Amd SS60.05, 65.00, 70.00, 70.06, 110.05, 220.09, 220.16, 220.34 & 220.39, Pen L; amd SS220.10, 220.30 &
440.20, CP L; amd S8, add S97-j, St Fin L
Provides new sentencing guidelines for offenses involving the possession and sale of controlled substances to eliminate the "Rockefeller drug laws" by removing non-violent felony classification from determinate sentences and allowing judicial discretion; creates the crime reduction fund; makes an appropriation therefor.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A3984
SPONSOR: Aubry (MS) TITLE OF BILL: An act to amend the penal law, the criminal procedure
law and the state finance law, in relation to authorized sentences of
imprisonment for possession and sale of controlled substances; to amend
the state finance law, in relation to establishing the crime reduction
fund; and making an appropriation therefor
PURPOSE OR GENERAL IDEA OF BILL:
The purpose of this bill is to repeal the mandatory sentencing require-
ment under existing penal law in relation to drug offenses otherwise
known as the Rockefeller Drug Laws.
SUMMARY OF SPECIFIC PROVISIONS:
This bill provides new sentencing guidelines for offenses involving the
possession and sale of controlled substances and allows judicial
discretion in sentencing offenders to alternative punishments.
Further, the bill requires the State Comptroller to certify, on an annu-
al basis, the monetary savings generated by the enactment of the 2004
and 2005 reform law and this bill which will result in decreases in
inmate admissions and length of stay. These funds would then be used to
fund drug treatment and criminal justice programs to reduce crime. The
bill also appropriates $120 million into the newly created "crime
reduction fund."
EFFECTS OF PRESENT LAW WHICH THIS BILL WOULD ALTER:
This bill would repeal the mandatory sentencing requirements of the
Rockefeller Drug Laws and the Second Felony Offender Law as it relates
to drug offenses. It would also repeal subdivision 5 of Section 70.06 of
the penal law relating to lifetime probation.
JUSTIFICATION:
Under the existing Rockefeller Drug Laws, judges are now bound by rigid
guidelines requiring stiff prison terms for drug offenses, even for
possession of relatively small amounts of drugs. The sentences escalate
steeply when a person is convicted of a second felony within 10 years.
The Rockefeller Drug Laws have led to an explosion in the state's prison
population, which has increased fivefold since the drug laws were
enacted in 1973. As a result, New York taxpayers have borne the finan-
cial burden of building over 40,000 new prison beds at a cost of over $4
billion. Restoring judicial discretion in the sentencing process would
allow judges to utilize less costly and more productive alternatives to
incarceration. The savings generated would then be invested in expanded
drug abuse treatment programs that will save millions of taxpayer
dollars, reduce recidivism and help many addicted offenders turn their
lives around.
PRIOR LEGISLATIVE HISTORY:
A2823 (2002), A852 referred to codes in 2003 and 2004. A6796 (2006)
referred to codes 01/04/06. A4342A referred to codes in 2007 and 2008.
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
This bill will generate savings by reducing correctional costs.
EFFECTIVE DATE:
This act shall take effect immediately; provided, however, that the
amendments to the closing paragraph of subdivision 1 of section 65.00 of
the penal law made by section two of this act shall not affect the expi-
ration of such provisions and shall be deemed to expire therewith;
provided, further, that the amendments to subdivision 1 of section 70.00
of the penal law made by section three of this act shall be subject to
the expiration and reversion of such subdivision pursuant to section 74
of chapter 3 of the laws of 1995, as amended, when upon such date the
provisions of section four of this act shall take effect.
