Absconding in New York

When you are under state custody, you may have opportunities to be temporarily released. For example, you may be released for a temporary work release or furlough program, or released to a community treatment facility.

However, if you fail to return to your confinement by the agreed-upon time, you may be charged with absconding. If found guilty, you may face serious penalties: absconding can result in a felony conviction.

Examples

The following are examples of situations where charges of absconding may be filed.

Kate has been granted a leave of absence to attend a funeral and must return to her correctional facility by the weekend. She flees the jurisdiction, with no intent to return.
Kate has been granted a temporary seven-day furlough period to see her family. She does not return after the seventh day, because she believed the release period was eight days.
Kate has been admitted to a temporary work release program. She, while not intending to run from the authorities or escape custody, returns to her confinement facility one day later than scheduled.

If any of the above situations sound similar to yours, keep reading to find out what you need to know about this serious offense, and why you should immediately seek legal counsel to minimize your risk.

Statutes Defining Absconding in New York

There are four statutes that define Absconding under New York law:

NY Penal Law § 205.16 – Absconding from temporary release in the second degree: This occurs when a person intentionally fails to timely return to his confinement facility while on work release. This is a Class A misdemeanor.

NY Penal Law § 205.17 – Absconding from temporary release in the first degree: This occurs when a person intentionally fails to timely return to his state DOCCS or OCFS confinement facility while on temporary release. This is a Class E felony.

NY Penal Law § 205.18 – Absconding from a furlough program: This occurs when a person intentionally fails to timely return to his confinement facility while on furlough. This is a Class A misdemeanor.

NY Penal Law § 205.19 – Absconding from a community treatment facility: This occurs when a person, who is transferred from a DOCCS facility to a community treatment program, leaves the community treatment facility without authorization, or intentionally fails to timely return to the community treatment facility. This is a Class E felony.

Meaning of Temporary Release

To better understand the elements of absconding, you need to understand what is meant by the terms temporary release, furlough, and work release.

The New York Department of Corrections and Community Supervision permits inmates who are within two years of their earliest date of release, to begin integrating back into society. There are various forms of temporary release:

Furlough: An inmate is allowed to stay with his/her family for up to seven days. The purpose is to maintain family ties and to seek post-release employment or housing.

Work Release: An inmate is allowed to leave a confinement facility for up to 14 hours to work, and to receive job training.

Industrial Training Leave: An inmate is allowed to participate in various industrial training programs outside the confinement facility.

Educational Release: An inmate is allowed to go to school or college outside a confinement facility for up to 14 hours in any day.

Community Service Leave: An inmate is allowed to do volunteer work, or attend an athletic event, cultural event or, religious services.

Leave of Absence: An inmate is allowed to visit a dying relative or to attend a funeral for a family member.

Because the term “temporary release” includes all of these types of release, Absconding in the First Degree is the broadest form of the offense. Other types of absconding only apply to a single type of temporary release. For example, absconding in the second degree applies only to work release.

The Elements of Absconding

The “elements” of an offense are the things that the prosecutor must prove in order for you to be found guilty of the offense. For example, for a defendant to be convicted of absconding in the first degree, all of the following must be proven at trial:

You be confined at a DOCCS or OCFS facility; AND
You must be released from the confinement facility under a temporary release program; AND
You must intentionally fail to return to the confinement facility; AND
You must fail to return to the confinement facility within the time allowed.

Each element is discussed briefly below.

Element #1: Be confined at a DOCCS or OCFS facility

First-degree absconding only applies if you are confined in a New York DOCCS or OCFS facility. If you are confined at a non-DOCCS facility, like a local facility, the only absconding offense that you can be charged with is second-degree. However, even if you are confined at a local facility, you may nonetheless be liable for other crimes, such as escaping from confinement, which will be discussed below.

Element #2: Be released from the confinement facility under a temporary release program

This element is satisfied if you are released under a temporary release program. This includes the list of six temporary release programs listed above. Of course, there may be other temporary release programs that were not listed.

For example, in People v. McCollough, the court held that a “five and two” program, which was a combination of work release and furlough, satisfied the definition of a “temporary release program” even though it was a new type of temporary release that was not listed in the Correction Law. And in People v. Ortega, the Court of Appeals held that a non-secure facility does not qualify as a detention facility under New York Penal Law § 205.00, and therefore the defendant could not be found guilty of escape in the second degree.

Element #3: Have the intent to not return within the allotted time period

This element applies to every type of absconding, and arguably the most important. You must have the intent to not timely return to your confinement facility. The “intent” element does not require that you specifically plan on missing your return deadline. It simply requires that you failed to return because you were intentionally doing something else. Each of the following examples satisfies this intent element.

