New York Law Firm Gets Two DWI’s Dismissed on the Same Day in the Same Courtroom

May 28, 2015

Two New York DWI cases were dismissed in back to back victories, in the same Court on the same day, yesterday. The unusual drama played out in a New York County Criminal Court courtroom, last week as the Judge dismissed DWI charges against two separate defendants. Both dismissals were based upon violations of the defendants’ speedy trial rights, although under two different theories and under two different sections of the New York Criminal Procedure Law. In addition, the two DWI’s were very different. One DWI was a refusal, charged as a “common law” DWI under sec 1192(3) of the New York Vehicle & Traffic Law. The second DWI, was based upon a very high breath test, (.159) and was charged under VTL 1192 (2) and 1192 (3). Both were in very different procedural stages.

The first DWI charge to be dismissed, yesterday, was the DWI based upon a refusal to take a breath test. That dismissal was based upon a violation by the prosecutor of the defendant’s statutory speedy trial right codified under section 30.30 of the New York Criminal Procedure Law and which requires the prosecutors to be ready for trial within 90 days of the arraignment. (How that 90 days is calculated is the subject of other blogs on this site and is beyond the scope of this blog.) However, under the current state of the law (and there is a case up on appeal right now to clarify this issue) when a Driving While Intoxicated under VTL 1192 (2) or (3) is charged on the same docket as the traffic infraction of Driving While Ability Impaired by Alcohol under VTL 1192 (1) and the Driving While Intoxicated is dismissed for violation of statutory speedy trial rights, the Court cannot dismiss the lesser charge of Driving While Ability Impaired. Therefore, while the more serious DWI charge was dismissed, the defendant in that case is still charged with the lesser traffic infraction of DWAI.

The second DWI case to be dismissed yesterday was the case involving the very high breath reading of .159 (almost twice the legal limit of .08). The second case is about six months older than the first case. In this case, the DWI, the more serious charge, was dismissed approximately six months ago for violation of the defendant’s statutory speedy trial rights, leaving only the traffic infraction of Driving While Ability Impaired. After six months of the prosecutors not being ready for trial and making several motions to dismiss the remaining charge for violation of constitutional speedy trial rights (as opposed to statutory speedy trial rights), the Judge dismissed the sole remaining charge of Driving While Ability Impaired.

The difference between statutory and constitutional speedy trial rights is again, well beyond the scope of this blog. However, experienced criminal defense lawyers should constantly be aware of the speedy trial clock and do their best to use speedy trial as a potential defense in DWI and other criminal cases.

Tilem & Associates Beats Another Handgun Ammunition Charge at Local Area Airport

April 29, 2015

Again, at JFK airport in Queens, New York, Tilem & Associates beat another handgun ammunition charge after a client was found bringing handgun ammunition through the TSA screening area. As described in a previous blog, the New York City administrative code makes it illegal to possess handgun ammunition unless a person is licensed to possess a pistol or unless the person is a dealer in rifles or shotguns.

As described in the previous blog, section 10-131 of the New York City Code is somewhat convoluted and specifically 10-131(i)(3) contains two exceptions right in the statute. 1. that the law does not apply to a person “authorized” to possess a pistol or revolver. 2. that the law doesn’t apply to a dealer in rifles and shotguns. As explained previously, when a statute in New York contains an exception within the statute, the exception must be both pleaded and proved. In other words, the police are required to allege both that the defendant was not authorized to possess a pistol or revolver and that the defendant was not a dealer in rifles and shotguns. Absent those specific allegations in the accusatory instrument, the case should be dismissed.

This is unusual because, for example, in drafting a charge for possession of an illegal pistol, the police or prosecutor would not be required to establish that person was not authorized to possess the pistol. Rather, the possession of a license or some legal authority to possess the weapon is an exemption contained in a different statute. Since the exception is not found within the statute but rather outside the specific statute the police or prosecutor do not need to plead or prove the exemption.

