Bill Text: NY A02036 | 2023-2024 | General Assembly | Amended
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Enacts the "Marvin Mayfield act", eliminating mandatory minimum sentences.
Spectrum: Partisan Bill (Democrat 52-0)
Status: (Introduced) 2024-03-28 - print number 2036b [A02036 Detail]
Download: New_York-2023-A02036-Amended.html
Bill Title: Enacts the "Marvin Mayfield act", eliminating mandatory minimum sentences.
Spectrum: Partisan Bill (Democrat 52-0)
Status: (Introduced) 2024-03-28 - print number 2036b [A02036 Detail]
Download: New_York-2023-A02036-Amended.html
STATE OF NEW YORK ________________________________________________________________________ 2036--A 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, SHRESTHA, KIM, DICKENS, SIMONE, ALVAREZ, ZINERMAN, DAVILA, SHIMSKY, CHANDLER-WATERMAN, ARDILA, RAGA, FORREST, LEVENBERG -- Multi-Sponsored by -- M. of A. SIMON -- read once and referred to the Committee on Codes -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee AN ACT to amend the penal law, the criminal procedure law and the correction law, in relation to eliminating mandatory minimums; to amend the sentencing reform act of 1995, in relation to the effective- ness 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 effectiveness thereof; to amend chapter 3 of the laws of 1995, amending the correction law and other laws relating to the incarceration fee, in relation to the effectiveness 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 the4commission of offenses through the deterrent influence of the sentences5authorized,] supporting the rehabilitation of [those] individuals who 6 have been convicted, [the promotion of] and their successful and produc- 7 tive reentry and reintegration into society[, and their confinement whenEXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD04611-03-3A. 2036--A 2 1required in the interests of public protection] by imposing the minimum 2 sentence necessary to achieve the goals of sentencing outlined above. 3 § 2. Section 380.20 of the criminal procedure law is amended to read 4 as follows: 5 § 380.20 Sentence required. 6 1. The court must pronounce sentence in every case where a conviction 7 is entered. If an accusatory instrument contains multiple counts and a 8 conviction is entered on more than one count the court must pronounce 9 sentence on each count. 10 2. When entering a sentence that includes a term of imprisonment, or 11 within seven days thereafter, the court shall issue a written decision 12 explaining its choice of sentence, based on individualized findings, 13 sufficient to facilitate appellate review. A defendant may knowingly and 14 voluntarily waive the right to a written decision. 15 § 3. Paragraph (a) of subdivision 3 of section 390.30 of the criminal 16 procedure law, as added by chapter 14 of the laws of 1985, is amended to 17 read as follows: 18 (a) The report of the pre-sentence investigation must contain an anal- 19 ysis of as much of the information gathered in the investigation as the 20 agency that conducted the investigation deems relevant to the question 21 of sentence. The report must also include any other [imformation] infor- 22 mation that the court directs to be included and the material required 23 by paragraph (b) of this subdivision which shall be considered part of 24 the report. The report shall include an analysis of the actual finan- 25 cial cost of incarceration to the state and/or localities of the poten- 26 tial sentences that may be imposed. 27 § 4. Subdivision 1 and paragraph (a) of subdivision 2 of section 28 390.50 of the criminal procedure law, subdivision 1 as separately 29 amended by chapters 224 and 369 of the laws of 1986 and paragraph (a) of 30 subdivision 2 as amended by chapter 31 of the laws of 2019, are amended 31 to read as follows: 32 1. In general. Any pre-sentence report or memorandum submitted to the 33 court pursuant to this article and any medical, psychiatric or social 34 agency report or other information gathered for the court by a probation 35 department, or submitted directly to the court, in connection with the 36 question of sentence is confidential and may not be made available by 37 any state agency, including the state department of corrections and 38 community supervision, to any person or public or private agency except 39 where specifically required or permitted by statute or upon specific 40 authorization of the court. Section one hundred forty-seven of the 41 correction law shall not be deemed to permit such disclosure. For 42 purposes of this section, any report, memorandum or other information 43 forwarded to a probation department within this state from a probation 44 agency outside this state is governed by the same rules of confidential- 45 ity. Any person, public or private agency receiving such material must 46 retain it under the same conditions of confidentiality as apply to the 47 probation department that made it available. 48 (a) Not less than one court day prior to sentencing, unless such time 49 requirement is waived by the parties, the pre-sentence report or memo- 50 randum shall be made available by the court for examination and for 51 copying and retention by the defendant's attorney, the defendant 52 himself, [if he has no attorney,] and the prosecutor. The defendant 53 shall be given an opportunity to challenge or correct any fact or 54 conclusion in the pre-sentence report or memorandum prior to the court's 55 pronouncement of sentence. In its discretion, the court may except from 56 disclosure a part or parts of the report or memoranda which are notA. 2036--A 3 1 relevant to a proper sentence, or a diagnostic opinion which might seri- 2 ously disrupt a program of rehabilitation, or sources of information 3 which have been obtained on a promise of confidentiality, or any other 4 portion thereof, disclosure of which would not be in the interest of 5 justice. In all cases where a part or parts of the report or memoranda 6 are not disclosed, the court shall state for the record that a part or 7 parts of the report or memoranda have been excepted and the reasons for 8 its action. The action of the court excepting information from disclo- 9 sure shall be subject to appellate review. The pre-sentence report shall 10 be made available by the court for examination and copying in connection 11 with any appeal in the case, including an appeal under this subdivision. 12 Upon written request, the court shall make a copy of the presentence 13 report, other than a part or parts of the report redacted by the court 14 pursuant to this paragraph, available to the defendant for use before 15 the parole board for release consideration or an appeal of a parole 16 board determination or an application for resentencing pursuant to 17 section 440.46 or 440.47 of this chapter. [In his or her written request18to the court the defendant shall affirm that he or she anticipates an19appearance before the parole board or intends to file an administrative20appeal of a parole board determination or meets the eligibility criteria21for and intends to file a motion for resentencing pursuant to 440.46 of22this chapter or has received notification from the court which received23his or her request to apply for resentencing pursuant to section 440.4724of this chapter confirming that he or she is eligible to submit an25application for resentencing pursuant to section 440.47 of this chap-26ter.] The court shall respond to the defendant's written request within 27 twenty days from receipt of the defendant's written request. 28 § 5. 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-41one] of this chapter, shall be fixed by the court. If a court finds that 42 sentence of imprisonment of more than one year is the minimum term of 43 imprisonment necessary to achieve the goals of sentencing, the court 44 shall impose an indeterminate sentence. When such a sentence is imposed, 45 the court shall impose a maximum term in accordance with the provisions 46 of subdivision two of this section [and the minimum period of imprison-47ment shall be as provided in subdivision three of this section]. The 48 minimum period shall be fixed by the court and specified in the sentence 49 and shall be not less than one year nor more than one-third of the maxi- 50 mum term imposed, or the court may impose a definite sentence of impri- 51 sonment and fix a term of less than one year. 52 2. Maximum term of sentence. The maximum term of an indeterminate 53 sentence shall be at least three years and the term shall be fixed as 54 follows: 55 (a) For a class A felony, the term shall be life imprisonment;A. 2036--A 4 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 imprisonment10under an indeterminate sentence shall be at least one year and shall be11fixed as follows:12(a) In the case of a class A felony, the minimum period shall be fixed13by the court and specified in the sentence.14(i) For a class A-I felony, such minimum period shall not be less than15fifteen years nor more than twenty-five years; provided, however, that16(A) where a sentence, other than a sentence of death or life imprison-17ment without parole, is imposed upon a defendant convicted of murder in18the first degree as defined in section 125.27 of this chapter such mini-19mum period shall be not less than twenty years nor more than twenty-five20years, and, (B) where a sentence is imposed upon a defendant convicted21of murder in the second degree as defined in subdivision five of section22125.25 of this chapter or convicted of aggravated murder as defined in23section 125.26 of this chapter, the sentence shall be life imprisonment24without parole, and, (C) where a sentence is imposed upon a defendant25convicted of attempted murder in the first degree as defined in article26one hundred ten of this chapter and subparagraph (i), (ii) or (iii) of27paragraph (a) of subdivision one and paragraph (b) of subdivision one of28section 125.27 of this chapter or attempted aggravated murder as defined29in article one hundred ten of this chapter and section 125.26 of this30chapter such minimum period shall be not less than twenty years nor more31than forty years.32(ii) For a class A-II felony, such minimum period shall not be less33than three years nor more than eight years four months, except that for34the class A-II felony of predatory sexual assault as defined in section35130.95 of this chapter or the class A-II felony of predatory sexual36assault against a child as defined in section 130.96 of this chapter,37such minimum period shall be not less than ten years nor more than twen-38ty-five years.39(b) For any other felony, the minimum period shall be fixed by the40court and specified in the sentence and shall be not less than one year41nor more than one-third of the maximum term imposed.424. Alternative definite sentence for class D and E felonies. When a43person, other than a second or persistent felony offender, is sentenced44for a class D or class E felony, and the court, having regard to the45nature and circumstances of the crime and to the history and character46of the defendant, is of the opinion that a sentence of imprisonment is47necessary but that it would be unduly harsh to impose an indeterminate48or determinate sentence, the court may impose a definite sentence of49imprisonment and fix a term of one year or less.505.] 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 asA. 2036--A 5 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 four26of 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 to29section 70.04 or as a second felony offender on a conviction for a30violent felony offense pursuant to section 70.06] of this article, the 31 sentence shall be fixed by the court. If a court finds that a sentence 32 of imprisonment of more than one year is the minimum term of imprison- 33 ment necessary to achieve the goals of sentencing, the court must impose 34 a determinate sentence of imprisonment in accordance with the provisions 35 of such [sections and such sentence shall include, as a part thereof, a36period of post-release supervision in accordance with section 70.45] 37 section. 38 § 6. 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 § 7. 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. The court may impose 51 a definite sentence of imprisonment and fix a term of less than one 52 year. If a court finds that a sentence of imprisonment of more than one 53 year is the minimum term of imprisonment necessary to achieve the goals 54 of sentencing, the court shall impose a determinate 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 theA. 2036--A 6 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-8half 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) [at26least 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-half31years] year and must not exceed four years. 32 § 8. 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 § 9. 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. If a court 42 finds that a sentence of imprisonment of more than one year is the mini- 43 mum term of imprisonment necessary to achieve the goals of sentencing, 44 the court shall impose an indeterminate sentence. When such a sentence 45 is imposed, the court shall impose a maximum term in accordance with the 46 provisions of subdivision two of this section and the minimum period of 47 imprisonment shall be as provided in subdivision three of this section. 48 The court shall further provide that where a juvenile offender is under 49 placement pursuant to article three of the family court act, any 50 sentence imposed pursuant to this section which is to be served consec- 51 utively with such placement shall be served in a facility designated 52 pursuant to subdivision four of section 70.20 of this article prior to 53 service of the placement in any previously designated facility. 54 3. Minimum period of imprisonment. The court may impose a definite 55 sentence of imprisonment and fix a term of less than one year. The mini- 56 mum period of imprisonment under an indeterminate sentence for a juve-A. 2036--A 7 1 nile offender shall be not less than one year nor more than one-third of 2 the maximum term imposed 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 not5less 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 than14four 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 § 10. Paragraph (c) of subdivision 1-a of section 70.15 of the penal 18 law, as added by section 2 of part OO of chapter 55 of the laws of 2019, 19 is amended to read as follows: 20 (c) Any sentence for a misdemeanor conviction imposed prior to the 21 effective date of this subdivision that is a definite sentence of impri- 22 sonment of one year, or three hundred sixty-five days, shall, by opera- 23 tion of law, be changed to, mean and be interpreted and applied as a 24 sentence of three hundred sixty-four days. In addition to any other 25 right of a person to obtain a record of a proceeding against him or her, 26 [a person so sentenced prior to the effective date of this subdivision27shall be entitled to obtain, from] the criminal court or the clerk ther- 28 eof, shall not issue a certificate of conviction, as described in subdi- 29 vision one of section 60.60 of the criminal procedure law, setting forth 30 [such sentence as the sentence specified in this paragraph] sentences of 31 one year. The criminal court or clerk thereof shall only issue certif- 32 icates of conviction setting forth sentences of three hundred sixty-four 33 days or less. The court shall implement this provision within ninety 34 days of the effective date of the chapter of the laws of two thousand 35 twenty-three that amended this paragraph. 