Jail Time and Probation in New York State

A NYSHA Fact Sheet

This fact sheet presents information of interest to police and humane investigators when discussing the disposition of an animal cruelty case with the District Attorney’s Office. Though this writeup was reviewed by a prosecutor, it is not intended to provide legal advice or be used for a legal argument.

Note: If a defendant pleads guilty to a charge, that guilty plea is considered a conviction equal to being found guilty in a jury/bench trial.

  1. The Relationship Between Jail Time and Probation
    1. Length of probation:

      Misdemeanors: if sentenced to probation, the mandatory term of probation is three years.

      Felonies: if sentenced to probation, the mandatory term of probation is five years.

      Note: in the case of sex crimes, the terms of probation are doubled.

    2. Imposition of Sentence

      Upon a person's conviction by jury/bench trial or that person´s pleading guilty to a charge, the judge can impose probation in the following four ways:

      1. Probation can be the entire sentence for a crime.
      2. Probation can be a portion of a sentence:

        Misdemeanors- a judge can sentence a person to jail and three years probation to be served concurrently. (If probation and jail are imposed, probation is always served concurrently with jail time. Thus, in essence, time in jail is considered time on probation) Upon release from jail, the person completes the balance of the three year probation.

        Example: if a person is sentenced to 30 days in jail, and 3 years probation, upon his exit from jail, he must complete the balance of the three year probation.

        Note: if the person is sentenced to more than 60 days in jail, then according to the law, no probation can be imposed.

        Felonies- a judge can sentence a person to jail and five years probation to be served concurrently. (if probation and jail are imposed, probation is always served concurrently with jail time. Thus, in essence, time served is considered time on probation.) Upon release from jail, the person completes the balance of the five year probation.

        Example: A person is sentenced to 5 months in jail. Upon his release from jail, he would serve the balance of the five year probation.

        Notes:

        1. If a person is sentenced to more than 6 months in jail, then according to the law, no probation can be imposed. This applies regardless of the degree of the felony.
        2. For some felonies, probation is not available; for example, assault in the first degree.

    3. Intermittent sentences and probation - If a person is sentenced to serving weekends in jail and probation, for either a misdemeanor or felony, the weekend component can be up to four months of weekends; after that time is served, the person completes the balance of his probation.
    4. Time served while awaiting trial and probation - upon conviction, time served is automatically credited to the jail sentence imposed by the judge. Though the time served might exceed the maximum cited in #2 above with regard to time served in jail, in this situation, the judge can still impose probation upon sentencing.

      Misdemeanor example: A person was in jail for 65 days during the litigation of a misdemeanor. Upon sentencing, the judge could determine that the jail sentence was 60 days and credit the time served. This means the jail obligation was met; however, in this circumstance, time served is independent of the probation aspect. Thus, despite the fact that the defendant served the amount of time that would normally preclude the imposition of probation, the judge could still sentence the person to 3 years probation. If the person violates his probation, the judge could sentence him to the full term of the crime. Thus, in the case of animal cruelty, the person could be sentenced to the full term of the crime which is a year in jail, but he would get credit for jail time served while awaiting trial.

      Felony example: A person was in jail for seven months during the litigation of a felony. Upon sentencing, the judge could determine that the jail sentence is six months. This means the jail portion of the obligation was met; however, in this circumstance, time served is independent of the probation aspect. Thus, despite the fact that the defendant served the amount of time that would normally preclude the imposition of probation, the judge could still sentence the person to 5 years probation. If the person violates his probation, the judge could sentence him to the full term of the crime. Thus, in the case of dog fighting, the person could be sentenced to the full term of the crime which is four years in jail (which because it is over a year would mean state prison) -- less whatever time was served in jail while awaiting trial.

  2. Jail Time Considerations
    1. Misdemeanors

      Sentences for misdemeanors are served in county jail.

      In the case of multiple misdemeanor convictions, there is a limit on how much time can be served in jail.
      Though convicted of multiple misdemeanors and sentenced by the judge to numerous years, the maximum time a person can serve in county jail - is TWO years. At two years, by law, the sheriff must let the person out.

      Important: If a person is convicted of two misdemeanors and is sentenced to two years in jail, that person may be eligible for release sooner (at 16 months) based on good behavior. And in that case, the onus is on the sheriff´s department to demonstrate why the person should not be released.

      Thus, if you have numerous charges against the person, and you want him to do the maximum two years, it is best to charge the person with at least three counts Then, if convicted, the person could be sentenced to three years in prison. Because the sentence is three years, the sheriff can keep the person confined for the full two years. The good behavior aspect would not have to be a consideration.

    2. Felonies

      For some felonies, time can be served in county jail. However, if a person is sentenced to more than a year for a felony, that person must serve his time in state prison.

      In the case of multiple felonies, the formulas are more complex depending on the seriousness of the felony, but in general there are limitations on how long a person can stay in state prison.

      Note: Parole is not related to the court´s initial sentencing decision. It is something the prisoner can be granted by the parole board upon the person´s serving a certain set time and demonstrating that he is ready to be reintegrated into society.

  3. Fines (Misdemeanors and Felonies)

    Certain crimes carry a fine or jail time, or both. The judges can impose fines as they see fit. In the case of multiple convictions, however, they rarely double or triple the fines because from a practical standpoint, fines are difficult to collect from convicted criminals.


Prepared by New York State Humane Association, PO Box 3068, Kingston, NY 12402