Given the complexities involved in deciding when it is appropriate to move to dismiss a charge based upon the facial insufficiency of the accusatory instrument, and based upon the nuances of drafting a legally sufficient instrument, it is essential to have an experienced criminal defense lawyer review the charges before an arraignment to be able to advise about the best defense. Many criminal defense lawyers are also former prosecutors who spent years drafting accusatory instruments. Many others have reviewed many accusatory instruments as criminal defense lawyers. It is important to find a lawyer that you can trust to offer you the very best advise on how to defend yourself.


January 6, 2015

New York gun crimes law firm Tilem & Associates is pleased to announce another victory in a firearms related case, winning a full dismissal of all charges after a person was charged with possessing handgun ammunition and a handgun magazine at JFK airport. As reported almost 6 years ago in our blog about New York City’s ban on commonly possessed items, possession of handgun ammunition and ammunition feeding devices are illegal in the five boroughs of New York City under New York City Administrative Code Section 10-131. That section makes it a misdemeanor, to possess these items punishable by up to one year in jail.

The difficulty with section §10-131 is that it is very long, containing a large number of subdivisions, poorly written and has a large number of exceptions written into the statute. §10-131 subdivision (i)(3) states in pertinent part: “It shall be unlawful for any person not authorized to possess a pistol or revolver within the city of New York to possess pistol or revolver ammunition, provided that a dealer in rifles and shotguns may possess such ammunition.”

In the case at JFK airport, the police officer in the accusatory instrument alleged only, in pertinent part that “. . . at Terminal 5 – JFKIA main screening Lane 13, suspect was in possession of two magazines holding six rounds of 9mm ammunition in each.” Yet, it is a well settled principle of New York law that where an exception is contained within a statute the prosecutor or the police are required to disprove the exception. In this case for example the police would have been obligated as a matter of law to establish that the accused was not a dealer in rifles and shotguns. Since the police failed to make that accusation, the accusatory instrument was insufficient as a matter of law and needed to be dismissed.

This situation is different than, for example, than illegal possession of a firearm. Those statutes do not contain any exceptions for a person who possesses a license or for a police officer. Rather, those are exemptions found in a different section and therefore do not need to be pleaded and proved by the police or prosecutor.

A similar argument was made for the separate charge of possessing an ammunition feeding device. That section includes a large number of exceptions including the fact that the defendant was not a licensee or permittee authorized to possess a pistol that accepted the ammunition feeding devices.

The New York Criminal Procedure Law requires that all local court accusatory instruments be sufficient on the face of the instrument and requires dismissal of instruments that are not sufficient on their face under most circumstances. Here the police officer drafting the instrument failed to establish that the exceptions did not apply but also failed to establish other elements of the offense.

Quoting the deficiencies in the ammunition feeding device charge from the motion to dismiss: “1. That the defendant possessed a “ammunition feeding device”; 2. that it was “designed for use in a firearm”; 3. that the defendant was not a “pistol or revolver licensee or permittee”; 4. that the defendant was not licensed to possess a pistol that accepted that ammunition feeding device”; 5. that the device was capable of holding more than 17 rounds; and 6. that the device extended below the grip.”

Quoting the deficiencies in the ammunition charge from the motion to dismiss: “1. That defendant possessed pistol or revolver ammunition; 2. That Defendant was not authorized to possess a pistol or revolver; 3. That defendant was not a dealer in rifles and shotguns.”

The bottom line is read the accusations in the accusatory instruments carefully. Read the statutes carefully. As a result of good lawyering and bad drafting by the police, the accused was completely vindicated and justice was served.


June 18, 2014

New York Criminal Defense law firm, Tilem & Associates has seen an increase in the number of Reckless Driving tickets and other related moving violations, which is consistent with recent media reports that a crackdown on hazardous driving is underway by the NYPD. According to the media a 24 hour per day, 7 day per week crackdown will target drivers who speed, run red lights and use cell phones or other portable electronic devices. These violations which are among the most common also carry the most points and can have the greatest impact on a driver's license and a driver's insurance rates. A reckless driving ticket carries 5 points and is a criminal offense under New York Law, a cell phone ticket, which up until several years ago was a no-point violation now also carries 5 points. Speeding tickets can carry anywhere from between 3 and 11 points and Red light tickets carry 3 points. A motorist generally loses their license at 11 points.

