STATE OF NEW YORK
________________________________________________________________________
2036
2023-2024 Regular Sessions
IN ASSEMBLY
January 23, 2023
___________
Introduced by M. of A. MEEKS, BURGOS, REYES, BURDICK, KELLES, EPSTEIN,
AUBRY, CRUZ, ANDERSON, JACKSON, GALLAGHER, WALKER, DARLING, MAMDANI,
MITAYNES, CARROLL, GIBBS, LUCAS, HEVESI, GONZALEZ-ROJAS, L. ROSENTHAL,
SEPTIMO, WEPRIN, COOK, RIVERA, TAYLOR, CLARK, PRETLOW, CUNNINGHAM,
TAPIA -- Multi-Sponsored by -- M. of A. SIMON -- read once and
referred to the Committee on Codes
AN ACT to amend the penal law, the criminal procedure law and the
correction law, in relation to eliminating mandatory minimums; to
amend chapter 3 of the laws of 1995 enacting the sentencing reform act
of 1995, in relation to the effectiveness thereof; to amend chapter
339 of the laws of 1972, amending the correction law and the penal law
relating to inmate work release, furlough and leave, in relation to
the effectiveness thereof; to amend chapter 435 of the laws of 1997,
amending the military law and other laws relating to various
provisions, in relation to the effectiveness thereof; to amend part E
of chapter 62 of the laws of 2003, amending the correction law and
other laws relating to various provisions, in relation to the effec-
tiveness thereof; and to repeal certain provisions of the penal law,
the criminal procedure law and the correction law relating thereto
The People of the State of New York, represented in Senate and Assem-
bly, do enact as follows:
1 Section 1. Subdivision 6 of section 1.05 of the penal law, as amended
2 by chapter 98 of the laws of 2006, is amended to read as follows:
3 6. To [insure the public] promote community safety by [preventing the
4 commission of offenses through the deterrent influence of the sentences
5 authorized,] supporting the rehabilitation of [those] individuals who
6 have been convicted, [the promotion of] their successful and productive
7 reentry and reintegration into society, and [their] confinement only
8 when required [in the interests of public protection] in accordance with
9 subdivision three of section 60.03 of this chapter.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD04611-01-3
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1 § 2. The penal law is amended by adding a new section 60.03 to read as
2 follows:
3 § 60.03 Presumption against sentences of imprisonment.
4 1. There shall be a presumption against sentences of imprisonment in
5 all cases which may be overcome only in extraordinary circumstances. The
6 term "sentence of imprisonment" means any sentence of incarceration.
7 2. For any felony, an authorized sentence includes a sentence other
8 than incarceration or a definite sentence of imprisonment. The court may
9 fix such authorized sentence for one year or less.
10 3. (a) Before imposing a sentence of imprisonment, the court shall
11 conduct a hearing to determine whether the presumption against incarcer-
12 ation has been overcome.
13 (i) In order to overcome the presumption against incarceration, the
14 prosecutor must show, by clear and convincing evidence, that there are
15 no means to address the unlawful behavior and promote community safety
16 other than imprisonment.
17 (ii) At the hearing the court shall consider oral and written argu-
18 ments, take testimony from witnesses offered by either party, and
19 consider relevant evidence to assist in making its determination,
20 including testimony and evidence admitted in prior proceedings in the
21 same case. Reliable hearsay shall be admissible at such hearing. Testi-
22 mony of witnesses relating to prior bad acts or convictions of the
23 defendant shall not be considered relevant to the court's determination.
24 (iii) The court shall detail its findings in writing, including an
25 individualized finding as to why the presumption has been overcome.
26 (iv) If the court finds that the presumption has been overcome, it
27 shall proceed to impose the minimum term of imprisonment necessary to
28 achieve the goals of sentencing.
29 (v) If a hearing is not held or the presumption has not been overcome
30 the court shall impose a non-incarceratory sentence unless the hearing
31 has been waived pursuant to subdivision five of this section.
32 (vi) A defendant shall not be required to pay for any part of the cost
33 of their sentence.
34 (vii) Upon request of the defendant, the court shall conduct the hear-
35 ing promptly after the rendering of a guilty verdict or the entry of a
36 guilty plea.
37 (b) In considering whether the presumption against incarceration has
38 been overcome and, where relevant, what the appropriate incarceratory
39 sentence should be, the court shall consider the following:
40 (i) the unique harms of imprisonment, including interruption of
41 defendant's connections to family, employment, needed public benefits,
42 healthcare, and housing;
43 (ii) the financial cost of incarceration to the state and/or locali-
44 ties;
45 (iii) any mitigating circumstances that bear on the manner in which
46 the crime was committed; and
47 (iv) the history, character and condition of the defendant, including,
48 but not limited to:
49 (1) presence of physical or emotional trauma either direct or
50 witnessed;
51 (2) need for community-based treatment to address substance use,
52 mental health, and/or physical health issues;
53 (3) history of learning disabilities, below average IQ, academic
54 difficulty, or physical disability;
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1 (4) history of familial disruption such as divorce, domestic violence,
2 sexual abuse, assault, drug or alcohol abuse, or involvement in the
3 criminal legal system;
4 (5) age;
5 (6) potential immigration consequences of sentence;
6 (7) lack of prior criminal record;
7 (8) history of employment;
8 (9) lack of stable housing, education, or financial instability;
9 (10) vulnerability to abuse in prison, including evidence of past
10 victimization; and
11 (11) the factors set forth in subdivision one of section 60.12 of this
12 article.
13 (c) The court shall not consider or draw any negative inference from a
14 defendant's silence or failure to express remorse.
15 4. If a defendant testifies at the hearing, such testimony shall not
16 be admissible in any subsequent proceeding.
17 5. A defendant may knowingly and voluntarily waive their rights under
18 this section.
19 § 3. Subdivision 1 of section 380.50 of the criminal procedure law, as
20 amended by chapter 307 of the laws of 1992, is amended to read as
21 follows:
22 1. The court shall impose sentence in accordance with the procedures
23 set forth in section 60.03 of the penal law. At the time of pronouncing
24 sentence, the court must accord the prosecutor an opportunity to make a
25 statement with respect to any matter relevant to the question of
26 sentence. The court must then accord counsel for the defendant an oppor-
27 tunity to speak on behalf of the defendant. The defendant also has the
28 right to make a statement personally in his or her own behalf, and
29 before pronouncing sentence the court must ask the defendant whether he
30 or she wishes to make such a statement.
31 § 4. Paragraph (a) of subdivision 3 of section 390.30 of the criminal
32 procedure law, as added by chapter 14 of the laws of 1985, is amended to
33 read as follows:
34 (a) The report of the pre-sentence investigation must contain an anal-
35 ysis of as much of the information gathered in the investigation as the
36 agency that conducted the investigation deems relevant to the question
37 of sentence. The report must also include any other [imformation] infor-
38 mation that the court directs to be included and the material required
39 by paragraph (b) of this subdivision which shall be considered part of
40 the report. The report shall include an analysis of the actual finan-
41 cial cost of incarceration to the state and/or localities of the poten-
42 tial sentences that may be imposed.
43 § 5. Paragraph (a) of subdivision 2 of section 390.50 of the criminal
44 procedure law, as amended by chapter 31 of the laws of 2019, is amended
45 to read as follows:
46 (a) Not less than one court day prior to sentencing, unless such time
47 requirement is waived by the parties, the pre-sentence report or memo-
48 randum shall be made available by the court for examination and for
49 copying and retention by the defendant's attorney, the defendant himself
50 or herself, [if he has no attorney,] and the prosecutor. The defendant
51 shall be given an opportunity to challenge or correct any fact or
52 conclusion in the pre-sentence report or memorandum prior to the court's
53 pronouncement of sentence and no later than at the hearing conducted in
54 accordance with subdivision three of section 60.03 of the penal law. In
55 its discretion, the court may except from disclosure a part or parts of
56 the report or memoranda which are not relevant to a proper sentence, or
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1 a diagnostic opinion which might seriously disrupt a program of rehabil-
2 itation, or sources of information which have been obtained on a promise
3 of confidentiality, or any other portion thereof, disclosure of which
4 would not be in the interest of justice. In all cases where a part or
5 parts of the report or memoranda are not disclosed, the court shall
6 state for the record that a part or parts of the report or memoranda
7 have been excepted and the reasons for its action. The action of the
8 court excepting information from disclosure shall be subject to appel-
9 late review. The pre-sentence report shall be made available by the
10 court for examination and copying in connection with any appeal in the
11 case, including an appeal under this subdivision. Upon written request,
12 the court shall make a copy of the presentence report, other than a part
13 or parts of the report redacted by the court pursuant to this paragraph,
14 available to the defendant for use before the parole board for release
15 consideration or an appeal of a parole board determination or an appli-
16 cation for resentencing pursuant to section 440.46 or 440.47 of this
17 [chapter. In his or her written request to the court the defendant shall
18 affirm that he or she anticipates an appearance before the parole board
19 or intends to file an administrative appeal of a parole board determi-
20 nation or meets the eligibility criteria for and intends to file a
21 motion for resentencing pursuant to 440.46 of this chapter or has
22 received notification from the court which received his or her request
23 to apply for resentencing pursuant to section 440.47 of this chapter
24 confirming that he or she is eligible to submit an application for
25 resentencing pursuant to section 440.47 of this chapter] part. The
26 court shall respond to the defendant's written request within twenty
27 days from receipt of the defendant's written request.
28 § 6. Section 70.00 of the penal law, the section heading as amended by
29 chapter 277 of the laws of 1973, subdivision 1 as amended by chapter 7
30 of the laws of 2007, subdivisions 2, 3 and 4 as amended by chapter 738
31 of the laws of 2004, paragraph (a) of subdivision 3 as amended by chap-
32 ter 107 and paragraph (b) of subdivision 3 as amended by chapter 746 of
33 the laws of 2006, subdivision 5 as amended by section 40-a of part WWW
34 of chapter 59 of the laws of 2017, and subdivision 6 as amended by chap-
35 ter 1 of the laws of 1998, is amended to read as follows:
36 § 70.00 Sentence of imprisonment for felony.
37 1. Indeterminate sentence. Except as provided in subdivisions three
38 and four[, five and six] of this section or section 70.80 of this arti-
39 cle, [a] the term of sentence [of imprisonment] for a felony, other than
40 a felony defined in article two hundred twenty [or two hundred twenty-
41 one] of this chapter, shall be fixed by the court in accordance with
42 section 60.03 of this title. If a court finds that a sentence of impri-
43 sonment of more than one year is the minimum term of imprisonment neces-
44 sary to achieve the goals of sentencing, the court shall impose an inde-
45 terminate sentence. When such a sentence is imposed, the court shall
46 impose a maximum term in accordance with the provisions of subdivision
47 two of this section [and the minimum period of imprisonment shall be as
48 provided in subdivision three of this section]. The minimum period
49 shall be fixed by the court and specified in the sentence and shall be
50 not less than one year nor more than one-third of the maximum term
51 imposed, or the court may impose a definite sentence of imprisonment and
52 fix a term of one year or less.
53 2. Maximum term of sentence. The maximum term of an indeterminate
54 sentence shall be at least three years and the term shall be fixed as
55 follows:
56 (a) For a class A felony, the term shall be life imprisonment;
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1 (b) For a class B felony, the term shall be fixed by the court, and
2 shall not exceed twenty-five years;
3 (c) For a class C felony, the term shall be fixed by the court, and
4 shall not exceed fifteen years;
5 (d) For a class D felony, the term shall be fixed by the court, and
6 shall not exceed seven years; and
7 (e) For a class E felony, the term shall be fixed by the court, and
8 shall not exceed four years.
9 3. [Minimum period of imprisonment. The minimum period of imprisonment
10 under an indeterminate sentence shall be at least one year and shall be
11 fixed as follows:
12 (a) In the case of a class A felony, the minimum period shall be fixed
13 by the court and specified in the sentence.
14 (i) For a class A-I felony, such minimum period shall not be less than
15 fifteen years nor more than twenty-five years; provided, however, that
16 (A) where a sentence, other than a sentence of death or life imprison-
17 ment without parole, is imposed upon a defendant convicted of murder in
18 the first degree as defined in section 125.27 of this chapter such mini-
19 mum period shall be not less than twenty years nor more than twenty-five
20 years, and, (B) where a sentence is imposed upon a defendant convicted
21 of murder in the second degree as defined in subdivision five of section
22 125.25 of this chapter or convicted of aggravated murder as defined in
23 section 125.26 of this chapter, the sentence shall be life imprisonment
24 without parole, and, (C) where a sentence is imposed upon a defendant
25 convicted of attempted murder in the first degree as defined in article
26 one hundred ten of this chapter and subparagraph (i), (ii) or (iii) of
27 paragraph (a) of subdivision one and paragraph (b) of subdivision one of
28 section 125.27 of this chapter or attempted aggravated murder as defined
29 in article one hundred ten of this chapter and section 125.26 of this
30 chapter such minimum period shall be not less than twenty years nor more
31 than forty years.
32 (ii) For a class A-II felony, such minimum period shall not be less
33 than three years nor more than eight years four months, except that for
34 the class A-II felony of predatory sexual assault as defined in section
35 130.95 of this chapter or the class A-II felony of predatory sexual
36 assault against a child as defined in section 130.96 of this chapter,
37 such minimum period shall be not less than ten years nor more than twen-
38 ty-five years.
39 (b) For any other felony, the minimum period shall be fixed by the
40 court and specified in the sentence and shall be not less than one year
41 nor more than one-third of the maximum term imposed.
42 4. Alternative definite sentence for class D and E felonies. When a
43 person, other than a second or persistent felony offender, is sentenced
44 for a class D or class E felony, and the court, having regard to the
45 nature and circumstances of the crime and to the history and character
46 of the defendant, is of the opinion that a sentence of imprisonment is
47 necessary but that it would be unduly harsh to impose an indeterminate
48 or determinate sentence, the court may impose a definite sentence of
49 imprisonment and fix a term of one year or less.
