Procedural History On November 24, 2017, the defendant was arrested on charges of Driving While Intoxicated, Criminal Possession of a Controlled Substance in the Seventh Degree, Unlawful Possession of Marihuana, Possession of a Controlled Substance Not In Its Original Container under Public Health Law §3345, together with various Vehicle and Traffic Law violations. The defendant entered into the Glens Falls Drug Court program and, after reaching maximum benefit with Drug Court, on July 19, 2019 he was sentence to a two-year term of probation on his guilty plea to the charge of Driving While Intoxicated. On October 24, 2019, a Violation of Probation Petition was filed against the defendant for various violations of his probationary terms and conditions, including a failure to comply with drug/alcohol treatment recommendations and his continued drug use. The defendant was offered a plea agreement on the Violation of Probation Petition, which allowed the defendant to admit to the violation of probation, thereby terminating his probationary sentence and resentencing him to a term of incarceration in the Warren County Jail for a term of eight (8) months. On December 20, 2019, the Defendant accepted the plea bargain offer and admitted the violation of his probationary sentence, probation revoked and he was then resentenced to 8 months incarceration with credit for time served. The defendant’s release date is May 18, 2020. On April 2, 2020, the Defendant moved this Court to commute his sentence pursuant to Penal Law §70.40(2) and release him due to the COVID-19 public health crisis or, in the alternative, to suspend his sentence and release him from jail to return after the public health crisis subsides [Fredette Affirmation, 1st paragraph]. Here, the defendant asserts that his incarceration places his health at risk, because conditions at the jail force the defendant to violate CDC’s protocols for social distancing [Fredette Affirmation, s 6-8]. In response, the People assert that the Court lacks the authority to commute the defendant’s sentence, and even if the court has the authority to commute the defendant’s sentence, the defendant has failed to demonstrate that commutation is appropriate as the Warren County Jail has taken extensive steps to protect inmates from spread of COVID-19 and there are no reported cases of infection at the jail. With respect to the Court’s authority, the People note that while Penal Law §70.40(2) outlines when a defendant may be eligible for a conditional release while serving a definite sentence, a conditional release can only be granted upon application to the parole board or to a local conditional release commission, and since this Court is neither, the Court lacks the ability to grant the requested relief [McCarty email letter dated April 2, 2020]. Conclusions of Law Absent statutory authority or the need to correct an illegal sentence, the Court generally cannot change a defendant’s sentence of incarceration once it has begun being served. Matter of People v. Williams, 14 NY3d 198, 212 (2010); People v. Richardson 100 NY2d 847, 852-853, 767 N.Y.S.2d 384, 799 N.E.2d 607 (2003); People v. Minaya, 54 NY2d 360, 364, 445 N.Y.S.2d 690, 429 N.E.2d 1161 (1981), cert. den., 455 U.S. 1024, 102 S.Ct. 1725, 72 L.Ed.2d 144 (1982). In People v. Lingle, 16 NY3d 621, 630-31 (2011), the Court of Appeals held that, in correcting sentencing errors, the sentencing judge is not “supposed to do anything at resentencing other than correct the discrete error prompting the resentencing in the first place.” Id., citing, People v. Yannicelli, 40 NY2d 598, 602, 389 N.Y.S.2d 290, 357 N.E.2d 947 (1976)(it was error for the trial court to revisit the defendant’s entire sentence when a procedural mistake in imposing a fine was the sole defect in the original sentencing and thus “the only reason why resentencing was ordered.”); People v. Harrington, 21 NY2d 61, 286 N.Y.S.2d 477, 233 N.E.2d 456 (1967) (although the order, in form, was vacated by reason of a ministerial error, the reason for the remand was merely to correct this mistake and therefore the net sentence should not have been changed). In Lingle, the Court of Appeals held that since “a trial court lacks discretion to reconsider the incarceratory component of a defendant’s sentence at a resentencing to correct a Sparber error1, the Appellate Division may not reduce the prison sentence on appeal in the interest of justice. Lingle, supra at 635. Thus, once the sentence of incarceration has commenced, absent some statutory authority, the sentencing court lacks the jurisdiction to suspend or interrupt the sentence. People ex rel. Woodin v. Ottaway, 247 NY 493, 495-96 (1928). Here, defense counsel asserts that this Court can commute the defendant’s sentence of incarceration pursuant to Penal Law §70.40(2)[Fredette Affirmation, s 9-10]. The defendant’s reliance on Penal Law §70.40 is misplaced. Penal Law §70.40 provides, in pertinent part, as follows: 2. Definite sentence. A person who is serving one or more than one definite sentence of imprisonment with a term or aggregate term in excess of ninety days, and is eligible for release according to the criteria set forth in paragraphs (a), (b) and (c) of subdivision one of section two hundred seventy-three of the correction law, may, if he or she so requests, be conditionally released from the institution in which he or she is confined at any time after service of sixty days of that term, exclusive of credits allowed under subdivisions four and six of section 70.30. ***** Conditional release from such institution shall be in the discretion of the parole board, or a local conditional release commission established pursuant to article twelve of the correction law, provided, however that where such release is by a local conditional release commission, the person must be serving a definite sentence with a term in excess of one hundred twenty days and may only be released after service of ninety days of such term. Penal Law §70.40(2)(emphasis added). Pursuant to the Practice Commentaries of Penal Law §70.40, “[i]nitially, the Board of Parole was exclusively responsible for deciding whether to grant conditional release. In 1989, the Legislature authorized the creation of a “local conditional release commission” in the City of New York and in each county of the State outside the City of New York to assume the responsibility, in lieu of the New York State Board of Parole, for the conditional release of inmates serving a definite sentence of imprisonment within the City or county, as the case may be.” (Emphasis added). Thus, the Board of Parole or local conditional release commission, and not the courts, are “exclusively responsible” to determine applications to commute sentences under Penal Law §70.40(2). Even if this Court had the authority to consider the merits of the defendant’s motion, defendant’s motion would be denied. While the defendant correctly notes that Centers for Disease Control and Prevention and the National Institutes of Heath have recommended “social distancing” (i.e.; staying at least six feet away from others) in response to the COVID-19 pandemic epidemic, the defendant has failed to demonstrate that his sentence of incarceration in the Warren County Jail has placed him at a greater risk of infection. The People correctly note that the Warren County Sheriff’s Department has taken extensive measures to avoid contamination in the jail including, but not limited to, prohibiting outside visitation, virtual court appearances and eliminating intermittent (weekend) incarceration. The defendant has also failed to assert, let alone prove, that any positive cases of COVID-19 infection have occurred at the jail. Based on the foregoing, the defendant’s application to commute his sentence is denied. Dated: April 9, 2020
