Training Materials

Sentencing Exercises – Problems

Problem 1

Your client was arrested on Monday, March 14, 2011, and appeared for arraignment on Tuesday, March 15, 2011. She is offered a 10-day sentence if she wishes to plead guilty at arraignment.

A. If she takes the plea and sentence is imposed immediately, when can you expect your client to be released?

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A 10-day sentence would begin on March 15th and end on March 24th. The Department of Corrections deducts one day off the sentence as “good time” for every three days served. Three days of good time would be deducted from a 10-day sentence. The client also has one day of jail time for March 14th. After deducting the day of jail time and three days of good time, the defendant will serve the remaining six days. March 15th is the first day of the sentence and, after the remaining five days (March 16th, 17th, 18th, 19th, and 20th) are served, the sentence would conclude on March 20th. Since March 20th falls on Sunday, your client will be released on the preceding Friday, March 18th, per Correction Law §500-1 (early release when the actual release date falls on a weekend or holiday).

B. Your client refuses the plea and high bail is set. Since your client will be unable to make the bail, you want the case adjourned to the 170.70 day. What date do you request?

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170.70 day is five days, counting the date of arraignment and excluding Sundays. Thus, it would be Friday, March 18th.

C. Your client appears on the 170.70 day, pleads guilty, and is promised a sentence of four months.

1) What is the lowest possible classification of crime your client has pled guilty to?

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Class “A” misdemeanor. Note: Some felony sentences can be less than one year.

2) Can she be sentenced on that same day?

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Yes. C.P.L. §390.20(2)(b) requires that the Department of Probation prepare a pre-sentence report for all sentences over 180 days – L.2010 ch. 179. This can be waived in some circumstances.

D. The District Attorney converts the complaint into an information, the client cannot make bail, and she eventually takes the four-month jail plea on April 15, 2011. How much more time will she have to serve? (In other words, what is her expected release date?)

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The unadjusted release date of the four-month sentence is August 15, 2011 (May 15th to June 15th to July 15th to August 15th). Deducting the last date, the unadjusted sentence would conclude on August 14, 2011. The next step is to deduct the good time: one third (1/3) of the total number of days. The good time on this four-month sentence is thus 40 days. This number will vary over the course of the year. That 40-day good time period deducted from August 14th moves the last date of the sentence back to July 5, 2011. The client also has jail time to take into account. She has been incarcerated since March 14th and has 32 days of jail time through April 14th. After deducting the jail time, the projected release date is June 3, 2011.

E. Suppose that on March 18th the District Attorney was unable to convert the complaint into an information and – consequently – your client was released pursuant to C.P.L. §170.70. However, on March 21st, the District Attorney has all the required paperwork, the corrobs are filed, and the complaint is converted to an information. Nevertheless, if your client is offered a six-day plea, how much more time will she need to serve?

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None. The defendant has five days of total credit (March 14th, 15th, 16th, 17th, and 18th).

F. What will happen if your client takes the plea? What, if anything, should you do?

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The Court Officers may take the defendant into custody to determine if she has sufficient jail time or good time accrued to satisfy the sentence. This could simply mean that the client would be held in the court pens until Corrections personnel check their records to verify that she should be released and get a Captain to sign off on the paperwork. The Billips Settlement actually requires that people with enough time in be released from the Courthouse. However, if they have more than six months’ jail time credit, they can be brought to Rikers Island. Since the corrections process could nevertheless take several hours (if there are recordkeeping problems, paperwork glitches, security crises in Corrections, or just plain bureaucracy), the better course would be to have the Court sentence her to “time served.”

G. If the plea was in return for a 30-day sentence, when would your client be released?

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First, deduct the 10 days good time to arrive at a 20-day sentence. Then subtract five days of jail time to conclude that she needs to serve another 15 days. Beginning on March 21st, a 15-day sentence would conclude on Monday, April 4th.

Problem 2

You have a client with two pending cases. You represent him on one case and another Legal Aid attorney has him on a second case in another county. Your client has 30 days in jail, March 15 to April 13, 2011, on your case, and 33 days (March 15th to April 16th) in jail on the out-of-county case.

