People v. Robinson , 380 N.Y.S.2d 543 ( 1976 )

John S. Lockman, J.

Defendant, through his attorney, and without opposition by the District Attorney, moves for an order to amend a condition of probation requiring him to "undergo treatment in a secure in-patient facility of the Drug Abuse Control Commission for a period which shall not be less than one year except by further order of the court and the defendant not be released from the secure in-patient facility within the year without prior consultation with the court”.

Subdivision 2 of section 60.03 of the Penal Law provides "the court * * * may impose a sentence to a period of probation and in such case the sentence must include a condition that the person undergo treatment in an inpatient program of the office of drug abuse control services for a period to be determined by the office”. (Emphasis added.)

Accordingly, the amendment must be granted to the extent that the condition of probation provide that the period of treatment in the inpatient facility "not exceed” rather than "not be less than” one year.

Therefore, special condition No. 13 as amended reads: "Pursuant to section 60.03 of the Penal Law the defendant shall undergo treatment in a secure in-patient facility of the Drug Abuse Control Commission for a period which shall not exceed one year except by further order of the court and the defendant not be released from the secure in-patient facility within the year without prior consultation with the court.”

To implement the intention of this motion an amended order of conditions of probation is attached and is dated nunc pro tunc September 2, 1975.

It must be emphasized that the granting of this motion is based entirely on the fact that subdivision 2 of section 60.03 of the Penal Law mandates such amendment. If the court had any discretion, the motion would have been denied. The defendant was indicted for participating in a robbery in which a codefendant shot the victim and a separate burglary after having been convicted of attempted burglary in the third degree and receiving probation. The court hopes that the Drug Abuse Control Commission carefully considers this background before exposing society to the defendant’s antisocial actions. In no way is the granting of this motion to be construed approval by the court of release to aftercare facilities in less than one year after commencement of inpatient treatment at the Drug Abuse Control Commission facility. On the contrary, the court opposes such release for the reasons stated.