
IPS shall not be considered as a disposition of a probation violation case nor can an inmate eligible for local conditional release secure IPS in lieu of imprisonment.
B.The Interim Supervision Order
IPS can be ordered in any case where the Court determines that the defendant is eligible for a sentence of probation, after consultation with the prosecutor and upon the consent of the defendant. Sentencing may be adjourned for a specified period, not to exceed one year from the date the conviction is entered. The order must specify mandatory conditions of release identical to those imposed upon all probationers sentenced in criminal court [see, PL §65.10 (3)] and may require certain other permissive conditions which similarly may be imposed upon these probationers [see, PL §65.10 (2), (4) & (5)]. Attached as Appendix A is a recommended sample form of the terms and conditions of IPS.
C.Advocacy & Administrative Procedures
- IPS can be initiated from several different sources. The court, prosecuting attorney or defense bar may wish to present the opportunity of IPS to the defendant for his or her voluntary agreement. Otherwise the local probation department or another locally based service provider (i.e. pre-trial, defender-based advocacy, community corrections agency), may wish to consider advocating an order of IPS.
- The law itself does not require that a presentence or preplea report be prepared prior to judicial imposition of IPS. Instead, it states that the defendant's record of compliance and any other relevant information be included in the presentence report or updated presentence report prepared for final sentencing purposes. Local probation should have the opportunity to assess suitability of a person to IPS, as well as to obtain advance knowledge of the pending imposition of IPS. It is preferable that local probation be initially involved through either preparation of such a report or a streamlined version of relevant information. In this way, an informed plea-bargain and/or judicial decision will be rendered and appropriate release conditions can be recommended and imposed.
- Interested jurisdictions should consider developing local procedures for IPS with their local probation department for reasons stated above since this law subjects individuals to IPS under probation's supervision during the period of legal custody by the court.
Probation departments with responsibility and/or interest in providing IPS should consider:
- establishing procedures to monitor defendant's terms and conditions of IPS and documenting the defendant's progress throughout this interim period;
- completing a pre-sentence investigation report or supplemental report at least 30 days prior to the expiration of the IPS period;
- maintaining protocols and linkages of communication and collaboration between probation, prosecutors, defense bar, and the judiciary as to who will initiate IPS consideration and under what circumstances; who will prepare the interim supervision order; and, whether an initial pre-sentence investigation will be necessary for such purpose;
- addressing the communication linkages between the pre-sentence investigation unit and the supervision unit of the probation department for those IPS defendants whose sentences ultimately result in a disposition of probation;
- facilitating the requisite registration and subsequent risk assessment and testing, where applicable, of a IPS defendant who meets the definition of "sex offender" and/or "designated offender" and are subject to the Sex Offender Registration Act and/or DNA testing laws.
- ensuring that the court at sentencing is advised regarding the need to complete a SORA risk level assessment , impose DNA testing, and/or any fine or mandatory surcharge, upon a defendant, where applicable.
VIII.Imposition of Conditions
When a period of interim supervision is ordered, the Court shall impose all conditions as set forth in Section 65.10 subdivision 3 of the Penal Law and may impose conditions as set forth in Section 65.10 subdivision 2, 4 & 5 of the Penal Law. The defendant must receive a written copy of these conditions and it is important that local probation review IPS conditions with the defendant and instruct the defendant on their content and application. The signature of the IPS defendant should be secured on the signed IPS court order following the conditions of release.
A.Mandatory Conditions of Interim Probation Supervision
The law requires that the court impose and the defendant to be subject to the same mandatory conditions imposed upon a defendant who receives a sentence of probation. These conditions, enumerated in Section 65.10(3) of the Penal Law, are as follows:
- report to the probation officer as directed by the court or the probation officer;
- remain within the jurisdiction of the court unless given permission to leave by the court or the probation officer;
- answer all reasonable inquiries of the probation officer and notify the probation officer prior to any change of employment or address.
B.Permissive Conditions of Interim Probation Supervision.