A. On April 26th, the client is offered a “time served” plea on your case. How will that affect your client’s jail time?

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A “time served” sentence is not treated as a “previously imposed sentence” to use up his jail time because the defendant never goes to a sentenced prisoner facility. The client’s accrued jail time is thus unaffected by your plea and sentence and can use the out-of-county time against any sentence he will serve on that case.

A sentence commences on the date that a defendant is received at a designated sentenced prisoner facility, e.g., Rikers Island. For definite sentences this means the day of sentence. For indeterminate and determinate sentences there is often some delay until the person gets sent upstate to serve the sentence.

B. On April 26th, what if the client receives a 60-day sentence on your case? How will that affect your client’s jail time?

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When the client is sentenced and transferred to the sentenced prisoner facility to do his time he will have to serve 40 days on the sentence (60-20 days good time). With 30 days in on your case he will have to serve another 10 days, until May 5th. The 10 days spent serving the sentence will not be available as jail time to the other case.

C. Is there any preferable alternative sentence that you might suggest to the Court?

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Any definite sentence of 45 days or less would allow the client to satisfy the sentence in your county while preserving his jail time on the other case. Since he has more than enough time in, he would never have to go to a sentence facility to start serving the sentence.

D. On April 26th, on your way to court to have a 60-day sentence imposed, you learn that the out-of-county case has been dismissed. What impact will that have on your client’s sentence?

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Under the dismissal acquittal clause of PL 70.30(3), any time that would have been credited to the dismissed case should be credited to any other case for which a warrant or commitment was lodged during the pendency of the dismissed case. Because your client was in on both cases at the same time, he should get an extra three days of credit from the out-of-county case applied to your sentence.

E. On May 3rd, he is brought to the other county and is sentenced to a sentence of 60 days, to run concurrently with the first sentence. How will the second sentence be computed?

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The second sentence begins the day it is imposed (concurrent does not mean retroactive). He will have to serve 40 days on this sentence. Since the sentences are concurrent, he will get cumulative jail time credit from both cases applied to them (33 days). He will get no credit for the seven days spent serving the first sentence. April 26th until May 2nd is the sentence time. The client will have to serve an additional seven days, until May 9th.

F. If, instead of May 3rd, the second 60-day sentence is imposed on May 13th, after the first sentence ends on May 5th. How would the sentence be computed?

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The two sentences cannot be concurrent since he has already completed the first sentence before the second one is imposed. Since the sentences could not be concurrent, he would get jail time credit for any days he has in on that particular case. He has 33 days of jail time on the out-of-county case. It would be deducted from the 40 days he owes on the sentence. He would serve seven days, from May 13th to May 19th.

G. On May 13th, if the second 60-day sentence is imposed to run consecutively to the first, how would the sentences be computed?

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The sentences would be aggregated into one 120-day sentence. From this, 40 days of good time would be deducted for 80 days. From this, 33 days of jail time would be deducted. The sentences would begin on April 26th, the day the first sentence was imposed. The client would serve 47 days from April 26th to June 11, 2011. Since June 11, 2011, falls on Saturday, your client will be released on Friday, June 10th.

H. In question G (above), if the judge said nothing when the second sentence was imposed, how would it be computed?

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Penal Law §70.25(1)(b) provides that definite sentences imposed at different times will run consecutively, unless the Court directs otherwise.

Problem 3

Your client is arrested on Monday, March 22, 2011, and is arraigned the same day. Bail is set and the client is incarcerated until the 170.70 day on March 26th, when she is released. The case is then adjourned until April 15, 2011.

On March 29, 2011, your client is arrested on a new misdemeanor charge and is arraigned on March 30th. What do you want to know about the new case in terms of its possible effect on any sentence on your case? What should you do, if anything?

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If bail is set and the complaint on the new case is converted at arraignment, then you would need to have your case “pulled” and advanced to have $1.00 bail set. This might be done at arraignment or afterward in the part of the court where your case is pending. The bail will insure that your client gets jail time credit on your case along with the new arrest. Otherwise, Corrections will consider the defendant to be “out” on your case, even though she is incarcerated (at their facility) on the new one. (Setting bail on your case is particularly important where the other pending charge is a charge of violating parole.)

