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ARTICLE 70
SENTENCES OF IMPRISONMENT
Section 70.00 Sentence of imprisonment for felony.
70.02 Sentence of imprisonment for a violent felony offense.
70.04 Sentence of imprisonment for second violent felony offender.
70.05 Sentence of imprisonment for juvenile offender.
70.06 Sentence of imprisonment for second felony offender.
70.07 Sentence of imprisonment for second child sexual assault
felony offender.
70.08 Sentence of imprisonment for persistent violent felony
offender; criteria.
70.10 Sentence of imprisonment for persistent felony offender.
70.15 Sentences of imprisonment for misdemeanors and violation.
70.20 Place of imprisonment.
70.25 Concurrent and consecutive terms of imprisonment.
70.30 Calculation of terms of imprisonment.
*70.35 Merger of certain definite and indeterminate or
determinate sentences.
* NB Expiration Date: 09/01/2013
70.40 Release on parole; conditional release; presumptive release.
70.45 Determinate sentence; post-release supervision.
70.70 Sentence of imprisonment for felony drug offender other than
a class A felony.
70.71 Sentence of imprisonment for a class A felony drug offender.
70.80 Sentences of imprisonment for conviction of a felony sex offense.
70.85 Transitional exception to determinate sentencing laws.
S 70.00 Sentence of imprisonment for felony.
* 1. Indeterminate sentence. Except as provided in subdivisions four,
five and six of this section or section 70.80 of this article, a
sentence of imprisonment for a felony, other than a felony defined in
article two hundred twenty or two hundred twenty-one of this chapter,
shall be an indeterminate sentence. When such a sentence is imposed, the
court shall impose a maximum term in accordance with the provisions of
subdivision two of this section and the minimum period of imprisonment
shall be as provided in subdivision three of this section.
* NB Effective September 1, 2013
* 1. Indeterminate sentence. Except as provided in subdivisions four
and five of this section or section 70.80 of this article, a sentence of
imprisonment for a felony, other than a felony defined in article two
hundred twenty or two hundred twenty-one of this chapter, shall be an
indeterminate sentence. When such a sentence is imposed, the court shall
impose a maximum term in accordance with the provisions of subdivision
two of this section and the minimum period of imprisonment shall be as
provided in subdivision three of this section.
* NB Effective September 1, 2013
2. Maximum term of sentence. The maximum term of an indeterminate
sentence shall be at least three years and the term shall be fixed as
follows:
(a) For a class A felony, the term shall be life imprisonment;
(b) For a class B felony, the term shall be fixed by the court, and
shall not exceed twenty-five years;
(c) For a class C felony, the term shall be fixed by the court, and
shall not exceed fifteen years;
(d) For a class D felony, the term shall be fixed by the court, and
shall not exceed seven years; and
(e) For a class E felony, the term shall be fixed by the court, and
shall not exceed four years.
3. Minimum period of imprisonment. The minimum period of imprisonment
under an indeterminate sentence shall be at least one year and shall be
fixed as follows:
(a) In the case of a class A felony, the minimum period shall be fixed
by the court and specified in the sentence.
(i) For a class A-I felony, such minimum period shall not be less than
fifteen years nor more than twenty-five years; provided, however, that
(A) where a sentence, other than a sentence of death or life
imprisonment without parole, is imposed upon a defendant convicted of
murder in the first degree as defined in section 125.27 of this chapter
such minimum period shall be not less than twenty years nor more than
twenty-five years, and, (B) where a sentence is imposed upon a defendant
convicted of murder in the second degree as defined in subdivision five
of section 125.25 of this chapter or convicted of aggravated murder as
defined in section 125.26 of this chapter, the sentence shall be life
imprisonment without parole, and, (C) where a sentence is imposed upon a
defendant convicted of attempted murder in the first degree as defined
in article one hundred ten of this chapter and subparagraph (i), (ii) or
(iii) of paragraph (a) of subdivision one and paragraph (b) of
subdivision one of section 125.27 of this chapter or attempted
aggravated murder as defined in article one hundred ten of this chapter
and section 125.26 of this chapter such minimum period shall be not less
than twenty years nor more than forty years.
(ii) For a class A-II felony, such minimum period shall not be less
than three years nor more than eight years four months, except that for
the class A-II felony of predatory sexual assault as defined in section
130.95 of this chapter or the class A-II felony of predatory sexual
assault against a child as defined in section 130.96 of this chapter,
such minimum period shall be not less than ten years nor more than
twenty-five years.
(b) For any other felony, the minimum period shall be fixed by the
court and specified in the sentence and shall be not less than one year
nor more than one-third of the maximum term imposed.
4. Alternative definite sentence for class D and E felonies. When a
person, other than a second or persistent felony offender, is sentenced
for a class D or class E felony, and the court, having regard to the
nature and circumstances of the crime and to the history and character
of the defendant, is of the opinion that a sentence of imprisonment is
necessary but that it would be unduly harsh to impose an indeterminate
or determinate sentence, the court may impose a definite sentence of
imprisonment and fix a term of one year or less.
5. Life imprisonment without parole. Notwithstanding any other
provision of law, a defendant sentenced to life imprisonment without
parole shall not be or become eligible for parole or conditional
release. For purposes of commitment and custody, other than parole and
conditional release, such sentence shall be deemed to be an
indeterminate sentence. A defendant may be sentenced to life
imprisonment without parole upon conviction for the crime of murder in
the first degree as defined in section 125.27 of this chapter and in
accordance with the procedures provided by law for imposing a sentence
for such crime. A defendant must be sentenced to life imprisonment
without parole upon conviction for the crime of terrorism as defined in
section 490.25 of this chapter, where the specified offense the
defendant committed is a class A-I felony; the crime of criminal
possession of a chemical weapon or biological weapon in the first degree
as defined in section 490.45 of this chapter; or the crime of criminal
use of a chemical weapon or biological weapon in the first degree as
defined in section 490.55 of this chapter; provided, however, that
nothing in this subdivision shall preclude or prevent a sentence of
death when the defendant is also convicted of the crime of murder in the
first degree as defined in section 125.27 of this chapter. A defendant
must be sentenced to life imprisonment without parole upon conviction
for the crime of murder in the second degree as defined in subdivision
five of section 125.25 of this chapter or for the crime of aggravated
murder as defined in subdivision one of section 125.26 of this chapter.
A defendant may be sentenced to life imprisonment without parole upon
conviction for the crime of aggravated murder as defined in subdivision
two of section 125.26 of this chapter.
* 6. Determinate sentence. Except as provided in subdivision four of
this section and subdivisions two and four of section 70.02, when a
person is sentenced as a violent felony offender pursuant to section
70.02 or as a second violent felony offender pursuant to section 70.04
or as a second felony offender on a conviction for a violent felony
offense pursuant to section 70.06, the court must impose a determinate
sentence of imprisonment in accordance with the provisions of such
sections and such sentence shall include, as a part thereof, a period of
post-release supervision in accordance with section 70.45.
* NB Repealed September 1, 2013
S 70.02 Sentence of imprisonment for a violent felony offense.
1. Definition of a violent felony offense. A violent felony offense is
a class B violent felony offense, a class C violent felony offense, a
class D violent felony offense, or a class E violent felony offense,
defined as follows:
(a) Class B violent felony offenses: an attempt to commit the class
A-I felonies of murder in the second degree as defined in section
125.25, kidnapping in the first degree as defined in section 135.25, and
arson in the first degree as defined in section 150.20; manslaughter in
the first degree as defined in section 125.20, aggravated manslaughter
in the first degree as defined in section 125.22, rape in the first
degree as defined in section 130.35, criminal sexual act in the first
degree as defined in section 130.50, aggravated sexual abuse in the
first degree as defined in section 130.70, course of sexual conduct
against a child in the first degree as defined in section 130.75;
assault in the first degree as defined in section 120.10, kidnapping in
the second degree as defined in section 135.20, burglary in the first
degree as defined in section 140.30, arson in the second degree as
defined in section 150.15, robbery in the first degree as defined in
section 160.15, incest in the first degree as defined in section 255.27,
criminal possession of a weapon in the first degree as defined in
section 265.04, criminal use of a firearm in the first degree as defined
in section 265.09, criminal sale of a firearm in the first degree as
defined in section 265.13, aggravated assault upon a police officer or a
peace officer as defined in section 120.11, gang assault in the first
degree as defined in section 120.07, intimidating a victim or witness in
the first degree as defined in section 215.17, hindering prosecution of
terrorism in the first degree as defined in section 490.35, criminal
possession of a chemical weapon or biological weapon in the second
degree as defined in section 490.40, and criminal use of a chemical
weapon or biological weapon in the third degree as defined in section
490.47.
(b) Class C violent felony offenses: an attempt to commit any of the
class B felonies set forth in paragraph (a) of this subdivision;
aggravated criminally negligent homicide as defined in section 125.11,
aggravated manslaughter in the second degree as defined in section
125.21, aggravated sexual abuse in the second degree as defined in
section 130.67, assault on a peace officer, police officer, fireman or
emergency medical services professional as defined in section 120.08,
assault on a judge as defined in section 120.09, gang assault in the
second degree as defined in section 120.06, strangulation in the first
degree as defined in section 121.13, burglary in the second degree as
defined in section 140.25, robbery in the second degree as defined in
section 160.10, criminal possession of a weapon in the second degree as
defined in section 265.03, criminal use of a firearm in the second
degree as defined in section 265.08, criminal sale of a firearm in the
second degree as defined in section 265.12, criminal sale of a firearm
with the aid of a minor as defined in section 265.14, soliciting or
providing support for an act of terrorism in the first degree as defined
in section 490.15, hindering prosecution of terrorism in the second
degree as defined in section 490.30, and criminal possession of a
chemical weapon or biological weapon in the third degree as defined in
section 490.37.
(c) Class D violent felony offenses: an attempt to commit any of the
class C felonies set forth in paragraph (b); reckless assault of a child
as defined in section 120.02, assault in the second degree as defined in
section 120.05, menacing a police officer or peace officer as defined in
section 120.18, stalking in the first degree, as defined in subdivision
one of section 120.60, strangulation in the second degree as defined in
section 121.12, rape in the second degree as defined in section 130.30,
criminal sexual act in the second degree as defined in section 130.45,
sexual abuse in the first degree as defined in section 130.65, course of
sexual conduct against a child in the second degree as defined in
section 130.80, aggravated sexual abuse in the third degree as defined
in section 130.66, facilitating a sex offense with a controlled
substance as defined in section 130.90, criminal possession of a weapon
in the third degree as defined in subdivision five, six, seven or eight
of section 265.02, criminal sale of a firearm in the third degree as
defined in section 265.11, intimidating a victim or witness in the
second degree as defined in section 215.16, soliciting or providing
support for an act of terrorism in the second degree as defined in
section 490.10, and making a terroristic threat as defined in section
490.20, falsely reporting an incident in the first degree as defined in
section 240.60, placing a false bomb or hazardous substance in the first
degree as defined in section 240.62, placing a false bomb or hazardous
substance in a sports stadium or arena, mass transportation facility or
enclosed shopping mall as defined in section 240.63, and aggravated
unpermitted use of indoor pyrotechnics in the first degree as defined in
section 405.18.
(d) Class E violent felony offenses: an attempt to commit any of the
felonies of criminal possession of a weapon in the third degree as
defined in subdivision five, six, seven or eight of section 265.02 as a
lesser included offense of that section as defined in section 220.20 of
the criminal procedure law, persistent sexual abuse as defined in
section 130.53, aggravated sexual abuse in the fourth degree as defined
in section 130.65-a, falsely reporting an incident in the second degree
as defined in section 240.55 and placing a false bomb or hazardous
substance in the second degree as defined in section 240.61.
2. Authorized sentence.
* (a) Except as provided in subdivision six of section 60.05, the
sentence imposed upon a person who stands convicted of a class B or
class C violent felony offense must be a determinate sentence of
imprisonment which shall be in whole or half years. The term of such
sentence must be in accordance with the provisions of subdivision three
of this section.
* NB Effective September 1, 2013
* (a) The sentence imposed upon a person who stands convicted of a
class B or class C violent felony offense must be an indeterminate
sentence of imprisonment. Except as provided in subdivision five of
section 60.05, the maximum term of such sentence must be in accordance
with the provisions of subdivision three of this section and the minimum
period of imprisonment under such sentence must be in accordance with
subdivision four of this section.
* NB Effective September 1, 2013
(b) Except as provided in paragraph (b-1) of this subdivision,
subdivision six of section 60.05 and subdivision four of this section,
the sentence imposed upon a person who stands convicted of a class D
violent felony offense, other than the offense of criminal possession of
a weapon in the third degree as defined in subdivision five, seven or
eight of section 265.02 or criminal sale of a firearm in the third
degree as defined in section 265.11, must be in accordance with the
applicable provisions of this chapter relating to sentencing for class D
felonies provided, however, that where a sentence of imprisonment is
imposed which requires a commitment to the state department of
corrections and community supervision, such sentence shall be a
determinate sentence in accordance with paragraph (c) of subdivision
three of this section.
(b-1) Except as provided in subdivision six of section 60.05, the
sentence imposed upon a person who stands convicted of the class D
violent felony offense of menacing a police officer or peace officer as
defined in section 120.18 of this chapter must be a determinate sentence
of imprisonment.
(c) Except as provided in subdivision six of section 60.05, the
sentence imposed upon a person who stands convicted of the class D
violent felony offenses of criminal possession of a weapon in the third
degree as defined in subdivision four, five, seven or eight of section
265.02, criminal sale of a firearm in the third degree as defined in
section 265.11 or the class E violent felonies of attempted criminal
possession of a weapon in the third degree as defined in subdivision
four, five, seven or eight of section 265.02 must be a sentence to a
determinate period of imprisonment, or, in the alternative, a definite
sentence of imprisonment for a period of no less than one year, except
that:
(i) the court may impose any other sentence authorized by law upon a
person who has not been previously convicted in the five years
immediately preceding the commission of the offense for a class A
misdemeanor defined in this chapter, if the court having regard to the
nature and circumstances of the crime and to the history and character
of the defendant, finds on the record that such sentence would be unduly
harsh and that the alternative sentence would be consistent with public
safety and does not deprecate the seriousness of the crime; and
(ii) the court may apply the provisions of paragraphs (b) and (c) of
subdivision four of this section when imposing a sentence upon a person
who has previously been convicted of a class A misdemeanor defined in
this chapter in the five years immediately preceding the commission of
the offense.