STATE OF NEW YORK
________________________________________________________________________
3984
2009-2010 Regular Sessions
IN ASSEMBLY
January 29, 2009
___________
Introduced by M. of A. AUBRY, GANTT, WRIGHT, CLARK, PRETLOW, GREENE,
JAFFEE, JEFFRIES, ROSENTHAL -- Multi-Sponsored by -- M. of A. ARROYO,
BOYLAND, BRADLEY, COOK, DIAZ, ESPAILLAT, FARRELL, GLICK, GOTTFRIED,
HEASTIE, HOOPER, HOYT, JACOBS, JOHN, McENENY, ORTIZ, PAULIN, PERRY,
PHEFFER, SCARBOROUGH, TOWNS, WEISENBERG -- read once and referred to
the Committee on Codes
AN ACT to amend the penal law, the criminal procedure law and the state
finance law, in relation to authorized sentences of imprisonment for
possession and sale of controlled substances; to amend the state
finance law, in relation to establishing the crime reduction fund; and
making an appropriation therefor
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 60.05 of the penal law, as amended by chapter 410
2 of the laws of 1979, the section heading and subdivisions 2, 3, 4 and 5
3 as amended by chapter 738 of the laws of 2004 and subdivision 1 as
4 amended by chapter 7 of the laws of 2007, is amended to read as follows:
5 § 60.05 Authorized dispositions; other class A, B, certain C and D felo-
6 nies and multiple felony offenders.
7 1. Applicability. Except as provided in section 60.04 of this article
8 governing the authorized dispositions applicable to felony offenses
9 defined in article two hundred twenty or two hundred twenty-one of this
10 chapter or in section 60.13 of this article governing the authorized
11 dispositions applicable to felony sex offenses defined in paragraph (a)
12 of subdivision one of section 70.80 of this title, this section shall
13 govern the dispositions authorized when a person is to be sentenced upon
14 a conviction of a class A felony, a class B felony or a class C, class D
15 or class E felony specified herein, or when a person is to be sentenced
16 upon a conviction of a felony as a multiple felony offender.
17 2. Class A felony. Except as provided in subdivisions three and four
18 of section 70.06 of this [chapter] title, every person convicted of a
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD04198-01-9
A. 3984 2
1 class A felony must be sentenced to imprisonment in accordance with
2 section 70.00 of this title, unless such person is convicted of murder
3 in the first degree and is sentenced in accordance with section 60.06 of
4 this article.
5 3. Class B felony. Except as provided in subdivision six of this
6 section, every person convicted of a class B violent felony offense as
7 defined in subdivision one of section 70.02 of this title, must be
8 sentenced to imprisonment in accordance with such section 70.02; and,
9 except as provided in subdivision six of this section, every person
10 convicted of any other class B felony must be sentenced to imprisonment
11 in accordance with section 70.00 of this title or to probation in
12 accordance with section 65.00 of this title.
13 4. Certain class C felonies. Except as provided in subdivision six,
14 every person convicted of a class C violent felony offense as defined in
15 subdivision one of section 70.02 of this title, must be sentenced to
16 imprisonment in accordance with section 70.02 of this title; and, except
17 as provided in subdivision six of this section, every person convicted
18 of the class C felonies of: attempt to commit any of the class B felo-
19 nies of bribery in the first degree as defined in section 200.04, bribe
20 receiving in the first degree as defined in section 200.12, conspiracy
21 in the second degree as defined in section 105.15 and criminal mischief
22 in the first degree as defined in section 145.12; criminal usury in the
23 first degree as defined in section 190.42, rewarding official misconduct
24 in the first degree as defined in section 200.22, receiving reward for
25 official misconduct in the first degree as defined in section 200.27,
26 attempt to promote prostitution in the first degree as defined in
27 section 230.32, promoting prostitution in the second degree as defined
28 in section 230.30, arson in the third degree as defined in section
29 150.10 of this chapter, must be sentenced to imprisonment in accordance
30 with section 70.00 of this title or to probation in accordance with
31 section 65.00 of this title.
32 5. Certain class D felonies. Except as provided in subdivision six of
33 this section, every person convicted of the class D felonies of assault
34 in the second degree as defined in section 120.05 or attempt to commit a
35 class C felony as defined in section 230.30 of this chapter, must be
36 sentenced in accordance with section 70.00 or 85.00 of this title.
37 6. Multiple felony offender. When the court imposes sentence upon a
38 second violent felony offender, as defined in section 70.04,[or a second
39 felony offender, as defined in section 70.06,] the court must impose a
40 sentence of imprisonment in accordance with section 70.04 [or 70.06, as
41 the case may be], unless it imposes a sentence of imprisonment in
42 accordance with section 70.08 [or 70.10]. When the court imposes
43 sentence upon a second felony offender, as defined in section 70.06, the
44 court must impose a sentence in accordance with such section 70.06,
45 unless it imposes a sentence in accordance with section 70.10.
