Prisons and Incarcerated Individuals - Shock Incarceration Program - Conviction of Both Eligible and Ineligible Offenses - Court Authority to Compel Participation

Karen L. Murtagh, Executive Director, Prisoners' Legal Services of New York, Albany (Madison Levin of counsel), for petitioner.

Letitia James, Attorney General, Albany (Alexandra L. Galus of counsel), for respondent.

By CPLR article 78 petition filed November 4, 2024, petitioner Richard Adams seeks to compel respondent Daniel F. Martuscello III, Commissioner of the New York State Department [*2]of Corrections and Community Supervision (DOCCS), to admit him into DOCCS' Shock Incarceration program. The facts as set forth in his petition and DOCCS' submission, which are not in dispute, are as follows:^[FN1]

Adams is currently serving a term of imprisonment at Upstate Correctional Facility. He was sentenced by Judge Rory McMahon of the Onondaga County Court on December 1, 2022, as a second felony offender to a determinate term of four years and six months—later amended to four years—on Adams' conviction pursuant to a plea of guilty for criminal possession of a controlled substance in the third degree^[FN2] (petition ¶¶ 1, 3, 6 & exhibits 1, 3; Sanford letter at 1). The same day, Judge McMahon sentenced him to an indeterminate sentence of 2 to 4 years for criminal contempt (id. ¶ 3 & exhibit 2), to run concurrently with the other sentence (Sanford letter at 1).

As part of the sentence, the Judge also ordered that Adams be placed in Shock Incarceration (Shock, the Shock program or Shock Incarceration). Petitioner describes the program as follows: "The Shock Incarceration Program . . . is a six-month drug treatment program that stresses a structured routine of work, rigorous physical exercise, and intensive regimentation,{**88 Misc 3d at 482} together with substance abuse treatment, education, and pre-release and life skill counseling" (petitioner's mem of law [petitioner's mem] at 1, citing Correction Law § 865 [2]; DOCCS Directive No. 0086). Once an individual has completed the Shock program, he or she receives a certificate of earned eligibility, which "is a pathway to early release" (id.; see Correction Law § 867 [4] ["An incarcerated individual who has successfully completed a shock incarceration program shall be eligible to receive such a certificate of earned eligibility pursuant to section eight hundred five of this chapter," and "an incarcerated individual sentenced to a determinate sentence of imprisonment who has successfully completed a shock incarceration program shall be eligible to receive such a certificate of earned eligibility and shall be immediately eligible to be conditionally released"]; Correction Law § 805 ["an incarcerated individual who is serving a sentence with a minimum term of not more than eight years and who has been issued a certificate of earned eligibility, shall be granted parole release at the expiration of his or her minimum term . . . unless the board of parole determines that there is a reasonable probability that, if such incarcerated individual is released, he or she will not live and remain at liberty without violating the law and that his or her release is not compatible with the welfare of society"]).

As set forth in greater detail below, a judge may direct DOCCS to place a defendant into the Shock program for certain offenses, so long as other delineated conditions are met. To cut to [*3]the chase, the dispute before me revolves around the fact that Mr. Adams' controlled substance conviction is one of the crimes for which a judge may direct such placement, while his criminal contempt conviction is not. The question, then, is whether under these circumstances DOCCS was required to abide by the judge's directive in this regard.

On December 13, 2022, Adams was received into the custody of DOCCS (Sanford letter at 1). He subsequently wrote to DOCCS to seek placement in the Shock program.^[FN3] In response, DOCCS Deputy Commissoner for Program Services Jeff McCoy wrote Adams on November 16, 2023, which in relevant part stated the following:

"Please note, your conviction for Criminal Possession {**88 Misc 3d at 483}of a Controlled Substance 3rd is legally subject to Court Ordered Shock. Your additional conviction in your instant offense for Criminal Contempt 1st is not, therefore, the sentencing court's determination with respect to Shock has been accepted as a recommendation.

"The July 2023 automated Shock screening reviewed your record and deemed you unsuitable due to your disciplinary record. Specifically, your guilty finding at your April 25, 2023, Tier 3 Hearing, which resulted in 60 days confinement, rendered you unsuitable to participate in the program" (petition, exhibit 8).

Adams secured representation by Prisoners' Legal Services (PLS), which wrote DOCCS on July 18, 2024, to again seek Adams' placement in Shock Incarceration (id., exhibit 5). The letter argued that "Mr. Adams' sentence requires admission in Shock pursuant to PL § 60.04 (7)," and that he is eligible because he was convicted for a controlled substance offense and meets the other criteria (id.). PLS also maintained that DOCCS' refusal to place Adams in the program was tantamount to an unlawful administrative modification of his sentence, and that there was "nothing under the statute that permits DOCCS to deny Mr. Adams admission into Shock based on his disciplinary history" (id.).

In an answering letter sent August 30, 2024, Deputy Commissioner McCoy referred PLS to his prior letter (id., exhibit 7). This petition followed.