3. Term of sentence. The term of a determinate sentence for a violent
felony offense must be fixed by the court as follows:
(a) For a class B felony, the term must be at least five years and
must not exceed twenty-five years, provided, however, that the term must
be: (i) at least ten years and must not exceed thirty years where the
sentence is for the crime of aggravated assault upon a police officer or
peace officer as defined in section 120.11 of this chapter; and (ii) at
least ten years and must not exceed thirty years where the sentence is
for the crime of aggravated manslaughter in the first degree as defined
in section 125.22 of this chapter;
(b) For a class C felony, the term must be at least three and one-half
years and must not exceed fifteen years, provided, however, that the
term must be: (i) at least seven years and must not exceed twenty years
where the sentence is for the crime of aggravated manslaughter in the
second degree as defined in section 125.21 of this chapter; (ii) at
least seven years and must not exceed twenty years where the sentence is
for the crime of attempted aggravated assault upon a police officer or
peace officer as defined in section 120.11 of this chapter; and (iii) at
least three and one-half years and must not exceed twenty years where
the sentence is for the crime of aggravated criminally negligent
homicide as defined in section 125.11 of this chapter;
(c) For a class D felony, the term must be at least two years and must
not exceed seven years, provided, however, that the term must be at
least two years and must not exceed eight years where the sentence is
for the crime of menacing a police officer or peace officer as defined
in section 120.18 of this chapter; and
(d) For a class E felony, the term must be at least one and one-half
years and must not exceed four years.
4. (a) Except as provided in paragraph (b) of this subdivision, where
a plea of guilty to a class D violent felony offense is entered pursuant
to section 220.10 or 220.30 of the criminal procedure law in
satisfaction of an indictment charging the defendant with an armed
felony, as defined in subdivision forty-one of section 1.20 of the
criminal procedure law, the court must impose a determinate sentence of
imprisonment.
(b) In any case in which the provisions of paragraph (a) of this
subdivision or the provisions of subparagraph (ii) of paragraph (c) of
subdivision two of this section apply, the court may impose a sentence
other than a determinate sentence of imprisonment, or a definite
sentence of imprisonment for a period of no less than one year, if it
finds that the alternate sentence is consistent with public safety and
does not deprecate the seriousness of the crime and that one or more of
the following factors exist:
(i) mitigating circumstances that bear directly upon the manner in
which the crime was committed; or
(ii) where the defendant was not the sole participant in the crime,
the defendant's participation was relatively minor although not so minor
as to constitute a defense to the prosecution; or
(iii) possible deficiencies in proof of the defendant's commission of
an armed felony.
(c) The defendant and the district attorney shall have an opportunity
to present relevant information to assist the court in making a
determination pursuant to paragraph (b) of this subdivision, and the
court may, in its discretion, conduct a hearing with respect to any
issue bearing upon such determination. If the court determines that a
determinate sentence of imprisonment should not be imposed pursuant to
the provisions of such paragraph (b), it shall make a statement on the
record of the facts and circumstances upon which such determination is
based. A transcript of the court's statement, which shall set forth the
recommendation of the district attorney, shall be forwarded to the state
division of criminal justice services along with a copy of the
accusatory instrument.
S 70.04 Sentence of imprisonment for second violent felony offender.
1. Definition of second violent felony offender.
(a) A second violent felony offender is a person who stands convicted
of a violent felony offense as defined in subdivision one of section
70.02 after having previously been subjected to a predicate violent
felony conviction as defined in paragraph (b) of this subdivision.
(b) For the purpose of determining whether a prior conviction is a
predicate violent felony conviction the following criteria shall apply:
(i) The conviction must have been in this state of a class A felony
(other than one defined in article two hundred twenty) or of a violent
felony offense as defined in subdivision one of section 70.02, or of an
offense defined by the penal law in effect prior to September first,
nineteen hundred sixty-seven, which includes all of the essential
elements of any such felony, or in any other jurisdiction of an offense
which includes all of the essential elements of any such felony for
which a sentence to a term of imprisonment in excess of one year or a
sentence of death was authorized and is authorized in this state
irrespective of whether such sentence was imposed;
(ii) Sentence upon such prior conviction must have been imposed before
commission of the present felony;
(iii) Suspended sentence, suspended execution of sentence, a sentence
of probation, a sentence of conditional discharge or of unconditional
discharge, and a sentence of certification to the care and custody of
the division of substance abuse services, shall be deemed to be a
sentence;
(iv) Except as provided in subparagraph (v) of this paragraph,
sentence must have been imposed not more than ten years before
commission of the felony of which the defendant presently stands
convicted;
(v) In calculating the ten year period under subparagraph (iv), any
period of time during which the person was incarcerated for any reason
between the time of commission of the previous felony and the time of
commission of the present felony shall be excluded and such ten year
period shall be extended by a period or periods equal to the time served
under such incarceration;
(vi) An offense for which the defendant has been pardoned on the
ground of innocence shall not be deemed a predicate violent felony
conviction.
* 2. Authorized sentence. When the court has found, pursuant to the
provisions of the criminal procedure law, that a person is a second
violent felony offender the court must impose a determinate sentence of
imprisonment which shall be in whole or half years. Except where
sentence is imposed in accordance with the provisions of section 70.10,
the term of such sentence must be in accordance with the provisions of
subdivision three of this section.
* NB Effective September 1, 2013
* 2. Authorized sentence. When the court has found, pursuant to the
provisions of the criminal procedure law, that a person is a second
violent felony offender the court must impose an indeterminate sentence
of imprisonment. Except where sentence is imposed in accordance with the
provisions of section 70.10, the maximum term of such sentence must be
in accordance with the provisions of subdivision three of this section
and the minimum period of imprisonment under such sentence must be in
accordance with subdivision four of this section.
* NB Effective September 1, 2013
* 3. Term of sentence. The term of a determinate sentence for a second
violent felony offender must be fixed by the court as follows:
(a) For a class B felony, the term must be at least ten years and must
not exceed twenty-five years;
(b) For a class C felony, the term must be at least seven years and
must not exceed fifteen years; and
(c) For a class D felony, the term must be at least five years and
must not exceed seven years.
(d) For a class E felony, the term must be at least three years and
must not exceed four years.
* NB Effective September 1, 2013
* 3. Maximum term of sentence. The maximum term of an indeterminate
sentence for a second violent felony offender must be fixed by the court
as follows:
(a) For a class B felony, the term must be at least twelve years and
must not exceed twenty-five years;
(b) For a class C felony, the term must be at least eight years and
must not exceed fifteen years; and
(c) For a class D felony, the term must be at least five years and
must not exceed seven years.
(d) For a class E felony, the term must be at least four years.
* NB Effective September 1, 2013
* 4. Minimum period of imprisonment. The minimum period of
imprisonment under an indeterminate sentence for a second violent felony
offender must be fixed by the court at one-half of the maximum term
imposed and must be specified in the sentence.
* NB Effective September 1, 2013
S 70.05 Sentence of imprisonment for juvenile offender.
1. Indeterminate sentence. A sentence of imprisonment for a felony
committed by a juvenile offender shall be an indeterminate sentence.
When such a sentence is imposed, the court shall impose a maximum term
in accordance with the provisions of subdivision two of this section and
the minimum period of imprisonment shall be as provided in subdivision
three of this section. The court shall further provide that where a
juvenile offender is under placement pursuant to article three of the
family court act, any sentence imposed pursuant to this section which is
to be served consecutively with such placement shall be served in a
facility designated pursuant to subdivision four of section 70.20 of
this article prior to service of the placement in any previously
designated facility.
2. Maximum term of sentence. The maximum term of an indeterminate
sentence for a juvenile offender shall be at least three years and the
term shall be fixed as follows:
(a) For the class A felony of murder in the second degree, the term
shall be life imprisonment;
(b) For the class A felony of arson in the first degree, or for the
class A felony of kidnapping in the first degree the term shall be fixed
by the court, and shall be at least twelve years but shall not exceed
fifteen years;
(c) For a class B felony, the term shall be fixed by the court, and
shall not exceed ten years;
(d) For a class C felony, the term shall be fixed by the court, and
shall not exceed seven years; and
(e) For a class D felony, the term shall be fixed by the court and
shall not exceed four years.
3. Minimum period of imprisonment. The minimum period of imprisonment
under an indeterminate sentence for a juvenile offender shall be
specified in the sentence as follows:
(a) For the class A felony of murder in the second degree, the minimum
period of imprisonment shall be fixed by the court and shall be not less
than five years but shall not exceed nine years;
(b) For the class A felony of arson in the first degree, or for the
class A felony of kidnapping in the first degree, the minimum period of
imprisonment shall be fixed by the court and shall be not less than four
years but shall not exceed six years; and
(c) For a class B, C or D felony, the minimum period of imprisonment
shall be fixed by the court at one-third of the maximum term imposed.
S 70.06 Sentence of imprisonment for second felony offender.
1. Definition of second felony offender. (a) A second felony offender
is a person, other than a second violent felony offender as defined in
section 70.04, who stands convicted of a felony defined in this chapter,
other than a class A-I felony, after having previously been subjected to
one or more predicate felony convictions as defined in paragraph (b) of
this subdivision.
(b) For the purpose of determining whether a prior conviction is a
predicate felony conviction the following criteria shall apply:
(i) The conviction must have been in this state of a felony, or in any
other jurisdiction of an offense for which a sentence to a term of
imprisonment in excess of one year or a sentence of death was authorized
and is authorized in this state irrespective of whether such sentence
was imposed;
(ii) Sentence upon such prior conviction must have been imposed before
commission of the present felony;
(iii) Suspended sentence, suspended execution of sentence, a sentence
of probation, a sentence of conditional discharge or of unconditional
discharge, and a sentence of certification to the care and custody of
the division of substance abuse services, shall be deemed to be a
sentence;
(iv) Except as provided in subparagraph (v) of this paragraph,
sentence must have been imposed not more than ten years before
commission of the felony of which the defendant presently stands
convicted;
(v) In calculating the ten year period under subparagraph (iv), any
period of time during which the person was incarcerated for any reason
between the time of commission of the previous felony and the time of
commission of the present felony shall be excluded and such ten year
period shall be extended by a period or periods equal to the time served
under such incarceration;
(vi) An offense for which the defendant has been pardoned on the
ground of innocence shall not be deemed a predicate felony conviction.
* 2. Authorized sentence. Except as provided in subdivision five or
six of this section, when the court has found, pursuant to the
provisions of the criminal procedure law, that a person is a second
felony offender the court must impose an indeterminate sentence of
imprisonment. The maximum term of such sentence must be in accordance
with the provisions of subdivision three of this section and the minimum
period of imprisonment under such sentence must be in accordance with
subdivision four of this section.
* NB Effective September 1, 2013
* 2. Authorized sentence. Except as provided in subdivision five of
this section, or as provided in subdivision five of section 70.80 of
this article, when the court has found, pursuant to the provisions of
the criminal procedure law, that a person is a second felony offender
the court must impose an indeterminate sentence of imprisonment. The
maximum term of such sentence must be in accordance with the provisions
of subdivision three of this section and the minimum period of
imprisonment under such sentence must be in accordance with subdivision
four of this section.
* NB Effective September 1, 2013
* 3. Maximum term of sentence. Except as provided in subdivision five
or six of this section, or as provided in subdivision five of section
70.80 of this article, the maximum term of an indeterminate sentence for
a second felony offender must be fixed by the court as follows:
(a) For a class A-II felony, the term must be life imprisonment;
(b) For a class B felony, the term must be at least nine years and
must not exceed twenty-five years;
(c) For a class C felony, the term must be at least six years and must
not exceed fifteen years;
(d) For a class D felony, the term must be at least four years and
must not exceed seven years; and
(e) For a class E felony, the term must be at least three years and
must not exceed four years; provided, however, that where the sentence
is for the class E felony offense specified in section 240.32 of this
chapter, the maximum term must be at least three years and must not
exceed five years.
* NB Effective until September 1, 2013
* 3. Maximum term of sentence. Except as provided in subdivision five
of this section, or as provided in subdivision five of section 70.80 of
this article, the maximum term of an indeterminate sentence for a second
felony offender must be fixed by the court as follows:
(a) For a class A-II felony, the term must be life imprisonment;
(b) For a class B felony, the term must be at least nine years and
must not exceed twenty-five years;
(c) For a class C felony, the term must be at least six years and must
not exceed fifteen years;
(d) For a class D felony, the term must be at least four years and
must not exceed seven years; and
(e) For a class E felony, the term must be at least three years and
must not exceed four years.
* NB Effective September 1, 2013
4. Minimum period of imprisonment. (a) The minimum period of
imprisonment for a second felony offender convicted of a class A-II
felony must be fixed by the court at no less than six years and not to
exceed twelve and one-half years and must be specified in the sentence,
except that for the class A-II felony of predatory sexual assault as
defined in section 130.95 of this chapter or the class A-II felony of
predatory sexual assault against a child as defined in section 130.96 of
this chapter, such minimum period shall be not less than ten years nor
more than twenty-five years.
(b) Except as provided in paragraph (a), the minimum period of
imprisonment under an indeterminate sentence for a second felony
offender must be fixed by the court at one-half of the maximum term
imposed and must be specified in the sentence.
* 6. Determinate sentence. When the court has found, pursuant to the
provisions of the criminal procedure law, that a person is a second
felony offender and the sentence to be imposed on such person is for a
violent felony offense, as defined in subdivision one of section 70.02,
the court must impose a determinate sentence of imprisonment the term of
which must be fixed by the court as follows:
(a) For a class B violent felony offense, the term must be at least
eight years and must not exceed twenty-five years;
(b) For a class C violent felony offense, the term must be at least
five years and must not exceed fifteen years;
(c) For a class D violent felony offense, the term must be at least
three years and must not exceed seven years; and
(d) For a class E violent felony offense, the term must be at least
two years and must not exceed four years.
