People v. Cagle

OPINION OF THE COURT

A second felony offender subject to enhanced punishment is one whose sentence for a prior felony has been imposed not more than 10 years before the commission of the felony for which that person presently stands convicted; excluded from the 10 years are any periods during which the individual has been incarcerated (Penal Law § 70.06 [1] [b] [v]). This appeal asks whether defendant was “incarcerated” while serving a portion of his prior sentence of imprisonment in a day-reporting program. We answer that he was.

Defendant was charged with three counts of criminal possession of a controlled substance in the third degree and one count of criminal use of drug paraphernalia in the second degree, all taking place on November 8, 2002. He agreed to plead guilty to two counts of criminal possession of a controlled substance in *649the third degree, in full satisfaction of the indictment. As part of his plea bargain, defendant further agreed to be sentenced as a second felony offender based upon a prior felony conviction for first-degree robbery occurring on March 25, 1991. For that crime he served a sentence of imprisonment from April 16, 1991 to February 23, 1993, his date of parole.

At sentencing for his current conviction, however, defendant argued that he could not be sentenced as a second felony offender because more than 10 years had elapsed between imposition of the sentence on his prior felony and commission of the current felonies. Defendant produced documentary evidence from the Department of Correctional Services (DOCS) demonstrating that, as of September 28, 1992, his earlier sentence had been converted to day-report status. Defendant argued that, as of September 28, 1992, he was no longer incarcerated, and because his current felonies were not committed until November 8, 2002 — more than 10 years later — he was not in fact a second felony offender under Penal Law § 70.06 (1) (b).

The People contended that the 10-year period should be tolled for the entire time defendant spent serving the sentence of imprisonment on his robbery conviction — including while in the day-reporting program — and thus his current felonies were committed within the statutory period. County Court rejected defendant’s argument and sentenced him as a second felony offender to concurrent sentences of imprisonment of 4Va to 9 years. A divided Appellate Division affirmed, as do we.

Penal Law § 70.06 (1) (b) provides:

“For the purpose of determining whether a prior conviction is a predicate felony conviction the following criteria shall apply . . .

“(iv) Except as provided in subparagraph (v) of this paragraph, sentence [for the prior felony] must have been imposed not more than ten years before commission of the felony of which the defendant presently stands convicted;

“(v) In calculating the ten year period under subparagraph (iv), any period of time during which the person was incarcerated for any reason between the time of commission of the previous felony and the time of commission of the present felony shall be excluded and such ten year period shall be *650extended by a period or periods equal to the time served under such incarceration . . .

Defendant contends that his time spent in a day-reporting program cannot act to extend the 10-year period because he was not “incarcerated.” Under the statute, read literally or contextually, defendant is wrong. Indeed, from September 28, 1992 until February 23,1993 — including the five months he was in the day-reporting program — defendant was confined (and in that sense “incarcerated”), serving out his sentence of imprisonment under the custody and control of DOCS.

An inmate in a day-reporting program, under the applicable statutes and regulations, enjoys “extended bounds of confinement” (see Correction Law § 851 [10]; § 855 [5], [7]; 7 NYCRR 1926.2 [a] [4]). An approved inmate who has successfully participated in a work release program, completed furloughs to an approved residence and is either within six months of becoming eligible for parole or has one year or less to be served under his sentence, may be assigned from a work release facility to a residential treatment facility to participate in a program of continued employment (see 7 NYCRR 1925.2). While residing at an approved residence, the inmate is required to report to the facility or other designated reporting location, to undergo frequent drug tests and, where appropriate, to participate in other rehabilitative programs.1

Moreover, before acceptance into a day-reporting program, an inmate must sign both a memorandum of agreement and copy of the day-reporting rules (7 NYCRR 1926.1). These documents specify that participation in the program “is a privilege which may be revoked at any time” and that the inmate “remain[s] in the custody of [DOCS]” (7 NYCRR 1926.2 [c]; 1926.3).2 The program imposes reporting duties and travel restrictions, including prior approval requirements for any method of transportation the inmate uses, for obtaining a driver’s license and for having a motor vehicle (7 NYCRR 1926.3). Permission is also required before participants take any medication (except in exigent circumstances), obtain a credit card or enter into a *651contract, and they must surrender the full amount of their employment earnings to the day-reporting center for documentation and proper deductions. Thus, inmates in day-reporting programs are merely granted the revocable privilege of serving their sentences of imprisonment under less strict conditions of supervision than other prisoners under lock and key.

Focus on the plain purpose of Penal Law § 70.06 also leads us to reject defendant’s argument. The statute is intended “to deter recidivism by enhancing the punishments of those who, having been convicted of felonies, violate the norms of civil society and commit felonies again” (People v Walker, 81 NY2d 661, 665 [1993]). To avoid enhanced punishment, prior felons must demonstrate their ability to live within the norms of civil society for 10 years. Plainly, time spent serving a sentence of imprisonment does not satisfy this requirement. That the Legislature has spoken in terms of time “incarcerated” does not compel us to limit the term to “behind bars” (cf. People v Love, 71 NY2d 711 [1988] [periods of wrongful incarceration are not included in the statutory toll]). Rather, we conclude that defendant should be considered incarcerated until he completed his sentence of imprisonment for the prior crime and was released into parole. Indeed, the sparse legislative history supports this sensible construction: “The alleged second felony offense must occur within 10 years after the defendant was released from a prison term on the first felony” (Governor’s Mem approving L 1973, ch 277, 1973 NY Legis Ann, at 4).

Here, defendant remained incarcerated until he was paroled on February 23, 1993. Because he committed his current drug felonies on November 8, 2002 — less than 10 years later — he was properly sentenced as a second felony offender.

Accordingly, the order of the Appellate Division should be affirmed.