The latest NYPD reckless driving crackdown is consistent with Mayor de Blasio's "Vision Zero" plan which has the goal of eliminating traffic fatalities and comes after a serious accident left a pedestrian serious injured after crossing Linden Boulevard in Brooklyn earlier this week.

"The good news for motorists is that an experienced traffic lawyer can generally get substantial reductions in the points associated with tickets and very often eliminate the points altogether," according to traffic lawyer Jasmine Hernandez. "An experienced traffic lawyer can especially have the greatest impact on reckless driving tickets which are among the most serious," according to Ms. Hernandez.

Reckless driving while an extremely serious charge can also be very difficult to prove, giving experienced lawyers the ammunition to obtain favorable dispositions for their clients which can often include pleas to no-point parking violations or other minor infractions. Courts have held in the past that mere evidence of a collision is insufficient to establish reckless driving. Similarly, the Courts have found that mere evidence of speeding is insufficient. Rather, Courts generally require evidence of multiple infractions at the same time to sustain a conviction for reckless driving. Since the stakes are so high in reckless driving cases (the potential for 5 points and the potential to have a permanent criminal record among other consequences), any motorist charged with reckless driving would be well advised to seek the advice of an experienced criminal attorney.

Tilem & Associates offers free consultations over the phone to anyone charged with Reckless Driving, speeding, cell phones, red lights or other traffic offenses. To schedule a free consultation you can visit us on the web at or call 877-DRSUMMONS (877-377-8666)

All Marijuana and Statements Suppressed in Nassau County Prostitution and Drug Case

May 7, 2014

Tilem & Associates, won a major victory after a Judge in Nassau County ordered that all evidence be suppressed in a Marihuana and Patronizing a Prostitute case. The evidence that was suppressed included both written and oral confessions as well as about a pound of Marihuana, a scale, grinder, baggies for packaging and a large amount of cash (over $4000). All of the evidence was ordered suppressed by the Judge after two detectives testified at a suppression hearing held in February and the Judge questioned their credibility.

The Charges dated back to an incident that occurred back in January 2013 at a motel in Nassau County, Detectives were conducting surveillance on a motel room that they believed was being used by prostitutes. When a male entered the room and left about 20 minutes later he was stopped by the police and questioned about what happened inside the motel room. Police also claimed that they observed marijuana in plain view in his car. They got the male to take them back up to the motel room to identify the prostitutes and they got the male to consent to searches of his car and home and waive his Miranda warnings and then write out a written confession

Tilem & Associates principal, Peter H. Tilem handled the suppression hearing and cross examined the two detectives. Upon cross-examination many inconsistencies were revealed in the testimony of the two detectives and it was revealed for the first time that they likely forcibly stopped the male by grabbing his car keys from his hand with out any lawful justification. Mr. Tilem, successfully argued that if the initial stop of the male was unconstitutional then all evidence that was recovered after the stop, including all statements needed to be suppressed as the "fruit of the poisonous tree" a legal doctrine that requires evidence tainted by unlawful police conduct to be suppressed. In addition, Mr. Tilem cited the case of People v. DeBour which controls under what circumstances a police officer may stop, frisk, search and detain a person they encounter on the street.

In a written decision the Court found that "the testimony of the two detectives. . . lacked a consistency which should be expected of credible testimony." In addition, the Court found that "the stop of the defendant . . .failed to meet the legal requirements for a stop." "Further, the taking of the keys. . .amounted to a forcible detention which lacked a founded suspicion. . ."

In the end, the Court accepted all of Mr. Tilem's arguments and suppressed all of the physical evidence and statements ad this case stands as a model of how many cases involving possession of guns or drugs should be handled. With "stop and frisk" continuing many thousands of citizens are illegally stopped, detained and searched every year. This case sends the message that the police must follow the Constitution and the law and failing to do so will have consequences.

