STATE OF NEW YORK
________________________________________________________________________
2036--B
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, SOLAGES,
BICHOTTE HERMELYN, HUNTER, BORES, SEAWRIGHT, LEE, DAIS, BURKE --
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 -- recommitted
to the Committee on Codes in accordance with Assembly Rule 3, sec. 2
-- 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; 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. Short title. This act shall be known and may be cited as
2 the "Marvin Mayfield act".
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD04611-04-4
A. 2036--B 2
1 § 2. Subdivision 6 of section 1.05 of the penal law, as amended by
2 chapter 98 of the laws of 2006, is amended to read as follows:
3 6. To [insure the public] promote community safety by [preventing the
4 commission of offenses through the deterrent influence of the sentences
5 authorized,] 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 when
8 required in the interests of public protection] by imposing the minimum
9 sentence necessary to achieve the goals of sentencing outlined above.
10 § 3. Section 380.20 of the criminal procedure law is amended to read
11 as follows:
12 § 380.20 Sentence required.
13 1. The court must pronounce sentence in every case where a conviction
14 is entered. If an accusatory instrument contains multiple counts and a
15 conviction is entered on more than one count the court must pronounce
16 sentence on each count.
17 2. When entering a sentence that includes a term of imprisonment, or
18 within seven days thereafter, the court shall issue a written decision
19 explaining its choice of sentence, based on individualized findings,
20 sufficient to facilitate appellate review. A defendant may knowingly and
21 voluntarily waive the right to a written decision.
22 § 4. Paragraph (a) of subdivision 3 of section 390.30 of the criminal
23 procedure law, as added by chapter 14 of the laws of 1985, is amended to
24 read as follows:
25 (a) The report of the pre-sentence investigation must contain an anal-
26 ysis of as much of the information gathered in the investigation as the
27 agency that conducted the investigation deems relevant to the question
28 of sentence. The report must also include any other [imformation] infor-
29 mation that the court directs to be included and the material required
30 by paragraph (b) of this subdivision which shall be considered part of
31 the report. The report shall include an analysis of the actual finan-
32 cial cost of incarceration to the state and/or localities of the poten-
33 tial sentences that may be imposed.
34 § 5. Subdivision 1 and paragraph (a) of subdivision 2 of section
35 390.50 of the criminal procedure law, subdivision 1 as separately
36 amended by chapters 224 and 369 of the laws of 1986 and paragraph (a) of
37 subdivision 2 as amended by chapter 31 of the laws of 2019, are amended
38 to read as follows:
39 1. In general. Any pre-sentence report or memorandum submitted to the
40 court pursuant to this article and any medical, psychiatric or social
41 agency report or other information gathered for the court by a probation
42 department, or submitted directly to the court, in connection with the
43 question of sentence is confidential and may not be made available by
44 any state agency, including the state department of corrections and
45 community supervision, to any person or public or private agency except
46 where specifically required or permitted by statute or upon specific
47 authorization of the court. Section one hundred forty-seven of the
48 correction law shall not be deemed to permit such disclosure. For
49 purposes of this section, any report, memorandum or other information
50 forwarded to a probation department within this state from a probation
51 agency outside this state is governed by the same rules of confidential-
52 ity. Any person, public or private agency receiving such material must
53 retain it under the same conditions of confidentiality as apply to the
54 probation department that made it available.
55 (a) Not less than one court day prior to sentencing, unless such time
56 requirement is waived by the parties, the pre-sentence report or memo-
A. 2036--B 3
1 randum shall be made available by the court for examination and for
2 copying and retention by the defendant's attorney, the defendant
3 himself, [if he has no attorney,] and the prosecutor. The defendant
4 shall be given an opportunity to challenge or correct any fact or
5 conclusion in the pre-sentence report or memorandum prior to the court's
6 pronouncement of sentence. In its discretion, the court may except from
7 disclosure a part or parts of the report or memoranda which are not
8 relevant to a proper sentence, or a diagnostic opinion which might seri-
9 ously disrupt a program of rehabilitation, or sources of information
10 which have been obtained on a promise of confidentiality, or any other
11 portion thereof, disclosure of which would not be in the interest of
12 justice. In all cases where a part or parts of the report or memoranda
13 are not disclosed, the court shall state for the record that a part or
14 parts of the report or memoranda have been excepted and the reasons for
15 its action. The action of the court excepting information from disclo-
16 sure shall be subject to appellate review. The pre-sentence report shall
17 be made available by the court for examination and copying in connection
18 with any appeal in the case, including an appeal under this subdivision.
19 Upon written request, the court shall make a copy of the presentence
20 report, other than a part or parts of the report redacted by the court
21 pursuant to this paragraph, available to the defendant for use before
22 the parole board for release consideration or an appeal of a parole
23 board determination or an application for resentencing pursuant to
24 section 440.46 or 440.47 of this chapter. [In his or her written request
25 to the court the defendant shall affirm that he or she anticipates an
26 appearance before the parole board or intends to file an administrative
27 appeal of a parole board determination or meets the eligibility criteria
28 for and intends to file a motion for resentencing pursuant to 440.46 of
29 this chapter or has received notification from the court which received
30 his or her request to apply for resentencing pursuant to section 440.47
31 of this chapter confirming that he or she is eligible to submit an
32 application for resentencing pursuant to section 440.47 of this chap-
33 ter.] The court shall respond to the defendant's written request within
34 twenty days from receipt of the defendant's written request.
35 § 6. Section 70.00 of the penal law, the section heading as amended by
36 chapter 277 of the laws of 1973, subdivision 1 as amended by chapter 7
37 of the laws of 2007, subdivisions 2, 3 and 4 as amended by chapter 738
38 of the laws of 2004, paragraph (a) of subdivision 3 as amended by chap-
39 ter 107 and paragraph (b) of subdivision 3 as amended by chapter 746 of
40 the laws of 2006, subdivision 5 as amended by section 40-a of part WWW
41 of chapter 59 of the laws of 2017, and subdivision 6 as amended by chap-
42 ter 1 of the laws of 1998, is amended to read as follows:
43 § 70.00 Sentence of imprisonment for felony.
44 1. Indeterminate sentence. Except as provided in subdivisions three
45 and four[, five and six] of this section or section 70.80 of this arti-
46 cle, [a] the term of sentence [of imprisonment] for a felony, other than
47 a felony defined in article two hundred twenty [or two hundred twenty-
48 one] of this chapter, shall be fixed by the court. If a court finds that
49 sentence of imprisonment of more than one year is the minimum term of
50 imprisonment necessary to achieve the goals of sentencing, the court
51 shall impose an indeterminate sentence. When such a sentence is imposed,
52 the court shall impose a maximum term in accordance with the provisions
53 of subdivision two of this section [and the minimum period of imprison-
54 ment shall be as provided in subdivision three of this section]. The
55 minimum period shall be fixed by the court and specified in the sentence
56 and shall be not less than one year nor more than one-third of the maxi-
A. 2036--B 4
1 mum term imposed, or the court may impose a definite sentence of impri-
2 sonment and fix a term of less than one year.
3 2. Maximum term of sentence. The maximum term of an indeterminate
4 sentence shall be at least three years and the term shall be fixed as
5 follows:
6 (a) For a class A felony, the term shall be life imprisonment;
7 (b) For a class B felony, the term shall be fixed by the court, and
8 shall not exceed twenty-five years;
9 (c) For a class C felony, the term shall be fixed by the court, and
10 shall not exceed fifteen years;
11 (d) For a class D felony, the term shall be fixed by the court, and
12 shall not exceed seven years; and
13 (e) For a class E felony, the term shall be fixed by the court, and
14 shall not exceed four years.
15 3. [Minimum period of imprisonment. The minimum period of imprisonment
16 under an indeterminate sentence shall be at least one year and shall be
17 fixed as follows:
18 (a) In the case of a class A felony, the minimum period shall be fixed
19 by the court and specified in the sentence.
20 (i) For a class A-I felony, such minimum period shall not be less than
21 fifteen years nor more than twenty-five years; provided, however, that
22 (A) where a sentence, other than a sentence of death or life imprison-
23 ment without parole, is imposed upon a defendant convicted of murder in
24 the first degree as defined in section 125.27 of this chapter such mini-
25 mum period shall be not less than twenty years nor more than twenty-five
26 years, and, (B) where a sentence is imposed upon a defendant convicted
27 of murder in the second degree as defined in subdivision five of section
28 125.25 of this chapter or convicted of aggravated murder as defined in
29 section 125.26 of this chapter, the sentence shall be life imprisonment
30 without parole, and, (C) where a sentence is imposed upon a defendant
31 convicted of attempted murder in the first degree as defined in article
32 one hundred ten of this chapter and subparagraph (i), (ii) or (iii) of
33 paragraph (a) of subdivision one and paragraph (b) of subdivision one of
34 section 125.27 of this chapter or attempted aggravated murder as defined
35 in article one hundred ten of this chapter and section 125.26 of this
36 chapter such minimum period shall be not less than twenty years nor more
37 than forty years.
38 (ii) For a class A-II felony, such minimum period shall not be less
39 than three years nor more than eight years four months, except that for
40 the class A-II felony of predatory sexual assault as defined in section
41 130.95 of this chapter or the class A-II felony of predatory sexual
42 assault against a child as defined in section 130.96 of this chapter,
43 such minimum period shall be not less than ten years nor more than twen-
44 ty-five years.
45 (b) For any other felony, the minimum period shall be fixed by the
46 court and specified in the sentence and shall be not less than one year
47 nor more than one-third of the maximum term imposed.
48 4. Alternative definite sentence for class D and E felonies. When a
49 person, other than a second or persistent felony offender, is sentenced
50 for a class D or class E felony, and the court, having regard to the
51 nature and circumstances of the crime and to the history and character
52 of the defendant, is of the opinion that a sentence of imprisonment is
53 necessary but that it would be unduly harsh to impose an indeterminate
54 or determinate sentence, the court may impose a definite sentence of
55 imprisonment and fix a term of one year or less.
A. 2036--B 5
1 5.] Life imprisonment without parole. Notwithstanding any other
2 provision of law, a defendant sentenced to life imprisonment without
3 parole shall not be or become eligible for parole or conditional
4 release. For purposes of commitment and custody, other than parole and
5 conditional release, such sentence shall be deemed to be an indetermi-
6 nate sentence. A defendant may be sentenced to life imprisonment without
7 parole upon conviction for the crime of murder in the first degree as
8 defined in section 125.27 of this chapter and in accordance with the
9 procedures provided by law for imposing a sentence for such crime. A
10 defendant who was eighteen years of age or older at the time of the
11 commission of the crime must be sentenced to life imprisonment without
12 parole upon conviction for the crime of terrorism as defined in section
13 490.25 of this chapter, where the specified offense the defendant
14 committed is a class A-I felony; the crime of criminal possession of a
15 chemical weapon or biological weapon in the first degree as defined in
16 section 490.45 of this chapter; or the crime of criminal use of a chemi-
17 cal weapon or biological weapon in the first degree as defined in
18 section 490.55 of this chapter; provided, however, that nothing in this
19 subdivision shall preclude or prevent a sentence of death when the
20 defendant is also convicted of the crime of murder in the first degree
21 as defined in section 125.27 of this chapter. A defendant who was seven-
22 teen years of age or younger at the time of the commission of the crime
23 may be sentenced, in accordance with law, to the applicable indetermi-
24 nate sentence with a maximum term of life imprisonment. A defendant must
25 be sentenced to life imprisonment without parole upon conviction for the
26 crime of murder in the second degree as defined in subdivision five of
27 section 125.25 of this chapter or for the crime of aggravated murder as
28 defined in subdivision one of section 125.26 of this chapter. A defend-
29 ant may be sentenced to life imprisonment without parole upon conviction
30 for the crime of aggravated murder as defined in subdivision two of
31 section 125.26 of this chapter.
32 [6.] 4. Determinate sentence. [Except as provided in subdivision four
33 of this section and subdivisions two and four of section 70.02, when]
34 When a person is sentenced as a violent felony offender pursuant to
35 section 70.02 [or as a second violent felony offender pursuant to
36 section 70.04 or as a second felony offender on a conviction for a
37 violent felony offense pursuant to section 70.06] of this article, the
38 sentence shall be fixed by the court. If a court finds that a sentence
39 of imprisonment of more than one year is the minimum term of imprison-
40 ment necessary to achieve the goals of sentencing, the court must impose
41 a determinate sentence of imprisonment in accordance with the provisions
42 of such [sections and such sentence shall include, as a part thereof, a
43 period of post-release supervision in accordance with section 70.45]
44 section.