46 7. Fines. Where the court imposes a sentence of imprisonment in
47 accordance with this section, the court also may impose a fine author-
48 ized by article eighty and in such case the sentence shall be both
49 imprisonment and a fine.
50 § 2. Section 65.00 of the penal law, subdivisions 1 and 2 as amended
51 by chapter 835 of the laws of 1974, the opening paragraph of paragraph
52 (a) of subdivision 1 and subparagraph (ii) of paragraph (a) of subdivi-
53 sion 3 as amended by chapter 738 of the laws of 2004, the opening para-
54 graph of paragraph (b) of subdivision 1 as amended by chapter 410 of the
55 laws of 1979, the closing paragraph of subdivision 1 as amended by chap-
56 ter 3 of the laws of 1995, subdivisions 3 and 4 as amended by chapter
A. 3984 3
1 264 of the laws of 2003, paragraph (c) of subdivision 3 as amended by
2 chapter 568 of the laws of 2004 and the closing paragraph of subdivision
3 3 as amended by chapter 320 of the laws of 2006, is amended to read as
4 follows:
5 § 65.00 Sentence of probation.
6 1. Criteria. [(a)] Except as otherwise required by section 60.04 or
7 60.05 of this title, [and except as provided by paragraph (b) hereof,]
8 the court may sentence a person to a period of probation upon conviction
9 of any crime if the court, having regard to the nature and circumstances
10 of the crime and to the history, character and condition of the defend-
11 ant, is of the opinion that:
12 [(i)] (a) Institutional confinement for the term authorized by law of
13 the defendant is or may not be necessary for the protection of the
14 public;
15 [(ii)] (b) the defendant is in need of guidance, training or other
16 assistance which, in his case, can be effectively administered through
17 probation supervision; and
18 [(iii)] (c) such disposition is not inconsistent with the ends of
19 justice.
20 [(b) The court, with the concurrence of either the administrative
21 judge of the court or of the judicial district within which the court is
22 situated or such administrative judge as the presiding justice of the
23 appropriate appellate division shall designate, may sentence a person to
24 a period of probation upon conviction of a class A-II felony or a class
25 B felony defined in article two hundred twenty if the prosecutor either
26 orally on the record or in a writing filed with the indictment recom-
27 mends that the court sentence such person to a period of probation upon
28 the ground that such person has or is providing material assistance in
29 the investigation, apprehension or prosecution of any person for a felo-
30 ny defined in article two hundred twenty or the attempt or the conspira-
31 cy to commit any such felony, and if the court, having regard to the
32 nature and circumstances of the crime and to the history, character and
33 condition of the defendant is of the opinion that:
34 (i) Institutional confinement of the defendant is not necessary for
35 the protection of the public;
36 (ii) The defendant is in need of guidance, training or other assist-
37 ance which, in his case, can be effectively administered through
38 probation supervision;
39 (iii) The defendant has or is providing material assistance in the
40 investigation, apprehension or prosecution of a person for a felony
41 defined in article two hundred twenty or the attempt or conspiracy to
42 commit any such felony; and
43 (iv) Such disposition is not inconsistent with the ends of justice.]
44 Provided, however, that the court shall not, except to the extent
45 authorized by paragraph (d) of subdivision two of section 60.01 of this
46 [chapter] title, impose a sentence of probation in any case where it
47 sentences a defendant for more than one crime and imposes a sentence of
48 imprisonment for any one of the crimes, or where the defendant is
49 subject to an undischarged indeterminate or determinate sentence of
50 imprisonment which was imposed at a previous time by a court of this
51 state and has more than one year to run.
52 2. Sentence. When a person is sentenced to a period of probation the
53 court shall, except to the extent authorized by paragraph (d) of subdi-
54 vision two of section 60.01 of this [chapter] title, impose the period
55 authorized by subdivision three of this section and shall specify, in
56 accordance with section 65.10, the conditions to be complied with. The
A. 3984 4
1 court may modify or enlarge the conditions or, if the defendant commits
2 an additional offense or violates a condition, revoke the sentence at
3 any time prior to the expiration or termination of the period of
4 probation.
