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  1. #1
    Join Date
    Feb 2018
    Posts
    8

    Default How to get Modification of Probation Terms

    My question involves criminal law for the state of: New York. I embezzled money from a former employer. Of course I was caught and charges were pressed. My reasoning fro embezzling had nothing to do with drugs or addictions of any sort, I was basically paying extra expenses that were not approved. Over a period of 10 years this added up to 89K. I paid the amount back in full and was sentenced to 16 weekends in jail and 5 yrs probation. I currently have a full time job, am single and own my own home. I am in a committed full time relationship with someone who is respected in the community and had dozens of letters written in support of my character. May original judge retired shortly after I pleaded guilty and accepted my plea deal. I was sentenced by the new incoming judge who admitted at sentencing that he was not overly familiar with my case but since we already had a plea deal in place he would honor it. The new judge is the one who gave me the terms of my probation. Besides the normal conditions he added a special condition that restricted me from drinking and entering bars. In doing some research I found this regarding special conditions in probation:

    5. Other Conditions. When imposing a sentence of probation the court may, in addition to any conditions imposed pursuant to subdivision two, three and four of this section, require that the defendant comply with any other reasonable conditions 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.

    How can he feel that this is a reasonable condition when it has absolutely no relationship to my criminal behavior?

    I live in another county than that of where my crime was committed and my probation and my entire case has been transferred to my county of residency. I would like to pursue a second part time job and am thinking I could waitress, but this condition prohibits me. I really don;t want to get my lawyer involved as I can not afford another bill. At the suggestion of my probation officer I wrote the judge a letter asking him to consider removing this condition.

    My questions are:

    Will he respond or do anything without the formality of filing a motion or getting my lawyer involved?

    Is there a good change that he will remove the condition since my charge had absolutely nothing to do with alcohol or drugs?


    Any experience or input would be greatly appreciated.

  2. #2
    Join Date
    Mar 2013
    Posts
    18,340

    Default Re: Probation Terms

    1 - Nothing is likely to go your way without a lawyer. If you can't afford one, you might as well give up the idea of getting anything changed.

    2 - There are tons of restaurants that don't serve alcoholic beverages.

    3 - What the heck is so terrible about avoiding alcoholic beverages and staying out of bars? Answer: Nothing.

    I suggest you stick it out for the remainder of the probation period and then you can do whatever you want.

  3. #3
    Join Date
    Sep 2005
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    98,846

    Default Re: How to get Modification of Probation Terms

    Quote Quoting jdahl
    View Post
    At the suggestion of my probation officer I wrote the judge a letter asking him to consider removing this condition.
    A letter would be a cheap approach, but technically speaking to get an issue before a court the matter should be brought by motion with proper notice to the prosecutor. In many jurisdictions the court wouldn't even look at a letter that was sent directly by a defendant, ex parte.

    Did you write and send the letter? If so, how long ago?

    Did your probation officer indicate whether or not he would oppose your request, if the judge made an inquiry with him about your letter or if you were to file a more formal motion?

  4. #4
    Join Date
    Feb 2018
    Posts
    8

    Default Re: How to get Modification of Probation Terms

    I did send a letter yesterday. My probation office would not oppose the request, it was she who suggested I write it. I explained to her my situation of not wanting to get lawyer involved because of the extra financial burden and she suggested I write to the judge. She said he may not respond without proper channel but it couldn't hurt.

  5. #5
    Join Date
    Sep 2005
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    98,846

    Default Re: How to get Modification of Probation Terms

    Let us know what happens.

  6. #6
    Join Date
    Feb 2008
    Posts
    1,179

    Default Re: How to get Modification of Probation Terms

    how long ago was sentencing/how much of your probation have you served?

  7. #7
    Join Date
    Feb 2018
    Posts
    8

    Default Re: How to get Modification of Probation Terms

    My sentencing just occurred on Nov 29th. Here is the body of my letter that I sent to the judge:

    I am writing to in in regards to my five-year probation sentence that went into effect November 29, 2017. I was informed my probation officer, name here, that my case was transferred to you. I am trying to avoid the added expense of referring this to my lawyer and at the suggestion of my officer I am writing this letter. I am asking that your honor consider modifying my conditions as the court is allowed to do so per the acknowledgement of the order. I am respectfully requesting that special condition #6 be removed from my probation order.

