On August 20, 2007, the defendant pleaded guilty to the crime of criminal sale of a controlled substance in the third degree, in violation of Penal Law ("P.L.") § 220.39(1). The crime was committed on October 6, 2006. The People have filed a "Statement of Predicate Felony Conviction" ("Statement") seeking to have the defendant sentenced as a second felony drug offender. P.L. § 70.70. The Statement alleges that on March 15, 1989, the defendant was convicted, in New York State, of the crime of criminal sale of a controlled substance in the third degree and that the conviction qualifies as a predicate felony as defined in P.L. §§ 70.06(1) and 70.70(1)(b). The defendant opposes the use of the 1989 conviction as a predicate felony.

Among the criteria used in determining whether a prior felony conviction qualifies as a predicate felony conviction is whether the sentence for that conviction was "imposed not more than ten years before commission of the felony of which the defendant presently stands convicted." P.L. § 70.06(1)(b)(iv). The issue here is whether the defendant's conviction in 1989, of the crime of criminal sale of a controlled substance in the third degree, was imposed not more than ten years before the defendant's commission of the crime to which he [*2]has pleaded guilty. P.L. § 70.06(1)(b)(v) sets forth the method used for calculating the ten year period. P.L. § 70.06(1)(b)(v) provides that

[i]n calculating the ten year period under subparagraph (iv), any period of time during which the person was incarcerated for any reason between the time of commission of the previous felony and the time of commission of the present felony shall be excluded and such ten year period shall be extended by a period or periods equal to the time served under such incarceration

The defendant was sentenced on May 3, 1988. On March 11, 1992, the defendant was released from prison and sent to the Lincoln Work Release Program ("Program"), a day reporting program.On April 8, 1992, the defendant absconded from the Program and was not returned to custody until April 29, 1994. The defendant remained incarcerated until he was paroled on December 1, 1995. The defendant's parole was revoked on November 4, 1999, and the defendant was incarcerated until May 30, 2000, when he was again placed on parole.The defendant's parole was revoked on March 27, 2001, and he remained in prison until July 11, 2001.

The dispute revolves around the period from April 8, 1992 to April 29, 1994, during which time the defendant absconded from the Program and remained at liberty. The People, citing People v. Cagle, 7 NY3d 647 (2006), argue that during the period from April 8, 1992 to April 29, 1994, the defendant should be deemed as have being incarcerated. The defendant argues, citing People v. Tatta, 196 AD2d 328, lv. denied, 83 NY2d 972 (1994), that between April 8, 1992 and April 29, 1994, that the defendant was at liberty and should not be deemed as having been incarcerated. The practical difference is that if the People are correct, the defendant's commission of the crime to which he pleaded guilty occurred within the ten year period, whereas, if the defendant is correct, the ten year period terminated approximately two years prior to the defendant's commission of the crime.

In People v. Cagle, supra, the Court held that a defendant is "incarcerated" during the period which he or she serves a portion of his or her sentence of imprisonment in a day-reporting program. The Court relied on statutes that referred to an inmate in a day-reporting program as enjoying "extended bounds of confinement," and that required continual reporting to a facility as well as frequent drug testing. The Court also referred to a statute that requires an inmate to sign a memorandum of agreement and a copy of the day-reporting rules which specify that the program is a revocable privilege and "that the inmate remain[s] in the custody of [DOCS]'." People v. Cagle, at p. 650. Therefore, while an inmate participating in a day-reporting program is not "incarcerated" in the practical sense that he or she is precluded from leaving the facility in which he or she is being housed, the inmate is considered legally "incarcerated."

In People v. Tatta, supra, the Court held that an when an inmate escapes from custody, the period during which the inmate is not in physical custody does not toll the ten year period as incarceration does as described in P.L. § 70.06(1)(b)(v). The Court based its decision on the plain reading of P.L. § 70.06(1)(b)(v) and reasoned that since an inmate who has escaped [*3]from custody is not incarcerated that the tolling provision does not apply.

The situation here is analogous to the situation in People v. Tatta, supra, rather than the one in People v. Cagle, supra.While the defendant was released to the Program, the defendant absconded from the Program. Therefore, unlike the defendant in Cagle, the defendant here was not subject to any restrictions, reporting requirements or obligations. The defendant was in a similar position to the defendant in Tatta, in that, while initially subject to the limitations imposed on an incarcerated inmate or an inmate in a day reporting program, the defendant here and in Tatta, escaped or absconded, andwere not subject to any limitations for the periods during which they were not under the control of the Department of Corrections.

Therefore, it is clear that the defendant's sentence for the prior felony occurred more than ten years prior to the defendant's commission of the instant crime and thus, the defendant is not a second felony drug offender and he must be sentenced as a first time offender.

The foregoing is the decision and order of the court.

Dated: New York, New York

October 11, 2007

Laura A. Ward

Acting Justice Supreme Court