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Look Before You Leap

On Behalf of | Feb 29, 2012 | Uncategorized |

The Pirates of Penzance was a 19th century comic opera about a young man named Frederic who as a child was apprenticed to a band of pirates. Upon completing his 21st year, Frederic expected to be released from his indentures. However, it turns out that Frederic was born on February 29 so technically he only has a birthday every leap year. As his apprenticeship indentures stated that he remains apprenticed to the pirates until his 21stbirthday, he was to serve for another 63 years.

This year, the month of February will have 29 days. Of course we have this extra day because 2012 is a leap year. A leap year is a year that has one extra day in order to maintain a synchronicity between the calendar year and the astronomical year.

Now I could go into a lengthy discussion on the fact that if the calendar year always consisted of 365 days it would be short of the tropical year by approximately .2422 days every year which would mean that over a 100 year period the calendar and the seasons would depart by about 24 days so that the beginning of spring in the northern hemisphere would shift from March 20 to April 13… but I have an opposition brief on a commercial matter to file by Friday so why don’t I just say for the purposes of this blog that February will have 29 days this year!

In the recently decided case of State of New York v. Deveaux, 2012 NY Slip Op 50014(U), the Bronx Supreme Court leapt at the opportunity to decide an “extra days” matter that was before them. (Note: Bad puns are just as bad on February 29 as they are on February 28).

In May of 2011, a Bronx jury declared that pursuant to Article 10 of the Mental Hygiene Law, Respondent Deveaux was a detained sex offender who required civil management.

Respondent moved to dismiss the matter for lack of jurisdiction claiming that at the time the State of New York filed the Article 10 civil management petition, his 30 year term of incarceration already had been completed and he was being detained by the Department of Corrections (“DOC”) beyond the period of incarceration he should have served.

Specifically, he claimed that the calculation of incarceration was incorrect since the DOC failed to give him credit for eight days he claimed he was entitled to since there were eight February 29ths over the course of his 30 year incarceration. Hence, he should not have been incarcerated when the petition was filed.

In denying Respondent’s motion to dismiss the court held that with respect to calculation of time, New York State General Construction Law § 58 provides in relevant part that “in a statute, contract and public or private instrument [the term “year”] means three hundred and sixty-five days, but the added day of a leap year and the day immediately preceding shall for the purpose of such computation be counted as one day.”

While Penal Law §70.00 sets forth the sentences of imprisonment required for classes of felony cases in terms of years and not days, the court concluded that the Penal Law itself does not define the term “year” as this term is defined in New York State General Construction Law.

There fore a year for the purposes of Penal Law §70.00 defined as 365 days can be either 365 days or 366 days in leap years.

Meanwhile, Frederic’s nurse, who was hard of hearing, had mistaken her master’s instructions to apprentice the boy to a “pilot”. I’ll leave the legal repercussions of that error for another time and conclude that today, even in the Bronx, young Frederic would have had no trouble breaking the contact for apprenticeship based on his birthday.

– Alan Karmazin, Esq.



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