5 3. Periods of probation. Unless terminated sooner in accordance with
6 the criminal procedure law, the period of probation shall be as follows:
7 (a) [(i)] For a felony, [other than a class A-II felony or a class B
8 felony defined in article two hundred twenty of this chapter or a sexual
9 assault,] the period of probation shall be five years;
10 [(ii) For a class A-II felony controlled substance offender as defined
11 in paragraph (a) of subdivision one of section 70.71 of this chapter or
12 a class B second felony drug offender as defined in paragraph (b) of
13 subdivision one of section 70.70 of this chapter, the period of
14 probation shall be life, and for a class B felony drug offender as
15 defined in paragraph (a) of subdivision one of section 70.70 of this
16 chapter, the period of probation shall be twenty-five years;
17 (iii) For a felony sexual assault, the period of probation shall be
18 ten years.]
19 (b) (i) For a class A misdemeanor, other than a sexual assault, the
20 period of probation shall be three years;
21 (ii) For a class A misdemeanor sexual assault, the period of probation
22 shall be six years.
23 (c) For a class B misdemeanor, the period of probation shall be one
24 year, except the period of probation shall be no less than one year and
25 no more than three years for the class B misdemeanor of public lewdness
26 as defined in section 245.00 of this chapter;
27 (d) For an unclassified misdemeanor, the period of probation shall be
28 three years if the authorized sentence of imprisonment is in excess of
29 three months, otherwise the period of probation shall be one year.
30 For the purposes of this section, the term "sexual assault" means an
31 offense defined in article one hundred thirty or two hundred sixty-
32 three, or in section 255.25, 255.26 or 255.27 of this chapter, or an
33 attempt to commit any of the foregoing offenses.
34 4. In any case where a court pursuant to its authority under subdivi-
35 sion four of section 60.01 of this [chapter] title revokes probation and
36 sentences such person to imprisonment and probation, as provided in
37 paragraph (d) of subdivision two of section 60.01 of this [chapter]
38 title, the period of probation shall be the remaining period of the
39 original probation sentence or one year whichever is greater.
40 § 3. Subdivision 1 of section 70.00 of the penal law, as amended by
41 section 36 of chapter 7 of the laws of 2007, is amended and two new
42 subdivisions 4-a and 4-b are added to read as follows:
43 1. Indeterminate sentence. Except as provided in subdivisions four,
44 five and six of this section or section 70.80 of this article, a
45 sentence of imprisonment for a felony, other than a felony defined in
46 article two hundred twenty or two hundred twenty-one of this chapter,
47 shall be an indeterminate sentence. When such a sentence is imposed, the
48 court, except as provided in subdivisions four-a and four-b of this
49 section, shall impose a maximum term in accordance with the provisions
50 of subdivision two of this section and the minimum period of imprison-
51 ment shall be as provided in subdivision three of this section.
52 4-a. Alternative sentence for certain class A felonies. When a person,
53 other than a persistent felony offender, is sentenced for a class A
54 felony specified in article two hundred twenty and the court, having
55 regard to the nature and circumstances of the crime and to the history
56 and character of the defendant, is of the opinion that a sentence of
A. 3984 5
1 imprisonment is necessary but that it would be unduly harsh to impose an
2 indeterminate sentence in accordance with paragraph (a) of subdivision
3 two and paragraph (a) of subdivision three of this section, the court
4 may impose a lesser sentence of imprisonment in accordance with any
5 other provision of this section.
6 4-b. Alternative sentence for certain class B felonies. When a person,
7 other than a persistent felony offender, is sentenced for a class B
8 felony specified in article two hundred twenty or any other class B
9 felony not defined in subdivision one of section 70.02 and the court,
10 having regard to the nature and circumstances of the crime and to the
11 history and character of the defendant, is of the opinion that a
12 sentence of imprisonment is necessary but that it would be unduly harsh
13 to impose an indeterminate sentence in accordance with paragraph (b) of
14 subdivision two and paragraph (b) of subdivision three of this section,
15 the court may impose a lesser sentence of imprisonment in accordance
16 with any other provision of this section.