Westchester Journal News Publishes Names and Addresses of Licensed Gun Owners Now We Publish The Reporter's Name and Address

December 26, 2012

As we already reported in an earlier blog, earlier this week Westchester Journal News Reporter Dwight R. Worley thought it was news worthy to publish the names and addresses of all licensed gun owners in Westchester and Rockland Counties. Under the First Amendment that is his right. However Dwight R. Worley also has a home address and he apparently has a licensed Smith & Wesson .357 magnum revolver at that address. We thought that the old expression "what's good for the goose is good for the gander" was perfect for just this situation, so here it is:

Dwight R Worley
23006 139 Ave
Springfield Gardens, NY 11413

(718) 527-0832


December 23, 2012

Firearms defense firm Tilem & Campbell is very unhappy to report that a local newspaper has outed local law-abiding gun owners. In the modern day equivalent of the scarlet letter the Journal News has published an article in today's paper with an interactive on-line map that discloses the names of addresses of all law abiding gun owners in Westchester and Rockland Counties. The information was obtained by a Freedom of Information law request to the County clerks of each county.

Exactly the point of the article is not clear but is an apparent attack on law abiding gun owners who may face consequences at their work or in social circles now that their ownership of firearms has been publicized. The map also appears to have the names and addresses of several sworn police officers who for obvious reasons generally keep their residence information a secret. The article, an apparent reaction to the tragic shooting in Newtown, Connecticut, ironically puts everyone in danger in that it tells would be murders, terrorists, psychos and other people who are inellegible to purchase guns lawfully, exactly where they can steal them.

The basis for such a publication unfortunately has its basis under New York law. No civilian may lawfully purchase or possess a firearm in New York without a permit issue under Penal Law § 400.00 which defines the types of gun license in New York and the rules for issuing them. Penal Law § 400.00(5) specifically requires the filing of all approved applications and goes on to state: "The name and address of any person to whom an application for any license has been granted shall be a public record." Penal law § 400.00(5). Apparently, Paul Piperato, the Rockland County Clerk, expressed some reluctance in giving up these records even as he apparently released the records under New York Law. "You have judges, policemen, retired policemen, FBI agents — they have permits,” Piperato said. “Once you allow the public to see where they live, that puts them in harm’s way.”

What is most unfortunate is that the newspaper only published the names of addresses of those who lawfully purchased their firearms but specifically excluded the names of criminals who unlawfully possess firearms since those records are not readily available. The individuals whose names were released not only underwent an expensive and time consuming process but were thoroughly vetted by a police investigation and then had their licenses issued by a County Court Judge. Those who avoided this process were obviously not on the list.

It appears that the all out assault on lawful gun owners has begun. Already, this firm has been contacted by lawful gun owners who fear losing their licenses after the brutal murders in Newtown. Any lawful gun owner who faces any action to suspend or revoke their licenses should contact this firm immediately. Likewise, anyone who is denied a license should contact us to discuss their options.

Tilem & Campbell attorneys can be reached at 877-377-8666 or visit us on the web at


December 21, 2012

In another stunning victory for Westchester County based DWI attorney Peter Tilem, a Yates County man had his conviction reversed on appeal because the Trial Judge allowed his own mother-in-law to sit on the jury.

In a December 20th Decision, Acting Yates County Court Judge Dennis Bender reversed Richard Regan’s July, 2011 Driving While Intoxicated Conviction because the trial judge, Benton Town Justice Dave Grace, allowed his mother-in-law to serve on the jury. While Regan’s trial counsel, Dave Mashewske failed to object to Judge Grace’s mother-in-law sitting on the jury, the County Court placed the ultimate responsibility on Judge Grace. In reversing the conviction, the County Court held that Judge Grace: “should not have permitted his mother-in-law to serve on the jury and she should have been disqualified on the Court’s own initiative.” Allowing Judge’ Graces mother-in-law to sit on the jury, argued Campbell, violated Regan’s constitutional right to a fair trial by a panel of impartial jurors.

The victory is one of a recent string for Mr. Campbell who just last week had all of the evidence in a Westchester County DWI suppressed. In that case, Mr. Campbell was able to successfully argue that the driver was unlawfully stopped and seized because the police office lacked probable cause that the driver was speeding.

In the Benton Town case, Mr. Regan unfortunately served six months in jail after his conviction for DWI and before hiring Mr. Campbell to file the appeal. As a result of the successful appeal Mr. Regan's conviction was thrown out. It is unclear at this point whether the prosecutor will seek a new trial.

