Can the court revoke my Conditional Discharge because I received a disorderly conduct violation?

Full Question:

I have a one year conditional discharge for a DUI. Can the court revoke my Conditional Discharge because I received a disorderly conduct violation? More importantly, will I go to prison as a result?
03/20/2009   |   Category: Criminal ยป Sentences   |   State: New York   |   #15702

Answer:

The following are New York statutes:

§ 240.20 Penal. Disorderly conduct.

A person is guilty of disorderly conduct when, with intent to cause
public inconvenience, annoyance or alarm, or recklessly creating a risk
thereof:

1. He engages in fighting or in violent, tumultuous or threatening
behavior; or


2. He makes unreasonable noise; or


3. In a public place, he uses abusive or obscene language, or makes an
obscene gesture; or


4. Without lawful authority, he disturbs any lawful assembly or meeting
of persons; or


5. He obstructs vehicular or pedestrian traffic; or


6. He congregates with other persons in a public place and refuses to
comply with a lawful order of the police to disperse; or


7. He creates a hazardous or physically offensive condition by any act
which serves no legitimate purpose.

Disorderly conduct is a violation.

§ 55.10 Penal. Designation of offenses.

1. Felonies.

(a) The particular classification or subclassification of each felony
defined in this chapter is expressly designated in the section or
article defining it.

(b) Any offense defined outside this chapter which is declared by law to
be a felony without specification of the classification thereof, or for
which a law outside this chapter provides a sentence to a term of
imprisonment in excess of one year, shall be deemed a class E felony.

2. Misdemeanors.

(a) Each misdemeanor defined in this chapter is either a class A
misdemeanor or a class B misdemeanor, as expressly designated in the
section or article defining it.

(b) Any offense defined outside this chapter which is declared by law to
be a misdemeanor without specification of the classification thereof or of
the sentence therefor shall be deemed a class A misdemeanor.

(c) Except as provided in paragraph (b) of subdivision three, where an
offense is defined outside this chapter and a sentence to a term of
imprisonment in excess of fifteen days but not in excess of one year is
provided in the law or ordinance defining it, such offense shall be deemed
an unclassified misdemeanor.

3. Violations. Every violation defined in this chapter is expressly
designated as such. Any offense defined outside this chapter which is not
expressly designated a violation shall be deemed a violation if:

(a) Notwithstanding any other designation specified in the law or
ordinance defining it, a sentence to a term of imprisonment which is not in
excess of fifteen days is provided therein, or the only sentence provided
therein is a fine; or

(b) A sentence to a term of imprisonment in excess of fifteen days is
provided for such offense in a law or ordinance enacted prior to the
effective date of this chapter but the offense was not a crime prior to
that date.

4. Traffic infraction. Notwithstanding any other provision of this
section, an offense which is defined as a "traffic infraction" shall not be
deemed a violation or a misdemeanor by virtue of the sentence prescribed
therefor.

§ 65.05 Penal. Sentence of conditional discharge.

1. Criteria.
(a) Except as otherwise required by section 60.05, the court
may impose a sentence of conditional discharge for an offense if the court,
having regard to the nature and circumstances of the offense and to the
history, character and condition of the defendant, is of the opinion that
neither the public interest nor the ends of justice would be served by a
sentence of imprisonment and that probation supervision is not appropriate.

(b) When a sentence of conditional discharge is imposed for a felony, the
court shall set forth in the record the reasons for its action.

2. Sentence. Except to the extent authorized by paragraph (d) of
subdivision two of section 60.01 of this chapter, when the court imposes
a sentence of conditional discharge the defendant shall be released with
respect to the conviction for which the sentence is imposed without
imprisonment or probation supervision but subject, during the period of
conditional discharge, to such conditions as the court may determine. The
court shall impose the period of conditional discharge authorized by
subdivision three of this section and shall specify, in accordance with
section 65.10, the conditions to be complied with. If a defendant is
sentenced pursuant to paragraph (e) of subdivision two of section 65.10
of this chapter, the court shall require the administrator of the program
to provide written notice to the court of any violation of program
participation by the defendant. The court may modify or enlarge the
conditions or, if the defendant commits an additional offense or violates
a condition, revoke the sentence at any time prior to the expiration or
termination of the period of conditional discharge.

