New York State Law

• Home
• ABC Laws
• Criminal Procedure
• Penal Law
• Vehicle & Traffic
• Site Map

                   ARTICLE 380--SENTENCING IN GENERAL
Section  380.10   Applicability.
         380.20   Sentence required.
         380.30   Time for pronouncing sentence.
         380.40   Defendant`s presence at sentencing.
         380.50   Statements at time of sentence.
         380.60   Authority for the execution of sentence.
         380.65   Sentence and commitment and order of protection
                  to accompany defendant sentenced to imprisonment.
        *380.70   Minutes of sentence.
                   *Expiration Date: 09/01/2013 
         380.80   Reporting sentence to social services.
         380.85   Reporting sentences to office of professional
                  medical conduct; licensed physician, physician
                  assistant, or specialist assistant. 
         380.90   Reporting sentences to schools. 
         380.95   Reporting convictions of certain school employees. 
         380.95*2 Reporting convictions of certain school employees. 
         380.97   Notification to division of criminal justice services
                  of determinations in certain misdemeanor cases. 
         
S 380.10  Applicability.
  1.  In general.  The procedure prescribed by this title applies to
sentencing for every offense, whether defined within or outside of the
penal law; provided, however, where a judicial hearing officer has
conducted the trial pursuant to section 350.20 of this chapter, all
references to a court herein shall be deemed references to such judicial
hearing officer.
  2.  Exception.  Whenever a different or inconsistent procedure is
provided by any other law in relation to sentencing for a non-criminal
offense defined therein, such different or inconsistent procedure
applies thereto.

S 380.20  Sentence required.
  The court must pronounce sentence in every case where a conviction is
entered.  If an accusatory instrument contains multiple counts and a
conviction is entered on more than one count the court must pronounce
sentence on each count.

S 380.30 Time for pronouncing sentence.
  1. In general. Sentence must be pronounced without unreasonable delay.
  2.  Court to fix time.  Upon entering a conviction the court must:
  (a)  Fix a date for pronouncing sentence; or
  (b)  Fix a date for one of the pre-sentence proceedings specified in
article four hundred; or
  (c)  Pronounce sentence on the date the conviction is entered in
accordance with the provisions of subdivision three.
  * 2. Court to fix time. Upon entering a conviction the court must:
  (a) Fix a date for pronouncing sentence; or
  (b) Fix a date for one of the pre-sentence proceedings specified in
article four hundred; or
  (c) Issue an order deferring sentencing in accordance with the
provisions of subdivision three of this section; or
  (d) Pronounce sentence on the date the conviction is entered in
accordance with the provisions of subdivision three.
* NB Expired March 31, 1994
  3.  Sentence on date of conviction.  The court may sentence the
defendant at the time the conviction is entered if:
  (a)  A pre-sentence report or a fingerprint report is not required; or
  (b)  Where any such report is required, the report has been received.
  Provided, however, that the court may not pronounce sentence at such
time without inquiring as to whether an adjournment is desired by the
defendant.  Where an adjournment is requested, the defendant must state
the purpose thereof and the court may, in its discretion, allow a
reasonable time.
  * 3. Deferral of sentencing. The court may defer sentencing of any
offender convicted of a class C, D, or E felony offense under articles
two hundred twenty and two hundred twenty-one of the penal law or any
class D or E felony offense under articles one hundred fifteen, one
hundred forty, one hundred forty-five, one hundred fifty-five, one
hundred sixty-five, one hundred seventy and one hundred ninety of the
penal law, to a specified date no later than twelve months from the
entering of a conviction if:
  (a) The defendant stands convicted of his or her first felony offense;
and
  (b) Pursuant to a plea agreement or the recommendation contained in
the pre-sentence report the judge is inclined to impose an indeterminate
term of imprisonment; and
  (c) The court believes that prompt institutional confinement is not
necessary to preserve the safety and security of society, that the
individual may benefit from the rehabilitative opportunities presented
by the deferral of sentencing, that absent such a rehabilitative
opportunity there is a likelihood that the court would impose an
indeterminate sentence of imprisonment, and that upon satisfactory
completion of the period of deferral the court would be more likely to
impose a sentence other than an indeterminate sentence of imprisonment
under article seventy of the penal law.
  In conjunction with a deferral of sentencing the court may require
that the defendant observe specified conditions of conduct and
participate in such rehabilitative programs as the court deems
appropriate. Upon application of the people made at any time during the
period of sentence deferral, or where the court believes that the
defendant may have violated the terms or conditions of the deferral
order, and the court determines that such a violation occurred, the
court may terminate the deferral order and set a date for sentencing.
  Nothing contained in this subdivision shall limit the sentencing
options which were available to the court prior to the issuance of an
order pursuant to paragraph (c) of subdivision two of this section.
* NB Expired March 31, 1994
  4.  Time for pre-sentence proceedings.  The court may conduct one or
more of the pre-sentence proceedings specified in article four hundred
at any time before sentence is pronounced.  Notice of any such
proceeding issued after the date for pronouncing sentence has been fixed
automatically adjourns the date for pronouncing sentence.  In such case
the court must fix a date for pronouncing sentence at the conclusion of
such proceeding.