45 § 7. Subdivision d of section 74 of chapter 3 of the laws of 1995,
46 enacting the sentencing reform act of 1995, as amended by section 17 of
47 part A of chapter 55 of the laws of 2023, is amended to read as follows:
48 d. Sections one-a [through], one-b, two, four through eight, eleven,
49 twelve, twenty, twenty-four through twenty-eight, thirty through thir-
50 ty-nine, forty-two and forty-four of this act shall be deemed repealed
51 on September 1, 2025;
52 § 8. Subdivisions 2 and 4 of section 70.02 of the penal law are
53 REPEALED and subdivision 3, as amended by chapter 765 of the laws of
54 2005, paragraphs (b) and (c) as amended by chapter 1 of the laws of
55 2013, is amended to read as follows:
A. 2036--B 6
1 [3.] 2. Term of sentence. The term [of a determinate sentence] for a
2 violent felony offense must be fixed by the court. The court may impose
3 a definite sentence of imprisonment and fix a term of less than one
4 year. If a court finds that a sentence of imprisonment of more than one
5 year is the minimum term of imprisonment necessary to achieve the goals
6 of sentencing, the court shall impose a determinate sentence as follows:
7 (a) For a class B felony, the term must be at least [five years] one
8 year and must not exceed twenty-five years, provided, however, that the
9 term [must be]: (i) [at least ten years and] must not exceed thirty
10 years where the sentence is for the crime of aggravated assault upon a
11 police officer or peace officer as defined in section 120.11 of this
12 chapter; and (ii) [at least ten years and] must not exceed thirty years
13 where the sentence is for the crime of aggravated manslaughter in the
14 first degree as defined in section 125.22 of this chapter;
15 (b) For a class C felony, the term must be at least [three and one-
16 half years] one year and must not exceed fifteen years, provided, howev-
17 er, that the term [must be]: (i) [at least seven years and] must not
18 exceed twenty years where the sentence is for the crime of aggravated
19 manslaughter in the second degree as defined in section 125.21 of this
20 chapter; (ii) [at least seven years and] must not exceed twenty years
21 where the sentence is for the crime of attempted aggravated assault upon
22 a police officer or peace officer as defined in section 120.11 of this
23 chapter; (iii) [at least three and one-half years and] must not exceed
24 twenty years where the sentence is for the crime of aggravated criminal-
25 ly negligent homicide as defined in section 125.11 of this chapter; and
26 (iv) [at least five years and] must not exceed fifteen years where the
27 sentence is imposed for the crime of aggravated criminal possession of a
28 weapon as defined in section 265.19 of this chapter;
29 (c) For a class D felony, the term must be at least [two years] one
30 year and must not exceed seven years, provided, however, that the term
31 [must be]: (i) [at least two years and] must not exceed eight years
32 where the sentence is for the crime of menacing a police officer or
33 peace officer as defined in section 120.18 of this chapter; and (ii) [at
34 least three and one-half years and] must not exceed seven years where
35 the sentence is imposed for the crime of criminal possession of a weapon
36 in the third degree as defined in subdivision ten of section 265.02 of
37 this chapter; and
38 (d) For a class E felony, the term must be at least one [and one-half
39 years] year and must not exceed four years.
40 § 9. Sections 60.06, 60.07, 60.11-a, 70.04, 70.06, 70.07, 70.08 and
41 70.10 of the penal law are REPEALED.
42 § 10. Subdivisions 1 and 3 of section 70.05 of the penal law, subdivi-
43 sion 1 as amended by chapter 615 of the laws of 1984, subdivision 3 as
44 added by chapter 481 of the laws of 1978, paragraph (a) of subdivision 3
45 as amended by chapter 174 of the laws of 2003 and paragraph (c) of
46 subdivision 3 as amended by chapter 435 of the laws of 1998, are amended
47 to read as follows:
48 1. Indeterminate sentence. A sentence of imprisonment for a felony
49 committed by a juvenile offender shall be fixed by the court. If a court
50 finds that a sentence of imprisonment of more than one year is the mini-
51 mum term of imprisonment necessary to achieve the goals of sentencing,
52 the court shall impose an indeterminate sentence. When such a sentence
53 is imposed, the court shall impose a maximum term in accordance with the
54 provisions of subdivision two of this section and the minimum period of
55 imprisonment shall be as provided in subdivision three of this section.
56 The court shall further provide that where a juvenile offender is under
A. 2036--B 7
1 placement pursuant to article three of the family court act, any
2 sentence imposed pursuant to this section which is to be served consec-
3 utively with such placement shall be served in a facility designated
4 pursuant to subdivision four of section 70.20 of this article prior to
5 service of the placement in any previously designated facility.
6 3. Minimum period of imprisonment. The court may impose a definite
7 sentence of imprisonment and fix a term of less than one year. The mini-
8 mum period of imprisonment under an indeterminate sentence for a juve-
9 nile offender shall be not less than one year nor more than one-third of
10 the maximum term imposed and specified in the sentence as follows:
11 (a) For the class A felony of murder in the second degree, the minimum
12 period of imprisonment shall be fixed by the court and shall [be not
13 less than five years but shall] not exceed nine years provided, however,
14 that where the sentence is for an offense specified in subdivision one
15 or two of section 125.25 of this chapter and the defendant was fourteen
16 or fifteen years old at the time of such offense, the minimum period of
17 imprisonment shall [be not less than seven and one-half years but shall]
18 not exceed fifteen years;
19 (b) For the class A felony of arson in the first degree, or for the
20 class A felony of kidnapping in the first degree, the minimum period of
21 imprisonment shall be fixed by the court and shall [be not less than
22 four years but shall] not exceed six years; and
23 (c) For a class B, C or D felony, the minimum period of imprisonment
24 shall be fixed by the court at one-third of the maximum term imposed.
25 § 11. Paragraph (c) of subdivision 1-a of section 70.15 of the penal
26 law, as added by section 2 of part OO of chapter 55 of the laws of 2019,
27 is amended to read as follows:
28 (c) Any sentence for a misdemeanor conviction imposed prior to the
29 effective date of this subdivision that is a definite sentence of impri-
30 sonment of one year, or three hundred sixty-five days, shall, by opera-
31 tion of law, be changed to, mean and be interpreted and applied as a
32 sentence of three hundred sixty-four days. In addition to any other
33 right of a person to obtain a record of a proceeding against him or her,
34 [a person so sentenced prior to the effective date of this subdivision
35 shall be entitled to obtain, from] the criminal court or the clerk ther-
36 eof, shall not issue a certificate of conviction, as described in subdi-
37 vision one of section 60.60 of the criminal procedure law, setting forth
38 [such sentence as the sentence specified in this paragraph] sentences of
39 one year. The criminal court or clerk thereof shall only issue certif-
40 icates of conviction setting forth sentences of three hundred sixty-four
41 days or less. The court shall implement this provision within ninety
42 days of the effective date of the chapter of the laws of two thousand
43 twenty-three that amended this paragraph.
44 § 12. Paragraph (a) of subdivision 1 of section 70.20 of the penal
45 law, as amended by section 124 of subpart B of part C of chapter 62 of
46 the laws of 2011, is amended to read as follows:
47 (a) Indeterminate or determinate sentence. Except as provided in
48 subdivision four of this section, when an indeterminate or determinate
49 sentence of imprisonment is imposed, the court shall commit the defend-
50 ant to the custody of the state department of corrections and community
51 supervision for the term of his or her sentence and until released in
52 accordance with the law[; provided, however, that a defendant sentenced
53 pursuant to subdivision seven of section 70.06 shall be committed to the
54 custody of the state department of corrections and community supervision
55 for immediate delivery to a reception center operated by the depart-
56 ment].
A. 2036--B 8
1 § 13. Section 70.25 of the penal law, subdivision 1 as amended and
2 subdivision 5 as added by chapter 372 of the laws of 1981, paragraph (a)
3 of subdivision 1, subdivision 2-b, and paragraphs (a) and (b) of subdi-
4 vision 5 as amended by chapter 3 of the laws of 1995, subdivision 2 as
5 amended by chapter 56 of the laws of 1984, subdivision 2-a as amended by
6 chapter 495 of the laws of 2009, subdivisions 2-c and 2-d as added by
7 chapter 795 of the laws of 1986, subdivision 2-e as added by chapter 122
8 of the laws of 1996, subdivision 2-f as added by chapter 1 of the laws
9 of 2000, subdivision 2-g as added by chapter 394 of the laws of 2005 and
10 subdivision 4 as added by chapter 782 of the laws of 1975, is amended to
11 read as follows:
12 § 70.25 Concurrent and consecutive terms of imprisonment.
13 1. Except as provided in [subdivisions] subdivision two[, two-a and
14 five] of this section, when multiple sentences of imprisonment are
15 imposed on a person at the same time, or when a person who is subject to
16 any undischarged term of imprisonment imposed at a previous time by a
17 court of this state is sentenced to an additional term of imprisonment,
18 the sentence or sentences imposed by the court shall run either concur-
19 rently or consecutively with respect to each other and the undischarged
20 term or terms in such manner as the court directs at the time of
21 sentence. If the court does not specify the manner in which a sentence
22 imposed by it is to run, the sentence shall run as follows:
23 (a) An indeterminate or determinate sentence shall run concurrently
24 with all other terms; and
25 (b) A definite sentence shall run concurrently with [any sentence
26 imposed at the same time and shall be consecutive to any other term] all
27 other terms.
28 2. When more than one sentence of imprisonment is imposed on a person
29 for two or more offenses committed through a single act or omission, or
30 through an act or omission which in itself constituted one of the
31 offenses and also was a material element of the other, the sentences,
32 except if one or more of such sentences is for a violation of section
33 270.20 of this chapter, must run concurrently.
34 [2-a. When an indeterminate or determinate sentence of imprisonment is
35 imposed pursuant to section 70.04, 70.06, 70.07, 70.08, 70.10, subdivi-
36 sion three or four of section 70.70, subdivision three or four of
37 section 70.71 or subdivision five of section 70.80 of this article, or
38 is imposed for a class A-I felony pursuant to section 70.00 of this
39 article, and such person is subject to an undischarged indeterminate or
40 determinate sentence of imprisonment imposed prior to the date on which
41 the present crime was committed, the court must impose a sentence to run
42 consecutively with respect to such undischarged sentence.
43 2-b. When a person is convicted of a violent felony offense committed
44 after arraignment and while released on recognizance or bail, but
45 committed prior to the imposition of sentence on a pending felony
46 charge, and if an indeterminate or determinate sentence of imprisonment
47 is imposed in each case, such sentences shall run consecutively.
48 Provided, however, that the court may, in the interest of justice, order
49 a sentence to run concurrently in a situation where consecutive
50 sentences are required by this subdivision if it finds either mitigating
51 circumstances that bear directly upon the manner in which the crime was
52 committed or, where the defendant was not the sole participant in the
53 crime, the defendant's participation was relatively minor although not
54 so minor as to constitute a defense to the prosecution. The defendant
55 and the district attorney shall have an opportunity to present relevant
56 information to assist the court in making this determination and the
A. 2036--B 9
1 court may, in its discretion, conduct a hearing with respect to any
2 issue bearing upon such determination. If the court determines that
3 consecutive sentences should not be ordered, it shall make a statement
4 on the record of the facts and circumstances upon which such determi-
5 nation is based.
6 2-c. When a person is convicted of bail jumping in the second degree
7 as defined in section 215.56 or bail jumping in the first degree as
8 defined in section 215.57 committed after arraignment and while released
9 on recognizance or bail in connection with a pending indictment or
10 information charging one or more felonies, at least one of which he is
11 subsequently convicted, and if an indeterminate sentence of imprisonment
12 is imposed in each case, such sentences shall run consecutively.
13 Provided, however, that the court may, in the interest of justice, order
14 a sentence to run concurrently in a situation where consecutive
15 sentences are required by this subdivision if it finds mitigating
16 circumstances that bear directly upon the manner in which the crime was
17 committed. The defendant and the district attorney shall have an oppor-
18 tunity to present relevant information to assist the court in making
19 this determination and the court may, in its discretion, conduct a hear-
20 ing with respect to any issue bearing upon such determination. If the
21 court determines that consecutive sentences should not be ordered, it
22 shall make a statement on the record of the facts and circumstances upon
23 which such determination is based.
24 2-d. When a person is convicted of escape in the second degree as
25 defined in section 205.10 or escape in the first degree as defined in
26 section 205.15 committed after issuance of a securing order, as defined
27 in subdivision five of section 500.10 of the criminal procedure law, in
28 connection with a pending indictment or information charging one or more
29 felonies, at least one of which he is subsequently convicted, and if an
30 indeterminate sentence of imprisonment is imposed in each case, such
31 sentences shall run consecutively. Provided, however, that the court
32 may, in the interest of justice, order a sentence to run concurrently in
33 a situation where consecutive sentences are required by this subdivision
34 if it finds mitigating circumstances that bear directly upon the manner
35 in which the crime was committed. The defendant and the district attor-
36 ney shall have an opportunity to present relevant information to assist
37 the court in making this determination and the court may, in its
38 discretion, conduct a hearing with respect to any issue bearing upon
39 such determination. If the court determines that consecutive sentences
40 should not be ordered, it shall make a statement on the record of the
41 facts and circumstances upon which such determination is based.
42 2-e.] 2-a. Whenever a person is convicted of course of sexual conduct
43 against a child in the first degree as defined in section 130.75 or
44 course of sexual conduct against a child in the second degree as defined
45 in section 130.80 and any other crime under article one hundred thirty
46 committed against the same child and within the period charged under
47 section 130.75 or 130.80, the sentences must run concurrently.
