BILL NO A04582B
SAME AS SAME AS S04664-A
SPONSOR O'Donnell (MS)
COSPNSR Aubry
MLTSPNSR
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.
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
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.
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.