The sentencing court's role in directing a defendant's placement in Shock Incarceration is governed by Penal Law § 60.04 (7) (a). That provision states in relevant part:

"When the court imposes a sentence of imprisonment which requires a commitment to the department of corrections and community supervision upon a person who stands convicted of a controlled substance or marihuana offense, upon motion of the defendant, the court may issue an order directing that the department of corrections and community supervision enroll the defendant in the shock incarceration program as defined in article twenty-six-A of the correction law, provided that the defendant is an eligible incarcerated individual,{**88 Misc 3d at 484} as described in subdivision one of section eight hundred sixty-five of the correction law."

With certain exceptions not relevant here, persons are eligible for the Shock program if they meet the following criteria: they are eligible for release within three years, are under 50 years old, have not previously been convicted of a violent felony as defined in Penal Law § 70.00, and were [*4]between the ages of 16 and 50 when they committed the crime for which they are serving a sentence (Correction Law § 865 [1]).

There is no dispute that petitioner meets these eligibility criteria. The question is whether the judge had the authority to direct DOCCS to place him in the program. Had Adams only been convicted on the drug crime, there is no question but that the court's directive would be controlling, and DOCCS would have been required to admit him into Shock (see Matter of Matzell v Annucci, 183 AD3d 1, 4 [3d Dept 2020]). The agency's authority at that point is "limited to determining only whether a judicially sentenced shock incarceration inmate has a medical or mental health condition that [would] render the inmate unable to successfully complete the program" (id. at 6 [internal quotation marks and ellipsis omitted]). On the other hand, if Adams had only been convicted of the contempt charge, which is not among the delineated crimes for which the statute says a court may direct DOCCS to place the defendant in the Shock program, then the sentencing court could not have required Adams' placement in the program, and its order would "constitute[ ] a nonbinding recommendation" (see People v Martin, 105 AD3d 1266, 1266 n [3d Dept 2013] [court "could recommend but not direct defendant's enrollment in shock incarceration because he did not plead guilty to a drug offense"]; see also Matter of Ferreri v Fischer, 69 AD3d 1014, 1014 [3d Dept 2010] [court order that defendant be placed into alcohol and substance abuse treatment, although the offense of conviction was not one for which the statute authorized the court to make such directive, "must be viewed as a nonbinding recommendation"], lv denied 14 NY3d 707 [2010]).

Overlaid on this question is the fact that while Adams was convicted of two entirely separate crimes, the concurrently imposed sentences for those crimes are considered part of a single sentence. Penal Law § 70.30 "provides for the calculation of terms of imprisonment by merging of concurrent sentences and addition of consecutive sentences," resulting in "two or more sentences" being "made into one" (see People v Buss, 11 {**88 Misc 3d at 485}NY3d 553, 557 [2008]; see also People v Brinson, 21 NY3d 490, 495 [2013] [upholding prosecution's argument that "defendants' multiple sentences were properly aggregated under Penal Law § 70.30, and thus are not measured as discrete sequential terms of imprisonment, but rather constitute one punishment of incarceration"]; People ex rel. Abbott v Wendland, 224 AD3d 1072, 1073 [3d Dept 2024] [denying application by petitioner for release following shock program because his "aggregate" sentence, composed of three sentences that "yielded a single sentence," included an uncompleted indeterminate term of incarceration]). As a result, the sentencing court was imposing one sentence on Adams albeit for two offenses—as to one of which the court may order Shock, and as to the other the court may only recommend Shock. The question of what authority the court's order has in these circumstances involves a pure question of statutory interpretation, and thus it is a matter for the court to interpret based on the statute's language and legislative intent, and not one that requires deference to DOCCS' construction (see Matter of Matzell, 183 AD3d at 4-5).

Respondent's position is that since part of the sentence is for an offense not enumerated in section 60.04 (7), the court "had no authority to mandate enrollment in the Shock Incarceration Program," and if that is contrary to the plea agreement, petitioner's remedy "lies in making a motion to withdraw his plea" (respondent's mem at 10). For his part, petitioner argues that the respondent's interpretation "adds an eligibility requirement for court-ordered Shock that does not exist in the statute," and DOCCS may not "administratively add a statutory provision in order to grant DOCCS undue authority" (petitioner's mem of law in reply [petitioner's reply mem] at [*5]2). That is, "where the Legislature has, by statute, specified circumstances in which a sentencing judge is authorized to order enrollment in Shock, DOCCS has no authority to further limit these circumstances" (id.).

In addressing this issue, I note initially that it is not accurate to say that the respondent's construction would "add" any "eligibility" criteria. There is no dispute that Adams is eligible for the program; the question is who decides whether he will be admitted into it. If I adopt DOCCS' position, petitioner would still have been eligible for Shock, but the matter would lie within DOCCS' discretion, rather than that of the court. In contrast, if I adopt Adams' reading, then I would be allowing the sentencing court to impose a sentence that will{**88 Misc 3d at 486} apply—including by authorizing early release—to the contempt conviction as well, notwithstanding that absent the drug conviction, the sentencing court would have no authority to impose such relief.

