Ithaca Lawyer What are New York Graduated Sanctions?

from crimemuseum.com

New York probation departments and the Courts love to throw around fancy terms for pretty basic things. They use plenty of acronyms, like ATI (alternatives to incarceration) or PPI (pre-plea investigation) and everyone is expected to know what they are talking about. See you at the next PTC (pre-trial conference).

Always Ask if You Don't Know or Understand

Number rule when hiring an attorney, talking with an attorney, or dealing with the Court system is:
ask if you don't know, do not assume anything about anything, ask until you are clear about the subject and the answer. I ask about the things I don't know and there is plenty I don't know. I learn new stuff every day. It is smart to ask and dumb to pretend to know.

Fancy Words versus Plain English

Sometimes things sound better when we use colorful language.

Being Incarcerated = Going to jail or prison, being locked up!
Being placed on or in Probation = Being closely monitored and supervised for years!
Getting a CD = Having to meet certain conditions (do stuff) and stay out of trouble (no new arrests)

Striving for the Appropriate

So for today, the purpose of the Court, the Probation department, District Attorney, and the Judges is to gather all the information and facts about a person and a situation and to move towards an APPROPRIATE sentence of punishment.

What is appropriate sentence for the first time DWI offender with no accident and no injuries is NOT appropriate for the second offender or the one with an accident. Leniency for those who deserve it is at the base of this idea of fairness.

This idea or philosophy is called graduated sanctions. A gradual ratcheting up of harsher penalties. They are designed to hopefully teach, assist, train, and to rehabilitate a person from their criminal activity or behavior.

Graduated Sanctions = Gradually Increasing Punishments

Does the system fail some people? yes, but I have also seen people get the help they surely needed, sometimes whether they wanted it or not. Sometimes salvation is painful. It is generally not a fun process to say the least.

The Job of YOUR Attorney

Now the job of your attorney is to bring balance to this process via input. They must actively work to ensure that everyone gets what they need to recommend and to provide an appropriate sentence.

Your Job/employment history, education, family background, drug/alcohol evaluation, treatment, etc. can all help you or hurt you. They must be a filter and a focuser of information.

The Big HOW and WHAT

They can contact probation, they can give information about you, they can guide you to do the right things, and they can advocate to the Court and to the Prosecutor. Everything can potentially count for or against you, HOW it is presented is just as important as WHAT is presented.

Larry Newman, D.C., J.D.

504 North Aurora Street
Ithaca, NY 14850

newman.lawrence@gmail.com

http://www.ithacadwi.com

New York DWIs and PSI Final Thoughts

On this beautiful Ithaca morning I have a few lingering thoughts concerning NY PSIs for DWIs.

The PSI (pre-sentence investigation) report is NOT a public document. Disclosure is limited to the defendant, defendant's attorney, the judge, and the prosecutor. In fact the report is usually held by the Court and can only be viewed by counsel and not copied nor circulated. Although I have had a number of Courts send me the report for viewing prior to sentencing this is more the exception than the rule.

Probation officers act as an agent of the Court. Their role is to assist the Court (the judge) in determining a fair and appropriate sentence. In certain criminal cases (other than DWIs) a client may opt for jail time in lieu of a lengthy period of probation. In NYS generally misdemeanor probation is three years and felony probation is five years. If Probation is recommended for a DWI it is usually not negotiated to a term of jail. DWI Probation (supervision) may be in addition to a term of jail but not in exchange for a term of jail.

The Purpose for probation in DWI cases is to assist the defendant in obtaining and maintaining sobriety. This specific and necessary purpose, namely to monitor (supervise) the defendant from drinking (any consumption of alcohol) or being in the presence of alcohol. A violation of probation by drinking, being around alcohol, or being in alcohol serving establishments generally results in a six month jail term. Sobriety is the goal. Treatment, classes, and rehabilitation are the means to reach and maintain an alcohol free life. With DWI probation this is taken very seriously, and there is no wiggle room for special events or for "I did not know" type excuses.

Understanding the New York DWI PSI (Pre-Sentence Investigation) Part Two

The PSI is a process that should be taken very seriously. Your honesty with the probation department is paramount. They will be checking and verifying any and all information provided. Sometimes referred to as "collaterals," as in collateral sources of information, the contact phone numbers and references you provide to the officer must corroborate with your statements to the officer. Lying about your previous employment, drinking, and drug use will negatively affect your report. Your being accurate and truthful with the probation officer will go a long way to ensure a favorable report.

First impressions count. Showing up on time for your appointment, being clean, neat, and ready to cooperate will start your interview off on the right foot. You may be asked to go for a drug/alcohol evaluation and/or a psychiatric evaluation. In certain situations, more than one probation interview may be necessary. Also in certain situations the probation officer may feel it is important to have a one on one discussion with some of your family members prior to writing his report.

The Pre-Sentence Report contains the following sections:

1. A Cover sheet. This has the basic facts about you and the charges.

2. Prior Criminal History. Your attitude about past behavior (whether you have accepted full responsibility for your actions) and current behavior are very important. If you have pled guilty now is NOT the time to downplay your guilt or your actions. The officer will be attempting to see if you are owning up to this crime, and how you came to be in this situation.

The two most important R's are: REMORSE and RESPONSIBILITY

3. Your Social History, and current circumstances.

Stability of home life (past and present), family and friends (support), education, employment, use of drugs and/or alcohol, involvement in any treatment/rehab programs, and mental health history and counseling.

The OVERALL EVALUATION of the officer will be based upon the following:

a. Your attitude

b. Your behavioral habits, traits, and tendencies

c. Your future interests, goals, and plans

d. Your ability to cope with your past problems and your current charges

e. Your current and past associations with people (who you hang out with)

f. Your family relationships (your support system)

ARE you STABLE?

How STABLE are you?

What can probation predict in terms of your future behavior?

In other words are you a danger to yourself or others?

Do we have a cause to be concerned?

Do you require supervision?

At the end of every report is a pink sheet entitled, " Departmental Sentence Recommendation with Supporting Reasons." NOTE: This comes from the Probation Officer's supervisor, and not from the probation officer.

Your attorney can contact probation and provide information about you as well. In instances where PSIs are ordered I commonly provide the Court, the Prosecutor, and the probation officer with information concerning my clients to ensure the best outcomes.

In the end, being up front and candid with probation is the best strategy overall.