36 § 11. Paragraph (a) of subdivision 1 of section 70.20 of the penal 37 law, as amended by section 124 of subpart B of part C of chapter 62 of 38 the laws of 2011, is amended to read as follows: 39 (a) Indeterminate or determinate sentence. Except as provided in 40 subdivision four of this section, when an indeterminate or determinate 41 sentence of imprisonment is imposed, the court shall commit the defend- 42 ant to the custody of the state department of corrections and community 43 supervision for the term of his or her sentence and until released in 44 accordance with the law[; provided, however, that a defendant sentenced45pursuant to subdivision seven of section 70.06 shall be committed to the46custody of the state department of corrections and community supervision47for immediate delivery to a reception center operated by the depart-48ment]. 49 § 12. Section 70.25 of the penal law, subdivision 1 as amended and 50 subdivision 5 as added by chapter 372 of the laws of 1981, paragraph (a) 51 of subdivision 1, subdivision 2-b, and paragraphs (a) and (b) of subdi- 52 vision 5 as amended by chapter 3 of the laws of 1995, subdivision 2 as 53 amended by chapter 56 of the laws of 1984, subdivision 2-a as amended by 54 chapter 495 of the laws of 2009, subdivisions 2-c and 2-d as added by 55 chapter 795 of the laws of 1986, subdivision 2-e as added by chapter 122 56 of the laws of 1996, subdivision 2-f as added by chapter 1 of the lawsA. 2036--A 8 1 of 2000, subdivision 2-g as added by chapter 394 of the laws of 2005 and 2 subdivision 4 as added by chapter 782 of the laws of 1975, is amended to 3 read as follows: 4 § 70.25 Concurrent and consecutive terms of imprisonment. 5 1. Except as provided in [subdivisions] subdivision two[, two-a and6five] of this section, when multiple sentences of imprisonment are 7 imposed on a person at the same time, or when a person who is subject to 8 any undischarged term of imprisonment imposed at a previous time by a 9 court of this state is sentenced to an additional term of imprisonment, 10 the sentence or sentences imposed by the court shall run either concur- 11 rently or consecutively with respect to each other and the undischarged 12 term or terms in such manner as the court directs at the time of 13 sentence. If the court does not specify the manner in which a sentence 14 imposed by it is to run, the sentence shall run as follows: 15 (a) An indeterminate or determinate sentence shall run concurrently 16 with all other terms; and 17 (b) A definite sentence shall run concurrently with [any sentence18imposed at the same time and shall be consecutive to any other term] all 19 other terms. 20 2. When more than one sentence of imprisonment is imposed on a person 21 for two or more offenses committed through a single act or omission, or 22 through an act or omission which in itself constituted one of the 23 offenses and also was a material element of the other, the sentences, 24 except if one or more of such sentences is for a violation of section 25 270.20 of this chapter, must run concurrently. 26 [2-a. When an indeterminate or determinate sentence of imprisonment is27imposed pursuant to section 70.04, 70.06, 70.07, 70.08, 70.10, subdivi-28sion three or four of section 70.70, subdivision three or four of29section 70.71 or subdivision five of section 70.80 of this article, or30is imposed for a class A-I felony pursuant to section 70.00 of this31article, and such person is subject to an undischarged indeterminate or32determinate sentence of imprisonment imposed prior to the date on which33the present crime was committed, the court must impose a sentence to run34consecutively with respect to such undischarged sentence.352-b. When a person is convicted of a violent felony offense committed36after arraignment and while released on recognizance or bail, but37committed prior to the imposition of sentence on a pending felony38charge, and if an indeterminate or determinate sentence of imprisonment39is imposed in each case, such sentences shall run consecutively.40Provided, however, that the court may, in the interest of justice, order41a sentence to run concurrently in a situation where consecutive42sentences are required by this subdivision if it finds either mitigating43circumstances that bear directly upon the manner in which the crime was44committed or, where the defendant was not the sole participant in the45crime, the defendant's participation was relatively minor although not46so minor as to constitute a defense to the prosecution. The defendant47and the district attorney shall have an opportunity to present relevant48information to assist the court in making this determination and the49court may, in its discretion, conduct a hearing with respect to any50issue bearing upon such determination. If the court determines that51consecutive sentences should not be ordered, it shall make a statement52on the record of the facts and circumstances upon which such determi-53nation is based.542-c. When a person is convicted of bail jumping in the second degree55as defined in section 215.56 or bail jumping in the first degree as56defined in section 215.57 committed after arraignment and while releasedA. 2036--A 9 1on recognizance or bail in connection with a pending indictment or2information charging one or more felonies, at least one of which he is3subsequently convicted, and if an indeterminate sentence of imprisonment4is imposed in each case, such sentences shall run consecutively.5Provided, however, that the court may, in the interest of justice, order6a sentence to run concurrently in a situation where consecutive7sentences are required by this subdivision if it finds mitigating8circumstances that bear directly upon the manner in which the crime was9committed. The defendant and the district attorney shall have an oppor-10tunity to present relevant information to assist the court in making11this determination and the court may, in its discretion, conduct a hear-12ing with respect to any issue bearing upon such determination. If the13court determines that consecutive sentences should not be ordered, it14shall make a statement on the record of the facts and circumstances upon15which such determination is based.162-d. When a person is convicted of escape in the second degree as17defined in section 205.10 or escape in the first degree as defined in18section 205.15 committed after issuance of a securing order, as defined19in subdivision five of section 500.10 of the criminal procedure law, in20connection with a pending indictment or information charging one or more21felonies, at least one of which he is subsequently convicted, and if an22indeterminate sentence of imprisonment is imposed in each case, such23sentences shall run consecutively. Provided, however, that the court24may, in the interest of justice, order a sentence to run concurrently in25a situation where consecutive sentences are required by this subdivision26if it finds mitigating circumstances that bear directly upon the manner27in which the crime was committed. The defendant and the district attor-28ney shall have an opportunity to present relevant information to assist29the court in making this determination and the court may, in its30discretion, conduct a hearing with respect to any issue bearing upon31such determination. If the court determines that consecutive sentences32should not be ordered, it shall make a statement on the record of the33facts and circumstances upon which such determination is based.342-e.] 2-a. Whenever a person is convicted of course of sexual conduct 35 against a child in the first degree as defined in section 130.75 or 36 course of sexual conduct against a child in the second degree as defined 37 in section 130.80 and any other crime under article one hundred thirty 38 committed against the same child and within the period charged under 39 section 130.75 or 130.80, the sentences must run concurrently. 40 [2-f.] 2-b. Whenever a person is convicted of facilitating a sex 41 offense with a controlled substance as defined in section 130.90 of this 42 chapter, the sentence imposed by the court for such offense may be 43 ordered to run consecutively to any sentence imposed upon conviction of 44 an offense defined in article one hundred thirty of this chapter arising 45 from the same criminal transaction. 46 [2-g.] 2-c. Whenever a person is convicted of unlawful manufacture of 47 methamphetamine in the third degree as defined in section 220.73 of this 48 chapter, unlawful manufacture of methamphetamine in the second degree as 49 defined in section 220.74 of this chapter, or unlawful manufacture of 50 methamphetamine in the first degree as defined in section 220.75 of this 51 chapter, or any attempt to commit any of such offenses, and such person 52 is also convicted, with respect to such unlawful methamphetamine labora- 53 tory, of unlawful disposal of methamphetamine laboratory material as 54 defined in section 220.76 of this chapter, the sentences must run 55 concurrently.A. 2036--A 10 1 3. Where consecutive definite sentences of imprisonment are not 2 prohibited by subdivision two of this section and are imposed on a 3 person for offenses which were committed as parts of a single incident 4 or transaction, the aggregate of the terms of such sentences shall not 5 exceed one year. 6 4. When a person, who is subject to any undischarged term of imprison- 7 ment imposed at a previous time by a court of another jurisdiction, is 8 sentenced to an additional term or terms of imprisonment by a court of 9 this state, the sentence or sentences imposed by the court of this 10 state, subject to the provisions of subdivisions one, two and three of 11 this section, shall run either concurrently or consecutively with 12 respect to such undischarged term in such manner as the court directs at 13 the time of sentence. If the court of this state does not specify the 14 manner in which a sentence imposed by it is to run, the sentence or 15 sentences shall run [consecutively] concurrently. 16 [5. (a) Except as provided in paragraph (c) of this subdivision, when17a person is convicted of assault in the second degree, as defined in18subdivision seven of section 120.05 of this chapter, any definite, inde-19terminate or determinate term of imprisonment which may be imposed as a20sentence upon such conviction shall run consecutively to any undisc-21harged term of imprisonment to which the defendant was subject and for22which he was confined at the time of the assault.23(b) Except as provided in paragraph (c) of this subdivision, when a24person is convicted of assault in the second degree, as defined in25subdivision seven of section 120.05 of this chapter, any definite, inde-26terminate or determinate term of imprisonment which may be imposed as a27sentence upon such conviction shall run consecutively to any term of28imprisonment which was previously imposed or which may be prospectively29imposed where the person was confined within a detention facility at the30time of the assault upon a charge which culminated in such sentence of31imprisonment.32(c) Notwithstanding the provisions of paragraphs (a) and (b) of this33subdivision, a term of imprisonment imposed upon a conviction to assault34in the second degree as defined in subdivision seven of section 120.0535of this chapter may run concurrently to any other term of imprisonment,36in the interest of justice, provided the court sets forth in the record37its reasons for imposing a concurrent sentence. Nothing in this section38shall require the imposition of a sentence of imprisonment where it is39not otherwise required by law.] 40 § 13. Paragraphs (a) and (f) of subdivision 1 and the opening para- 41 graph of subdivision 3 of section 70.30 of the penal law, paragraph (a) 42 of subdivision 1 as amended by chapter 3 of the laws of 1995, paragraph 43 (f) of subdivision 1 as added by chapter 481 of the laws of 1978 and as 44 relettered by chapter 3 of the laws of 1995, and the opening paragraph 45 of subdivision 3 as amended by chapter 1 of the laws of 1998, are 46 amended to read as follows: 47 (a) If the sentences run concurrently, the time served under imprison- 48 ment on any of the sentences shall be credited against the minimum and 49 maximum periods of all the concurrent indeterminate sentences and 50 against the terms of all the concurrent determinate sentences. The maxi- 51 mum term or terms of the indeterminate sentences and the term or terms 52 of the determinate sentences shall merge in and be satisfied by 53 discharge of the term which has the longest unexpired time to run; 54 (f) The aggregate maximum term of consecutive sentences imposed upon a 55 juvenile offender for two or more crimes, not including a class A felo- 56 ny, committed before he has reached the age of sixteen, shall, if itA. 2036--A 11 1 exceeds ten years, be deemed to be ten years. If consecutive indetermi- 2 nate sentences imposed upon a juvenile offender include a sentence for 3 the class A felony of arson in the first degree or for the class A felo- 4 ny of kidnapping in the first degree, then the aggregate maximum term of 5 such sentences shall, if it exceeds fifteen years, be deemed to be 6 fifteen years. Where the aggregate maximum term of two or more consec- 7 utive sentences is reduced by a calculation made pursuant to this para- 8 graph, the aggregate minimum period of imprisonment, if it exceeds 9 [one-half] one-third of the aggregate maximum term as so reduced, shall 10 be deemed to be [one-half] one-third of the aggregate maximum term as so 11 reduced. 12 The term of a definite sentence, a determinate sentence, or the maxi- 13 mum term of an indeterminate sentence imposed on a person shall be cred- 14 ited with and diminished by the amount of time the person spent in 15 custody prior to the commencement of such sentence as a result of [the] 16 any pending charge [that culminated in the sentence]. In the case of an 17 indeterminate sentence, if the minimum period of imprisonment has been 18 fixed by the court or by the board of parole, the credit shall also be 19 applied against the minimum period. The credit herein provided shall be 20 calculated from the date custody under the charge commenced to the date 21 the sentence commences and shall not include any time that is credited 22 against the term or maximum term of any previously imposed sentence or 23 period of post-release supervision to which the person is subject. 