Examples that Satisfies the Intent Element
- Kate knows that she cannot return to her confinement facility on time if she goes to visit her friend. She visits her friend.
- Kate knows when she must return to her confinement facility by, but time flies while spending time with her family and she fails to return on time.
- Kate knows when she must return to her confinement facility by, but believes that, with a little more time negotiating, she can find a great job for when she is released from prison. She does not return in time.
Examples that do not satisfy the Intent Element
- Kate tries to return to her confinement facility by the deadline, but she is arrested for a separate crime.
- Kate is told that she is being released on furlough and must return by a certain time, but due to her poor English, she misunderstands the instructions and believes that she is being released on parole.
- Kate tries to return to her confinement facility by the deadline, but a huge storm makes traveling impossible.
- Kate tries to return to her confinement facility by the deadline, but she suffers an injury while on temporary release and misses the deadline.

The takeaway is that if you miss the deadline because you are intentionally choosing to miss your deadline, you satisfy this element. It should also be noted that, for absconding from a community treatment facility (§ 205.19), the intent is not required if you leave the facility without authorization.

Element #4: Fail to timely return to the confinement facility

This is rather simple: if you fail to return on time, even by a few hours, you satisfy this element.

Related Offenses That Are Often Brought Together With Absconding

If you are charged with absconding, the chances are that you will also be charged with other crimes, such as NY Penal Law §§ 205.05-205.15 – Escape. This occurs when a person escapes from custody. This offense ranges from a class A misdemeanor to a class D felony.

Case Law Relating to Absconding in New York

In-State ex rel. Hammer v. Keane, the court held that where a defendant was arrested by federal authorities and could not return to his confinement facility in time, he did not have the intent element to commit absconding.

In People v. Argon,[6] the court upheld the constitutionality of first degree absconding (§ 205.17). In that case, the defendant had argued that imposing a greater penalty (a felony, as opposed to a misdemeanor) simply because he had escaped from a state correctional facility, rather than a local facility, had no rational basis and violated the Equal Protection Clause of the U.S. Constitution.

The Court upheld the disparity in a penalty imposed because state facilities generally maintain the more serious offenders.

Penalties

Absconding in the second degree is a class A misdemeanor, with a maximum sentence of a year and a maximum fine of $1,000.

Absconding in the first degree is a class E felony, with a maximum sentence of 4 years, and a maximum fine of $5,000.

Absconding from a furlough program is a class A misdemeanor, with a maximum sentence of a year and a maximum fine of $1,000.

Absconding from a community treatment facility is a class E felony, with a maximum sentence of 4 years, and a maximum fine of $5,000.

Keep in mind that, because absconding is a crime that can only be committed while already incarcerated, you are effectively extending your existing sentence. In a truly unfortunate case,[8] an inmate who was just two weeks away from being released on parole mistakenly believed that he was being released on parole early, when in fact he was being released on furlough.

When he failed to return to his facility, he was charged and convicted of first degree absconding and was sentenced to an additional four years in prison. The Appellate Division affirmed the conviction, but a judge on the panel wrote a dissent explaining that, due to the defendant’s poor English, he may not have understood that he was being released on furlough.

Sentencing Enhancements

Your sentence can significantly increase if you have a prior felony conviction. For example, if you are found guilty of first degree absconding, a class E felony, someone with no prior felony offense could receive no jail time.

However, a second felony offender will receive at least an 18-month sentence. Under New York’s three-strikes law, someone with two prior felony convictions will face at least a 15-year sentence for the same offense. A felony conviction also has various other collateral consequences. They include:

Reputational harm and loss of job
Time and money spent defending yourself in court
Loss of gun ownership rights
Potential deportation if you are an immigrant
Inability to obtain job-related licenses and certifications.
An increased sentence for future convictions

Navigating the relevant sentencing rules is extremely consequential. You should retain and consult with an attorney as soon as possible to understand your sentencing risk should you be found guilty of an offense.

Legal Defenses to Absconding

There are several powerful defenses that a skilled attorney can use to minimize your risk and win an acquittal.

Defense #1: Lack of criminal intent

One of the elements that prosecution must prove is that you must intentionally fail to return to the confinement facility on time. However, if that deadline was not clearly communicated to you, or if you were completely unaware of that deadline, you may be entitled to a defense.

Likewise, if you intend to return on time, but fails to because of circumstances or events outside of your control, you can demonstrate that you lacked criminal intent to commit this crime. It will generally be easier to prove that you were unintentionally late if you were late only by a few hours at most. If you don’t show up for several days, you had better have a good excuse (like being arrested or detained).

Defense #2: Wrong facility

If you are placed in a non-DOCCS facility, then you cannot be charged with first-degree absconding. Likewise, certain facilities do not qualify as a confinement or detention facility within the meaning of the absconding statutes.

If your facility falls outside the types of facilities that are covered by the statute, then you may be acquitted on the grounds that not all the elements of the offense were satisfied, or at least be entitled to a reduced penalty.

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