* NB Repealed September 1, 2013
* 7. Notwithstanding any other provision of law, in the case of a
person sentenced for a specified offense or offenses as defined in
subdivision five of section 410.91 of the criminal procedure law, who
stands convicted of no other felony offense, who has not previously been
convicted of either a violent felony offense as defined in section 70.02
of this article, a class A felony offense or a class B felony offense,
and is not under the jurisdiction of or awaiting delivery to the
department of corrections and community supervision, the court may
direct that such sentence be executed as a parole supervision sentence
as defined in and pursuant to the procedures prescribed in section
410.91 of the criminal procedure law.
* NB Repealed September 1, 2013
S 70.07 Sentence of imprisonment for second child sexual assault felony
offender.
1. A person who stands convicted of a felony offense for a sexual
assault against a child, having been subjected to a predicate felony
conviction for such a sexual assault against a child, must be sentenced
in accordance with the provisions of subdivision four of this section.
2. A "sexual assault against a child" means a felony offense (a) the
essential elements of which include the commission or attempted
commission of sexual conduct, as defined in subdivision ten of section
130.00 of this chapter, (b) committed or attempted to be committed
against a child less than fifteen years old.
3. For purposes of determining whether a person has been subjected to
a predicate felony conviction under this section, the criteria set forth
in paragraph (b) of subdivision one of section 70.06 shall apply
provided however that for purposes of this subdivision, the terms "ten
year" or "ten years", as provided in subparagraphs (iv) and (v) of
paragraph (b) of subdivision one of such section 70.06, shall be
"fifteen year" or "fifteen years". The provisions of section 400.19 of
the criminal procedure law shall govern the procedures that must be
followed to determine whether a person who stands convicted of a sexual
assault against a child has been previously subjected to a predicate
felony conviction.
4. Where the court has found pursuant to subdivision three of this
section that a person who stands convicted of a felony offense defined
in article one hundred thirty of this chapter for the commission or
attempted commission of a sexual assault against a child has been
subjected to a predicate felony conviction for a sexual assault against
a child, the court shall sentence the defendant as follows:
(a) where the defendant stands convicted of such sexual assault
against a child and such conviction is for a class A-II or class B
felony offense, and the predicate conviction for such sexual assault
against a child is for a class A-II, class B or class C felony offense,
the court shall impose an indeterminate sentence of imprisonment, the
maximum term of which shall be life and the minimum period of which
shall be at least fifteen years and no more than twenty-five years;
(b) where the defendant stands convicted of such sexual assault
against a child and the conviction is for a class C felony offense, and
the predicate conviction for such sexual assault against a child is for
a class A-II, class B or class C felony offense, the court shall impose
a determinate sentence of imprisonment, the term of which must be at
least twelve years and must not exceed thirty years; provided however,
that if the court determines that a longer sentence is warranted, the
court shall set forth on the record the reasons for such determination
and, in lieu of imposing such sentence of imprisonment, may impose an
indeterminate sentence of imprisonment, the maximum term of which shall
be life and the minimum period of which shall be at least fifteen years
and no more than twenty-five years;
(c) where the defendant stands convicted of such sexual assault
against a child and the conviction is for a class B felony offense, and
the predicate conviction for such sexual assault against a child is for
a class D or class E felony offense, the court shall impose a
determinate sentence of imprisonment, the term of which must be at least
twelve years and must not exceed thirty years;
(d) where the defendant stands convicted of such sexual assault
against a child and the conviction is for a class C felony offense, and
the predicate conviction for such sexual assault against a child is for
a class D or class E felony offense, the court shall impose a
determinate sentence of imprisonment, the term of which must be at least
ten years and must not exceed twenty-five years;
(e) where the defendant stands convicted of such sexual assault
against a child and the conviction is for a class D felony offense, and
the predicate conviction for such sexual assault against a child is for
a felony offense, the court shall impose a determinate sentence of
imprisonment, the term of which must be at least five years and must not
exceed fifteen years; and
(f) where the defendant stands convicted of such sexual assault
against a child and the conviction is for a class E felony offense, and
the predicate conviction for such sexual assault against a child is for
a felony offense, the court shall impose a determinate sentence of
imprisonment, the term of which must be at least four years and must not
exceed twelve years.
5. Notwithstanding subdivision four of this section, where the court
has found pursuant to subdivision three of this section that a person:
(a) stands convicted of a felony offense defined in article one hundred
thirty of this chapter for the commission or attempted commission of a
sexual assault against a child; and (b) has been subjected to a
predicate felony conviction for sexual assault against a child as
defined in subdivision two of this section; and (c) who was under the
age of eighteen years at the time of the commission of such predicate
felony offense, then the court may, in lieu of the sentence authorized
by subdivision four of this section, sentence the defendant to a term of
imprisonment in accordance with the sentence authorized for the instant
felony offense pursuant to subdivision three of section 70.04 of this
article. The court shall set forth on the record the reasons for such
determination.
S 70.08 Sentence of imprisonment for persistent violent felony offender;
criteria.
1. Definition of persistent violent felony offender.
(a) A persistent violent felony offender is a person who stands
convicted of a violent felony offense as defined in subdivision one of
section 70.02 or the offense of predatory sexual assault as defined in
section 130.95 of this chapter or the offense of predatory sexual
assault against a child as defined in section 130.96 of this chapter,
after having previously been subjected to two or more predicate violent
felony convictions as defined in paragraph (b) of subdivision one of
section 70.04 of this article.
(b) For the purpose of determining whether a person has two or more
predicate violent felony convictions, the criteria set forth in
paragraph (b) of subdivision one of section 70.04 shall apply.
2. Authorized sentence. When the court has found, pursuant to the
provisions of the criminal procedure law, that a person is a persistent
violent felony offender the court must impose an indeterminate sentence
of imprisonment, the maximum term of which shall be life imprisonment.
The minimum period of imprisonment under such sentence must be in
accordance with subdivision three of this section.
* 3. Minimum period of imprisonment. The minimum period of
imprisonment under an indeterminate life sentence for a persistent
violent felony offender must be fixed by the court as follows:
(a) For the class A-II felony of predatory sexual assault as defined
in section 130.95 of this chapter or the class A-II felony of predatory
sexual assault against a child as defined in section 130.96 of this
chapter, the minimum period must be twenty-five years;
(a-1) For a class B felony, the minimum period must be at least twenty
years and must not exceed twenty-five years;
(b) For a class C felony, the minimum period must be at least sixteen
years and must not exceed twenty-five years;
(c) For a class D felony, the minimum period must be at least twelve
years and must not exceed twenty-five years.
* NB Effective until September 1, 2013
* 3. Minimum period of imprisonment. The minimum period of
imprisonment under an indeterminate life sentence for a persistent
violent felony offender must be fixed by the court as follows:
(a) For the class A-II felony of predatory sexual assault as defined
in section 130.95 of this chapter or the class A-II felony of predatory
sexual assault against a child as defined in section 130.96 of this
chapter, the minimum period must be twenty-five years;
(a-1) For a class B felony, the minimum period must be at least ten
years and must not exceed twenty-five years;
(b) For a class C felony, the minimum period must be at least eight
years and must not exceed twenty-five years;
(c) For a class D felony, the minimum period must be at least six
years and must not exceed twenty-five years.
* NB Effective until September 1, 2013
S 70.10 Sentence of imprisonment for persistent felony offender.
1. Definition of persistent felony offender.
(a) A persistent felony offender is a person, other than a persistent
violent felony offender as defined in section 70.08, who stands
convicted of a felony after having previously been convicted of two or
more felonies, as provided in paragraphs (b) and (c) of this
subdivision.
(b) A previous felony conviction within the meaning of paragraph (a)
of this subdivision is a conviction of a felony in this state, or of a
crime in any other jurisdiction, provided:
(i) that a sentence to a term of imprisonment in excess of one year,
or a sentence to death, was imposed therefor; and
(ii) that the defendant was imprisoned under sentence for such
conviction prior to the commission of the present felony; and
(iii) that the defendant was not pardoned on the ground of innocence.
(c) For the purpose of determining whether a person has two or more
previous felony convictions, two or more convictions of crimes that were
committed prior to the time the defendant was imprisoned under sentence
for any of such convictions shall be deemed to be only one conviction.
2. Authorized sentence. When the court has found, pursuant to the
provisions of the criminal procedure law, that a person is a persistent
felony offender, and when it is of the opinion that the history and
character of the defendant and the nature and circumstances of his
criminal conduct indicate that extended incarceration and life-time
supervision will best serve the public interest, the court, in lieu of
imposing the sentence of imprisonment authorized by section 70.00,
70.02, 70.04 or 70.06 for the crime of which such person presently
stands convicted, may impose the sentence of imprisonment authorized by
that section for a class A-I felony. In such event the reasons for the
court`s opinion shall be set forth in the record.
S 70.15 Sentences of imprisonment for misdemeanors and violation.
1. Class A misdemeanor. A sentence of imprisonment for a class A
misdemeanor shall be a definite sentence. When such a sentence is
imposed the term shall be fixed by the court, and shall not exceed one
year; provided, however, that a sentence of imprisonment imposed upon a
conviction of criminal possession of a weapon in the fourth degree as
defined in subdivision one of section 265.01 must be for a period of no
less than one year when the conviction was the result of a plea of
guilty entered in satisfaction of an indictment or any count thereof
charging the defendant with the class D violent felony offense of
criminal possession of a weapon in the third degree as defined in
subdivision four of section 265.02, except that the court may impose any
other sentence authorized by law upon a person who has not been
previously convicted in the five years immediately preceding the
commission of the offense for a felony or a class A misdemeanor defined
in this chapter, if the court having regard to the nature and
circumstances of the crime and to the history and character of the
defendant, finds on the record that such sentence would be unduly harsh
and that the alternative sentence would be consistent with public safety
and does not deprecate the seriousness of the crime.
2. Class B misdemeanor. A sentence of imprisonment for a class B
misdemeanor shall be a definite sentence. When such a sentence is
imposed the term shall be fixed by the court, and shall not exceed three
months.
3. Unclassified misdemeanor. A sentence of imprisonment for an
unclassified misdemeanor shall be a definite sentence. When such a
sentence is imposed the term shall be fixed by the court, and shall be
in accordance with the sentence specified in the law or ordinance that
defines the crime.
4. Violation. A sentence of imprisonment for a violation shall be a
definite sentence. When such a sentence is imposed the term shall be
fixed by the court, and shall not exceed fifteen days.
In the case of a violation defined outside this chapter, if the
sentence is expressly specified in the law or ordinance that defines the
offense and consists solely of a fine, no term of imprisonment shall be
imposed.
S 70.20 Place of imprisonment.
* 1. (a) Indeterminate or determinate sentence. Except as provided in
subdivision four of this section, when an indeterminate or determinate
sentence of imprisonment is imposed, the court shall commit the
defendant to the custody of the state department of correctional
services for the term of his or her sentence and until released in
accordance with the law; provided, however, that a defendant sentenced
pursuant to subdivision seven of section 70.06 shall be committed to the
custody of the state department of correctional services for immediate
delivery to a reception center operated by the department.
(b) The court in committing a defendant who is not yet eighteen years
of age to the department of correctional services shall inquire as to
whether the parents or legal guardian of the defendant, if present, will
grant to the minor the capacity to consent to routine medical, dental
and mental health services and treatment.
(c) Notwithstanding paragraph (b) of this subdivision, where the court
commits a defendant who is not yet eighteen years of age to the custody
of the department of correctional services in accordance with this
section and no medical consent has been obtained prior to said
commitment, the commitment order shall be deemed to grant the capacity
to consent to routine medical, dental and mental health services and
treatment to the person so committed.
(d) Nothing in this subdivision shall preclude a parent or legal
guardian of an inmate who is not yet eighteen years of age from making a
motion on notice to the department of correctional services pursuant to
article twenty-two of the civil practice law and rules and section one
hundred forty of the correction law, objecting to routine medical,
dental or mental health services and treatment being provided to such
inmate under the provisions of paragraph (b) of this subdivision.
(e) Nothing in this section shall require that consent be obtained
from the parent or legal guardian, where no consent is necessary or
where the defendant is authorized by law to consent on his or her own
behalf to any medical, dental, and mental health service or treatment.
* NB Effective until September 1, 2013
* 1. (a) Indeterminate sentence. Except as provided in subdivision
four of this section, when an indeterminate sentence of imprisonment is
imposed, the court shall commit the defendant to the custody of the
state department of correctional services for the term of his or her
sentence and until released in accordance with the law.
(b) The court in committing a defendant who is not yet eighteen years
of age to the department of correctional services shall inquire as to
whether the parents or legal guardian of the defendant, if present, will
grant to the minor the capacity to consent to routine medical, dental
and mental health services and treatment.
(c) Notwithstanding paragraph (b) of this subdivision, where the court
commits a defendant who is not yet eighteen years of age to the custody
of the department of correctional services in accordance with this
section and no medical consent has been obtained prior to said
commitment, the commitment order shall be deemed to grant the capacity
to consent to routine medical, dental and mental health services and
treatment to the person so committed.
(d) Nothing in this subdivision shall preclude a parent or legal
guardian of an inmate who is not yet eighteen years of age from making a
motion on notice to the department of correctional services pursuant to
article twenty-two of the civil practice law and rules and section one
hundred forty of the correction law, objecting to routine medical,
dental or mental health services and treatment being provided to such
inmate under the provisions of paragraph (b) of this subdivision.
(e) Nothing in this section shall require that consent be obtained
from the parent or legal guardian, where no consent is necessary or
where the defendant is authorized by law to consent on his or her own
behalf to any medical, dental, and mental health service or treatment.
* NB Effective until September 1, 2013
2. Definite sentence. Except as provided in subdivision four of this
section, when a definite sentence of imprisonment is imposed, the court
shall commit the defendant to the county or regional correctional
institution for the term of his sentence and until released in
accordance with the law.
2-a. Sentence of life imprisonment without parole. When a sentence of
life imprisonment without parole is imposed, the court shall commit the
defendant to the custody of the state department of correctional
services for the remainder of the life of the defendant.