24 Provided, however, that when a person is subject to an undischarged term 25 of imprisonment or post-release supervision following parole release, 26 presumptive release or conditional release from an indeterminate 27 sentence, or conditional release or maximum expiration of a determinate 28 sentence, and is held in pretrial custody in a local correctional facil- 29 ity on a new charge or charges that culminate in an indeterminate or 30 determinate term of imprisonment, the time spent in pre-trial custody in 31 a local correctional facility on such charge or charges, from the date 32 custody commenced to the date of commencement of the subsequently 33 imposed indeterminate or determinate sentence, shall be credited as jail 34 time; and provided further that when jail time is credited in such 35 manner the time spent in pre-trial custody shall not be credited to the 36 previously imposed sentence to which the person is subject. Where the 37 charge or charges culminate in more than one sentence, the credit shall 38 be applied as follows: 39 § 14. Section 10 of chapter 339 of the laws of 1972, amending the 40 correction law and the penal law relating to inmate work release, 41 furlough and leave, as amended by section 6 of part A of chapter 55 of 42 the laws of 2021, is amended to read as follows: 43 § 10. This act shall take effect 30 days after it shall have become a 44 law and sections one through eight shall remain in effect until Septem- 45 ber 1, 2023, and provided further that the commissioner of correctional 46 services shall report each January first, and July first, to the chair- 47 man of the senate crime victims, crime and correction committee, the 48 senate codes committee, the assembly correction committee, and the 49 assembly codes committee, the number of eligible [inmates] incarcerated 50 individuals in each facility under the custody and control of the 51 commissioner who have applied for participation in any program offered 52 under the provisions of work release, furlough, or leave, and the number 53 of such [inmates] incarcerated individuals who have been approved for 54 participation.A. 2036--A 12 1 § 15. Section 70.35 of the penal law, as amended by section 127-a of 2 subpart B of part C of chapter 62 of the laws of 2011, is amended to 3 read as follows: 4 § 70.35 Merger of certain definite and indeterminate or determinate 5 sentences. 6 The service of an indeterminate or determinate sentence of imprison- 7 ment shall satisfy any definite sentence of imprisonment imposed on a 8 person for an offense committed prior to the time the indeterminate or 9 determinate sentence was imposed, [except as provided in paragraph (b)10of subdivision five of section 70.25 of this article]. A person who is 11 serving a definite sentence at the time an indeterminate or determinate 12 sentence is imposed shall be delivered to the custody of the state 13 department of corrections and community supervision to commence service 14 of the indeterminate or determinate sentence immediately [unless the15person is serving a definite sentence pursuant to paragraph (b) of16subdivision five of section 70.25 of this article]. In any case where 17 the indeterminate or determinate sentence is revoked or vacated, the 18 person shall receive credit against the definite sentence for each day 19 spent in the custody of the state department of corrections and communi- 20 ty supervision. 21 § 16. Paragraph a of subdivision 6 of section 76 of chapter 435 of the 22 laws of 1997, amending the military law and other laws relating to vari- 23 ous provisions, as amended by section 15 of part A of chapter 55 of the 24 laws of 2021, is amended to read as follows: 25 a. sections forty-three through [forty-five] forty-four of this act 26 shall expire and be deemed repealed on September 1, 2023; 27 § 17. Subdivisions (f), (g) and (h) of section 15 of part E of chapter 28 62 of the laws of 2003, amending the correction law and other laws 29 relating to various provisions, are amended to read as follows: 30 (f) the amendments made to subdivision 2 of section 259-c of the exec- 31 utive law made by section seven of this act shall not affect the expira- 32 tion of such subdivision and shall be deemed to expire therewith; and 33 (g) the amendments to paragraph (a) of subdivision 2 and subparagraph 34 (i) of paragraph (a) and paragraph (d) of subdivision 3 of section 259-i 35 of the executive law made by section eleven of this act shall not affect 36 the expiration of such paragraph (a) of subdivision 2, such subparagraph 37 (i) of paragraph (a) and such paragraph (d) of subdivision 3 and shall 38 be deemed to expire therewith[; and39(h) paragraph (c) of subdivision 1 of section 70.40 of the penal law40as added by section thirteen of this act shall expire and be deemed41repealed on the same date as subdivision 6 of section 76 of chapter 43542of the laws of 1997, as amended]. 43 § 18. Subdivisions 1, 2, 2-a and 3 of section 70.45 of the penal law, 44 subdivision 1 as amended by chapter 141 of the laws of 2008, subdivision 45 2 as amended and subdivision 2-a as added by chapter 7 of the laws of 46 2007, paragraphs (a), (b), (c), (d), (e) and (f) of subdivision 2 as 47 amended by chapter 31 of the laws of 2019, and subdivision 3 as added by 48 chapter 1 of the laws of 1998, are amended to read as follows: 49 1. In general. When a court imposes a determinate sentence it shall in 50 each case state not only the term of imprisonment, but also an addi- 51 tional period of post-release supervision as determined pursuant to this 52 article. Such period shall commence as provided in subdivision five of 53 this section and a violation of any condition of supervision occurring 54 at any time during such period of post-release supervision shall subject 55 the defendant to a further period of imprisonment up to the balance of 56 the remaining period of post-release supervision, not to exceed fiveA. 2036--A 13 1 years; provided, however, that a defendant serving a term of post-re- 2 lease supervision for a conviction of a felony sex offense, as defined 3 in section 70.80 of this article, may be subject to a further period of 4 imprisonment up to the balance of the remaining period of post-release 5 supervision. Notwithstanding any other provision of law to the contra- 6 ry, no person serving a period of post-release supervision shall be 7 confined in a correctional facility, including a residential treatment 8 facility as defined in subdivision six of section two of the correction 9 law, except following a revocation hearing as set forth in section two 10 hundred fifty-nine-i of the executive law. Such maximum limits shall not 11 preclude a longer period of further imprisonment for a violation where 12 the defendant is subject to indeterminate and determinate sentences. 13 2. Period of post-release supervision for other than felony sex 14 offenses. The period of post-release supervision for a determinate 15 sentence, other than a determinate sentence imposed for a felony sex 16 offense as defined in paragraph (a) of subdivision one of section 70.80 17 of this article, shall [be] not exceed five years except that: 18 (a) such period shall [be] not exceed one year whenever a determinate 19 sentence of imprisonment is imposed pursuant to subdivision two of 20 section 70.70 of this article or subdivision nine of section 60.12 of 21 this title upon a conviction of a class D or class E felony offense; 22 (b) such period shall be not [less than one year nor] more than two 23 years whenever a determinate sentence of imprisonment is imposed pursu- 24 ant to subdivision two of section 70.70 of this article or subdivision 25 nine of section 60.12 of this title upon a conviction of a class B or 26 class C felony offense; 27 (c) such period shall be not [less than one year nor] more than two 28 years whenever a determinate sentence of imprisonment is imposed pursu- 29 ant to [subdivision three or four of section 70.70 of this article upon30conviction of a class D or class E felony offense or] subdivision ten of 31 section 60.12 of this title; 32 (d) such period shall be not [less than one and one-half years nor] 33 more than three years whenever a determinate sentence of imprisonment is 34 imposed pursuant to [subdivision three or four of section 70.70 of this35article upon conviction of a class B felony or class C felony offense36or] subdivision eleven of section 60.12 of this title; 37 (e) such period shall be not [less than one and one-half years nor] 38 more than three years whenever a determinate sentence of imprisonment is 39 imposed pursuant to subdivision [three] two of section 70.02 of this 40 article or subdivision two or eight of section 60.12 of this title upon 41 a conviction of a class D or class E violent felony offense or subdivi- 42 sion four, five, six, or seven of section 60.12 of this title; 43 (f) such period shall be not [less than two and one-half years nor] 44 more than five years whenever a determinate sentence of imprisonment is 45 imposed pursuant to subdivision [three] two of section 70.02 of this 46 article or subdivision two or eight of section 60.12 of this title upon 47 a conviction of a class B or class C violent felony offense. 48 2-a. Periods of post-release supervision for felony sex offenses. The 49 period of post-release supervision for a determinate sentence imposed 50 for a felony sex offense as defined in paragraph (a) of subdivision one 51 of section 70.80 of this article shall be as follows: 52 (a) not [less than three years nor] more than ten years whenever a 53 determinate sentence of imprisonment is imposed pursuant to subdivision 54 four of section 70.80 of this article upon a conviction of a class D or 55 class E felony sex offense;A. 2036--A 14 1 (b) not [less than five years nor] more than fifteen years whenever a 2 determinate sentence of imprisonment is imposed pursuant to subdivision 3 four of section 70.80 of this article upon a conviction of a class C 4 felony sex offense; 5 (c) not [less than five years nor] more than twenty years whenever a 6 determinate sentence of imprisonment is imposed pursuant to subdivision 7 four of section 70.80 of this article upon a conviction of a class B 8 felony sex offense; 9 (d) not [less than three years nor] more than ten years whenever a 10 determinate sentence is imposed pursuant to subdivision [three] two of 11 section 70.02 of this article upon a conviction of a class D or class E 12 violent felony sex offense as defined in paragraph (b) of subdivision 13 one of section 70.80 of this article; 14 (e) not [less than five years nor] more than fifteen years whenever a 15 determinate sentence is imposed pursuant to subdivision [three] two of 16 section 70.02 of this article upon a conviction of a class C violent 17 felony sex offense as defined in section 70.80 of this article; 18 (f) not [less than five years nor] more than twenty years whenever a 19 determinate sentence is imposed pursuant to subdivision [three] two of 20 section 70.02 of this article upon a conviction of a class B violent 21 felony sex offense as defined in section 70.80 of this article; 22 (g) not [less than five years nor] more than fifteen years whenever a 23 determinate sentence of imprisonment is imposed pursuant to [either24section 70.04, section 70.06, or subdivision five of] section 70.80 of 25 this article upon a conviction of a class D or class E violent or non- 26 violent felony sex offense as defined in section 70.80 of this article; 27 (h) not [less than seven years nor] more than twenty years whenever a 28 determinate sentence of imprisonment is imposed pursuant to [either29section 70.04, section 70.06, or subdivision five of] section 70.80 of 30 this article upon a conviction of a class C violent or non-violent felo- 31 ny sex offense as defined in section 70.80 of this article; and 32 (i) such period shall be not [less than ten years nor] more than twen- 33 ty-five years whenever a determinate sentence of imprisonment is imposed 34 pursuant to [either section 70.04, section 70.06, or subdivision five35of] section 70.80 of this article upon a conviction of a class B violent 36 or non-violent felony sex offense as defined in section 70.80 of this 37 article[; and38(j) such period shall be not less than ten years nor more than twenty39years whenever any determinate sentence of imprisonment is imposed40pursuant to subdivision four of section 70.07 of this article]. 41 3. Conditions of post-release supervision. The board of parole shall 42 establish and impose conditions of post-release supervision in the same 43 manner and to the same extent as it may establish and impose conditions 44 in accordance with the executive law upon persons who are granted parole 45 or conditional release[; provided that, notwithstanding any other46provision of law, the board of parole may impose as a condition of post-47release supervision that for a period not exceeding six months imme-48diately following release from the underlying term of imprisonment the49person be transferred to and participate in the programs of a residen-50tial treatment facility as that term is defined in subdivision six of51section two of the correction law]. Upon release from the underlying 52 term of imprisonment, the person shall be furnished with a written 53 statement setting forth the conditions of post-release supervision in 54 sufficient detail to provide for the person's conduct and supervision. 55 § 19. Subdivisions 1 and 2 of section 70.70 of the penal law, as added 56 by chapter 738 of the laws of 2004, paragraphs (a) and (b) of subdivi-A. 2036--A 15 1 sion 1 and paragraphs (b) and (c) of subdivision 2 as amended by chapter 2 92 of the laws of 2021, subparagraph (i) of paragraph (a) of subdivision 3 2 as amended by section 21 and paragraph (d) of subdivision 2 as added 4 by section 23 of part AAA of chapter 56 of the laws of 2009, are amended 5 to read as follows: 6 1. For the purposes of this section, [the following terms shall mean:7(a) "Felony] "felony drug offender" means a defendant who stands 8 convicted of any felony, defined in article two hundred twenty or two 9 hundred twenty-two of this chapter other than a class A felony. 10 [(b) "Second felony drug offender" means a second felony offender as11that term is defined in subdivision one of section 70.06 of this arti-12cle, who stands convicted of any felony, defined in article two hundred13twenty or two hundred twenty-two of this chapter other than a class A14felony.15(c) "Violent felony" shall have the same meaning as that term is16defined in subdivision one of section 70.02 of this article.] 17 2. [Except as provided in subdivision three or four of this section,18a] (a) Term of sentence. The term of sentence [of imprisonment] for a 19 felony drug offender shall be fixed by the court. The court may impose a 20 definite sentence of imprisonment and fix a term of less than one year. 21 If a court finds that a sentence of imprisonment of more than one year 22 is the minimum term of imprisonment necessary to achieve the goals of 23 sentencing, the court shall impose a determinate sentence as provided in 24 paragraph [(a)] (b) of this subdivision. 