People v Cagle, 20906 NY Slip Op 08633 [available here]
The Court of Appeals holds today that the day reporting (or work release) portion of a defendant's sentence counts as "incarceration", and such periods count as part of the tolling period when calculating the 10 years between felony convictions for purposes of recidivist sentencing. (See People v Cagle, 2006 NY Slip Op 08633.) From the majority decision (written by Chief Judge Kaye):
An inmate in a day-reporting program, under the applicable statutes and regulations, enjoys "extended bounds of confinement." An approved inmate who has successfully participated in a work release program, completed furloughs to an approved residence and is either within six months of becoming eligible for parole or has one year or less to be served under his sentence, may be assigned from a work release facility to a residential treatment facility to participate in a program of continued employment. While residing at an approved residence, the inmate is required to report to the facility or other designated reporting location, to undergo frequent drug tests and, where appropriate, to participate in other rehabilitative programs.
Moreover, before acceptance into a day-reporting program, an inmate must sign both a memorandum of agreement and copy of the day-reporting rules. These documents specify that participation in the program "is a privilege which may be revoked at any time" and that the inmate "remain[s] in the custody of [DOCS]." The program imposes reporting duties and travel restrictions, including prior approval requirements for any method of transportation the inmate uses, for obtaining a driver's license and for having a motor vehicle. Permission is also required before participants take any medication (except in exigent circumstances), obtain a credit card or enter into a contract, and they must surrender the full amount of their employment earnings to the day reporting center for documentation and proper deductions. Thus, inmates in day-reporting programs are merely granted the revocable privilege of serving their sentences of imprisonment under less strict conditions of supervision than other prisoners under lock and key.
Focus on the plain purpose of Penal Law § 70.06 also leads us to reject defendant's argument. The statute is intended "to deter recidivism by enhancing the punishments of those who, having been convicted of felonies, violate the norms of civil society and commit felonies again." To avoid enhanced punishment, prior felons must demonstrate their ability to live within the norms of civil society for ten years. Plainly, time spent serving a sentence of imprisonment does not satisfy this requirement. That the Legislature has spoken in terms of time "incarcerated" does not compel us to limit the term to "behind bars." Rather, we conclude that defendant should be considered incarcerated until he completed his sentence of imprisonment for the prior crime and was released into parole.
(Id. at __.)
Judge Smith dissented, noting that "'incarcerated is not an ambiguous word. It means locked up in prison," and therefore defendants who participate in work release programs and do not commit new felonies while doing so should get credit towards the "ten year between felonies" time period. (Id. at __.)
The majority's opinion affirms the Fourth Department's earlier decision in the case (see my previous post here).