3. Periods of conditional discharge. Unless terminated sooner in
accordance with the criminal procedure law, the period of conditional
discharge shall be as follows:

(a) Three years in the case of a felony; and


(b) One year in the case of a misdemeanor or a violation.


Where the court has required, as a condition of the sentence, that the
defendant make restitution of the fruits of his or her offense or make
reparation for the loss caused thereby and such condition has not been
satisfied, the court, at any time prior to the expiration or termination of
the period of conditional discharge, may impose an additional period. The
length of the additional period shall be fixed by the court at the time it
is imposed and shall not be more than two years. All of the incidents of
the original sentence, including the authority of the court to modify or
enlarge the conditions, shall continue to apply during such additional
period.

§ 65.10 Penal. Conditions of probation and of conditional discharge.

1. In general. The conditions of probation and of conditional discharge
shall be such as the court, in its discretion, deems reasonably necessary
to insure that the defendant will lead a law-abiding life or to assist him
to do so.

2. Conditions relating to conduct and rehabilitation. When imposing a
sentence of probation or of conditional discharge, the court shall, as a
condition of the sentence, consider restitution or reparation and may, as a
condition of the sentence, require that the defendant:

(a) Avoid injurious or vicious habits;


(b) Refrain from frequenting unlawful or disreputable places or
consorting with disreputable persons;


(c) Work faithfully at a suitable employment or faithfully pursue a
course of study or of vocational training that will equip him for suitable
employment;


(d) Undergo available medical or psychiatric treatment and remain in a
specified institution, when required for that purpose;


(e) Participate in an alcohol or substance abuse program or an
intervention program approved by the court after consultation with the
local probation department having jurisdiction, or such other public or
private agency as the court determines to be appropriate;


(e-1) Participate in a motor vehicle accident prevention course. The
court may require such condition where a person has been convicted of a
traffic infraction for a violation of article twenty-six of the vehicle and
traffic law where the commission of such violation caused the serious
physical injury or death of another person. For purposes of this paragraph,
the term "motor vehicle accident prevention course" shall mean a motor
vehicle accident prevention course approved by the department of motor
vehicles pursuant to article twelve-B of the vehicle and traffic law;


(f) Support his dependents and meet other family responsibilities;


(g) Make restitution of the fruits of his or her offense or make
reparation, in an amount he can afford to pay, for the actual
out-of-pocket loss caused thereby. When restitution or reparation is a
condition of the sentence, the court shall fix the amount thereof, the
manner of performance, specifically state the date when restitution is to
be paid in full prior to the expiration of the sentence of probation and
may establish provisions for the early termination of a sentence of
probation or conditional discharge pursuant to the provisions of
subdivision three of section 410.90 of the criminal procedure law after
the restitution and reparation part of a sentence of probation or
conditional discharge has been satisfied. The court shall provide that in
the event the person to whom restitution or reparation is to be made dies
prior to the completion of said restitution or reparation, the remaining
payments shall be made to the estate of the deceased.


(g-1) Reimburse a consumer credit reporting agency for the amount of the
fee or fees that could have been charged by such agency to a domestic
violence victim, as defined in section three hundred eighty-t of the
general business law, had such victim not been eligible to receive security
freeze services without charge pursuant to subdivision (n) of such section;


(h) Perform services for a public or not-for-profit corporation,
association, institution or agency, including but not limited to services
for the division of substance abuse services, services in an appropriate
community program for removal of graffiti from public or private property,
including any property damaged in the underlying offense, or services for
the maintenance and repair of real or personal property maintained as a
cemetery plot, grave, burial place or other place of interment of human
remains. Provided however, that the performance of any such services shall
not result in the displacement of employed workers or in the impairment of
existing contracts for services, nor shall the performance of any such
services be required or permitted in any establishment involved in any
labor strike or lockout. The court may establish provisions for the early
termination of a sentence of probation or conditional discharge pursuant to
the provisions of subdivision three of section 410.90 of the criminal
procedure law after such services have been completed. Such sentence may
only be imposed upon conviction of a misdemeanor, violation, or class D or
class E felony, or a youthful offender finding replacing any such
conviction, where the defendant has consented to the amount and conditions
of such service;


