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.

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