These two recent victories serve to solidify Mr. Campbell's reputation as one of the most skilled, knowledgeable and successful DWI's in New York State. While victory can never be assured, any one charged with a DWI in New York would be well advised to contact Tilem & Campbell for a fast, free and friendly telephone consultation with Mr. Campbell. Many of Mr. Campbell's greatest victories have been after another attorney has advised his/her client to plead guilty or as in the case of Mr. Regan after another lawyer lost the case. Before pleading guilty or going to trial with any lawyer, consider a second opinion from Mr. Campbell.


October 25, 2012

As a New York criminal defense lawyer that handles an inordinate number of gun related cases, I hear a large number of stories about the interaction between the police and law abiding gun owners. After more than 20 years, however, very few cases shock me. What happened after a Westchester County gun owner called a suicide hotline bears repeating as a cautionary tale to law abiding citizens everywhere.

A Westchester County gun owner owner got the surprise of his life when he called a suicide hot line to talk about tools to manage depression. After the gun owner's wife from whom he had been separated introduced him to her new boyfriend, and after having suffered a medical condition the loss of his home and the break up of his marriage the gun owner decided to call a suicide help line for help and instead ended up with more trouble.

The gun owner clearly remembers calling 1800 SUICIDE to ask about tools for managing depression. He also recalls that he started out the conversation by telling the operator that he wasn't going to hurt himself or anyone else but that he simply wanted information. The operator then steered the conversation to whether or not there was a child in the house (there was) and whether or not there were guns in the house (there were). Within a very short time of answering that there were guns in the house, and while still on the telephone, the Westchester County gun owner heard a knock at the door. It was the police.

When he answered the door, he was informed by police that he called the Suicide hotline and he has guns in the house, its mandatory that they take them. He was then led to a patrol car while the police took the .357 magnum he kept for protection. The police seized the gun without a warrant but left other guns in a safe that contained a collection of guns. The police drove the gun owner to the County hospital.

Unfortunately, the nightmare didn't end there. After being held against his will for several days, the gun owner was released to the custody of the police who then drove him home to take the rest of his guns without a warrant. The gun owner was made to open the safe while the police inventoried and seized his guns. To date, two months later the police have refused to release the guns putting the burden on the gun owner to go to Court to get a Court order for the police to release the guns.

For the gun owner, a momentary call to get information about depression resulted in a nightmare that could come right out of a story from the Soviet Union. Here in the United States a gun owner seeking help ends up with his guns seized without a warrant and held without charges.

If you have any legal issue regarding the ownership, possession, sale or licensing of firearms or would like to share your story, please contact the law firm of Tilem & Campbell for a free and friendly consultation over the telephone or visit us on the web at

Appearance Tickets In New York: Service Of An Appearance Ticket Or A Summons For Purposes of Commencing or Prosecuting a Criminal Action Against a Corporate Defendant [CPL 600.10]

June 5, 2012

Corporations in New York can be charged with criminal and non-criminal offenses. Corporations are often charged with regulatory violations some of which are indeed criminal. These include zoning, building, fire safety and health offenses but can also be charged with criminal offenses. Service of an appearance ticket on a corporate defendant in a criminal action is not guided by Article 150 of the New York Criminal Procedure Law as it is for service on a natural person. Instead, service of an appearance ticket upon a corporate defendant in a criminal action is guided by CPL 600.10 which provides in pertinent part:

The court attendance of a corporation for purposes of commencing
or prosecuting a criminal action against it may be accomplished by
the issuance and service of a summons or an appearance ticket if
such action has been or is about to be commenced in a local criminal
court, and by a corporate summons if such action has been commenced
in a superior court.