* 3. Undischarged imprisonment in other jurisdiction. When a defendant
who is subject to an undischarged term of imprisonment, imposed at a
previous time by a court of another jurisdiction, is sentenced to an
additional term or terms of imprisonment by a court of this state to run
concurrently with such undischarged term, as provided in subdivision
four of section 70.25, the return of the defendant to the custody of the
appropriate official of the other jurisdiction shall be deemed a
commitment for such portion of the term or terms of the sentence imposed
by the court of this state as shall not exceed the said undischarged
term. The defendant shall be committed to the custody of the state
department of correctional services if the additional term or terms are
indeterminate or determinate or to the appropriate county or regional
correctional institution if the said term or terms are definite for such
portion of the term or terms of the sentence imposed as shall exceed
such undischarged term or until released in accordance with law. If such
additional term or terms imposed shall run consecutively to the said
undischarged term, the defendant shall be committed as provided in
subdivisions one and two of this section.
* NB Effective until September 1, 2013
* 3. Undischarged imprisonment in other jurisdiction. When a defendant
who is subject to an undischarged term of imprisonment, imposed at a
previous time by a court of another jurisdiction, is sentenced to an
additional term or terms of imprisonment by a court of this state to run
concurrently with such undischarged term, as provided in subdivision
four of section 70.25, the return of the defendant to the custody of the
appropriate official of the other jurisdiction shall be deemed a
commitment for such portion of the term or terms of the sentence imposed
by the court of this state as shall not exceed the said undischarged
term. The defendant shall be committed to the custody of the state
department of correctional services if the additional term or terms are
indeterminate or to the appropriate county or regional correctional
institution if the said term or terms are definite for such portion of
the term or terms of the sentence imposed as shall exceed such
undischarged term or until released in accordance with law. If such
additional term or terms imposed shall run consecutively to the said
undischarged term, the defendant shall be committed as provided in
subdivisions one and two of this section.
* NB Effective until September 1, 2013
4. (a) Notwithstanding any other provision of law to the contrary, a
juvenile offender, or a juvenile offender who is adjudicated a youthful
offender and given an indeterminate or a definite sentence, shall be
committed to the custody of the director of the division for youth who
shall arrange for the confinement of such offender in secure facilities
of the division. The release or transfer of such offenders from the
division for youth shall be governed by section five hundred eight of
the executive law.
(b) The court in committing a juvenile offender and youthful offender
to the custody of the division for youth shall inquire as to whether the
parents or legal guardian of the youth, if present, will consent for the
division to provide routine medical, dental and mental health services
and treatment.
(c) Notwithstanding paragraph (b) of this subdivision, where the court
commits an offender to the custody of the division for youth in
accordance with this section and no medical consent has been obtained
prior to said commitment, the commitment order shall be deemed to grant
consent for the division for youth to provide for routine medical,
dental and mental health services and treatment to the offender so
committed.
(d) Nothing in this subdivision shall preclude a parent or legal
guardian of an offender who is not yet eighteen years of age from making
a motion on notice to the division for youth pursuant to article
twenty-two of the civil practice law and rules objecting to routine
medical, dental or mental health services and treatment being provided
to such offender under the provisions of paragraph (b) of this
subdivision.
(e) Nothing in this section shall require that consent be obtained
from the parent or legal guardian, where no consent is necessary or
where the offender is authorized by law to consent on his or her own
behalf to any medical, dental and mental health service or treatment.
5. Subject to regulations of the department of health, routine
medical, dental and mental health services and treatment is defined for
the purposes of this section to mean any routine diagnosis or treatment,
including without limitation the administration of medications or
nutrition, the extraction of bodily fluids for analysis, and dental care
performed with a local anesthetic. Routine mental health treatment shall
not include psychiatric administration of medication unless it is part
of an ongoing mental health plan or unless it is otherwise authorized by
law.
S 70.25 Concurrent and consecutive terms of imprisonment.
1. Except as provided in subdivisions two, two-a and five of this
section, when multiple sentences of imprisonment are imposed on a person
at the same time, or when a person who is subject to any undischarged
term of imprisonment imposed at a previous time by a court of this state
is sentenced to an additional term of imprisonment, the sentence or
sentences imposed by the court shall run either concurrently or
consecutively with respect to each other and the undischarged term or
terms in such manner as the court directs at the time of sentence. If
the court does not specify the manner in which a sentence imposed by it
is to run, the sentence shall run as follows:
* (a) An indeterminate or determinate sentence shall run concurrently
with all other terms; and
* NB Effective until September 1, 2013
* (a) An indeterminate sentence shall run concurrently with all other
terms; and
* NB Effective until September 1, 2013
(b) A definite sentence shall run concurrently with any sentence
imposed at the same time and shall be consecutive to any other term.
2. When more than one sentence of imprisonment is imposed on a person
for two or more offenses committed through a single act or omission, or
through an act or omission which in itself constituted one of the
offenses and also was a material element of the other, the sentences,
except if one or more of such sentences is for a violation of section
270.20 of this chapter, must run concurrently.
* 2-a. When an indeterminate or determinate sentence of imprisonment
is imposed pursuant to section 70.04, 70.06, 70.08 or 70.10 and such
person is subject to an undischarged indeterminate or determinate
sentence of imprisonment imposed prior to the date on which the present
crime was committed, the court must impose a sentence to run
consecutively with respect to such undischarged sentence.
* NB Effective until September 1, 2013
* 2-a. When an indeterminate sentence of imprisonment is imposed
pursuant to section 70.04, 70.06, 70.08 or 70.10 and such person is
subject to an undischarged indeterminate sentence of imprisonment
imposed prior to the date on which the present crime was committed, the
court must impose a sentence to run consecutively with respect to such
undischarged sentence.
* NB Effective until September 1, 2013
* 2-b. When a person is convicted of a violent felony offense
committed after arraignment and while released on recognizance or bail,
but committed prior to the imposition of sentence on a pending felony
charge, and if an indeterminate or determinate sentence of imprisonment
is imposed in each case, such sentences shall run consecutively.
Provided, however, that the court may, in the interest of justice, order
a sentence to run concurrently in a situation where consecutive
sentences are required by this subdivision if it finds either mitigating
circumstances that bear directly upon the manner in which the crime was
committed or, where the defendant was not the sole participant in the
crime, the defendant`s participation was relatively minor although not
so minor as to constitute a defense to the prosecution. The defendant
and the district attorney shall have an opportunity to present relevant
information to assist the court in making this determination and the
court may, in its discretion, conduct a hearing with respect to any
issue bearing upon such determination. If the court determines that
consecutive sentences should not be ordered, it shall make a statement
on the record of the facts and circumstances upon which such
determination is based.
* NB Effective until September 1, 2013
* 2-b. When a person is convicted of a violent felony offense
committed after arraignment and while released on recognizance or bail,
but committed prior to the imposition of sentence on a pending felony
charge, and if an indeterminate sentence of imprisonment is imposed in
each case, such sentences shall run consecutively. Provided, however,
that the court may, in the interest of justice, order a sentence to run
concurrently in a situation where consecutive sentences are required by
this subdivision if it finds either mitigating circumstances that bear
directly upon the manner in which the crime was committed or, where the
defendant was not the sole participant in the crime, the defendant`s
participation was relatively minor although not so minor as to
constitute a defense to the prosecution. The defendant and the district
attorney shall have an opportunity to present relevant information to
assist the court in making this determination and the court may, in its
discretion, conduct a hearing with respect to any issue bearing upon
such determination. If the court determines that consecutive sentences
should not be ordered, it shall make a statement on the record of the
facts and circumstances upon which such determination is based.
* NB Effective until September 1, 2013
2-c. When a person is convicted of bail jumping in the second degree
as defined in section 215.56 or bail jumping in the first degree as
defined in section 215.57 committed after arraignment and while released
on recognizance or bail in connection with a pending indictment or
information charging one or more felonies, at least one of which he is
subsequently convicted, and if an indeterminate sentence of imprisonment
is imposed in each case, such sentences shall run consecutively.
Provided, however, that the court may, in the interest of justice, order
a sentence to run concurrently in a situation where consecutive
sentences are required by this subdivision if it finds mitigating
circumstances that bear directly upon the manner in which the crime was
committed. The defendant and the district attorney shall have an
opportunity to present relevant information to assist the court in
making this determination and the court may, in its discretion, conduct
a hearing with respect to any issue bearing upon such determination. If
the court determines that consecutive sentences should not be ordered,
it shall make a statement on the record of the facts and circumstances
upon which such determination is based.
2-d. When a person is convicted of escape in the second degree as
defined in section 205.10 or escape in the first degree as defined in
section 205.15 committed after issuance of a securing order, as defined
in subdivision five of section 500.10 of the criminal procedure law, in
connection with a pending indictment or information charging one or more
felonies, at least one of which he is subsequently convicted, and if an
indeterminate sentence of imprisonment is imposed in each case, such
sentences shall run consecutively. Provided, however, that the court
may, in the interest of justice, order a sentence to run concurrently in
a situation where consecutive sentences are required by this subdivision
if it finds mitigating circumstances that bear directly upon the manner
in which the crime was committed. The defendant and the district
attorney shall have an opportunity to present relevant information to
assist the court in making this determination and the court may, in its
discretion, conduct a hearing with respect to any issue bearing upon
such determination. If the court determines that consecutive sentences
should not be ordered, it shall make a statement on the record of the
facts and circumstances upon which such determination is based.
2-e. Whenever a person is convicted of course of sexual conduct
against a child in the first degree as defined in section 130.75 or
course of sexual conduct against a child in the second degree as defined
in section 130.80 and any other crime under article one hundred thirty
committed against the same child and within the period charged under
section 130.75 or 130.80, the sentences must run concurrently.
2-f. Whenever a person is convicted of facilitating a sex offense with
a controlled substance as defined in section 130.90 of this chapter, the
sentence imposed by the court for such offense may be ordered to run
consecutively to any sentence imposed upon conviction of an offense
defined in article one hundred thirty of this chapter arising from the
same criminal transaction.
2-g. Whenever a person is convicted of unlawful manufacture of
methamphetamine in the third degree as defined in section 220.73 of this
chapter, unlawful manufacture of methamphetamine in the second degree as
defined in section 220.74 of this chapter, or unlawful manufacture of
methamphetamine in the first degree as defined in section 220.75 of this
chapter, or any attempt to commit any of such offenses, and such person
is also convicted, with respect to such unlawful methamphetamine
laboratory, of unlawful disposal of methamphetamine laboratory material
as defined in section 220.76 of this chapter, the sentences must run
concurrently.
3. Where consecutive definite sentences of imprisonment are not
prohibited by subdivision two of this section and are imposed on a
person for offenses which were committed as parts of a single incident
or transaction, the aggregate of the terms of such sentences shall not
exceed one year.
4. When a person, who is subject to any undischarged term of
imprisonment imposed at a previous time by a court of another
jurisdiction, is sentenced to an additional term or terms of
imprisonment by a court of this state, the sentence or sentences imposed
by the court of this state, subject to the provisions of subdivisions
one, two and three of this section, shall run either concurrently or
consecutively with respect to such undischarged term in such manner as
the court directs at the time of sentence. If the court of this state
does not specify the manner in which a sentence imposed by it is to run,
the sentence or sentences shall run consecutively.
5. * (a) Except as provided in paragraph (c) of this subdivision, when
a person is convicted of assault in the second degree, as defined in
subdivision seven of section 120.05 of this chapter, any definite,
indeterminate or determinate term of imprisonment which may be imposed
as a sentence upon such conviction shall run consecutively to any
undischarged term of imprisonment to which the defendant was subject and
for which he was confined at the time of the assault.
* NB Effective until September 1, 2013
* (a) Except as provided in paragraph (c) of this subdivision, when a
person is convicted of assault in the second degree, as defined in
subdivision seven of section 120.05 of this chapter, any definite or
indeterminate term of imprisonment which may be imposed as a sentence
upon such conviction shall run consecutively to any undischarged term of
imprisonment to which the defendant was subject and for which he was
confined at the time of the assault.
* NB Effective until September 1, 2013
* (b) Except as provided in paragraph (c) of this subdivision, when a
person is convicted of assault in the second degree, as defined in
subdivision seven of section 120.05 of this chapter, any definite,
indeterminate or determinate term of imprisonment which may be imposed
as a sentence upon such conviction shall run consecutively to any term
of imprisonment which was previously imposed or which may be
prospectively imposed where the person was confined within a detention
facility at the time of the assault upon a charge which culminated in
such sentence of imprisonment.
* NB Effective until September 1, 2013
* (b) Except as provided in paragraph (c) of this subdivision, when a
person is convicted of assault in the second degree, as defined in
subdivision seven of section 120.05 of this chapter, any definite or
indeterminate term of imprisonment which may be imposed as a sentence
upon such conviction shall run consecutively to any term of imprisonment
which was previously imposed or which may be prospectively imposed where
the person was confined within a detention facility at the time of the
assault upon a charge which culminated in such sentence of imprisonment.
* NB Effective until September 1, 2013
(c) Notwithstanding the provisions of paragraphs (a) and (b) of this
subdivision, a term of imprisonment imposed upon a conviction to assault
in the second degree as defined in subdivision seven of section 120.05
of this chapter may run concurrently to any other term of imprisonment,
in the interest of justice, provided the court sets forth in the record
its reasons for imposing a concurrent sentence. Nothing in this section
shall require the imposition of a sentence of imprisonment where it is
not otherwise required by law.
S 70.30 Calculation of terms of imprisonment.