50 5.] Life imprisonment without parole. Notwithstanding any other
51 provision of law, a defendant sentenced to life imprisonment without
52 parole shall not be or become eligible for parole or conditional
53 release. For purposes of commitment and custody, other than parole and
54 conditional release, such sentence shall be deemed to be an indetermi-
55 nate sentence. A defendant may be sentenced to life imprisonment without
56 parole upon conviction for the crime of murder in the first degree as
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1 defined in section 125.27 of this chapter and in accordance with the
2 procedures provided by law for imposing a sentence for such crime. A
3 defendant who was eighteen years of age or older at the time of the
4 commission of the crime must be sentenced to life imprisonment without
5 parole upon conviction for the crime of terrorism as defined in section
6 490.25 of this chapter, where the specified offense the defendant
7 committed is a class A-I felony; the crime of criminal possession of a
8 chemical weapon or biological weapon in the first degree as defined in
9 section 490.45 of this chapter; or the crime of criminal use of a chemi-
10 cal weapon or biological weapon in the first degree as defined in
11 section 490.55 of this chapter; provided, however, that nothing in this
12 subdivision shall preclude or prevent a sentence of death when the
13 defendant is also convicted of the crime of murder in the first degree
14 as defined in section 125.27 of this chapter. A defendant who was seven-
15 teen years of age or younger at the time of the commission of the crime
16 may be sentenced, in accordance with law, to the applicable indetermi-
17 nate sentence with a maximum term of life imprisonment. A defendant must
18 be sentenced to life imprisonment without parole upon conviction for the
19 crime of murder in the second degree as defined in subdivision five of
20 section 125.25 of this chapter or for the crime of aggravated murder as
21 defined in subdivision one of section 125.26 of this chapter. A defend-
22 ant may be sentenced to life imprisonment without parole upon conviction
23 for the crime of aggravated murder as defined in subdivision two of
24 section 125.26 of this chapter.
25 [6.] 4. Determinate sentence. [Except as provided in subdivision four
26 of this section and subdivisions two and four of section 70.02, when]
27 When a person is sentenced as a violent felony offender pursuant to
28 section 70.02 [or as a second violent felony offender pursuant to
29 section 70.04 or as a second felony offender on a conviction for a
30 violent felony offense pursuant to section 70.06] of this article, the
31 sentence shall be fixed by the court in accordance with section 60.03 of
32 this title. If a court finds that a sentence of imprisonment of more
33 than one year is the minimum term of imprisonment necessary to achieve
34 the goals of sentencing, the court must impose a determinate sentence of
35 imprisonment in accordance with the provisions of such [sections and
36 such sentence shall include, as a part thereof, a period of post-release
37 supervision in accordance with section 70.45] section.
38 § 7. Subdivision d of section 74 of chapter 3 of the laws of 1995,
39 enacting the sentencing reform act of 1995, as amended by section 19 of
40 part A of chapter 55 of the laws of 2021, is amended to read as follows:
41 d. Sections one-a [through], one-b, two, four through eight, eleven,
42 twelve, twenty, twenty-four through twenty-eight, thirty through thir-
43 ty-nine, forty-two and forty-four of this act shall be deemed repealed
44 on September 1, 2023;
45 § 8. Subdivisions 2 and 4 of section 70.02 of the penal law are
46 REPEALED and subdivision 3, as amended by chapter 765 of the laws of
47 2005, paragraphs (b) and (c) as amended by chapter 1 of the laws of
48 2013, is amended to read as follows:
49 [3.] 2. Term of sentence. The term [of a determinate sentence] for a
50 violent felony offense must be fixed by the court in accordance with
51 section 60.03 of this title. If a court finds that a sentence of impri-
52 sonment of more than one year is the minimum term of imprisonment neces-
53 sary to achieve the goals of sentencing, the court shall impose a deter-
54 minate sentence as follows:
55 (a) For a class B felony, the term must be at least [five years] one
56 year and must not exceed twenty-five years, provided, however, that the
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1 term [must be]: (i) [at least ten years and] must not exceed thirty
2 years where the sentence is for the crime of aggravated assault upon a
3 police officer or peace officer as defined in section 120.11 of this
4 chapter; and (ii) [at least ten years and] must not exceed thirty years
5 where the sentence is for the crime of aggravated manslaughter in the
6 first degree as defined in section 125.22 of this chapter;
7 (b) For a class C felony, the term must be at least [three and one-
8 half years] one year and must not exceed fifteen years, provided, howev-
9 er, that the term [must be]: (i) [at least seven years and] must not
10 exceed twenty years where the sentence is for the crime of aggravated
11 manslaughter in the second degree as defined in section 125.21 of this
12 chapter; (ii) [at least seven years and] must not exceed twenty years
13 where the sentence is for the crime of attempted aggravated assault upon
14 a police officer or peace officer as defined in section 120.11 of this
15 chapter; (iii) [at least three and one-half years and] must not exceed
16 twenty years where the sentence is for the crime of aggravated criminal-
17 ly negligent homicide as defined in section 125.11 of this chapter; and
18 (iv) [at least five years and] must not exceed fifteen years where the
19 sentence is imposed for the crime of aggravated criminal possession of a
20 weapon as defined in section 265.19 of this chapter;
21 (c) For a class D felony, the term must be at least [two years] one
22 year and must not exceed seven years, provided, however, that the term
23 [must be]: (i) [at least two years and] must not exceed eight years
24 where the sentence is for the crime of menacing a police officer or
25 peace officer as defined in section 120.18 of this chapter; and (ii) [at
26 least three and one-half years and] must not exceed seven years where
27 the sentence is imposed for the crime of criminal possession of a weapon
28 in the third degree as defined in subdivision ten of section 265.02 of
29 this chapter; and
30 (d) For a class E felony, the term must be at least one [and one-half
31 years] year and must not exceed four years.
32 § 9. Sections 60.06, 60.07, 60.11-a, 70.04, 70.06, 70.07, 70.08 and
33 70.10 of the penal law are REPEALED.
34 § 10. Subdivisions 1 and 3 of section 70.05 of the penal law, subdivi-
35 sion 1 as amended by chapter 615 of the laws of 1984, subdivision 3 as
36 added by chapter 481 of the laws of 1978, paragraph (a) of subdivision 3
37 as amended by chapter 174 of the laws of 2003 and paragraph (c) of
38 subdivision 3 as amended by chapter 435 of the laws of 1998, are amended
39 to read as follows:
40 1. Indeterminate sentence. A sentence of imprisonment for a felony
41 committed by a juvenile offender shall be fixed by the court in accord-
42 ance with section 60.03 of this title. If a court finds that a sentence
43 of imprisonment of more than one year is the minimum term of imprison-
44 ment necessary to achieve the goals of sentencing, the court shall
45 impose an indeterminate sentence. When such a sentence is imposed, the
46 court shall impose a maximum term in accordance with the provisions of
47 subdivision two of this section and the minimum period of imprisonment
48 shall be as provided in subdivision three of this section. The court
49 shall further provide that where a juvenile offender is under placement
50 pursuant to article three of the family court act, any sentence imposed
51 pursuant to this section which is to be served consecutively with such
52 placement shall be served in a facility designated pursuant to subdivi-
53 sion four of section 70.20 of this article prior to service of the
54 placement in any previously designated facility.
55 3. Minimum period of imprisonment. The minimum period of imprisonment
56 under an indeterminate sentence for a juvenile offender shall be not
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1 less than one year nor more than one-third of the maximum term imposed
2 and specified in the sentence as follows:
3 (a) For the class A felony of murder in the second degree, the minimum
4 period of imprisonment shall be fixed by the court and shall [be not
5 less than five years but shall] not exceed nine years provided, however,
6 that where the sentence is for an offense specified in subdivision one
7 or two of section 125.25 of this chapter and the defendant was fourteen
8 or fifteen years old at the time of such offense, the minimum period of
9 imprisonment shall [be not less than seven and one-half years but shall]
10 not exceed fifteen years;
11 (b) For the class A felony of arson in the first degree, or for the
12 class A felony of kidnapping in the first degree, the minimum period of
13 imprisonment shall be fixed by the court and shall [be not less than
14 four years but shall] not exceed six years; and
15 (c) For a class B, C or D felony, the minimum period of imprisonment
16 shall be fixed by the court at one-third of the maximum term imposed.
17 § 11. Subdivision 1 of section 70.15 of the penal law, as amended by
18 section 1 of part OO of chapter 55 of the laws of 2019, is amended to
19 read as follows:
20 1. Class A misdemeanor. A sentence of imprisonment for a class A
21 misdemeanor shall be a definite sentence. When such a sentence is
22 imposed the term shall be fixed by the court, in accordance with section
23 60.03 of this title, and shall not exceed three hundred sixty-four days.
24 § 12. Paragraph (a) of subdivision 1 of section 70.20 of the penal
25 law, as amended by section 124 of subpart B of part C of chapter 62 of
26 the laws of 2011, is amended to read as follows:
27 (a) Indeterminate or determinate sentence. Except as provided in
28 subdivision four of this section, when an indeterminate or determinate
29 sentence of imprisonment is imposed, the court shall commit the defend-
30 ant to the custody of the state department of corrections and community
31 supervision for the term of his or her sentence and until released in
32 accordance with the law[; provided, however, that a defendant sentenced
33 pursuant to subdivision seven of section 70.06 shall be committed to the
34 custody of the state department of corrections and community supervision
35 for immediate delivery to a reception center operated by the depart-
36 ment].
37 § 13. Section 70.25 of the penal law, subdivision 1 as amended and
38 subdivision 5 as added by chapter 372 of the laws of 1981, paragraph (a)
39 of subdivision 1, subdivision 2-b, and paragraphs (a) and (b) of subdi-
40 vision 5 as amended by chapter 3 of the laws of 1995, subdivision 2 as
41 amended by chapter 56 of the laws of 1984, subdivision 2-a as amended by
42 chapter 495 of the laws of 2009, subdivisions 2-c and 2-d as added by
43 chapter 795 of the laws of 1986, subdivision 2-e as added by chapter 122
44 of the laws of 1996, subdivision 2-f as added by chapter 1 of the laws
45 of 2000, subdivision 2-g as added by chapter 394 of the laws of 2005 and
46 subdivision 4 as added by chapter 782 of the laws of 1975, is amended to
47 read as follows:
48 § 70.25 Concurrent and consecutive terms of imprisonment.
49 1. Except as provided in [subdivisions] subdivision two[, two-a and
50 five] of this section, when multiple sentences of imprisonment are
51 imposed on a person at the same time, or when a person who is subject to
52 any undischarged term of imprisonment imposed at a previous time by a
53 court of this state is sentenced to an additional term of imprisonment,
54 the sentence or sentences imposed by the court shall run either concur-
55 rently or consecutively with respect to each other and the undischarged
56 term or terms in such manner as the court directs at the time of
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1 sentence. If the court does not specify the manner in which a sentence
2 imposed by it is to run, the sentence shall run as follows:
3 (a) An indeterminate or determinate sentence shall run concurrently
4 with all other terms; and
5 (b) A definite sentence shall run concurrently with [any sentence
6 imposed at the same time and shall be consecutive to any other term] all
7 other terms.
8 2. When more than one sentence of imprisonment is imposed on a person
9 for two or more offenses committed through a single act or omission, or
10 through an act or omission which in itself constituted one of the
11 offenses and also was a material element of the other, the sentences,
12 except if one or more of such sentences is for a violation of section
13 270.20 of this chapter, must run concurrently.
14 [2-a. When an indeterminate or determinate sentence of imprisonment is
15 imposed pursuant to section 70.04, 70.06, 70.07, 70.08, 70.10, subdivi-
16 sion three or four of section 70.70, subdivision three or four of
17 section 70.71 or subdivision five of section 70.80 of this article, or
18 is imposed for a class A-I felony pursuant to section 70.00 of this
19 article, and such person is subject to an undischarged indeterminate or
20 determinate sentence of imprisonment imposed prior to the date on which
21 the present crime was committed, the court must impose a sentence to run
22 consecutively with respect to such undischarged sentence.
23 2-b. When a person is convicted of a violent felony offense committed
24 after arraignment and while released on recognizance or bail, but
25 committed prior to the imposition of sentence on a pending felony
26 charge, and if an indeterminate or determinate sentence of imprisonment
27 is imposed in each case, such sentences shall run consecutively.
28 Provided, however, that the court may, in the interest of justice, order
29 a sentence to run concurrently in a situation where consecutive
30 sentences are required by this subdivision if it finds either mitigating
31 circumstances that bear directly upon the manner in which the crime was
32 committed or, where the defendant was not the sole participant in the
33 crime, the defendant's participation was relatively minor although not
34 so minor as to constitute a defense to the prosecution. The defendant
35 and the district attorney shall have an opportunity to present relevant
36 information to assist the court in making this determination and the
37 court may, in its discretion, conduct a hearing with respect to any
38 issue bearing upon such determination. If the court determines that
39 consecutive sentences should not be ordered, it shall make a statement
40 on the record of the facts and circumstances upon which such determi-
41 nation is based.
42 2-c. When a person is convicted of bail jumping in the second degree
43 as defined in section 215.56 or bail jumping in the first degree as
44 defined in section 215.57 committed after arraignment and while released
45 on recognizance or bail in connection with a pending indictment or
46 information charging one or more felonies, at least one of which he is
47 subsequently convicted, and if an indeterminate sentence of imprisonment
48 is imposed in each case, such sentences shall run consecutively.
49 Provided, however, that the court may, in the interest of justice, order
50 a sentence to run concurrently in a situation where consecutive
51 sentences are required by this subdivision if it finds mitigating
52 circumstances that bear directly upon the manner in which the crime was
53 committed. The defendant and the district attorney shall have an oppor-
54 tunity to present relevant information to assist the court in making
55 this determination and the court may, in its discretion, conduct a hear-
56 ing with respect to any issue bearing upon such determination. If the
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1 court determines that consecutive sentences should not be ordered, it
2 shall make a statement on the record of the facts and circumstances upon
3 which such determination is based.
