Kent V. Moston, for Appellant.
Judith R. Sternberg, for Respondent.
Long Island Mothers Against Drunk Driving, amicus curiae.
TITONE, J.:
Our sentencing courts continually confront the important task of fashioning conditions of probationary sentences to rehabilitate those who have committed the often-habitual crime of driving while intoxicated. This case presents the Court with the questi on whether, as a condition of probation, a court may order the defendant to affix to the license plate of any vehicle he drives a fluorescent sign stating "CONVICTED DWI." We answer this question in the negative both because the condition is not reasonab ly related to defendant's rehabilitation, and, more generally, because, in the absence of more specific legislation, such a condition is outside the authority of the court to impose.
On December 10, 1991, defendant Roy Letterlough pleaded guilty to operating a motor vehicle while under the influence of alcohol as a felony (see, Vehicle & Traffic Law [VTL] § 1192[2]). This was defendant's sixth alcohol-related driving offense since 1971. Pursuant to the negotiated plea agre ement, defendant was sentenced to five years' probation and fined $500, his license was revoked (see, VTL § 1193[2]), and he was ordered to obtain alcohol treatment as directed by the Department of Probation. As an additional condition not pa rt of the initial plea agreement, the sentencing court directed that if the Department of Motor Vehicles should reissue a driver's license to defendant during the probationary period, he must affix to the license plates of any vehicle he drives a fluoresc ent sign stating "CONVICTED DWI." That condition specifically provides:
16. DWI LICENSE PLATE ADDITIONS: If for any reason the N.Y. State Department of Motor Vehicles (DMV), or any other entity, restores full or conditional limited driving privileges to the Probationer prior to the full expiration of the term of Probation imposed by this Court, Probationer agrees as fo llows: He/she shall order and have installed at his/her sole cost and expense, within seven (7) days of such license reinstatement, two (2) legible (day and night) metal, wood, plastic, or other durable and waterproof signs or plaques, affixed to the top or bottom of both the front and rear license plate of the vehicle which he/she may be driving (including owned, borrowed, leased, rented, etc.). Said signs shall state in fluorescent, large block letters "CONVICTED DWI." Such signs shall be the full length of the license plate, and one-half (1/2) the width. Said signs shall be inspec ted and approved by the Probation Department within fourteen (14) days of such reinstatement, and at any time thereafter: they shall remain in place for the entire duration of the term of Probation imposed by this Court. Failure to install them, removal without permission, driving without them, or a police stop for any reason also noting the absence of the signs, shall be grounds -- if proven in court -- for a determination of VIOLATION OF PROBATION and immediate resentencing (emphasis in original).As to this condition, the court stated:
I am not requiring that [the sign] be maintained permanently while others drive that vehicle, only when this individual drives that vehicle and he may design, should that contingency arise, any sort of a metal clip system so that it can be re moved if anyone else in his family or friends decide they wish to drive his car with his consent. I only wish to warn the public of this and only have this sign apply to this Defendant (emphasis added).Defense counsel argued generally that the condition violated the State and Federal Constitutions, but declined an offer to withdraw his plea. In closing, the court stated: "This gentleman is 54 years of age and I do not wish to be the one that opens a n ewspaper and sees that this gentleman has caused an accident that has taken an innocent person's life because I did not do something that either warns the public or treated his problem. I hope to be doing both." The prosecution informed the court that d efendant did not waive his right to appeal as part of the plea and the court specifically invited defendant to challenge the legality of the special condition on appeal.
The Appellate Division affirmed. Citing two Florida cases (Goldschmitt v Florida, 490 So.2d 123; Lindsay v Florida, 606 So.2d 652), the court found "no statutory or constitutional violation in the imposition of [the special condition requi ring defendant to place the fluorescent signs on his car]." A Judge of this Court granted defendant's application for leave to appeal as well as a stay of enforcement of the disputed special condition pending the determination of the appeal. Defendant h ere challenges the legality of that special condition, arguing, in part, that the court was not empowered to order it under Penal Law § 65.10.[n 1]
Our analysis of the propriety of the special license plate condition necessarily begins with a review of Penal Law § 65.10 which grants courts the authority to fashion conditions on a sentence of probation. The statute directs, as a general proposi tion, that "conditions of probation * * * shall be such as the court, in its discretion, deems reasonably necessary to insure that the defendant will lead a law-abiding life or to assist him to do so" (Penal Law § 65.10[1]). The statute provides tha t the court "shall, as a condition of the sentence, consider restitution or reparation, and may, as a condition of the sentence, require that the defendant" engage in or refrain from certain enumerated types of conduct (Penal Law § 65.10[2]). The li st includes directives to "avoid injurious or vicious habits," "refrain from frequenting unlawful or disreputable places," maintain suitable employment, undergo medical or psychiatric treatment, participate in alcohol or substance abuse programs, support dependents and meet family responsibilities, make restitution or reparation, perform community service, if under 21, reside in a suitable location and contribute to his or her own support, post bond or security for performance of any condition, and observe conditions as specified i n an order of protection (see, Penal Law § 65.10[2][a - k]). Additionally, because the conditions of probationary sentences must be tailored to the particular defendant's case, and an exhaustive list of behavioral conditions would therefore h ave been impossible, the statute includes a catch-all provision which grants the court wide latitude to require the defendant to "[s]atisfy any other conditions reasonably related to his [or her] rehabilitation" (id., § 65.10[2][l] [emphasis added]).
