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Article 440 of the CPL


The application made herein is for an order granting the petitioner permission to attend the funeral of his father in Kingston, Jamaica.

The petitioner was convicted on his plea of guilty to attempted grand larceny in the second degree, a Class E Felony, and was sentenced by a judge of this court to serve a definite term of one year in the Nassau County Correctional Institution in East Meadow.

Subsequent to the commencement of his term of imprisonment, the criminal petitioner was permitted to enter the work release program by the jail authorities, which allowed him to pursue his regular employment during the day, returning to the custody of the authorities after work and on weekends.

Upon the death of his father and desiring to attend the funeral in Kingston, Jamaica, he applied to this court by Order to Show Cause for an Order directing the Warden of the County Jail to permit him to make the journey for that purpose. The brother of the petitioner had made the necessary travel arrangements and paid the expenses of the petitioner to enable him to fly to Kingston and return.

The criminal petitioner is a naturalized citizen of the United States and owns a home in Nassau County. The situation presents a novel clash between a sympathetic desire to assist the petitioner in performing his final filial duty to his father, the provisions of applicable statutes which restrict such desire, and the duty to enforce the law as set forth by the Legislature, the fountain of authority for the actions of the court.

In effect, the petitioner is asking this court to either interrupt the service of the sentence imposed, or, in some way, modify it so as to permit his attendance at the funeral.

At the outset, it should be noted that had the funeral situs been in Nassau County, no particular problem would have been encountered in making the necessary arrangements. Funeral orders have been made in the past and the prisoner has been accompanied by a member of the Sheriff’s department. It is the locale of this funeral that presents the problem.

Once sentence has been passed, a judge of the sentencing court is bound by Sec. 430.10 of the CPL. That statute reads as follows: Except as otherwise specifically authorized by law, when the court has imposed a sentence of imprisonment and such sentence is in accordance with law, such sentence may not be changed, suspended or interrupted once the term or period of the sentence has commenced.

Research does not reveal any precedent which would govern this particular situation. The language of Sec. 430.10 indicates that except where otherwise specifically authorized by law, the sentence cannot be modified. The question then is what changes or modification are otherwise specifically authorized by law.

Article 440 of the CPL sets forth a number of instances when such a modification can be made. For example, if there was a misunderstanding, a failure to advise defendant of his right to appeal, or fraud or trickery, a motion pursuant to Sec. 440.10 of the CPL can be entertained. But this is not the situation I have before me. Therefore, a motion to vacate under this section would be inapplicable.

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