4 2-d. When a person is convicted of escape in the second degree as
5 defined in section 205.10 or escape in the first degree as defined in
6 section 205.15 committed after issuance of a securing order, as defined
7 in subdivision five of section 500.10 of the criminal procedure law, in
8 connection with a pending indictment or information charging one or more
9 felonies, at least one of which he is subsequently convicted, and if an
10 indeterminate sentence of imprisonment is imposed in each case, such
11 sentences shall run consecutively. Provided, however, that the court
12 may, in the interest of justice, order a sentence to run concurrently in
13 a situation where consecutive sentences are required by this subdivision
14 if it finds mitigating circumstances that bear directly upon the manner
15 in which the crime was committed. The defendant and the district attor-
16 ney shall have an opportunity to present relevant information to assist
17 the court in making this determination and the court may, in its
18 discretion, conduct a hearing with respect to any issue bearing upon
19 such determination. If the court determines that consecutive sentences
20 should not be ordered, it shall make a statement on the record of the
21 facts and circumstances upon which such determination is based.
22 2-e.] 2-a. Whenever a person is convicted of course of sexual conduct
23 against a child in the first degree as defined in section 130.75 or
24 course of sexual conduct against a child in the second degree as defined
25 in section 130.80 and any other crime under article one hundred thirty
26 of this chapter committed against the same child and within the period
27 charged under section 130.75 or 130.80 of this chapter, the sentences
28 must run concurrently.
29 [2-f.] 2-b. Whenever a person is convicted of facilitating a sex
30 offense with a controlled substance as defined in section 130.90 of this
31 chapter, the sentence imposed by the court for such offense may be
32 ordered to run consecutively to any sentence imposed upon conviction of
33 an offense defined in article one hundred thirty of this chapter arising
34 from the same criminal transaction.
35 [2-g.] 2-c. Whenever a person is convicted of unlawful manufacture of
36 methamphetamine in the third degree as defined in section 220.73 of this
37 chapter, unlawful manufacture of methamphetamine in the second degree as
38 defined in section 220.74 of this chapter, or unlawful manufacture of
39 methamphetamine in the first degree as defined in section 220.75 of this
40 chapter, or any attempt to commit any of such offenses, and such person
41 is also convicted, with respect to such unlawful methamphetamine labora-
42 tory, of unlawful disposal of methamphetamine laboratory material as
43 defined in section 220.76 of this chapter, the sentences must run
44 concurrently.
45 3. Where consecutive definite sentences of imprisonment are not
46 prohibited by subdivision two of this section and are imposed on a
47 person for offenses which were committed as parts of a single incident
48 or transaction, the aggregate of the terms of such sentences shall not
49 exceed one year.
50 4. When a person, who is subject to any undischarged term of imprison-
51 ment imposed at a previous time by a court of another jurisdiction, is
52 sentenced to an additional term or terms of imprisonment by a court of
53 this state, the sentence or sentences imposed by the court of this
54 state, subject to the provisions of subdivisions one, two and three of
55 this section, shall run either concurrently or consecutively with
56 respect to such undischarged term in such manner as the court directs at
A. 2036 11
1 the time of sentence. If the court of this state does not specify the
2 manner in which a sentence imposed by it is to run, the sentence or
3 sentences shall run [consecutively] concurrently.
4 [5. (a) Except as provided in paragraph (c) of this subdivision, when
5 a person is convicted of assault in the second degree, as defined in
6 subdivision seven of section 120.05 of this chapter, any definite, inde-
7 terminate or determinate term of imprisonment which may be imposed as a
8 sentence upon such conviction shall run consecutively to any undisc-
9 harged term of imprisonment to which the defendant was subject and for
10 which he was confined at the time of the assault.
11 (b) Except as provided in paragraph (c) of this subdivision, when a
12 person is convicted of assault in the second degree, as defined in
13 subdivision seven of section 120.05 of this chapter, any definite, inde-
14 terminate or determinate term of imprisonment which may be imposed as a
15 sentence upon such conviction shall run consecutively to any term of
16 imprisonment which was previously imposed or which may be prospectively
17 imposed where the person was confined within a detention facility at the
18 time of the assault upon a charge which culminated in such sentence of
19 imprisonment.
20 (c) Notwithstanding the provisions of paragraphs (a) and (b) of this
21 subdivision, a term of imprisonment imposed upon a conviction to assault
22 in the second degree as defined in subdivision seven of section 120.05
23 of this chapter may run concurrently to any other term of imprisonment,
24 in the interest of justice, provided the court sets forth in the record
25 its reasons for imposing a concurrent sentence. Nothing in this section
26 shall require the imposition of a sentence of imprisonment where it is
27 not otherwise required by law.]
28 § 14. Paragraphs (a) and (f) of subdivision 1 of section 70.30 of the
29 penal law, paragraph (a) as amended by chapter 3 of the laws of 1995 and
30 paragraph (f) as added by chapter 481 of the laws of 1978 and as relet-
31 tered by chapter 3 of the laws of 1995, are amended to read as follows:
32 (a) If the sentences run concurrently, the time served under imprison-
33 ment on any of the sentences shall be credited against the minimum and
34 maximum periods of all the concurrent indeterminate sentences and
35 against the terms of all the concurrent determinate sentences. The maxi-
36 mum term or terms of the indeterminate sentences and the term or terms
37 of the determinate sentences shall merge in and be satisfied by
38 discharge of the term which has the longest unexpired time to run;
39 (f) The aggregate maximum term of consecutive sentences imposed upon a
40 juvenile offender for two or more crimes, not including a class A felo-
41 ny, committed before he or she has reached the age of sixteen, shall, if
42 it exceeds ten years, be deemed to be ten years. If consecutive indeter-
43 minate sentences imposed upon a juvenile offender include a sentence for
44 the class A felony of arson in the first degree or for the class A felo-
45 ny of kidnapping in the first degree, then the aggregate maximum term of
46 such sentences shall, if it exceeds fifteen years, be deemed to be
47 fifteen years. Where the aggregate maximum term of two or more consec-
48 utive sentences is reduced by a calculation made pursuant to this para-
49 graph, the aggregate minimum period of imprisonment, if it exceeds
50 [one-half] one-third of the aggregate maximum term as so reduced, shall
51 be deemed to be [one-half] one-third of the aggregate maximum term as so
52 reduced.
53 § 15. Section 10 of chapter 339 of the laws of 1972, amending the
54 correction law and the penal law relating to inmate work release,
55 furlough and leave, as amended by section 6 of part A of chapter 55 of
56 the laws of 2021, is amended to read as follows:
A. 2036 12
1 § 10. This act shall take effect 30 days after it shall have become a
2 law and sections one through eight shall remain in effect until Septem-
3 ber 1, 2023, and provided further that the commissioner of correctional
4 services shall report each January first, and July first, to the chair-
5 man of the senate crime victims, crime and correction committee, the
6 senate codes committee, the assembly correction committee, and the
7 assembly codes committee, the number of eligible inmates in each facili-
8 ty under the custody and control of the commissioner who have applied
9 for participation in any program offered under the provisions of work
10 release, furlough, or leave, and the number of such inmates who have
11 been approved for participation.
12 § 16. Section 70.35 of the penal law, as amended by section 127-a of
13 subpart B of part C of chapter 62 of the laws of 2011, is amended to
14 read as follows:
15 § 70.35 Merger of certain definite and indeterminate or determinate
16 sentences.
17 The service of an indeterminate or determinate sentence of imprison-
18 ment shall satisfy any definite sentence of imprisonment imposed on a
19 person for an offense committed prior to the time the indeterminate or
20 determinate sentence was imposed, [except as provided in paragraph (b)
21 of subdivision five of section 70.25 of this article]. A person who is
22 serving a definite sentence at the time an indeterminate or determinate
23 sentence is imposed shall be delivered to the custody of the state
24 department of corrections and community supervision to commence service
25 of the indeterminate or determinate sentence immediately [unless the
26 person is serving a definite sentence pursuant to paragraph (b) of
27 subdivision five of section 70.25 of this article]. In any case where
28 the indeterminate or determinate sentence is revoked or vacated, the
29 person shall receive credit against the definite sentence for each day
30 spent in the custody of the state department of corrections and communi-
31 ty supervision.
32 § 17. Paragraph a of subdivision 6 of section 76 of chapter 435 of the
33 laws of 1997, amending the military law and other laws relating to vari-
34 ous provisions, as amended by section 15 of part A of chapter 55 of the
35 laws of 2021, is amended to read as follows:
36 a. sections forty-three through [forty-five] forty-four of this act
37 shall expire and be deemed repealed on September 1, 2023;
38 § 18. Subdivisions (f), (g) and (h) of section 15 of part E of chapter
39 62 of the laws of 2003, amending the correction law and other laws
40 relating to various provisions, are amended to read as follows:
41 (f) the amendments made to subdivision 2 of section 259-c of the exec-
42 utive law made by section seven of this act shall not affect the expira-
43 tion of such subdivision and shall be deemed to expire therewith; and
44 (g) the amendments to paragraph (a) of subdivision 2 and subparagraph
45 (i) of paragraph (a) and paragraph (d) of subdivision 3 of section 259-i
46 of the executive law made by section eleven of this act shall not affect
47 the expiration of such paragraph (a) of subdivision 2, such subparagraph
48 (i) of paragraph (a) and such paragraph (d) of subdivision 3 and shall
49 be deemed to expire therewith[; and
50 (h) paragraph (c) of subdivision 1 of section 70.40 of the penal law
51 as added by section thirteen of this act shall expire and be deemed
52 repealed on the same date as subdivision 6 of section 76 of chapter 435
53 of the laws of 1997, as amended].
54 § 19. Subdivisions 1, 2, 2-a and 3 of section 70.45 of the penal law,
55 subdivision 1 as amended by chapter 141 of the laws of 2008, subdivision
56 2 as amended and subdivision 2-a as added by chapter 7 of the laws of
A. 2036 13
1 2007, paragraphs (a), (b), (c), (d), (e) and (f) of subdivision 2 as
2 amended by chapter 31 of the laws of 2019, and subdivision 3 as added by
3 chapter 1 of the laws of 1998, are amended to read as follows:
4 1. In general. When a court imposes a determinate sentence it shall in
5 each case state not only the term of imprisonment, but also an addi-
6 tional period of post-release supervision as determined pursuant to this
7 article. Such period shall commence as provided in subdivision five of
8 this section and a violation of any condition of supervision occurring
9 at any time during such period of post-release supervision shall subject
10 the defendant to a further period of imprisonment up to the balance of
11 the remaining period of post-release supervision, not to exceed five
12 years; provided, however, that a defendant serving a term of post-re-
13 lease supervision for a conviction of a felony sex offense, as defined
14 in section 70.80 of this article, may be subject to a further period of
15 imprisonment up to the balance of the remaining period of post-release
16 supervision. Notwithstanding any other provision of law to the contra-
17 ry, no person serving a period of post-release supervision shall be
18 confined in a correctional facility, including a residential treatment
19 facility as defined in subdivision six of section two of the correction
20 law, except following a revocation hearing as set forth in section two
21 hundred fifty-nine-i of the executive law. Such maximum limits shall not
22 preclude a longer period of further imprisonment for a violation where
23 the defendant is subject to indeterminate and determinate sentences.
24 2. Period of post-release supervision for other than felony sex
25 offenses. The period of post-release supervision for a determinate
26 sentence, other than a determinate sentence imposed for a felony sex
27 offense as defined in paragraph (a) of subdivision one of section 70.80
28 of this article, shall [be] not exceed five years except that:
29 (a) such period shall [be] not exceed one year whenever a determinate
30 sentence of imprisonment is imposed pursuant to subdivision two of
31 section 70.70 of this article or subdivision nine of section 60.12 of
32 this title upon a conviction of a class D or class E felony offense;
33 (b) such period shall be not [less than one year nor] more than two
34 years whenever a determinate sentence of imprisonment is imposed pursu-
35 ant to subdivision two of section 70.70 of this article or subdivision
36 nine of section 60.12 of this title upon a conviction of a class B or
37 class C felony offense;
38 (c) such period shall be not [less than one year nor] more than two
39 years whenever a determinate sentence of imprisonment is imposed pursu-
40 ant to [subdivision three or four of section 70.70 of this article upon
41 conviction of a class D or class E felony offense or] subdivision ten of
42 section 60.12 of this title;
43 (d) such period shall be not [less than one and one-half years nor]
44 more than three years whenever a determinate sentence of imprisonment is
45 imposed pursuant to [subdivision three or four of section 70.70 of this
46 article upon conviction of a class B felony or class C felony offense
47 or] subdivision eleven of section 60.12 of this title;
48 (e) such period shall be not [less than one and one-half years nor]
49 more than three years whenever a determinate sentence of imprisonment is
50 imposed pursuant to subdivision [three] two of section 70.02 of this
51 article or subdivision two or eight of section 60.12 of this title upon
52 a conviction of a class D or class E violent felony offense or subdivi-
53 sion four, five, six, or seven of section 60.12 of this title;
54 (f) such period shall be not [less than two and one-half years nor]
55 more than five years whenever a determinate sentence of imprisonment is
56 imposed pursuant to subdivision [three] two of section 70.02 of this
A. 2036 14
1 article or subdivision two or eight of section 60.12 of this title upon
2 a conviction of a class B or class C violent felony offense.
