Opinion
96W-2016
09-25-2019
PEOPLE of the State of New York, Plaintiff, v. Jason PONDI, Defendant.
Glenn Kroll, Esq., Attorney for Defendant, PO Box 10, Bloomingburg, New York 12721, glennkrollesq@hotmail.com, Hon. James Farrell, Sullivan County District Attorney, 414 Broadway, Monticello, New York 12701, ADA Rob Zangla, Esq., Robert.Zangla1@co.sullivan.ny.us
Glenn Kroll, Esq., Attorney for Defendant, PO Box 10, Bloomingburg, New York 12721, glennkrollesq@hotmail.com, Hon. James Farrell, Sullivan County District Attorney, 414 Broadway, Monticello, New York 12701, ADA Rob Zangla, Esq., Robert.Zangla1@co.sullivan.ny.us
Issue:
What should the Court consider when determining if early termination of Probation is appropriate?
Procedural History:
On April 4th, 2015 in the Town of Mamakating, Sullivan County, New York the Defendant, Jason Pondi, was accused of the crimes of Felony Driving While Intoxicated (DWI) a violation of Vehicle and Traffic Law (VTL) § 1192(2) and 1193(1)(c)(i) and Aggravated Unlicensed Operation of a Motor Vehicle in the First Degree (AUO 1st) a violation of Vehicle and Traffic Law § 511(3)(a)(i) ; both are class E Felonies. On June 13th, 2016, the Defendant plead guilty to the Felony Driving While Intoxicated and the Aggravated Unlicensed Operation of a Motor Vehicle in the 1st Degree. The Defendant was sentenced on September 21st, 2016 to 5 years' Probation, as well as time served, fines, and surcharges.
By Order to Show Cause dated July 22nd, 2019 the Defendant applies to this Court for early termination of his probation. Oral arguments were held on September 19th, 2019 at which time the Prosecutor opposed the early termination indicating that the Prosecution believes the Defendant would benefit from remaining on Probation for a bit longer. The Prosecutor gave no specifics as to how the Defendant would benefit from continued supervision.
Opinion :
The Criminal Procedure Law ( NY CPL § 410.90 [3][a] ) sets forth a three-step process for consideration by the Court when granting a request for termination of a sentence of probation. It states in pertinent part:
"The court shall grant a request for termination of a sentence of probation when, having regard to the conduct and condition of the probationer, the court is of the opinion that:
(i) the probationer is no longer in need of such guidance, training or other assistance which would otherwise be administered through probation supervision;
(ii) the probationer has diligently complied with the terms and conditions of the sentence of probation; and
(iii) the termination of the sentence of probation is not adverse to the protection of the public."
In the case at bar, the Court has reviewed the evidence in light of NY CPL § 410.90 [3][a] as follows:
NY CPL § 410.90 [3][a][i] :
Is the probationer still in need of such guidance, training or other assistance which would be administered through probation supervision ?
On September 6th, 2019, this Court received a letter from Giulia Preziuso, MA, MHC, NCE, AMTP and founder of Defining Moments, LLC, Counselling and Education Center. Counselor Preziuso indicated that he has treated the Defendant, Jason Pondi, since July 2017. The letter indicates that the Defendant was positively discharged from counselling once he had reached the "maximum therapeutic benefits" of the sessions. Despite his positive discharge from the program, the Defendant returned on his own, voluntarily, for further treatment. Counsellor Preziuso indicates in his September 6th letter to the court that the "voluntary sessions" with the Defendant have been productive and that in his opinion the Defendant exhibits a
"rare commitment to abstaining from alcohol but more importantly in being an exceptional role model to his children ."
The Defendant has three children ages 18 months to 9 years old which he indicates in his Affidavit to the Court he would like to spare from the embarrassment and fear of continued visits from uniformed Probation Officers at his home.
The Counsellor believes the Defendant's prior abuse and bad judgment stems from the "inappropriate prescribing of benzodiazepines" by Defendant's medical doctor which led to the Defendant's poor judgment and life choices. Both the Defendant's Affidavit in support of his Order to Show Cause and the Counsellor's letter to the court express a deep regret on the part of this Defendant for his bad life choices which have affected not only his family relationships but also his health . Counsellor Preziuso whole heartedly recommends that the Court grant the Defendant's request for early release from Probation due to the Defendant's "proven commitment to sobriety".
Shortly after the Defendant's arrest in 2015 he suffered a heart attack which he attributed to his excessive alcohol consumption and now credits as a "wake up call" in motivating him to sobriety.
NY CPL § 410.90 [3][a][ii] :
Has the probationer diligently complied with the terms and conditions of the sentence of probation?