While there is no controlling authority on this question, respondent points to two unpublished trial court decisions in Orleans County that support its position. In particular, in Estebanez v Squires (Sup Ct, Orleans County, May 15, 2019, index No. 19-45626), Acting Justice Mohun ruled as follows:

"Unfortunately, a Court's power to 'order' participation in the Shock program is restricted to certain specified crimes . . . Although Unlawful Manufacture of Methamphetamine 3d and Criminal Possession of Marijuana are crimes for which Shock maybe court-ordered, Identity Theft [of which defendant was also convicted] is not. Because of this, the Cayuga County Court's 'order' of Shock for that crime was ineffective. This is evidently the reason the relator has not yet entered the Shock program. When a Court purports to 'order' Shock for a crime for which Shock may not be court-ordered, the court's directive must be viewed as a nonbinding recommendation"^[FN4] (respondent's mem of law, exhibit G at 3 [citations and internal quotation marks omitted]).

I find this reasoning persuasive, and hold that DOCCS' interpretation is the better reading of this statute. In particular, I note that adopting petitioner's position would lead to the following result: Had Adams been subject to a sentence only for criminal contempt, the sentencing court would clearly have had no authority over his placement in Shock, since contempt is not one of the delineated offenses for which placement may be ordered—and the matter would be left within DOCCS' discretion. Thus, by petitioner's argument, the fact that he was subject to an additional sentence along with the contempt conviction actually advantaged him in sentencing. To tease this out further, if a defendant had multiple other Shock-eligible{**88 Misc 3d at 487} convictions for which he was serving concurrent sentences—the nature of which might well be relevant to his appropriateness for the Shock program—DOCCS would be without discretion to determine [*6]whether to place him in Shock Incarceration, so long as a single one of them was a drug conviction, the placement was required by the sentencing order, and these convictions did not render him ineligible.

Nothing in the language of the statute, which simply does not address this issue, requires this strange result, where conviction of an additional offense gives greater opportunity for placement in a desirable program, and removes DOCCS' discretion in circumstances where the Legislature otherwise vested the agency with decision-making authority. Petitioner argues that "[i]f the legislature had intended to limit the ability of the sentencing court to order Shock for those convicted of any additional offenses, they would have specified this limitation in the statute," noting language in the context of parole supervision which renders a defendant "ineligible" for certain relief if they are convicted of additional felony offenses (see petitioner's reply mem at 3, citing CPL 410.91 [2]). But, again, that merely points out that the Legislature knows how to draw clear eligibility rules, which it has done in regard to Shock as well (see Correction Law § 865 [1] [rendering, inter alia, those convicted of a violent felony ineligible for Shock]). Again, here the issue arises from a conflict as to who has authority to determine whether the defendant should enter the program, when he was convicted of two offenses, and the governing statute vests a different entity with the final decision-making authority depending on the offense to which one looks. The fact that the Legislature did not specifically address this issue does not mean that the petitioner's construction is the correct one. Nothing in the language of the statute or its legislative history evinces such an intent.

The grant of authority to the sentencing court to impose Shock was adopted as part of the 2009 drug reform law, whose purpose "was to grant relief from what the Legislature perceived as the inordinately harsh punishment for low level non-violent drug offenders" (People v Brown, 25 NY3d 247, 251 [2015] [internal quotation marks omitted]). That purpose does not indicate a view as to what the rule should be when nondrug offenses are also involved. Despite its purpose of reducing the harshness of sentences in regard to controlled substances crimes, the Legislature did not then extend, nor has it since,{**88 Misc 3d at 488} the court's authority to impose a Shock sentence for other nonviolent offenses, and there is no indication in the legislative history of the reason for this disparity^[FN5] (see William C. Donnino, Prac Commentaries, McKinney's Cons Laws of NY, Penal Law § 70.40 ["The justification for allowing a court to order shock incarceration for drug offenses and two violent felony offenses, but not for a host of other non-violent felonies, appears wanting"]). Indeed, adopting respondent's construction does not mean those convicted of other Shock-eligible crimes in addition to drug crimes cannot participate in Shock; it merely vests discretion as to whether they may do so in DOCCS. Given that the issue in such cases is the impact of nondrug crimes that are part of the same sentence as the narcotics offense, this outcome is in no way at odds with the legislative purpose in reforming the drug laws as described above.

In sum, I cannot find that the relevant statutory authority divests DOCCS of discretion regarding placement of an individual into the Shock program for an eligible nondrug offense, just because that defendant has also been sentenced concurrently for a drug crime that grants authority over such placement to the sentencing court. When faced with a statute that has an [*7]internal conflict as to whether the court's sentence is binding or a mere recommendation in regard to such placement depending on the offense that is looked at, I find that the most rational construction of the statute is that the sentence becomes nonbinding, and DOCCS therefore retained discretion over Adams' placement. To the extent this was in conflict with Adams' expectations regarding his sentence, his remedy is to move to withdraw his plea (see People v Muhammad, 132 AD3d 1068, 1069 [3d Dept 2015] [allowing defendant to withdraw his plea when "the record reflects that defendant, in accepting the plea, relied upon County Court's promise" that his entry into Shock was "guaranteed," although in fact he was ineligible for the program]).

In light of the foregoing, and as petitioner has not set forth any basis for finding that Adams' rejection from the Shock program by DOCCS was an abuse of discretion, the petition is hereby denied, and this proceeding is dismissed.