Published on:

Mothers Against Drunk Driving


A Nassau Criminal Lawyer said that, this is an emotionally charged CPLR article 78 proceeding which has its genesis in a tragic incident in which two young pedestrians, were killed when a motor vehicle operated by the defendant struck them. Defendant was DWAI. The accident occurred in Nassau County. Flaherty, in response to the filing against him of a superior court information, entered a guilty plea in Nassau County Court to two counts of vehicular manslaughter in the second degree and one count of operating a vehicle under the influence of alcohol. On May 2, 1988, he was sentenced to two concurrent indeterminate terms of imprisonment with a minimum sentence of two and one-third years and a maximum sentence of seven years on the vehicular manslaughter convictions and a concurrent definite term of one year in prison for driving while under the influence of alcohol. He was remanded to the custody of the State Department of Correctional Services (DCS) to serve his sentence.
A Nassau Rape Lawyer said that, in 1987, the New York Legislature added Article 26-A to the Correction Law which created a shock incarceration program. The program’s stated purpose is to deter young, non-violent offenders from future crime. Correction Law § 865(1) specifies the eligibility requirements for the program. On June 27, 1988, respondent Flaherty was received into the custody of the Corrections Department at the Downstate Correctional Facility Reception Center. While at the reception center, his eligibility was reviewed and the selection process commenced. The Shock Incarceration Selection Committee, established by Correction Law Section 866(2), approved respondent Flaherty’s application on July 29, 1988 for permission to participate in the shock incarceration program and forwarded his application to DCS’s central office for final review.

On August 2, 1988 defendant was selected and approved by the central office for the program. He satisfied the then-existing eligibility criteria. He was under the age of 26, his sentence was indeterminate, he would be eligible for parole within three years, this was his first felony conviction, he was between the ages of 16 and 26 when the crime was committed and he was not convicted of any specifically enumerated disqualifying crimes. On August 22, 1988, he commenced his actual participation in the program. It was not until August 22, 1988 that enough inmates had been selected to form a “platoon” to commence the program. After he entered the program, a form letter was sent on August 29, 1988 by the New York State Division of Parole to the sentencing judge, the Nassau County District Attorney’s office and defendant’s attorney advising that he would be eligible for parole release consideration, was scheduled to appear before the New York State Board of Parole during the month of January, 1989 and that a determination whether to release him to parole supervision would be made at that time. The letter sought any statements or recommendations the recipients might care to present with regard to his or her knowledge of the case. The letter contained the following sentence:

“District Attorneys receiving this letter may wish to advise the victim or victims of the date of the parole hearing, providing them with information as to how they may make their concerns known to the Board”. The letter concluded stating that if no reply was received within 30 days it would be assumed that the recipient did not wish to make any recommendations.

The sentencing judge responded by letter dated September 2, 1988. She stated that there was no additional information in the possession of the Court that would be of assistance in making a determination. She offered no recommendation. The District Attorney denies having received the letter. While defendant was participating in the shock incarceration program, the Legislature amended Correction Law § 865(1) effective September 1, 1988 to exclude anyone convicted of vehicular homicide from being eligible to participate in the program. Thus, under Section 865(1) as amended, he would no longer be eligible for admission into the program.
A Nassau Sex Crime Lawyer said that, defendant successfully completed the six-month program. On February 16, 1989 he received a certificate of earned eligibility issued pursuant to Correction Law § 805. He was then scheduled to be released on parole on February 16, 1989. Having become informed of his impending release, the District Attorney of Nassau County initiated this article 78 proceeding on February 15, 1989 against Commissioner of the Department of Correctional Services, and Director of the New York State Division of Parole, seeking a writ of prohibition to bar the respondents from releasing him on parole. The petitioner contends that DCS was required to terminate his participation in the program as of September 1, 1988 as the inmate was no longer eligible to participate by virtue of the Legislature’s amendment to Section 865.

A Nassau Rape Lawyer said that, on February 15, 1989 the petitioner secured an ex parte order restraining the respondents from releasing defendant pending the hearing of the application. On the return date of the application on February 17, 1989, the court ordered that defendant be joined as a necessary party-respondent and determined that the proceeding was timely commenced and not barred by laches. The temporary stay preventing his release was continued and the proceeding was adjourned until March 3, 1989. On March 3, 1989, defendant appeared in the proceeding as a respondent and sought dismissal of the proceeding and an order vacating the stay. The court continued the stay pending a determination of the merits. Defendant remains incarcerated after arraignment.

The record before the court establishes that defendant, based upon his successful completion of the shock incarceration program, has been awarded a certificate of earned eligibility and has been granted release on parole effective February 16, 1989. The temporary restraining order prevented his release. Defendant’s impending release has engendered much criticism from the families and friends of the victims and others including Mothers Against Drunk Driving (MADD). Most of such communications convey requests, pleas and/or demands that the court undo what has hitherto been done and substitute its judgment for that of the screening committee which permitted him, as a then-eligible inmate, to participate in the shock incarceration program. Suffice it to say that this court is required to decide the issue raised before it and the record before the court raises no issue of substitution of judgment for an administrative decision made over seven months ago.