25 [(a)] (b) Term of determinate sentence. [Except as provided in para-26graph (b) or (c) of this subdivision, the court shall impose a] A deter- 27 minate term of imprisonment [upon a felony drug offender which] shall be 28 imposed by the court in whole or half years, which shall include as a 29 part thereof a period of post-release supervision in accordance with 30 section 70.45 of this article. The terms of imprisonment authorized for 31 such determinate sentences are as follows: 32 (i) for a class B felony, the term shall [be at least one year and33shall] not exceed nine years[, except that for the class B felony of34criminal sale of a controlled substance in or near school grounds as35defined in subdivision two of section 220.44 of this chapter or on a36school bus as defined in subdivision seventeen of section 220.00 of this37chapter or criminal sale of a controlled substance to a child as defined38in section 220.48 of this chapter, the term shall be at least two years39and shall not exceed nine years]; 40 (ii) for a class C felony, the term shall [be at least one year and41shall] not exceed five and one-half years; 42 (iii) for a class D felony, the term shall [be at least one year and43shall] not exceed two and one-half years; and 44 (iv) for a class E felony, the term shall [be at least one year and45shall] not exceed one and one-half years. 46 [(b) Probation. Notwithstanding any other provision of law, the court47may sentence a defendant convicted of a class B, class C, class D or48class E felony offense defined in article two hundred twenty or two49hundred twenty-two of this chapter to probation in accordance with the50provisions of sections 60.04 and 65.00 of this chapter.51(c) Alternative definite sentence for class B, class C, class D, and52class E felonies. If the court, having regard to the nature and circum-53stances of the crime and to the history and character of the defendant,54is of the opinion that a sentence of imprisonment is necessary but that55it would be unduly harsh to impose a determinate sentence upon a person56convicted of a class C, class D or class E felony offense defined inA. 2036--A 16 1article two hundred twenty or two hundred twenty-two of this chapter, or2a class B felony defined in article two hundred twenty of this chapter,3other than the class B felony defined in section 220.48 of this chapter,4as added by a chapter of the laws of two thousand nine the court may5impose a definite sentence of imprisonment and fix a term of one year or6less.7(d) The court may direct that a determinate sentence imposed on a8defendant convicted of a class B felony, other than the class B felony9defined in section 220.48 of this chapter, pursuant to this subdivision10be executed as a sentence of parole supervision in accordance with11section 410.91 of the criminal procedure law.] 12 § 20. Subdivisions 3 and 4 of section 70.70 of the penal law are 13 REPEALED. 14 § 21. Section 70.71 of the penal law, as added by chapter 738 of the 15 laws of 2004, paragraph (a) of subdivision 2 as amended and subdivision 16 5 as added by section 26 of part AAA of chapter 56 of the laws of 2009, 17 is amended to read as follows: 18 § 70.71 Sentence of imprisonment for a class A felony drug offender. 19 1. For the purposes of this section, the following terms shall mean: 20 (a) "Felony drug offender" means a defendant who stands convicted of 21 any class A felony as defined in article two hundred twenty of this 22 chapter. 23 (b) ["Second felony drug offender" means a second felony offender as24that term is defined in subdivision one of section 70.06 of this arti-25cle, who stands convicted of and is to be sentenced for any class A26felony as defined in article two hundred twenty of this chapter.27(c)] "Violent felony offense" shall have the same meaning as that term 28 is defined in subdivision one of section 70.02 of this article. 29 2. Sentence of imprisonment for a first felony drug offender. 30 (a) Applicability. Except as provided in subdivision three[, four or31five] of this section, this subdivision shall apply to a person 32 convicted of a class A felony as defined in article two hundred twenty 33 of this chapter. 34 (b) Authorized sentence. The term of sentence shall be fixed by the 35 court. The court may impose a definite sentence of imprisonment and fix 36 a term of less than one year. If a court finds that a sentence of impri- 37 sonment is the minimum term of imprisonment necessary to achieve the 38 goals of sentencing, the court shall impose a determinate term of impri- 39 sonment which shall be imposed by the court in whole or half years and 40 which shall include as a part thereof a period of post-release super- 41 vision in accordance with section 70.45 of this article. The terms 42 authorized for such determinate sentences are as follows: 43 (i) for a class A-I felony, the term shall [be at least eight years44and shall] not exceed twenty years; 45 (ii) for a class A-II felony, the term shall [be at least three years46and shall] not exceed ten years. 47 [(c) Lifetime probation. Notwithstanding any other provision of law,48the court may sentence a defendant convicted of a class A-II felony49defined in article two hundred twenty of this chapter to lifetime50probation in accordance with the provisions of section 65.00 of this51chapter.] 52 3. [Sentence of imprisonment for a second felony drug offender.53(a) Applicability. This subdivision shall apply to a second felony54drug offender whose prior felony conviction or convictions did not55include one or more violent felony offenses.A. 2036--A 17 1(b) Authorized sentence. When the court has found pursuant to the2provisions of section 400.21 of the criminal procedure law that a3defendant is a second felony drug offender who stands convicted of a4class A felony as defined in article two hundred twenty or two hundred5twenty-one of this chapter, the court shall impose a determinate6sentence of imprisonment. Such determinate sentence shall include as a7part thereof a period of post-release supervision in accordance with8section 70.45 of this article. Such determinate sentence shall be9imposed by the court in whole or half years as follows:10(i) for a class A-I felony, the term shall be at least twelve years11and shall not exceed twenty-four years;12(ii) for a class A-II felony, the term shall be at least six years and13shall not exceed fourteen years.14(c) Lifetime probation. Notwithstanding any other provision of law,15the court may sentence a defendant convicted of a class A-II felony16defined in article two hundred twenty of this chapter to lifetime17probation in accordance with the provisions of section 65.00 of this18chapter.194. Sentence of imprisonment for a second felony drug offender previ-20ously convicted of a violent felony offense.21(a) Applicability. This subdivision shall apply to a second felony22drug offender whose prior felony conviction was a violent felony.23(b) Authorized sentence. When the court has found pursuant to the24provisions of section 400.21 of the criminal procedure law that a25defendant is a second felony drug offender whose prior felony conviction26was a violent felony, who stands convicted of a class A felony as27defined in article two hundred twenty or two hundred twenty-one of this28chapter, the court shall impose a determinate sentence of imprisonment.29Such determinate sentence shall include as a part thereof a period of30post-release supervision in accordance with section 70.45 of this arti-31cle. Such determinate sentence shall be imposed by the court in whole or32half years as follows:33(i) for a class A-I felony, the term shall be at least fifteen years34and shall not exceed thirty years;35(ii) for a class A-II felony, the term shall be at least eight years36and shall not exceed seventeen years.375.] Sentence of imprisonment for operating as a major trafficker. 38 (a) Applicability. This subdivision shall apply to a person convicted 39 of the class A-I felony of operating as a major trafficker as defined in 40 section 220.77 of this chapter. 41 (b) Authorized sentence. [Except as provided in paragraph (c) of this42subdivision, the] The term of sentence shall be fixed by the court. The 43 court may impose a definite sentence of imprisonment and fix a term of 44 less than one year. If a court finds that a sentence of imprisonment is 45 the minimum term of imprisonment necessary to achieve the goals of 46 sentencing, the court shall impose an indeterminate term of imprisonment 47 for an A-I felony, in accordance with the provisions of section 70.00 of 48 this article. 49 [(c) Alternative determinate sentence. If a defendant stands convicted50of violating section 220.77 of this chapter, and if the court, having51regard to the nature and circumstances of the crime and the history and52character of the defendant, is of the opinion that a sentence of impri-53sonment is necessary but that it would be unduly harsh to impose the54indeterminate sentence for a class A-I felony specified under section5570.00 of this article, the court may instead impose the determinate56sentence of imprisonment authorized by clause (i) of subparagraph (b) ofA. 2036--A 18 1subdivision two of this section for a class A-I drug felony; in such2case, the reasons for the court's opinion shall be set forth on the3record.] 4 § 22. Section 70.80 of the penal law, as added by chapter 7 of the 5 laws of 2007, paragraph (a) of subdivision 1 as amended by chapter 368 6 of the laws of 2015, is amended to read as follows: 7 § 70.80 Sentences of imprisonment for conviction of a felony sex 8 offense. 9 1. Definitions. (a) For the purposes of this section, a "felony sex 10 offense" means a conviction of any felony defined in article one hundred 11 thirty of this chapter, including a sexually motivated felony, or 12 patronizing a person for prostitution in the first degree as defined in 13 section 230.06 of this chapter, patronizing a person for prostitution in 14 the second degree as defined in section 230.05 of this chapter, aggra- 15 vated patronizing a minor for prostitution in the third degree as 16 defined in section 230.11 of this chapter, aggravated patronizing a 17 minor for prostitution in the second degree as defined in section 230.12 18 of this chapter, aggravated patronizing a minor for prostitution in the 19 first degree as defined in section 230.13 of this chapter, incest in the 20 second degree as defined in section 255.26 of this chapter, or incest in 21 the first degree as defined in section 255.27 of this chapter, or a 22 felony attempt or conspiracy to commit any of the above. 23 (b) A felony sex offense shall be deemed a "violent felony sex 24 offense" if it is for an offense defined as a violent felony offense in 25 section 70.02 of this article, or for a sexually motivated felony as 26 defined in section 130.91 of this chapter where the specified offense is 27 a violent felony offense as defined in section 70.02 of this article. 28 (c) [For the purposes of this section, a "predicate felony sex offen-29der" means a person who stands convicted of any felony sex offense as30defined in paragraph (a) of this subdivision, other than a class A-I31felony, after having previously been subjected to one or more predicate32felony convictions as defined in subdivision one of section 70.06 or33subdivision one of section 70.04 of this article.34(d)] For purposes of this section, a "violent felony offense" is any 35 felony defined in subdivision one of section 70.02 of this article, and 36 a "non-violent felony offense" is any felony not defined therein. 37 2. In imposing a sentence within the authorized statutory range for 38 any felony sex offense, the court may consider all relevant factors set 39 forth in section 1.05 of this chapter, and in particular, may consider 40 the defendant's criminal history, if any, including any history of sex 41 offenses; any mental illness or mental abnormality from which the 42 defendant may suffer; the defendant's ability or inability to control 43 his sexual behavior; and, if the defendant has difficulty controlling 44 such behavior, the extent to which that difficulty may pose a threat to 45 society. 46 3. Except as provided by subdivision four, five, six[,] or seven [or47eight] of this section, or when a defendant is being sentenced for a 48 conviction of the class A-II felonies of predatory sexual assault and 49 predatory sexual assault against a child as defined in sections 130.95 50 and 130.96 of this chapter, or for any class A-I sexually motivated 51 felony for which a life sentence or a life without parole sentence 52 [must] may be imposed, a sentence imposed upon a defendant convicted of 53 a felony sex offense shall be fixed by the court. The court may impose 54 a definite sentence of imprisonment and fix a term of less than one 55 year. If a court finds that a sentence of imprisonment is the minimum 56 term of imprisonment necessary to achieve the goals of sentencing, theA. 2036--A 19 1 court shall impose a determinate sentence. The determinate sentence 2 shall be imposed by the court in whole or half years, and shall include 3 as a part thereof a period of post-release supervision in accordance 4 with subdivision two-a of section 70.45 of this article. [Persons eligi-5ble for sentencing under section 70.07 of this article governing second6child sexual assault felonies shall be sentenced under such section and7paragraph (j) of subdivision two-a of section 70.45 of this article.] 8 4. [(a)] Sentences of imprisonment for felony sex offenses. Except as 9 provided in subdivision five, six[,] or seven[, or eight] of this 10 section, the term of the determinate sentence must be fixed by the court 11 as follows: 12 [(i)] (a) for a class B felony, the term must [be at least five years13and must] not exceed twenty-five years; 14 [(ii)] (b) for a class C felony, the term must [be at least three and15one-half years and must] not exceed fifteen years; 16 [(iii)] (c) for a class D felony, the term must [be at least two years17and must] not exceed seven years; and 18 [(iv)] (d) for a class E felony, the term must [be at least one and19one-half years and must] not exceed four years. 