17 § 4. Subdivision 1 of section 70.00 of the penal law, as amended by
18 section 37 of chapter 7 of the laws of 2007, is amended to read as
19 follows:
20 1. Indeterminate sentence. Except as provided in subdivisions four and
21 five of this section or section 70.80 of this article, a sentence of
22 imprisonment for a felony, other than a felony defined in article two
23 hundred twenty or two hundred twenty-one of this chapter, shall be an
24 indeterminate sentence. When such a sentence is imposed, the court,
25 except as provided in subdivisions four-a and four-b of this section,
26 shall impose a maximum term in accordance with the provisions of subdi-
27 vision two of this section and the minimum period of imprisonment shall
28 be as provided in subdivision three of this section.
29 § 5. Section 70.06 of the penal law is amended by adding a new subdi-
30 vision 2-a to read as follows:
31 2-a. Notwithstanding the provisions of subdivision two of this
32 section, the court, having regard to the nature and circumstances of the
33 crime and to the history, character and condition of the defendant, may,
34 in the interest of justice, sentence a second felony offender in accord-
35 ance with section 70.00 or section 65.00.
36 § 6. Section 110.05 of the penal law, as amended by chapter 276 of the
37 laws of 1973, subdivision 1 as amended by chapter 93 of the laws of 2006
38 and subdivisions 3, 4, 5, 6, 7 and 8 as renumbered by chapter 410 of the
39 laws of 1979, is amended to read as follows:
40 § 110.05 Attempt to commit a crime; punishment.
41 An attempt to commit a crime is a:
42 1. Class A-I felony when the crime attempted is the A-I felony of
43 murder in the first degree, aggravated murder as defined in subdivision
44 one of section 125.26 of this chapter, criminal possession of a
45 controlled substance in the first degree[, criminal sale of a controlled
46 substance in the first degree, criminal possession of a chemical or
47 biological weapon in the first degree or criminal use of a chemical or
48 biological weapon in the first degree;
49 2. Class A-II felony when the crime attempted is a class A-II felony];
50 [3]2. Class B felony when the crime attempted is a class A-I or A-II
51 felony except as provided in subdivision one hereof;
52 [4]3. Class C felony when the crime attempted is a class B felony;
53 [5]4. Class D felony when the crime attempted is a class C felony;
54 [6]5. Class E felony when the crime attempted is a class D felony;
55 [7]6. Class A misdemeanor when the crime attempted is a class E felo-
56 ny;
A. 3984 6
1 [8]7. Class B misdemeanor when the crime attempted is a misdemeanor.
2 § 7. Subdivision 15 of section 220.09 of the penal law, as added by
3 chapter 264 of the laws of 2003, is amended and a new subdivision 16 is
4 added to read as follows:
5 15. one or more preparations, compounds, mixtures or substances
6 containing gamma hydroxybutyric acid, as defined in paragraph four of
7 subdivision (e) of schedule I of section thirty-three hundred six of the
8 public health law, and said preparations, compounds, mixtures or
9 substances are of an aggregate weight of two hundred grams or more[.];
10 or
11 16. a narcotic drug with intent to sell it and the narcotic drug
12 weighs ten grains or less.
13 § 8. Subdivision 1 of section 220.16 of the penal law, as amended by
14 chapter 75 of the laws of 1995, is amended to read as follows:
15 1. a narcotic drug with intent to sell it and the narcotic drug weighs
16 more than ten grains; or
17 § 9. Subdivision 9 of section 220.34 of the penal law, as added by
18 chapter 264 of the laws of 2003, is amended and a new subdivision 10 is
19 added to read as follows:
20 9. one or more preparations, compounds, mixtures or substances
21 containing gamma hydroxybutyric acid, as defined in paragraph four of
22 subdivision (e) of schedule I of section thirty-three hundred six of the
23 public health law, and said preparations, compounds, mixtures or
24 substances are of an aggregate weight of twenty-eight grams or more[.];
25 or
26 10. a narcotic drug and the narcotic drug weighs ten grains or less.
27 § 10. Subdivision 1 of section 220.39 of the penal law, as amended by
28 chapter 1051 of the laws of 1973, is amended to read as follows:
29 1. a narcotic drug and the narcotic drug weighs more than ten grains;
30 or
31 § 11. Paragraphs (a), (b) and (c) of subdivision 5 of section 220.10
32 of the criminal procedure law, as amended by chapter 410 of the laws of
33 1979, subparagraph (i) of paragraph (a) as amended by chapter 738 of the
34 laws of 2004, are amended to read as follows:
35 (a) [(i)] Where the indictment charges one of the class A felonies
36 defined in article two hundred twenty of the penal law or the attempt to
37 commit any such class A felony, then any plea of guilty entered pursuant
38 to subdivision three or four of this section must be or must include at
39 least a plea of guilty of a class [B] C felony.
