New York Federal Criminal Practice Blog
July 2, 2008

SDNY Judge Denies Request to Modify Terms of Probationary Sentence

In United States v. Collotta, 07 cr 143 (VM), 2008 WL 2434113 (S.D.N.Y. June 16, 2008), Judge Marrero denied a defendant's request for modification of her terms of probation (though some might prefer to subtitle this "quit while you're ahead"). The case is interesting less for its immediate conclusion, than for its description of the generous and creative sentence originally imposed.

Collotta pled guilty to insider trading and securities fraud, arising out of her role in using her position in the global compliance division of Morgan Stanley to misappropriate confidential information for use in an insider training scheme.  Her stipulated guideline range was 12 to 18 months.  The court departed downwards to four years probation, "including six months of home confinement and 60 days of intermittent confinement during nights, weekends or other periods of time to be arranged by mutual agreement with the Bureau of Prisons."  The departure was mainly due to Collotta's (co-defendant) husband's serious medical condition, which required constant medical care and attention.  The court, however, felt that intermittent custody was appropriate because "some period of incarceration was necessary to adequately reflect other proper objectives of sentencing."

At issue in this decision was the defendant's request to convert the 60 days in custody to an additional 60 days home confinement.  The court denied the request, pointing out that Collotta has not presented "any new and unforeseen circumstances," which are required under Second Circuit law for a modification of probation conditions.  It appears that she cited her husband's medical needs as grounds for her motion, but the court said it had "fully [taken] into account Collotta's need to care for her husband."

It should be noted that intermittent custody - to the extent a sentencing judge feels custody is necessary at all - may also be an appropriate sentence for a defendant with serious medical needs, which we all know (apart from the Second Circuit) may not be adequately addressed by the Bureau of Prisons.   

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