A probationary sentence "'is a method of offering an offender an opportunity to rehabilitate himself, without institutional confinement, under the supervision of a probation officer and the continuing power of the court to use a more stringent sanction i n the event the opportunity is abused" (Donnino, Practice Commentaries, McKinney's Cons Laws of NY, Penal Law article 65, at 204, quoting Staff Notes of the Commission on Revision of the Penal Law. Proposed New York Penal Law. McKinney's Spec. Pamph [196 4], p. 260).
The overriding purpose of imposing a sentence of probation in lieu of other punishment is to rehabilitate "the convicted criminal by giving him appropriate treatment, in order to * * * return him to society so reformed that he will not desire or need to commit further crimes" (LaFave & Scott, Substantive Criminal Law § 1.5, p.32-33). As has been aptly noted, "[i]t is perhaps not entirely correct to call this treatment 'punishment,' as the emphasis is away from making [the probationer] suffer an d in the direction of making his [or her] life better and more pleasant" (id., at 33 [emphasis added]). The utility of rehabilitation as a vehicle for preventing criminal behavior "rests on the belief that human behavior is the product of antecedent caus es, that these causes can be identified, and that on this basis therapeutic measures can be employed to effect changes in the behavior of the person treated" (id.). The focus of rehabilitation is primarily on healing the individual. Indeed, when a crimi nal act stems from a substance abuse problem, the use of sentencing conditions as a tool of rehabilitation is especially meaningful, since there are specific therapeutic options that may well ameliorate the underlying condition and thereby remove the cond ition associated with the criminal behavior (see, e.g., People v Berkley, 152 AD2d 788).
Penal Law § 65.10's delineation of typical probationary sentences reflects this rehabilitative aim. Significantly, the conditions enumerated in Penal Law § 65.10(2)(a - k) are rehabilitative in nature, focusing on restoring the probationer to the status of a law-abiding member of the community. None have an inherently punitive aim, although many -- such as those requiring a probationer to make restitution, refrain from frequenting "disreputable places" or to participate in an alcohol or subst ance abuse program -- impose unpleasant restrictions on the probationer's freedom and thus may have incidental punitive and deterrent effects (see Jon A. Brilliant, The Modern Day Scarlet Letter: A Critical Analysis of Modern Day Probation Conditio ns, 1989 Duke L J 1357, 1372 & n. 94 [probation conditions may serve punitive, rehabilitative and deterrent functions]).
Despite the inherent overlap and the difficulty in drawing lines between rehabilitative and punitive or deterrent sanctions, the Legislature did not mention punishment or deterrence as goals to be obtained through the imposition of probationary condition s pursuant to Penal Law § 65.10. Rather, Penal Law § 65.10 quite clearly restricts probation conditions to those reasonably related to a defendant's rehabilitation (Penal Law § 65.10[2][l]). Given the singular focus of the statute on reha bilitation of the individual, the Legislature clearly intended to authorize conditions of probation that are fundamentally "rehabilitative" in the sense of that word that distinguishes it from the societal goals of punishment or deterrence (see, LaFave & Scott, Substantive Criminal Law § 1.5, pp.31, 3 3).[n 2] Those goals are better served by other, more severe criminal sanctions, such as incarceration, and are reserved for society's more serious offenders. By contrast, probation is a criminal remedy generally consid ered useful only in cases where the offender does not present "a serious threat to the public" and where "imprisonment is not required as a deterrent to others" (Staff Notes, Law Revision Commission, Proposed Penal Law § 25.00[1], p 261).