20 [(b) Probation. The court may sentence a defendant convicted of a21class D or class E felony sex offense to probation in accordance with22the provisions of section 65.00 of this title.23(c) Alternative definite sentences for class D and class E felony sex24offenses. If the court, having regard to the nature and circumstances of25the crime and to the history and character of the defendant, is of the26opinion that a sentence of imprisonment is necessary but that it would27be unduly harsh to impose a determinate sentence upon a person convicted28of a class D or class E felony sex offense, the court may impose a defi-29nite sentence of imprisonment and fix a term of one year or less.305. Sentence of imprisonment for a predicate felony sex offender. (a)31Applicability. This subdivision shall apply to a predicate felony sex32offender who stands convicted of a non-violent felony sex offense and33who was previously convicted of one or more felonies.34(b) Non-violent predicate felony offense. When the court has found,35pursuant to the provisions of the criminal procedure law, that a person36is a predicate felony sex offender, and the person's predicate37conviction was for a non-violent felony offense, the court must impose a38determinate sentence of imprisonment, the term of which must be fixed by39the court as follows:40(i) for a class B felony, the term must be at least eight years and41must not exceed twenty-five years;42(ii) for a class C felony, the term must be at least five years and43must not exceed fifteen years;44(iii) for a class D felony, the term must be at least three years and45must not exceed seven years; and46(iv) for a class E felony, the term must be at least two years and47must not exceed four years.48(c) Violent predicate felony offense. When the court has found, pursu-49ant to the provisions of the criminal procedure law, that a person is a50predicate felony sex offender, and the person's predicate conviction was51for a violent felony offense, the court must impose a determinate52sentence of imprisonment, the term of which must be fixed by the court53as follows:54(i) for a class B felony, the term must be at least nine years and55must not exceed twenty-five years;A. 2036--A 20 1(ii) for a class C felony, the term must be at least six years and2must not exceed fifteen years;3(iii) for a class D felony, the term must be at least four years and4must not exceed seven years; and5(iv) for a class E felony, the term must be at least two and one-half6years and must not exceed four years.7(d) A defendant who stands convicted of a non-violent felony sex8offense, other than a class A-I or class A-II felony, who is adjudicated9a persistent felony offender under section 70.10 of this article, shall10be sentenced pursuant to the provisions of section 70.10 or pursuant to11this subdivision.126.] 5. Sentence of imprisonment for a violent felony sex offense. 13 Except as provided in subdivisions six and seven [and eight] of this 14 section, a defendant who stands convicted of a violent felony sex 15 offense must be sentenced pursuant to the provisions of section 70.02[,16section 70.04, subdivision six of section 70.06, section 70.08, or17section 70.10] of this article, as applicable. 18 [7.] 6. Sentence for a class A felony sex offense. When a person 19 stands convicted of a sexually motivated felony pursuant to section 20 130.91 of this chapter and the specified offense is a class A felony, 21 the court must sentence the defendant in accordance with the provisions 22 of: 23 (a) section 60.06 of this [chapter] title and section 70.00 of this 24 article, as applicable, if such offense is a class A-I felony; and 25 (b) section 70.00, [70.06 or 70.08 of this article, as applicable,] if 26 such offense is a class A-II felony. 27 [8.] 7. Whenever a juvenile offender stands convicted of a felony sex 28 offense, he or she must be sentenced pursuant to the provisions of 29 sections 60.10 and 70.05 of this [chapter] title. 30 [9.] 8. Every determinate sentence for a felony sex offense, as 31 defined in paragraph (a) of subdivision one of this section, imposed 32 pursuant to any section of this article, shall include as a part thereof 33 a period of post-release supervision in accordance with subdivision 34 two-a of section 70.45 of this article. 35 § 23. Paragraph (b) of subdivision 3 of section 60.01 of the penal 36 law, as amended by chapter 548 of the laws of 1984, is amended to read 37 as follows: 38 (b) A fine authorized by article eighty[, provided, however, that when39the conviction is of a class B felony or of any felony defined in arti-40cle two hundred twenty, the sentence shall not consist solely of a fine] 41 of this title; or 42 § 24. Subdivision 2 of section 60.02 of the penal law, as amended by 43 chapter 471 of the laws of 1980, is amended to read as follows: 44 (2) If the sentence is to be imposed upon a youthful offender finding 45 which has been substituted for a conviction for any felony, the court 46 must impose a sentence authorized to be imposed upon a person convicted 47 of a class E felony [provided, however, that the court must not impose a48sentence of conditional discharge or unconditional discharge if the49youthful offender finding was substituted for a conviction of a felony50defined in article two hundred twenty of this chapter]. 51 § 25. Section 60.04 of the penal law, as added by chapter 738 of the 52 laws of 2004, subdivisions 3 and 5 as amended by section 17 of part AAA 53 of chapter 56 of the laws of 2009, subdivision 6 as amended by section 54 120 of subpart B of part C of chapter 62 of the laws of 2011 and subdi- 55 vision 7 as amended by chapter 322 of the laws of 2021, is amended to 56 read as follows:A. 2036--A 21 1 § 60.04 Authorized disposition; controlled substances [and marihuana2felony] offenses. 3 1. Applicability. Notwithstanding the provisions of any law, this 4 section shall govern the dispositions authorized when a person is to be 5 sentenced upon a conviction of a felony offense defined in article two 6 hundred twenty [or two hundred twenty-one] of this chapter [or when a7person is to be sentenced upon a conviction of such a felony as a multi-8ple felony offender as defined in subdivision five of this section]. 9 2. Class A felony. Every person convicted of a class A felony must be 10 sentenced [to imprisonment] in accordance with section 70.71 of this 11 title[, unless such person is convicted of a class A-II felony and is12sentenced to probation for life in accordance with section 65.00 of this13title]. 14 3. Class B felonies. Every person convicted of a class B felony must 15 be sentenced [to imprisonment] in accordance with the applicable 16 provisions of section 70.70 of this [chapter, a definite sentence of17imprisonment with a term of one year or less or probation in accordance18with section 65.00 of this chapter provided, however, a person convicted19of criminal sale of a controlled substance to a child as defined in20section 220.48 of this chapter must be sentenced to a determinate21sentence of imprisonment in accordance with the applicable provisions of22section 70.70 of this chapter or to a sentence of probation in accord-23ance with the opening paragraph of paragraph (b) of subdivision one of24section 65.00 of this chapter] title. 25 4. Alternative sentence. [Where a sentence of imprisonment or a26sentence of probation as an alternative to imprisonment is not required27to be imposed pursuant to subdivision two, three or five of this28section, the court may impose any other sentence authorized by section2960.01 of this article, provided that when the court imposes a sentence30of imprisonment, such sentence must be in accordance with section 70.7031of this title.] Where the court imposes a sentence of imprisonment in 32 accordance with this section, the court may also impose a fine author- 33 ized by article eighty of this title and in such case the sentence shall 34 be both imprisonment and a fine. 35 5. [Multiple felony offender. Where the court imposes a sentence36pursuant to subdivision three of section 70.70 of this chapter upon a37second felony drug offender, as defined in paragraph (b) of subdivision38one of section 70.70 of this chapter, it must sentence such offender to39imprisonment in accordance with the applicable provisions of section4070.70 of this chapter, a definite sentence of imprisonment with a term41of one year or less, or probation in accordance with section 65.00 of42this chapter, provided, however, that where the court imposes a sentence43upon a class B second felony drug offender, it must sentence such offen-44der to a determinate sentence of imprisonment in accordance with the45applicable provisions of section 70.70 of this chapter or to a sentence46of probation in accordance with the opening paragraph of paragraph (b)47of subdivision one of section 65.00 of this chapter. When the court48imposes sentence on a second felony drug offender pursuant to subdivi-49sion four of section 70.70 of this chapter, it must impose a determinate50sentence of imprisonment in accordance with such subdivision.516.] Substance abuse treatment. When the court imposes a sentence of 52 imprisonment which requires a commitment to the state department of 53 corrections and community supervision [upon a person who stands54convicted of a controlled substance or marihuana offense], the court 55 may, upon motion of the defendant in its discretion, issue an order 56 directing that the department of corrections and community supervisionA. 2036--A 22 1 enroll the defendant in the comprehensive alcohol and substance abuse 2 treatment program in an alcohol and substance abuse correctional annex 3 as defined in subdivision eighteen of section two of the correction law, 4 provided that the defendant will satisfy the statutory eligibility 5 criteria for participation in such program. Notwithstanding the forego- 6 ing provisions of this subdivision, any defendant to be enrolled in such 7 program pursuant to this subdivision shall be governed by the same rules 8 and regulations promulgated by the department of corrections and commu- 9 nity supervision, including without limitation those rules and regu- 10 lations establishing requirements for completion and those rules and 11 regulations governing discipline and removal from the program. No such 12 period of court ordered corrections based drug abuse treatment pursuant 13 to this subdivision shall be required to extend beyond the defendant's 14 conditional release date. 15 [7.] 6. a. Shock incarceration participation. When the court imposes a 16 sentence of imprisonment which requires a commitment to the department 17 of corrections and community supervision upon a person [who stands18convicted of a controlled substance or marihuana offense], upon motion 19 of the defendant, the court may issue an order directing that the 20 department of corrections and community supervision enroll the defendant 21 in the shock incarceration program as defined in article twenty-six-A of 22 the correction law, provided that the defendant is an eligible incarcer- 23 ated individual, as described in subdivision one of section eight 24 hundred sixty-five of the correction law. Notwithstanding the foregoing 25 provisions of this subdivision, any defendant to be enrolled in such 26 program pursuant to this subdivision shall be governed by the same rules 27 and regulations promulgated by the department of corrections and commu- 28 nity supervision, including without limitation those rules and regu- 29 lations establishing requirements for completion and such rules and 30 regulations governing discipline and removal from the program. 31 b. (i) In the event that an incarcerated individual designated by 32 court order for enrollment in the shock incarceration program requires a 33 degree of medical care or mental health care that cannot be provided at 34 a shock incarceration facility, the department, in writing, shall notify 35 the incarcerated individual, provide a proposal describing a proposed 36 alternative-to-shock-incarceration program, and notify him or her that 37 he or she may object in writing to placement in such alternative-to- 38 shock-incarceration program. If the incarcerated individual objects in 39 writing to placement in such alternative-to-shock-incarceration program, 40 the department of corrections and community supervision shall notify the 41 sentencing court, provide such proposal to the court, and arrange for 42 the incarcerated individual's prompt appearance before the court. The 43 court shall provide the proposal and notice of a court appearance to the 44 people, the incarcerated individual and the appropriate defense attor- 45 ney. After considering the proposal and any submissions by the parties, 46 and after a reasonable opportunity for the people, the incarcerated 47 individual and counsel to be heard, the court may modify its sentencing 48 order accordingly, notwithstanding the provisions of section 430.10 of 49 the criminal procedure law. 50 (ii) An incarcerated individual who successfully completes an alterna- 51 tive-to-shock-incarceration program within the department of corrections 52 and community supervision shall be treated in the same manner as a 53 person who has successfully completed the shock incarceration program, 54 as set forth in subdivision four of section eight hundred sixty-seven of 55 the correction law.A. 2036--A 23 1 § 26. Section 60.05 of the penal law, as amended by chapter 410 of the 2 laws of 1979, the section heading and subdivisions 2, 3 and 4 as amended 3 by chapter 738 of the laws of 2004, subdivision 1 as amended by chapter 4 7 of the laws of 2007, subdivision 5 as amended by chapter 405 of the 5 laws of 2010 and subdivision 8 as amended by chapter 486 of the laws of 6 2022, is amended to read as follows: 7 § 60.05 Authorized dispositions; other class A, B, certain C and D felo- 8 nies [and multiple felony offenders]. 9 1. Applicability. Except as provided in section 60.04 of this article 10 governing the authorized dispositions applicable to felony offenses 11 defined in article two hundred twenty [or two hundred twenty-one] of 12 this chapter or in section 60.13 of this article governing the author- 13 ized dispositions applicable to felony sex offenses defined in paragraph 14 (a) of subdivision one of section 70.80 of this title, this section 15 shall govern the dispositions authorized when a person is to be 16 sentenced upon a conviction of a class A felony, a class B felony or a 17 class C, class D or class E felony specified [herein, or when a person18is to be sentenced upon a conviction of a felony as a multiple felony19offender] in this section. 20 2. Class A felony. [Except as provided in subdivisions three and four21of section 70.06 of this chapter, every] Every person convicted of a 22 class A felony must be sentenced [to imprisonment] in accordance with 23 section 70.00 of this title[, unless such person is convicted of murder24in the first degree and is sentenced in accordance with section 60.06 of25this article]. 26 3. Class B felony. [Except as provided in subdivision six of this27section, every] Every person convicted of a class B violent felony 28 offense as defined in subdivision one of section 70.02 of this title, 29 must be sentenced [to imprisonment] in accordance with such section 30 [70.02]; and[, except as provided in subdivision six of this section,] 31 every person convicted of any other class B felony must be sentenced [to32imprisonment] in accordance with section 70.00 of this title. 