48 [2-f.] 2-b. Whenever a person is convicted of facilitating a sex
49 offense with a controlled substance as defined in section 130.90 of this
50 chapter, the sentence imposed by the court for such offense may be
51 ordered to run consecutively to any sentence imposed upon conviction of
52 an offense defined in article one hundred thirty of this chapter arising
53 from the same criminal transaction.
54 [2-g.] 2-c. Whenever a person is convicted of unlawful manufacture of
55 methamphetamine in the third degree as defined in section 220.73 of this
56 chapter, unlawful manufacture of methamphetamine in the second degree as
A. 2036--B 10
1 defined in section 220.74 of this chapter, or unlawful manufacture of
2 methamphetamine in the first degree as defined in section 220.75 of this
3 chapter, or any attempt to commit any of such offenses, and such person
4 is also convicted, with respect to such unlawful methamphetamine labora-
5 tory, of unlawful disposal of methamphetamine laboratory material as
6 defined in section 220.76 of this chapter, the sentences must run
7 concurrently.
8 3. Where consecutive definite sentences of imprisonment are not
9 prohibited by subdivision two of this section and are imposed on a
10 person for offenses which were committed as parts of a single incident
11 or transaction, the aggregate of the terms of such sentences shall not
12 exceed one year.
13 4. When a person, who is subject to any undischarged term of imprison-
14 ment imposed at a previous time by a court of another jurisdiction, is
15 sentenced to an additional term or terms of imprisonment by a court of
16 this state, the sentence or sentences imposed by the court of this
17 state, subject to the provisions of subdivisions one, two and three of
18 this section, shall run either concurrently or consecutively with
19 respect to such undischarged term in such manner as the court directs at
20 the time of sentence. If the court of this state does not specify the
21 manner in which a sentence imposed by it is to run, the sentence or
22 sentences shall run [consecutively] concurrently.
23 [5. (a) Except as provided in paragraph (c) of this subdivision, when
24 a person is convicted of assault in the second degree, as defined in
25 subdivision seven of section 120.05 of this chapter, any definite, inde-
26 terminate or determinate term of imprisonment which may be imposed as a
27 sentence upon such conviction shall run consecutively to any undisc-
28 harged term of imprisonment to which the defendant was subject and for
29 which he was confined at the time of the assault.
30 (b) Except as provided in paragraph (c) of this subdivision, when a
31 person is convicted of assault in the second degree, as defined in
32 subdivision seven of section 120.05 of this chapter, any definite, inde-
33 terminate or determinate term of imprisonment which may be imposed as a
34 sentence upon such conviction shall run consecutively to any term of
35 imprisonment which was previously imposed or which may be prospectively
36 imposed where the person was confined within a detention facility at the
37 time of the assault upon a charge which culminated in such sentence of
38 imprisonment.
39 (c) Notwithstanding the provisions of paragraphs (a) and (b) of this
40 subdivision, a term of imprisonment imposed upon a conviction to assault
41 in the second degree as defined in subdivision seven of section 120.05
42 of this chapter may run concurrently to any other term of imprisonment,
43 in the interest of justice, provided the court sets forth in the record
44 its reasons for imposing a concurrent sentence. Nothing in this section
45 shall require the imposition of a sentence of imprisonment where it is
46 not otherwise required by law.]
47 § 14. Paragraphs (a) and (f) of subdivision 1 and the opening para-
48 graph of subdivision 3 of section 70.30 of the penal law, paragraph (a)
49 of subdivision 1 as amended by chapter 3 of the laws of 1995, paragraph
50 (f) of subdivision 1 as added by chapter 481 of the laws of 1978 and as
51 relettered by chapter 3 of the laws of 1995, and the opening paragraph
52 of subdivision 3 as amended by chapter 1 of the laws of 1998, are
53 amended to read as follows:
54 (a) If the sentences run concurrently, the time served under imprison-
55 ment on any of the sentences shall be credited against the minimum and
56 maximum periods of all the concurrent indeterminate sentences and
A. 2036--B 11
1 against the terms of all the concurrent determinate sentences. The maxi-
2 mum term or terms of the indeterminate sentences and the term or terms
3 of the determinate sentences shall merge in and be satisfied by
4 discharge of the term which has the longest unexpired time to run;
5 (f) The aggregate maximum term of consecutive sentences imposed upon a
6 juvenile offender for two or more crimes, not including a class A felo-
7 ny, committed before he has reached the age of sixteen, shall, if it
8 exceeds ten years, be deemed to be ten years. If consecutive indetermi-
9 nate sentences imposed upon a juvenile offender include a sentence for
10 the class A felony of arson in the first degree or for the class A felo-
11 ny of kidnapping in the first degree, then the aggregate maximum term of
12 such sentences shall, if it exceeds fifteen years, be deemed to be
13 fifteen years. Where the aggregate maximum term of two or more consec-
14 utive sentences is reduced by a calculation made pursuant to this para-
15 graph, the aggregate minimum period of imprisonment, if it exceeds
16 [one-half] one-third of the aggregate maximum term as so reduced, shall
17 be deemed to be [one-half] one-third of the aggregate maximum term as so
18 reduced.
19 The term of a definite sentence, a determinate sentence, or the maxi-
20 mum term of an indeterminate sentence imposed on a person shall be cred-
21 ited with and diminished by the amount of time the person spent in
22 custody prior to the commencement of such sentence as a result of [the]
23 any pending charge [that culminated in the sentence]. In the case of an
24 indeterminate sentence, if the minimum period of imprisonment has been
25 fixed by the court or by the board of parole, the credit shall also be
26 applied against the minimum period. The credit herein provided shall be
27 calculated from the date custody under the charge commenced to the date
28 the sentence commences and shall not include any time that is credited
29 against the term or maximum term of any previously imposed sentence or
30 period of post-release supervision to which the person is subject.
31 Provided, however, that when a person is subject to an undischarged term
32 of imprisonment or post-release supervision following parole release,
33 presumptive release or conditional release from an indeterminate
34 sentence, or conditional release or maximum expiration of a determinate
35 sentence, and is held in pretrial custody in a local correctional facil-
36 ity on a new charge or charges that culminate in an indeterminate or
37 determinate term of imprisonment, the time spent in pre-trial custody in
38 a local correctional facility on such charge or charges, from the date
39 custody commenced to the date of commencement of the subsequently
40 imposed indeterminate or determinate sentence, shall be credited as jail
41 time; and provided further that when jail time is credited in such
42 manner the time spent in pre-trial custody shall not be credited to the
43 previously imposed sentence to which the person is subject. Where the
44 charge or charges culminate in more than one sentence, the credit shall
45 be applied as follows:
46 § 15. Section 10 of chapter 339 of the laws of 1972, amending the
47 correction law and the penal law relating to inmate work release,
48 furlough and leave, as amended by section 6 of part A of chapter 55 of
49 the laws of 2023, is amended to read as follows:
50 § 10. This act shall take effect 30 days after it shall have become a
51 law [and]; provided that sections one through eight of this act shall
52 remain in effect until September 1, 2025[,]; and provided further that
53 the commissioner of correctional services shall report each January
54 first, and July first, to the chairman of the senate crime victims,
55 crime and correction committee, the senate codes committee, the assembly
56 correction committee, and the assembly codes committee, the number of
A. 2036--B 12
1 eligible [inmates] incarcerated individuals in each facility under the
2 custody and control of the commissioner who have applied for partic-
3 ipation in any program offered under the provisions of work release,
4 furlough, or leave, and the number of such [inmates] incarcerated indi-
5 viduals who have been approved for participation.
6 § 16. Section 70.35 of the penal law, as amended by section 127-a of
7 subpart B of part C of chapter 62 of the laws of 2011, is amended to
8 read as follows:
9 § 70.35 Merger of certain definite and indeterminate or determinate
10 sentences.
11 The service of an indeterminate or determinate sentence of imprison-
12 ment shall satisfy any definite sentence of imprisonment imposed on a
13 person for an offense committed prior to the time the indeterminate or
14 determinate sentence was imposed, [except as provided in paragraph (b)
15 of subdivision five of section 70.25 of this article]. A person who is
16 serving a definite sentence at the time an indeterminate or determinate
17 sentence is imposed shall be delivered to the custody of the state
18 department of corrections and community supervision to commence service
19 of the indeterminate or determinate sentence immediately [unless the
20 person is serving a definite sentence pursuant to paragraph (b) of
21 subdivision five of section 70.25 of this article]. In any case where
22 the indeterminate or determinate sentence is revoked or vacated, the
23 person shall receive credit against the definite sentence for each day
24 spent in the custody of the state department of corrections and communi-
25 ty supervision.
26 § 17. Paragraph a of subdivision 6 of section 76 of chapter 435 of the
27 laws of 1997, amending the military law and other laws relating to vari-
28 ous provisions, as amended by section 13 of part A of chapter 55 of the
29 laws of 2023, is amended to read as follows:
30 a. sections forty-three through [forty-five] forty-four of this act
31 shall expire and be deemed repealed on September 1, 2025;
32 § 18. Subdivisions (f), (g) and (h) of section 15 of part E of chapter
33 62 of the laws of 2003, amending the correction law and other laws
34 relating to various provisions, are amended to read as follows:
35 (f) the amendments made to subdivision 2 of section 259-c of the exec-
36 utive law made by section seven of this act shall not affect the expira-
37 tion of such subdivision and shall be deemed to expire therewith; and
38 (g) the amendments to paragraph (a) of subdivision 2 and subparagraph
39 (i) of paragraph (a) and paragraph (d) of subdivision 3 of section 259-i
40 of the executive law made by section eleven of this act shall not affect
41 the expiration of such paragraph (a) of subdivision 2, such subparagraph
42 (i) of paragraph (a) and such paragraph (d) of subdivision 3 and shall
43 be deemed to expire therewith[; and
44 (h) paragraph (c) of subdivision 1 of section 70.40 of the penal law
45 as added by section thirteen of this act shall expire and be deemed
46 repealed on the same date as subdivision 6 of section 76 of chapter 435
47 of the laws of 1997, as amended].
48 § 19. Subdivisions 1, 2, 2-a and 3 of section 70.45 of the penal law,
49 subdivision 1 as amended by chapter 141 of the laws of 2008, subdivision
50 2 as amended and subdivision 2-a as added by chapter 7 of the laws of
51 2007, paragraphs (a), (b), (c), (d), (e) and (f) of subdivision 2 as
52 amended by chapter 31 of the laws of 2019, and subdivision 3 as added by
53 chapter 1 of the laws of 1998, are amended to read as follows:
54 1. In general. When a court imposes a determinate sentence it shall in
55 each case state not only the term of imprisonment, but also an addi-
56 tional period of post-release supervision as determined pursuant to this
A. 2036--B 13
1 article. Such period shall commence as provided in subdivision five of
2 this section and a violation of any condition of supervision occurring
3 at any time during such period of post-release supervision shall subject
4 the defendant to a further period of imprisonment up to the balance of
5 the remaining period of post-release supervision, not to exceed five
6 years; provided, however, that a defendant serving a term of post-re-
7 lease supervision for a conviction of a felony sex offense, as defined
8 in section 70.80 of this article, may be subject to a further period of
9 imprisonment up to the balance of the remaining period of post-release
10 supervision. Notwithstanding any other provision of law to the contra-
11 ry, no person serving a period of post-release supervision shall be
12 confined in a correctional facility, including a residential treatment
13 facility as defined in subdivision six of section two of the correction
14 law, except following a revocation hearing as set forth in section two
15 hundred fifty-nine-i of the executive law. Such maximum limits shall not
16 preclude a longer period of further imprisonment for a violation where
17 the defendant is subject to indeterminate and determinate sentences.
18 2. Period of post-release supervision for other than felony sex
19 offenses. The period of post-release supervision for a determinate
20 sentence, other than a determinate sentence imposed for a felony sex
21 offense as defined in paragraph (a) of subdivision one of section 70.80
22 of this article, shall [be] not exceed five years except that:
23 (a) such period shall [be] not exceed one year whenever a determinate
24 sentence of imprisonment is imposed pursuant to subdivision two of
25 section 70.70 of this article or subdivision nine of section 60.12 of
26 this title upon a conviction of a class D or class E felony offense;
27 (b) 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 two of section 70.70 of this article or subdivision
30 nine of section 60.12 of this title upon a conviction of a class B or
31 class C felony offense;
32 (c) such period shall be not [less than one year nor] more than two
33 years whenever a determinate sentence of imprisonment is imposed pursu-
34 ant to [subdivision three or four of section 70.70 of this article upon
35 conviction of a class D or class E felony offense or] subdivision ten of
36 section 60.12 of this title;
37 (d) 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 or four of section 70.70 of this
40 article upon conviction of a class B felony or class C felony offense
41 or] subdivision eleven of section 60.12 of this title;
42 (e) such period shall be not [less than one and one-half years nor]
43 more than three years whenever a determinate sentence of imprisonment is
44 imposed pursuant to subdivision [three] two of section 70.02 of this
45 article or subdivision two or eight of section 60.12 of this title upon
46 a conviction of a class D or class E violent felony offense or subdivi-
47 sion four, five, six, or seven of section 60.12 of this title;
48 (f) such period shall be not [less than two and one-half years nor]
49 more than five years whenever a determinate sentence of imprisonment is
50 imposed pursuant to subdivision [three] two of section 70.02 of this
51 article or subdivision two or eight of section 60.12 of this title upon
52 a conviction of a class B or class C violent felony offense.