The degree of threat this defendant posed to society and whether he was an appropriate candidate for probation, given his criminal history, are questions not before this Court. Rather, our inquiry must focus solely on whether, having determined that pro bation was the appropriate criminal sanction for defendant, County Court acted within the parameters of the probationary sentencing structure authorized by Penal Law § 65.10.[n 3] Here, the court appropriately direct ed, as a means of rehabilitating defendant, that he participate in a substance abuse program under the direction of the Probation Department. Such a measure is clearly geared towards rehabilitating a probationer because it relates to the correction of th e underlying substance abuse problem at the root of defendant's criminal behavior. However, the same may not be said of the "CONVICTED DWI" sign condition. As the sentencing court made clear, its true design was not to advance defendant's rehabilitation , but rather to "warn the public" of the threat presented by his presence behind the wheel. Beyond that, public disclosure of a person's crime, and the attendant humiliation and public disgrace, has historically been regarded strictly as a form of punish ment (see generally, Jon A. Brilliant, The Modern Day Scarlet Letter: A Critical Analysis of Modern Probation Conditions, supra). Undeniably, the condition of the DWI license plate sign imposed here was in large part intended to punish defendant, but the legislature has determined that that purpose is better served by other penal sanctions not authorized by section 65.10.
The punitive and deterrent nature of the disputed "scarlet letter"[n 4] component of the probationary conditions here overshadows any possible rehabilitative potential that it may generate and thus is out of step with th e various other devices specifically authorized by Penal Law § 65.10(a-k). Indeed, the public disclosure component of the order of conditions placed on defendant here may even negate any positive effect derived from the imposition of other therapeut ic conditions, such as the requirement that defendant participate in an alcohol treatment program (see, People v Johnson, 174 Ill. App. 3d 812; see also LaFave & Scott, Substantive Criminal Law, § 1.5[b], p 37). Notably, the force d advertisement of a probationer's DWI conviction is inconsistent with the need for confidentiality which is ordinarily deemed a mandatory component of such treatment programs (see, 15 NYCRR § 134.16).
More importantly, the detailed condition imposed here is objectionable because in fashioning it the trial court invaded the legislative domain. Under this State's jurisprudence, the creation of punishment for crimes rests within the realm of the legisla ture (People v Byrne, 77 NY2d 460 ,467-468). A sentencing court simply cannot impose forms of punishment not authorized by statute for a particular crime. Accordingly, the obvious and overriding punitive component of th e disclosure order here renders the condition one that must be prescribed by the Legislature.
Even if viewed as a measure to protect the public through warnings, the condition imposed here is one requiring legislative involvement because of the obvious need for statewide uniformity and the kind of policy choices that only an elected Legislature can make (see, e.g., Sexual Offender Registration Act [Megan's Law], P.L. 1994, ch 133 [New Jersey] [authorizing disclosure of a released defendant's prior convictions under certain co ntrolled conditions]). Indeed, the statutory precedent from other jurisdictions that the People cite (see, e.g., Iowa Code Ann § 321J.4; Minn Stat § 168.041[6]; Ohio Rev Code § 4503.231) serves only to demonstrate that the public di sclosure of a probationer's conviction as a method of providing deterrence and warning to the public is a reasonable policy choice that can be made after testing through the deliberative process of a legislative body.[n 5]
Here, in addition to the more general need for uniformity and statewide standards, there is a more particularized need for legislative involvement because of the safety and regulatory concerns that are raised by the notion of using license plates or vehi cle accessories to advertise an individual's criminal history. Similar concerns have led the Legislature to authorize the Commissioner of the Department of Motor Vehicles to design the form, content and method of attachment of license plates, equipment an d accessories used upon motor vehicles (see, VTL § § 300, 401[3], 401[1], [2]; see also, id. § 215[b]).[n 6] The Legislature has specifically directed that "number plates shall be kept clean a nd in a condition so as to be easily readable and shall not be covered by glass or any plastic material, and the view thereof shall not be obstructed by any part of the vehicle or by anything carried thereon" (id., § 402[1] [emphasis supplied]) . Manifestly, a judicial order to attach a special plate to the one prescribed by the Commissioner runs afoul of this directive and creates a very real impediment for traffic and law enforcement authorities who must depend on the readability of the infor mation displayed on vehicular license plates. Moreover, a judicial order that gives the convicted motorist and the Probation Department discretion to determine the material and fastening to be used undermines the legislative command to use "reflectorized material according to specifications prescribed by the commissioner" (id., § 401[3]) and gives rise to potential safety problems, including damage or injury caused by disengagement of the sign on the highway. As a practical matter, it is dif ficult to imagine how this or any defendant would safely construct the sign, which the court directed should be made of metal, wood or plastic and fastened "by some type of metal clip system." The distraction occasioned by special judicially-ordered "sca rlet letter" plates and the reactions of other motorists upon seeing them also poses a potential safety threat.[n 7]
Notably, although it was aware of the possibility of using special license plates (see, 1983 S. 4861), our Legislature has chosen instead to address the public safety problem of recidivist drunk drivers by authorizing other types of law enforcemen t tools. A recent enactment authorizes courts, effective July 1, 1994, to order a defendant, as a condition of probation, to install an "ignition interlock device" that attaches to the vehicle's steering mechanism and ignition (VTL § 1198). The dri ver must then breathe into a device that chemically measures alcohol content both before the car can be started and at regular intervals thereafter. Clearly, no such legislative initiative would have been necessary if this type of condition could have be en imposed by the courts on a case-by-case basis under Penal Law § 65.10's existing catch-all provision. By parity of reasoning, the special license-plate condition should be available as a sentencing tool only after similar legislative deliberation and study. Additionally, when this statute was passed in 1988 (L. 1988, ch 713), it specifically provided that use of the ignition interlock system may be directed as a condition of probation where the court determines that "such a condition is necessary to ensure the public safety" (VTL § 1198[d]). Given that the Legislature explicitly added the promotion of public safety as a goal to be achieved by this new law-enforcement tool, the reference in the probation statute's catchall provision to the lone goal of rehabilitation renders County Court's stated public safety motivation for imposing the special condition improper.