1. * Indeterminate or determinate sentences. An indeterminate or
determinate sentence of imprisonment commences when the prisoner is
received in an institution under the jurisdiction of the state
department of correctional services. Where a person is under more than
one indeterminate or determinate sentence, the sentences shall be
calculated as follows:
* NB Effective until September 1, 2013
* Indeterminate sentences. An indeterminate sentence of imprisonment
commences when the prisoner is received in an institution under the
jurisdiction of the state department of correctional services. Where a
person is under more than one indeterminate sentence, the sentences
shall be calculated as follows:
* NB Effective until September 1, 2013
* (a) If the sentences run concurrently, the time served under
imprisonment on any of the sentences shall be credited against the
minimum periods of all the concurrent indeterminate sentences and
against the terms of all the concurrent determinate sentences. The
maximum term or terms of the indeterminate sentences and the term or
terms of the determinate sentences shall merge in and be satisfied by
discharge of the term which has the longest unexpired time to run;
* NB Effective until September 1, 2013
* (a) If the sentences run concurrently, the time served under
imprisonment on any of the sentences shall be credited against the
minimum periods of all the concurrent sentences, and the maximum terms
merge in and are satisfied by discharge of the term which has the
longest unexpired time to run;
* NB Effective until September 1, 2013
* (b) If the defendant is serving two or more indeterminate sentences
which run consecutively, the minimum periods of imprisonment are added
to arrive at an aggregate minimum period of imprisonment equal to the
sum of all the minimum periods, and the maximum terms are added to
arrive at an aggregate maximum term equal to the sum of all the maximum
terms, provided, however, that both the aggregate maximum term and the
aggregate minimum period of imprisonment shall be subject to the
limitations set forth in paragraphs (e) and (f) of this subdivision,
where applicable;
* NB Effective until September 1, 2013
* (b) If the sentences run consecutively, the minimum periods of
imprisonment are added to arrive at an aggregate minimum period of
imprisonment equal to the sum of all the minimum periods, and the
maximum terms are added to arrive at an aggregate maximum term equal to
the sum of all the maximum terms, provided, however, that both the
aggregate maximum term and the aggregate minimum period of imprisonment
shall be subject to the limitations set forth in paragraphs (c) and (d)
of this subdivision, where applicable;
* NB Effective until September 1, 2013
* (c) If the defendant is serving two or more determinate sentences of
imprisonment which run consecutively, the terms of the determinate
sentences are added to arrive at an aggregate maximum term of
imprisonment, provided, however, that the aggregate maximum term of
imprisonment shall be subject to the limitations set forth in paragraphs
(e) and (f) of this subdivision, where applicable.
* NB Effective until September 1, 2013
* (c) (i) Except as provided in subparagraph (ii) or (iii) of this
paragraph, the aggregate maximum term of consecutive sentences imposed
for two or more crimes, other than two or more crimes that include a
class A felony, committed prior to the time the person was imprisoned
under any of such sentences shall, if it exceeds twenty years, be deemed
to be twenty years, unless one of the sentences was imposed for a class
B felony, in which case the aggregate maximum term shall, if it exceeds
thirty years, be deemed to be thirty years. Where the aggregate maximum
term of two or more consecutive sentences is reduced by calculation made
pursuant to this paragraph, the aggregate minimum period of
imprisonment, if it exceeds one-half of the aggregate maximum term as so
reduced, shall be deemed to be one-half of the aggregate maximum term as
so reduced;
(ii) Notwithstanding subparagraph (i) of this paragraph, the aggregate
maximum term of consecutive sentences imposed for the conviction of two
violent felony offenses committed prior to the time the person was
imprisoned under any of such sentences and one of which is a class B
violent felony offense, shall, if it exceeds forty years, be deemed to
be forty years;
(iii) Notwithstanding subparagraphs (i) and (ii) of this paragraph,
the aggregate maximum term of consecutive sentences imposed for the
conviction of three or more violent felony offenses committed prior to
the time the person was imprisoned under any of such sentences and one
of which is a class B violent felony offense, shall, if it exceeds fifty
years, be deemed to be fifty years;
* NB Effective September 1, 2013
* (d) If the defendant is serving one or more indeterminate sentences
of imprisonment and one or more determinate sentence of imprisonment
which run consecutively, the minimum term or terms of the indeterminate
sentence or sentences and the term or terms of the determinate sentence
or sentences are added to arrive at an aggregate maximum term of
imprisonment, provided, however, (i) that in no event shall the
aggregate maximum so calculated be less than the term or maximum term of
imprisonment of the sentence which has the longest unexpired time to
run; and (ii) that the aggregate maximum term of imprisonment shall be
subject to the limitations set forth in paragraphs (e) and (f) of this
subdivision, where applicable.
* NB Effective until September 1, 2013
* (d) The aggregate maximum term of consecutive sentences imposed upon
a juvenile offender for two or more crimes, not including a class A
felony, committed before he has reached the age of sixteen, shall, if it
exceeds ten years, be deemed to be ten years. If consecutive
indeterminate sentences imposed upon a juvenile offender include a
sentence for the class A felony of arson in the first degree or for the
class A felony of kidnapping in the first degree, then the aggregate
maximum term of such sentences shall, if it exceeds fifteen years, be
deemed to be fifteen years. Where the aggregate maximum term of two or
more consecutive sentences is reduced by a calculation made pursuant to
this paragraph, the aggregate minimum period of imprisonment, if it
exceeds one-half of the aggregate maximum term as so reduced, shall be
deemed to be one-half of the aggregate maximum term as so reduced.
* NB Effective September 1, 2013
* (e) (i) Except as provided in subparagraph (ii), (iii), (iv), (v),
(vi) or (vii) of this paragraph, the aggregate maximum term of
consecutive sentences, all of which are indeterminate sentences or all
of which are determinate sentences, imposed for two or more crimes,
other than two or more crimes that include a class A felony, committed
prior to the time the person was imprisoned under any of such sentences
shall, if it exceeds twenty years, be deemed to be twenty years, unless
one of the sentences was imposed for a class B felony, in which case the
aggregate maximum term shall, if it exceeds thirty years, be deemed to
be thirty years. Where the aggregate maximum term of two or more
indeterminate consecutive sentences is reduced by calculation made
pursuant to this paragraph, the aggregate minimum period of
imprisonment, if it exceeds one-half of the aggregate maximum term as so
reduced, shall be deemed to be one-half of the aggregate maximum term as
so reduced;
(ii) Where the aggregate maximum term of two or more consecutive
sentences, one or more of which is a determinate sentence and one or
more of which is an indeterminate sentence, imposed for two or more
crimes, other than two or more crimes that include a class A felony,
committed prior to the time the person was imprisoned under any of such
sentences, exceeds twenty years, and none of the sentences was imposed
for a class B felony, the following rules shall apply:
(A) if the aggregate maximum term of the determinate sentence or
sentences exceeds twenty years, the defendant shall be deemed to be
serving to a determinate sentence of twenty years.
(B) if the aggregate maximum term of the determinate sentence or
sentences is less than twenty years, the defendant shall be deemed to be
serving an indeterminate sentence the maximum term of which shall be
deemed to be twenty years. In such instances, the minimum sentence shall
be deemed to be ten years or six-sevenths of the term or aggregate
maximum term of the determinate sentence or sentences, whichever is
greater.
(iii) Where the aggregate maximum term of two or more consecutive
sentences, one or more of which is a determinate sentence and one or
more of which is an indeterminate sentence, imposed for two or more
crimes, other than two or more crimes that include a class A felony,
commmitted prior to the time the person was imprisoned under any of such
sentences, exceeds thirty years, and one of the sentences was imposed
for a class B felony, the following rules shall apply:
(A) if the aggregate maximum term of the determinate sentence or
sentences exceeds thirty years, the defendant shall be deemed to be
serving a determinate sentence of thirty years;
(B) if the aggregate maximum term of the determinate sentence or
sentences is less than thirty years, the defendant shall be deemed to be
serving an indeterminate sentence the maximum term of which shall be
deemed to be thirty years. In such instances, the minimum sentence shall
be deemed to be fifteen years or six-sevenths of the term or aggregate
maximum term of the determinate sentence or sentences, whichever is
greater.
(iv) Notwithstanding subparagraph (i) of this paragraph, the aggregate
maximum term of consecutive sentences, all of which are indeterminate
sentences or all of which are determinate sentences, imposed for the
conviction of two violent felony offenses committed prior to the time
the person was imprisoned under any of such sentences and one of which
is a class B violent felony offense, shall, if it exceeds forty years,
be deemed to be forty years
(v) Notwithstanding subparagraphs (ii) and (iii) of this paragraph,
where the aggregate maximum term of two or more consecutive sentences,
one or more of which is a determinate sentence and one or more of which
is an indeterminate sentence, and where such sentences are imposed for
the conviction of two violent felony offenses committed prior to the
time the person was imprisoned under any such sentences and where one of
which is a class B violent felony offense, the following rules shall
apply:
(A) if the aggregate maximum term of the determinate sentence or
sentences exceeds forty years, the defendant shall be deemed to be
serving a determinate sentence of forty years;
(B) if the aggregate maximum term of the determinate sentence or
sentences is less than forty years, the defendant shall be deemed to be
serving an indeterminate sentence the maximum term of which shall be
deemed to be forty years. In such instances, the minimum sentence shall
be deemed to be twenty years or six-sevenths of the term or aggregate
maximum term of the determinate sentence or sentences, whichever is
greater.
(vi) Notwithstanding subparagraphs (i) and (iv) of this paragraph, the
aggregate maximum term of consecutive sentences, all of which are
indeterminate or all of which are determinate sentences, imposed for the
conviction of three or more violent felony offenses committed prior to
the time the person was imprisoned under any of such sentences and one
of which is a class B violent felony offense, shall, if it exceeds fifty
years, be deemed to be fifty years;
(vii) Notwithstanding subparagraphs (ii), (iii) and (v) of this
paragraph, where the aggregate maximum term of two or more consecutive
sentences, one or more of which is a determinate sentence and one or
more of which is an indeterminate sentence, and where such sentences are
imposed for the conviction of three or more violent felony offenses
committed prior to the time the person was imprisoned under any such
sentences and one of which is a class B violent felony offense, the
following rules shall apply:
(A) if the aggregate maximum term of the determinate sentence or
sentences exceeds fifty years, the defendant shall be deemed to be
serving a determinate sentence of fifty years.
(B) if the aggregate maximum term of the determinate sentence or
sentences is less than fifty years, the defendant shall be deemed to be
serving an indeterminate sentence the maximum term of which shall be
deemed to be fifty years. In such instances, the minimum sentence shall
be deemed to be twenty-five years or six-sevenths of the term or
aggregate maximum term of the determinate sentence or sentences,
whichever is greater.
(viii) Notwithstanding any provision of this subdivision to the
contrary where a person is serving two or more consecutive sentences,
one or more of which is an indeterminate sentence and one or more of
which is a determinate sentence, and if he would be eligible for a
reduction provision pursuant to this subdivision if the maximum term or
aggregate maximum term of the indeterminate sentence or sentences were
added to the term or aggregate maximum term of the determinate sentence
or sentences, the person shall be deemed to be eligible for the
applicable reduction provision and the rules set forth in this
subdivision shall apply.
* NB Effective until September 1, 2013
* (f) The aggregate maximum term of consecutive sentences imposed upon
a juvenile offender for two or more crimes, not including a class A
felony, committed before he has reached the age of sixteen, shall, if it
exceeds ten years, be deemed to be ten years. If consecutive
indeterminate sentences imposed upon a juvenile offender include a
sentence for the class A felony of arson in the first degree or for the
class A felony of kidnapping in the first degree, then the aggregate
maximum term of such sentences shall, if it exceeds fifteen years, be
deemed to be fifteen years. Where the aggregate maximum term of two or
more consecutive sentences is reduced by a calculation made pursuant to
this paragraph, the aggregate minimum period of imprisonment, if it
exceeds one-half of the aggregate maximum term as so reduced, shall be
deemed to be one-half of the aggregate maximum term as so reduced.
* NB Effective until September 1, 2013
2. Definite sentences. A definite sentence of imprisonment commences
when the prisoner is received in the institution named in the
commitment. Where a person is under more than one definite sentence, the
sentences shall be calculated as follows:
(a) If the sentences run concurrently and are to be served in a single
institution, the terms merge in and are satisfied by discharge of the
term which has the longest unexpired time to run;
(b) If the sentences run consecutively and are to be served in a
single institution, the terms are added to arrive at an aggregate term
and are satisfied by discharge of such aggregate term, or by service of
two years imprisonment plus any term imposed for an offense committed
while the person is under the sentences, whichever is less;
(c) If the sentences run concurrently and are to be served in more
than one institution, the term of each such sentence shall be credited
with the portion of any concurrent term served after that sentence was
imposed;
(d) If the sentences run consecutively and are to be served in more
than one institution, the aggregate of the time served in all of the
institutions shall not exceed two years plus any term imposed for an
offense committed while the person is under the sentences.
2-a. Undischarged imprisonment in other jurisdiction. Where a person
who is subject to an undischarged term of imprisonment imposed at a
previous time by a court of another jurisdiction is sentenced to an
additional term or terms of imprisonment by a court of this state, to
run concurrently with such undischarged term, such additional term or
terms shall be deemed to commence when the said person is returned to
the custody of the appropriate official of such other jurisdiction where
the undischarged term of imprisonment is being served. If the additional
term or terms imposed shall run consecutively to the said undischarged
term, such additional term or terms shall commence when the prisoner is
received in the appropriate institution as provided in subdivisions one
and two of this section. The term or terms of such imprisonment shall be
calculated and such other pertinent provisions of this section applied
in the same manner as where a person is under more than one sentence in
this state as provided in this section.
* 3. Jail time. The term of a definite sentence, a determinate
sentence, or the maximum term of an indeterminate sentence imposed on a
person shall be credited with and diminished by the amount of time the
person spent in custody prior to the commencement of such sentence as a
result of the charge that culminated in the sentence. In the case of an
indeterminate sentence, if the minimum period of imprisonment has been
fixed by the court or by the board of parole, the credit shall also be
applied against the minimum period. The credit herein provided shall be
calculated from the date custody under the charge commenced to the date
the sentence commences and shall not include any time that is credited
against the term or maximum term of any previously imposed sentence or
period of post-release supervision to which the person is subject. Where
the charge or charges culminate in more than one sentence, the credit
shall be applied as follows:
(a) If the sentences run concurrently, the credit shall be applied
against each such sentence;
(b) If the sentences run consecutively, the credit shall be applied
against the aggregate term or aggregate maximum term of the sentences
and against the aggregate minimum period of imprisonment.
In any case where a person has been in custody due to a charge that
culminated in a dismissal or an acquittal, the amount of time that would
have been credited against a sentence for such charge, had one been
imposed, shall be credited against any sentence that is based on a
charge for which a warrant or commitment was lodged during the pendency
of such custody.