If the complaint is not converted at arraignment but is adjourned for 170.70, you might want to wait to see what happens in the AP part. The defendant would lose the intervening jail time credit on your case (since she is deemed an “out” defendant), but if the new case is not converted, she would be ROR’d under 170.70 and would be out of jail on both cases. If the new case is converted, then you can advance your case and have $1.00 bail set on it at that time.

Does it matter for jail time credit if your client is in on both cases? Not so much if one of the cases gets dismissed or if the sentences end up being concurrent or consecutive. The jail time credit will be the same. It may matter a lot, however, if one sentence is served completely before the other one is imposed. In that situation, you get credit for the time you are in on each case. The problem is that you do not know the final sentences when you should be advancing the case. The safer practice is to have the client officially “in” on as many cases as possible.

Problem 4

Your client has been in jail for three months on a misdemeanor case. He also has a pending felony case with another lawyer in a different county. The client calls to tell you that he just pled guilty on the felony case and will be getting a one- to three-year sentence when he is sentenced in 19 days.

When you appear on your case, the prosecutor offers a six-month sentence. When you advise him/her (and the Court) of the impending felony sentence, they agree to impose the six months concurrent to the felony.

A. How would the sentences be calculated?

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For both A. and B., it depends on which sentence is imposed first. If the felony sentence is imposed first, the three months on the misdemeanor plus the additional 19 days would count as jail time toward the felony sentence. If you take the misdemeanor sentence today, the 19 days become sentence time on the misdemeanor and are not credited to the felony as jail time. Since the felony sentence is being imposed second, that judge would control whether the sentences were concurrent or not.

B. Does it matter which sentence is imposed first? Why or why not?

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See above.

C. Should you take the plea?

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There is no really good reason to take the plea. This fact pattern is covered by PL 70.35. Service of any indeterminate or determinate sentence will satisfy any definite sentence imposed for a crime committed before the felony sentence was imposed (there is an exception for prison assaults). In other words, in almost all cases, the misdemeanor sentence cannot run consecutively. Want to do a free trial?

D. What if your client goes to trial and loses (not your fault, however) and is sentenced to one year consecutive to the felony? How much time will he have to serve before being parole eligible?

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As long as the indeterminate sentence begins to run – that is, the client actually goes upstate – the consecutive sentence is illegal. It will have no impact on the parole eligibility date. On the one- to three-year sentence, the client will be eligible for parole after service of one year (minus any jail time or merit time). If the City picks up the client for service of the consecutive one-year, file an immediate habeas corpus petition. In these cases, they actually have not done so.

E. What two words should leap to mind when your client tells you about the felony case?

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Free trial!

Problem 5

Your client is ROR’d on your case with five days of jail time credit. Before she is due back in court again you get a (gleeful) call from one of your colleagues, advising that the defendant has been rearrested. She has already been arraigned, is in with bail set, and is on for 170.70. The case is transferred to you.

If your client is held for seven days on the new case before you can get bail set, how much more time will she have to serve on a plea to both cases with a sentence of 30-day concurrent sentences on each? Would the answer change if the sentences were imposed on different days and the judge said nothing as to whether they were concurrent or consecutive?

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If the sentences are imposed at the same time – even if the judge is silent on how they are to run – they are concurrent. Your client has 12 days of jail time credit and would get all of this credited towards the concurrent sentences. You would then deduct the good time (10 days) and jail time (12 days) from the sentence (Penal Law §70.30(3)).

If concurrent sentences were imposed on different days, the second of the 30-day sentences would become the controlling sentence. Twelve days of jail time would be credited to that sentence, but not any time covering the period between the two sentences.

If the sentences were consecutive (i.e., imposed on different days; the Judge was silent) you would add the two 30-day terms together and then subtract the good time to get 40 days. You would then deduct the aggregate jail time, provided that she is not getting credit for the same dates twice. If the defendant was in on the old case for five days before she posted bail and was in on the new case for seven days before being 170.70’d, she would get five plus seven (5+7) days of jail time, or 12 days. That would reduce her time to be served to 28 days.