While innovative ideas to address the serious problem of recidivist drunk driving are not to be discouraged, the courts must act within the limits of their authority and cannot overreach by using their probationary powers to accomplish what only the legi slative branch can do. Simply put, the creation of new criminal penalties and the regulation of highway safety cannot be achieved through the simple expedient of the probation statute's catch-all provisions (Penal Law § 65.10[2][l]). Since the "CON VICTED DWI" sign ordered here cannot under any view be regarded as a rehabilitative measure authorized by Penal Law § 65.10, and the creation of such a penalty out of whole cloth usurps the legislative prerogative, the condition, however well-intende d, cannot be upheld.
Accordingly, the order of the Appellate Division should be reversed, the plea vacated and the case remitted for further proceedings in accordance with this opinion.
F O O T N O T E S
1. Defendant's failure to argue at sentencing that the County Court was not empowered to impose the special DWI licenseplate condition under Penal Law § 65.10 does not impede our review of that claim because it involves the "'essential n ature of the right to be sentenced as provided by law'" (see, People v Fuller, 57 NY2d 152, 156). [Return to text]
2. Indeed, when the Legislature enacted Penal Law 65.10 in 1965 (L. 1965, ch 1030), it was likely influenced by the then prevailing penological premise that individuals could be rehabilitated or therapeutically "cured" of their criminal tendencies and that the remedy of probation -- intended solely for less serious offenders -- was meant to bring about such rehabilitation. Importantly, Penal Law § 65.10 is a near replica of the 1962 enactment of Model Penal Code § 301.1, which begins t he article entitled "Treatment and Correction." [Return to text]
3. The dissent's suggestion that the punitive and deterrent features of the special condition here are warranted in light of defendant's recidivism and the failure of prior criminal sanctions (dissenting slip op. at 10) is more appropria tely directed at the propriety of the mode of punishment selected here - e.g. probation versus incarceration -- and the punitive goals sought to be achieved thereby. [Return to text]
4. See, N. Hawthorne, The Scarlet Letter (Bantam Classic ed. 1986). [Return to text]
5. Significantly, there was an initiative in our own State Legislature to consider the use of special license plates to identify individuals formerly convicted of DWI offenses. Under Senate Bill 4861 (1983), the Commissioner of Motor Ve hicles would have been directed "to study and investigate the feasibility" of that proposal. The measure was not adopted. [Return to text]
6. For example, the Commissioner is required to "adopt standards and specifications * * * for the design and mounting of [the official] slow-moving vehicle emblem" (VTL § 375[36][a] [emphasis added]; see also, 15 NYCRR § 68.5) and t o regulate the use and placement on vehicles of driving-school or student-driver signs (see, 15 NYCRR § 76.12[3]). [Return to text]
7. While we are undoubtedly aware of the obvious dangers caused by drunk drivers, the attachment of a "CONVICTED DWI" sign to a car also presents real public safety concerns which require legislative regulation and do not deserve to be l ightly dismissed (see dissenting slip op, at 12). [Return to text]
BELLACOSA, J. (dissenting):On this appeal, defendant Letterlough disputes the authority of the sentencing court to attach a special condition to his sentence of probation for his conviction, on his guilty plea, in satisfaction of his sixth driving while intoxicated arrest. The court required that, during the five-year probationary period, the license plates of any car Letterlough might drive duri ng his probation should bear the sign "CONVICTED DWI," but only if Letterlough pursued and obtained reinstatement of his automatically revoked license to drive.