* NB Effective until September 1, 2013
* 3. Jail time. The term of a definite sentence or the maximum term of
an indeterminate sentence imposed on a person shall be credited with and
diminished by the amount of time the person spent in custody prior to
the commencement of such sentence as a result of the charge that
culminated in the sentence. In the case of an indeterminate sentence, if
the minimum period of imprisonment has been fixed by the court or by the
board of parole, the credit shall also be applied against the minimum
period. The credit herein provided shall be calculated from the date
custody under the charge commenced to the date the sentence commences
and shall not include any time that is credited against the term or
maximum term of any previously imposed sentence or period of
post-release supervision to which the person is subject. Where the
charge or charges culminate in more than one sentence, the credit shall
be applied as follows:
(a) If the sentences run concurrently, the credit shall be applied
against each such sentence;
(b) If the sentences run consecutively, the credit shall be applied
against the aggregate term or aggregate maximum term of the sentences
and against the aggregate minimum period of imprisonment.
In any case where a person has been in custody due to a charge that
culminated in a dismissal or an acquittal, the amount of time that would
have been credited against a sentence for such charge, had one been
imposed, shall be credited against any sentence that is based on a
charge for which a warrant or commitment was lodged during the pendency
of such custody.
* NB Effective September 1, 2013
* 4. Good behavior time. Time allowances earned for good behavior,
pursuant to the provisions of the correction law, shall be computed and
applied as follows:
(a) In the case of a person serving an indeterminate or determinate
sentence, the total of such allowances shall be calculated as provided
in section eight hundred three of the correction law and the allowances
shall be applied as provided in paragraph (b) of subdivision one of
section 70.40;
(b) In the case of a person serving a definite sentence, the total of
such allowances shall not exceed one-third of his term or aggregate term
and the allowances shall be applied as a credit against such term.
* NB Effective until September 1, 2013
* 4. Good behavior time. Time allowances earned for good behavior,
pursuant to the provisions of the correction law, shall be computed and
applied as follows:
(a) In the case of a person serving an indeterminate sentence, the
total of such allowances shall not exceed one-third of his maximum or
aggregate maximum term and the allowances shall be applied as provided
in subdivision one (b) of section 70.40;
(b) In the case of a person serving a definite sentence, the total of
such allowances shall not exceed one-third of his term or aggregate term
and the allowances shall be applied as a credit against such term.
* NB Effective September 1, 2013
5. Time served under vacated sentence. When a sentence of imprisonment
that has been imposed on a person is vacated and a new sentence is
imposed on such person for the same offense, or for an offense based
upon the same act, the new sentence shall be calculated as if it had
commenced at the time the vacated sentence commenced, and all time
credited against the vacated sentence shall be credited against the new
sentence. In any case where a vacated sentence also includes a period of
post-release supervision, all time credited against the period of
post-release supervision shall be credited against the period of
post-release supervision included with the new sentence. In the event a
period of post-release supervision is not included with the new
sentence, such period shall be credited against the new sentence.
6. Escape. When a person who is serving a sentence of imprisonment
escapes from custody, the escape shall interrupt the sentence and such
interruption shall continue until the return of the person to the
institution in which the sentence was being served or, if the sentence
was being served in an institution under the jurisdiction of the state
department of correctional services, to an institution under the
jurisdiction of that department. Any time spent by such person in
custody from the date of escape to the date the sentence resumes shall
be credited against the term or maximum term of the interrupted
sentence, provided:
(a) That such custody was due to an arrest or surrender based upon the
escape; or
(b) That such custody arose from an arrest on another charge which
culminated in a dismissal or an acquittal; or
(c) That such custody arose from an arrest on another charge which
culminated in a conviction, but in such case, if a sentence of
imprisonment was imposed, the credit allowed shall be limited to the
portion of the time spent in custody that exceeds the period, term or
maximum term of imprisonment imposed for such conviction.
* 7. Absconding from temporary release or furlough program. When a
person who is serving a sentence of imprisonment is permitted to leave
an institution to participate in a program of work release or furlough
program as such term is defined in section six hundred thirty-one of the
correction law, or in the case of an institution under the jurisdiction
of the state department of correctional services or a facility under the
jurisdiction of the state division for youth to participate in a program
of temporary release, fails to return to the institution or facility at
or before the time prescribed for his return, such failure shall
interrupt the sentence and such interruption shall continue until the
return of the person to the institution in which the sentence was being
served or, if the sentence was being served in an institution under the
jurisdiction of the state department of correctional services or a
facility under the jurisdiction of the state division for youth to an
institution under the jurisdiction of that department or a facility
under the jurisdiction of that division. Any time spent by such person
in an institution from the date of his failure to return to the date his
sentence resumes shall be credited against the term or maximum term of
the interrupted sentence, provided:
(a) That such incarceration was due to an arrest or surrender based
upon the failure to return; or
(b) That such incarceration arose from an arrest on another charge
which culminated in a dismissal or an acquittal; or
(c) That such custody arose from an arrest on another charge which
culminated in a conviction, but in such case, if a sentence of
imprisonment was imposed, the credit allowed shall be limited to the
portion of the time spent in custody that exceeds the period, term or
maximum term of imprisonment imposed for such conviction.
* NB Expires September 1, 2013
* S 70.35 Merger of certain definite and indeterminate or determinate
sentences.
The service of an indeterminate or determinate sentence of
imprisonment shall satisfy any definite sentence of imprisonment imposed
on a person for an offense committed prior to the time the indeterminate
or determinate sentence was imposed, except as provided in paragraph (b)
of subdivision five of section 70.25 of this article. A person who is
serving a definite sentence at the time an indeterminate or determinate
sentence is imposed shall be delivered to the custody of the state
department of correctional services to commence service of the
indeterminate or determinate sentence immediately unless the person is
serving a definite sentence pursuant to paragraph (b) of subdivision
five of section 70.25 of this article. In any case where the
indeterminate or determinate sentence is revoked or vacated, the person
shall receive credit against the definite sentence for each day spent in
the custody of the state department of correctional services.
* NB Effective until September 1, 2013
* S 70.35 Merger of certain definite and indeterminate sentences.
The service of an indeterminate sentence of imprisonment shall satisfy
any definite sentence of imprisonment imposed on a person for an offense
committed prior to the time the indeterminate sentence was imposed,
except as provided in paragraph (b) of subdivision five of section 70.25
of this article. A person who is serving a definite sentence at the
time an indeterminate sentence is imposed shall be delivered to the
custody of the state department of correctional services to commence
service of the indeterminate sentence immediately unless the person is
serving a definite sentence pursuant to paragraph (b) of subdivision
five of section 70.25 of this article. In any case where the
indeterminate sentence is revoked or vacated, the person shall receive
credit against the definite sentence for each day spent in the custody
of the state department of correctional services.
* NB Expiration September 1, 2013
S 70.40 Release on parole; conditional release; presumptive release.
1. Indeterminate sentence.
* (a) Release on parole shall be in the discretion of the state board
of parole, and such person shall continue service of his or her sentence
or sentences while on parole, in accordance with and subject to the
provisions of the executive law and the correction law.
(i) A person who is serving one or more than one indeterminate
sentence of imprisonment may be paroled from the institution in which he
or she is confined at any time after the expiration of the minimum or
the aggregate minimum period of the sentence or sentences or, where
applicable, the minimum or aggregate minimum period reduced by the merit
time allowance granted pursuant to paragraph (d) of subdivision one of
section eight hundred three of the correction law.
(ii) A person who is serving one or more than one determinate sentence
of imprisonment shall be ineligible for discretionary release on parole.
(iii) A person who is serving one or more than one indeterminate
sentence of imprisonment and one or more than one determinate sentence
of imprisonment, which run concurrently may be paroled at any time after
the expiration of the minimum period of imprisonment of the
indeterminate sentence or sentences, or upon the expiration of
six-sevenths of the term of imprisonment of the determinate sentence or
sentences, whichever is later.
(iv) A person who is serving one or more than one indeterminate
sentence of imprisonment and one or more than one determinate sentence
of imprisonment which run consecutively may be paroled at any time after
the expiration of the sum of the minimum or aggregate minimum period of
the indeterminate sentence or sentences and six-sevenths of the term or
aggregate term of imprisonment of the determinate sentence or sentences.
(v) Notwithstanding any other subparagraph of this paragraph, a person
may be paroled from the institution in which he or she is confined at
any time on medical parole pursuant to section two hundred fifty-nine-r
or section two hundred fifty-nine-s of the executive law or for
deportation pursuant to paragraph (d) of subdivision two of section two
hundred fifty-nine-i of the executive law or after the successful
completion of a shock incarceration program pursuant to article
twenty-six-A of the correction law.
* NB Effective until September 1, 2013
* (a) (i) A person who is serving one or more than one indeterminate
sentence of imprisonment may be paroled from the institution in which he
or she is confined at any time after the expiration of the minimum or
the aggregate minimum period of imprisonment of the sentence or
sentences or after the successful completion of a shock incarceration
program, as defined in article twenty-six-A of the correction law,
whichever is sooner. Release on parole shall be in the discretion of the
state board of parole, and such person shall continue service of his or
her sentence or sentences while on parole, in accordance with and
subject to the provisions of the executive law and the correction law.
(ii) A person who is serving one or more than one indeterminate
sentence of imprisonment may be paroled from the institution in which he
or she is confined at any time after the expiration of the minimum or
the aggregate minimum period of the sentence or sentences.
* NB Effective September 1, 2013
* (b) A person who is serving one or more than one indeterminate or
determinate sentence of imprisonment shall, if he or she so requests, be
conditionally released from the institution in which he or she is
confined when the total good behavior time allowed to him or her,
pursuant to the provisions of the correction law, is equal to the
unserved portion of his or her term, maximum term or aggregate maximum
term; provided, however, that (i) in no event shall a person serving one
or more indeterminate sentence of imprisonment and one or more
determinate sentence of imprisonment which run concurrently be
conditionally released until serving at least six-sevenths of the
determinate term of imprisonment which has the longest unexpired time to
run and (ii) in no event shall a person be conditionally released prior
to the date on which such person is first eligible for discretionary
parole release. The conditions of release, including those governing
post-release supervision, shall be such as may be imposed by the state
board of parole in accordance with the provisions of the executive law.
Every person so released shall be under the supervision of the state
department of corrections and community supervision for a period equal
to the unserved portion of the term, maximum term, aggregate maximum
term, or period of post-release supervision.
* NB Effective until September 1, 2013
* (b) A person who is serving one or more than one indeterminate
sentence of imprisonment shall, if he or she so requests, be
conditionally released from the institution in which he or she is
confined when the total good behavior time allowed to him or her,
pursuant to the provisions of the correction law, is equal to the
unserved portion of his or her maximum or aggregate maximum term. The
conditions of release, including those governing post-release
supervision, shall be such as may be imposed by the state board of
parole in accordance with the provisions of the executive law.
Every person so released shall be under the supervision of the
department of corrections and community supervision for a period equal
to the unserved portion of the maximum, aggregate maximum term, or
period of post-release supervision.
* NB Effective September 1, 2013
* (c) A person who is serving one or more than one indeterminate
sentence of imprisonment shall, if he or she so requests, be released
from the institution in which he or she is confined if granted
presumptive release pursuant to section eight hundred six of the
correction law. The conditions of release shall be such as may be
imposed by the state board of parole in accordance with the provisions
of the executive law. Every person so released shall be under the
supervision of the department of corrections and community supervision
for a period equal to the unserved portion of his or her maximum or
aggregate maximum term unless discharged in accordance with law.
* NB Repealed September 1, 2013
2. Definite sentence. A person who is serving one or more than one
definite sentence of imprisonment with a term or aggregate term in
excess of ninety days, and is eligible for release according to the
criteria set forth in paragraphs (a), (b) and (c) of subdivision one of
section two hundred seventy-three of the correction law, may, if he or
she so requests, be conditionally released from the institution in which
he or she is confined at any time after service of sixty days of that
term, exclusive of credits allowed under subdivisions four and six of
section 70.30. In computing service of sixty days, the credit allowed
for jail time under subdivision three of section 70.30 shall be
calculated as time served. Conditional release from such institution
shall be in the discretion of the parole board, or a local conditional
release commission established pursuant to article twelve of the
correction law, provided, however that where such release is by a local
conditional release commission, the person must be serving a definite
sentence with a term in excess of one hundred twenty days and may only
be released after service of ninety days of such term. In computing
service of ninety days, the credit allowed for jail time under
subdivision three of section 70.30 of this article shall be calculated
as time served. A conditional release granted under this subdivision
shall be upon such conditions as may be imposed by the parole board, in
accordance with the provisions of the executive law, or a local
conditional release commission in accordance with the provisions of the
correction law.
Conditional release shall interrupt service of the sentence or
sentences and the remaining portion of the term or aggregate term shall
be held in abeyance. Every person so released shall be under the
supervision of the department of corrections and community supervision
or a local probation department and in the custody of the local
conditional release commission in accordance with article twelve of the
correction law, for a period of one year. The local probation department
shall cause complete records to be kept of every person released to its
supervision pursuant to this subdivision. The department of corrections
and community supervision may supply to a local probation department and
the local conditional release commission custody information and records
maintained on persons under the supervision of such local probation
department to aid in the performance of its supervision
responsibilities. Compliance with the conditions of release during the
period of supervision shall satisfy the portion of the term or aggregate
term that has been held in abeyance.
3. Delinquency. (a) When a person is alleged to have violated the
terms of presumptive release or parole and the state board of parole has
declared such person to be delinquent, the declaration of delinquency
shall interrupt the person's sentence as of the date of the delinquency
and such interruption shall continue until the return of the person to
an institution under the jurisdiction of the state department of
corrections and community supervision.
(b) When a person is alleged to have violated the terms of his or her
conditional release or post-release supervision and has been declared
delinquent by the parole board or the local conditional release
commission having supervision over such person, the declaration of
delinquency shall interrupt the period of supervision or post-release
supervision as of the date of the delinquency. For a conditional
release, such interruption shall continue until the return of the person
to the institution from which he or she was released or, if he or she
was released from an institution under the jurisdiction of the state
department of corrections and community supervision, to an institution
under the jurisdiction of that department. Upon such return, the person
shall resume service of his or her sentence. For a person released to
post-release supervision, the provisions of section 70.45 shall apply.
