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ARTICLE 430---SENTENCES OF IMPRISONMENT
Section 430.10 Sentence of imprisonment not to be changed after
commencement.
430.20 Commitment of defendant.
430.30 Duty to deliver defendant.
S 430.10 Sentence of imprisonment not to be changed after commencement.
Except as otherwise specifically authorized by law, when the court has
imposed a sentence of imprisonment and such sentence is in accordance
with law, such sentence may not be changed, suspended or interrupted
once the term or period of the sentence has commenced.
S 430.20 Commitment of defendant.
1. In general. When a sentence of imprisonment is pronounced, or
when th sentence consists of a fine and the court has directed that the
defendant be imprisoned until it is satisfied, the defendant must
forthwith be committed to the custody of the appropriate public servant
and detained until the sentence is complied with.
* 2. Indeterminate and determinate sentences. In the case of an
indeterminate or determinate sentence of imprisonment, commitment must
be to the custody of the state department of correctional services as
provided in subdivision one of section 70.20 of the penal law. The order
of commitment must direct that the defendant be delivered to an
institution designated by the commissioner of correctional services in
accordance with the provisions of the correction law.
* NB Effective until September 1, 2013
* 2. Indeterminate and reformatory sentences. In the case of an
indeterminate or reformatory sentence of imprisonment, commitment must
be to the custody of the state department of correctional services as
provided in subdivision one of section 70.20 and section 75.05 of the
penal law. The order of commitment must direct that the defendant be
delivered to an institution designated by the commissioner of
correctional services in accordance with the provisions of the
correction law.
* NB Effective until September 1, 2013
3. Definite and intermittent sentences. In the case of a definite or
intermittent sentence of imprisonment, commitment must be as follows:
(a) In counties contained within New York City or in any county that
has a county department of correction, commitment must be to the custody
of the department of correction of such city or county;
(b) In any other case, commitment must be to the county jail,
workhouse or penitentiary, or to a penitentiary outside the county and
the order of commitment must specify the institution to which the
defendant is to be delivered.
* 4. Certain resentences. When a sentence of imprisonment that has
been imposed on a defendant is vacated and a new sentence is imposed on
such defendant for the same offense, or for an offense based upon the
same act, if the term of the new definite or determinate sentence or the
maximum term of the new indeterminate sentence so imposed is less than
or equal to that of the vacated sentence:
(a) where the time served by the defendant on the vacated sentence is
equal to or greater than the term or maximum term of the new sentence,
the new sentence shall be deemed to be served in its entirety and the
defendant shall not be committed to a correctional facility pursuant to
said sentence; and
(b) where the defendant was under the supervision of a local
conditional release commission or the division of parole at the time the
sentence was vacated, then the commitment shall direct that said
conditional release or parole be recommenced, and the defendant shall
not be committed to a correctional facility pursuant to said sentence,
except as a result of revocation of parole or of conditional release;
and
(c) where the defendant was not under the supervision of the division
of parole at the time the indeterminate or determinate sentence was
vacated, but would immediately be eligible for conditional release from
the new indeterminate or determinate sentence, the court shall ascertain
from the department of correctional services whether the defendant has
earned a sufficient amount of good time under the vacated sentence so as
to require the conditional release of the defendant under the new
sentence; in the event the defendant has earned a sufficient amount of
good time, the court shall stay execution of sentence until the
defendant surrenders at a correctional facility pursuant to the
direction of the department of correctional services, which shall occur
no later than sixty days after imposition of sentence; upon said stay of
execution, the court clerk shall immediately mail to the commissioner of
correctional services a certified copy of the commitment reflecting said
stay of execution and the name, mailing address and telephone number of
the defendant`s legal representative; in the event the defendant fails
to surrender as directed by the department of correctional services, the
department shall notify the court which shall thereafter remand the
defendant to custody pursuant to section 430.30 of this article; and
(d) upon the resentence of a defendant as described in this
subdivision, the court clerk shall immediately mail a certified copy of
the commitment to the commissioner of correctional services if the
vacated sentence or the new sentence is an indeterminate or determinate
sentence and no mailing is required by paragraph (c) of this
subdivision; additionally, the court clerk shall immediately mail a
certified copy of the new commitment to the head of the appropriate
local correctional facility if the vacated sentence or the new sentence
is a definite sentence.
* NB Effective until September 1, 2013
* 4. Certain resentences. When a sentence of imprisonment that has
been imposed on a defendant is vacated and a new sentence is imposed on
such defendant for the same offense, or for an offense based upon the
same act, if the term of the new definite sentence or the maximum term
of the new indeterminate sentence so imposed is less than or equal to
that of the vacated sentence:
(a) where the time served by the defendant on the vacated sentence is
equal to or greater than the term or maximum term of the new sentence,
the new sentence shall be deemed to be served in its entirety and the
defendant shall not be committed to a correctional facility pursuant to
said sentence; and
(b) where the defendant was under the supervision of a local
conditional release commission or the division of parole at the time the
sentence was vacated, then the commitment shall direct that said
conditional release or parole be recommenced, and the defendant shall
not be committed to a correctional facility pursuant to said sentence,
except as a result of revocation of parole or of conditional release;
and
(c) where the defendant was not under the supervision of the division
of parole at the time the indeterminate sentence was vacated, but would
immediately be eligible for conditional release from the new
indeterminate sentence, the court shall ascertain from the department of
correctional services whether the defendant has earned a sufficient
amount of good time under the vacated sentence so as to require the
conditional release of the defendant under the new sentence; in the
event the defendant has earned a sufficient amount of good time, the
court shall stay execution of sentence until the defendant surrenders at
a correctional facility pursuant to the direction of the department of
correctional services, which shall occur no later than sixty days after
imposition of sentence; upon said stay of execution, the court clerk
shall immediately mail to the commissioner of correctional services a
certified copy of the commitment reflecting said stay of execution and
the name, mailing address and telephone number of the defendant`s legal
representative; in the event the defendant fails to surrender as
directed by the department of correctional services, the department
shall notify the court which shall thereafter remand the defendant to
custody pursuant to section 430.30 of this article; and
(d) upon the resentence of a defendant as described in this
subdivision, the court clerk shall immediately mail a certified copy of
the commitment to the commissioner of correctional services if the
vacated sentence or the new sentence is an indeterminate sentence and no
mailing is required by paragraph (c) of this subdivision; additionally,
the court clerk shall immediately mail a certified copy of the new
commitment to the head of the appropriate local correctional facility if
the vacated sentence or the new sentence is a definite sentence.
* NB Effective until September 1, 2013
5. Commitment for failure to pay fine. Where the sentence consists
of a fine and the court has directed that the defendant be imprisoned
until it is satisfied, commitment must be as follows:
(a) If the sentence also includes a term of imprisonment, commitment
must be to the same institution as is designated for service of the term
of imprisonment, and the period of commitment commences (i) when the
term of imprisonment is satisfied, or (ii) with the approval of the
state board of parole, when the defendant becomes eligible for parole,
or (iii) when the defendant becomes eligible for conditional release,
whichever occurs first; provided, however, that the court may direct
that the period of imprisonment for the fine run concurrently with the
term of imprisonment; and
(b) In any other case, commitment must be to the agency or
institution that would be designated in the case of a definite sentence.
S 430.30 Duty to deliver defendant.
In counties contained within New York City and in counties that have a
commissioner of correction who is responsible for detention of
defendants in criminal actions, it is the duty of the commissioner of
correction of such city or county to deliver the defendant forthwith to
the proper institution in accordance with the commitment. In all other
counties it is the duty of the sheriff to deliver the defendant
forthwith to the proper institution in accordance with the commitment.
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