CPL 600.10(1)

Keep in mind, service of an appearance ticket on a corporate defendant must comport with CPL 600.10 only when the charges are criminal. Whether the criminal action is in local criminal court or superior court provides a key distinction. The actual commencement of a criminal action is not required before an appearance ticket or summons can be issued and served to secure a corporate defendant’s attendance in local criminal court. With regard to local criminal court actions, the summons or appearance ticket can be issued and served if a criminal action “has been or is about to be commenced in a local criminal court. . .” Id.
However, a corporate defendant’s attendance in a criminal action commenced in a superior court can only be secured by the issuance and service of a corporate summons (not an appearance ticket) pursuant to [CPL Art. 600] if a criminal action “has been commenced in a superior court. . .” Id.
The summons or appearance ticket:

must be served upon the corporation by delivery thereof to an officer, director, managing or general agent, or cashier or assistant cashier of such corporation or to any other agent of such corporation authorized by appointment or by law to receive service of process.
CPL 600.10

The problem in terms of fair notice to a corporate criminal defendant is that this statute allows for the summons or appearance ticket to be delivered to, among others, “any other agent of such corporation authorized by appointment or by law to receive service of process.” Id. (emphasis supplied). Therefore, because the Secretary of State is deemed to be an agent for service of process for all domestic corporations and foreign corporations authorized to do business in the State (Bus. Corp. Law 304), service of an appearance ticket issued against a corporate defendant on the Secretary of State pursuant to Bus. Corp. Law 306 has been held sufficient to confer the criminal court’s jurisdiction over such corporate defendant. People v. New York Paving, Inc., 155 Misc.2d 934 (N.Y. City Crim. Ct. 1992).

Furthermore, service of a complaint in a civil action on a New York Corporation or foreign corporation authorized to do business in New York can also be accomplished by service on the Secretary of State. The Secretary of State then mails the complaint to the business. See Bus. Corp Law 306 and 307. Therefore, it is imperative that New York Corporations or foreign corporations authorized to do business in New York notify the Secretary of State of any change of address. These corporations must update the address they have on file with the Secretary of State otherwise they risk defaulting in both criminal and civil actions where the initial documents (complaints in civil cases and summons in criminal cases) are served through the Secretary of State.

For more information about appearance tickets for both individual and corporate defendants in New York, feel free to contact Tilem & Campbell toll free at 1-877-377-8666 or visit us on the web at More detailed information can be found in our book “Appearance Tickets in New York” available at


May 27, 2012

Recently I was contacted by a person who had been issued a ticket for passing a stopped school bus (VTL 1174 “Overtaking And Passing School Bus) by a New Rochelle Police Officer who left the ticket with this person’s son at the front door of his home located in White Plains, New York. Briefly, this gentleman’s front doorbell rang. His nineteen year old son answered the door and was greeted by a New Rochelle Police Officer who asked him if he was the owner of a particular vehicle that was parked in his driveway. The son said he wasn’t but that his dad was at which point the New Rochelle Police Officer handed the son a traffic ticket for his father for passing a stopped school bus (VTL 1174).

I later learned that the New Rochelle Police Officer had not witnessed the alleged improper passing of the school bus nor had any other police officers. However, a school bus driver had written down the license plate number of a vehicle the school bus driver alleged had failed to stop for the school bus which had stopped, activated its lights and stop-sign and was discharging school children. The school bus driver then contacted the police, told them what he witnessed and gave them the plate number.

The police ran the plate number and learned the make, model, year and color of the vehicle and who it was registered to. The make, model, year and color matched the description given by the school bus driver. That’s what led the New Rochelle Police to this person’s home in White Plains, NY. However, the police cannot issue a traffic ticket to a person by leaving it with someone else.

As I’ve explained in other articles, a traffic ticket, uniform traffic ticket, simplified traffic information, etc are all Appearance Tickets. (See e.g. People v. Tyler, 1 N.Y.3d 493 (2004)(speeding ticket is an appearance ticket) see also People v. Hollinger, 15 Misc. 3d 130A (App. Term 2nd Dept. 2007)(uniform traffic ticket is an “appearance ticket”).
Because they are also appearance tickets, traffic tickets issued to individuals must be personally served. [CPL 150.40(2)]. Furthermore, the police can only issue an appearance ticket for non-criminal offenses if such non-criminal offense is committed in their presence. See CPL 150.20(1) and People v. Genovese, 156 Misc. 2d 569 (J. Ct. 1992)

Here, the officer did not issue the ticket to the actual defendant but instead the officer left it with the defendant’s son. However, this is not grounds for dismissal of the case. A defendant issued an appearance ticket cannot appear in the criminal action for the sole purpose of challenging the court’s jurisdiction based upon improper service of said appearance ticket if a sufficient accusatory instrument has been filed.