53 2-a. Periods of post-release supervision for felony sex offenses. The
54 period of post-release supervision for a determinate sentence imposed
55 for a felony sex offense as defined in paragraph (a) of subdivision one
56 of section 70.80 of this article shall be as follows:
A. 2036--B 14
1 (a) not [less than three years nor] more than ten 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 D or
4 class E felony sex offense;
5 (b) not [less than five years nor] more than fifteen 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 C
8 felony sex offense;
9 (c) not [less than five years nor] more than twenty years whenever a
10 determinate sentence of imprisonment is imposed pursuant to subdivision
11 four of section 70.80 of this article upon a conviction of a class B
12 felony sex offense;
13 (d) not [less than three years nor] more than ten years whenever a
14 determinate sentence is imposed pursuant to subdivision [three] two of
15 section 70.02 of this article upon a conviction of a class D or class E
16 violent felony sex offense as defined in paragraph (b) of subdivision
17 one of section 70.80 of this article;
18 (e) not [less than five years nor] more than fifteen 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 C violent
21 felony sex offense as defined in section 70.80 of this article;
22 (f) not [less than five years nor] more than twenty years whenever a
23 determinate sentence is imposed pursuant to subdivision [three] two of
24 section 70.02 of this article upon a conviction of a class B violent
25 felony sex offense as defined in section 70.80 of this article;
26 (g) not [less than five years nor] more than fifteen years whenever a
27 determinate sentence of imprisonment is imposed pursuant to [either
28 section 70.04, section 70.06, or subdivision five of] section 70.80 of
29 this article upon a conviction of a class D or class E violent or non-
30 violent felony sex offense as defined in section 70.80 of this article;
31 (h) not [less than seven years nor] more than twenty years whenever a
32 determinate sentence of imprisonment is imposed pursuant to [either
33 section 70.04, section 70.06, or subdivision five of] section 70.80 of
34 this article upon a conviction of a class C violent or non-violent felo-
35 ny sex offense as defined in section 70.80 of this article; and
36 (i) such period shall be not [less than ten years nor] more than twen-
37 ty-five years whenever a determinate sentence of imprisonment is imposed
38 pursuant to [either section 70.04, section 70.06, or subdivision five
39 of] section 70.80 of this article upon a conviction of a class B violent
40 or non-violent felony sex offense as defined in section 70.80 of this
41 article[; and
42 (j) such period shall be not less than ten years nor more than twenty
43 years whenever any determinate sentence of imprisonment is imposed
44 pursuant to subdivision four of section 70.07 of this article].
45 3. Conditions of post-release supervision. The board of parole shall
46 establish and impose conditions of post-release supervision in the same
47 manner and to the same extent as it may establish and impose conditions
48 in accordance with the executive law upon persons who are granted parole
49 or conditional release[; provided that, notwithstanding any other
50 provision of law, the board of parole may impose as a condition of post-
51 release supervision that for a period not exceeding six months imme-
52 diately following release from the underlying term of imprisonment the
53 person be transferred to and participate in the programs of a residen-
54 tial treatment facility as that term is defined in subdivision six of
55 section two of the correction law]. Upon release from the underlying
56 term of imprisonment, the person shall be furnished with a written
A. 2036--B 15
1 statement setting forth the conditions of post-release supervision in
2 sufficient detail to provide for the person's conduct and supervision.
3 § 20. Subdivisions 1 and 2 of section 70.70 of the penal law, as added
4 by chapter 738 of the laws of 2004, paragraphs (a) and (b) of subdivi-
5 sion 1 and paragraphs (b) and (c) of subdivision 2 as amended by chapter
6 92 of the laws of 2021, subparagraph (i) of paragraph (a) of subdivision
7 2 as amended by section 21 and paragraph (d) of subdivision 2 as added
8 by section 23 of part AAA of chapter 56 of the laws of 2009, are amended
9 to read as follows:
10 1. For the purposes of this section, [the following terms shall mean:
11 (a) "Felony] "felony drug offender" means a defendant who stands
12 convicted of any felony, defined in article two hundred twenty or two
13 hundred twenty-two of this chapter other than a class A felony.
14 [(b) "Second felony drug offender" means a second felony offender as
15 that term is defined in subdivision one of section 70.06 of this arti-
16 cle, who stands convicted of any felony, defined in article two hundred
17 twenty or two hundred twenty-two of this chapter other than a class A
18 felony.
19 (c) "Violent felony" shall have the same meaning as that term is
20 defined in subdivision one of section 70.02 of this article.]
21 2. [Except as provided in subdivision three or four of this section,
22 a] (a) Term of sentence. The term of sentence [of imprisonment] for a
23 felony drug offender shall be fixed by the court. The court may impose a
24 definite sentence of imprisonment and fix a term of less than one year.
25 If a court finds that a sentence of imprisonment of more than one year
26 is the minimum term of imprisonment necessary to achieve the goals of
27 sentencing, the court shall impose a determinate sentence as provided in
28 paragraph [(a)] (b) of this subdivision.
29 [(a)] (b) Term of determinate sentence. [Except as provided in para-
30 graph (b) or (c) of this subdivision, the court shall impose a] A deter-
31 minate term of imprisonment [upon a felony drug offender which] shall be
32 imposed by the court in whole or half years, which shall include as a
33 part thereof a period of post-release supervision in accordance with
34 section 70.45 of this article. The terms of imprisonment authorized for
35 such determinate sentences are as follows:
36 (i) for a class B felony, the term shall [be at least one year and
37 shall] not exceed nine years[, except that for the class B felony of
38 criminal sale of a controlled substance in or near school grounds as
39 defined in subdivision two of section 220.44 of this chapter or on a
40 school bus as defined in subdivision seventeen of section 220.00 of this
41 chapter or criminal sale of a controlled substance to a child as defined
42 in section 220.48 of this chapter, the term shall be at least two years
43 and shall not exceed nine years];
44 (ii) for a class C felony, the term shall [be at least one year and
45 shall] not exceed five and one-half years;
46 (iii) for a class D felony, the term shall [be at least one year and
47 shall] not exceed two and one-half years; and
48 (iv) for a class E felony, the term shall [be at least one year and
49 shall] not exceed one and one-half years.
50 [(b) Probation. Notwithstanding any other provision of law, the court
51 may sentence a defendant convicted of a class B, class C, class D or
52 class E felony offense defined in article two hundred twenty or two
53 hundred twenty-two of this chapter to probation in accordance with the
54 provisions of sections 60.04 and 65.00 of this chapter.
55 (c) Alternative definite sentence for class B, class C, class D, and
56 class E felonies. If the court, having regard to the nature and circum-
A. 2036--B 16
1 stances of the crime and to the history and character of the defendant,
2 is of the opinion that a sentence of imprisonment is necessary but that
3 it would be unduly harsh to impose a determinate sentence upon a person
4 convicted of a class C, class D or class E felony offense defined in
5 article two hundred twenty or two hundred twenty-two of this chapter, or
6 a class B felony defined in article two hundred twenty of this chapter,
7 other than the class B felony defined in section 220.48 of this chapter,
8 as added by a chapter of the laws of two thousand nine the court may
9 impose a definite sentence of imprisonment and fix a term of one year or
10 less.
11 (d) The court may direct that a determinate sentence imposed on a
12 defendant convicted of a class B felony, other than the class B felony
13 defined in section 220.48 of this chapter, pursuant to this subdivision
14 be executed as a sentence of parole supervision in accordance with
15 section 410.91 of the criminal procedure law.]
16 § 21. Subdivisions 3 and 4 of section 70.70 of the penal law are
17 REPEALED.
18 § 22. Section 70.71 of the penal law, as added by chapter 738 of the
19 laws of 2004, paragraph (a) of subdivision 2 as amended and subdivision
20 5 as added by section 26 of part AAA of chapter 56 of the laws of 2009,
21 is amended to read as follows:
22 § 70.71 Sentence of imprisonment for a class A felony drug offender.
23 1. For the purposes of this section, the following terms shall mean:
24 (a) "Felony drug offender" means a defendant who stands convicted of
25 any class A felony as defined in article two hundred twenty of this
26 chapter.
27 (b) ["Second felony drug offender" means a second felony offender as
28 that term is defined in subdivision one of section 70.06 of this arti-
29 cle, who stands convicted of and is to be sentenced for any class A
30 felony as defined in article two hundred twenty of this chapter.
31 (c)] "Violent felony offense" shall have the same meaning as that term
32 is defined in subdivision one of section 70.02 of this article.
33 2. Sentence of imprisonment for a first felony drug offender.
34 (a) Applicability. Except as provided in subdivision three[, four or
35 five] of this section, this subdivision shall apply to a person
36 convicted of a class A felony as defined in article two hundred twenty
37 of this chapter.
38 (b) Authorized sentence. The term of sentence shall be fixed by the
39 court. The court may impose a definite sentence of imprisonment and fix
40 a term of less than one year. If a court finds that a sentence of impri-
41 sonment is the minimum term of imprisonment necessary to achieve the
42 goals of sentencing, the court shall impose a determinate term of impri-
43 sonment which shall be imposed by the court in whole or half years and
44 which shall include as a part thereof a period of post-release super-
45 vision in accordance with section 70.45 of this article. The terms
46 authorized for such determinate sentences are as follows:
47 (i) for a class A-I felony, the term shall [be at least eight years
48 and shall] not exceed twenty years;
49 (ii) for a class A-II felony, the term shall [be at least three years
50 and shall] not exceed ten years.
51 [(c) Lifetime probation. Notwithstanding any other provision of law,
52 the court may sentence a defendant convicted of a class A-II felony
53 defined in article two hundred twenty of this chapter to lifetime
54 probation in accordance with the provisions of section 65.00 of this
55 chapter.]
56 3. [Sentence of imprisonment for a second felony drug offender.
A. 2036--B 17
1 (a) Applicability. This subdivision shall apply to a second felony
2 drug offender whose prior felony conviction or convictions did not
3 include one or more violent felony offenses.
4 (b) Authorized sentence. When the court has found pursuant to the
5 provisions of section 400.21 of the criminal procedure law that a
6 defendant is a second felony drug offender who stands convicted of a
7 class A felony as defined in article two hundred twenty or two hundred
8 twenty-one of this chapter, the court shall impose a determinate
9 sentence of imprisonment. Such determinate sentence shall include as a
10 part thereof a period of post-release supervision in accordance with
11 section 70.45 of this article. Such determinate sentence shall be
12 imposed by the court in whole or half years as follows:
13 (i) for a class A-I felony, the term shall be at least twelve years
14 and shall not exceed twenty-four years;
15 (ii) for a class A-II felony, the term shall be at least six years and
16 shall not exceed fourteen years.
17 (c) Lifetime probation. Notwithstanding any other provision of law,
18 the court may sentence a defendant convicted of a class A-II felony
19 defined in article two hundred twenty of this chapter to lifetime
20 probation in accordance with the provisions of section 65.00 of this
21 chapter.
22 4. Sentence of imprisonment for a second felony drug offender previ-
23 ously convicted of a violent felony offense.
24 (a) Applicability. This subdivision shall apply to a second felony
25 drug offender whose prior felony conviction was a violent felony.
26 (b) Authorized sentence. When the court has found pursuant to the
27 provisions of section 400.21 of the criminal procedure law that a
28 defendant is a second felony drug offender whose prior felony conviction
29 was a violent felony, who stands convicted of a class A felony as
30 defined in article two hundred twenty or two hundred twenty-one of this
31 chapter, the court shall impose a determinate sentence of imprisonment.
32 Such determinate sentence shall include as a part thereof a period of
33 post-release supervision in accordance with section 70.45 of this arti-
34 cle. Such determinate sentence shall be imposed by the court in whole or
35 half years as follows:
36 (i) for a class A-I felony, the term shall be at least fifteen years
37 and shall not exceed thirty years;
38 (ii) for a class A-II felony, the term shall be at least eight years
39 and shall not exceed seventeen years.
40 5.] Sentence of imprisonment for operating as a major trafficker.
41 (a) Applicability. This subdivision shall apply to a person convicted
42 of the class A-I felony of operating as a major trafficker as defined in
43 section 220.77 of this chapter.
44 (b) Authorized sentence. [Except as provided in paragraph (c) of this
45 subdivision, the] The term of sentence shall be fixed by the court. The
46 court may impose a definite sentence of imprisonment and fix a term of
47 less than one year. If a court finds that a sentence of imprisonment is
48 the minimum term of imprisonment necessary to achieve the goals of
49 sentencing, the court shall impose an indeterminate term of imprisonment
50 for an A-I felony, in accordance with the provisions of section 70.00 of
51 this article.