The question of interpretation and application is whether this condition of probation is "reasonably related to [defendant's] rehabilitation" (Penal Law § 65.10[2][l]) and, therefore, within the sentencing court's authority under Penal Law § 65 .10 (see also, Penal Law § 65.10[1]). Notably, the sentencing court unquestionably had the power to jail Letterlough for up to four years for the latest in his long history of driving while intoxicated arrests and convictions (see, Vehicle an d Traffic Law § 1193[1][c]; Penal Law § 70.00[2][e]). Instead, the sentencing court granted the defendant's request for probation.
We are convinced that the rehabilitation-based sentencing authorization of Penal Law § 65.10 gives the court the discretionary authority, in a recidivistic case such as this, to impose and particularize the probation condition at issue. The punitiv e aspect and the alleged potential "stigma" or "heightened scrutiny" that could be associated with this reasonable condition should not create, in fact or as a matter of law, an absolute bar to such an appropriate, particularized rehabilitative probation condition.
Under the facts of this case, the sentencing court's imposition of the challenged condition, after careful consideration of defendant's woeful history and directly relevant circumstances, was "reasonably related" to defendant's possible rehabilitation, consistent with Penal Law § 65.10. Rehabilitation and punishment are not mutually exclusive goals or concepts in these circumstances, either under the governing statute or under progressive penological theory and practice (see, generally, Filcik, Signs of the Times: Scarlet Letter Probation Condi tions, 37 Wash. U.J. Urb. & Contemp. L 291). Consequently, we respectfully dissent and vote to affirm the order of the Appellate Division, which had affirmed the sentencing court's conditional probationary alternative to defendant's incarceration.
The arrest, which has now led to this appeal, is defendant Letterlough's sixth alcohol-related arrest. In 1971, Letterlough pled guilty to driving while impaired and received a fine; the arrest was for driving while intoxicated. In 1972, he again pled down to guilty to driving while impaired, after a driving while intoxicated arrest; his license was suspended and he paid an increased fine. In 1973, he was at it again and was again caught. He pled guilty to the driving while intoxicated charge and was fined $100. Another driving while intoxicated arrest in 1973 led to a guilty plea to the charge as a felony, for which he was sentenced to 90 days in jail. The record reflects no criminal adjudications from that point until 1985 when, after being arres ted for driving while intoxicated, he pled guilty to the charge as a misdemeanor. He was placed on probation for three years and paid a $350 fine.
On September 21, 1991, Letterlough was arrested for the felony now at issue, when officers observed him driving his vehicle directly into oncoming traffic. He had a blood alcohol level of .139 and was charged with driving while intoxicated. On December 10, 1991, Letterlough pled guilty in Nassau County Court to operating a motor vehicle while under the influence of alcohol as a felony (Vehicle & Traffic Law § 1192[2]; § 1193[1][c]). On January 22, 1992, County Court sentenced hi m to five years probation and a fine of $500; his license was automatically revoked in accordance with Vehicle & Traffic Law § 1193(2)(b). The court directed Letterlough to obtain alcohol treatment, should the Department of Probation require it (see, Penal Law § 65.10[2][e]). The sentencing court recited on the record that the incarceration and fines imposed on Letterlough for his many prior alcohol-related convictions had self-evidently not succeeded in rehabilitating his conduct and attitude about driving and drinking. The court thus attached the "CONVICTED DWI" license plate condition to his probation. Letterlough accepted the special condition, under protest; expressly declined the court's offer to withdraw his guilty plea; and appealed the sentence. Thus, he conjures up the apt axiom of one having one's cake and eating it, too.
The Appellate Division affirmed, stating that no statutory or constitutional protection was violated by imposing the condition of probation (205 AD2d 803, 804). A Judge of this Court granted Letterlough this further appeal.
The Legislature gives sentencing courts their range and scope of permissible conditions of probation in Penal Law § 65.10:
1. In general. The conditions of probation * * * shall be such as the court, in its discretion, deems reasonably necessary to insure that the defendant will lead a lawabiding life or to assist him [or her] to do so.2. Conditions relating to conduct and rehabilitation. When imposing a sentence of probation * * * the court * * * may, as a condition of the sentence, require that the defendant: * * *
(l) Satisfy any other conditions reasonably related to his [or her] rehabilitation (emphasis added).
The sentence of probation "'is a method of offering an offender an opportunity to rehabilitate * * * without institutional confinement, under the supervision of a probation officer and the continuing power of the court'" (Donnino, Practice Commentaries, McKinney's Cons Laws of NY, Book 39, Penal Law article 65, at 204 [emphasis added], quoting Penal Law § 65.00 and citin g Staff Notes of the Commn on Revision of the Penal Law, McKinney's Spec. Pamphlet [1964], at 260). Section 65.10 of the Penal Law lists a non-exclusive set of permissible conditions which can be imposed with probation, and then grants a catch-all author ity to the court to impose conditions, so long as they are "reasonably related to [defendant's] rehabilitation" (Donnino, supra, at 208; Penal Law § 65.10[2][l]; see also, Penal Law § 65.10[1]).