This is because the appearance ticket has nothing to do with the court’s jurisdiction. The appearance ticket is merely an invitation to appear in court. It is the subsequent filing of a sufficient accusatory instrument that confers jurisdiction. Therefore, an improperly served appearance ticket is not a ground for dismissal of the underlying action although it could be a ground to dismiss a charge of failing to appear on an appearance ticket under PL 215.58. People v. Byfield, 131 Misc.2d 884 (N.Y. Crim. Ct. 1986).

For more information, feel free to contact Tilem & Campbell toll free at 1-877-377-8666 or visit us on the web at More detailed information can be found in our book “Appearance Tickets in New York” available at


May 17, 2012

In New York, as elsewhere, probationary sentences for criminal charges play a major role in the criminal justice system. Incarceration is rarely appropriate. When a judge sentences a defendant to a sentence that involves probation, it is the judge that determines the conditions of such probation. By law, it is the judge who determines a sentence and the conditions of that sentence. The sentencing judge cannot delegate his or her sentencing authority by allowing the Department of Probation to determine a defendant’s probation conditions. It is improper for sentencing judge to simply tell a defendant at sentencing that the Department of Probation will determine the defendant’s probation conditions. Such a blanket delegation of total discretion to the department of probation without any court-imposed parameters and guidance is improper.

“Sentenc[ing] is primarily a judicial responsibility.” People v. Selikoff, 35 N.Y.2d 227, 240 (1974). The granting of probation is a judicial process exercised in the discretion of the sentencing court. People v. Oskroba, 305 N.Y. 113 (1953). When a defendant is sentenced to probation, the Court, not the probation department, sets the terms and conditions of probation. PL § 65.10(1).

New York Criminal Procedure Law § 410.10(1) provides in part, “When the court pronounces a sentence of probation . . . it must specify as part of the sentence the conditions to be complied with.” This duty of the court to specify probation conditions cannot be delegated to the probation department or to any other party. See People v. Fuller, 57 N.Y.2d 152 (1982)(“Although a sentencing court may utilize the Probation Department “to act as a preliminary fact finder and submit its recommendations in a written report . . . in the end it is for the court, which alone must impose the sentence, to decide how much of the report, if any, to adopt and how much to reject”).

This sentencing structure has never been interpreted to allow the probation department to set the conditions of probation. To the contrary “the terms of probation must be prescribed by the court and not the probation officer”. People v. McDonald, 136 Misc.2d 1047, 1050 (N.Y.Sup. 1987)

In Darvin M. v. Jacobs, 69 N.Y.2d 957, 964 (1987), the Court of Appeals stated “in our system, the role of the Probation Department, an unelected administrative agency, is to supervise probationers (see, CPL 410.50[2]; Executive Law § 255[2] ) [and] enforce the conditions of probation imposed by the sentencing court (9 NYCRR 352.3[b] [1] )”

In fact, it has been held that it is against “public policy to allow a trial judge to delegate his sentencing discretion to an administrative agency.” People v. Nichols, 85 A.D.2d 753, 754 (3rd Dept. 1981). Furthermore, the rules pertaining the Supervision of Persons Sentenced to or Placed on Probation define the term “conditions of probation” as “specific supervision requirements prescribed by the court as part of the probation disposition to assist the probationer in leading a law-abiding life.” 9 NY ADC 351.1(e)(emphasis supplied). The same rules further provide “Courts are required to impose specific conditions relating to supervision and other conditions required by law . . .” 9 NY ADC 351.7(emphasis supplied)

In People ex rel. Perry v. Cassidy, 23 A.D.2d 706 (3rd Dept. 1965), the Third Department held that it was improper for the sentencing court to order a youthful offender placed on probation “on such terms as the probation officer shall provide for you” because such a statement failed to determine the conditions of probation.

Accordingly, the sentencing court sets the conditions of probation based upon what it deems reasonably necessary. A sentencing court cannot simply defer all discretion to probation. Such a “whatever probation says” condition is improper.

For more information about this or any other criminal justice issue in New York, please contact Tilem & Associates toll free at 1-877-377-8666 or visit us on the web at