40 [(iii) Where the indictment charges one of the class B felonies
41 defined in article two hundred twenty of the penal law then any plea of
42 guilty entered pursuant to subdivision three or four must be or must
43 include at least a plea of guilty of a class D felony.]
44 (b) Where the indictment charges any class B felony, other than a
45 [class B felony defined in article two hundred twenty of the penal law
46 or a] class B violent felony offense as defined in subdivision one of
47 section 70.02 of the penal law, then any plea of guilty entered pursuant
48 to subdivision three or four must be or must include at least a plea of
49 guilty of a felony.
50 (c) Where the indictment charges a felony, other than a class A felo-
51 ny [or class B felony] defined in article two hundred twenty of the
52 penal law or class B or class C violent felony offense as defined in
53 subdivision one of section 70.02 of the penal law, and it appears that
54 the defendant has previously been subjected to a predicate felony
55 conviction as defined in [penal law] section 70.06 of the penal law then
A. 3984 7
1 any plea of guilty entered pursuant to subdivision three or four must be
2 or must include at least a plea of guilty of a felony.
3 § 12. Paragraph (b) of subdivision 3 of section 220.30 of the criminal
4 procedure law, as amended by chapter 1051 of the laws of 1973, subpara-
5 graph (i) as amended and subparagraphs (viii) and (ix) as added by chap-
6 ter 410 of the laws of 1979, subparagraphs (ii) and (vi) as amended by
7 chapter 481 of the laws of 1978, subparagraphs (iii) and (iv) as added
8 and subparagraphs (vi), (viii) and (ix) as renumbered by chapter 233 of
9 the laws of 1980, subparagraph (v) as amended by chapter 189 of the laws
10 of 2000 and subparagraph (vii) as amended by chapter 1 of the laws of
11 1995, is amended to read as follows:
12 (b) (i) A plea of guilty, whether to the entire indictment or to
13 part of the indictment for any crime other than at least a class [A] C
14 felony, may not be accepted on the condition that it constitutes a
15 complete disposition of one or more other indictments against the
16 defendant wherein is charged a class [A-I] A felony as defined in arti-
17 cle two hundred twenty of the penal law [or the attempt to commit any
18 such class A-I felony, except that an eligible youth, as defined in
19 subdivision two of section 720.10, may plea to a class B felony, upon
20 consent of the district attorney, for purposes of adjudication as a
21 youthful offender].
22 (ii) Where it appears that the defendant has previously been
23 subjected to a predicate felony conviction as defined in paragraph (b)
24 of subdivision [(1)] one of section 70.06 of the penal law, a plea of
25 guilty, whether to the entire indictment or to part of the indictment,
26 of any offense other than a felony may not be accepted on the condition
27 that it constitutes a complete disposition of one or more other indict-
28 ments against the defendant wherein is charged a felony, other than a
29 class A felony or a class B or class C violent felony offense as defined
30 in subdivision one of section 70.02 of the penal law.
31 (iii) A plea of guilty, whether to the entire indictment or part of
32 the indictment for any crime other than a class A felony not defined in
33 article two hundred twenty of the penal law or a class B or class C
34 violent felony offense as defined in subdivision one of section 70.02 of
35 the penal law, may not be accepted on the condition that it constitutes
36 a complete disposition of one or more other indictments against the
37 defendant wherein is charged a class A felony, other than those defined
38 in article two hundred twenty of the penal law, or a class B violent
39 felony offense which is also an armed felony offense.
40 (iv) Except as provided in subparagraph (iii) of this paragraph, a
41 plea of guilty, whether to the entire indictment or part of the indict-
42 ment, for any crime other than a class A felony not defined in article
43 two hundred twenty of the penal law or a class B, C, or D violent felony
44 offense as defined in subdivision one of section 70.02 of the penal law,
45 may not be accepted on the condition that it constitutes a complete
46 disposition of one or more other indictments against the defendant wher-
47 ein is charged a class B or class C violent felony offense as defined in
48 subdivision one of section 70.02 of the penal law[,].