3 2-a. Periods of post-release supervision for felony sex offenses. The
4 period of post-release supervision for a determinate sentence imposed
5 for a felony sex offense as defined in paragraph (a) of subdivision one
6 of section 70.80 of this article shall be as follows:
7 (a) not [less than three years nor] more than ten years whenever a
8 determinate sentence of imprisonment is imposed pursuant to subdivision
9 four of section 70.80 of this article upon a conviction of a class D or
10 class E felony sex offense;
11 (b) not [less than five years nor] more than fifteen years whenever a
12 determinate sentence of imprisonment is imposed pursuant to subdivision
13 four of section 70.80 of this article upon a conviction of a class C
14 felony sex offense;
15 (c) not [less than five years nor] more than twenty years whenever a
16 determinate sentence of imprisonment is imposed pursuant to subdivision
17 four of section 70.80 of this article upon a conviction of a class B
18 felony sex offense;
19 (d) not [less than three years nor] more than ten years whenever a
20 determinate sentence is imposed pursuant to subdivision [three] two of
21 section 70.02 of this article upon a conviction of a class D or class E
22 violent felony sex offense as defined in paragraph (b) of subdivision
23 one of section 70.80 of this article;
24 (e) not [less than five years nor] more than fifteen years whenever a
25 determinate sentence is imposed pursuant to subdivision [three] two of
26 section 70.02 of this article upon a conviction of a class C violent
27 felony sex offense as defined in section 70.80 of this article;
28 (f) not [less than five years nor] more than twenty years whenever a
29 determinate sentence is imposed pursuant to subdivision [three] two of
30 section 70.02 of this article upon a conviction of a class B violent
31 felony sex offense as defined in section 70.80 of this article;
32 (g) not [less than five years nor] more than fifteen years whenever a
33 determinate sentence of imprisonment is imposed pursuant to [either
34 section 70.04, section 70.06, or subdivision five of] section 70.80 of
35 this article upon a conviction of a class D or class E violent or non-
36 violent felony sex offense as defined in section 70.80 of this article;
37 (h) not [less than seven years nor] more than twenty years whenever a
38 determinate sentence of imprisonment is imposed pursuant to [either
39 section 70.04, section 70.06, or subdivision five of] section 70.80 of
40 this article upon a conviction of a class C violent or non-violent felo-
41 ny sex offense as defined in section 70.80 of this article; and
42 (i) such period shall be not [less than ten years nor] more than twen-
43 ty-five years whenever a determinate sentence of imprisonment is imposed
44 pursuant to [either section 70.04, section 70.06, or subdivision five
45 of] section 70.80 of this article upon a conviction of a class B violent
46 or non-violent felony sex offense as defined in section 70.80 of this
47 article[; and
48 (j) such period shall be not less than ten years nor more than twenty
49 years whenever any determinate sentence of imprisonment is imposed
50 pursuant to subdivision four of section 70.07 of this article].
51 3. Conditions of post-release supervision. The board of parole shall
52 establish and impose conditions of post-release supervision in the same
53 manner and to the same extent as it may establish and impose conditions
54 in accordance with the executive law upon persons who are granted parole
55 or conditional release[; provided that, notwithstanding any other
56 provision of law, the board of parole may impose as a condition of post-
A. 2036 15
1 release supervision that for a period not exceeding six months imme-
2 diately following release from the underlying term of imprisonment the
3 person be transferred to and participate in the programs of a residen-
4 tial treatment facility as that term is defined in subdivision six of
5 section two of the correction law]. Upon release from the underlying
6 term of imprisonment, the person shall be furnished with a written
7 statement setting forth the conditions of post-release supervision in
8 sufficient detail to provide for the person's conduct and supervision.
9 § 20. Subdivisions 1 and 2 of section 70.70 of the penal law, as added
10 by chapter 738 of the laws of 2004, paragraphs (a) and (b) of subdivi-
11 sion 1 and paragraphs (b) and (c) of subdivision 2 as amended by chapter
12 92 of the laws of 2021, subparagraph (i) of paragraph (a) of subdivision
13 2 as amended by section 21 and paragraph (d) of subdivision 2 as added
14 by section 23 of part AAA of chapter 56 of the laws of 2009, are amended
15 to read as follows:
16 1. For the purposes of this section, [the following terms shall mean:
17 (a) "Felony] "felony drug offender" means a defendant who stands
18 convicted of any felony, defined in article two hundred twenty or two
19 hundred twenty-two of this chapter other than a class A felony.
20 [(b) "Second felony drug offender" means a second felony offender as
21 that term is defined in subdivision one of section 70.06 of this arti-
22 cle, who stands convicted of any felony, defined in article two hundred
23 twenty or two hundred twenty-two of this chapter other than a class A
24 felony.
25 (c) "Violent felony" shall have the same meaning as that term is
26 defined in subdivision one of section 70.02 of this article.]
27 2. [Except as provided in subdivision three or four of this section,
28 a] (a) Term of sentence. The term of sentence [of imprisonment] for a
29 felony drug offender shall be fixed by the court in accordance with
30 section 60.03 of this title. If a court finds that a sentence of impri-
31 sonment of more than one year is the minimum term of imprisonment neces-
32 sary to achieve the goals of sentencing, the court shall impose a deter-
33 minate sentence as provided in paragraph [(a)] (b) of this subdivision.
34 [(a)] (b) Term of determinate sentence. [Except as provided in para-
35 graph (b) or (c) of this subdivision, the court shall impose a] A deter-
36 minate term of imprisonment [upon a felony drug offender which] shall be
37 imposed by the court in whole or half years, which shall include as a
38 part thereof a period of post-release supervision in accordance with
39 section 70.45 of this article. The terms of imprisonment authorized for
40 such determinate sentences are as follows:
41 (i) for a class B felony, the term shall [be at least one year and
42 shall] not exceed nine years[, except that for the class B felony of
43 criminal sale of a controlled substance in or near school grounds as
44 defined in subdivision two of section 220.44 of this chapter or on a
45 school bus as defined in subdivision seventeen of section 220.00 of this
46 chapter or criminal sale of a controlled substance to a child as defined
47 in section 220.48 of this chapter, the term shall be at least two years
48 and shall not exceed nine years];
49 (ii) for a class C felony, the term shall [be at least one year and
50 shall] not exceed five and one-half years;
51 (iii) for a class D felony, the term shall [be at least one year and
52 shall] not exceed two and one-half years; and
53 (iv) for a class E felony, the term shall [be at least one year and
54 shall] not exceed one and one-half years.
55 [(b) Probation. Notwithstanding any other provision of law, the court
56 may sentence a defendant convicted of a class B, class C, class D or
A. 2036 16
1 class E felony offense defined in article two hundred twenty or two
2 hundred twenty-two of this chapter to probation in accordance with the
3 provisions of sections 60.04 and 65.00 of this chapter.
4 (c) Alternative definite sentence for class B, class C, class D, and
5 class E felonies. If the court, having regard to the nature and circum-
6 stances of the crime and to the history and character of the defendant,
7 is of the opinion that a sentence of imprisonment is necessary but that
8 it would be unduly harsh to impose a determinate sentence upon a person
9 convicted of a class C, class D or class E felony offense defined in
10 article two hundred twenty or two hundred twenty-two of this chapter, or
11 a class B felony defined in article two hundred twenty of this chapter,
12 other than the class B felony defined in section 220.48 of this chapter,
13 as added by a chapter of the laws of two thousand nine the court may
14 impose a definite sentence of imprisonment and fix a term of one year or
15 less.
16 (d) The court may direct that a determinate sentence imposed on a
17 defendant convicted of a class B felony, other than the class B felony
18 defined in section 220.48 of this chapter, pursuant to this subdivision
19 be executed as a sentence of parole supervision in accordance with
20 section 410.91 of the criminal procedure law.]
21 § 21. Subdivisions 3 and 4 of section 70.70 of the penal law are
22 REPEALED.
23 § 22. Section 70.71 of the penal law, as added by chapter 738 of the
24 laws of 2004, paragraph (a) of subdivision 2 as amended and subdivision
25 5 as added by section 26 of part AAA of chapter 56 of the laws of 2009,
26 is amended to read as follows:
27 § 70.71 Sentence of imprisonment for a class A felony drug offender.
28 1. For the purposes of this section, the following terms shall mean:
29 (a) "Felony drug offender" means a defendant who stands convicted of
30 any class A felony as defined in article two hundred twenty of this
31 chapter.
32 (b) ["Second felony drug offender" means a second felony offender as
33 that term is defined in subdivision one of section 70.06 of this arti-
34 cle, who stands convicted of and is to be sentenced for any class A
35 felony as defined in article two hundred twenty of this chapter.
36 (c)] "Violent felony offense" shall have the same meaning as that term
37 is defined in subdivision one of section 70.02 of this article.
38 2. Sentence of imprisonment for a first felony drug offender.
39 (a) Applicability. Except as provided in subdivision three[, four or
40 five] of this section, this subdivision shall apply to a person
41 convicted of a class A felony as defined in article two hundred twenty
42 of this chapter.
43 (b) Authorized sentence. The term of sentence shall be fixed by the
44 court in accordance with section 60.03 of this title. If a court finds
45 that a sentence of imprisonment is the minimum term of imprisonment
46 necessary to achieve the goals of sentencing, the court shall impose a
47 determinate term of imprisonment which shall be imposed by the court in
48 whole or half years and which shall include as a part thereof a period
49 of post-release supervision in accordance with section 70.45 of this
50 article. The terms authorized for such determinate sentences are as
51 follows:
52 (i) for a class A-I felony, the term shall [be at least eight years
53 and shall] not exceed twenty years;
54 (ii) for a class A-II felony, the term shall [be at least three years
55 and shall] not exceed ten years.
A. 2036 17
1 [(c) Lifetime probation. Notwithstanding any other provision of law,
2 the court may sentence a defendant convicted of a class A-II felony
3 defined in article two hundred twenty of this chapter to lifetime
4 probation in accordance with the provisions of section 65.00 of this
5 chapter.]
6 3. [Sentence of imprisonment for a second felony drug offender.
7 (a) Applicability. This subdivision shall apply to a second felony
8 drug offender whose prior felony conviction or convictions did not
9 include one or more violent felony offenses.
10 (b) Authorized sentence. When the court has found pursuant to the
11 provisions of section 400.21 of the criminal procedure law that a
12 defendant is a second felony drug offender who stands convicted of a
13 class A felony as defined in article two hundred twenty or two hundred
14 twenty-one of this chapter, the court shall impose a determinate
15 sentence of imprisonment. Such determinate sentence shall include as a
16 part thereof a period of post-release supervision in accordance with
17 section 70.45 of this article. Such determinate sentence shall be
18 imposed by the court in whole or half years as follows:
19 (i) for a class A-I felony, the term shall be at least twelve years
20 and shall not exceed twenty-four years;
21 (ii) for a class A-II felony, the term shall be at least six years and
22 shall not exceed fourteen years.
23 (c) Lifetime probation. Notwithstanding any other provision of law,
24 the court may sentence a defendant convicted of a class A-II felony
25 defined in article two hundred twenty of this chapter to lifetime
26 probation in accordance with the provisions of section 65.00 of this
27 chapter.
28 4. Sentence of imprisonment for a second felony drug offender previ-
29 ously convicted of a violent felony offense.
30 (a) Applicability. This subdivision shall apply to a second felony
31 drug offender whose prior felony conviction was a violent felony.
32 (b) Authorized sentence. When the court has found pursuant to the
33 provisions of section 400.21 of the criminal procedure law that a
34 defendant is a second felony drug offender whose prior felony conviction
35 was a violent felony, who stands convicted of a class A felony as
36 defined in article two hundred twenty or two hundred twenty-one of this
37 chapter, the court shall impose a determinate sentence of imprisonment.
38 Such determinate sentence shall include as a part thereof a period of
39 post-release supervision in accordance with section 70.45 of this arti-
40 cle. Such determinate sentence shall be imposed by the court in whole or
41 half years as follows:
42 (i) for a class A-I felony, the term shall be at least fifteen years
43 and shall not exceed thirty years;
44 (ii) for a class A-II felony, the term shall be at least eight years
45 and shall not exceed seventeen years.
46 5.] Sentence of imprisonment for operating as a major trafficker.
47 (a) Applicability. This subdivision shall apply to a person convicted
48 of the class A-I felony of operating as a major trafficker as defined in
49 section 220.77 of this chapter.
50 (b) Authorized sentence. [Except as provided in paragraph (c) of this
51 subdivision, the] The term of sentence shall be fixed in the court in
52 accordance with section 60.03 of this title. If a court finds that a
53 sentence of imprisonment is the minimum term of imprisonment necessary
54 to achieve the goals of sentencing, the court shall impose an indetermi-
55 nate term of imprisonment for an A-I felony, in accordance with the
56 provisions of section 70.00 of this article.
A. 2036 18
1 [(c) Alternative determinate sentence. If a defendant stands convicted
2 of violating section 220.77 of this chapter, and if the court, having
3 regard to the nature and circumstances of the crime and the history and
4 character of the defendant, is of the opinion that a sentence of impri-
5 sonment is necessary but that it would be unduly harsh to impose the
6 indeterminate sentence for a class A-I felony specified under section
7 70.00 of this article, the court may instead impose the determinate
8 sentence of imprisonment authorized by clause (i) of subparagraph (b) of
9 subdivision two of this section for a class A-I drug felony; in such
10 case, the reasons for the court's opinion shall be set forth on the
11 record.]
12 § 23. Section 70.80 of the penal law, as added by chapter 7 of the
13 laws of 2007, paragraph (a) of subdivision 1 as amended by chapter 368
14 of the laws of 2015, is amended to read as follows:
15 § 70.80 Sentences of imprisonment for conviction of a felony sex
16 offense.
17 1. Definitions. (a) For the purposes of this section, a "felony sex
18 offense" means a conviction of any felony defined in article one hundred
19 thirty of this chapter, including a sexually motivated felony, or
20 patronizing a person for prostitution in the first degree as defined in
21 section 230.06 of this chapter, patronizing a person for prostitution in
22 the second degree as defined in section 230.05 of this chapter, aggra-
23 vated patronizing a minor for prostitution in the third degree as
24 defined in section 230.11 of this chapter, aggravated patronizing a
25 minor for prostitution in the second degree as defined in section 230.12
26 of this chapter, aggravated patronizing a minor for prostitution in the
27 first degree as defined in section 230.13 of this chapter, incest in the
28 second degree as defined in section 255.26 of this chapter, or incest in
29 the first degree as defined in section 255.27 of this chapter, or a
30 felony attempt or conspiracy to commit any of the above.
