The Defendant has been charged with Aggravated Driving While Intoxicated under New York State Vehicle and Traffic Law §1192(2-a)(b), a felony charge, in addition to lesser offenses including misdemeanor charges of Vehicle and Traffic Law §1192(2) and §1192(3). The prosecution is offering a misdemeanor plea to a violation of Vehicle and Traffic Law §1192(2), with a promise of six months in jail and (a consecutive) three years probation. At issue is whether this would be a legal sentence. The District Attorney argues that this is a legal sentence pursuant to New York State Penal Law §60.21.

Penal Law §60.21 provides:

Notwithstanding paragraph (d) of subdivision two of section 60.01 of this article, when a person is to be sentenced upon a conviction for a violation of subdivision two, two-a or three of section eleven hundred ninety-two of the vehicle and traffic law, the court may sentence such person to a period of imprisonment authorized by article seventy of this title and shall sentence such person to a period of probation or conditional discharge in accordance with the provisions of section 65.00 of this title and shall order the installation and maintenance of a functioning ignition interlock device. Such period of probation or conditional discharge shall run consecutively to any period of imprisonment and shall commence immediately upon such person's release from imprisonment.

Penal Law §60.01(2)(d) provides, as pertinent here, that probation may only be imposed where the sentence of imprisonment does not exceed 60 days. However, as aforementioned, Penal Law §60.21 establishes an exception to Penal Law §60.01(2)(d) for a driving while intoxicated conviction (while still remaining bound by Penal Law §65 and §70.15). Penal Law §65 provides that the period of probation shall be 3 years (for the misdemeanor offered). Penal Law §70.15 and Vehicle and Traffic Law §1193(1)(b) provide for a jail sentence not greater than one year (for the misdemeanor offered). Vehicle and Traffic Law §1193(1)(b)(ii) and Penal Law §60.21 require probation (or a conditional discharge) and the Ignition Interlock Device ("IID").

Certain materials comment on this Penal Law §60.21 exception to Penal Law §60.01(2)(d). [*2]Reference is hereby made to the LexisNexis John Castellano Commentary on Leandra's Law dated September 1, 2010; Handling the DWI Case in New York 2012-2013 Edition by Peter Gerstenzang, Esq. and Eric H. Sills, Esq.; and People v. Brown, 40 Misc 3d 821; 970 N.Y.S.2d 391; 2013 Misc. LEXIS 2815; 2013 NY Slip Op 23222. Each has an element that this court agrees with, and one or more elements that this court disagrees with.

Castellano notes that "even when imprisonment is imposed, ignition interlock restrictions are still required — as part of a probationary sentence for those sentenced to less than a year (P.L. §60.21)". Gerstenzang and Sills state that "the intent of PL § 60.21 is to preclude a person from receiving credit for time served' on the IID portion of his or her sentence while the person is incarcerated." Gerstenzang and Sills go on to state that "(t)he statute should not be read to allow a DWI defendant to receive the maximum allowable jail sentence followed by a full term of probation. Indeed, if the statute were so construed, then there could be no penalty for violating the terms of probation (as the maximum jail sentence would already have been served)."

However, Penal Law §60.21, explicitly requires a sentence of probation (or conditional discharge) following any term of incarceration, and requires an order that an IID be installed and maintained as part of probation (or conditional discharge), running consecutively from incarceration. Under Penal Law §65, the period of probation herein shall be three years. Vehicle and Traffic Law §1193(1)(b)(ii) requires a period of probation (or conditional discharge) to be imposed in addition to any period of imprisonment that is imposed at the time of sentence, so as to have an IID installed for a period of at least six months. Based on the foregoing law and commentary, and given the exceptions set forth in Penal Law §60.21, it would appear that a court could at least impose, for example, a jail sentence of six months on a misdemeanor charge of violating Vehicle and Traffic Law §1192(2), as well as a consecutive term of three years probation thereafter (yes, even though exceeding the six month minimum for the installation of the IID).

This court agrees with the suggestion in the Brown case, supra, that in the event that a maximum jail sentence is originally imposed along with probation (in this type of statutorily excepted case under Penal Law §60.21), there can be no further jail time imposed on a violation of probation, as it would exceed the maximum allowable original jail sentence. As suggested in Brown, supra, the only remedy would seem either to be the fruitless restoration to probation without additional jail time, or a new charge under Vehicle and Traffic Law §1198(9)(d) for operating a motor vehicle without a court ordered IID, a Class A misdemeanor.

As to the legal question presented, determination is hereby made that this court may impose a jail sentence of six months (on this misdemeanor offer that has a maximum jail sentence of a year) as well as a consecutive term of three years probation. One of the terms and conditions of the three years of probation would be the installation of the IID for a minimum of six months.

Dated: October 30, 2013

[*3]______________________________

Webster, New YorkHon. David T. Corretore

Webster Town Justice