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A04582 Summary:

BILL NO    A04582B

SAME AS    SAME AS S04664-A

SPONSOR    O'Donnell (MS)

COSPNSR    Aubry

MLTSPNSR   Perry

Amd S65.00, Pen L; amd SS410.70 & 390.20, CP L

Relates to imposing sentences of probation and to waiving pre-sentence
investigations and written reports thereon in any city having a population of
one million or more for certain offenses.
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A04582 Actions:

BILL NO    A04582B

02/06/2013 referred to correction
02/28/2013 reported referred to codes
05/13/2013 amend and recommit to codes
05/13/2013 print number 4582a
05/20/2013 amend and recommit to codes
05/20/2013 print number 4582b
06/10/2013 reported referred to rules
06/11/2013 reported 
06/11/2013 rules report cal.189
06/11/2013 ordered to third reading rules cal.189
06/19/2013 substituted by s4664a
           S04664  AMEND=A  GOLDEN
           04/17/2013 REFERRED TO CODES
           05/23/2013 AMEND AND RECOMMIT TO CODES
           05/23/2013 PRINT NUMBER 4664A
           06/12/2013 COMMITTEE DISCHARGED AND COMMITTED TO RULES
           06/12/2013 ORDERED TO THIRD READING CAL.1351
           06/13/2013 PASSED SENATE
           06/13/2013 DELIVERED TO ASSEMBLY
           06/13/2013 referred to codes
           06/19/2013 substituted for a4582b
           06/19/2013 ordered to third reading rules cal.189
           06/19/2013 passed assembly
           06/19/2013 returned to senate
           12/30/2013 DELIVERED TO GOVERNOR
           01/10/2014 SIGNED CHAP.556
           01/10/2014 APPROVAL MEMO.18
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A04582 Votes:

There are no votes for this bill in this legislative session.
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A04582 Memo:

BILL NUMBER:A4582B

TITLE OF BILL:  An act to amend the penal law and the criminal
procedure law, in relation to establishing terms of probation
sentences and revocations thereof under certain circumstances

SUMMARY OF PROVISIONS: Section 1 of the bill would amend PL
65.00(3)(a)(i) to provide the court with the discretion to impose a
probation term of three, four or five years for a felony. This would
only apply to felonies other than (1) Class A-II felonies defined in
PL Article 220; (2) the Class B felony defined in PL S 220.48; (3) any
other Class B felony defined in PL Article 220 committed by a second
felony drug offender; or (4) any felony involving a sexual assault.

Section 2 of the bill would amend PL 65.00(3)(b)(i) to provide the
court with the discretion to impose a probation term of two or three
years for a class A misdemeanor other than a sexual assault.

Section 3 of the bill would amend PL65.00(3)(d) to give the court the
discretion to impose a probation term of two or three years for an
unclassified misdemeanor, for which the authorized sentence of
imprisonment is greater than three months.

Section 4 of the bill would amend PL S.65.00 by adding a new
subdivision 4, which would clarify that when someone is found to have
violated terms of probation and the court continues or modifies the
sentence, the court may extend remaining period of probation up to the
maximum term authorized by S 65.00.

Section 5 of the bill would amend Criminal. Procedure Law S 410.70(5)
to make corresponding changes that reflect the amendments proposed by
section 4 of the bill.

Section 6 of the bill would add a new subdivision 5 to CPL S 39020,
which would provide that notwithstanding the provisions of subdivision
one and two of section CPL section 39020, in any city having a
population of one million or more a pre-sentence investigation and
report thereon ("PSI") would not be required where a negotiated
sentence of imprisonment for a term of three hundred sixty-five days
or less has been mutually agreed upon by the parties, with the consent
of the judge, as a result of a conviction or ):evocation of a sentence
of probation.

Section 7, the effective date provides that sections 1 through 5 of
this law would take effect immediately and would apply to offenses
committed on or after the date upon which it becomes law. It would
also apply to offenses committed before such date, where the sentence
upon conviction for such offense has not yet been imposed. Section 6
shall take effect 90 days after law takes effect.

JUSTIFICATION: Currently, sentences involving probation are oriented
to the conviction, rather than to the offender. Penal Law S 65.00
stipulates that, with very few exceptions, a period of probation for a
felony offense must be five years, and a period of probation for a
class A misdemeanor must be three years. Unlike sentences of
incarceration, about which judges maintain broad discretion in


determining the length of the sentence, judges are limited when
determining the lengths of probation sentences.

This lack of judicial discretion prevents judges from distinguishing
among convicted individuals on the basis of their prior criminal
history; degree of culpability (major/minor actors); the risk level
they pose to public safety; and their actuarially determined risk of
re-offense". Moreover, all felony convictions, except those for
certain drug-related offenses, receive five-year probation terms with
no discretion for the court to distinguish between the levels of such
felonies (e.g., Vehicular Manslaughter in the First Degree, a class C
felony, Assault in the Second Degree, a class D felony, and Auto
Stripping in the Second Degree, a class E felony). Therefore,
probation sentences do not appropriately correlate to the severity of
the conviction, nor to the risk factors posed by the offender.

