NY Court of Appeals vacates drug court sentencing

The New York State Court of Appeals has ruled that a drug court judge did not have the authority to revoke a defendant’s probation and impose a different sentence.

In April 2016, Eugene Curry pleaded guilty to attempted second-degree criminal possession of a weapon. On July 5, 2016, he was sentenced to five years of probation, which was set to expire on July 5, 2021.

On Jan. 4, 2018, the Office of Probation claimed that Curry was not compliant with the conditions of his probation and requested the judge to declare Curry delinquent. Curry appeared in court on the alleged violations, but the judge did not file a declaration of delinquency.

Over the following year, the judge required Curry to appear periodically to assess his compliance with probation. The judge let Curry remain on probation despite periods of noncompliance.

In December 2018, on the recommendation of the Office of Probation, the judge transferred Curry to a drug treatment court (DTC). The Office of Probation did not request, and the court did not file, a declaration of delinquency.

The DTC judge told Curry that if he was successful in the program it would count toward his probation sentence, but if he was not successful he would receive two to four years of incarceration and three years of post-release supervision.

As a condition of being accepted into the DTC, Curry agreed to waive his right to a hearing on the alleged violation of probation and pleaded guilty.

From 2019 through 2021, Curry participated in the drug treatment program with mixed results. The date on which Curry’s probation was set to expire — July 5, 2021 — passed while Curry continued to participate in DTC.

On Dec. 14, 2021, due to another positive drug screen and missed court dates, the DTC revoked Curry’s probation and sentenced him to two years of incarceration, plus three years of post-release supervision.

Curry appealed, arguing that because his probationary period had expired on July 5, 2021, the DTC lacked jurisdiction to revoke his probation and incarcerate him.

The Appellate Division affirmed the sentence, holding that Curry’s guilty plea to a violation of probation tolled his probationary period and that the court retained jurisdiction.

The case went to the Court of Appeals, where Curry’s appellate attorney, Sabrina Bremer, argued that the judge did not have jurisdiction to revoke Curry’s probation because his probationary period was never tolled and had expired at the time he was sentenced.

“We agree,” Chief Judge Rowan Wilson wrote for the court.

“The declaration of delinquency is the exclusive procedural mechanism by which the court can toll a probationary period, and no such declaration was filed.  Accordingly, we reverse,” he wrote.

If the court issued a declaration of delinquency, it would have interrupted the period of the sentence as of the date of the delinquency.

“When no declaration of delinquency is issued, the sentence of probation continues to run,” Wilson wrote.

“In Curry’s case, there is no dispute that a declaration of delinquency was never filed by the court. As a result, his probationary sentence was never tolled, and expired on July 5, 2021,” Wilson wrote.

“When the court revoked Curry’s probation and sentenced him to incarceration … it had no jurisdiction to do so. Accordingly, the order of the Appellate Division should be reversed and the judgment of County Court vacated,” he wrote.

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