S 380.40  Defendant`s presence at sentencing.
  1.  In general.  The defendant must be personally present at the time
sentence is pronounced.
  2.  Exception.  Where sentence is to be pronounced for a misdemeanor
or for a petty offense, the court may, on motion of the defendant,
dispense with the requirement that the defendant be personally present.
Any such motion must be accompanied by a waiver, signed and acknowledged
by the defendant, reciting the maximum sentence that may be imposed for
the offense and stating that the defendant waives the right to be
personally present at the time sentence is pronounced.
  3.  Corporations.  Sentence may be pronounced against a corporation in
the absence of counsel if counsel fails to appear on the date of
sentence after reasonable notice thereof.

S 380.50  Statements at time of sentence.
  1. At the time of pronouncing sentence, the court must accord the
prosecutor an opportunity to make a statement with respect to any matter
relevant to the question of sentence.  The court must then accord
counsel for the defendant an opportunity to speak on behalf of the
defendant. The defendant also has the right to make a statement
personally in his or her own behalf, and before pronouncing sentence the
court must ask the defendant whether he or she wishes to make such a
statement.
  2. (a) For purposes of this section "victim" shall mean:
  (1) the victim as indicated in the accusatory instrument; or
  (2) if such victim is unable or unwilling to express himself or
herself before the court or a person so mentally or physically disabled
as to make it impracticable to appear in court in person or the victim
is deceased, a member of the family of such victim, or the legal
guardian or representative of the legal guardian of the victim where
such guardian or representative has personal knowledge of and a
relationship with the victim, unless the court finds that it would be
inappropriate for such person to make a statement on behalf of the
victim.
  (b) If the defendant is being sentenced for a felony the court, if
requested at least ten days prior to the sentencing date, shall accord
the victim the right to make a statement with regard to any matter
relevant to the question of sentence. The court shall notify the
defendant no less than seven days prior to sentencing of the victim`s
intent to make a statement at sentencing. If the defendant does not
receive timely notice pursuant to this subdivision, the defendant may
request a reasonable adjournment.
  (c) Any statement by the victim must precede any statement by counsel
to the defendant or the defendant made pursuant to subdivision one of
this section. The defendant shall have the right to rebut any statement
made by the victim.
  (d) Where the people and the defendant have agreed to a disposition
which includes a sentence acceptable to the court, and the court intends
to impose such sentence, any rebuttal by the defendant shall be limited
to an oral presentation made at the time of sentencing.
  (e) Where (1) the defendant has been found guilty after trial or there
is no agreement between the people and the defendant as to a proposed
sentence or the court, after the statement by the victim, chooses not to
impose the proposed sentence agreed to by the parties; (2) the statement
by the victim includes allegations about the crime that were not fully
explored during the proceedings or that materially vary from or
contradict the evidence at trial; and (3) the court determines that the
allegations are relevant to the issue of sentencing, then the court
shall afford the defendant the following rights:
  (A) a reasonable adjournment of the sentencing to allow the defendant
to present information to rebut the allegations by the victim; and
  (B) allow the defendant to present written questions to the court that
the defendant desires the court to put to the victim. The court may, in
its discretion, decline to put any or all of the questions to the
victim. Where the court declines to put any or all of the questions to
the victim it shall state its reasons therefor on the record.
  (f) If the victim does not appear to make a statement at the time of
sentencing, the right to make a statement is waived. The failure of the
victim to make a statement shall not be cause for delaying the
proceedings against the defendant nor shall it affect the validity of a
conviction, judgment or order.
  3. The court may, either before or after receiving such statements,
summarize the factors it considers relevant for the purpose of sentence
and afford an opportunity to the defendant or his or her counsel to
comment thereon.
  4. Regardless of whether the victim requests to make a statement with
regard to the defendant`s sentence, where the defendant is committed to
the custody of the department of correctional services upon a sentence
of imprisonment for conviction of a violent felony offense as defined in
section 70.02 of the penal law or a felony defined in article one
hundred twenty-five of such law, within sixty days of the imposition of
sentence the prosecutor shall provide the victim with a form, prepared
and distributed by the commissioner of the department of correctional
services, on which the victim may indicate a demand to be informed of
the escape, absconding, discharge, parole, conditional release or
release to post-release supervision of the person so imprisoned.  If the
victim submits a completed form to the prosecutor, it shall be the duty
of the prosecutor to mail promptly such form to the department of
correctional services.
  5.  Following the receipt of such form from the prosecutor, it shall
be the duty of the department of correctional services, at the time such
person is discharged, paroled, conditionally released or released to
post-release supervision, to notify the victim of such occurrence by
certified mail directed to the address provided by the victim.  In the
event such person escapes or absconds from a facility under the
jurisdiction of the department of correctional services, it shall be the
duty of such department to notify immediately the victim of such
occurrence at the most current address or telephone number provided by
the victim in the most reasonable and expedient possible manner.  In the
event such escapee or absconder is subsequently taken into custody by
the department of correctional services, it shall be the duty of such
department to notify the victim of such occurrence by certified mail
directed to the address provided by the victim within forty-eight hours
of regaining such custody.  In no case shall the state be held liable
for failure to provide any notice required by this subdivision.
  6. Regardless of whether the victim requests to make a statement with
regard to the defendant`s sentence, where the defendant is sentenced for
a violent felony offense as defined in section 70.02 of the penal law or
a felony defined in article one hundred twenty-five of such law or any
of the following provisions of such law sections 130.25, 130.30, 130.40,
130.45, 255.25, article 263, 135.10, 135.25, 230.05, 230.06, subdivision
two of section 230.30 or 230.32, the prosecutor shall, within sixty days
of the imposition of sentence, provide the victim with a form on which
the victim may indicate a demand to be informed of any petition to
change the name of such defendant. Such forms shall be maintained by
such prosecutor. Upon receipt of a notice of a petition to change the
name of any such defendant, pursuant to subdivision two of section
sixty-two of the civil rights law, the prosecutor shall promptly notify
the victim at the most current address or telephone number provided by
such victim in the most reasonable and expedient possible manner of the
time and place such petition will be presented to the court.