Defendant Letterlough argues that the specially suited probation condition imposed for his conviction and criminal record -- affixing a "CONVICTED DWI" notation to the license plates of any car he might drive during the probationary period -- is not reasonably related to rehabilitation. Finding the condition "in large part" punitive, the majority conclude that the co ndition can serve no rehabilitative purpose (Majority opn, at 9). We disagree. In the most practical terms, defendant might refrain from a given temptation and get in the habit of not drinking and driving, precisely because such a legend might subject Le tterlough to heightened scrutiny by civilian drivers at risk and law enforcement personnel (compare, NY Times, May 22, 1994, § 1, at 24, col 2 [Jay Winsten, director of the Harvard Center for Health Communication, stating that it is the knowle dge that they are under close police scrutiny that has caused younger drivers to choose designated drivers]). Contrary to the majority's view, on this basis alone, the statutory prerequisite is met, as applied to this case (see, Penal Law § § 6 5.10[2][l], [1]).
We respectfully disagree with the majority's proposition that the probation condition at issue, under the circumstances of this case, cannot qualify as rehabilitative under the pertinent authorizing statute (Majority opn, at 7-8). The sentencing environ ment does not abide a theoretical purity that would cabin "punishment" and "rehabilitation" into such discrete, mutually exclusive universes. In the complex world of penology, sociology and human behavior, one could hardly imagine the actuality of a purely rehabilitative condition, no less countenance a legal p rinciple that would require such unattainable segregation. Indeed, the majority admit as much, recognizing the "inherent overlap and the difficulty in drawing lines between rehabilitative and punitive or deterrent sanctions" (Majority opn, at 7). Notwiths tanding this acknowledgement, the majority cursorily conclude that the Legislature could not have intended punishment or deterrence as goals of probation (Majority opn, at 7). Curiously, they do so, even recognizing that certain enumerated probation cond itions expressly authorized by the Legislature have "punitive and deterrent" effects (Majority opn, at 7).
Contrary to the view propounded by the majority, the Legislature did not bar sentencing courts from imposing probation conditions which have some punitive or deterrent consequences. Moreover, the fine judicial line that the majority draws between "unplea sant restrictions on the probationer's freedom * * * [that] have incidental punitive and deterrent effects," which they find permissible (Majority opn, at 7), and those which are "overshadow[ingly]" of a "punitive and deterrent nature" (Majority opn, at 1 0) and, hence, impermissible, is simply unsupported by the Legislature's broad grant of discretion to the sentencing court. One of the long-recognized, accepted goals of punishing unlawful behavior is to provide an incentive for the offender to reform and behave (Kelley, Sentenced to Wear the Scarlet Letter: Judicial Innovations in Sentencing -- Are They Constitutional?, 93 Dick. L Rev 759, 780-781). The legislative sentencing prescription in Penal Law § 65.10 -- that the condition be reasonably rel ated to rehabilitation -- contains no express or implied prohibition against some punitive or deterrent consequence. Thus, the punishment and rehabilitative features of this probation condition may lawfully co-exist.
Instead, the rule emanating from this case effects a sentencing regression, which is further compounded by restricting the sphere of permissible rehabilitative conditions to only those which would address and cure defendant's alcoholism (Majority opn, at 7). Curbing alcoholism or drinking -- the "root" causes of defendant's persistent criminal conduct -- is not the only "rehabilitative" goal under Penal Law § 65.10. Rather, when one addresses the conduct at issue here -- defendant's drinking and d riving -- one immediately and naturally recognizes that a reasonable condition which might induce defendant to refrain from driving while intoxicated is, in part at least, "rehabilitative" within the meaning of Penal Law § 65.10 (see, Filcik, Signs of the Times: Scarlet Letter Probation Conditions, 37 Wash. U.J. Urb. & Contemp L 291 [stating that where statutes provide that sentencing courts may impose conditions "reasonably related to [defendant's] rehabilitation," "[t]his * * * allows t he trial judge to create and impose individualized conditions, such as 'scarlet letter' conditions," with the court's discretion being "limited only by the 'reasonableness' requirement" -- namely, that the special conditions be "carefully plann[ed] to mee t the defendant's needs"; citing as examples of such reasonable conditions the "heightened scrutiny" type of conditions -- publishing apologies in the newspaper, wearing taps on the bottom of shoes, affixing "DWI" bumper stickers to cars]; Kelley, Sentenc ed to Wear the Scarlet Letter: Judicial Innovations in Sentencing -- Are They Constitutional?, 93 Dick. L Rev 759, 780 [stating that "[t]he theory of rehabilitation focuses on providing the offender with appropriate treatment in order to modify his anti-s ocial behavior into acceptable conduct" (emphasis added)]).
