Section 876 Correction Law: Nothing in this article shall be construed to prejudice the eligibility of any prisoner participating in a work release program for the purposes of discretionary reduction of criminal sentence, parole or conditional release.
Section 205.16 Penal Law: A person is guilty of absconding from temporary release in the second degree when having been released from confinement in a correctional institution to participate in a program of work release, he intentionally fails to return to the institution of his confinement at or before the time prescribed for his return.
The necessary prerequisite to the triggering of the tolling provision of PL Section 70.06 is incarceration which, according to Black's Law Dictionary (Fifth Edition) means: imprisonment, confinement in a jail or penitentiary.
Based on the statutory language pertaining to work release programs as found in Sections 870 and 877 of the Correction Law and in Section 205.16 of the Penal Law, this Court finds that during the time the defendant was outside the Nassau County Correctional Center for participation in the Work Release Program, he was not confined or incarcerated.
All of the sections previously noted, unequivocally refer to a person in work release status as having been released from confinement.
In addition, this Court finds that if work release status was considered as confinement, the enactment of Section 876 of the Correction Law, Eligibility for reduction of sentence, parole or conditional release, would have been unnecessary.
While participating in the Work Release Program, the defendant during his work hours was outside the Nassau County Correctional Center and by being continued in the program, demonstrated that he functioned in society in a law abiding manner, thereby exempting such time from the tolling provision of PL Section 70.06.
In computing the time which this Court finds to be exempt from the tolling provision, this Court has determined that the criminal defendant, between July 30, 1986 and November 9, 1986, was released for an eleven hour period on each of seventy-three (73) different days.
Accordingly, this Court finds that eight hundred and three (803) hours, which transposes to thirty-three (33) days and eleven (11) hours, are exempt from the tolling provision.
Thus, the extension of the defendant's ten year Second Felony exposure terminated on October 7, 1986 which date is twenty (20) days prior to the commission of the present offense.
Therefore, this Court finds that the defendant has not been subjected to a predicate felony conviction for purposes of enhancing punishment for the present offense.