Queens County Bar Association
Martindale Hubbell - Distinguished 2023

What Factors Determine the Level of Incarceration?

In New York, if the sentence is a year or less, it will be imposed in the local jail; for example, in New York City, time will be served at Rikers Island. Any jail sentence of more than a year will be served in a state prison, although whether the sentence is served in minimum or maximum security or anything in between is entirely at the discretion of the Corrections Department; the judge plays no role.

If you’re thinking about a house arrest option, you should know that New York state courts have no such option, although it is an option in the federal courts.

Are There Any Instances Where Serving Jail Time Seems Preferable?

Though the client very rarely agrees with the idea, in certain rare circumstances serving jail time may be the best option. For example, someone who is charged with a serious drug offense may face an alternative in which they get to choose between a relatively short jail sentence or going into and successfully completing a difficult drug rehabilitation program; they may be better off taking the jail sentence if they think they’ll fail the drug program and end up doing far more jail than if they had just opted for jail in the first place.

I will only suggest that to a client when I am absolutely convinced that they will mess up, which is very rare; it’s difficult to tell someone something like that. Even rarer is the client accepting that advice; most people will opt for completing the program in order to avoid jail, even for a relatively short time. A lot of times, they’re right, but unfortunately, sometimes they’re wrong.

What Does The Experience Of First-Time Incarceration Feel Like?

There is really no way to prepare for it; being in jail is not a pleasant experience. For some people, particularly those convicted of certain types of crimes and a relatively short sentence, I’ll get their permission to request protective custody, so that they’re not within the general population, and that will keep them safe. Of course, the disadvantage is, they’re locked up for 23 hours a day with little chance of getting any kind of recreation or exercise or any other healthy thing. But if it’s a short jail sentence and the person is likely to be exposed to risk, we will often ask for protective custody. Other than that, there’s really not much you can do to prepare; just follow orders, keep to yourself and make the best of a very bad situation. It’s a very unpleasant experience and we do all we can to prevent people from experiencing it.

If I Spend A Few Days In Jail As A Result Of A Charge That Was Eventually Dismissed, Will It Show On My Record?

The short and simple answer is no. If your case is dismissed, any public record about the case or your incarceration is sealed and no longer available.

For more information about Factors Determining Security Level Of Incarceration, please contact The Law Office of Martin D. Kane at (718) 793-5700to find out more about what we can do for you.

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