(i) If a person under the age of twenty-one years,

(i) resides with his
parents or in a suitable foster home or hostel as referred to in
section two hundred forty-four of the executive law,
(ii) attends school,

(iii) spends such part of the period of the sentence as the court may
direct, but not exceeding two years, in a facility made available by the
division for youth pursuant to article nineteen-G of the executive law,
provided that admission to such facility may be made only with the prior
consent of the division for youth,
(iv) attend a non-residential program
for such hours and pursuant to a schedule prescribed by the court as
suitable for a program of rehabilitation of youth,
(v) contribute to his
own support in any home, foster home or hostel;


(j) Post a bond or other security for the performance of any or all
conditions imposed;


(k) Observe certain specified conditions of conduct as set forth in an
order of protection issued pursuant to section 530.12 or 530.13 of the
criminal procedure law.


(k-1) Install and maintain a functioning ignition interlock device, as
that term is defined in section one hundred nineteen-a of the vehicle and
traffic law, in any vehicle owned or operated by the defendant if the court
in its discretion determines that such a condition is necessary to ensure
the public safety. The court may require such condition only where a person
has been convicted of a violation of subdivision two, two-a or three of
section eleven hundred ninety-two of the vehicle and traffic law, or any
crime defined by the vehicle and traffic law or this chapter of which an
alcohol-related violation of any provision of section eleven hundred
ninety-two of the vehicle and traffic law is an essential element. The
offender shall be required to install and operate the ignition interlock
device only in accordance with section eleven hundred ninety-eight of the
vehicle and traffic law.


(l) Satisfy any other conditions reasonably related to his
rehabilitation.

3. Conditions relating to supervision. When imposing a sentence of
probation the court, in addition to any conditions imposed pursuant to
subdivision two of this section, shall require as conditions of the
sentence, that the defendant:

(a) Report to a probation officer as directed by the court or the
p
robation officer and permit the probation officer to visit him at his
place of abode or elsewhere;


(b) Remain within the jurisdiction of the court unless granted permission
to leave by the court or the probation officer; and


(c) Answer all reasonable inquiries by the probation officer and notify
the probation officer prior to any change in address or employment.


4. Electronic monitoring. When imposing a sentence of probation the court
may, in addition to any conditions imposed pursuant to subdivisions two and
three of this section, require the defendant to submit to the use of an
electronic monitoring device and/or to follow a schedule that governs the
defendant's daily movement. Such condition may be imposed only where the
court, in its discretion, determines that requiring the defendant to comply
with such condition will advance public safety, probationer control or
probationer surveillance. Electronic monitoring shall be used in accordance
with uniform procedures developed by the division of probation and
correctional alternatives.

4-a. Mandatory conditions for sex offenders. (a) When imposing a
sentence of probation or conditional discharge upon a person convicted of
an offense defined in article one hundred thirty, two hundred thirty-five
or two hundred sixty-three of this chapter, or section 255.25, 255.26 or
255.27 of this chapter, and the victim of such offense was under the age
of eighteen at the time of such offense or such person has been
designated a level three sex offender pursuant to subdivision six of
section 168-1 of the correction law, the court shall require, as a
mandatory condition of such sentence, that such sentenced offender shall
refrain from knowingly entering into or upon any school grounds, as that
term is defined in subdivision fourteen of section 220.00 of this
chapter, or any other facility or institution primarily used for the care
or treatment of persons under the age of eighteen while one or more of
such persons under the age of eighteen are present, provided however,
that when such sentenced offender is a registered student or participant
or an employee of such facility or institution or entity contracting
therewith or has a family member enrolled in such facility or
institution, such sentenced offender may, with the written authorization
of his or her probation officer or the court and the superintendent or
chief administrator of such facility, institution or grounds, enter such
facility, institution or upon such grounds for the limited purposes
authorized by the probation officer or the court and superintendent or
chief officer. Nothing in this subdivision shall be construed as
restricting any lawful condition of supervision that may be imposed on
such sentenced offender.

