People v Cagle, __ AD3d __ [available here.]
For purposes of sentencing a defendant as a second felony offender, the sentence on the prior felony conviction must be imposed "not more than ten years before the commission of the [present] felony." (People v Cagle, __ AD3d at __, citing Penal Law 70.06[b][iv].) However, any time that a defendant spends "incarcerated" does not count for purposes of computing this 10-year timeframe. (Penal Law 70.06[b][v].) In a 3-2 decision, the Fourth Department has held that any time a defendant spends out of physical custody in a day reporting work release program nevertheless counts as "incarceration" for purposes of tolling the 10-year period. From the decision:
We conclude that the tolling provision applies to the period of time in which defendant was in the day-reporting work release program inasmuch as he remained under the control and custody of the Department of Correctional Services. Furthermore, the period of time in which defendant was in that program was credited toward his sentence of imprisonment. We thus conclude that the tolling provision applies thereto.
(Id. at __.)
Justices Martoche and Pine dissented:
We disagree with the majority and instead agree with the Second Department that the statute is unambiguous and applies only to a defendant who is physically incarcerated. [...] While we agree with the majority that defendant remained in the control and custody of the Department of Correctional Services, we conclude that such control and custody is not the equivalent of incarceration for purposes of the statute. A person who is incarcerated necessarily is in the control and custody of law enforcement officials, but a person who is in the control and custody of law enforcement officials is not necessarily incarcerated.
(Id. at __.)
The Cagle decision sets up a split with the Second Department over the correct definition of "incarceration" for recidivist sentencing purposes, making the issue seemingly ripe for the Court of Appeals.