S 380.60  Authority for the execution of sentence.
  Except where a sentence of death is pronounced, a certificate of
conviction showing the sentence pronounced by the court, or a certified
copy thereof, constitutes the authority for execution of the sentence
and serves as the order of commitment, and no other warrant, order of
commitment or authority is necessary to justify or to require execution
of the sentence.

S 380.65 Sentence  and  commitment  and order of protection to accompany
         defendant sentenced to imprisonment.
  A sentence and commitment or certificate of conviction, specifying the
section, and to the extent applicable, the  subdivision,  paragraph  and
subparagraph of the penal law or other statute under which the defendant
was  convicted,  or a certified copy thereof, and a copy of any order of
protection or temporary order of protection issued against the defendant
at the time of sentencing, must be delivered to the person in charge  of
the  correctional  facility  or  office  of children and family services
facility to which the defendant is committed at the time  the  defendant
is  delivered  thereto.  A  sentence  and  commitment  or certificate of
conviction is not defective by reason of a failure to  comply  with  the
provisions of this section.

* S 380.70 Minutes of sentence.
  In  any  case  where a person receives an indeterminate or determinate
sentence of imprisonment, a certified copy of the  stenographic  minutes
of  the  sentencing  proceeding  must  be  delivered by the court to the
person in charge of the institution to  which  the  defendant  has  been
delivered within thirty days from the date such sentence was imposed.
  * NB Effective until September 1, 2013
* S 380.70 Minutes of sentence.
  In  any  case  where  a  person  receives an indeterminate sentence of
imprisonment or a reformatory or alternative local reformatory  sentence
of  imprisonment,  a  certified  copy of the stenographic minutes of the
sentencing proceeding must be delivered by the court to  the  person  in
charge  of  the  institution  to  which the defendant has been delivered
within thirty days from the date such sentence was imposed.
  * NB Effective September 1, 2013

S 380.80 Reporting sentence to social services.
  Whenever a person receives a sentence of imprisonment, the court that
has sentenced such person shall deliver the certificate of conviction
and provide notification of the sentence imposed to the commissioner of
social services who, in turn, shall deliver the certificate of
conviction and provide notification of the sentence imposed to the
appropriate local commissioner of social services.