(c) Any time spent by a person in custody from the time of delinquency
to the time service of the sentence resumes shall be credited against
the term or maximum term of the interrupted sentence, provided:
(i) that such custody was due to an arrest or surrender based upon the
delinquency; or
(ii) that such custody arose from an arrest on another charge which
culminated in a dismissal or an acquittal; or
(iii) that such custody arose from an arrest on another charge which
culminated in a conviction, but in such case, if a sentence of
imprisonment was imposed, the credit allowed shall be limited to the
portion of the time spent in custody that exceeds the period, term or
maximum term of imprisonment imposed for such conviction.
S 70.45 Determinate sentence; post-release supervision.
1. In general. When a court imposes a determinate sentence it shall in
each case state not only the term of imprisonment, but also an
additional period of post-release supervision as determined pursuant to
this article. Such period shall commence as provided in subdivision five
of this section and a violation of any condition of supervision
occurring at any time during such period of post-release supervision
shall subject the defendant to a further period of imprisonment up to
the balance of the remaining period of post-release supervision, not to
exceed five years; provided, however, that a defendant serving a term of
post-release supervision for a conviction of a felony sex offense, as
defined in section 70.80 of this article, may be subject to a further
period of imprisonment up to the balance of the remaining period of
post-release supervision. Such maximum limits shall not preclude a
longer period of further imprisonment for a violation where the
defendant is subject to indeterminate and determinate sentences.
1-a. When, following a final hearing, a time assessment has been
imposed upon a person convicted of a felony sex offense who owes three
years or more on a period of post-release supervision, imposed pursuant
to subdivision two-a of this section, such defendant, after serving
three years of the time assessment, shall be reviewed by the board of
parole and may be re-released to post-release supervision only upon a
determination by the board of parole made in accordance with subdivision
two of section two hundred fifty-nine-i of the executive law. If
re-release is not granted, the board shall specify a date not more than
twenty-four months from such determination for reconsideration, and the
procedures to be followed upon reconsideration shall be the same. If a
time assessment of less than three years is imposed upon such a
defendant, the defendant shall be released upon the expiration of such
time assessment, unless he or she is subject to further imprisonment or
confinement under any provision of law.
2. Period of post-release supervision for other than felony sex
offenses. The period of post-release supervision for a determinate
sentence, other than a determinate sentence imposed for a felony sex
offense as defined in paragraph (a) of subdivision one of section 70.80
of this article, shall be five years except that:
(a) such period shall be one year whenever a determinate sentence of
imprisonment is imposed pursuant to subdivision two of section 70.70 of
this article upon a conviction of a class D or class E felony offense;
(b) such period shall be not less than one year nor more than two
years whenever a determinate sentence of imprisonment is imposed
pursuant to subdivision two of section 70.70 of this article upon a
conviction of a class B or class C felony offense;
(c) such period shall be not less than one year nor more than two
years whenever a determinate sentence of imprisonment is imposed
pursuant to subdivision three or four of section 70.70 of this article
upon conviction of a class D or class E felony offense;
(d) such period shall be not less than one and one-half years nor more
than three years whenever a determinate sentence of imprisonment is
imposed pursuant to subdivision three or four of section 70.70 of this
article upon conviction of a class B felony or class C felony offense;
(e) such period shall be not less than one and one-half years nor more
than three years whenever a determinate sentence of imprisonment is
imposed pursuant to subdivision three of section 70.02 of this article
upon a conviction of a class D or class E violent felony offense;
(f) such period shall be not less than two and one-half years nor more
than five years whenever a determinate sentence of imprisonment is
imposed pursuant to subdivision three of section 70.02 of this article
upon a conviction of a class B or class C violent felony offense.
2-a. Periods of post-release supervision for felony sex offenses. The
period of post-release supervision for a determinate sentence imposed
for a felony sex offense as defined in paragraph (a) of subdivision one
of section 70.80 of this article shall be as follows:
(a) not less than three years nor more than ten years whenever a
determinate sentence of imprisonment is imposed pursuant to subdivision
four of section 70.80 of this article upon a conviction of a class D or
class E felony sex offense;
(b) not less than five years nor more than fifteen years whenever a
determinate sentence of imprisonment is imposed pursuant to subdivision
four of section 70.80 of this article upon a conviction of a class C
felony sex offense;
(c) not less than five years nor more than twenty years whenever a
determinate sentence of imprisonment is imposed pursuant to subdivision
four of section 70.80 of this article upon a conviction of a class B
felony sex offense;
(d) not less than three years nor more than ten years whenever a
determinate sentence is imposed pursuant to subdivision three of section
70.02 of this article upon a conviction of a class D or class E violent
felony sex offense as defined in paragraph (b) of subdivision one of
section 70.80 of this article;
(e) not less than five years nor more than fifteen years whenever a
determinate sentence is imposed pursuant to subdivision three of section
70.02 of this article upon a conviction of a class C violent felony sex
offense as defined in section 70.80 of this article;
(f) not less than five years nor more than twenty years whenever a
determinate sentence is imposed pursuant to subdivision three of section
70.02 of this article upon a conviction of a class B violent felony sex
offense as defined in section 70.80 of this article;
(g) not less than five years nor more than fifteen years whenever a
determinate sentence of imprisonment is imposed pursuant to either
section 70.04, section 70.06, or subdivision five of section 70.80 of
this article upon a conviction of a class D or class E violent or
non-violent felony sex offense as defined in section 70.80 of this
article;
(h) not less than seven years nor more than twenty years whenever a
determinate sentence of imprisonment is imposed pursuant to either
section 70.04, section 70.06, or subdivision five of section 70.80 of
this article upon a conviction of a class C violent or non-violent
felony sex offense as defined in section 70.80 of this article;
(i) such period shall be not less than ten years nor more than
twenty-five years whenever a determinate sentence of imprisonment is
imposed pursuant to either section 70.04, section 70.06, or subdivision
five of section 70.80 of this article upon a conviction of a class B
violent or non-violent felony sex offense as defined in section 70.80 of
this article; and
(j) such period shall be not less than ten years nor more than twenty
years whenever any determinate sentence of imprisonment is imposed
pursuant to subdivision four of section 70.07 of this article.
3. Conditions of post-release supervision. The board of parole shall
establish and impose conditions of post-release supervision in the same
manner and to the same extent as it may establish and impose conditions
in accordance with the executive law upon persons who are granted parole
or conditional release; provided that, notwithstanding any other
provision of law, the board of parole may impose as a condition of
post-release supervision that for a period not exceeding six months
immediately following release from the underlying term of imprisonment
the person be transferred to and participate in the programs of a
residential treatment facility as that term is defined in subdivision
six of section two of the correction law. Upon release from the
underlying term of imprisonment, the person shall be furnished with a
written statement setting forth the conditions of post-release
supervision in sufficient detail to provide for the person's conduct and
supervision.
4. Revocation of post-release supervision. An alleged violation of any
condition of post-release supervision shall be initiated, heard and
determined in accordance with the provisions of subdivisions three and
four of section two hundred fifty-nine-i of the executive law.
5. Calculation of service of period of post-release supervision. A
period or periods of post-release supervision shall be calculated and
served as follows:
(a) A period of post-release supervision shall commence upon the
person's release from imprisonment to supervision by the department of
corrections and community supervision and shall interrupt the running of
the determinate sentence or sentences of imprisonment and the
indeterminate sentence or sentences of imprisonment, if any. The
remaining portion of any maximum or aggregate maximum term shall then be
held in abeyance until the successful completion of the period of
post-release supervision or the person's return to the custody of the
department of corrections and community supervision, whichever occurs
first.
(b) Upon the completion of the period of post-release supervision, the
running of such sentence or sentences of imprisonment shall resume and
only then shall the remaining portion of any maximum or aggregate
maximum term previously held in abeyance be credited with and diminished
by such period of post-release supervision. The person shall then be
under the jurisdiction of the department of corrections and community
supervision for the remaining portion of such maximum or aggregate
maximum term.
(c) When a person is subject to two or more periods of post-release
supervision, such periods shall merge with and be satisfied by discharge
of the period of post-release supervision having the longest unexpired
time to run; provided, however, any time served upon one period of
post-release supervision shall not be credited to any other period of
post-release supervision except as provided in subdivision five of
section 70.30 of this article.
(d) When a person is alleged to have violated a condition of
post-release supervision and the department of corrections and community
supervision has declared such person to be delinquent: (i) the
declaration of delinquency shall interrupt the period of post-release
supervision; (ii) such interruption shall continue until the person is
restored to post-release supervision; (iii) if the person is restored to
post-release supervision without being returned to the department of
corrections and community supervision, any time spent in custody from
the date of delinquency until restoration to post-release supervision
shall first be credited to the maximum or aggregate maximum term of the
sentence or sentences of imprisonment, but only to the extent authorized
by subdivision three of section 70.40 of this article. Any time spent in
custody solely pursuant to such delinquency after completion of the
maximum or aggregate maximum term of the sentence or sentences of
imprisonment shall be credited to the period of post-release
supervision, if any; and (iv) if the person is ordered returned to the
department of corrections and community supervision, the person shall be
required to serve the time assessment before being re-released to
post-release supervision. In the event the balance of the remaining
period of post-release supervision is six months or less, such time
assessment may be up to six months unless a longer period is authorized
pursuant to subdivision one of this section. The time assessment shall
commence upon the issuance of a determination after a final hearing that
the person has violated one or more conditions of supervision. While
serving such assessment, the person shall not receive any good behavior
allowance pursuant to section eight hundred three of the correction law.
Any time spent in custody from the date of delinquency until return to
the department of corrections and community supervision shall first be
credited to the maximum or aggregate maximum term of the sentence or
sentences of imprisonment, but only to the extent authorized by
subdivision three of section 70.40 of this article. The maximum or
aggregate maximum term of the sentence or sentences of imprisonment
shall run while the person is serving such time assessment in the
custody of the department of corrections and community supervision. Any
time spent in custody solely pursuant to such delinquency after
completion of the maximum or aggregate maximum term of the sentence or
sentences of imprisonment shall be credited to the period of
post-release supervision, if any.
(e) Notwithstanding paragraph (d) of this subdivision, in the event a
person is sentenced to one or more additional indeterminate or
determinate term or terms of imprisonment prior to the completion of the
period of post-release supervision, such period of post-release
supervision shall be held in abeyance and the person shall be committed
to the custody of the department of corrections and community
supervision in accordance with the requirements of the prior and
additional terms of imprisonment.
(f) When a person serving a period of post-release supervision is
returned to the department of corrections and community supervision
pursuant to an additional consecutive sentence of imprisonment and
without a declaration of delinquency, such period of post-release
supervision shall be held in abeyance while the person is in the custody
of the department of corrections and community supervision. Such period
of post-release supervision shall resume running upon the person's
re-release.
S 70.70 Sentence of imprisonment for felony drug offender other than a
class A felony.
1. For the purposes of this section, the following terms shall mean:
(a) "Felony drug offender" means a defendant who stands convicted of
any felony, defined in article two hundred twenty or two hundred
twenty-one of this chapter other than a class A felony.
(b) "Second felony drug offender" means a second felony offender as
that term is defined in subdivision one of section 70.06 of this
article, who stands convicted of any felony, defined in article two
hundred twenty or two hundred twenty-one of this chapter other than a
class A felony.
(c) "Violent felony" shall have the same meaning as that term is
defined in subdivision one of section 70.02 of this article.
2. Except as provided in subdivision three or four of this section, a
sentence of imprisonment for a felony drug offender shall be a
determinate sentence as provided in paragraph (a) of this subdivision.
(a) Term of determinate sentence. Except as provided in paragraph (b)
or (c) of this subdivision, the court shall impose a determinate term of
imprisonment upon a felony drug offender which shall be imposed by the
court in whole or half years, which shall include as a part thereof a
period of post-release supervision in accordance with section 70.45 of
this article. The terms of imprisonment authorized for such determinate
sentences are as follows:
(i) for a class B felony, the term shall be at least one year and
shall not exceed nine years, except that for the class B felony of
criminal sale of a controlled substance in or near school grounds as
defined in subdivision two of section 220.44 of this chapter or on a
school bus as defined in subdivision seventeen of section 220.00 of this
chapter or criminal sale of a controlled substance to a child as defined
in section 220.48 of this chapter, the term shall be at least two years
and shall not exceed nine years;
(ii) for a class C felony, the term shall be at least one year and
shall not exceed five and one-half years;
(iii) for a class D felony, the term shall be at least one year and
shall not exceed two and one-half years; and
(iv) for a class E felony, the term shall be at least one year and
shall not exceed one and one-half years.
(b) Probation. Notwithstanding any other provision of law, the court
may sentence a defendant convicted of a class B, class C, class D or
class E felony offense defined in article two hundred twenty or two
hundred twenty-one of this chapter to probation in accordance with the
provisions of sections 60.04 and 65.00 of this chapter.
(c) Alternative definite sentence for class B, class C, class D, and
class E felonies. If the court, having regard to the nature and
circumstances of the crime and to the history and character of the
defendant, is of the opinion that a sentence of imprisonment is
necessary but that it would be unduly harsh to impose a determinate
sentence upon a person convicted of a class C, class D or class E felony
offense defined in article two hundred twenty or two hundred twenty-one
of this chapter, or a class B felony defined in article two hundred
twenty of this chapter, other than the class B felony defined in section
220.48 of this chapter, as added by a chapter of the laws of two
thousand nine the court may impose a definite sentence of imprisonment
and fix a term of one year or less.
(d) The court may direct that a determinate sentence imposed on a
defendant convicted of a class B felony, other than the class B felony
defined in section 220.48 of this chapter, pursuant to this subdivision
be executed as a sentence of parole supervision in accordance with
section 410.91 of the criminal procedure law.
3. Sentence of imprisonment for second felony drug offender.
(a) Applicability. This subdivision shall apply to a second felony
drug offender whose prior felony conviction was not a violent felony.
(b) Authorized sentence. Except as provided in paragraphs (c), (d) and
(e) of this subdivision, when the court has found pursuant to the
provisions of section 400.21 of the criminal procedure law that a
defendant is a second felony drug offender who stands convicted of a
class B, class C, class D or class E felony offense defined in article
two hundred twenty or two hundred twenty-one of this chapter the court
shall impose a determinate sentence of imprisonment. Such determinate
sentence shall include as a part thereof a period of post-release
supervision in accordance with section 70.45 of this article. The terms
of such determinate sentence shall be imposed by the court in whole or
half years as follows:
(i) for a class B felony, the term shall be at least two years and
shall not exceed twelve years;
(ii) for a class C felony, the term shall be at least one and one-half
years and shall not exceed eight years;
(iii) for a class D felony, the term shall be at least one and
one-half years and shall not exceed four years; and
(iv) for a class E felony, the term shall be at least one and one-half
years and shall not exceed two years.