1. The IPS law permits the court to impose and subject the defendant to any of the same permissive conditions imposed upon a defendant who receives a sentence of probation. Prior to October 4, 1999, it only authorized conditions specified in Section 65.10(2) of the Penal Law, which relate to conduct and rehabilitation. As of October 4, 1999, however, the court is permitted to impose the conditions of electronic monitoring under subdivision four and any other reasonable conditions the court deems necessary to "ameliorate the conduct which gave rise to the offense or to prevent incarceration of the defendant" under subdivision five. Attached as Appendix B is Section 65.10 for easy reference and which details allowable permissive conditions. These conditions may include, but are not limited to:
- avoid injurious or vicious habits;
- refrain from frequenting unlawful or disreputable places or consorting with disreputable persons;
- work or pursue a course of study or vocational training;
- support dependents and meet other family responsibilities;
- payment of restitution or reparation, including a designated surcharge;
- performance of community service, where the defendant is convicted of any misdemeanor or class D or class E felony, or where there is a youthful offender finding replacing any such conviction;
- post a bond or other security for performance of any or all conditions imposed;
- adherence to Specified Conditions of Conduct set forth in an Order of Protection;
- undergo available medical or psychiatric treatment;
- participate in an alcohol or substance abuse program or an intervention program;
- imposition of an Ignition Interlock Device;
- satisfy any other condition reasonably related to rehabilitation;
- Submit to the use of an electronic monitoring device and/or follow a schedule that governs daily movement (See VII, C, 1, below);
- Comply with any other reasonable condition the court determines to be necessary to ameliorate the conduct giving rise to the offense or to prevent incarceration.
C.Other Special Conditions
1.Electronic Monitoring & Certain Other Reasonable Conditions
The changes in IPS brought about by Chapter 216 of the Laws of 1999 add the permissive conditions contained in subdivisions four and five of Section 65.10 to the conditions which may be imposed under CPL §390.30(6). Effective October 4, 1999, imposition of electronic monitoring and/or any other reasonable condition necessary or appropriate to ameliorate the conduct which gave rise to the offense or to prevent incarceration is expressly authorized. Electronic monitoring must be used in accordance with uniform procedures developed by DPCA. Attached as Appendix C is DPCA's Electronic Monitoring Procedures
An example of a reasonable condition under subdivision five would be a condition subjecting a convicted defendant to search of his person, residence, property or any area under his/her control.
Communication with the Division of Criminal Justice Services (DCJS) has determined that since Executive Law Article 49-B subjects only a "designated offender" to DNA testing and this term requires that a person be convicted of and sentenced for certain crimes, this testing requirement is not applicable to IPS defendants convicted of enumerated crimes during this period of supervision because they have not yet been sentenced.
3.Sex Offender Registration Act Compliance
a. With respect to the Sex Offender Registration Act, Correction Law Article 6-C, commonly referred to as SORA, the Division communicated with DCJS on this matter for their legal determination. It was viewed that the duty of a "sex offender" defined under this Act to register is separate and distinct from the duty of the court to determine the duration of registration and level of notification of offenders. Section 168-a (1) defines sex offender as a person convicted of certain enumerated crimes. Section 168-d(2) requires sex offenders to register with DCJS within ten calendar days of being "released on probation". Since defendants under IPS are convicted and under probation supervision and the court is releasing them to IPS, defendants meeting the definition of sex offender must register under SORA within the ten calendar days of their IPS release. Pursuant to Section 168-d(2) compliance with requirements of this Article, including registration must be a condition of the IPS order. Should registration not occur until sentencing, sex offenders under IPS would be at liberty for up to one year and would not be on the Sex Offender Registry, which would be in conflict with public safety and protection purposes of SORA.
b. Moreover, it is the court's responsibility to determine the risk level of a sex offender released on probation in accordance with Section 168-d(3) generally at the time of sentencing . It is preferable to make this determination at the time of sentencing and it would be consistent with Section 168-l and SORA's Risk Assessment Guidelines and Commentary to more effectively carry out the purposes of SORA. If the risk level were made at the time of initial release under IPS there would be incomplete information as to the level of supervision when ultimately sentenced and no information on conduct or adjustment while under supervision would be available. If the defendant performs poorly, there is also not express legal authority to revise the risk level even though circumstances might justify a revised risk level.
c. Accordingly, the court must ensure proper registration of any IPS defendant who meets the "sex offender" definition. Since the risk assessment ought not to occur until sentencing, the box indicating "pending" must be marked on the registration form. All other procedures with respect to SORA must be followed (e.g. fingerprinting, photograph, and transmittal of registration form with other material to DCJS, and appropriate notification of change of address).
