The question presented is whether the Court has jurisdiction to revoke a sentence of conditional discharge after the period of the conditional discharge has expired. The answer is "No."

Undisputed Facts

On June 30, 2011, in the Justice Court of the Town of Mount Pleasant, Defendants pleaded guilty to violating sections 218-86 [Off-Street Parking; General Provisions] and 218-33(B) [Gasoline Filling Stations] of the Town of Mount Pleasant Zoning Code. On the same date, the court sentenced Defendants to pay a fine and to a conditional discharge for a term of one year. The conditions of Defendants' discharge were to "avoid all conflict is (sic) with the law and be at all times in compliance with the Building and Zoning code of the Town of Mount Pleasant." Transcript of Proceedings, June 30, 2011.

About ten months into the term of Defendants' conditional discharge, in an accusatory instrument sworn to on April 12, 2012, the People charged defendant Tin Can Holdings LLC ("Tin Can") with violating sections 218-12(F)(4) [Fence Maintenance] and 218-86 [Off-Street Parking; General Provisions] of the Town of Mount Pleasant Zoning Code. The factual part of that accusatory instrument alleged that, on April 2, 2012, an inspection of Tin Can's property at 989 Broadway in Thornwood disclosed that sections of a fence were missing or not secured in a proper manner, and that, on February 15, 21, 28, March 6, 22, 27, and April 12, 2012, vehicles were parked on Tin Can's property along Garrigan Avenue and Broadway. See Town of Mount Pleasant Court Docket No. 12-185. Generally and in pertinent part, section 218-86 of the Mount Pleasant Zoning Code prohibits the off-street parking of motor vehicles in the front, side and rear setbacks of property containing structures where people are employed or where the property is used for the parking or storing of motor vehicles.

About two months later, on June 21, 2013, just nine days before the expiration of Defendants' conditional discharge on June 30, 2012, the People petitioned the Mount Pleasant Justice Court for a declaration that Defendants had violated the terms of their conditional discharge. The People's petition alleged, in part, that "on Monday, April 2, 2012 Defendants [*2]violated Town Code sections 218.12.F(4) and 218.86 to wit: Fence on property missing sections and parking vehicles in setbacks of property, 989 Broadway, Thornwood, New York." See Town of Mount Pleasant Court Docket No. 12-315.

No written declaration of delinquency was filed on or before June 30, 2012, or at any time thereafter.

Nothing of substance happened with respect to Docket Nos. 12-185 and 12-315 until November 27, 2012, when the Justices of the Town of Mount Pleasant Justice Court recused themselves. Thereafter, Justice Alan D. Scheinkman, the Administrative Judge of the Ninth Judicial District, transferred Docket Nos. 12-185 and 12-315 to this Court.

While Docket Nos. 12-185 and 12-315 were pending in this Court, the People elected to dismiss Docket No. 12-185 and to proceed instead, pursuant to CPL § 410.70, with a hearing on Defendants' alleged violation of their June 30, 2011 conditional discharge. Before that hearing commenced on June 12, 2013, Defendants' counsel moved for a dismissal because no written declaration of delinquency had been filed. In opposition, the People argued that CPL § 410.30 does not require that a written declaration of delinquency be filed in order to proceed with a violation hearing. In support of that argument, the People pointed out that CPL § 410.30 provides, in substance, that if during the period of a conditional discharge the court has reasonable cause to believe that a defendant has violated a condition of his or her sentence, the court "may declare the defendant delinquent and file a written declaration of delinquency." (Emphasis added). In other words, the People argued that the word "may" makes such a filing permissive and not mandatory.

Discussion of the Law

A court loses jurisdiction over a declaration of delinquency for a violation of probation or a conditional discharge when the term of such a revocable sentence expires, and "an untimely declaration of delinquency is of nonwaivable jurisdictional dimensions, particularly in light of Penal Law § 65.15(2), which only preserves the court's jurisdiction over a term of probation or conditional discharge upon the timely filing of a delinquency of delinquency." (People v. Leo, 20 Misc 3d 1, 4 [App Term 9th and 10th Jud Dists 2008]). A written declaration of delinquency serves not only as the notice of what the alleged delinquency is, it also tolls the running of the period of probation or the term of a conditional discharge so that a declaration of delinquency can be adjudicated before that period or term expires. (People v. Shabazz, 12 AD3d 782, 783 [3rd Dept 2004].)

Here, because the term of Defendants' conditional discharged expired on June 30, 2012, and because no written declaration of delinquency was filed before that date, which would have tolled the expiration of that revocable sentence, this Court was deprived of jurisdiction to adjudicate Defendants' alleged violation of their June 30, 2011 conditional discharge and, as a consequence, this Court had no choice but to dismiss this proceeding.

Accordingly, Ossining Docket No. 13020339 and Mount Pleasant Docket No. 12-315 are hereby DISMISSED.

Dated: Ossining, New York

June 17, 2013

___________________________

John W. Fried, Town Justice