31 (b) A felony sex offense shall be deemed a "violent felony sex
32 offense" if it is for an offense defined as a violent felony offense in
33 section 70.02 of this article, or for a sexually motivated felony as
34 defined in section 130.91 of this chapter where the specified offense is
35 a violent felony offense as defined in section 70.02 of this article.
36 (c) [For the purposes of this section, a "predicate felony sex offen-
37 der" means a person who stands convicted of any felony sex offense as
38 defined in paragraph (a) of this subdivision, other than a class A-I
39 felony, after having previously been subjected to one or more predicate
40 felony convictions as defined in subdivision one of section 70.06 or
41 subdivision one of section 70.04 of this article.
42 (d)] For purposes of this section, a "violent felony offense" is any
43 felony defined in subdivision one of section 70.02 of this article, and
44 a "non-violent felony offense" is any felony not defined therein.
45 2. In imposing a sentence within the authorized statutory range for
46 any felony sex offense, the court may consider all relevant factors set
47 forth in section 1.05 of this chapter, and in particular, may consider
48 the defendant's criminal history, if any, including any history of sex
49 offenses; any mental illness or mental abnormality from which the
50 defendant may suffer; the defendant's ability or inability to control
51 his sexual behavior; and, if the defendant has difficulty controlling
52 such behavior, the extent to which that difficulty may pose a threat to
53 society.
54 3. Except as provided by subdivision four, five, six[,] or seven [or
55 eight] of this section, or when a defendant is being sentenced for a
56 conviction of the class A-II felonies of predatory sexual assault and
A. 2036 19
1 predatory sexual assault against a child as defined in sections 130.95
2 and 130.96 of this chapter, or for any class A-I sexually motivated
3 felony for which a life sentence or a life without parole sentence
4 [must] may be imposed, a sentence imposed upon a defendant convicted of
5 a felony sex offense shall be fixed by the court in accordance with
6 section 60.03 of this title. If a court finds that a sentence of impri-
7 sonment is the minimum term of imprisonment necessary to achieve the
8 goals of sentencing, the court shall impose a determinate sentence. The
9 determinate sentence shall be imposed by the court in whole or half
10 years, and shall include as a part thereof a period of post-release
11 supervision in accordance with subdivision two-a of section 70.45 of
12 this article. [Persons eligible for sentencing under section 70.07 of
13 this article governing second child sexual assault felonies shall be
14 sentenced under such section and paragraph (j) of subdivision two-a of
15 section 70.45 of this article.]
16 4. [(a)] Sentences of imprisonment for felony sex offenses. Except as
17 provided in subdivision five, six[,] or seven[, or eight] of this
18 section, the term of the determinate sentence must be fixed by the court
19 as follows:
20 [(i)] (a) for a class B felony, the term must [be at least five years
21 and must] not exceed twenty-five years;
22 [(ii)] (b) for a class C felony, the term must [be at least three and
23 one-half years and must] not exceed fifteen years;
24 [(iii)] (c) for a class D felony, the term must [be at least two years
25 and must] not exceed seven years; and
26 [(iv)] (d) for a class E felony, the term must [be at least one and
27 one-half years and must] not exceed four years.
28 [(b) Probation. The court may sentence a defendant convicted of a
29 class D or class E felony sex offense to probation in accordance with
30 the provisions of section 65.00 of this title.
31 (c) Alternative definite sentences for class D and class E felony sex
32 offenses. If the court, having regard to the nature and circumstances of
33 the crime and to the history and character of the defendant, is of the
34 opinion that a sentence of imprisonment is necessary but that it would
35 be unduly harsh to impose a determinate sentence upon a person convicted
36 of a class D or class E felony sex offense, the court may impose a defi-
37 nite sentence of imprisonment and fix a term of one year or less.
38 5. Sentence of imprisonment for a predicate felony sex offender. (a)
39 Applicability. This subdivision shall apply to a predicate felony sex
40 offender who stands convicted of a non-violent felony sex offense and
41 who was previously convicted of one or more felonies.
42 (b) Non-violent predicate felony offense. When the court has found,
43 pursuant to the provisions of the criminal procedure law, that a person
44 is a predicate felony sex offender, and the person's predicate
45 conviction was for a non-violent felony offense, the court must impose a
46 determinate sentence of imprisonment, the term of which must be fixed by
47 the court as follows:
48 (i) for a class B felony, the term must be at least eight years and
49 must not exceed twenty-five years;
50 (ii) for a class C felony, the term must be at least five years and
51 must not exceed fifteen years;
52 (iii) for a class D felony, the term must be at least three years and
53 must not exceed seven years; and
54 (iv) for a class E felony, the term must be at least two years and
55 must not exceed four years.
A. 2036 20
1 (c) Violent predicate felony offense. When the court has found, pursu-
2 ant to the provisions of the criminal procedure law, that a person is a
3 predicate felony sex offender, and the person's predicate conviction was
4 for a violent felony offense, the court must impose a determinate
5 sentence of imprisonment, the term of which must be fixed by the court
6 as follows:
7 (i) for a class B felony, the term must be at least nine years and
8 must not exceed twenty-five years;
9 (ii) for a class C felony, the term must be at least six years and
10 must not exceed fifteen years;
11 (iii) for a class D felony, the term must be at least four years and
12 must not exceed seven years; and
13 (iv) for a class E felony, the term must be at least two and one-half
14 years and must not exceed four years.
15 (d) A defendant who stands convicted of a non-violent felony sex
16 offense, other than a class A-I or class A-II felony, who is adjudicated
17 a persistent felony offender under section 70.10 of this article, shall
18 be sentenced pursuant to the provisions of section 70.10 or pursuant to
19 this subdivision.
20 6.] 5. Sentence of imprisonment for a violent felony sex offense.
21 Except as provided in subdivisions six and seven [and eight] of this
22 section, a defendant who stands convicted of a violent felony sex
23 offense must be sentenced pursuant to the provisions of section 70.02[,
24 section 70.04, subdivision six of section 70.06, section 70.08, or
25 section 70.10] of this article, as applicable.
26 [7.] 6. Sentence for a class A felony sex offense. When a person
27 stands convicted of a sexually motivated felony pursuant to section
28 130.91 of this chapter and the specified offense is a class A felony,
29 the court must sentence the defendant in accordance with the provisions
30 of:
31 (a) section 60.06 of this [chapter] title and section 70.00 of this
32 article, as applicable, if such offense is a class A-I felony; and
33 (b) section 70.00, [70.06 or 70.08 of this article, as applicable,] if
34 such offense is a class A-II felony.
35 [8.] 7. Whenever a juvenile offender stands convicted of a felony sex
36 offense, he or she must be sentenced pursuant to the provisions of
37 sections 60.10 and 70.05 of this [chapter] title.
38 [9.] 8. Every determinate sentence for a felony sex offense, as
39 defined in paragraph (a) of subdivision one of this section, imposed
40 pursuant to any section of this article, shall include as a part thereof
41 a period of post-release supervision in accordance with subdivision
42 two-a of section 70.45 of this article.
43 § 24. Paragraph (b) of subdivision 3 of section 60.01 of the penal
44 law, as amended by chapter 548 of the laws of 1984, is amended to read
45 as follows:
46 (b) A fine authorized by article eighty[, provided, however, that when
47 the conviction is of a class B felony or of any felony defined in arti-
48 cle two hundred twenty, the sentence shall not consist solely of a fine]
49 of this title; or
50 § 25. Subdivision 2 of section 60.02 of the penal law, as amended by
51 chapter 471 of the laws of 1980, is amended to read as follows:
52 (2) If the sentence is to be imposed upon a youthful offender finding
53 which has been substituted for a conviction for any felony, the court
54 must impose a sentence authorized to be imposed upon a person convicted
55 of a class E felony [provided, however, that the court must not impose a
56 sentence of conditional discharge or unconditional discharge if the
A. 2036 21
1 youthful offender finding was substituted for a conviction of a felony
2 defined in article two hundred twenty of this chapter].
3 § 26. Section 60.04 of the penal law, as added by chapter 738 of the
4 laws of 2004, subdivisions 3 and 5 as amended by section 17 of part AAA
5 of chapter 56 of the laws of 2009, subdivision 6 as amended by section
6 120 of subpart B of part C of chapter 62 of the laws of 2011 and subdi-
7 vision 7 as amended by chapter 322 of the laws of 2021, is amended to
8 read as follows:
9 § 60.04 Authorized disposition; controlled substances [and marihuana
10 felony] offenses.
11 1. Applicability. Notwithstanding the provisions of any law, this
12 section shall govern the dispositions authorized when a person is to be
13 sentenced upon a conviction of a felony offense defined in article two
14 hundred twenty [or two hundred twenty-one] of this chapter [or when a
15 person is to be sentenced upon a conviction of such a felony as a multi-
16 ple felony offender as defined in subdivision five of this section].
17 2. Class A felony. Every person convicted of a class A felony must be
18 sentenced [to imprisonment] in accordance with section 70.71 of this
19 title[, unless such person is convicted of a class A-II felony and is
20 sentenced to probation for life in accordance with section 65.00 of this
21 title].
22 3. Class B felonies. Every person convicted of a class B felony must
23 be sentenced [to imprisonment] in accordance with the applicable
24 provisions of section 70.70 of this [chapter, a definite sentence of
25 imprisonment with a term of one year or less or probation in accordance
26 with section 65.00 of this chapter provided, however, a person convicted
27 of criminal sale of a controlled substance to a child as defined in
28 section 220.48 of this chapter must be sentenced to a determinate
29 sentence of imprisonment in accordance with the applicable provisions of
30 section 70.70 of this chapter or to a sentence of probation in accord-
31 ance with the opening paragraph of paragraph (b) of subdivision one of
32 section 65.00 of this chapter] title.
33 4. Alternative sentence. [Where a sentence of imprisonment or a
34 sentence of probation as an alternative to imprisonment is not required
35 to be imposed pursuant to subdivision two, three or five of this
36 section, the court may impose any other sentence authorized by section
37 60.01 of this article, provided that when the court imposes a sentence
38 of imprisonment, such sentence must be in accordance with section 70.70
39 of this title.] Where the court imposes a sentence of imprisonment in
40 accordance with this section, the court may also impose a fine author-
41 ized by article eighty of this title and in such case the sentence shall
42 be both imprisonment and a fine.
43 5. [Multiple felony offender. Where the court imposes a sentence
44 pursuant to subdivision three of section 70.70 of this chapter upon a
45 second felony drug offender, as defined in paragraph (b) of subdivision
46 one of section 70.70 of this chapter, it must sentence such offender to
47 imprisonment in accordance with the applicable provisions of section
48 70.70 of this chapter, a definite sentence of imprisonment with a term
49 of one year or less, or probation in accordance with section 65.00 of
50 this chapter, provided, however, that where the court imposes a sentence
51 upon a class B second felony drug offender, it must sentence such offen-
52 der to a determinate sentence of imprisonment in accordance with the
53 applicable provisions of section 70.70 of this chapter or to a sentence
54 of probation in accordance with the opening paragraph of paragraph (b)
55 of subdivision one of section 65.00 of this chapter. When the court
56 imposes sentence on a second felony drug offender pursuant to subdivi-
A. 2036 22
1 sion four of section 70.70 of this chapter, it must impose a determinate
2 sentence of imprisonment in accordance with such subdivision.
3 6.] Substance abuse treatment. When the court imposes a sentence of
4 imprisonment which requires a commitment to the state department of
5 corrections and community supervision [upon a person who stands
6 convicted of a controlled substance or marihuana offense], the court
7 may, upon motion of the defendant in its discretion, issue an order
8 directing that the department of corrections and community supervision
9 enroll the defendant in the comprehensive alcohol and substance abuse
10 treatment program in an alcohol and substance abuse treatment correc-
11 tional annex as defined in subdivision eighteen of section two of the
12 correction law, provided that the defendant will satisfy the statutory
13 eligibility criteria for participation in such program. Notwithstanding
14 the foregoing provisions of this subdivision, any defendant to be
15 enrolled in such program pursuant to this subdivision shall be governed
16 by the same rules and regulations promulgated by the department of
17 corrections and community supervision, including without limitation
18 those rules and regulations establishing requirements for completion and
19 those rules and regulations governing discipline and removal from the
20 program. No such period of court ordered corrections based drug abuse
21 treatment pursuant to this subdivision shall be required to extend
22 beyond the defendant's conditional release date.
23 [7.] 6. a. Shock incarceration participation. When the court imposes a
24 sentence of imprisonment which requires a commitment to the department
25 of corrections and community supervision upon a person [who stands
26 convicted of a controlled substance or marihuana offense], upon motion
27 of the defendant, the court may issue an order directing that the
28 department of corrections and community supervision enroll the defendant
29 in the shock incarceration program as defined in article twenty-six-A of
30 the correction law, provided that the defendant is an eligible incarcer-
31 ated individual, as described in subdivision one of section eight
32 hundred sixty-five of the correction law. Notwithstanding the foregoing
33 provisions of this subdivision, any defendant to be enrolled in such
34 program pursuant to this subdivision shall be governed by the same rules
35 and regulations promulgated by the department of corrections and commu-
36 nity supervision, including without limitation those rules and regu-
37 lations establishing requirements for completion and such rules and
38 regulations governing discipline and removal from the program.