49 (v) A plea of guilty, whether to the entire indictment or part of the
50 indictment, for any crime other than a violent felony offense as defined
51 in section 70.02 of the penal law, may not be accepted on the condition
52 that it constitutes a complete disposition of one or more other indict-
53 ments against the defendant wherein is charged the class D violent felo-
54 ny offenses of criminal possession of a weapon in the third degree as
55 defined in subdivision [four,] five, seven or eight of section 265.02 of
56 the penal law; provided, however, a plea of guilty, whether to the
A. 3984 8
1 entire indictment or part of the indictment, for the class A misdemeanor
2 of criminal possession of a weapon in the fourth degree as defined in
3 subdivision one of section 265.01 of the penal law may be accepted on
4 the condition that it constitutes a complete disposition of one or more
5 other indictments against the defendant wherein is charged the class D
6 violent felony offense of criminal possession of a weapon in the third
7 degree as defined in [subdivision four of] section 265.02 of the penal
8 law when the defendant has not been previously convicted of a class A
9 misdemeanor defined in the penal law in the five years preceding the
10 commission of the offense.
11 (vi) A plea of guilty, whether to the entire indictment or to part of
12 the indictment for any crime other than a felony, may not be accepted on
13 the condition that it constitutes a complete disposition of one or more
14 other indictments against the defendant wherein is charged a class B
15 felony other than a class B violent felony offense as defined in subdi-
16 vision one of section 70.02 of the penal law.
17 (vii) A defendant may not enter a plea of guilty to the crime of
18 murder in the first degree as defined in section 125.27 of the penal
19 law; provided, however, that a defendant may enter such a plea with both
20 the permission of the court and the consent of the people when the
21 agreed upon sentence is either life imprisonment without parole or a
22 term of imprisonment for the class A-I felony of murder in the first
23 degree other than a sentence of life imprisonment without parole.
24 [(viii) A plea of guilty, whether to the entire indictment or to part
25 of the indictment for any crime other than a class A or class B felony
26 may not be accepted on condition that it constitutes a complete disposi-
27 tion of one or more other indictments against the defendant wherein is
28 charged a class A-II felony defined in article two hundred twenty of the
29 penal law or the attempt to commit any such felony.
30 (ix) A plea of guilty, whether to the entire indictment or to part of
31 the indictment for any crime other than a class B, a class C, or a class
32 D felony, may not be accepted on condition that it constitutes a
33 complete disposition of one or more other indictments against the
34 defendant wherein is charged a class B felony defined in article two
35 hundred twenty of the penal law.]
36 § 13. Subdivision 1 of section 440.20 of the criminal procedure law,
37 as amended by chapter 1 of the laws of 1995, is amended to read as
38 follows:
39 1. At any time after the entry of a judgment, the court in which the
40 judgment was entered may, upon motion of the defendant, set aside the
41 sentence upon the ground that
42 (a) it was unauthorized, illegally imposed or otherwise invalid as a
43 matter of law, or
44 (b) the defendant was convicted on or after September first, nineteen
45 hundred seventy-three and new sentencing options were enacted since the
46 entry of judgment against the defendant which, had they been available
47 at time of sentencing, could have been applied by the court when impos-
48 ing sentence; provided, however, that such new sentencing options were
49 enacted pursuant to the chapter of the laws of two thousand nine which
50 added this paragraph.
51 Where the judgment includes a sentence of death, the court may also
52 set aside the sentence upon any of the grounds set forth in paragraph
53 (b), (c), (f), (g) or (h) of subdivision one of section 440.10 as
54 applied to a separate sentencing proceeding under section 400.27,
55 provided, however, that to the extent the ground or grounds asserted
56 include one or more of the aforesaid paragraphs of subdivision one of
A. 3984 9
1 section 440.10, the court must also apply subdivisions two and three of
2 section 440.10, other than paragraph (d) of subdivision two of such
3 section, in determining the motion. In the event the court enters an
4 order granting a motion to set aside a sentence of death under this
5 section, the court must either direct a new sentencing proceeding in
6 accordance with section 400.27 or, to the extent that the defendant
7 cannot be resentenced to death consistent with the laws of this state or
8 the constitution of this state or of the United States, resentence the
9 defendant to life imprisonment without parole or to a sentence of impri-
10 sonment for the class A-I felony of murder in the first degree other
11 than a sentence of life imprisonment without parole. Upon granting the
12 motion upon any of the grounds set forth in the aforesaid paragraphs of
13 subdivision one of section 440.10 and setting aside the sentence, the
14 court must afford the people a reasonable period of time, which shall
15 not be less than ten days, to determine whether to take an appeal from
16 the order setting aside the sentence of death. The taking of an appeal
17 by the people stays the effectiveness of that portion of the court's
18 order that directs a new sentencing proceeding.