33 4. Certain class C felonies. [Except as provided in subdivision six,34every] Every person convicted of a class C violent felony offense as 35 defined in subdivision one of section 70.02 of this title, must be 36 sentenced [to imprisonment] in accordance with section 70.02 of this 37 title[; and, except as provided in subdivision six of this section,38every person convicted of the class C felonies of: attempt to commit any39of the class B felonies of bribery in the first degree as defined in40section 200.04, bribe receiving in the first degree as defined in41section 200.12, conspiracy in the second degree as defined in section42105.15 and criminal mischief in the first degree as defined in section43145.12; criminal usury in the first degree as defined in section 190.42,44rewarding official misconduct in the first degree as defined in section45200.22, receiving reward for official misconduct in the first degree as46defined in section 200.27, attempt to promote prostitution in the first47degree as defined in section 230.32, promoting prostitution in the48second degree as defined in section 230.30, arson in the third degree as49defined in section 150.10 of this chapter, must be sentenced to impri-50sonment in accordance with section 70.00 of this title]. 51 5. Certain class D felonies. [Except as provided in subdivision six of52this section, every] Every person convicted of the class D felonies of 53 assault in the second degree as defined in section 120.05, strangulation 54 in the second degree as defined in section 121.12 or attempt to commit a 55 class C felony as defined in section 230.30 of this chapter, must be 56 sentenced in accordance with section 70.00 or 85.00 of this title.A. 2036--A 24 1 6. [Multiple felony offender. When the court imposes sentence upon a2second violent felony offender, as defined in section 70.04, or a second3felony offender, as defined in section 70.06, the court must impose a4sentence of imprisonment in accordance with section 70.04 or 70.06, as5the case may be, unless it imposes a sentence of imprisonment in accord-6ance with section 70.08 or 70.10.77.] Fines. Where the court imposes a sentence of imprisonment in 8 accordance with this section, the court also may impose a fine author- 9 ized by article eighty of this title and in such case the sentence shall 10 be both imprisonment and a fine. 11 [8.] 7. Shock incarceration participation. (a) When the court imposes 12 a determinate sentence of imprisonment pursuant to subdivision [three] 13 two of section 70.02 of this [chapter] title or subdivision six of 14 section 70.06 of this [chapter upon a person who stands convicted either15of burglary in the second degree as defined in subdivision two of16section 140.25 of this chapter or robbery in the second degree as17defined in subdivision one of section 160.10 of this chapter, or an18attempt thereof] title, upon motion of the defendant, the court may 19 issue an order directing that the department of corrections and communi- 20 ty supervision enroll the defendant in the shock incarceration program 21 as defined in article twenty-six-A of the correction law, provided that 22 the defendant is an eligible incarcerated individual, as described in 23 subdivision one of section eight hundred sixty-five of the correction 24 law. Notwithstanding the foregoing provisions of this subdivision, any 25 defendant to be enrolled in such program pursuant to this subdivision 26 shall be governed by the same rules and regulations promulgated by the 27 department of corrections and community supervision, including without 28 limitation those rules and regulations establishing requirements for 29 completion and such rules and regulations governing discipline and 30 removal from the program. 31 (b) Paragraph b of subdivision seven of section 60.04 of this article 32 shall apply in the event an incarcerated individual designated by court 33 order for enrollment in the shock incarceration program requires a 34 degree of medical care or mental health care that cannot be provided at 35 a shock incarceration facility. 36 § 27. Paragraph (ii) of subdivision b of section 60.09 of the penal 37 law, as added by chapter 410 of the laws of 1979, is amended to read as 38 follows: 39 (ii) if the conviction was for a class A-II offense the court may 40 impose a new minimum term which shall be [no less than three years41imprisonment and] no more than eight and one-third years; 42 § 28. Section 60.10 of the penal law, as amended by chapter 411 of the 43 laws of 1979, is amended to read as follows: 44 § 60.10 Authorized disposition; juvenile offender. 45 1. When a juvenile offender is convicted of a crime, the court shall 46 sentence the defendant [to imprisonment] in accordance with section 47 70.05 of this title or sentence him upon a youthful offender finding in 48 accordance with section 60.02 of this [chapter] article. 49 2. Subdivision one of this section shall apply when sentencing a juve- 50 nile offender notwithstanding the provisions of any other law that deals 51 with the authorized sentence for persons who are not juvenile offenders. 52 [Provided, however, that the limitation prescribed by this section shall53not be deemed or construed to bar use of a conviction of a juvenile54offender, other than a juvenile offender who has been adjudicated a55youthful offender pursuant to section 720.20 of the criminal procedure56law, as a previous or predicate felony offender under section 70.04,A. 2036--A 25 170.06, 70.08 or 70.10, when sentencing a person who commits a felony2after he has reached the age of sixteen.] 3 § 29. Section 60.12 of the penal law, as amended by chapter 31 of the 4 laws of 2019, subdivision 1 as amended by section 1 of part WW of chap- 5 ter 55 of the laws of 2019, is amended to read as follows: 6 § 60.12 Authorized disposition; alternative sentence; domestic violence 7 cases. 8 1. Notwithstanding any other provision of law, where a court is impos- 9 ing sentence upon a person pursuant to section 70.00, 70.02[, 70.06] or 10 subdivision two or three of section 70.71 of this title, [other than for11an offense defined in section 125.26, 125.27, subdivision five of12section 125.25, or article 490 of this chapter, or for an offense which13would require such person to register as a sex offender pursuant to14article six-C of the correction law, an attempt or conspiracy to commit15any such offense,] and is authorized [or required] pursuant to sections 16 70.00, 70.02[, 70.06] or subdivision two or three of section 70.71 of 17 this title to impose a sentence of imprisonment, the court, upon a 18 determination following a hearing that (a) at the time of the instant 19 offense, the defendant was a victim of domestic violence subjected to 20 substantial physical, sexual or psychological abuse inflicted by a 21 member of the same family or household as the defendant as such term is 22 defined in subdivision one of section 530.11 of the criminal procedure 23 law; (b) such abuse was a significant contributing factor to the defend- 24 ant's criminal behavior; (c) having regard for the nature and circum- 25 stances of the crime and the history, character and condition of the 26 defendant, that a sentence of imprisonment pursuant to section 70.00, 27 70.02[, 70.06] or subdivision two or three of section 70.71 of this 28 title would be unduly harsh may instead impose a sentence in accordance 29 with this section. 30 A court may determine that such abuse constitutes a significant 31 contributing factor pursuant to paragraph (b) of this subdivision 32 regardless of whether the defendant raised a defense pursuant to article 33 thirty-five, article forty, or subdivision one of section 125.25 of this 34 chapter. 35 At the hearing to determine whether the defendant should be sentenced 36 pursuant to this section, the court shall consider oral and written 37 arguments, take testimony from witnesses offered by either party, and 38 consider relevant evidence to assist in making its determination. Reli- 39 able hearsay shall be admissible at such hearings. 40 2. Where a court would otherwise be required to impose a sentence 41 pursuant to section 70.02 of this title, the court may impose a definite 42 sentence of imprisonment of less than one year [or less], or probation 43 in accordance with the provisions of section 65.00 of this title, or may 44 fix a determinate term of imprisonment as follows: 45 (a) For a class B felony, the term must be at least one year and must 46 not exceed five years; 47 (b) For a class C felony, the term must be at least one year and must 48 not exceed three and one-half years; 49 (c) For a class D felony, the term must be at least one year and must 50 not exceed two years; and 51 (d) For a class E felony, the term must be one year and must not 52 exceed one and one-half years. 53 3. Where a court would otherwise be required to impose a sentence for 54 a class A felony offense pursuant to section 70.00 of this title, the 55 court may fix a determinate term of imprisonment of at least [five56years] one year and not to exceed fifteen years, or impose a definiteA. 2036--A 26 1 sentence of imprisonment of less than one year, or probation in accord- 2 ance with the provisions of section 65.00 of this title. 3 4. Where a court would otherwise be required to impose a sentence for 4 a class A felony offense pursuant to subparagraph (i) of paragraph (b) 5 of subdivision two of section 70.71 of this title, the court may fix a 6 determinate term of imprisonment of at least [five years] one year and 7 not to exceed eight years, or impose a definite sentence of imprisonment 8 of less than one year, or probation in accordance with the provisions of 9 section 65.00 of this title. 10 5. Where a court would otherwise be required to impose a sentence for 11 a class A felony offense pursuant to subparagraph (i) of paragraph (b) 12 of subdivision three of section 70.71 of this title, the court may fix a 13 determinate term of imprisonment of at least [five years] one year and 14 not to exceed twelve years, or impose a definite sentence of imprison- 15 ment of less than one year, or probation in accordance with the 16 provisions of section 65.00 of this title. 17 6. Where a court would otherwise be required to impose a sentence for 18 a class A felony offense pursuant to subparagraph (ii) of paragraph (b) 19 of subdivision two of section 70.71 of this title, the court may fix a 20 determinate term of imprisonment of at least one year and not to exceed 21 three years, or impose a definite sentence of imprisonment of less than 22 one year, or probation in accordance with the provisions of section 23 65.00 of this title. 24 7. Where a court would otherwise be required to impose a sentence for 25 a class A felony offense pursuant to subparagraph (ii) of paragraph (b) 26 of subdivision three of section 70.71 of this title, the court may fix a 27 determinate term of imprisonment of at least [three years] one year and 28 not to exceed six years, or impose a definite sentence of imprisonment 29 of less than one year, or probation in accordance with the provisions of 30 section 65.00 of this title. 31 [8. Where a court would otherwise be required to impose a sentence32pursuant to subdivision six of section 70.06 of this title, the court33may fix a term of imprisonment as follows:34(a) For a class B felony, the term must be at least three years and35must not exceed eight years;36(b) For a class C felony, the term must be at least two and one-half37years and must not exceed five years;38(c) For a class D felony, the term must be at least two years and must39not exceed three years;40(d) For a class E felony, the term must be at least one and one-half41years and must not exceed two years.429. Where a court would otherwise be required to impose a sentence for43a class B, C, D or E felony offense pursuant to section 70.00 of this44title, the court may impose a sentence in accordance with the provisions45of subdivision two of section 70.70 of this title.4610. Except as provided in subdivision seven of this section, where a47court would otherwise be required to impose a sentence pursuant to48subdivision three of section 70.06 of this title, the court may impose a49sentence in accordance with the provisions of subdivision three of50section 70.70 of this title.5111. Where a court would otherwise be required to impose a sentence52pursuant to subdivision three of section 70.06 of this title, where the53prior felony conviction was for a felony offense defined in section5470.02 of this title, the court may impose a sentence in accordance with55the provisions of subdivision four of section 70.70 of this title.]A. 2036--A 27 1 § 30. Subdivision h of section 74 of chapter 3 of the laws of 1995, 2 amending the correction law and other laws relating to the incarceration 3 fee, as amended by section 8 of part A of chapter 55 of the laws of 4 2021, is amended to read as follows: 5 h. Section fifty-two of this act shall be deemed to have been in full 6 force and effect on and after April 1, 1995; provided, however, that the 7 provisions of section 189 of the correction law, as amended by section 8 fifty-five of this act[, subdivision 5 of section 60.35 of the penal9law, as amended by section fifty-six of this act,] and section fifty- 10 seven of this act shall expire September 1, 2023, when upon such date 11 the amendments to the correction law [and penal law] made by [sections] 12 section fifty-five [and fifty-six] of this act shall revert to and be 13 read as if the provisions of this act had not been enacted; provided, 14 however, that sections sixty-two, sixty-three and sixty-four of this act 15 shall be deemed to have been in full force and effect on and after March 16 1, 1995 and shall be deemed repealed April 1, 1996 and upon such date 17 the provisions of subsection (e) of section 9110 of the insurance law 18 and subdivision 2 of section 89-d of the state finance law shall revert 19 to and be read as set out in law on the date immediately preceding the 20 effective date of sections sixty-two and sixty-three of this act; 21 § 31. Section 65.00 of the penal law, subdivisions 1 and 2 as amended 22 by chapter 835 of the laws of 1974, the opening paragraph of paragraph 23 (a) of subdivision 1 as amended by chapter 738 of the laws of 2004, the 24 opening paragraph of paragraph (b) of subdivision 1 as amended by 25 section 19 and subparagraph (ii) of paragraph (a) of subdivision 3 as 26 amended by section 20 of part AAA of chapter 56 of the laws of 2009, the 27 closing paragraph of subdivision 1 as amended by chapter 3 of the laws 28 of 1995, subdivision 3 as amended by chapter 264 of the laws of 2003, 29 subparagraph (i) of paragraph (a), subparagraph (i) of paragraph (b) and 30 paragraph (d) of subdivision 3 as amended by chapter 556 of the laws of 31 2013, paragraph (c) of subdivision 3 as amended by chapter 568 of the 32 laws of 2004, the closing paragraph of subdivision 3 as amended by chap- 33 ter 320 of the laws of 2006, subdivision 4 as amended by chapter 17 of 34 the laws of 2014, and subdivision 5 as amended by chapter 264 of the 35 laws of 2003 and as renumbered by chapter 556 of the laws of 2013, is 36 amended to read as follows: 37 § 65.00 Sentence of probation. 