S 380.85 Reporting  sentences to office of professional medical conduct;
         licensed  physician,  physician  assistant,  or  specialist assistant.
  Whenever a person who is a licensed physician, physician assistant, or
specialist  assistant  or  a physician who is practicing under a limited
permit or as a medical resident is sentenced for a crime, the court that
has sentenced such person shall deliver a copy  of  the  certificate  of
conviction  and  provide  notification of the conviction and sentence to
the office of professional medical conduct.

S 380.90 Reporting sentences to schools.
  1. "Designated educational official" shall mean (a) an employee or
representative of a school district who is designated by the school
district or (b) an employee or representative of a charter school or
private elementary or secondary school who is designated by such school
to receive records pursuant to this section and to coordinate the
student`s participation in programs which may exist in the school
district or community, including: non-violent conflict resolution
programs, peer mediation programs and youth courts, extended day
programs and other school violence prevention and intervention programs.
  2. Whenever a person under the age of nineteen who is enrolled as a
student in a public or private elementary or secondary school is
sentenced for a crime, the court that has sentenced such person shall
provide notification of the conviction and sentence to the designated
educational official of the school in which such person is enrolled as a
student. Such notification shall be used by the designated educational
official only for purposes related to the execution of the student`s
educational plan, where applicable, successful school adjustment and
reentry into the community. Such notification shall be kept separate and
apart from such student`s school records and shall be accessible only by
the designated educational official. Such notification shall not be part
of such student`s permanent school record and shall not be appended to
or included in any documentation regarding such student and shall be
destroyed at such time as such student is no longer enrolled in the
school district. At no time shall such notification be used for any
purpose other than those specified in this subdivision.

* S 380.95 Reporting convictions of certain school employees.
  Upon  conviction  of  a  teacher,  as defined in subparagraph three of
paragraph b of subdivision seven-a of section three hundred five of  the
education  law, of a sex offense or sex offenses defined in subparagraph
two of paragraph b of subdivision seven-a of section three hundred  five
of  the  education  law,  the  district  attorney  or  other prosecuting
authority who obtained such conviction  shall  provide  notice  of  such
conviction  to the commissioner of education identifying the sex offense
or sex offenses of which the teacher has been convicted,  the  name  and
address of such offender and other identifying information prescribed by
the  commissioner  of  education, including the offender's date of birth
and social security number, to the extent consistent  with  federal  and
state   laws   governing   personal   privacy   and  confidentiality  of
information. Such district attorney or other prosecuting authority shall
include in such notice the name and business address of  the  offender's
counsel of record in the criminal proceeding.
  * NB There are 2 § 380.95's

* S 380.95 Reporting convictions of certain school employees.
  Upon conviction of a school administrator or supervisor, as defined in
subparagraph  three  of  paragraph  b  of subdivision seven-b of section
three hundred five of the  education  law,  of  an  offense  defined  in
subparagraph  two of paragraph b of subdivision seven-b of section three
hundred five of the  education  law,  the  district  attorney  or  other
prosecuting  authority who obtained such conviction shall provide notice
of such conviction to the  commissioner  of  education  identifying  the
offense  of  which  the  school  administrator  or  supervisor  has been
convicted, the name and address of such offender and  other  identifying
information  prescribed  by the commissioner of education, including the
offender's date of birth and  social  security  number,  to  the  extent
consistent  with  federal  and state laws governing personal privacy and
confidentiality  of  information.  Such  district  attorney   or   other
prosecuting authority shall include in such notice the name and business
address of the offender's counsel of record in the criminal proceeding.
  * NB There are 2 § 380.95's
  
S 380.97 Notification  to  division  of  criminal  justice  services  of
         determinations in certain misdemeanor cases.
  Upon judgment of conviction of assault or  attempted  assault  in  the
third degree, as defined in sections 120.00 and 110.00 of the penal law,
menacing  or  attempted  menacing  in  the  second degree, as defined in
section 120.14 and 110.00 of the  penal  law,  criminal  obstruction  of
breathing  or  blood  circulation  or  attempted criminal obstruction of
breathing or blood circulation, as defined in sections 121.11 and 110.00
of the penal law, forcible touching or attempted forcible  touching,  as
defined  in  sections  130.52  and  110.00  of  the  penal law, when the
defendant has been determined, pursuant to section 370.15 of this  part,
to  be  related  or  situated to the victim of the offense in the manner
specified in 18 U.S.C. 921(a)(33)(A)(ii), the clerk of the  court  shall
include notification and a copy of the written determination in a report
of  such  conviction  to  the  division  of criminal justice services to
enable the division to report such determination to the  federal  bureau
of investigation and assist the bureau in identifying persons prohibited
from  purchasing  and possessing a firearm pursuant to the provisions of
18 U.S.C. 922.