CASE IN POINT by Dean Ed Vincent Albano | When probation not granted

Probation should not be granted to the accused in the following instances:

When the accused is convicted by the trial court of a crime where the penalty imposed is within the probationable period or a fine, and the accused files a notice of appeal; and

When the accused files a notice of appeal which puts the merits of his conviction in issue, even if there is an alternative prayer for the correction of the penalty imposed by the trial court or for a conviction to a lesser crime, which is necessarily included in the crime in which he was convicted where the penalty is within the probationable period.

Both instances violate the spirit and letter of the law, as Section 4 of the Probation Law prohibits granting an application for probation if an appeal from the sentence of conviction has been perfected by the accused.