Penal Law § 65.10 even specifies that conditions of probation "shall be such as the court, in its discretion, deems reasonably necessary to insure that the defendant will lead a law- abiding life or to assist him [or her] to do so" (Penal Law § 65.10[1]). Applied to the instant case, that expansive, preambled direction is not about the disease of alcoholism, but about criminal conduct and prevention of it by changing criminal pr opensities. The Penal Law does not criminalize drinking; nor is it a crime to have a drinking problem. The crime is driving while intoxicated. Consequently, this defendant particular, narrowlytailored condition, should unquestionably qualify on this re cord as "reasonably related" to rehabilitation and reasonably necessary to help defendant start being "law abiding" (Penal Law § 65.10; see also, Kelley, Sentenced to Wear the Scarlet Letter: Judicial Innovations in Sentencing -- Are They Cons titutional?, 93 Dick. L Rev 759, 781 [stating "[w]arning signs act as a 'Pavlovian' behavior modification technique. Each time the offender encounters the sign, he is cognizant of his activity and the illegality of that behavior. The sign reinforces upo n the offender that this behavior is unacceptable * * * [and that] society[] [is] determin[ed] to see this behavior condemned"]). The majority expression and analysis inappropriately segregate the prohibited combined drinking and the driving, thus ignori ng the criminal component to which the rehabilitative probation condition is reasonably directed.
The sentencing court's decision in the instant case is buttressed by the fact that other, more traditional, sanctions failed repeatedly with this defendant. We know he was caught for six driving while intoxicated incidents over the last 20 years. How of ten he has driven under the influence of alcohol without being caught and taken off the road is unknown. The majority pay little heed to the defendant's felony-level conduct and six-time driving-while-intoxicated arrests as not constituting "a serious th reat to the public" (Majority opn, at 8). To the contrary, however, defendant's criminal record is certainly not very reassuring to the public or to a sentencing judge, who wished to retain some measure of control while allowing defendant to stay out of jail (see, Donnino, Practice Commentaries, McKinney's Cons Laws of NY, Book 39, Penal Law article 65, at 204 [noting that probation subjects defendant to the "continuing power of the court"]). Indeed, the sentencing court noted that the usual and availabl e sanctions had not succeeded in altering defendant's illegal and antisocial dangerous drinking and driving habits. The defendant nitpicks at the court's statement on the record, arguing that the court was motivated by public safety concerns. First, the re is nothing inherently wrong about that. Besides, even if this part of the court's rationale were questionable, the court also explicitly recited defendant's failure at all other rehabilitative modes of sentencing, including jail and fines. The court then stated that it imposed the special condition as a means to help defendant overcome his dangerous drinking and driving problem and propensity. That is record-based satisfaction of the statute's rehabilitation hook.
Our rationale, which would endorse the sentencing court's particular sentence under these circumstances, also finds support in some precedents from other jurisdictions. In Ballenger v State (210 Ga App 627, 628-629), the Georgia Court of Appeals upheld the trial court's imposition, as a condition of probation, that defendant wear a fluorescent pink plastic bracelet imprinted with the words "DUI CONVICT." The court's ruling rested predominantly, if not exclusively, on the rehabilitative aspect of the condition:
Being jurists rather than psychologists, we cannot say that the stigmatizing effect of wearing the bracelet may not have a rehabilitative, deterrent effect on [defendant]. * * * Certainly the fines and/or incarceration this defendant received in connection with his numerous previous driving under the influence and habitual violator convictions did not succeed in rehabilitating him (id., at 629).There, as here, the repeated offenses by defendant and the history of traditional sanctions that simply did not succeed in rehabilitating him warranted imposition of the more innovative rehabilitative condition (contrast, People v Johnson, 174 Ill App 3d 812 [invalidating condition that defendant place mug sheet and apology in paper where defendant had no prior crimina l record]).
The Florida District Court of Appeals has also held that potentially stigmatizing probation conditions are not fundamentally contradictory to rehabilitative goals (Lindsay v State, 606 So2d 652; Goldschmitt v State, 490 So2d 123). In Lindsay v State (supra), the court upheld, as a conditio n of probation, the requirement that defendant place an ad in the newspaper consisting of defendant's mug shot, name, and caption "DUI CONVICTED" (606 So2d, at 654, 656-657, supra). The court specifically rejected defendant's argument that the potential resulting stigmatization contravened the rehabilitative purpose of the probation statute. To the contrary, the court found that the "deterrent, and thus the rehabilitative, effect of punishment may be heightened if it 'inflicts disgrace and contumely in a dramatic and spectacular manner'" (id., at 656, quoting United States v William Anderson Co., Inc., 698 F2d 911, 913 [8th Cir.]; see also, Goldschmitt v State, 490 So2d 123, supra [Florida District Court of Appeals, upholding as "rehabilita tive" a condition of probation that defendant's vehicle bear a bumper sticker reading "CONVICTED DUIRESTRICTED LICENSE"]).