19 § 14. Section 8 of the state finance law is amended by adding a new
20 subdivision 21 to read as follows:
21 21. a. Examine, audit and, prior to March fifteenth of each year,
22 certify to the governor, the chairperson of the senate finance committee
23 and the chairperson of the assembly ways and means committee the actual
24 annual savings by the department of correctional services in the previ-
25 ous calendar year which is attributable to the implementation of chapter
26 seven hundred thirty-eight of the laws of two thousand four, chapter six
27 hundred forty-three of the laws of two thousand five and the chapter of
28 the laws of two thousand nine which added this subdivision. Such
29 certification shall be based on the decrease in the number of inmate
30 admissions and the reduction in inmate length of stay for offenses
31 defined in articles two hundred twenty and two hundred twenty-one of the
32 penal law, as well as an estimate of the extent, if any, by which any
33 reduction in the crime rate during such calendar year and any corre-
34 sponding reduction in the number of inmate admissions or length of stay
35 during such period was attributable to the provision of increased drug
36 treatment, offender supervision and related initiatives, enacted by the
37 chapter of the laws of two thousand eight which added this subdivision;
38 and
39 b. authorize and direct the transfer of funds equal to the amount of
40 such savings certified under paragraph (a) of this subdivision from the
41 general fund to the crime reduction fund as authorized by section nine-
42 ty-seven-j of this chapter.
43 § 15. The state finance law is amended by adding a new section 97-j to
44 read as follows:
45 § 97-j. Crime reduction fund. 1. There is hereby established in the
46 custody of the state comptroller a special fund to be known as the
47 "crime reduction fund".
48 2. Such fund shall consist of all moneys transferred by the state
49 comptroller to such fund from the general fund pursuant to paragraph (b)
50 of subdivision twenty-one of section eight of this chapter and other
51 monies credited, appropriated or transferred to such fund from the
52 general fund and any other fund or source.
53 3. Moneys in the crime reduction fund shall be available pursuant to
54 appropriation by the legislature to the office of alcoholism and
55 substance abuse services, the division of probation and correctional
56 alternatives, the division of parole, the office of court adminis-
A. 3984 10
1 tration, the office of children and family services and the department
2 of correctional services for payment to local governments and not-for-
3 profit corporations. All moneys from the fund shall be expended for
4 alcohol and substance abuse treatment, services and expenses related to
5 drug treatment alternatives to prison and reentry programs, and drug
6 court programs to reduce offender recidivism and crime.
7 4. Moneys in the crime reduction fund shall be used to supplement, not
8 supplant, other funding sources.
9 § 16. The sum of one hundred twenty million dollars ($120,000,000), or
10 so much thereof as may be necessary, is hereby appropriated to the crime
11 reduction fund, established pursuant to section 97-j of the state
12 finance law, out of any moneys in the state treasury in the general fund
13 to the credit of the state purposes account not otherwise appropriated
14 for its expenses, in carrying out the provisions of this act. Such sum
15 shall be payable on the audit and warrant of the state comptroller on
16 vouchers certified or approved in the manner prescribed by law.
17 § 17. This act shall take effect immediately; provided, however, that
18 the amendments to the closing paragraph of subdivision 1 of section
19 65.00 of the penal law made by section two of this act shall not affect
20 the expiration of such provisions and shall be deemed to expire there-
21 with; provided, further, that the amendments to subdivision 1 of section
22 70.00 of the penal law made by section three of this act shall be
23 subject to the expiration and reversion of such subdivision pursuant to
24 section 74 of chapter 3 of the laws of 1995, as amended, when upon such
25 date the provisions of section four of this act shall take effect.
