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October 9, 1979

JOHN STERLING, Petitioner, against THEODORE C. REID, Superintendent, Fishkill Correctional Facility, Respondent.

The opinion of the court was delivered by: WEINFELD

Petitioner, on October 1, 1974, pleaded guilty in the Supreme Court of New York, New York County, to criminal possession of a dangerous weapon, a Class D felony. He was placed on probation for a term of five years. On June 23, 1977 he was found to be in violation of probation as a result of a number of arrests and convictions while on probation. His probation was revoked and he was sentenced on August 4, 1977 to an indeterminate term of imprisonment of not more than seven years.

Petitioner attacks the sentence because the sentencing judge did not give him credit for the time he was on probation, referred to as "street time." *fn1" First, he contends that the failure to grant him credit for "street time" constitutes a violation of federal and state constitutional guarantees against double jeopardy *fn2" by making him re-serve time already served on probation. Second, petitioner argues that, because New York does grant credit for "street time" for time spent on either parole *fn3" or conditional release, *fn4" the failure to grant similar credit when probation is revoked violates federal and state equal protection provisions. *fn5"

 Petitioner's first claim is without merit. The denial of credit for "street time" is a practice common in both state and federal systems. *fn6" The validity of such a practice under the constitutional safeguard against double jeopardy is well-established. In United States ex rel. McGill v. Schubin, *fn7" for example, the Second Circuit sustained the New York statute then in effect which denied credit for "street time" to violators of conditional release *fn8" against a double jeopardy challenge. It held that "denial of credit for time served . . . does not amount to an extension of the . . . sentence, but rather is "potentially a part of the original sentence, (and) hence not invalid for violation of the double jeopardy inhibition.' " *fn9" This analysis is equally applicable to probation violation and has been so applied, with the the same result as in Schubin. *fn10" Accordingly, the sentencing judge's failure to allow for "street time" in petitioner's sentence did not constitute double jeopardy and was, in that respect, constitutionally sound.

 As noted above, *fn11" while probation violators in New York are not granted credit against their sentence for time while under probation, *fn12" such credit is accorded under New York law to violators of both parole and conditional release. *fn13" This differentiation between probationers and parolees, petitioner contends, violates his right to equal protection of the laws, as no rational basis supports the distinction. *fn14"

 Neither the parole and probation systems of New York nor the cases which have addressed virtually identical issues support petitioner's position.

 Our circuit, in United States ex rel. McGill v. Schubin, *fn15" upheld an earlier version of New York's penal law and rejected the contention that no rational basis supported the distinction with respect to "street time" credit made between violators of parole and conditional release. Though both of these programs involved release after a period of incarceration, and determinations by the state parole board, the court found sufficient difference between them to warrant disparate treatment of violators. It held that since parolees typically had a larger portion of unserved time remaining than did conditional releasees, the state's interest in deterring violations of the conditions of release by ensuring an adequate sanction for them was rationally served by denying "street time" credits to conditional releasees.

 The Schubin opinion provides ample support for reaching a similar result in this case where the programs involved, probation and parole, are even more plainly distinguishable than were parole and conditional release. Two notable differences between probation and parole in New York's penal system exist. Probation and revocation of probation are elements of the court's sentencing powers, enabling the court, in its discretion, to determine that rehabilitation would best be furthered by supervised release and, further, to enforce obedience to its conditions by the prospect of revocation and imprisonment. Parole, on the other hand, is controlled by the state's parole board, an administrative body.

 The court, upon revocation of probation, has discretionary power to impose the full sentence that might have originally been imposed. The parole board has no similar discretion as credit for "street time" must be granted a parole violator. It is a legitimate legislative decision to vest a larger degree of discretion to shape and enforce a proper punishment in a sentencing judge than is accorded to an administrative agency.

 Secondly, a parolee has been incarcerated prior to his release on parole, whereas one placed on probation has not been incarcerated. In furtherance of the state's interest in seeing the conditions placed upon probationers and parolees obeyed, the legislature may rationally conclude that the prospect of a full sentence is necessary to deter probation violators but is not required in the case of persons who have already served part of their sentences and have experienced the rigors of prison life.

 These distinctions between probation and parole have led other courts to hold that disparities in awarding "street time" credit do not violate equal protection principles. In United States v. Shead, *fn16" the Tenth Circuit upheld virtually identical distinctions which exist in federal penal law. *fn17" While noting the similarities in the purposes and effects of probation and parole, *fn18" the court nonetheless found that the "Equal Protection (Clause does) not command symmetry within the probation and parole systems. Legislative solutions are valid and must be respected if the distinctions drawn have some basis in practical experience or if some legitimate state interest is advanced." It concluded that "the distinctions between the alternatives of probation and parole . . . demonstrate a rational basis for the difference with respect to credit for time served before revocation of probation as opposed to parole." *fn19" The District Court in White v. Wyrick *fn20" reached the same result in considering Missouri's probation and parole systems, relying in part on the Schubin opinion discussed above.

 The precise provisions challenged here have, in fact, been expressly upheld against an equal protection challenge by the New York courts in People v. Gilmore. *fn21"

 In light of the foregoing discussion, the Court concludes that the non-allowance of "street time" credit to probation violators, whereas such credit is allowed to violators of parole or conditional release is a distinction rationally related to a legitimate interest of New York State and, thus, does not offend the equal protection clauses of either the state or federal constitutions. Accordingly, the petition must be denied.

 So ...

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