N.Y. Laws » CHAPTER Penal / PART Sentences / TITLE Sentences / ARTICLE Sentence of Intermittent Imprisonment
New York Consolidated Laws

N.Y. Penal Law § 85.05 (2026)

Modification and revocation of sentences of intermittent imprisonment

✓ current as of May 2026
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§ 85.05 Modification and revocation of sentences of intermittent
          imprisonment.
  1. Authorization. A sentence of intermittent imprisonment may be
modified by the court in its discretion upon application of the
defendant; and the court on its own motion may modify or revoke any such
sentence if:
  (a) the court is satisfied during the term of the sentence that the
defendant has committed another offense during such term;
  (b) the defendant has failed to report to the institution to which he
has been committed, or to the institution designated by the head of the
agency to which he has been committed, on a day or dates specified in
the commitment and is unable or unwilling to furnish a reasonable and
acceptable explanation for such failure; or
  (c) the defendant has violated a rule or regulation of the institution
or agency to which he has been committed and the head of such
institution or agency or someone delegated by him has reported such
violation in writing to the court.
  2. Interruption of sentence. In any case where the defendant fails to
report to the institution or to an institution of the agency to which he
has been committed, the term of the sentence shall be interrupted and
such interruption shall continue until the defendant either reports to
such institution or appears before the court that imposed the sentence,
whichever occurs first. If the defendant reports to the institution
before he appears before the court, he shall be brought before the
court.
  3. Action by court. The court shall not modify or revoke a sentence of
intermittent imprisonment unless the defendant has been afforded an
opportunity to be heard. Any modification of a sentence of intermittent
imprisonment:
  (a) may provide (i) for different or additional or fewer days or parts
of days on which the defendant is to be confined, or (ii) where the
defendant has failed to report as specified in the sentence, an
extension of the term of the sentence for the period during which it was
interrupted, or (iii) for both; and
  (b) shall be by written order of the court and shall be delivered and
filed in the same manner as the original sentence, as specified in
subdivision two of section 85.10 of this article.
  4. Jail time. Where a sentence of intermittent imprisonment is revoked
and a sentence of imprisonment is imposed in its place for the same
offense, time spent in confinement under the sentence of intermittent
imprisonment shall be calculated as jail time under subdivision three of
section 70.30 of this chapter and shall be added to any jail time
accrued against such sentence prior to imposition thereof.
Notes of Decisions
Cited in 11 cases, 1987–2016 · leading case: People v. Elmer, 973 N.E.2d 172 (N.Y. 2012).
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People v. Elmer, 973 N.E.2d 172 (N.Y. 2012). “40 [5]; Penal Law § 85.05 [3] [b]). By contrast, in Elmer, the People appeal under CPL 450.”
People v. Johnston, 140 A.D.3d 1528 (N.Y. App. Div. 3d Dep't 2016). · cites it 2× “After a two-day inquiry, at which defendant was afforded an opportunity to be heard and to submit documentary evidence, the court held that defendant had failed to report to jail on both weekends and had not furnished a reasonable explanation for such failure (see Penal Law §…”
People ex rel. Fancher v. Wasser, 244 A.D.2d 79 (N.Y. App. Div. 3d Dep't 1998). · cites it 2× “Penal Law § 85.05 (4) specifically provides that when a sentence of intermittent imprisonment is revoked and replaced by a new sentence for the same offense, “time spent in confinement under the sentence of intermittent imprisonment shall be calculated as jail time under…”
People v. Dick, 106 A.D.3d 1332 (N.Y. App. Div. 3d Dep't 2013). · cites it 3× “Thereafter, County Court revoked defendant’s intermittent sentence (see Penal Law § 85.05 [1] [b]), after giving him an opportunity to be heard, and resentenced him to four months in the Columbia County jail, and continued the five years of probation.”
People v. Chancey, 141 A.D.2d 980 (N.Y. App. Div. 3d Dep't 1988). · cites it 2× “Penal Law § 85.05 (1) (b) provides that the court, on its own motion, may revoke an intermittent sentence if it is satisfied that the defendant has failed to report to the institution to which he has been committed and is unable or unwilling to furnish a reasonable and…”
People v. Meredith, 256 A.D.2d 641 (N.Y. App. Div. 3d Dep't 1998). · cites it 2× “We do note, however, that if this sentence was valid, it could not have been modified after it commenced unless one of the conditions under Penal Law § 85.05 (1) was met. Regarding the sentence County Court imposed upon Meredith, we note that there are various factors that…”
People v. Keefe, 131 A.D.2d 937 (N.Y. App. Div. 3d Dep't 1987). “To be contrasted are the definite and indeterminate terms of imprisonment which are not subject to modification (CPL 430.10). CPL 410.70 (4) specifies that, when a sentence of probation or conditional discharge is sought to be revoked, the defendant is entitled to counsel at all…”
People v. Rachel L., 28 A.D.3d 1098 (N.Y. App. Div. 4th Dep't 2006). “Because none of the conditions set forth in Penal Law § 85.05 was met herein, the court lacked the authority to modify or revoke the sentence of intermittent imprisonment in each appeal.”
People v. Zambuto, 54 Misc. 3d 587 (N.Y. Sup. Ct. 2016). · cites it 2× “The defendant objects, claiming that his sentence cannot be modified except under grounds specified in Penal Law § 85.05 (1). The court held a fact-finding hearing on October 24, 2016 to permit the parties to be heard on their respective positions.”
People v. Dick, 106 A.D.3d 1332 (N.Y. App. Div. 3d Dep't 2013). · cites it 3× “Thereafter, County Court revoked defendant’s intermittent sentence (see Penal Law § 85.05 [1] [b]), after giving him an opportunity to be heard, and resentenced him to four months in the Columbia County jail, and continued the five years of probation.”
People v. Slingsby, 291 A.D.2d 575 (N.Y. App. Div. 2d Dep't 2002). · cites it 2× “), rendered May 11,1999, revoking an intermittent sentence of imprisonment previously imposed by the same court and imposing an indeterminate term of imprisonment pursuant to Penal Law § 85.05 (1) (b) upon his conviction of driving while intoxicated as a felony.”
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