38 1. [Criteria. (a) Except as otherwise required by section 60.04 or3960.05 of this title, and except as provided by paragraph (b) hereof, the40court may sentence a person to a period of probation upon conviction of41any crime if the court, having regard to the nature and circumstances of42the crime and to the history, character and condition of the defendant,43is of the opinion that:44(i) Institutional confinement for the term authorized by law of the45defendant is or may not be necessary for the protection of the public;46(ii) the defendant is in need of guidance, training or other assist-47ance which, in his case, can be effectively administered through48probation supervision; and49(iii) such disposition is not inconsistent with the ends of justice.50(b) The court, with the concurrence of either the administrative judge51of the court or of the judicial district within which the court is situ-52ated or such administrative judge as the presiding justice of the appro-53priate appellate division shall designate, may sentence a person to a54period of probation upon conviction of a class A-II felony defined in55article two hundred twenty, the class B felony defined in section 220.4856of this chapter or any other class B felony defined in article twoA. 2036--A 28 1hundred twenty of this chapter where the person is a second felony drug2offender as defined in paragraph (b) of subdivision one of section 70.703of this chapter, if the prosecutor either orally on the record or in a4writing filed with the indictment recommends that the court sentence5such person to a period of probation upon the ground that such person6has or is providing material assistance in the investigation, apprehen-7sion or prosecution of any person for a felony defined in article two8hundred twenty or the attempt or the conspiracy to commit any such felo-9ny, and if the court, having regard to the nature and circumstances of10the crime and to the history, character and condition of the defendant11is of the opinion that:12(i) Institutional confinement of the defendant is not necessary for13the protection of the public;14(ii) The defendant is in need of guidance, training or other assist-15ance which, in his case, can be effectively administered through16probation supervision;17(iii) The defendant has or is providing material assistance in the18investigation, apprehension or prosecution of a person for a felony19defined in article two hundred twenty or the attempt or conspiracy to20commit any such felony; and21(iv) Such disposition is not inconsistent with the ends of justice.22Provided, however, that the court shall not, except to the extent23authorized by paragraph (d) of subdivision two of section 60.01 of this24chapter, impose a sentence of probation in any case where it sentences a25defendant for more than one crime and imposes a sentence of imprisonment26for any one of the crimes, or where the defendant is subject to an27undischarged indeterminate or determinate sentence of imprisonment which28was imposed at a previous time by a court of this state and has more29than one year to run.302.] Sentence. When a person is sentenced to a period of probation the 31 court shall, except to the extent authorized by paragraph (d) of subdi- 32 vision two of section 60.01 of this chapter, impose the period author- 33 ized by subdivision [three] two of this section and shall specify, in 34 accordance with section 65.10, the conditions to be complied with. The 35 court may modify or enlarge the conditions or, if the defendant commits 36 an additional offense or violates a condition, revoke the sentence at 37 any time prior to the expiration or termination of the period of 38 probation. 39 [3.] 2. Periods of probation. Unless terminated sooner in accordance 40 with the criminal procedure law, the period of probation shall be as 41 follows: 42 (a) (i) For a felony, other than a class A-II felony defined in arti- 43 cle two hundred twenty of this chapter or the class B felony defined in 44 section 220.48 of this chapter, [or any other class B felony defined in45article two hundred twenty of this chapter committed by a second felony46drug offender,] or a sexual assault, the period of probation shall [be a47term of three, four or] not exceed five years; 48 (ii) For a class A-II felony drug offender as defined in paragraph (a) 49 of subdivision one of section 70.71 of this chapter [as described in50paragraph (b) of subdivision one of this section, or a class B felony51committed by a second felony drug offender described in paragraph (b) of52subdivision one of this section, the], any period of probation [shall be53life] may be imposed and for a class B felony defined in section 220.48 54 of this chapter, the period of probation shall [be] not exceed twenty- 55 five years;A. 2036--A 29 1 (iii) For a felony sexual assault, the period of probation shall [be] 2 not exceed ten years. 3 (b) (i) For a class A misdemeanor, other than a sexual assault, the 4 period of probation shall [be] not exceed a term of [two or] three 5 years; 6 (ii) For a class A misdemeanor sexual assault, the period of probation 7 shall [be] not exceed six years. 8 (c) For a class B misdemeanor, the period of probation shall [be] not 9 exceed one year, except the period of probation shall [be no less than10one year and no more than] not exceed three years for the class B misde- 11 meanor of public lewdness as defined in section 245.00 of this chapter; 12 (d) For an unclassified misdemeanor, the period of probation shall 13 [be] not exceed a term of [two or] three years if the authorized 14 sentence of imprisonment is in excess of three months, otherwise the 15 period of probation shall [be] not exceed one year. 16 For the purposes of this section, the term "sexual assault" means an 17 offense defined in article one hundred thirty or two hundred sixty- 18 three, or in section 255.25, 255.26 or 255.27 of this chapter, or an 19 attempt to commit any of the foregoing offenses. 20 [4.] 3. If during the periods of probation referenced in subparagraph 21 (i) of paragraph (a), subparagraph (i) of paragraph (b) and paragraph 22 (d) of subdivision [three] two of this section an alleged violation is 23 sustained following a hearing pursuant to section 410.70 of the criminal 24 procedure law and the court continues or modifies the sentence, the 25 court may extend the remaining period of probation up to the maximum 26 term authorized by this section. Provided, however, a defendant shall 27 receive credit for the time during which he or she was supervised under 28 the original probation sentence prior to any declaration of delinquency 29 and for any time spent in custody pursuant to this article for an 30 alleged violation of probation. 31 [5.] 4. In any case where a court pursuant to its authority under 32 subdivision four of section 60.01 of this chapter revokes probation and 33 sentences such person to imprisonment and probation, as provided in 34 paragraph (d) of subdivision two of section 60.01 of this chapter, the 35 period of probation shall be the remaining period of the original 36 probation sentence or one year whichever is greater. 37 § 32. Section 65.05 of the penal law, subdivision 1 as added by chap- 38 ter 277 of the laws of 1973, paragraph (a) of subdivision 1 and subdivi- 39 sion 2 as amended by chapter 742 of the laws of 1981 and subdivision 3 40 as amended by chapter 618 of the laws of 1992, is amended to read as 41 follows: 42 § 65.05 Sentence of conditional discharge. 43 1. [Criteria. (a) Except as otherwise required by section 60.05, the44court may impose a sentence of conditional discharge for an offense if45the court, having regard to the nature and circumstances of the offense46and to the history, character and condition of the defendant, is of the47opinion that neither the public interest nor the ends of justice would48be served by a sentence of imprisonment and that probation supervision49is not appropriate.50(b) When a sentence of conditional discharge is imposed for a felony,51the court shall set forth in the record the reasons for its action.522.] Sentence. Except to the extent authorized by paragraph (d) of 53 subdivision two of section 60.01 of this [chapter] title, when the court 54 imposes a sentence of conditional discharge the defendant shall be 55 released with respect to the conviction for which the sentence is 56 imposed without imprisonment or probation supervision but subject,A. 2036--A 30 1 during the period of conditional discharge, to such conditions as the 2 court may determine. The court shall impose the period of conditional 3 discharge authorized by subdivision [three] two of this section and 4 shall specify, in accordance with section 65.10 of this article, the 5 conditions to be complied with. If a defendant is sentenced pursuant to 6 paragraph (e) of subdivision two of section 65.10 of this [chapter] 7 article, the court shall require the administrator of the program to 8 provide written notice to the court of any violation of program partic- 9 ipation by the defendant. The court may modify or enlarge the conditions 10 or, if the defendant commits an additional offense or violates a condi- 11 tion, revoke the sentence at any time prior to the expiration or termi- 12 nation of the period of conditional discharge. 13 [3.] 2. Periods of conditional discharge. Unless terminated sooner in 14 accordance with the criminal procedure law, the period of conditional 15 discharge shall be as follows: 16 (a) [Three] Up to three years in the case of a felony; and 17 (b) [One] Up to one year in the case of a misdemeanor or a violation. 18 Where the court has required, as a condition of the sentence, that the 19 defendant make restitution of the fruits of his or her offense or make 20 reparation for the loss caused thereby and such condition has not been 21 satisfied, the court, at any time prior to the expiration or termination 22 of the period of conditional discharge, may impose an additional period. 23 The length of the additional period shall be fixed by the court at the 24 time it is imposed and shall not be more than two years. All of the 25 incidents of the original sentence, including the authority of the court 26 to modify or enlarge the conditions, shall continue to apply during such 27 additional period. 28 § 33. Section 65.20 of the penal law is amended to read as follows: 29 § 65.20 Sentence of unconditional discharge. 30 [1. Criteria. The court may impose a sentence of unconditional31discharge in any case where it is authorized to impose a sentence of32conditional discharge under section 65.05 if the court is of the opinion33that no proper purpose would be served by imposing any condition upon34the defendant's release.35When a sentence of unconditional discharge is imposed for a felony,36the court shall set forth in the record the reasons for its action.372. Sentence.] When the court imposes a sentence of unconditional 38 discharge, the defendant shall be released with respect to the 39 conviction for which the sentence is imposed without imprisonment, fine 40 or probation supervision. A sentence of unconditional discharge is for 41 all purposes a final judgment of conviction. 42 § 34. Subdivision 2 of section 85.00 of the penal law, as added by 43 chapter 477 of the laws of 1970, paragraph (a) as amended by chapter 277 44 of the laws of 1973, is amended to read as follows: 45 2. Authorization for use of sentence. The court may impose a sentence 46 of intermittent imprisonment in any case where: 47 (a) [the court is imposing sentence, upon a person other than a second48or persistent felony offender, for a class D or class E felony or for49any offense that is not a felony; and50(b)] the court is not imposing any other sentence of imprisonment upon 51 the defendant at the same time; and 52 [(c)] (b) the defendant is not under any other sentence of imprison- 53 ment with a term in excess of fifteen days imposed by any other court[;54and]. 55 § 35. Subdivisions 3, 4 and 5 of section 485.10 of the penal law, 56 subdivisions 3 and 4 as added by chapter 107 of the laws of 2000 andA. 2036--A 31 1 subdivision 5 as amended by chapter 624 of the laws of 2022, are amended 2 to read as follows: 3 3. [Notwithstanding any other provision of law, when a person is4convicted of a hate crime pursuant to this article and the specified5offense is a class B felony:6(a) the maximum term of the indeterminate sentence must be at least7six years if the defendant is sentenced pursuant to section 70.00 of8this chapter;9(b) the term of the determinate sentence must be at least eight years10if the defendant is sentenced pursuant to section 70.02 of this chapter;11(c) the term of the determinate sentence must be at least twelve years12if the defendant is sentenced pursuant to section 70.04 of this chapter;13(d) the maximum term of the indeterminate sentence must be at least14four years if the defendant is sentenced pursuant to section 70.05 of15this chapter; and16(e) the maximum term of the indeterminate sentence or the term of the17determinate sentence must be at least ten years if the defendant is18sentenced pursuant to section 70.06 of this chapter.194. Notwithstanding any other provision of law, when a person is20convicted of a hate crime pursuant to this article and the specified21offense is a class A-1 felony, the minimum period of the indeterminate22sentence shall be not less than twenty years.235.] In addition to any of the dispositions authorized by this chapter, 24 the court shall require as part of the sentence imposed upon a person 25 convicted of a hate crime pursuant to this article, that the defendant 26 complete a program, training session or counseling session directed at 27 hate crime prevention and education, where the court determines such 28 program, training session or counseling session is appropriate, avail- 29 able and was developed or authorized by the court or local agencies in 30 cooperation with organizations serving the affected community. 31 § 36. Paragraph (d) of subdivision 2 of section 490.25 of the penal 32 law is REPEALED. 33 § 37. Sections 220.35, 400.15, 400.16, 400.19, 400.20 and 400.21 of 34 the criminal procedure law are REPEALED. 35 § 38. Subdivision 6 of section 2 of the correction law, as amended by 36 chapter 476 of the laws of 1970, is amended to read as follows: 37 6. "Residential treatment facility". A correctional facility consist- 38 ing of a community based residence in or near a community where employ- 39 ment, educational and training opportunities are readily available for 40 persons who [are on parole or conditional release and for persons who] 41 are or who will soon be eligible for release on parole who intend to 42 reside in or near that community when released. 43 § 39. Subdivision 10 of section 73 of the correction law is REPEALED. 