This proposal reflects "evidence-based practices" - that is, practices
based on studies of what has been proven to be effective in the
probation field - and reflects the idea that appropriate judicial --
discretion is critical to imposing correct probation term lengths in
order to advance public safety. Research into community supervision
and community corrections has shown that: (1) most re-offending and
technical violations occur within the first eighteen months of one's
probation term; and (2) supervision has its greatest impact in the
first twelve months. As such, of those felony probationers who violate
their terms of probation, more than 80% do so within the first three
years, and 80% of misdemeanor probationers who violate the terms of
supervision do so within the first two years.

This bill would allow probation departments to advance public safety
by focusing scarce probation resources on the period of time when
probationers are most likely to re-offend and when probation
supervision is most effective. All counties in New York, including the
five boroughs of New York City, are now employing evidence-based risk
assessment instruments mandated by the State's Office of Probation and
Correctional Alternatives. These are one of several tools that
counties are utilizing to provide probation services that are tailored
more closely to the individual. They can be used to guide judges in
determining probation lengths, allowing their probation departments to
focus scarce resources on higher risk probationers, while lower-risk
probationers are supervised for the period of time when it matters
most. This use of evidence-based practices to concentrate resources on
those who pose the highest risk to public safety will result in lower
recidivism rates and increased positive outcomes for persons on
probation.

Additionally, this proposal provides the court directly, and probation
departments indirectly, with a new tool to impose graduated sanctions
when probation is revoked. Currently, upon revocation, the only
sanction available to the court is to sentence an individual to
incarceration, or a period of incarceration and probation. In other
words, if a probationer is not following all the terms of probation -
even if the mistakes are not criminal in nature - the only recourse
the court has is to sentence the probationer to a period in jail or
prison. This proposal provides the court with an intermediate option,
which is to impose a longer period of probation. In instances where an
individual does not receive the maximum amount of probation time at


sentencing, that sentence can be increased upon revocation to the
maximum probation sentence that had been originally available to the
court. This intermediate option would be consistent with
evidence-based practices, which suggest that graduated and appropriate
responses to behavior increase a probationer's likelihood of success
and decrease future criminal behavior.

Finally, probation departments throughout the State are required to
conduct PSI's and prepare written reports on all defendants convicted
in felony cases, and on all defendants convicted in misdemeanor cases
who receive a sentence of imprisonment in excess of 180 days.

This bill would amend S 390.20 to maintain these requirements except
where a negotiated sentence of imprisonment for a term of 365 days or
less has been reached as a result of a conviction or revocation of a
probation sentence. Probation departments would continue to prepare
PSI's in all other felony cases.

The current PSI requirements necessitate additional court hearings,
delay sentencing, and expend public resources for a pre-sentence
investigation and report that rarely impacts the final sentencing
outcome. It --is important to note that subdivision 3 of CPL S 390.20
allows judges to order a PSI in any case when they believe it is
appropriate. This proposal would not affect the discretion of the
Court to order a PSI even if the statute would no longer automatically
require one,

LEGISLATIVE HISTORY: Advanced to third reading 2012

FISCAL IMPLICATIONS:  None.

EFFECTIVE DATE: Sections 1 through 5 immediately, provided however,
that it shall apply to offenses committed on or after the date of
this. act and it shall also apply to offenses committed before such
act where the sentence has not yet been imposed. Section 6 shall take
effect 90 days after the bill becomes law.
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A04582 Text:

                           S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________

                                        4582--B

                              2013-2014 Regular Sessions

                                 I N  A S S E M B L Y

                                   February 6, 2013
                                      ___________

       Introduced by M. of A. O'DONNELL, AUBRY -- read once and referred to the
         Committee  on  Correction -- reported and referred to the Committee on
         Codes -- committee discharged,  bill  amended,  ordered  reprinted  as
         amended  and recommitted to said committee -- again reported from said
         committee with amendments, ordered reprinted as amended and  recommit-
         ted to said committee

       AN  ACT  to  amend  the  penal  law  and  the criminal procedure law, in
         relation to establishing terms of probation sentences and  revocations
         thereof under certain circumstances

         THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
       BLY, DO ENACT AS FOLLOWS:

    1    Section 1. Subparagraph (i) of  paragraph  (a)  of  subdivision  3  of
    2  section  65.00 of the penal law, as amended by section 20 of part AAA of
    3  chapter 56 of the laws of 2009, is amended to read as follows:
    4    (i) For a felony, other than a class A-II felony  defined  in  article
    5  two  hundred  twenty  of  this  chapter or the class B felony defined in
    6  section 220.48 of this chapter, or any other class B felony  defined  in
    7  article  two hundred twenty of this chapter committed by a second felony
    8  drug offender, or a sexual assault, the period of probation shall  be  A
    9  TERM OF THREE, FOUR OR five years;
   10    S  2.  Subparagraph  (i)  of paragraph (b) of subdivision 3 of section
   11  65.00 of the penal law, as amended by chapter 264 of the laws  of  2003,
   12  is amended to read as follows:
   13    (i) For a class A misdemeanor, other than a sexual assault, the period
   14  of probation shall be A TERM OF TWO OR three years;
   15    S 3. Paragraph (d) of subdivision 3 of section 65.00 of the penal law,
   16  as  amended  by  chapter  264 of the laws of 2003, is amended to read as
   17  follows:
   18    (d) For an unclassified misdemeanor, the period of probation shall  be
   19  A  TERM OF TWO OR three years if the authorized sentence of imprisonment

        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD06252-06-3
       A. 4582--B                          2

    1  is in excess of three months, otherwise the period of probation shall be
    2  one year.
    3    S  4.    Subdivision 4 of section 65.00 of the penal law is renumbered
    4  subdivision 5 and a new subdivision 4 is added to read as follows:
    5    4. IF DURING THE PERIODS OF PROBATION REFERENCED IN  SUBPARAGRAPH  (I)
    6  OF PARAGRAPH (A), SUBPARAGRAPH (I) OF PARAGRAPH (B) AND PARAGRAPH (D) OF
    7  SUBDIVISION  THREE OF THIS SECTION AN ALLEGED VIOLATION IS SUSTAINED AND
    8  THE COURT CONTINUES OR MODIFIES THE SENTENCE, THE COURT MAY  EXTEND  THE
    9  REMAINING  PERIOD OF PROBATION UP TO THE MAXIMUM TERM AUTHORIZED BY THIS
   10  SECTION.
   11    S 5. Subdivision 5 of section 410.70 of the criminal procedure law, as
   12  amended by chapter 112 of the laws  of  1985,  is  amended  to  read  as
   13  follows:
   14    5.  Revocation;  modification;  continuation. At the conclusion of the
   15  hearing the court  may  revoke,  continue  or  modify  the  sentence  of
   16  probation   or  conditional  discharge.  Where  the  court  revokes  the
   17  sentence, it must impose sentence as specified in subdivisions three and
   18  four of section 60.01 of the penal law. Where  the  court  continues  or
   19  modifies the sentence, it must vacate the declaration of delinquency and
   20  direct  that  the  defendant  be  released.  If the alleged violation is
   21  sustained and the court continues  or  modifies  the  sentence,  it  may
   22  extend the sentence up to the period of interruption specified in subdi-
   23  vision  two  of  section  65.15  of the penal law, but any time spent in
   24  custody in any correctional institution pursuant to  section  410.60  of
   25  this  article  shall  be  credited  against  the  term  of the sentence.
   26  PROVIDED FURTHER, WHERE THE ALLEGED VIOLATION IS SUSTAINED AND THE COURT
   27  CONTINUES OR MODIFIES THE  SENTENCE,  THE  COURT  MAY  ALSO  EXTEND  THE
   28  REMAINING  PERIOD  OF  PROBATION  UP  TO  THE MAXIMUM TERM AUTHORIZED BY
   29  SECTION 65.00 OF THE PENAL LAW.
   30    S 6. Section 390.20 of the criminal procedure law is amended by adding
   31  a new subdivision 5 to read as follows:
   32    5. NEGOTIATED SENTENCE OF IMPRISONMENT. IN ANY  CITY  HAVING  A  POPU-
   33  LATION  OF  ONE  MILLION  OR  MORE AND NOTWITHSTANDING THE PROVISIONS OF
   34  SUBDIVISION ONE OR TWO OF THIS SECTION, A PRE-SENTENCE INVESTIGATION AND
   35  WRITTEN REPORT THEREON SHALL NOT BE REQUIRED WHERE A NEGOTIATED SENTENCE
   36  OF IMPRISONMENT FOR A TERM OF THREE HUNDRED SIXTY-FIVE DAYS OR LESS  HAS
   37  BEEN MUTUALLY AGREED UPON BY THE PARTIES WITH CONSENT OF THE JUDGE, AS A
   38  RESULT OF A CONVICTION OR REVOCATION OF A SENTENCE OF PROBATION.
   39    S  7.  This act shall take effect immediately; provided, however, that
   40  sections one through five of this act shall apply to offenses  committed
   41  on  or  after  the date this act shall have become a law, and shall also
   42  apply to offenses committed before such date, where  the  sentence  upon
   43  conviction  for  such  offense  has  not yet been imposed; and provided,
   44  further, that section six of this act shall take effect on the ninetieth
   45  day after it shall have become a law.
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