(b) When imposing a sentence of probation or conditional discharge upon a
person convicted of an offense for which registration as a sex offender is
required pursuant to subdivision two or three of section one hundred
sixty-eight-a of the correction law, and the victim of such offense was
under the age of eighteen at the time of such offense or such person has
been designated a level three sex offender pursuant to subdivision six of
section one hundred sixty-eight-l of the correction law or the internet was
used to facilitate the commission of the crime, the court shall require, as
mandatory conditions of such sentence, that such sentenced offender be
prohibited from using the internet to access pornographic material, access
a commercial social networking website, communicate with other individuals
or groups for the purpose of promoting sexual relations with persons under
the age of eighteen, and communicate with a person under the age of
eighteen when such offender is over the age of eighteen, provided that the
court may permit an offender to use the internet to communicate with a
person under the age of eighteen when such offender is the parent of a
minor child and is not otherwise prohibited from communicating with such
child. Nothing in this subdivision shall be construed as restricting any
other lawful condition of supervision that may be imposed on such sentenced
offender. As used in this subdivision, a "commercial social networking
website" shall mean any business, organization or other entity operating a
website that permits persons under eighteen years of age to be registered
users for the purpose of establishing personal relationships with other
users, where such persons under eighteen years of age may: (i) create web
pages or profiles that provide information about themselves where such web
pages or profiles are available to the public or to other users; (ii)
engage in direct or real time communication with other users, such as a
chat room or instant messenger; and (iii) communicate with persons over
eighteen years of age; provided, however, that, for purposes of this
subdivision, a commercial social networking website shall not include a
website that permits users to engage in such other activities as are not
enumerated herein.

5. Other conditions. When imposing a sentence of probation the court may,
in addition to any conditions imposed pursuant to subdivisions two, three
and four of this section, require that the defendant comply with any other
reasonable condition as the court shall determine to be necessary or
appropriate to ameliorate the conduct which gave rise to the offense or to
prevent the incarceration of the defendant.

5-a. Other conditions for sex offenders. When imposing a sentence of
probation upon a person convicted of an offense for which registration as a
sex offender is required pursuant to subdivision two or three of
section one hundred sixty-eight-a of the correction law, in addition to any
conditions required under subdivisions two, three, four, four-a and five of
this section, the court may require that the defendant comply with a
reasonable limitation on his or her use of the internet that the court
determines to be necessary or appropriate to ameliorate the conduct which
gave rise to the offense or to protect public safety, provided that the
court shall not prohibit such sentenced offender from using the internet in
connection with education, lawful employment or search for lawful
employment.

§ 65.15 Penal. Calculation of periods of probation and of conditional
discharge.

1. A period of probation or a period or additional period of conditional
discharge commences on the day it is imposed. Multiple periods, whether
imposed at the same or at different times, shall run concurrently.

2. When a person has violated the conditions of his probation or
conditional discharge and is declared delinquent by the court, the
declaration of delinquency shall interrupt the period of the sentence as of
the date of the delinquency and such interruption shall continue until a
final determination as to the delinquency has been made by the court
pursuant to a hearing held in accordance with the provisions of the
criminal procedure law.

3.[fn*] In any case where a person who is under a sentence of probation
or of conditional discharge is also under an indeterminate or determinate
sentence of imprisonment, imposed for some other offense by a court of
this state the service of the sentence of imprisonment shall satisfy the
sentence of probation or of conditional discharge unless the sentence of
probation or of conditional discharge is revoked prior to the next to
occur of parole or conditional release under, or satisfaction of, the
sentence of imprisonment. Provided, however, that the service of an
indeterminate or determinate sentence of imprisonment shall not satisfy a
sentence of probation if the sentence of probation was imposed at a time
when the sentence of imprisonment had one year or less to run.

[fn*] NB Effective until 2009/09/01, pursuant to Laws 1995, ch. 3,
Sec. 74(d), as amended by Laws 2005, ch. 56, Pt. D, Sec. 20

3.[fn*] In any case where a person who is under a sentence of probation
or of conditional discharge is also under an indeterminate sentence of
imprisonment, or a reformatory sentence of imprisonment authorized by
section 75.00, imposed for some other offense by a court of this state
the service of the sentence of imprisonment shall satisfy the sentence of
probation or of conditional discharge unless the sentence of probation or
of conditional discharge is revoked prior to the next to occur of parole
or conditional release under, or satisfaction of, the sentence of
imprisonment. Provided, however, that the service of an indeterminate or
a reformatory sentence of imprisonment shall not satisfy a sentence of
probation if the sentence of probation was imposed at a time when the
sentence of imprisonment had one year or less to run.