    Before sentencing, I made full restitution of $89,000. In doing so, I put myself into a considerable amount of debt, but felt it was important that I pay everything back. I feel extremely fortunate that I have a full time job but I have been looking for a second job to help with expenses and have not been as fortunate.

    While I was in college and while I was student teaching, I waitressed to earn extra money. I never thought I would ever consider doing this again as I did not like the work, but I have a lot of connections with some of the local tavern owners and I could possible secure a part time job. I have come to the realization that there are not many positions that are available for nights and weekends and even fewer given my record, and I am beginning to think that waitressing maybe one of the few options for me.

    Drugs and alcohol have never been an issue for me nor are they the reason for my criminal behavior. I can truthfully say that I have never done drugs and haven’t ever even smoked a cigarette in my life. Before probation, I would have a glass of wine or a cocktail on occasions but it was always on a limited amount, and can’t even remember the last time I “had one too many.”

    When considering asking for this modification I thoroughly did some research on the matter. I have included number 5 of Article 65.10 of the New York State Penal law below.

    5. Other Conditions. When imposing a sentence of probation the court may, in addition to any conditions imposed pursuant to subdivision two, three and four of this section, require that the defendant comply with any other reasonable conditions 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.

    Besides hindering me from pursuing a job in a bar, I do not believe that my special condition #6 has any correlation to my offense and certainly not necessary to ameliorate my conduct.

    According to Research done by Center on Addiction & Substance Abuse at Columbia University in 2006, alcohol and other drugs were involved in:
    • 78% of violent crimes
    • 83% of property crimes
    • 77% of public order, immigration or weapons offenses and probation/parole violations
    Alcohol was implicated in the incarceration of more than half of all inmates in America; illicit drugs were implicated in three-fourths of incarcerations. With these overwhelming statistics it is understandable why the restriction of alcohol and going to bars has become a common probation condition, and understandable why Judge Cuffy, whom admitted during sentencing that he was not very familiar with the case, would place the special condition as part of my probation but I am not part of these statistics.

    I live with the consequences of my actions every day and there is not a day that goes by that I don’t have regret and feel remorseful for what I did. I am beyond grateful that I have the opportunity to learn from my mistakes and am putting all my effort into moving forward and becoming a better person. I feel very fortunate to be able to continue to support myself, but I would like to be able to try to secure a second part time job. I can ensure you that honoring my request will in no way effect my promise to become a better person and obey the law to its fullest. Thank you for your time and consideration.

  8. #8
    Join Date
    Oct 2016
    Posts
    4,301

    Default Re: How to get Modification of Probation Terms

    I think this part is a waste and actually works against you.

    According to Research done by Center on Addiction & Substance Abuse at Columbia University in 2006, alcohol and other drugs were involved in:
    • 78% of violent crimes
    • 83% of property crimes
    • 77% of public order, immigration or weapons offenses and probation/parole violations
    Alcohol was implicated in the incarceration of more than half of all inmates in America; illicit drugs were implicated in three-fourths of incarcerations. With these overwhelming statistics it is understandable why the restriction of alcohol and going to bars has become a common probation condition, and understandable why Judge Cuffy, whom admitted during sentencing that he was not very familiar with the case, would place the special condition as part of my probation but I am not part of these statistics.

  9. #9
    Join Date
    Feb 2018
    Posts
    8

    Default Re: How to get Modification of Probation Terms

    Well, too late. letter already went. Not sure how it can hurt, I simply wanted to state that it is understandable why it has become a "norm" for judges to add that special condition seeing the statistics, but that my case was clearly not part of the statisctics

  10. #10
    Join Date
    Oct 2016
    Posts
    4,301

    Default Re: How to get Modification of Probation Terms

    It can hurt because you are reminding the judge that alcohol and crime go hand in hand. (Not that he or she doesn't already know that)

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