IPS defendants are also not subject to fines or mandatory surcharge because of their nonsentenced status. Applicable laws in this area require that defendants be convicted and sentenced before such financial obligations are imposed.
5.Modification of Conditions
While the IPS law does not refer to modification of conditions, it appears reasonable that the court has the authority to modify conditions where appropriate and upon consent of the IPS defendant.
It is preferable not to transfer cases while under IPS since the intrastate and interstate statute does not explicitly refer to these types of cases. IPS ought not to be utilized where the other local jurisdiction does not use IPS. However, in the event IPS is being considered with respect to a defendant who resides or plans to reside in another local jurisdiction within New York State, the sending probation department should immediately notify the receiving probation department to discuss transfer of the monitoring function. Formal documentation of a transfer should be in writing and the same procedures with respect to intrastate transfer of cases are applicable. There is, although, no authority for the court itself to transfer jurisdiction of the case in such matters. If an interstate transfer is appropriate, the sending probation department ought to clearly demarcate the type of case so that DPCA's Interstate Office can alert the receiving State of the pending status of this IPS case.
X.Monitoring of Conditions
All probation departments engaging in IPS services should establish formal written policies and procedures:
- To ensure a reasonable assignment of probation officer duties and responsibilities in regards to the manner of enforcement of the court order and related conditions;
- To ensure timely response and court notification for those defendants who have not complied with the IPS court order;
- To identify a range of actions to be taken when defendant non-compliance is observed, from least to most punitive, including probation officer reprimand to immediate court notification with recommendation of remand to custody where appropriate;
- To establish a protocol of court notification regarding compliance with conditions of IPS, including successful completion of sanction and treatment conditions, recommendations for early termination of the IPS period, and incorporation into the pre-sentence investigation report or supplemental updated report.
Monitoring of the defendant's compliance with the terms and conditions of IPS will, at a minimum, entail an initial face-to-face meeting to review the condition of the placement and to obtain the voluntary agreement of the defendant; regular telephone contact with the defendant; regular collateral contacts with any service or treatment provider where referrals have been made to address a service need; periodic review of arrest records to detect and verify any new arrests; and, generally, the specific enforcement of the special terms and conditions of the court order. Local probation may choose to follow the Division's supervision rule ( 9 NYCRR, Part 351) , but is not required to adhere to this rule. Local probation departments, exercising good professional practice, may have auxiliary personnel perform monitoring responsibilities under the supervision of a probation officer. Preferably, experienced probation officers or probation officer trainees should be assigned to supervise these defendants.
XI.Non-compliance to terms and conditions of IPS
If the defendant does not comply with the terms and conditions of the IPS period, a violation of probation is not appropriate. Rather a conduct report should be submitted to the court at any time during the IPS period and it must be incorporated as part of the pre-sentence investigation or updated probation report to the court for purposes of sentencing. At a minimum, DPCA recommends that local probation follow the Division's violation of probation rule (9NYCRR Part 352) in terms of providing court notification within 7 business days of a probation department's knowledge of a new conviction, or determination of Absconder status or other significant violation by an IPS defendant. In view of the relatively short time that the person is under IPS and has remaining before sentencing, local probation should also consider timely notification by the court of a subsequent felony or misdemeanor arrest of an IPS defendant, and court notification within 90 days where an IPS ceases or terminates alcohol or substance abuse treatment or counseling.
Should the court establish a restitution order for the defendant, issue an order of protection against the defendant, or require community service as an IPS condition, local probation must ensure appropriate monitoring of such conditions and should notify the court of non-compliance in a timely manner.
XII.Reporting to DPCA
Local probation departments with IPS cases must report these cases in the following manner to DPCA so that the agency can have accurate information on utilization and follow-up of these cases :
- Use the attached instructions relating to the DP-30A monthly report of the criminal workload in probation departments ( See APPENDIX D)
- Register each IPS case into the Probation Registry using code number 07.