39 b. (i) In the event that an incarcerated individual designated by
40 court order for enrollment in the shock incarceration program requires a
41 degree of medical care or mental health care that cannot be provided at
42 a shock incarceration facility, the department, in writing, shall notify
43 the incarcerated individual, provide a proposal describing a proposed
44 alternative-to-shock-incarceration program, and notify him or her that
45 he or she may object in writing to placement in such alternative-to-
46 shock-incarceration program. If the incarcerated individual objects in
47 writing to placement in such alternative-to-shock-incarceration program,
48 the department of corrections and community supervision shall notify the
49 sentencing court, provide such proposal to the court, and arrange for
50 the incarcerated individual's prompt appearance before the court. The
51 court shall provide the proposal and notice of a court appearance to the
52 people, the incarcerated individual and the appropriate defense attor-
53 ney. After considering the proposal and any submissions by the parties,
54 and after a reasonable opportunity for the people, the incarcerated
55 individual and counsel to be heard, the court may modify its sentencing
A. 2036 23
1 order accordingly, notwithstanding the provisions of section 430.10 of
2 the criminal procedure law.
3 (ii) An incarcerated individual who successfully completes an alterna-
4 tive-to-shock-incarceration program within the department of corrections
5 and community supervision shall be treated in the same manner as a
6 person who has successfully completed the shock incarceration program,
7 as set forth in subdivision four of section eight hundred sixty-seven of
8 the correction law.
9 § 27. Section 60.05 of the penal law, as amended by chapter 410 of the
10 laws of 1979, the section heading and subdivisions 2, 3 and 4 as amended
11 by chapter 738 of the laws of 2004, subdivision 1 as amended by chapter
12 7 of the laws of 2007, subdivision 5 as amended by chapter 405 of the
13 laws of 2010 and subdivision 8 as amended by chapter 486 of the laws of
14 2022, is amended to read as follows:
15 § 60.05 Authorized dispositions; other class A, B, certain C and D felo-
16 nies [and multiple felony offenders].
17 1. Applicability. Except as provided in section 60.04 of this article
18 governing the authorized dispositions applicable to felony offenses
19 defined in article two hundred twenty [or two hundred twenty-one] of
20 this chapter or in section 60.13 of this article governing the author-
21 ized dispositions applicable to felony sex offenses defined in paragraph
22 (a) of subdivision one of section 70.80 of this title, this section
23 shall govern the dispositions authorized when a person is to be
24 sentenced upon a conviction of a class A felony, a class B felony or a
25 class C, class D or class E felony specified [herein, or when a person
26 is to be sentenced upon a conviction of a felony as a multiple felony
27 offender] in this section.
28 2. Class A felony. [Except as provided in subdivisions three and four
29 of section 70.06 of this chapter, every] Every person convicted of a
30 class A felony must be sentenced [to imprisonment] in accordance with
31 section 70.00 of this title[, unless such person is convicted of murder
32 in the first degree and is sentenced in accordance with section 60.06 of
33 this article].
34 3. Class B felony. [Except as provided in subdivision six of this
35 section, every] Every person convicted of a class B violent felony
36 offense as defined in subdivision one of section 70.02 of this title,
37 must be sentenced [to imprisonment] in accordance with such section
38 [70.02]; and[, except as provided in subdivision six of this section,]
39 every person convicted of any other class B felony must be sentenced [to
40 imprisonment] in accordance with section 70.00 of this title.
41 4. Certain class C felonies. [Except as provided in subdivision six,
42 every] Every person convicted of a class C violent felony offense as
43 defined in subdivision one of section 70.02 of this title, must be
44 sentenced [to imprisonment] in accordance with section 70.02 of this
45 title[; and, except as provided in subdivision six of this section,
46 every person convicted of the class C felonies of: attempt to commit any
47 of the class B felonies of bribery in the first degree as defined in
48 section 200.04, bribe receiving in the first degree as defined in
49 section 200.12, conspiracy in the second degree as defined in section
50 105.15 and criminal mischief in the first degree as defined in section
51 145.12; criminal usury in the first degree as defined in section 190.42,
52 rewarding official misconduct in the first degree as defined in section
53 200.22, receiving reward for official misconduct in the first degree as
54 defined in section 200.27, attempt to promote prostitution in the first
55 degree as defined in section 230.32, promoting prostitution in the
56 second degree as defined in section 230.30, arson in the third degree as
A. 2036 24
1 defined in section 150.10 of this chapter, must be sentenced to impri-
2 sonment in accordance with section 70.00 of this title].
3 5. Certain class D felonies. [Except as provided in subdivision six of
4 this section, every] Every person convicted of the class D felonies of
5 assault in the second degree as defined in section 120.05, strangulation
6 in the second degree as defined in section 121.12 or attempt to commit a
7 class C felony as defined in section 230.30 of this chapter, must be
8 sentenced in accordance with section 70.00 or 85.00 of this title.
9 6. [Multiple felony offender. When the court imposes sentence upon a
10 second violent felony offender, as defined in section 70.04, or a second
11 felony offender, as defined in section 70.06, the court must impose a
12 sentence of imprisonment in accordance with section 70.04 or 70.06, as
13 the case may be, unless it imposes a sentence of imprisonment in accord-
14 ance with section 70.08 or 70.10.
15 7.] Fines. Where the court imposes a sentence of imprisonment in
16 accordance with this section, the court also may impose a fine author-
17 ized by article eighty of this title and in such case the sentence shall
18 be both imprisonment and a fine.
19 [8.] 7. Shock incarceration participation. (a) When the court imposes
20 a determinate sentence of imprisonment pursuant to subdivision [three]
21 two of section 70.02 of this [chapter or subdivision six of section
22 70.06 of this chapter upon a person who stands convicted either of
23 burglary in the second degree as defined in subdivision two of section
24 140.25 of this chapter or robbery in the second degree as defined in
25 subdivision one of section 160.10 of this chapter, or an attempt there-
26 of] title, upon motion of the defendant, the court may issue an order
27 directing that the department of corrections and community supervision
28 enroll the defendant in the shock incarceration program as defined in
29 article twenty-six-A of the correction law, provided that the defendant
30 is an eligible incarcerated individual, as described in subdivision one
31 of section eight hundred sixty-five of the correction law. Notwithstand-
32 ing the foregoing provisions of this subdivision, any defendant to be
33 enrolled in such program pursuant to this subdivision shall be governed
34 by the same rules and regulations promulgated by the department of
35 corrections and community supervision, including without limitation
36 those rules and regulations establishing requirements for completion and
37 such rules and regulations governing discipline and removal from the
38 program.
39 (b) Paragraph b of subdivision seven of section 60.04 of this article
40 shall apply in the event an incarcerated individual designated by court
41 order for enrollment in the shock incarceration program requires a
42 degree of medical care or mental health care that cannot be provided at
43 a shock incarceration facility.
44 § 28. Paragraph (ii) of subdivision b of section 60.09 of the penal
45 law, as added by chapter 410 of the laws of 1979, is amended to read as
46 follows:
47 (ii) if the conviction was for a class A-II offense the court may
48 impose a new minimum term which shall be [no less than three years
49 imprisonment and] no more than eight and one-third years;
50 § 29. Section 60.10 of the penal law, as amended by chapter 411 of the
51 laws of 1979, is amended to read as follows:
52 § 60.10 Authorized disposition; juvenile offender.
53 1. When a juvenile offender is convicted of a crime, the court shall
54 sentence the defendant [to imprisonment] in accordance with section
55 70.05 of this title or sentence him upon a youthful offender finding in
56 accordance with section 60.02 of this [chapter] article.
A. 2036 25
1 2. Subdivision one of this section shall apply when sentencing a juve-
2 nile offender notwithstanding the provisions of any other law that deals
3 with the authorized sentence for persons who are not juvenile offenders.
4 [Provided, however, that the limitation prescribed by this section shall
5 not be deemed or construed to bar use of a conviction of a juvenile
6 offender, other than a juvenile offender who has been adjudicated a
7 youthful offender pursuant to section 720.20 of the criminal procedure
8 law, as a previous or predicate felony offender under section 70.04,
9 70.06, 70.08 or 70.10, when sentencing a person who commits a felony
10 after he has reached the age of sixteen.]
11 § 30. Section 60.12 of the penal law, as amended by chapter 31 of the
12 laws of 2019, subdivision 1 as amended by section 1 of part WW of chap-
13 ter 55 of the laws of 2019, is amended to read as follows:
14 § 60.12 Authorized disposition; alternative sentence; domestic violence
15 cases.
16 1. Notwithstanding any other provision of law, where a court is impos-
17 ing sentence upon a person pursuant to section 70.00, 70.02[, 70.06] or
18 subdivision two or three of section 70.71 of this title, [other than for
19 an offense defined in section 125.26, 125.27, subdivision five of
20 section 125.25, or article 490 of this chapter, or for an offense which
21 would require such person to register as a sex offender pursuant to
22 article six-C of the correction law, an attempt or conspiracy to commit
23 any such offense,] and is authorized [or required] pursuant to sections
24 70.00, 70.02[, 70.06] or subdivision two or three of section 70.71 of
25 this title to impose a sentence of imprisonment, the court, upon a
26 determination following a hearing that (a) at the time of the instant
27 offense, the defendant was a victim of domestic violence subjected to
28 substantial physical, sexual or psychological abuse inflicted by a
29 member of the same family or household as the defendant as such term is
30 defined in subdivision one of section 530.11 of the criminal procedure
31 law; (b) such abuse was a significant contributing factor to the defend-
32 ant's criminal behavior; (c) having regard for the nature and circum-
33 stances of the crime and the history, character and condition of the
34 defendant, that a sentence of imprisonment pursuant to section 70.00,
35 70.02[, 70.06] or subdivision two or three of section 70.71 of this
36 title would be unduly harsh may instead impose a sentence in accordance
37 with this section, except that nothing in this section shall relieve the
38 prosecution of its burden under the provisions of section 60.03 of this
39 article, or abrogate the process afforded the defendant in such section.
40 A court may determine that such abuse constitutes a significant
41 contributing factor pursuant to paragraph (b) of this subdivision
42 regardless of whether the defendant raised a defense pursuant to article
43 thirty-five, article forty, or subdivision one of section 125.25 of this
44 chapter.
45 At the hearing to determine whether the defendant should be sentenced
46 pursuant to this section, the court shall consider oral and written
47 arguments, take testimony from witnesses offered by either party, and
48 consider relevant evidence to assist in making its determination. Reli-
49 able hearsay shall be admissible at such hearings.
50 2. Where a court would otherwise be required to impose a sentence
51 pursuant to section 70.02 of this title, the court may impose a definite
52 sentence of imprisonment of one year or less, or probation in accordance
53 with the provisions of section 65.00 of this title, or may fix a deter-
54 minate term of imprisonment as follows:
55 (a) For a class B felony, the term must be at least one year and must
56 not exceed five years;
A. 2036 26
1 (b) For a class C felony, the term must be at least one year and must
2 not exceed three and one-half years;
3 (c) For a class D felony, the term must be at least one year and must
4 not exceed two years; and
5 (d) For a class E felony, the term must be one year and must not
6 exceed one and one-half years.
7 3. Where a court would otherwise be required to impose a sentence for
8 a class A felony offense pursuant to section 70.00 of this title, the
9 court may fix a determinate term of imprisonment of at least [five
10 years] one year and not to exceed fifteen years, or impose a definite
11 sentence of imprisonment of one year or less, or probation in accordance
12 with the provisions of section 65.00 of this title.
13 4. Where a court would otherwise be required to impose a sentence for
14 a class A felony offense pursuant to subparagraph (i) of paragraph (b)
15 of subdivision two of section 70.71 of this title, the court may fix a
16 determinate term of imprisonment of at least [five years] one year and
17 not to exceed eight years, or impose a definite sentence of imprisonment
18 of one year or less, or probation in accordance with the provisions of
19 section 65.00 of this title.
20 5. Where a court would otherwise be required to impose a sentence for
21 a class A felony offense pursuant to subparagraph (i) of paragraph (b)
22 of subdivision three of section 70.71 of this title, the court may fix a
23 determinate term of imprisonment of at least [five years] one year and
24 not to exceed twelve years, or impose a definite sentence of imprison-
25 ment of one year or less, or probation in accordance with the provisions
26 of section 65.00 of this title.
27 6. Where a court would otherwise be required to impose a sentence for
28 a class A felony offense pursuant to subparagraph (ii) of paragraph (b)
29 of subdivision two of section 70.71 of this title, the court may fix a
30 determinate term of imprisonment of at least one year and not to exceed
31 three years, or impose a definite sentence of imprisonment of one year
32 or less, or probation in accordance with the provisions of section 65.00
33 of this title.
34 7. Where a court would otherwise be required to impose a sentence for
35 a class A felony offense pursuant to subparagraph (ii) of paragraph (b)
36 of subdivision three of section 70.71 of this title, the court may fix a
37 determinate term of imprisonment of at least [three years] one year and
38 not to exceed six years, or impose a definite sentence of imprisonment
39 of one year or less, or probation in accordance with the provisions of
40 section 65.00 of this title.
41 [8. Where a court would otherwise be required to impose a sentence
42 pursuant to subdivision six of section 70.06 of this title, the court
43 may fix a term of imprisonment as follows:
44 (a) For a class B felony, the term must be at least three years and
45 must not exceed eight years;
46 (b) For a class C felony, the term must be at least two and one-half
47 years and must not exceed five years;
48 (c) For a class D felony, the term must be at least two years and must
49 not exceed three years;
50 (d) For a class E felony, the term must be at least one and one-half
51 years and must not exceed two years.
52 9. Where a court would otherwise be required to impose a sentence for
53 a class B, C, D or E felony offense pursuant to section 70.00 of this
54 title, the court may impose a sentence in accordance with the provisions
55 of subdivision two of section 70.70 of this title.
A. 2036 27
1 10. Except as provided in subdivision seven of this section, where a
2 court would otherwise be required to impose a sentence pursuant to
3 subdivision three of section 70.06 of this title, the court may impose a
4 sentence in accordance with the provisions of subdivision three of
5 section 70.70 of this title.