The issue in this case is whether upon the amendment of the Correction Law on September 1, 1988, officials of the New York State Department of Correctional Services were required to immediately remove defendant and anyone else of like circumstance from the shock incarceration program. Stated another way, did it become illegal on and after September 1, 1988 for defendant to participate in the program.

The court’s analysis starts with the premise that the petitioner has standing to initiate this challenge since a District Attorney is entrusted with the responsibility to insure that criminal sentences imposed in his county are carried into effect.

Correction Law § 865(1) as amended reads: 1. “An eligible inmate” means a person sentenced to an indeterminate term of imprisonment who has not reached the age of twenty-six years, who will become eligible for release on parole within three years, who has not previously been convicted of a felony upon which an indeterminate term of imprisonment was imposed and who was between the ages of sixteen and twenty-six years at the time of commission of the crime. Notwithstanding the foregoing, no person who is convicted of any of the following crimes shall be deemed eligible to participate in this program: (a) a violent felony offense as defined in article seventy of the penal law, (b) an A-1 felony offense, (c) manslaughter in the second degree, vehicular manslaughter in the second degree, vehicular manslaughter in the first degree and criminally negligent homicide as defined in article one hundred twenty-five of the penal law, (d) rape in the second degree, rape in the third degree, sodomy in the second degree, sodomy in the third degree, attempted sexual abuse in the first degree, attempted rape in the second degree and attempted sodomy in the second degree as defined in articles one hundred ten and one hundred thirty of the penal law and (e) any escape or absconding offense as defined in article two hundred five of the penal law.

Persons convicted of violent sex crimes are not allowed to participate in the shock incarceration program to obtain early release. The crime of vehicular manslaughter is an offense as, or more, serious than those which currently preclude participation in the shock incarceration program. To be found guilty of vehicular manslaughter, the defendant must be found to have been driving while intoxicated DWI and have committed negligent homicide. Yet, while persons convicted of negligent homicide are not allowed to participate in the shock incarceration program, persons convicted of the including offense of vehicular manslaughter are. This bill corrects this incongruity in the law. Persons who have been convicted of vehicular manslaughter are guilty of a very serious offense and should not be allowed the benefits of a shortened period of imprisonment through the shock incarceration program.

It is a basic tenet of statutory construction that absent an unequivocal expression of a contrary legislative intent, statutes and amendments are construed prospectively. A retroactive statute is defined as “one which takes away or impairs vested rights acquired under existing law”
In construing a statute the court first looks to the language of the statute to determine if retroactive application was intended. Here the amendment is silent except to indicate that its effective date is “immediately upon signature into law”. “Although it is not an inflexible one, there exists a presumption that statutes are intended to operate prospectively only and are directed towards the future. It is to be presumed that a law was intended to furnish a rule of future action to be applied to cases arising subsequent to its enactment. Retroactive operation of a statute is not favored and before a retroactive construction will be found, a clear expression of legislative intent must be found.

The court finds no words manifesting any intent on the part of the Legislature that the amendment to Correction Law § 865 be given retroactive operation. Looking to the memorandum submitted by the amendment’s sponsors, there is no indication that a retroactive application was intended. The court as part of its research reviewed the Governor’s bill jacket kept with reference to the subject amendment and among the numerous letters submitted both in support of and in opposition to the legislation, only one correspondent addressed the retroactivity issue. The respondent DCS, in a letter dated August 30, 1988 to the Governor’s counsel, stated, “Please note that inmates presently in the shock incarceration program who have been convicted of vehicular manslaughter in the first or second degree will not be removed from the program solely on account of such conviction”.

The Legislature was acutely aware of the “incongruous” situation whereby inmates convicted of vehicular manslaughter, such as respondent Flaherty, were permitted legally to apply for and participate in shock incarceration with the outcome being a significant reduction in the length of their minimum periods of imprisonment. The Legislature, in eliminating the eligibility of such inmates, acted prospectively. It failed to state that a retroactive application of the more restricted eligibility requirements was intended. The court cannot supersede the Legislature’s prerogative and direct retroactive application of the amendment in this case. Since respondent, at the time that his eligibility for the program was determined, satisfied all of the minimum requirements, respondent Department of Correctional Services acted within the scope of its delegated authority in admitting him into the program. The court holds that the respondent Department of Correctional Services after September 1, 1988 was not obligated to review his eligibility status for the purpose of imposing the more stringent eligibility requirements enacted by the Legislature. Having been found duly eligible to participate in the shock incarceration program, respondent was and is entitled to any benefits which accrued based upon his participation therein.

Accordingly, the court held that the petition is dismissed without costs.

Persons convicted of violent sex crimes are not allowed to participate in the shock incarceration program to obtain early release. If you are involved in a similar rape case, seek the legal advice of a Nassau Rape Attorney and Nassau Criminal Attorney at Stephen Bilkis and Associates.

Posted in:
Published on:

Comments are closed.

Contact Information