52 [(c) Alternative determinate sentence. If a defendant stands convicted
53 of violating section 220.77 of this chapter, and if the court, having
54 regard to the nature and circumstances of the crime and the history and
55 character of the defendant, is of the opinion that a sentence of impri-
56 sonment is necessary but that it would be unduly harsh to impose the
A. 2036--B 18
1 indeterminate sentence for a class A-I felony specified under section
2 70.00 of this article, the court may instead impose the determinate
3 sentence of imprisonment authorized by clause (i) of subparagraph (b) of
4 subdivision two of this section for a class A-I drug felony; in such
5 case, the reasons for the court's opinion shall be set forth on the
6 record.]
7 § 23. Section 70.80 of the penal law, as added by chapter 7 of the
8 laws of 2007, paragraph (a) of subdivision 1 as amended by chapter 368
9 of the laws of 2015, is amended to read as follows:
10 § 70.80 Sentences of imprisonment for conviction of a felony sex
11 offense.
12 1. Definitions. (a) For the purposes of this section, a "felony sex
13 offense" means a conviction of any felony defined in article one hundred
14 thirty of this chapter, including a sexually motivated felony, or
15 patronizing a person for prostitution in the first degree as defined in
16 section 230.06 of this chapter, patronizing a person for prostitution in
17 the second degree as defined in section 230.05 of this chapter, aggra-
18 vated patronizing a minor for prostitution in the third degree as
19 defined in section 230.11 of this chapter, aggravated patronizing a
20 minor for prostitution in the second degree as defined in section 230.12
21 of this chapter, aggravated patronizing a minor for prostitution in the
22 first degree as defined in section 230.13 of this chapter, incest in the
23 second degree as defined in section 255.26 of this chapter, or incest in
24 the first degree as defined in section 255.27 of this chapter, or a
25 felony attempt or conspiracy to commit any of the above.
26 (b) A felony sex offense shall be deemed a "violent felony sex
27 offense" if it is for an offense defined as a violent felony offense in
28 section 70.02 of this article, or for a sexually motivated felony as
29 defined in section 130.91 of this chapter where the specified offense is
30 a violent felony offense as defined in section 70.02 of this article.
31 (c) [For the purposes of this section, a "predicate felony sex offen-
32 der" means a person who stands convicted of any felony sex offense as
33 defined in paragraph (a) of this subdivision, other than a class A-I
34 felony, after having previously been subjected to one or more predicate
35 felony convictions as defined in subdivision one of section 70.06 or
36 subdivision one of section 70.04 of this article.
37 (d)] For purposes of this section, a "violent felony offense" is any
38 felony defined in subdivision one of section 70.02 of this article, and
39 a "non-violent felony offense" is any felony not defined therein.
40 2. In imposing a sentence within the authorized statutory range for
41 any felony sex offense, the court may consider all relevant factors set
42 forth in section 1.05 of this chapter, and in particular, may consider
43 the defendant's criminal history, if any, including any history of sex
44 offenses; any mental illness or mental abnormality from which the
45 defendant may suffer; the defendant's ability or inability to control
46 his sexual behavior; and, if the defendant has difficulty controlling
47 such behavior, the extent to which that difficulty may pose a threat to
48 society.
49 3. Except as provided by subdivision four, five, six[,] or seven [or
50 eight] of this section, or when a defendant is being sentenced for a
51 conviction of the class A-II felonies of predatory sexual assault and
52 predatory sexual assault against a child as defined in sections 130.95
53 and 130.96 of this chapter, or for any class A-I sexually motivated
54 felony for which a life sentence or a life without parole sentence
55 [must] may be imposed, a sentence imposed upon a defendant convicted of
56 a felony sex offense shall be fixed by the court. The court may impose
A. 2036--B 19
1 a definite sentence of imprisonment and fix a term of less than one
2 year. If a court finds that a sentence of imprisonment is the minimum
3 term of imprisonment necessary to achieve the goals of sentencing, the
4 court shall impose a determinate sentence. The determinate sentence
5 shall be imposed by the court in whole or half years, and shall include
6 as a part thereof a period of post-release supervision in accordance
7 with subdivision two-a of section 70.45 of this article. [Persons eligi-
8 ble for sentencing under section 70.07 of this article governing second
9 child sexual assault felonies shall be sentenced under such section and
10 paragraph (j) of subdivision two-a of section 70.45 of this article.]
11 4. [(a)] Sentences of imprisonment for felony sex offenses. Except as
12 provided in subdivision five, six[,] or seven[, or eight] of this
13 section, the term of the determinate sentence must be fixed by the court
14 as follows:
15 [(i)] (a) for a class B felony, the term must [be at least five years
16 and must] not exceed twenty-five years;
17 [(ii)] (b) for a class C felony, the term must [be at least three and
18 one-half years and must] not exceed fifteen years;
19 [(iii)] (c) for a class D felony, the term must [be at least two years
20 and must] not exceed seven years; and
21 [(iv)] (d) for a class E felony, the term must [be at least one and
22 one-half years and must] not exceed four years.
23 [(b) Probation. The court may sentence a defendant convicted of a
24 class D or class E felony sex offense to probation in accordance with
25 the provisions of section 65.00 of this title.
26 (c) Alternative definite sentences for class D and class E felony sex
27 offenses. If the court, having regard to the nature and circumstances of
28 the crime and to the history and character of the defendant, is of the
29 opinion that a sentence of imprisonment is necessary but that it would
30 be unduly harsh to impose a determinate sentence upon a person convicted
31 of a class D or class E felony sex offense, the court may impose a defi-
32 nite sentence of imprisonment and fix a term of one year or less.
33 5. Sentence of imprisonment for a predicate felony sex offender. (a)
34 Applicability. This subdivision shall apply to a predicate felony sex
35 offender who stands convicted of a non-violent felony sex offense and
36 who was previously convicted of one or more felonies.
37 (b) Non-violent predicate felony offense. When the court has found,
38 pursuant to the provisions of the criminal procedure law, that a person
39 is a predicate felony sex offender, and the person's predicate
40 conviction was for a non-violent felony offense, the court must impose a
41 determinate sentence of imprisonment, the term of which must be fixed by
42 the court as follows:
43 (i) for a class B felony, the term must be at least eight years and
44 must not exceed twenty-five years;
45 (ii) for a class C felony, the term must be at least five years and
46 must not exceed fifteen years;
47 (iii) for a class D felony, the term must be at least three years and
48 must not exceed seven years; and
49 (iv) for a class E felony, the term must be at least two years and
50 must not exceed four years.
51 (c) Violent predicate felony offense. When the court has found, pursu-
52 ant to the provisions of the criminal procedure law, that a person is a
53 predicate felony sex offender, and the person's predicate conviction was
54 for a violent felony offense, the court must impose a determinate
55 sentence of imprisonment, the term of which must be fixed by the court
56 as follows:
A. 2036--B 20
1 (i) for a class B felony, the term must be at least nine years and
2 must not exceed twenty-five years;
3 (ii) for a class C felony, the term must be at least six years and
4 must not exceed fifteen years;
5 (iii) for a class D felony, the term must be at least four years and
6 must not exceed seven years; and
7 (iv) for a class E felony, the term must be at least two and one-half
8 years and must not exceed four years.
9 (d) A defendant who stands convicted of a non-violent felony sex
10 offense, other than a class A-I or class A-II felony, who is adjudicated
11 a persistent felony offender under section 70.10 of this article, shall
12 be sentenced pursuant to the provisions of section 70.10 or pursuant to
13 this subdivision.
14 6.] 5. Sentence of imprisonment for a violent felony sex offense.
15 Except as provided in subdivisions six and seven [and eight] of this
16 section, a defendant who stands convicted of a violent felony sex
17 offense must be sentenced pursuant to the provisions of section 70.02[,
18 section 70.04, subdivision six of section 70.06, section 70.08, or
19 section 70.10] of this article, as applicable.
20 [7.] 6. Sentence for a class A felony sex offense. When a person
21 stands convicted of a sexually motivated felony pursuant to section
22 130.91 of this chapter and the specified offense is a class A felony,
23 the court must sentence the defendant in accordance with the provisions
24 of:
25 (a) section 60.06 of this [chapter] title and section 70.00 of this
26 article, as applicable, if such offense is a class A-I felony; and
27 (b) section 70.00, [70.06 or 70.08 of this article, as applicable,] if
28 such offense is a class A-II felony.
29 [8.] 7. Whenever a juvenile offender stands convicted of a felony sex
30 offense, he or she must be sentenced pursuant to the provisions of
31 sections 60.10 and 70.05 of this [chapter] title.
32 [9.] 8. Every determinate sentence for a felony sex offense, as
33 defined in paragraph (a) of subdivision one of this section, imposed
34 pursuant to any section of this article, shall include as a part thereof
35 a period of post-release supervision in accordance with subdivision
36 two-a of section 70.45 of this article.
37 § 24. Paragraph (b) of subdivision 3 of section 60.01 of the penal
38 law, as amended by chapter 548 of the laws of 1984, is amended to read
39 as follows:
40 (b) A fine authorized by article eighty[, provided, however, that when
41 the conviction is of a class B felony or of any felony defined in arti-
42 cle two hundred twenty, the sentence shall not consist solely of a fine]
43 of this title; or
44 § 25. Subdivision 2 of section 60.02 of the penal law, as amended by
45 chapter 471 of the laws of 1980, is amended to read as follows:
46 (2) If the sentence is to be imposed upon a youthful offender finding
47 which has been substituted for a conviction for any felony, the court
48 must impose a sentence authorized to be imposed upon a person convicted
49 of a class E felony [provided, however, that the court must not impose a
50 sentence of conditional discharge or unconditional discharge if the
51 youthful offender finding was substituted for a conviction of a felony
52 defined in article two hundred twenty of this chapter].
53 § 26. Section 60.04 of the penal law, as added by chapter 738 of the
54 laws of 2004, subdivisions 3 and 5 as amended by section 17 of part AAA
55 of chapter 56 of the laws of 2009, subdivision 6 as amended by section
56 120 of subpart B of part C of chapter 62 of the laws of 2011 and subdi-
A. 2036--B 21
1 vision 7 as amended by chapter 322 of the laws of 2021, is amended to
2 read as follows:
3 § 60.04 Authorized disposition; controlled substances [and marihuana
4 felony] offenses.
5 1. Applicability. Notwithstanding the provisions of any law, this
6 section shall govern the dispositions authorized when a person is to be
7 sentenced upon a conviction of a felony offense defined in article two
8 hundred twenty [or two hundred twenty-one] of this chapter [or when a
9 person is to be sentenced upon a conviction of such a felony as a multi-
10 ple felony offender as defined in subdivision five of this section].
11 2. Class A felony. Every person convicted of a class A felony must be
12 sentenced [to imprisonment] in accordance with section 70.71 of this
13 title[, unless such person is convicted of a class A-II felony and is
14 sentenced to probation for life in accordance with section 65.00 of this
15 title].
16 3. Class B felonies. Every person convicted of a class B felony must
17 be sentenced [to imprisonment] in accordance with the applicable
18 provisions of section 70.70 of this [chapter, a definite sentence of
19 imprisonment with a term of one year or less or probation in accordance
20 with section 65.00 of this chapter provided, however, a person convicted
21 of criminal sale of a controlled substance to a child as defined in
22 section 220.48 of this chapter must be sentenced to a determinate
23 sentence of imprisonment in accordance with the applicable provisions of
24 section 70.70 of this chapter or to a sentence of probation in accord-
25 ance with the opening paragraph of paragraph (b) of subdivision one of
26 section 65.00 of this chapter] title.
27 4. Alternative sentence. [Where a sentence of imprisonment or a
28 sentence of probation as an alternative to imprisonment is not required
29 to be imposed pursuant to subdivision two, three or five of this
30 section, the court may impose any other sentence authorized by section
31 60.01 of this article, provided that when the court imposes a sentence
32 of imprisonment, such sentence must be in accordance with section 70.70
33 of this title.] Where the court imposes a sentence of imprisonment in
34 accordance with this section, the court may also impose a fine author-
35 ized by article eighty of this title and in such case the sentence shall
36 be both imprisonment and a fine.
37 5. [Multiple felony offender. Where the court imposes a sentence
38 pursuant to subdivision three of section 70.70 of this chapter upon a
39 second felony drug offender, as defined in paragraph (b) of subdivision
40 one of section 70.70 of this chapter, it must sentence such offender to
41 imprisonment in accordance with the applicable provisions of section
42 70.70 of this chapter, a definite sentence of imprisonment with a term
43 of one year or less, or probation in accordance with section 65.00 of
44 this chapter, provided, however, that where the court imposes a sentence
45 upon a class B second felony drug offender, it must sentence such offen-
46 der to a determinate sentence of imprisonment in accordance with the
47 applicable provisions of section 70.70 of this chapter or to a sentence
48 of probation in accordance with the opening paragraph of paragraph (b)
49 of subdivision one of section 65.00 of this chapter. When the court
50 imposes sentence on a second felony drug offender pursuant to subdivi-
51 sion four of section 70.70 of this chapter, it must impose a determinate
52 sentence of imprisonment in accordance with such subdivision.