§ 70.15 Penal. Sentences of imprisonment for misdemeanors and violation.

1. Class A misdemeanor. A sentence of imprisonment for a class A
misdemeanor shall be a definite sentence. When such a sentence is imposed
the term shall be fixed by the court, and shall not exceed one year;
provided, however, that a sentence of imprisonment imposed upon a
conviction of criminal possession of a weapon in the fourth degree as
defined in subdivision one of section 265.01 must be for a period of no
less than one year when the conviction was the result of a plea of guilty
entered in satisfaction of an indictment or any count thereof charging
the defendant with the class D violent felony offense of criminal
possession of a weapon in the third degree as defined in subdivision four
of section 265.02, except that the court may impose any other sentence
authorized by law upon a person who has not been previously convicted in
the five years immediately preceding the commission of the offense for a
felony or a class A misdemeanor defined in this chapter, if the court
having regard to the nature and circumstances of the crime and to the
history and character of the defendant, finds on the record that such
sentence would be unduly harsh and that the alternative sentence would be
consistent with public safety and does not deprecate the seriousness of
the crime.

2. Class B misdemeanor. A sentence of imprisonment for a class B
misdemeanor shall be a definite sentence. When such a sentence is imposed
the term shall be fixed by the court, and shall not exceed three months.

3. Unclassified misdemeanor. A sentence of imprisonment for an
unclassified misdemeanor shall be a definite sentence. When such a sentence
is imposed the term shall be fixed by the court, and shall be in accordance
with the sentence specified in the law or ordinance that defines the crime.

4. Violation. A sentence of imprisonment for a violation shall be a
definite sentence. When such a sentence is imposed the term shall be fixed
by the court, and shall not exceed fifteen days.

In the case of a violation defined outside this chapter, if the sentence
is expressly specified in the law or ordinance that defines the offense and
consists solely of a fine, no term of imprisonment shall be imposed.

§ 80.05 Penal. Fines for misdemeanors and violation.

1. Class A misdemeanor. A sentence to pay a fine for a class A
misdemeanor shall be a sentence to pay an amount, fixed by the court, not
exceeding one thousand dollars, provided, however, that a sentence imposed
for a violation of section 215.80 of this chapter may include a fine in an
amount equivalent to double the value of the property unlawfully disposed
of in the commission of the crime.

2. Class B misdemeanor. A sentence to pay a fine for a class B
misdemeanor shall be a sentence to pay an amount, fixed by the court, not
exceeding five hundred dollars.

3. Unclassified misdemeanor. A sentence to pay a fine for an unclassified
misdemeanor shall be a sentence to pay an amount, fixed by the court, in
accordance with the provisions of the law or ordinance that defines the
crime.

4. Violation. A sentence to pay a fine for a violation shall be a
sentence to pay an amount, fixed by the court, not exceeding two hundred
fifty dollars.

In the case of a violation defined outside this chapter, if the amount of
the fine is expressly specified in the law or ordinance that defines the
offense, the amount of the fine shall be fixed in accordance with that law
or ordinance.

5. Alternative sentence. If a person has gained money or property through
the commission of any misdemeanor or violation then upon conviction
thereof, the court, in lieu of imposing the fine authorized for the offense
under one of the above subdivisions, may sentence the defendant to pay an
amount, fixed by the court, not exceeding double the amount of the
defendant's gain from the commission of the offense; provided, however,
that the amount fixed by the court pursuant to this subdivision upon a
conviction under section 11-1904 of the environmental conservation law
shall not exceed five thousand dollars. In such event the provisions of
subdivisions two and three of section 80.00 shall be applicable to the
sentence.

6. Exception. The provisions of this section shall not apply to a
corporation.

Ask Legal Question

Your Privacy is 100% Confidential!