The Defendant was sentenced to 5 years' Probation on September 21st, 2016. Since that time, the Defendant has never been brought back before this Court on a Violation of Probation petition. At oral arguments, the Defendant indicated that he was fully compliant with all terms and conditions of his probation, had paid all fines and surcharges, and had completed not only the mandated counselling sessions but continues voluntarily to receive counselling. The Prosecution did not dispute the Defendant's compliance or good record. The Defendant's Probation conditions include but are not limited to, full completion of his counselling sessions with Defining Moments LLC, Alcohol and Drug Conditions of Probation, Vehicle interlock device, payment of a $2,000.00 fine, and the voluntary wearing of a SCRAM ankle monitoring system to prevent himself from relapsing. The Defendant expresses remorse and indicates that his arrest and subsequent heart attack was a life altering experience he has no desire to repeat in the future.
NY CPL § 410.90 [3][a][iii] :
Is the termination of the sentence of probation adverse to the protection of the public?
The Defendant no longer has a driver's license and due to his record he is unlikely to obtain one in the near future. The Defendant is having a tremendous hardship finding transportation to Probation for his required reporting. His elderly father who has provided much of his transport to and from Probation is now ailing and unable to continue.
The Defendant's problems with alcohol abuse, in his Counsellor's opinion, stem from the inappropriate prescribing of the drug benzodiazepine. Since his arrest and heart attack, the Defendant no longer takes the drug benzodiazepine or drinks alcohol and he has been clean and sober for nearly four years. To the Defendant's credit, he voluntarily signed up for a SCRAM ankle bracelet which he wore without incident from May 2015 through the summer of 2016 and he has voluntarily continued his counselling even after being positively discharged. The Defendant shows a deep remorse and a strong desire to be a good role model and father to his three children. Again, none of these assertions are disputed by the Prosecution.
In People v. Rodney E, 77 NY2d 672 [Court of Appeals, 1991] the Court of Appeals held that a probationary sentence is by its nature and statutory definition a "revocable sentence [which] shall be deemed a tentative one to the extent that it may be altered or revoked" by the court during the probationary term ( Penal Law § 60.01 [2] [b] ). In so holding the Court of Appeals indicated that although the Probation Department is responsible for providing immediate supervision of a person sentenced to probation ( CPL 410.50 [2] ), the defendant remains in the court's custody ( CPL 410.50 [1] ) and is subject to the court's continuing jurisdiction throughout the probationary term. Further, the Court of Appeals in People v. Rodney E , 77 NY2d 672, supra , went on to say that "unlike sentences of incarceration which the court may not alter or revoke once the defendant is sentenced, a probationary sentence can be modified; including terminating and discharging the Defendant from probation before completion of the term. At any time after sentence is pronounced and probation instituted, the court may adjust the conditions of probation to suit the current circumstances by eliminating conditions imposed at sentence or adding new ones as the court considers necessary and appropriate ( CPL 410.20 [1] ; Penal Law § 65.00 [2] ). Or, if conditions warrant, the court may discharge the defendant from probation before completion of the term if the court finds that continuous supervision is no longer necessary (See People v. Rodney E, 77 NY2d 672, supra. )
NY Penal Law § 60.01[2] [b] A revocable sentence shall be deemed a tentative one to the extent that it may be altered or revoked in accordance with the provisions of the article under which it was imposed, but for all other purposes shall be deemed to be a final judgment of conviction.
NY CPL § 410.50 [2] Supervision. The probation department serving the court that imposed a sentence of probation has the duty of supervising the defendant during the period of such legal custody.
NY CPL § 410.50 [1] Custody. A person who is under a sentence of probation is in the legal custody of the court that imposed it pending expiration or termination of the period of the sentence.
In People v. Rodney E, 77 NY2d 672, supra , the trial court placed the Defendant on "interim probation" pending sentencing. During the "interim probation" period the Defendant violated his conditions of probation. The trial court revoked the Defendant's probation and sentenced him to incarceration. The Defendant appealed. The Appellate Division [4th Dept. 1990] upheld the trial court's decision to revoke the Defendant's probation however the Court of Appeals reversed the decision and remanded the case back to the trial court. In reversing the Appellate Court, the Court of Appeals held that the trial court had no statutory basis for placing the Defendant on "interim" probation before sentencing was imposed.
NY CPL § 410.20 [1] The court may modify or enlarge the conditions of a sentence of probation or of conditional discharge at any time prior to the expiration or termination of the period of the sentence.
Penal Law § 65.00 [2] Sentence. The court may modify or enlarge the conditions or, if the defendant commits an additional offense or violates a condition, revoke the sentence at any time prior to the expiration or termination of the period of probation.
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It is the finding of this court that this Defendant has fulfilled the terms and conditions of probation, has shown himself to be self-motivated in his treatment and recovery success and is no longer in need of the guidance provided by Probation supervision. This Defendant's early release from Probation would pose no danger to society and will have no adverse effect upon the public at large. In fact, this Defendant's early termination from Probation as a result of his stellar recovery efforts can only serve to enhance the public's faith in the justice system which has at its' root the primary goal of rehabilitation back into society.
The Defendant's Motion for Early Termination of Probation should be and hereby is Granted.