53 6.] Substance abuse treatment. When the court imposes a sentence of
54 imprisonment which requires a commitment to the state department of
55 corrections and community supervision [upon a person who stands
56 convicted of a controlled substance or marihuana offense], the court
A. 2036--B 22
1 may, upon motion of the defendant in its discretion, issue an order
2 directing that the department of corrections and community supervision
3 enroll the defendant in the comprehensive alcohol and substance abuse
4 treatment program in an alcohol and substance abuse correctional annex
5 as defined in subdivision eighteen of section two of the correction law,
6 provided that the defendant will satisfy the statutory eligibility
7 criteria for participation in such program. Notwithstanding the forego-
8 ing provisions of this subdivision, any defendant to be enrolled in such
9 program pursuant to this subdivision shall be governed by the same rules
10 and regulations promulgated by the department of corrections and commu-
11 nity supervision, including without limitation those rules and regu-
12 lations establishing requirements for completion and those rules and
13 regulations governing discipline and removal from the program. No such
14 period of court ordered corrections based drug abuse treatment pursuant
15 to this subdivision shall be required to extend beyond the defendant's
16 conditional release date.
17 [7.] 6. a. Shock incarceration participation. When the court imposes a
18 sentence of imprisonment which requires a commitment to the department
19 of corrections and community supervision upon a person [who stands
20 convicted of a controlled substance or marihuana offense], upon motion
21 of the defendant, the court may issue an order directing that the
22 department of corrections and community supervision enroll the defendant
23 in the shock incarceration program as defined in article twenty-six-A of
24 the correction law, provided that the defendant is an eligible incarcer-
25 ated individual, as described in subdivision one of section eight
26 hundred sixty-five of the correction law. Notwithstanding the foregoing
27 provisions of this subdivision, any defendant to be enrolled in such
28 program pursuant to this subdivision shall be governed by the same rules
29 and regulations promulgated by the department of corrections and commu-
30 nity supervision, including without limitation those rules and regu-
31 lations establishing requirements for completion and such rules and
32 regulations governing discipline and removal from the program.
33 b. (i) In the event that an incarcerated individual designated by
34 court order for enrollment in the shock incarceration program requires a
35 degree of medical care or mental health care that cannot be provided at
36 a shock incarceration facility, the department, in writing, shall notify
37 the incarcerated individual, provide a proposal describing a proposed
38 alternative-to-shock-incarceration program, and notify him or her that
39 he or she may object in writing to placement in such alternative-to-
40 shock-incarceration program. If the incarcerated individual objects in
41 writing to placement in such alternative-to-shock-incarceration program,
42 the department of corrections and community supervision shall notify the
43 sentencing court, provide such proposal to the court, and arrange for
44 the incarcerated individual's prompt appearance before the court. The
45 court shall provide the proposal and notice of a court appearance to the
46 people, the incarcerated individual and the appropriate defense attor-
47 ney. After considering the proposal and any submissions by the parties,
48 and after a reasonable opportunity for the people, the incarcerated
49 individual and counsel to be heard, the court may modify its sentencing
50 order accordingly, notwithstanding the provisions of section 430.10 of
51 the criminal procedure law.
52 (ii) An incarcerated individual who successfully completes an alterna-
53 tive-to-shock-incarceration program within the department of corrections
54 and community supervision shall be treated in the same manner as a
55 person who has successfully completed the shock incarceration program,
A. 2036--B 23
1 as set forth in subdivision four of section eight hundred sixty-seven of
2 the correction law.
3 § 27. Section 60.05 of the penal law, as amended by chapter 410 of the
4 laws of 1979, the section heading and subdivisions 2, 3 and 4 as amended
5 by chapter 738 of the laws of 2004, subdivision 1 as amended by chapter
6 7 of the laws of 2007, subdivision 5 as amended by chapter 405 of the
7 laws of 2010 and subdivision 8 as amended by chapter 486 of the laws of
8 2022, is amended to read as follows:
9 § 60.05 Authorized dispositions; other class A, B, certain C and D felo-
10 nies [and multiple felony offenders].
11 1. Applicability. Except as provided in section 60.04 of this article
12 governing the authorized dispositions applicable to felony offenses
13 defined in article two hundred twenty [or two hundred twenty-one] of
14 this chapter or in section 60.13 of this article governing the author-
15 ized dispositions applicable to felony sex offenses defined in paragraph
16 (a) of subdivision one of section 70.80 of this title, this section
17 shall govern the dispositions authorized when a person is to be
18 sentenced upon a conviction of a class A felony, a class B felony or a
19 class C, class D or class E felony specified [herein, or when a person
20 is to be sentenced upon a conviction of a felony as a multiple felony
21 offender] in this section.
22 2. Class A felony. [Except as provided in subdivisions three and four
23 of section 70.06 of this chapter, every] Every person convicted of a
24 class A felony must be sentenced [to imprisonment] in accordance with
25 section 70.00 of this title[, unless such person is convicted of murder
26 in the first degree and is sentenced in accordance with section 60.06 of
27 this article].
28 3. Class B felony. [Except as provided in subdivision six of this
29 section, every] Every person convicted of a class B violent felony
30 offense as defined in subdivision one of section 70.02 of this title,
31 must be sentenced [to imprisonment] in accordance with such section
32 [70.02]; and[, except as provided in subdivision six of this section,]
33 every person convicted of any other class B felony must be sentenced [to
34 imprisonment] in accordance with section 70.00 of this title.
35 4. Certain class C felonies. [Except as provided in subdivision six,
36 every] Every person convicted of a class C violent felony offense as
37 defined in subdivision one of section 70.02 of this title, must be
38 sentenced [to imprisonment] in accordance with section 70.02 of this
39 title[; and, except as provided in subdivision six of this section,
40 every person convicted of the class C felonies of: attempt to commit any
41 of the class B felonies of bribery in the first degree as defined in
42 section 200.04, bribe receiving in the first degree as defined in
43 section 200.12, conspiracy in the second degree as defined in section
44 105.15 and criminal mischief in the first degree as defined in section
45 145.12; criminal usury in the first degree as defined in section 190.42,
46 rewarding official misconduct in the first degree as defined in section
47 200.22, receiving reward for official misconduct in the first degree as
48 defined in section 200.27, attempt to promote prostitution in the first
49 degree as defined in section 230.32, promoting prostitution in the
50 second degree as defined in section 230.30, arson in the third degree as
51 defined in section 150.10 of this chapter, must be sentenced to impri-
52 sonment in accordance with section 70.00 of this title].
53 5. Certain class D felonies. [Except as provided in subdivision six of
54 this section, every] Every person convicted of the class D felonies of
55 assault in the second degree as defined in section 120.05, strangulation
56 in the second degree as defined in section 121.12 or attempt to commit a
A. 2036--B 24
1 class C felony as defined in section 230.30 of this chapter, must be
2 sentenced in accordance with section 70.00 or 85.00 of this title.
3 6. [Multiple felony offender. When the court imposes sentence upon a
4 second violent felony offender, as defined in section 70.04, or a second
5 felony offender, as defined in section 70.06, the court must impose a
6 sentence of imprisonment in accordance with section 70.04 or 70.06, as
7 the case may be, unless it imposes a sentence of imprisonment in accord-
8 ance with section 70.08 or 70.10.
9 7.] Fines. Where the court imposes a sentence of imprisonment in
10 accordance with this section, the court also may impose a fine author-
11 ized by article eighty of this title and in such case the sentence shall
12 be both imprisonment and a fine.
13 [8.] 7. Shock incarceration participation. (a) When the court imposes
14 a determinate sentence of imprisonment pursuant to subdivision [three]
15 two of section 70.02 of this [chapter] title or subdivision six of
16 section 70.06 of this [chapter upon a person who stands convicted either
17 of burglary in the second degree as defined in subdivision two of
18 section 140.25 of this chapter or robbery in the second degree as
19 defined in subdivision one of section 160.10 of this chapter, or an
20 attempt thereof] title, upon motion of the defendant, the court may
21 issue an order directing that the department of corrections and communi-
22 ty supervision enroll the defendant in the shock incarceration program
23 as defined in article twenty-six-A of the correction law, provided that
24 the defendant is an eligible incarcerated individual, as described in
25 subdivision one of section eight hundred sixty-five of the correction
26 law. Notwithstanding the foregoing provisions of this subdivision, any
27 defendant to be enrolled in such program pursuant to this subdivision
28 shall be governed by the same rules and regulations promulgated by the
29 department of corrections and community supervision, including without
30 limitation those rules and regulations establishing requirements for
31 completion and such rules and regulations governing discipline and
32 removal from the program.
33 (b) Paragraph b of subdivision seven of section 60.04 of this article
34 shall apply in the event an incarcerated individual designated by court
35 order for enrollment in the shock incarceration program requires a
36 degree of medical care or mental health care that cannot be provided at
37 a shock incarceration facility.
38 § 28. Paragraph (ii) of subdivision b of section 60.09 of the penal
39 law, as added by chapter 410 of the laws of 1979, is amended to read as
40 follows:
41 (ii) if the conviction was for a class A-II offense the court may
42 impose a new minimum term which shall be [no less than three years
43 imprisonment and] no more than eight and one-third years;
44 § 29. Section 60.10 of the penal law, as amended by chapter 411 of the
45 laws of 1979, is amended to read as follows:
46 § 60.10 Authorized disposition; juvenile offender.
47 1. When a juvenile offender is convicted of a crime, the court shall
48 sentence the defendant [to imprisonment] in accordance with section
49 70.05 of this title or sentence him upon a youthful offender finding in
50 accordance with section 60.02 of this [chapter] article.
51 2. Subdivision one of this section shall apply when sentencing a juve-
52 nile offender notwithstanding the provisions of any other law that deals
53 with the authorized sentence for persons who are not juvenile offenders.
54 [Provided, however, that the limitation prescribed by this section shall
55 not be deemed or construed to bar use of a conviction of a juvenile
56 offender, other than a juvenile offender who has been adjudicated a
A. 2036--B 25
1 youthful offender pursuant to section 720.20 of the criminal procedure
2 law, as a previous or predicate felony offender under section 70.04,
3 70.06, 70.08 or 70.10, when sentencing a person who commits a felony
4 after he has reached the age of sixteen.]
5 § 30. Section 60.12 of the penal law, as amended by chapter 31 of the
6 laws of 2019, subdivision 1 as amended by section 1 of part WW of chap-
7 ter 55 of the laws of 2019, is amended to read as follows:
8 § 60.12 Authorized disposition; alternative sentence; domestic violence
9 cases.
10 1. Notwithstanding any other provision of law, where a court is impos-
11 ing sentence upon a person pursuant to section 70.00, 70.02[, 70.06] or
12 subdivision two or three of section 70.71 of this title, [other than for
13 an offense defined in section 125.26, 125.27, subdivision five of
14 section 125.25, or article 490 of this chapter, or for an offense which
15 would require such person to register as a sex offender pursuant to
16 article six-C of the correction law, an attempt or conspiracy to commit
17 any such offense,] and is authorized [or required] pursuant to sections
18 70.00, 70.02[, 70.06] or subdivision two or three of section 70.71 of
19 this title to impose a sentence of imprisonment, the court, upon a
20 determination following a hearing that (a) at the time of the instant
21 offense, the defendant was a victim of domestic violence subjected to
22 substantial physical, sexual or psychological abuse inflicted by a
23 member of the same family or household as the defendant as such term is
24 defined in subdivision one of section 530.11 of the criminal procedure
25 law; (b) such abuse was a significant contributing factor to the defend-
26 ant's criminal behavior; (c) having regard for the nature and circum-
27 stances of the crime and the history, character and condition of the
28 defendant, that a sentence of imprisonment pursuant to section 70.00,
29 70.02[, 70.06] or subdivision two or three of section 70.71 of this
30 title would be unduly harsh may instead impose a sentence in accordance
31 with this section.
32 A court may determine that such abuse constitutes a significant
33 contributing factor pursuant to paragraph (b) of this subdivision
34 regardless of whether the defendant raised a defense pursuant to article
35 thirty-five, article forty, or subdivision one of section 125.25 of this
36 chapter.
37 At the hearing to determine whether the defendant should be sentenced
38 pursuant to this section, the court shall consider oral and written
39 arguments, take testimony from witnesses offered by either party, and
40 consider relevant evidence to assist in making its determination. Reli-
41 able hearsay shall be admissible at such hearings.
42 2. Where a court would otherwise be required to impose a sentence
43 pursuant to section 70.02 of this title, the court may impose a definite
44 sentence of imprisonment of less than one year [or less], or probation
45 in accordance with the provisions of section 65.00 of this title, or may
46 fix a determinate term of imprisonment as follows:
47 (a) For a class B felony, the term must be at least one year and must
48 not exceed five years;
49 (b) For a class C felony, the term must be at least one year and must
50 not exceed three and one-half years;
51 (c) For a class D felony, the term must be at least one year and must
52 not exceed two years; and
53 (d) For a class E felony, the term must be one year and must not
54 exceed one and one-half years.
