NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A8089
SPONSOR: Aubry TITLE OF BILL: An act to amend the penal law and the criminal proce-
dure 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 § 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 PL § 65.00(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 imprison-
ment is greater than three months.
Section 4 of the bill would amend PL § 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 author-
ized by § 65.00.
Section 5 of the bill would amend Criminal Procedure Law § 410.70(5) to
make corresponding changes that reflect the amendments proposed by
section 4 of the bill.
Section 6, the effective date provision, provides that 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 is imposed no earlier than ten days after such date.
REASONS FOR SUPPORT: Currently, sentences involving probation are
oriented to the conviction, rather than to the offender. Penal Law §
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 incarcera-
tion, 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 histo-
ry; 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., Vehicu-
lar manslaughter in the First Degree
class C felony, Assault in the
Second Degree
class D felony, and Auto stripping in the Second Degree
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 techni-
cal 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 proba-
tioners are most likely to re-offend and when probation supervision is
most effective. All counties in New York, including the five boroughs
New York City, are now employing evidence-based risk assessment instru-
ments 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 super-
vised 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 probation-
er 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 interme-
diate 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 behav-
ior.
Accordingly, the Mayor urges the ear/lest possible favorable consider-
ation of this proposal by the Legislature.
STATE OF NEW YORK
________________________________________________________________________
8089
2011-2012 Regular Sessions
IN ASSEMBLY
June 1, 2011
___________
Introduced by M. of A. AUBRY -- read once and referred to the Committee
on Correction
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 § 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 § 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
20 is in excess of three months, otherwise the period of probation shall be
21 one year.
22 § 4. Subdivision 4 of section 65.00 of the penal law is renumbered
23 subdivision 5 and a new subdivision 4 is added to read as follows:
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD11927-01-1
A. 8089 2
1 4. If during the periods of probation referenced in subparagraph (i)
2 of paragraph (a), subparagraph (i) of paragraph (b) and paragraph (d) of
3 subdivision three of this section an alleged violation is sustained and
4 the court continues or modifies the sentence, the court may extend the
5 remaining period of probation up to the maximum term authorized by this
6 section.
7 § 5. Subdivision 5 of section 410.70 of the criminal procedure law, as
8 amended by chapter 112 of the laws of 1985, is amended to read as
9 follows:
10 5. Revocation; modification; continuation. At the conclusion of the
11 hearing the court may revoke, continue or modify the sentence of
12 probation or conditional discharge. Where the court revokes the
13 sentence, it must impose sentence as specified in subdivisions three and
14 four of section 60.01 of the penal law. Where the court continues or
15 modifies the sentence, it must vacate the declaration of delinquency and
16 direct that the defendant be released. If the alleged violation is
17 sustained and the court continues or modifies the sentence, it may
18 extend the sentence up to the period of interruption specified in subdi-
19 vision two of section 65.15 of the penal law, but any time spent in
20 custody in any correctional institution pursuant to section 410.60 of
21 this article shall be credited against the term of the sentence.
22 Provided further, where the alleged violation is sustained and the court
23 continues or modifies the sentence, the court may also extend the
24 remaining period of probation up to the maximum term authorized by
25 section 65.00 of the penal law.
26 § 6. This act shall take effect immediately; provided, however, that
27 it shall apply to offenses committed on or after the date this act shall
28 have become a law, and provided, further, however, that it shall also
29 apply to offenses committed before such date, where the sentence upon
30 conviction for such offense is imposed no earlier than ten days after
31 such date.