While these courts have upheld conditions far more intrusive than the one at issue here, and while we do not broadly approve such sanctions, the reasoning remains instructive. These cases support the core rationale that (1) any condition of probation mu st "bear some relationship to the nature of the offense of conviction and should have some reasonable rehabilitation basis" (id., at 125 n3); and (2) punitive aspects of a probation condition are not, as a matter of law, fundamentally contradictory to reh abilitative goals.
Moreover, the instant case does not present the situation where an overly broad, peculiarly personal, or onerous condition has been imposed (see, e.g., People v Hackler, 13 Cal App 4th 1049 [invalidating probation condition requiring defendant to wear Tshirt with bold statement of his felony theft probationer status at all times while defendant was outside his living quarters]). The probation condition at issue here affects defendant only in the definitive and distinctive category of human activi ties to which defendant's conviction pertains, namely, operating a motor vehicle if he gets his license back. Only if defendant pursues reinstatement of his driving privileges during the probationary period does the condition of probation ever spring int o being. Thus, this condition of probation does not encompass areas of privacy unrelated to the offense; nor does the condition impose constraints on some basic right or ability to function in society (contrast, People v Hackler, supra). The condition, t ailored directly to the activity of this defendant's repeated illegal and antisocial conduct, is designed to and may assist him in starting to lead a more "law-abiding life" (see, Penal Law § 65.10[1]).
In stark contrast to the empirically irrefutable threat posed by drunk drivers, the probation condition at issue poses none of the danger to the public posited by the majority (Majority opn, at 11-13). The spectre of flying accessories or distractive sp ecial plates, in any event, hardly compares to the dangers from incorrigible drunk drivers, who are responsible for causing an alcohol-related death every 20 minutes (see, Landstreet, The Drinking Driver: The Alcohol Safety Action Programs 3 [1977]). In jurisdictions that have expressly authorized comparable probationary conditions, or where the courts have upheld such conditions under general grants of authority, these speculative concerns have been given no credence. Moreover, they simply have no bearing on the question of the discretionary authority of sentencing courts to rule in accordance with legislatively deleg ated power.
Most importantly, too, the issue is not whether each of us would personally favor or impose such a condition if acting as a sentencing judge. That is simply not the question before us. The only issue we face is whether the Legislature has allowed sente ncing judges discretion in an appropriate case to impose such conditions. We conclude that it did and that, under these particularly egregious circumstances, the sentencing court did not abuse its discretion.
In using generously appropriate discretionary phraseology, the Legislature contemplated that sentencing courts would fashion conditions of probation based on the particular circumstances of a defendant's record. Defendant's per se challenge, upheld by t his Court, contradicts that legislative mandate and, instead, handcuffs the sentencing courts, including in cases where traditional sentencing approaches have been repeatedly tried and failed. If statutory construction compels such a result, then the sol ution for the future is simple: jail. Thus, defendant's victory here is a defeat for progressive sentencing for defendants down the road. Jail and regressive sentencing practices are clearly not what the Legislature had in mind by enacting Penal Law 67; 65.10 (cf., Memorandum of NYC Mayor Koch Supporting L 1978, ch 500 [statute regarding conditioning probation on performing community service work], Bill Jacket, L 1978, ch 500 [noting concerns motivating and justifying such condition, including "curre nt lack of alternatives to short but costly jail sentences"]).
The majority nullify the probation condition at issue on absolute, per se, matter of law bases and diminish the authority invested in sentencing courts by the Legislature. The striking irony is that while the Legislature in this instance has expanded ju dicial sentencing discretion (contrast, e.g., Penal Law § § 70.04[2], [3]; Penal Law § § 70.06[2], [4]), the Judiciary itself withdraws from sentencing courts the discretionary flexibility to impose reasonably-related conditions to probation that the sentencing court and Appellate Division found reasonably necessary to assist or insure a law-abiding turnaround by this defendant.
Order reversed, defendant's plea vacated and case remitted to County Court, Nassau County, for further proceedings in accordance with the opinion herein. Opinion by Judge Titone. Chief Judge Kaye and Judges Simons, Smith and Ciparick concur. Judge Bell acosa dissents and votes to affirm in an opinion in which Judge Levine concurs.
Decided June 13, 1995