55 3. Where a court would otherwise be required to impose a sentence for
56 a class A felony offense pursuant to section 70.00 of this title, the
A. 2036--B 26
1 court may fix a determinate term of imprisonment of at least [five
2 years] one year and not to exceed fifteen years, or impose a definite
3 sentence of imprisonment of less than one year, or probation in accord-
4 ance with the provisions of section 65.00 of this title.
5 4. Where a court would otherwise be required to impose a sentence for
6 a class A felony offense pursuant to subparagraph (i) of paragraph (b)
7 of subdivision two of section 70.71 of this title, the court may fix a
8 determinate term of imprisonment of at least [five years] one year and
9 not to exceed eight years, or impose a definite sentence of imprisonment
10 of less than one year, or probation in accordance with the provisions of
11 section 65.00 of this title.
12 5. Where a court would otherwise be required to impose a sentence for
13 a class A felony offense pursuant to subparagraph (i) of paragraph (b)
14 of subdivision three of section 70.71 of this title, the court may fix a
15 determinate term of imprisonment of at least [five years] one year and
16 not to exceed twelve years, or impose a definite sentence of imprison-
17 ment of less than one year, or probation in accordance with the
18 provisions of section 65.00 of this title.
19 6. Where a court would otherwise be required to impose a sentence for
20 a class A felony offense pursuant to subparagraph (ii) of paragraph (b)
21 of subdivision two of section 70.71 of this title, the court may fix a
22 determinate term of imprisonment of at least one year and not to exceed
23 three years, or impose a definite sentence of imprisonment of less than
24 one year, or probation in accordance with the provisions of section
25 65.00 of this title.
26 7. Where a court would otherwise be required to impose a sentence for
27 a class A felony offense pursuant to subparagraph (ii) of paragraph (b)
28 of subdivision three of section 70.71 of this title, the court may fix a
29 determinate term of imprisonment of at least [three years] one year and
30 not to exceed six years, or impose a definite sentence of imprisonment
31 of less than one year, or probation in accordance with the provisions of
32 section 65.00 of this title.
33 [8. Where a court would otherwise be required to impose a sentence
34 pursuant to subdivision six of section 70.06 of this title, the court
35 may fix a term of imprisonment as follows:
36 (a) For a class B felony, the term must be at least three years and
37 must not exceed eight years;
38 (b) For a class C felony, the term must be at least two and one-half
39 years and must not exceed five years;
40 (c) For a class D felony, the term must be at least two years and must
41 not exceed three years;
42 (d) For a class E felony, the term must be at least one and one-half
43 years and must not exceed two years.
44 9. Where a court would otherwise be required to impose a sentence for
45 a class B, C, D or E felony offense pursuant to section 70.00 of this
46 title, the court may impose a sentence in accordance with the provisions
47 of subdivision two of section 70.70 of this title.
48 10. Except as provided in subdivision seven of this section, where a
49 court would otherwise be required to impose a sentence pursuant to
50 subdivision three of section 70.06 of this title, the court may impose a
51 sentence in accordance with the provisions of subdivision three of
52 section 70.70 of this title.
53 11. Where a court would otherwise be required to impose a sentence
54 pursuant to subdivision three of section 70.06 of this title, where the
55 prior felony conviction was for a felony offense defined in section
A. 2036--B 27
1 70.02 of this title, the court may impose a sentence in accordance with
2 the provisions of subdivision four of section 70.70 of this title.]
3 § 31. Section 65.00 of the penal law, subdivisions 1 and 2 as amended
4 by chapter 835 of the laws of 1974, the opening paragraph of paragraph
5 (a) of subdivision 1 as amended by chapter 738 of the laws of 2004, the
6 opening paragraph of paragraph (b) of subdivision 1 as amended by
7 section 19 and subparagraph (ii) of paragraph (a) of subdivision 3 as
8 amended by section 20 of part AAA of chapter 56 of the laws of 2009, the
9 closing paragraph of subdivision 1 as amended by chapter 3 of the laws
10 of 1995, subdivision 3 as amended by chapter 264 of the laws of 2003,
11 subparagraph (i) of paragraph (a), subparagraph (i) of paragraph (b) and
12 paragraph (d) of subdivision 3 as amended by chapter 556 of the laws of
13 2013, paragraph (c) of subdivision 3 as amended by chapter 568 of the
14 laws of 2004, the closing paragraph of subdivision 3 as amended by chap-
15 ter 320 of the laws of 2006, subdivision 4 as amended by chapter 17 of
16 the laws of 2014, and subdivision 5 as amended by chapter 264 of the
17 laws of 2003 and as renumbered by chapter 556 of the laws of 2013, is
18 amended to read as follows:
19 § 65.00 Sentence of probation.
20 1. [Criteria. (a) Except as otherwise required by section 60.04 or
21 60.05 of this title, and except as provided by paragraph (b) hereof, the
22 court may sentence a person to a period of probation upon conviction of
23 any crime if the court, having regard to the nature and circumstances of
24 the crime and to the history, character and condition of the defendant,
25 is of the opinion that:
26 (i) Institutional confinement for the term authorized by law of the
27 defendant is or may not be necessary for the protection of the public;
28 (ii) the defendant is in need of guidance, training or other assist-
29 ance which, in his case, can be effectively administered through
30 probation supervision; and
31 (iii) such disposition is not inconsistent with the ends of justice.
32 (b) The court, with the concurrence of either the administrative judge
33 of the court or of the judicial district within which the court is situ-
34 ated or such administrative judge as the presiding justice of the appro-
35 priate appellate division shall designate, may sentence a person to a
36 period of probation upon conviction of a class A-II felony defined in
37 article two hundred twenty, the class B felony defined in section 220.48
38 of this chapter or any other class B felony defined in article two
39 hundred twenty of this chapter where the person is a second felony drug
40 offender as defined in paragraph (b) of subdivision one of section 70.70
41 of this chapter, if the prosecutor either orally on the record or in a
42 writing filed with the indictment recommends that the court sentence
43 such person to a period of probation upon the ground that such person
44 has or is providing material assistance in the investigation, apprehen-
45 sion or prosecution of any person for a felony defined in article two
46 hundred twenty or the attempt or the conspiracy to commit any such felo-
47 ny, and if the court, having regard to the nature and circumstances of
48 the crime and to the history, character and condition of the defendant
49 is of the opinion that:
50 (i) Institutional confinement of the defendant is not necessary for
51 the protection of the public;
52 (ii) The defendant is in need of guidance, training or other assist-
53 ance which, in his case, can be effectively administered through
54 probation supervision;
55 (iii) The defendant has or is providing material assistance in the
56 investigation, apprehension or prosecution of a person for a felony
A. 2036--B 28
1 defined in article two hundred twenty or the attempt or conspiracy to
2 commit any such felony; and
3 (iv) Such disposition is not inconsistent with the ends of justice.
4 Provided, however, that the court shall not, except to the extent
5 authorized by paragraph (d) of subdivision two of section 60.01 of this
6 chapter, impose a sentence of probation in any case where it sentences a
7 defendant for more than one crime and imposes a sentence of imprisonment
8 for any one of the crimes, or where the defendant is subject to an
9 undischarged indeterminate or determinate sentence of imprisonment which
10 was imposed at a previous time by a court of this state and has more
11 than one year to run.
12 2.] Sentence. When a person is sentenced to a period of probation the
13 court shall, except to the extent authorized by paragraph (d) of subdi-
14 vision two of section 60.01 of this chapter, impose the period author-
15 ized by subdivision [three] two of this section and shall specify, in
16 accordance with section 65.10, the conditions to be complied with. The
17 court may modify or enlarge the conditions or, if the defendant commits
18 an additional offense or violates a condition, revoke the sentence at
19 any time prior to the expiration or termination of the period of
20 probation.
21 [3.] 2. Periods of probation. Unless terminated sooner in accordance
22 with the criminal procedure law, the period of probation shall be as
23 follows:
24 (a) (i) For a felony, other than a class A-II felony defined in arti-
25 cle two hundred twenty of this chapter or the class B felony defined in
26 section 220.48 of this chapter, [or any other class B felony defined in
27 article two hundred twenty of this chapter committed by a second felony
28 drug offender,] or a sexual assault, the period of probation shall [be a
29 term of three, four or] not exceed five years;
30 (ii) For a class A-II felony drug offender as defined in paragraph (a)
31 of subdivision one of section 70.71 of this chapter [as described in
32 paragraph (b) of subdivision one of this section, or a class B felony
33 committed by a second felony drug offender described in paragraph (b) of
34 subdivision one of this section, the], any period of probation [shall be
35 life] may be imposed and for a class B felony defined in section 220.48
36 of this chapter, the period of probation shall [be] not exceed twenty-
37 five years;
38 (iii) For a felony sexual assault, the period of probation shall [be]
39 not exceed ten years.
40 (b) (i) For a class A misdemeanor, other than a sexual assault, the
41 period of probation shall [be] not exceed a term of [two or] three
42 years;
43 (ii) For a class A misdemeanor sexual assault, the period of probation
44 shall [be] not exceed six years.
45 (c) For a class B misdemeanor, the period of probation shall [be] not
46 exceed one year, except the period of probation shall [be no less than
47 one year and no more than] not exceed three years for the class B misde-
48 meanor of public lewdness as defined in section 245.00 of this chapter;
49 (d) For an unclassified misdemeanor, the period of probation shall
50 [be] not exceed a term of [two or] three years if the authorized
51 sentence of imprisonment is in excess of three months, otherwise the
52 period of probation shall [be] not exceed one year.
53 For the purposes of this section, the term "sexual assault" means an
54 offense defined in article one hundred thirty or two hundred sixty-
55 three, or in section 255.25, 255.26 or 255.27 of this chapter, or an
56 attempt to commit any of the foregoing offenses.
A. 2036--B 29
1 [4.] 3. If during the periods of probation referenced in subparagraph
2 (i) of paragraph (a), subparagraph (i) of paragraph (b) and paragraph
3 (d) of subdivision [three] two of this section an alleged violation is
4 sustained following a hearing pursuant to section 410.70 of the criminal
5 procedure law and the court continues or modifies the sentence, the
6 court may extend the remaining period of probation up to the maximum
7 term authorized by this section. Provided, however, a defendant shall
8 receive credit for the time during which he or she was supervised under
9 the original probation sentence prior to any declaration of delinquency
10 and for any time spent in custody pursuant to this article for an
11 alleged violation of probation.
12 [5.] 4. In any case where a court pursuant to its authority under
13 subdivision four of section 60.01 of this chapter revokes probation and
14 sentences such person to imprisonment and probation, as provided in
15 paragraph (d) of subdivision two of section 60.01 of this chapter, the
16 period of probation shall be the remaining period of the original
17 probation sentence or one year whichever is greater.
18 § 32. Section 65.05 of the penal law, subdivision 1 as added by chap-
19 ter 277 of the laws of 1973, paragraph (a) of subdivision 1 and subdivi-
20 sion 2 as amended by chapter 742 of the laws of 1981 and subdivision 3
21 as amended by chapter 618 of the laws of 1992, is amended to read as
22 follows:
23 § 65.05 Sentence of conditional discharge.
24 1. [Criteria. (a) Except as otherwise required by section 60.05, the
25 court may impose a sentence of conditional discharge for an offense if
26 the court, having regard to the nature and circumstances of the offense
27 and to the history, character and condition of the defendant, is of the
28 opinion that neither the public interest nor the ends of justice would
29 be served by a sentence of imprisonment and that probation supervision
30 is not appropriate.
31 (b) When a sentence of conditional discharge is imposed for a felony,
32 the court shall set forth in the record the reasons for its action.
33 2.] Sentence. Except to the extent authorized by paragraph (d) of
34 subdivision two of section 60.01 of this [chapter] title, when the court
35 imposes a sentence of conditional discharge the defendant shall be
36 released with respect to the conviction for which the sentence is
37 imposed without imprisonment or probation supervision but subject,
38 during the period of conditional discharge, to such conditions as the
39 court may determine. The court shall impose the period of conditional
40 discharge authorized by subdivision [three] two of this section and
41 shall specify, in accordance with section 65.10 of this article, the
42 conditions to be complied with. If a defendant is sentenced pursuant to
43 paragraph (e) of subdivision two of section 65.10 of this [chapter]
44 article, the court shall require the administrator of the program to
45 provide written notice to the court of any violation of program partic-
46 ipation by the defendant. The court may modify or enlarge the conditions
47 or, if the defendant commits an additional offense or violates a condi-
48 tion, revoke the sentence at any time prior to the expiration or termi-
49 nation of the period of conditional discharge.
50 [3.] 2. Periods of conditional discharge. Unless terminated sooner in
51 accordance with the criminal procedure law, the period of conditional
52 discharge shall be as follows:
53 (a) [Three] Up to three years in the case of a felony; and
54 (b) [One] Up to one year in the case of a misdemeanor or a violation.