6 11. Where a court would otherwise be required to impose a sentence
7 pursuant to subdivision three of section 70.06 of this title, where the
8 prior felony conviction was for a felony offense defined in section
9 70.02 of this title, the court may impose a sentence in accordance with
10 the provisions of subdivision four of section 70.70 of this title.]
11 § 31. Subdivision h of section 74 of chapter 3 of the laws of 1995,
12 enacting the sentencing reform act of 1995, as amended by section 8 of
13 part A of chapter 55 of the laws of 2021, is amended to read as follows:
14 h. Section fifty-two of this act shall be deemed to have been in full
15 force and effect on and after April 1, 1995; provided, however, that the
16 provisions of section 189 of the correction law, as amended by section
17 fifty-five of this act[, subdivision 5 of section 60.35 of the penal
18 law, as amended by section fifty-six of this act,] and section fifty-
19 seven of this act shall expire September 1, 2023, when upon such date
20 the amendments to the correction law [and penal law] made by [sections]
21 section fifty-five [and fifty-six] of this act shall revert to and be
22 read as if the provisions of this act had not been enacted; provided,
23 however, that sections sixty-two, sixty-three and sixty-four of this act
24 shall be deemed to have been in full force and effect on and after March
25 1, 1995 and shall be deemed repealed April 1, 1996 and upon such date
26 the provisions of subsection (e) of section 9110 of the insurance law
27 and subdivision 2 of section 89-d of the state finance law shall revert
28 to and be read as set out in law on the date immediately preceding the
29 effective date of sections sixty-two and sixty-three of this act;
30 § 32. Section 65.00 of the penal law, subdivisions 1 and 2 as amended
31 by chapter 835 of the laws of 1974, the opening paragraph of paragraph
32 (a) of subdivision 1 as amended by chapter 738 of the laws of 2004, the
33 opening paragraph of paragraph (b) of subdivision 1 as amended by
34 section 19 and subparagraph (ii) of paragraph (a) of subdivision 3 as
35 amended by section 20 of part AAA of chapter 56 of the laws of 2009, the
36 closing paragraph of subdivision 1 as amended by chapter 3 of the laws
37 of 1995, subdivision 3 as amended by chapter 264 of the laws of 2003,
38 subparagraph (i) of paragraph (a), subparagraph (i) of paragraph (b) and
39 paragraph (d) of subdivision 3 as amended by chapter 556 of the laws of
40 2013, paragraph (c) of subdivision 3 as amended by chapter 568 of the
41 laws of 2004, the closing paragraph of subdivision 3 as amended by chap-
42 ter 320 of the laws of 2006, subdivision 4 as amended by chapter 17 of
43 the laws of 2014, and subdivision 5 as amended by chapter 264 of the
44 laws of 2003 and as renumbered by chapter 556 of the laws of 2013, is
45 amended to read as follows:
46 § 65.00 Sentence of probation.
47 1. [Criteria. (a) Except as otherwise required by section 60.04 or
48 60.05 of this title, and except as provided by paragraph (b) hereof, the
49 court may sentence a person to a period of probation upon conviction of
50 any crime if the court, having regard to the nature and circumstances of
51 the crime and to the history, character and condition of the defendant,
52 is of the opinion that:
53 (i) Institutional confinement for the term authorized by law of the
54 defendant is or may not be necessary for the protection of the public;
A. 2036 28
1 (ii) the defendant is in need of guidance, training or other assist-
2 ance which, in his case, can be effectively administered through
3 probation supervision; and
4 (iii) such disposition is not inconsistent with the ends of justice.
5 (b) The court, with the concurrence of either the administrative judge
6 of the court or of the judicial district within which the court is situ-
7 ated or such administrative judge as the presiding justice of the appro-
8 priate appellate division shall designate, may sentence a person to a
9 period of probation upon conviction of a class A-II felony defined in
10 article two hundred twenty, the class B felony defined in section 220.48
11 of this chapter or any other class B felony defined in article two
12 hundred twenty of this chapter where the person is a second felony drug
13 offender as defined in paragraph (b) of subdivision one of section 70.70
14 of this chapter, if the prosecutor either orally on the record or in a
15 writing filed with the indictment recommends that the court sentence
16 such person to a period of probation upon the ground that such person
17 has or is providing material assistance in the investigation, apprehen-
18 sion or prosecution of any person for a felony defined in article two
19 hundred twenty or the attempt or the conspiracy to commit any such felo-
20 ny, and if the court, having regard to the nature and circumstances of
21 the crime and to the history, character and condition of the defendant
22 is of the opinion that:
23 (i) Institutional confinement of the defendant is not necessary for
24 the protection of the public;
25 (ii) The defendant is in need of guidance, training or other assist-
26 ance which, in his case, can be effectively administered through
27 probation supervision;
28 (iii) The defendant has or is providing material assistance in the
29 investigation, apprehension or prosecution of a person for a felony
30 defined in article two hundred twenty or the attempt or conspiracy to
31 commit any such felony; and
32 (iv) Such disposition is not inconsistent with the ends of justice.
33 Provided, however, that the court shall not, except to the extent
34 authorized by paragraph (d) of subdivision two of section 60.01 of this
35 chapter, impose a sentence of probation in any case where it sentences a
36 defendant for more than one crime and imposes a sentence of imprisonment
37 for any one of the crimes, or where the defendant is subject to an
38 undischarged indeterminate or determinate sentence of imprisonment which
39 was imposed at a previous time by a court of this state and has more
40 than one year to run.
41 2.] Sentence. When a person is sentenced to a period of probation the
42 court shall, except to the extent authorized by paragraph (d) of subdi-
43 vision two of section 60.01 of this [chapter] title, impose the period
44 authorized by subdivision [three] two of this section and shall specify,
45 in accordance with section 65.10 of this article, the conditions to be
46 complied with. The court may modify or enlarge the conditions or, if the
47 defendant commits an additional offense or violates a condition, revoke
48 the sentence at any time prior to the expiration or termination of the
49 period of probation.
50 [3.] 2. Periods of probation. Unless terminated sooner in accordance
51 with the criminal procedure law, the period of probation shall be as
52 follows:
53 (a) (i) For a felony, other than a class A-II felony defined in arti-
54 cle two hundred twenty of this chapter or the class B felony defined in
55 section 220.48 of this chapter, [or any other class B felony defined in
56 article two hundred twenty of this chapter committed by a second felony
A. 2036 29
1 drug offender,] or a sexual assault, the period of probation shall [be a
2 term of three, four or] not exceed five years;
3 (ii) For a class A-II felony drug offender as defined in paragraph (a)
4 of subdivision one of section 70.71 of this [chapter as described in
5 paragraph (b) of subdivision one of this section, or a class B felony
6 committed by a second felony drug offender described in paragraph (b) of
7 subdivision one of this section, the] title, any period of probation
8 [shall be life] may be imposed and for a class B felony defined in
9 section 220.48 of this chapter, the period of probation shall [be] not
10 exceed twenty-five years;
11 (iii) For a felony sexual assault, the period of probation shall [be]
12 not exceed ten years.
13 (b) (i) For a class A misdemeanor, other than a sexual assault, the
14 period of probation shall [be] not exceed a term of [two or] three
15 years;
16 (ii) For a class A misdemeanor sexual assault, the period of probation
17 shall [be] not exceed six years.
18 (c) For a class B misdemeanor, the period of probation shall [be] not
19 exceed one year, except the period of probation shall [be no less than
20 one year and no more than] not exceed three years for the class B misde-
21 meanor of public lewdness as defined in section 245.00 of this chapter;
22 (d) For an unclassified misdemeanor, the period of probation shall
23 [be] not exceed a term of [two or] three years if the authorized
24 sentence of imprisonment is in excess of three months, otherwise the
25 period of probation shall [be] not exceed one year.
26 For the purposes of this section, the term "sexual assault" means an
27 offense defined in article one hundred thirty or two hundred sixty-
28 three, or in section 255.25, 255.26 or 255.27 of this chapter, or an
29 attempt to commit any of the foregoing offenses.
30 [4.] 3. If during the periods of probation referenced in subparagraph
31 (i) of paragraph (a), subparagraph (i) of paragraph (b) and paragraph
32 (d) of subdivision [three] two of this section an alleged violation is
33 sustained following a hearing pursuant to section 410.70 of the criminal
34 procedure law and the court continues or modifies the sentence, the
35 court may extend the remaining period of probation up to the maximum
36 term authorized by this section. Provided, however, a defendant shall
37 receive credit for the time during which he or she was supervised under
38 the original probation sentence prior to any declaration of delinquency
39 and for any time spent in custody pursuant to this article for an
40 alleged violation of probation.
41 [5.] 4. In any case where a court pursuant to its authority under
42 subdivision four of section 60.01 of this [chapter] title revokes
43 probation and sentences such person to imprisonment and probation, as
44 provided in paragraph (d) of subdivision two of section 60.01 of this
45 [chapter] title, the period of probation shall be the remaining period
46 of the original probation sentence or one year whichever is greater.
47 § 33. Section 65.05 of the penal law, subdivision 1 as added by chap-
48 ter 277 of the laws of 1973, paragraph (a) of subdivision 1 and subdivi-
49 sion 2 as amended by chapter 742 of the laws of 1981 and subdivision 3
50 as amended by chapter 618 of the laws of 1992, is amended to read as
51 follows:
52 § 65.05 Sentence of conditional discharge.
53 1. [Criteria. (a) Except as otherwise required by section 60.05, the
54 court may impose a sentence of conditional discharge for an offense if
55 the court, having regard to the nature and circumstances of the offense
56 and to the history, character and condition of the defendant, is of the
A. 2036 30
1 opinion that neither the public interest nor the ends of justice would
2 be served by a sentence of imprisonment and that probation supervision
3 is not appropriate.
4 (b) When a sentence of conditional discharge is imposed for a felony,
5 the court shall set forth in the record the reasons for its action.
6 2.] Sentence. Except to the extent authorized by paragraph (d) of
7 subdivision two of section 60.01 of this [chapter] title, when the court
8 imposes a sentence of conditional discharge the defendant shall be
9 released with respect to the conviction for which the sentence is
10 imposed without imprisonment or probation supervision but subject,
11 during the period of conditional discharge, to such conditions as the
12 court may determine. The court shall impose the period of conditional
13 discharge authorized by subdivision three of this section and shall
14 specify, in accordance with section 65.10 of this article, the condi-
15 tions to be complied with. If a defendant is sentenced pursuant to
16 paragraph (e) of subdivision two of section 65.10 of this [chapter]
17 article, the court shall require the administrator of the program to
18 provide written notice to the court of any violation of program partic-
19 ipation by the defendant. The court may modify or enlarge the conditions
20 or, if the defendant commits an additional offense or violates a condi-
21 tion, revoke the sentence at any time prior to the expiration or termi-
22 nation of the period of conditional discharge.
23 [3.] 2. Periods of conditional discharge. Unless terminated sooner in
24 accordance with the criminal procedure law, the period of conditional
25 discharge shall be as follows:
26 (a) [Three] Up to three years in the case of a felony; and
27 (b) [One] Up to one year in the case of a misdemeanor or a violation.
28 Where the court has required, as a condition of the sentence, that the
29 defendant make restitution of the fruits of his or her offense or make
30 reparation for the loss caused thereby and such condition has not been
31 satisfied, the court, at any time prior to the expiration or termination
32 of the period of conditional discharge, may impose an additional period.
33 The length of the additional period shall be fixed by the court at the
34 time it is imposed and shall not be more than two years. All of the
35 incidents of the original sentence, including the authority of the court
36 to modify or enlarge the conditions, shall continue to apply during such
37 additional period.
38 § 34. Section 65.20 of the penal law is amended to read as follows:
39 § 65.20 Sentence of unconditional discharge.
40 [1. Criteria. The court may impose a sentence of unconditional
41 discharge in any case where it is authorized to impose a sentence of
42 conditional discharge under section 65.05 if the court is of the opinion
43 that no proper purpose would be served by imposing any condition upon
44 the defendant's release.
45 When a sentence of unconditional discharge is imposed for a felony,
46 the court shall set forth in the record the reasons for its action.
47 2. Sentence.] When the court imposes a sentence of unconditional
48 discharge, the defendant shall be released with respect to the
49 conviction for which the sentence is imposed without imprisonment, fine
50 or probation supervision. A sentence of unconditional discharge is for
51 all purposes a final judgment of conviction.
52 § 35. Subdivision 2 of section 85.00 of the penal law, as added by
53 chapter 477 of the laws of 1970, paragraph (a) as amended by chapter 277
54 of the laws of 1973, is amended to read as follows:
55 2. Authorization for use of sentence. The court may impose a sentence
56 of intermittent imprisonment in any case where:
A. 2036 31
1 (a) [the court is imposing sentence, upon a person other than a second
2 or persistent felony offender, for a class D or class E felony or for
3 any offense that is not a felony; and
4 (b)] the court is not imposing any other sentence of imprisonment upon
5 the defendant at the same time; and
6 [(c)] (b) the defendant is not under any other sentence of imprison-
7 ment with a term in excess of fifteen days imposed by any other court[;
8 and].
9 § 36. Subdivisions 3, 4 and 5 of section 485.10 of the penal law,
10 subdivisions 3 and 4 as added by chapter 107 of the laws of 2000 and
11 subdivision 5 as amended by chapter 624 of the laws of 2022, are amended
12 to read as follows:
13 3. [Notwithstanding any other provision of law, when a person is
14 convicted of a hate crime pursuant to this article and the specified
15 offense is a class B felony:
16 (a) the maximum term of the indeterminate sentence must be at least
17 six years if the defendant is sentenced pursuant to section 70.00 of
18 this chapter;
19 (b) the term of the determinate sentence must be at least eight years
20 if the defendant is sentenced pursuant to section 70.02 of this chapter;
21 (c) the term of the determinate sentence must be at least twelve years
22 if the defendant is sentenced pursuant to section 70.04 of this chapter;
23 (d) the maximum term of the indeterminate sentence must be at least
24 four years if the defendant is sentenced pursuant to section 70.05 of
25 this chapter; and
26 (e) the maximum term of the indeterminate sentence or the term of the
27 determinate sentence must be at least ten years if the defendant is
28 sentenced pursuant to section 70.06 of this chapter.