44 § 40. Subdivision 1 of section 865 of the correction law, as amended 45 by chapter 322 of the laws of 2021, is amended to read as follows: 46 1. "Eligible incarcerated individual" means a person sentenced to an 47 indeterminate term of imprisonment who will become eligible for release 48 on parole within three years or sentenced to a determinate term of 49 imprisonment who will become eligible for conditional release within 50 three years[, who has not reached the age of fifty years, who has not51previously been convicted of a violent felony as defined in article52seventy of the penal law, or a felony in any other jurisdiction which53includes all of the essential elements of any such violent felony, upon54which an indeterminate or determinate term of imprisonment was imposed55and who was between the ages of sixteen and fifty years at the time of56commission of the crime upon which his or her present sentence wasA. 2036--A 32 1based. Notwithstanding the foregoing, no person who is convicted of any2of the following crimes shall be deemed eligible to participate in this3program: (a) a violent felony offense as defined in article seventy of4the penal law; provided, however, that a person who is convicted of5burglary in the second degree as defined in subdivision two of section6140.25 of the penal law, or robbery in the second degree as defined in7subdivision one of section 160.10 of the penal law, or an attempt there-8of, is eligible to participate, (b) an A-I felony offense, (c) any homi-9cide offense as defined in article one hundred twenty-five of the penal10law, (d) any felony sex offense as defined in article one hundred thirty11of the penal law and (e) any escape or absconding offense as defined in12article two hundred five of the penal law]. 13 § 41. Section 220.10 of the criminal procedure law, as amended by 14 chapter 480 of the laws of 1976, subdivision 5 as amended by chapter 410 15 of the laws of 1979, subparagraph (i) of paragraph (a) of subdivision 5 16 as amended by chapter 738 of the laws of 2004, paragraph (d) of subdivi- 17 sion 5 as added by chapter 233 of the laws of 1980, subparagraph (iv) of 18 paragraph (d) of subdivision 5 as amended by chapter 189 of the laws of 19 2000, paragraph (e) of subdivision 5 as amended by chapter 1 of the laws 20 of 1995, subparagraph (iii) of paragraph (g) of subdivision 5 as amended 21 by chapter 264 of the laws of 2003, the second undesignated paragraph of 22 paragraph (g) of subdivision 5 as amended by chapter 920 of the laws of 23 1982, the closing paragraph of paragraph (g) of subdivision 5 as amended 24 by chapter 411 of the laws of 1979, paragraph (g-1) of subdivision 5 as 25 added by chapter 809 of the laws of 2021, paragraph (h) of subdivision 5 26 as amended by chapter 322 of the laws of 2021 and subdivision 6 as added 27 by chapter 548 of the laws of 1980, is amended to read as follows: 28 § 220.10 Plea; kinds of pleas. 29 The only kinds of pleas which may be entered to an indictment are 30 those specified in this section: 31 1. The defendant may as a matter of right enter a plea of "not guilty" 32 to the indictment. 33 2. [Except as provided in subdivision five, the] The defendant may as 34 a matter of right enter a plea of "guilty" to the entire indictment. 35 3. [Except as provided in subdivision five, where] Where the indict- 36 ment charges but one crime, the defendant may, with [both] either the 37 permission of the court [and] in furtherance of justice in accordance 38 with the factors outlined in subdivision one of section 210.40 of this 39 part, or the consent of the people with the permission of the court, 40 enter a plea of guilty of a lesser included offense. 41 4. [Except as provided in subdivision five, where] Where the indict- 42 ment charges two or more offenses in separate counts, the defendant may, 43 with [both] either the permission of the court [and] in furtherance of 44 justice in accordance with the factors outlined in subdivision one of 45 section 210.40 of this part, or the consent of the people with the 46 permission of the court, enter a plea of: 47 (a) Guilty of one or more but not all of the offenses charged; or 48 (b) Guilty of a lesser included offense with respect to any or all of 49 the offenses charged; or 50 (c) Guilty of any combination of offenses charged and lesser offenses 51 included within other offenses charged. 52 5. [(a) (i) Where the indictment charges one of the class A felonies53defined in article two hundred twenty of the penal law or the attempt to54commit any such class A felony, then any plea of guilty entered pursuant55to subdivision three or four of this section must be or must include at56least a plea of guilty of a class B felony.A. 2036--A 33 1(iii) Where the indictment charges one of the class B felonies defined2in article two hundred twenty of the penal law then any plea of guilty3entered pursuant to subdivision three or four must be or must include at4least a plea of guilty of a class D felony.5(b) Where the indictment charges any class B felony, other than a6class B felony defined in article two hundred twenty of the penal law or7a class B violent felony offense as defined in subdivision one of8section 70.02 of the penal law, then any plea of guilty entered pursuant9to subdivision three or four must be or must include at least a plea of10guilty of a felony.11(c) Where the indictment charges a felony, other than a class A felony12or class B felony defined in article two hundred twenty of the penal law13or class B or class C violent felony offense as defined in subdivision14one of section 70.02 of the penal law, and it appears that the defendant15has previously been subjected to a predicate felony conviction as16defined in penal law section 70.06 then any plea of guilty entered17pursuant to subdivision three or four must be or must include at least a18plea of guilty of a felony.19(d) Where the indictment charges a class A felony, other than those20defined in article two hundred twenty of the penal law, or charges a21class B or class C violent felony offense as defined in subdivision one22of section 70.02 of the penal law, then a plea of guilty entered pursu-23ant to subdivision three or four must be as follows:24(i) Where the indictment charges a class A felony offense or a class B25violent felony offense which is also an armed felony offense then a plea26of guilty must include at least a plea of guilty to a class C violent27felony offense;28(ii) Except as provided in subparagraph (i) of this paragraph, where29the indictment charges a class B violent felony offense or a class C30violent felony offense, then a plea of guilty must include at least a31plea of guilty to a class D violent felony offense;32(iii) Where the indictment charges the class D violent felony offense33of criminal possession of a weapon in the third degree as defined in34subdivision four of section 265.02 of the penal law, and the defendant35has not been previously convicted of a class A misdemeanor defined in36the penal law in the five years preceding the commission of the offense,37then a plea of guilty must be either to the class E violent felony38offense of attempted criminal possession of a weapon in the third degree39or to the class A misdemeanor of criminal possession of a weapon in the40fourth degree as defined in subdivision one of section 265.01 of the41penal law;42(iv) Where the indictment charges the class D violent felony offenses43of criminal possession of a weapon in the third degree as defined in44subdivision four of section 265.02 of the penal law and the provisions45of subparagraph (iii) of this paragraph do not apply, or subdivision46five, seven or eight of section 265.02 of the penal law, then a plea of47guilty must include at least a plea of guilty to a class E violent felo-48ny offense.49(e) A defendant may not enter a plea of guilty to the crime of murder50in the first degree as defined in section 125.27 of the penal law;51provided, however, that a defendant may enter such a plea with both the52permission of the court and the consent of the people when the agreed53upon sentence is either life imprisonment without parole or a term of54imprisonment for the class A-I felony of murder in the first degree55other than a sentence of life imprisonment without parole.A. 2036--A 34 1(f) The provisions of this subdivision shall apply irrespective of2whether the defendant is thereby precluded from entering a plea of guil-3ty of any lesser included offense.4(g)] Where the defendant is a juvenile offender, [the provisions of5paragraphs (a), (b), (c) and (d) of this subdivision shall not apply6and] any plea entered pursuant to subdivision three or four of this 7 section, must be as follows: 8 [(i)] (a) If the indictment charges a person fourteen or fifteen years 9 old with the crime of murder in the second degree any plea of guilty 10 entered pursuant to subdivision three or four must be a plea of guilty 11 of a crime for which the defendant is criminally responsible; 12 [(ii)] (b) If the indictment does not charge a crime specified in 13 [subparagraph (i)] paragraph (a) of this [paragraph] subdivision, then 14 any plea of guilty entered pursuant to subdivision three or four of this 15 section must be a plea of guilty of a crime for which the defendant is 16 criminally responsible unless a plea of guilty is accepted pursuant to 17 [subparagraph (iii)] paragraph (c) of this [paragraph] subdivision; 18 [(iii)] (c) Where the indictment does not charge a crime specified in 19 [subparagraph (i)] paragraph (a) of this [paragraph] subdivision, the 20 district attorney may recommend removal of the action to the family 21 court. Upon making such recommendation the district attorney shall 22 submit a subscribed memorandum setting forth: [(1)] (i) a recommendation 23 that the interests of justice would best be served by removal of the 24 action to the family court; and [(2)] (ii) if the indictment charges a 25 thirteen year old with the crime of murder in the second degree, or a 26 fourteen or fifteen year old with the crimes of rape in the first degree 27 as defined in subdivision one of section 130.35 of the penal law, or 28 criminal sexual act in the first degree as defined in subdivision one of 29 section 130.50 of the penal law, or an armed felony as defined in para- 30 graph (a) of subdivision forty-one of section 1.20 of this chapter 31 specific factors, one or more of which reasonably supports the recommen- 32 dation, showing, [(i)] (1) mitigating circumstances that bear directly 33 upon the manner in which the crime was committed, or [(ii)] (2) where 34 the defendant was not the sole participant in the crime, that the 35 defendant's participation was relatively minor although not so minor as 36 to constitute a defense to the prosecution, or [(iii)] (3) possible 37 deficiencies in proof of the crime, or [(iv)] (4) where the juvenile 38 offender has no previous adjudications of having committed a designated 39 felony act, as defined in subdivision eight of section 301.2 of the 40 family court act, regardless of the age of the offender at the time of 41 commission of the act, that the criminal act was not part of a pattern 42 of criminal behavior and, in view of the history of the offender, is not 43 likely to be repeated. 44 If the court is of the opinion based on specific factors set forth in 45 the district attorney's memorandum that the interests of justice would 46 best be served by removal of the action to the family court, a plea of 47 guilty of a crime or act for which the defendant is not criminally 48 responsible may be entered pursuant to subdivision three or four of this 49 section, except that a thirteen year old charged with the crime of 50 murder in the second degree may only plead to a designated felony act, 51 as defined in subdivision eight of section 301.2 of the family court 52 act. 53 Upon accepting any such plea, the court must specify upon the record 54 the portion or portions of the district attorney's statement the court 55 is relying upon as the basis of its opinion and that it believes the 56 interests of justice would best be served by removal of the proceedingA. 2036--A 35 1 to the family court. Such plea shall then be deemed to be a juvenile 2 delinquency fact determination and the court upon entry thereof must 3 direct that the action be removed to the family court in accordance with 4 the provisions of article seven hundred twenty-five of this chapter. 5 [(g-1) Where a defendant is an adolescent offender, the provisions of6paragraphs (a), (b), (c) and (d) of this subdivision shall not apply.] 7 5-a. Where the plea is to an offense constituting a misdemeanor, the 8 plea shall be deemed replaced by an order of fact-finding in a juvenile 9 delinquency proceeding, pursuant to section 346.1 of the family court 10 act, and the action shall be removed to the family court in accordance 11 with article seven hundred twenty-five of this chapter. Where the plea 12 is to an offense constituting a felony, the court may remove the action 13 to the family court in accordance with section 722.23 and article seven 14 hundred twenty-five of this chapter. 15 [(h) Where the indictment charges the class E felony offense of aggra-16vated harassment of an employee by an incarcerated individual as defined17in section 240.32 of the penal law, then a plea of guilty must include18at least a plea of guilty to a class E felony.] 19 6. The defendant may, with both the permission of the court and the 20 consent of the people, enter a plea of not responsible by reason of 21 mental disease or defect to the indictment in the manner prescribed in 22 section 220.15 of this chapter. 23 § 42. Subdivision 3 of section 220.30 of the criminal procedure law is 24 REPEALED. 25 § 43. Section 430.20 of the criminal procedure law is amended by 26 adding a new subdivision 1-a to read as follows: 27 1-a. Time calculation. (a) If at the time of sentencing the defendant 28 is at liberty, and has accrued jail time credit such that the time 29 accrued may be equal to or exceed the amount of time the defendant would 30 be required to serve to reach the conditional release date of a defi- 31 nite, indeterminate, or determinate sentence, or any jail portion of a 32 sentence of probation pursuant to the sentence or sentences to be 33 imposed, the court shall proceed to impose sentence but shall not commit 34 the defendant to custody, or if the defendant is in custody at the time 35 of sentencing the court shall, upon the defendant's request, release the 36 defendant pending further order of the court. The court shall direct the 37 department of corrections and community supervision, sheriff, or the New 38 York city commissioner of corrections to promptly calculate the jail 39 time credit under section 70.30 of the penal law and determine the good 40 time credit pursuant to section 70.40 of the penal law and sections 41 eight hundred three and eight hundred four of the correction law and 42 certify such credit to the sentencing court. If the credit so certified 43 is sufficient to satisfy the conditional release date of the sentence or 44 sentences imposed by the court, the defendant shall not be further 45 committed to custody pursuant to such sentence or sentences, except as 46 otherwise expressly provided by law. 47 (b) Where the defendant is otherwise subject to probation, parole, 48 conditional release or post-release supervision under the terms of the 49 court's sentence, the court shall direct the defendant to appear forth- 50 with at the office of the department of corrections and community super- 51 vision or a local probation department. The terms of such probation, 52 parole, conditional release or post-release supervision shall be estab- 53 lished by the court, the department of corrections and community super- 54 vision, or the local probation department, without commitment of the 55 defendant. 56 § 44. This act shall take effect immediately.