(c) Probation. Notwithstanding any other provision of law, the court
may sentence a second felony drug offender convicted of a class B felony
to lifetime probation in accordance with the provisions of section 65.00
of this chapter and may sentence a second felony drug offender convicted
of a class C, class D or class E felony to probation in accordance with
the provisions of section 65.00 of this chapter.
(d) Sentence of parole supervision. In the case of a person sentenced
for a specified offense or offenses as defined in subdivision five of
section 410.91 of the criminal procedure law, who stands convicted of no
other felony offense, who has not previously been convicted of either a
violent felony offense as defined in section 70.02 of this article, a
class A felony offense or a class B felony offense, and is not under the
jurisdiction of or awaiting delivery to the department of correctional
services, the court may direct that a determinate sentence imposed
pursuant to this subdivision shall be executed as a parole supervision
sentence as defined in and pursuant to the procedures prescribed in
section 410.91 of the criminal procedure law.
(e) Alternate definite sentence for class C, class D and class E
felonies. If the court, having regard to the nature and circumstances of
the crime and to the history and character of the defendant, is of the
opinion that a sentence of imprisonment is necessary but that it would
be unduly harsh to impose a determinate sentence upon a person convicted
of a class C, class D or class E felony offense defined in article two
hundred twenty or two hundred twenty-one of this chapter, the court may
impose a definite sentence of imprisonment and fix a term of one year or
less.
4. Sentence of imprisonment for second felony drug offender previously
convicted of a violent felony.
(a) Applicability. This subdivision shall apply to a second felony
drug offender whose prior felony conviction was a violent felony.
(b) Authorized sentence. When the court has found pursuant to the
provisions of section 400.21 of the criminal procedure law that a
defendant is a second felony drug offender whose prior felony conviction
was a violent felony, who stands convicted of a class B, class C, class
D or class E felony offense defined in article two hundred twenty or two
hundred twenty-one of this chapter, the court shall impose a determinate
sentence of imprisonment. Such determinate sentence shall include as a
part thereof a period of post-release supervision in accordance with
section 70.45 of this article. The terms of such determinate sentence
shall be imposed by the court in whole or half years as follows:
(i) for a class B felony, the term shall be at least six years and
shall not exceed fifteen years;
(ii) for a class C felony, the term shall be at least three and
one-half years and shall not exceed nine years;
(iii) for a class D felony, the term shall be at least two and
one-half years and shall not exceed four and one-half years; and
(iv) for a class E felony, the term shall be at least two years and
shall not exceed two and one-half years.
S 70.71 Sentence of imprisonment for a class A felony drug offender.
1. For the purposes of this section, the following terms shall mean:
(a) "Felony drug offender" means a defendant who stands convicted of
any class A felony as defined in article two hundred twenty of this
chapter.
(b) "Second felony drug offender" means a second felony offender as
that term is defined in subdivision one of section 70.06 of this
article, who stands convicted of and is to be sentenced for any class A
felony as defined in article two hundred twenty of this chapter.
(c) "Violent felony offense" shall have the same meaning as that term
is defined in subdivision one of section 70.02 of this article.
2. Sentence of imprisonment for a first felony drug offender.
(a) Applicability. Except as provided in subdivision three, four or
five of this section, this subdivision shall apply to a person convicted
of a class A felony as defined in article two hundred twenty of this
chapter.
(b) Authorized sentence. The court shall impose a determinate term of
imprisonment which shall be imposed by the court in whole or half years
and which shall include as a part thereof a period of post-release
supervision in accordance with section 70.45 of this article. The terms
authorized for such determinate sentences are as follows:
(i) for a class A-I felony, the term shall be at least eight years and
shall not exceed twenty years;
(ii) for a class A-II felony, the term shall be at least three years
and shall not exceed ten years.
(c) Lifetime probation. Notwithstanding any other provision of law,
the court may sentence a defendant convicted of a class A-II felony
defined in article two hundred twenty of this chapter to lifetime
probation in accordance with the provisions of section 65.00 of this
chapter.
3. Sentence of imprisonment for a second felony drug offender.
(a) Applicability. This subdivision shall apply to a second felony
drug offender whose prior felony conviction or convictions did not
include one or more violent felony offenses.
(b) Authorized sentence. When the court has found pursuant to the
provisions of section 400.21 of the criminal procedure law that a
defendant is a second felony drug offender who stands convicted of a
class A felony as defined in article two hundred twenty or two hundred
twenty-one of this chapter, the court shall impose a determinate
sentence of imprisonment. Such determinate sentence shall include as a
part thereof a period of post-release supervision in accordance with
section 70.45 of this article. Such determinate sentence shall be
imposed by the court in whole or half years as follows:
(i) for a class A-I felony, the term shall be at least twelve years
and shall not exceed twenty-four years;
(ii) for a class A-II felony, the term shall be at least six years and
shall not exceed fourteen years.
(c) Lifetime probation. Notwithstanding any other provision of law,
the court may sentence a defendant convicted of a class A-II felony
defined in article two hundred twenty of this chapter to lifetime
probation in accordance with the provisions of section 65.00 of this
chapter.
4. Sentence of imprisonment for a second felony drug offender
previously convicted of a violent felony offense.
(a) Applicability. This subdivision shall apply to a second felony
drug offender whose prior felony conviction was a violent felony.
(b) Authorized sentence. When the court has found pursuant to the
provisions of section 400.21 of the criminal procedure law that a
defendant is a second felony drug offender whose prior felony conviction
was a violent felony, who stands convicted of a class A felony as
defined in article two hundred twenty or two hundred twenty-one of this
chapter, the court shall impose a determinate sentence of imprisonment.
Such determinate sentence shall include as a part thereof a period of
post-release supervision in accordance with section 70.45 of this
article. Such determinate sentence shall be imposed by the court in
whole or half years as follows:
(i) for a class A-I felony, the term shall be at least fifteen years
and shall not exceed thirty years;
(ii) for a class A-II felony, the term shall be at least eight years
and shall not exceed seventeen years.
5. Sentence of imprisonment for operating as a major trafficker.
(a) Applicability. This subdivision shall apply to a person convicted
of the class A-I felony of operating as a major trafficker as defined in
section 220.77 of this chapter.
(b) Authorized sentence. Except as provided in paragraph (c) of this
subdivision, the court shall impose an indeterminate term of
imprisonment for an A-I felony, in accordance with the provisions of
section 70.00 of this article.
(c) Alternative determinate sentence. If a defendant stands convicted
of violating section 220.77 of this chapter, and if the court, having
regard to the nature and circumstances of the crime and the history and
character of the defendant, is of the opinion that a sentence of
imprisonment is necessary but that it would be unduly harsh to impose
the indeterminate sentence for a class A-I felony specified under
section 70.00 of this article, the court may instead impose the
determinate sentence of imprisonment authorized by clause (i) of
subparagraph (b) of subdivision two of this section for a class A-I drug
felony; in such case, the reasons for the court's opinion shall be set
forth on the record.
§ 70.80 Sentences of imprisonment for conviction of a felony sex
offense.
1. Definitions.
(a) For the purposes of this section, a "felony sex offense" means a
conviction of any felony defined in article one hundred thirty of this
chapter, including a sexually motivated felony, or patronizing a
prostitute in the first degree as defined in section 230.06 of this
chapter, incest in the second degree as defined in section 255.26 of
this chapter, or incest in the first degree as defined in section 255.27
of this chapter, or a felony attempt or conspiracy to commit any of the
above.
(b) A felony sex offense shall be deemed a "violent felony sex
offense" if it is for an offense defined as a violent felony offense in
section 70.02 of this article, or for a sexually motivated felony as
defined in section 130.91 of this chapter where the specified offense is
a violent felony offense as defined in section 70.02 of this article.
(c) For the purposes of this section, a "predicate felony sex
offender" means a person who stands convicted of any felony sex offense
as defined in paragraph (a) of this subdivision, other than a class A-I
felony, after having previously been subjected to one or more predicate
felony convictions as defined in subdivision one of section 70.06 or
subdivision one of section 70.04 of this article.
(d) For purposes of this section, a "violent felony offense" is any
felony defined in subdivision one of section 70.02 of this article, and
a "non-violent felony offense" is any felony not defined therein.
2. In imposing a sentence within the authorized statutory range for
any felony sex offense, the court may consider all relevant factors set
forth in section 1.05 of this chapter, and in particular, may consider
the defendant's criminal history, if any, including any history of sex
offenses; any mental illness or mental abnormality from which the
defendant may suffer; the defendant's ability or inability to control
his sexual behavior; and, if the defendant has difficulty controlling
such behavior, the extent to which that difficulty may pose a threat to
society.
3. Except as provided by subdivision four, five, six, seven or eight
of this section, or when a defendant is being sentenced for a conviction
of the class A-II felonies of predatory sexual assault and predatory
sexual assault against a child as defined in sections 130.95 and 130.96
of this chapter, or for any class A-I sexually motivated felony for
which a life sentence or a life without parole sentence must be imposed,
a sentence imposed upon a defendant convicted of a felony sex offense
shall be a determinate sentence. The determinate sentence shall be
imposed by the court in whole or half years, and shall include as a part
thereof a period of post-release supervision in accordance with
subdivision two-a of section 70.45 of this article. Persons eligible for
sentencing under section 70.07 of this article governing second child
sexual assault felonies shall be sentenced under such section and
paragraph (j) of subdivision two-a of section 70.45 of this article.
4. (a) Sentences of imprisonment for felony sex offenses. Except as
provided in subdivision five, six, seven, or eight of this section, the
term of the determinate sentence must be fixed by the court as follows:
(i) for a class B felony, the term must be at least five years and
must not exceed twenty-five years;
(ii) for a class C felony, the term must be at least three and
one-half years and must not exceed fifteen years;
(iii) for a class D felony, the term must be at least two years and
must not exceed seven years; and
(iv) for a class E felony, the term must be at least one and one-half
years and must not exceed four years.
(b) Probation. The court may sentence a defendant convicted of a class
D or class E felony sex offense to probation in accordance with the
provisions of section 65.00 of this title.
(c) Alternative definite sentences for class D and class E felony sex
offenses. If the court, having regard to the nature and circumstances of
the crime and to the history and character of the defendant, is of the
opinion that a sentence of imprisonment is necessary but that it would
be unduly harsh to impose a determinate sentence upon a person convicted
of a class D or class E felony sex offense, the court may impose a
definite sentence of imprisonment and fix a term of one year or less.
5. Sentence of imprisonment for a predicate felony sex offender. (a)
Applicability. This subdivision shall apply to a predicate felony sex
offender who stands convicted of a non-violent felony sex offense and
who was previously convicted of one or more felonies.
(b) Non-violent predicate felony offense. When the court has found,
pursuant to the provisions of the criminal procedure law, that a person
is a predicate felony sex offender, and the person's predicate
conviction was for a non-violent felony offense, the court must impose a
determinate sentence of imprisonment, the term of which must be fixed by
the court as follows:
(i) for a class B felony, the term must be at least eight years and
must not exceed twenty-five years;
(ii) for a class C felony, the term must be at least five years and
must not exceed fifteen years;
(iii) for a class D felony, the term must be at least three years and
must not exceed seven years; and
(iv) for a class E felony, the term must be at least two years and
must not exceed four years.
(c) Violent predicate felony offense. When the court has found,
pursuant to the provisions of the criminal procedure law, that a person
is a predicate felony sex offender, and the person's predicate
conviction was for a violent felony offense, the court must impose a
determinate sentence of imprisonment, the term of which must be fixed by
the court as follows:
(i) for a class B felony, the term must be at least nine years and
must not exceed twenty-five years;
(ii) for a class C felony, the term must be at least six years and
must not exceed fifteen years;
(iii) for a class D felony, the term must be at least four years and
must not exceed seven years; and
(iv) for a class E felony, the term must be at least two and one-half
years and must not exceed four years.
(d) A defendant who stands convicted of a non-violent felony sex
offense, other than a class A-I or class A-II felony, who is adjudicated
a persistent felony offender under section 70.10 of this article, shall
be sentenced pursuant to the provisions of section 70.10 or pursuant to
this subdivision.
6. Sentence of imprisonment for a violent felony sex offense. Except
as provided in subdivisions seven and eight of this section, a defendant
who stands convicted of a violent felony sex offense must be sentenced
pursuant to the provisions of section 70.02, section 70.04, subdivision
six of section 70.06, section 70.08, or section 70.10 of this article,
as applicable.
7. Sentence for a class A felony sex offense. When a person stands
convicted of a sexually motivated felony pursuant to section 130.91 of
this chapter and the specified offense is a class A felony, the court
must sentence the defendant in accordance with the provisions of:
(a) section 60.06 of this chapter and section 70.00 of this article,
as applicable, if such offense is a class A-I felony; and
(b) section 70.00, 70.06 or 70.08 of this article, as applicable, if
such offense is a class A-II felony.
8. Whenever a juvenile offender stands convicted of a felony sex
offense, he or she must be sentenced pursuant to the provisions of
sections 60.10 and 70.05 of this chapter.
9. Every determinate sentence for a felony sex offense, as defined in
paragraph (a) of subdivision one of this section, imposed pursuant to
any section of this article, shall include as a part thereof a period of
post-release supervision in accordance with subdivision two-a of section
70.45 of this article.
§ 70.85 Transitional exception to determinate sentencing laws.
This section shall apply only to cases in which a determinate sentence
was imposed between September first, nineteen hundred ninety-eight, and
the effective date of this section, and was required by law to include a
term of post-release supervision, but the court did not explicitly state
such a term when pronouncing sentence. When such a case is again before
the court pursuant to section six hundred one-d of the correction law or
otherwise, for consideration of whether to resentence, the court may,
notwithstanding any other provision of law but only on consent of the
district attorney, re-impose the originally imposed determinate sentence
of imprisonment without any term of post-release supervision, which then
shall be deemed a lawful sentence.
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