29 4. Notwithstanding any other provision of law, when a person is
30 convicted of a hate crime pursuant to this article and the specified
31 offense is a class A-1 felony, the minimum period of the indeterminate
32 sentence shall be not less than twenty years.
33 5.] In addition to any of the dispositions authorized by this chapter,
34 the court shall require as part of the sentence imposed upon a person
35 convicted of a hate crime pursuant to this article, that the defendant
36 complete a program, training session or counseling session directed at
37 hate crime prevention and education, where the court determines such
38 program, training session or counseling session is appropriate, avail-
39 able and was developed or authorized by the court or local agencies in
40 cooperation with organizations serving the affected community.
41 § 37. Paragraph (d) of subdivision 2 of section 490.25 of the penal
42 law is REPEALED.
43 § 38. Sections 220.35, 400.15, 400.16, 400.19, 400.20 and 400.21 of
44 the criminal procedure law are REPEALED.
45 § 39. Subdivision 6 of section 2 of the correction law, as amended by
46 chapter 476 of the laws of 1970, is amended to read as follows:
47 6. "Residential treatment facility". A correctional facility consist-
48 ing of a community based residence in or near a community where employ-
49 ment, educational and training opportunities are readily available for
50 persons who [are on parole or conditional release and for persons who]
51 are or who will soon be eligible for release on parole who intend to
52 reside in or near that community when released.
53 § 40. Subdivision 10 of section 73 of the correction law is REPEALED.
54 § 41. Subdivision 1 of section 865 of the correction law, as amended
55 by chapter 322 of the laws of 2021, is amended to read as follows:
A. 2036 32
1 1. "Eligible incarcerated individual" means a person sentenced to an
2 indeterminate term of imprisonment who will become eligible for release
3 on parole within three years or sentenced to a determinate term of
4 imprisonment who will become eligible for conditional release within
5 three years[, who has not reached the age of fifty years, who has not
6 previously been convicted of a violent felony as defined in article
7 seventy of the penal law, or a felony in any other jurisdiction which
8 includes all of the essential elements of any such violent felony, upon
9 which an indeterminate or determinate term of imprisonment was imposed
10 and who was between the ages of sixteen and fifty years at the time of
11 commission of the crime upon which his or her present sentence was
12 based. Notwithstanding the foregoing, no person who is convicted of any
13 of the following crimes shall be deemed eligible to participate in this
14 program: (a) a violent felony offense as defined in article seventy of
15 the penal law; provided, however, that a person who is convicted of
16 burglary in the second degree as defined in subdivision two of section
17 140.25 of the penal law, or robbery in the second degree as defined in
18 subdivision one of section 160.10 of the penal law, or an attempt there-
19 of, is eligible to participate, (b) an A-I felony offense, (c) any homi-
20 cide offense as defined in article one hundred twenty-five of the penal
21 law, (d) any felony sex offense as defined in article one hundred thirty
22 of the penal law and (e) any escape or absconding offense as defined in
23 article two hundred five of the penal law].
24 § 42. Section 220.10 of the criminal procedure law, as amended by
25 chapter 480 of the laws of 1976, subdivision 5 as amended by chapter 410
26 of the laws of 1979, subparagraph (i) of paragraph (a) of subdivision 5
27 as amended by chapter 738 of the laws of 2004, paragraph (d) of subdivi-
28 sion 5 as added by chapter 233 of the laws of 1980, subparagraph (iv) of
29 paragraph (d) of subdivision 5 as amended by chapter 189 of the laws of
30 2000, paragraph (e) of subdivision 5 as amended by chapter 1 of the laws
31 of 1995, subparagraph (iii) of paragraph (g) of subdivision 5 as amended
32 by chapter 264 of the laws of 2003, the second undesignated paragraph of
33 paragraph (g) of subdivision 5 as amended by chapter 920 of the laws of
34 1982, the closing paragraph of paragraph (g) of subdivision 5 as amended
35 by chapter 411 of the laws of 1979, paragraph (g-1) of subdivision 5 as
36 added by chapter 809 of the laws of 2021, paragraph (h) of subdivision 5
37 as amended by chapter 322 of the laws of 2021 and subdivision 6 as added
38 by chapter 548 of the laws of 1980, is amended to read as follows:
39 § 220.10 Plea; kinds of pleas.
40 The only kinds of pleas which may be entered to an indictment are
41 those specified in this section:
42 1. The defendant may as a matter of right enter a plea of "not guilty"
43 to the indictment.
44 2. [Except as provided in subdivision five, the] The defendant may as
45 a matter of right enter a plea of "guilty" to the entire indictment.
46 3. [Except as provided in subdivision five, where] Where the indict-
47 ment charges but one crime, the defendant may, with [both] either the
48 permission of the court [and] in furtherance of justice in accordance
49 with the factors outlined in subdivision one of section 210.40 of this
50 part, or the consent of the people with the permission of the court,
51 enter a plea of guilty of a lesser included offense.
52 4. [Except as provided in subdivision five, where] Where the indict-
53 ment charges two or more offenses in separate counts, the defendant may,
54 with [both] either the permission of the court [and] in furtherance of
55 justice in accordance with the factors outlined in subdivision one of
A. 2036 33
1 section 210.40 of this part, or the consent of the people with the
2 permission of the court, enter a plea of:
3 (a) Guilty of one or more but not all of the offenses charged; or
4 (b) Guilty of a lesser included offense with respect to any or all of
5 the offenses charged; or
6 (c) Guilty of any combination of offenses charged and lesser offenses
7 included within other offenses charged.
8 5. [(a) (i) Where the indictment charges one of the class A felonies
9 defined in article two hundred twenty of the penal law or the attempt to
10 commit any such class A felony, then any plea of guilty entered pursuant
11 to subdivision three or four of this section must be or must include at
12 least a plea of guilty of a class B felony.
13 (iii) Where the indictment charges one of the class B felonies defined
14 in article two hundred twenty of the penal law then any plea of guilty
15 entered pursuant to subdivision three or four must be or must include at
16 least a plea of guilty of a class D felony.
17 (b) Where the indictment charges any class B felony, other than a
18 class B felony defined in article two hundred twenty of the penal law or
19 a class B violent felony offense as defined in subdivision one of
20 section 70.02 of the penal law, then any plea of guilty entered pursuant
21 to subdivision three or four must be or must include at least a plea of
22 guilty of a felony.
23 (c) Where the indictment charges a felony, other than a class A felony
24 or class B felony defined in article two hundred twenty of the penal law
25 or class B or class C violent felony offense as defined in subdivision
26 one of section 70.02 of the penal law, and it appears that the defendant
27 has previously been subjected to a predicate felony conviction as
28 defined in penal law section 70.06 then any plea of guilty entered
29 pursuant to subdivision three or four must be or must include at least a
30 plea of guilty of a felony.
31 (d) Where the indictment charges a class A felony, other than those
32 defined in article two hundred twenty of the penal law, or charges a
33 class B or class C violent felony offense as defined in subdivision one
34 of section 70.02 of the penal law, then a plea of guilty entered pursu-
35 ant to subdivision three or four must be as follows:
36 (i) Where the indictment charges a class A felony offense or a class B
37 violent felony offense which is also an armed felony offense then a plea
38 of guilty must include at least a plea of guilty to a class C violent
39 felony offense;
40 (ii) Except as provided in subparagraph (i) of this paragraph, where
41 the indictment charges a class B violent felony offense or a class C
42 violent felony offense, then a plea of guilty must include at least a
43 plea of guilty to a class D violent felony offense;
44 (iii) Where the indictment charges the class D violent felony offense
45 of criminal possession of a weapon in the third degree as defined in
46 subdivision four of section 265.02 of the penal law, and the defendant
47 has not been previously convicted of a class A misdemeanor defined in
48 the penal law in the five years preceding the commission of the offense,
49 then a plea of guilty must be either to the class E violent felony
50 offense of attempted criminal possession of a weapon in the third degree
51 or to the class A misdemeanor of criminal possession of a weapon in the
52 fourth degree as defined in subdivision one of section 265.01 of the
53 penal law;
54 (iv) Where the indictment charges the class D violent felony offenses
55 of criminal possession of a weapon in the third degree as defined in
56 subdivision four of section 265.02 of the penal law and the provisions
A. 2036 34
1 of subparagraph (iii) of this paragraph do not apply, or subdivision
2 five, seven or eight of section 265.02 of the penal law, then a plea of
3 guilty must include at least a plea of guilty to a class E violent felo-
4 ny offense.
5 (e) A defendant may not enter a plea of guilty to the crime of murder
6 in the first degree as defined in section 125.27 of the penal law;
7 provided, however, that a defendant may enter such a plea with both the
8 permission of the court and the consent of the people when the agreed
9 upon sentence is either life imprisonment without parole or a term of
10 imprisonment for the class A-I felony of murder in the first degree
11 other than a sentence of life imprisonment without parole.
12 (f) The provisions of this subdivision shall apply irrespective of
13 whether the defendant is thereby precluded from entering a plea of guil-
14 ty of any lesser included offense.
15 (g)] Where the defendant is a juvenile offender, [the provisions of
16 paragraphs (a), (b), (c) and (d) of this subdivision shall not apply
17 and] any plea entered pursuant to subdivision three or four of this
18 section, must be as follows:
19 [(i)] (a) If the indictment charges a person fourteen or fifteen years
20 old with the crime of murder in the second degree any plea of guilty
21 entered pursuant to subdivision three or four must be a plea of guilty
22 of a crime for which the defendant is criminally responsible;
23 [(ii)] (b) If the indictment does not charge a crime specified in
24 [subparagraph (i)] paragraph (a) of this [paragraph] subdivision, then
25 any plea of guilty entered pursuant to subdivision three or four of this
26 section must be a plea of guilty of a crime for which the defendant is
27 criminally responsible unless a plea of guilty is accepted pursuant to
28 [subparagraph (iii)] paragraph (c) of this [paragraph] subdivision;
29 [(iii)] (c) Where the indictment does not charge a crime specified in
30 [subparagraph (i)] paragraph (a) of this [paragraph] subdivision, the
31 district attorney may recommend removal of the action to the family
32 court. Upon making such recommendation the district attorney shall
33 submit a subscribed memorandum setting forth: [(1)] (i) a recommendation
34 that the interests of justice would best be served by removal of the
35 action to the family court; and [(2)] (ii) if the indictment charges a
36 thirteen year old with the crime of murder in the second degree, or a
37 fourteen or fifteen year old with the crimes of rape in the first degree
38 as defined in subdivision one of section 130.35 of the penal law, or
39 criminal sexual act in the first degree as defined in subdivision one of
40 section 130.50 of the penal law, or an armed felony as defined in para-
41 graph (a) of subdivision forty-one of section 1.20 of this chapter
42 specific factors, one or more of which reasonably supports the recommen-
43 dation, showing, [(i)] (1) mitigating circumstances that bear directly
44 upon the manner in which the crime was committed, or [(ii)] (2) where
45 the defendant was not the sole participant in the crime, that the
46 defendant's participation was relatively minor although not so minor as
47 to constitute a defense to the prosecution, or [(iii)] (3) possible
48 deficiencies in proof of the crime, or [(iv)] (4) where the juvenile
49 offender has no previous adjudications of having committed a designated
50 felony act, as defined in subdivision eight of section 301.2 of the
51 family court act, regardless of the age of the offender at the time of
52 commission of the act, that the criminal act was not part of a pattern
53 of criminal behavior and, in view of the history of the offender, is not
54 likely to be repeated.
55 If the court is of the opinion based on specific factors set forth in
56 the district attorney's memorandum that the interests of justice would
A. 2036 35
1 best be served by removal of the action to the family court, a plea of
2 guilty of a crime or act for which the defendant is not criminally
3 responsible may be entered pursuant to subdivision three or four of this
4 section, except that a thirteen year old charged with the crime of
5 murder in the second degree may only plead to a designated felony act,
6 as defined in subdivision eight of section 301.2 of the family court
7 act.
8 Upon accepting any such plea, the court must specify upon the record
9 the portion or portions of the district attorney's statement the court
10 is relying upon as the basis of its opinion and that it believes the
11 interests of justice would best be served by removal of the proceeding
12 to the family court. Such plea shall then be deemed to be a juvenile
13 delinquency fact determination and the court upon entry thereof must
14 direct that the action be removed to the family court in accordance with
15 the provisions of article seven hundred twenty-five of this chapter.
16 [(g-1)] 5-a. Where a defendant is an adolescent offender, the
17 provisions of paragraphs (a), (b)[,] and (c) [and (d)] of [this] subdi-
18 vision five of this section shall not apply. Where the plea is to an
19 offense constituting a misdemeanor, the plea shall be deemed replaced by
20 an order of fact-finding in a juvenile delinquency proceeding, pursuant
21 to section 346.1 of the family court act, and the action shall be
22 removed to the family court in accordance with article seven hundred
23 twenty-five of this chapter. Where the plea is to an offense constitut-
24 ing a felony, the court may remove the action to the family court in
25 accordance with section 722.23 and article seven hundred twenty-five of
26 this chapter.
27 [(h) Where the indictment charges the class E felony offense of aggra-
28 vated harassment of an employee by an incarcerated individual as defined
29 in section 240.32 of the penal law, then a plea of guilty must include
30 at least a plea of guilty to a class E felony.]
31 6. The defendant may, with both the permission of the court and the
32 consent of the people, enter a plea of not responsible by reason of
33 mental disease or defect to the indictment in the manner prescribed in
34 section 220.15 of this [chapter] article.
35 § 43. Subdivision 3 of section 220.30 of the criminal procedure law is
36 REPEALED.
37 § 44. This act shall take effect immediately.