People v. Montgomery, 96 N.Y.2d 805 (2001)
The filing of a declaration of delinquency tolls the expiration of a probationary sentence, and a challenge to the timeliness of a violation of probation hearing must be raised at the hearing to be preserved for appellate review.
Summary
Defendant was convicted of criminal possession of a weapon in 1987 and sentenced to probation. He violated his probation, absconded, and was arrested in Nassau County on new charges. He pleaded guilty to robbery and was sentenced to prison. In 1991, a declaration of delinquency was issued regarding his probation. After a violation of probation hearing in 1996, his probation was revoked, and he was sentenced to a consecutive prison term. The New York Court of Appeals held that the declaration of delinquency tolled the probationary period and that his claim that the violation of probation hearing was untimely was not preserved for appellate review because he failed to raise it at the hearing.
Facts
In September 1987, the defendant was convicted in Kings County of criminal possession of a weapon in the third degree and sentenced to five years probation and community service.
Three and a half years into his probation, the defendant violated the terms, absconded to Nassau County, and was arrested and charged with two separate crimes.
The defendant pleaded guilty to robbery in the first degree in Nassau County and in 1992 was sentenced as a second felony offender to 9 to 18 years in prison.
In November 1991, the Supreme Court, Kings County, issued a declaration of delinquency and a warrant for the defendant’s arrest related to the probation violation.
In 1996, after a violation of probation hearing, the court revoked the 1987 sentence of probation and imposed a sentence of 2 1/3 to 7 years, to run consecutively to the 9-to-18-year Nassau County sentence.
Procedural History
The Supreme Court, Kings County, revoked the defendant’s probation after a hearing.
The Appellate Division affirmed the Supreme Court’s decision.
The New York Court of Appeals granted leave to appeal.
Issue(s)
1. Whether the filing of a declaration of delinquency in 1991 tolled the expiration of the probationary sentence pursuant to Penal Law § 65.15(2)?
2. Whether the defendant’s claim that the violation of probation hearing was untimely under CPL 410.30 was preserved for appellate review?
Holding
1. Yes, because the filing of a declaration of delinquency in 1991 tolled the expiration of the probationary sentence (Penal Law § 65.15 [2]).
2. No, because the defendant did not raise his claim that the hearing was untimely under CPL 410.30 at the violation of probation hearing; thus, the argument is unpreserved for appellate review.
Court’s Reasoning
The Court of Appeals agreed with the Appellate Division’s ruling that the filing of the declaration of delinquency tolled the expiration of the probationary sentence. This aligns with Penal Law § 65.15(2), which addresses the tolling of probationary sentences when a declaration of delinquency is filed.
The Court emphasized the importance of preserving issues for appellate review. Because the defendant failed to raise the argument regarding the timeliness of the hearing under CPL 410.30 at the violation of probation hearing itself, he was precluded from raising it for the first time on appeal. The Court implicitly reinforces the principle that trial courts must be given the opportunity to address alleged errors or irregularities in the first instance.
The Court’s decision highlights the practical importance of timely objections and the consequences of failing to raise issues at the appropriate stage of legal proceedings. This is a critical consideration for defense attorneys handling probation violation cases.