55 Where the court has required, as a condition of the sentence, that the
56 defendant make restitution of the fruits of his or her offense or make
A. 2036--B 30
1 reparation for the loss caused thereby and such condition has not been
2 satisfied, the court, at any time prior to the expiration or termination
3 of the period of conditional discharge, may impose an additional period.
4 The length of the additional period shall be fixed by the court at the
5 time it is imposed and shall not be more than two years. All of the
6 incidents of the original sentence, including the authority of the court
7 to modify or enlarge the conditions, shall continue to apply during such
8 additional period.
9 § 33. Section 65.20 of the penal law is amended to read as follows:
10 § 65.20 Sentence of unconditional discharge.
11 [1. Criteria. The court may impose a sentence of unconditional
12 discharge in any case where it is authorized to impose a sentence of
13 conditional discharge under section 65.05 if the court is of the opinion
14 that no proper purpose would be served by imposing any condition upon
15 the defendant's release.
16 When a sentence of unconditional discharge is imposed for a felony,
17 the court shall set forth in the record the reasons for its action.
18 2. Sentence.] When the court imposes a sentence of unconditional
19 discharge, the defendant shall be released with respect to the
20 conviction for which the sentence is imposed without imprisonment, fine
21 or probation supervision. A sentence of unconditional discharge is for
22 all purposes a final judgment of conviction.
23 § 34. Subdivision 2 of section 85.00 of the penal law, as added by
24 chapter 477 of the laws of 1970, paragraph (a) as amended by chapter 277
25 of the laws of 1973, is amended to read as follows:
26 2. Authorization for use of sentence. The court may impose a sentence
27 of intermittent imprisonment in any case where:
28 (a) [the court is imposing sentence, upon a person other than a second
29 or persistent felony offender, for a class D or class E felony or for
30 any offense that is not a felony; and
31 (b)] the court is not imposing any other sentence of imprisonment upon
32 the defendant at the same time; and
33 [(c)] (b) the defendant is not under any other sentence of imprison-
34 ment with a term in excess of fifteen days imposed by any other court[;
35 and].
36 § 35. Subdivisions 3, 4 and 5 of section 485.10 of the penal law,
37 subdivisions 3 and 4 as added by chapter 107 of the laws of 2000 and
38 subdivision 5 as amended by chapter 624 of the laws of 2022, are amended
39 to read as follows:
40 3. [Notwithstanding any other provision of law, when a person is
41 convicted of a hate crime pursuant to this article and the specified
42 offense is a class B felony:
43 (a) the maximum term of the indeterminate sentence must be at least
44 six years if the defendant is sentenced pursuant to section 70.00 of
45 this chapter;
46 (b) the term of the determinate sentence must be at least eight years
47 if the defendant is sentenced pursuant to section 70.02 of this chapter;
48 (c) the term of the determinate sentence must be at least twelve years
49 if the defendant is sentenced pursuant to section 70.04 of this chapter;
50 (d) the maximum term of the indeterminate sentence must be at least
51 four years if the defendant is sentenced pursuant to section 70.05 of
52 this chapter; and
53 (e) the maximum term of the indeterminate sentence or the term of the
54 determinate sentence must be at least ten years if the defendant is
55 sentenced pursuant to section 70.06 of this chapter.
A. 2036--B 31
1 4. Notwithstanding any other provision of law, when a person is
2 convicted of a hate crime pursuant to this article and the specified
3 offense is a class A-1 felony, the minimum period of the indeterminate
4 sentence shall be not less than twenty years.
5 5.] In addition to any of the dispositions authorized by this chapter,
6 the court shall require as part of the sentence imposed upon a person
7 convicted of a hate crime pursuant to this article, that the defendant
8 complete a program, training session or counseling session directed at
9 hate crime prevention and education, where the court determines such
10 program, training session or counseling session is appropriate, avail-
11 able and was developed or authorized by the court or local agencies in
12 cooperation with organizations serving the affected community.
13 § 36. Paragraph (d) of subdivision 2 of section 490.25 of the penal
14 law is REPEALED.
15 § 37. Sections 220.35, 400.15, 400.16, 400.19, 400.20 and 400.21 of
16 the criminal procedure law are REPEALED.
17 § 38. Subdivision 6 of section 2 of the correction law, as amended by
18 chapter 476 of the laws of 1970, is amended to read as follows:
19 6. "Residential treatment facility". A correctional facility consist-
20 ing of a community based residence in or near a community where employ-
21 ment, educational and training opportunities are readily available for
22 persons who [are on parole or conditional release and for persons who]
23 are or who will soon be eligible for release on parole who intend to
24 reside in or near that community when released.
25 § 39. Subdivision 10 of section 73 of the correction law is REPEALED.
26 § 40. Subdivision 1 of section 865 of the correction law, as amended
27 by chapter 322 of the laws of 2021, is amended to read as follows:
28 1. "Eligible incarcerated individual" means a person sentenced to an
29 indeterminate term of imprisonment who will become eligible for release
30 on parole within three years or sentenced to a determinate term of
31 imprisonment who will become eligible for conditional release within
32 three years[, who has not reached the age of fifty years, who has not
33 previously been convicted of a violent felony as defined in article
34 seventy of the penal law, or a felony in any other jurisdiction which
35 includes all of the essential elements of any such violent felony, upon
36 which an indeterminate or determinate term of imprisonment was imposed
37 and who was between the ages of sixteen and fifty years at the time of
38 commission of the crime upon which his or her present sentence was
39 based. Notwithstanding the foregoing, no person who is convicted of any
40 of the following crimes shall be deemed eligible to participate in this
41 program: (a) a violent felony offense as defined in article seventy of
42 the penal law; provided, however, that a person who is convicted of
43 burglary in the second degree as defined in subdivision two of section
44 140.25 of the penal law, or robbery in the second degree as defined in
45 subdivision one of section 160.10 of the penal law, or an attempt there-
46 of, is eligible to participate, (b) an A-I felony offense, (c) any homi-
47 cide offense as defined in article one hundred twenty-five of the penal
48 law, (d) any felony sex offense as defined in article one hundred thirty
49 of the penal law and (e) any escape or absconding offense as defined in
50 article two hundred five of the penal law].
51 § 41. Section 220.10 of the criminal procedure law, as amended by
52 chapter 480 of the laws of 1976, subdivision 5 as amended by chapter 410
53 of the laws of 1979, subparagraph (i) of paragraph (a) of subdivision 5
54 as amended by chapter 738 of the laws of 2004, paragraph (d) of subdivi-
55 sion 5 as added by chapter 233 of the laws of 1980, subparagraph (iv) of
56 paragraph (d) of subdivision 5 as amended by chapter 189 of the laws of
A. 2036--B 32
1 2000, paragraph (e) of subdivision 5 as amended by chapter 1 of the laws
2 of 1995, subparagraph (iii) of paragraph (g) of subdivision 5 as amended
3 by chapter 23 of the laws of 2024, the second undesignated paragraph of
4 paragraph (g) of subdivision 5 as amended by chapter 920 of the laws of
5 1982, the closing paragraph of paragraph (g) of subdivision 5 as amended
6 by chapter 411 of the laws of 1979, paragraph (g-1) of subdivision 5 as
7 added by chapter 809 of the laws of 2021, paragraph (h) of subdivision 5
8 as amended by chapter 322 of the laws of 2021 and subdivision 6 as added
9 by chapter 548 of the laws of 1980, is amended to read as follows:
10 § 220.10 Plea; kinds of pleas.
11 The only kinds of pleas which may be entered to an indictment are
12 those specified in this section:
13 1. The defendant may as a matter of right enter a plea of "not guilty"
14 to the indictment.
15 2. [Except as provided in subdivision five, the] The defendant may as
16 a matter of right enter a plea of "guilty" to the entire indictment.
17 3. [Except as provided in subdivision five, where] Where the indict-
18 ment charges but one crime, the defendant may, with [both] either the
19 permission of the court [and] in furtherance of justice in accordance
20 with the factors outlined in subdivision one of section 210.40 of this
21 part, or the consent of the people with the permission of the court,
22 enter a plea of guilty of a lesser included offense.
23 4. [Except as provided in subdivision five, where] Where the indict-
24 ment charges two or more offenses in separate counts, the defendant may,
25 with [both] either the permission of the court [and] in furtherance of
26 justice in accordance with the factors outlined in subdivision one of
27 section 210.40 of this part, or the consent of the people with the
28 permission of the court, enter a plea of:
29 (a) Guilty of one or more but not all of the offenses charged; or
30 (b) Guilty of a lesser included offense with respect to any or all of
31 the offenses charged; or
32 (c) Guilty of any combination of offenses charged and lesser offenses
33 included within other offenses charged.
34 5. [(a) (i) Where the indictment charges one of the class A felonies
35 defined in article two hundred twenty of the penal law or the attempt to
36 commit any such class A felony, then any plea of guilty entered pursuant
37 to subdivision three or four of this section must be or must include at
38 least a plea of guilty of a class B felony.
39 (iii) Where the indictment charges one of the class B felonies defined
40 in article two hundred twenty of the penal law then any plea of guilty
41 entered pursuant to subdivision three or four must be or must include at
42 least a plea of guilty of a class D felony.
43 (b) Where the indictment charges any class B felony, other than a
44 class B felony defined in article two hundred twenty of the penal law or
45 a class B violent felony offense as defined in subdivision one of
46 section 70.02 of the penal law, then any plea of guilty entered pursuant
47 to subdivision three or four must be or must include at least a plea of
48 guilty of a felony.
49 (c) Where the indictment charges a felony, other than a class A felony
50 or class B felony defined in article two hundred twenty of the penal law
51 or class B or class C violent felony offense as defined in subdivision
52 one of section 70.02 of the penal law, and it appears that the defendant
53 has previously been subjected to a predicate felony conviction as
54 defined in penal law section 70.06 then any plea of guilty entered
55 pursuant to subdivision three or four must be or must include at least a
56 plea of guilty of a felony.
A. 2036--B 33
1 (d) Where the indictment charges a class A felony, other than those
2 defined in article two hundred twenty of the penal law, or charges a
3 class B or class C violent felony offense as defined in subdivision one
4 of section 70.02 of the penal law, then a plea of guilty entered pursu-
5 ant to subdivision three or four must be as follows:
6 (i) Where the indictment charges a class A felony offense or a class B
7 violent felony offense which is also an armed felony offense then a plea
8 of guilty must include at least a plea of guilty to a class C violent
9 felony offense;
10 (ii) Except as provided in subparagraph (i) of this paragraph, where
11 the indictment charges a class B violent felony offense or a class C
12 violent felony offense, then a plea of guilty must include at least a
13 plea of guilty to a class D violent felony offense;
14 (iii) Where the indictment charges the class D violent felony offense
15 of criminal possession of a weapon in the third degree as defined in
16 subdivision four of section 265.02 of the penal law, and the defendant
17 has not been previously convicted of a class A misdemeanor defined in
18 the penal law in the five years preceding the commission of the offense,
19 then a plea of guilty must be either to the class E violent felony
20 offense of attempted criminal possession of a weapon in the third degree
21 or to the class A misdemeanor of criminal possession of a weapon in the
22 fourth degree as defined in subdivision one of section 265.01 of the
23 penal law;
24 (iv) Where the indictment charges the class D violent felony offenses
25 of criminal possession of a weapon in the third degree as defined in
26 subdivision four of section 265.02 of the penal law and the provisions
27 of subparagraph (iii) of this paragraph do not apply, or subdivision
28 five, seven or eight of section 265.02 of the penal law, then a plea of
29 guilty must include at least a plea of guilty to a class E violent felo-
30 ny offense.
31 (e) A defendant may not enter a plea of guilty to the crime of murder
32 in the first degree as defined in section 125.27 of the penal law;
33 provided, however, that a defendant may enter such a plea with both the
34 permission of the court and the consent of the people when the agreed
35 upon sentence is either life imprisonment without parole or a term of
36 imprisonment for the class A-I felony of murder in the first degree
37 other than a sentence of life imprisonment without parole.
38 (f) The provisions of this subdivision shall apply irrespective of
39 whether the defendant is thereby precluded from entering a plea of guil-
40 ty of any lesser included offense.
41 (g)] Where the defendant is a juvenile offender, [the provisions of
42 paragraphs (a), (b), (c) and (d) of this subdivision shall not apply
43 and] any plea entered pursuant to subdivision three or four of this
44 section, must be as follows:
45 [(i)] (a) If the indictment charges a person fourteen or fifteen years
46 old with the crime of murder in the second degree any plea of guilty
47 entered pursuant to subdivision three or four must be a plea of guilty
48 of a crime for which the defendant is criminally responsible;
49 [(ii)] (b) If the indictment does not charge a crime specified in
50 [subparagraph (i)] paragraph (a) of this [paragraph] subdivision, then
51 any plea of guilty entered pursuant to subdivision three or four of this
52 section must be a plea of guilty of a crime for which the defendant is
53 criminally responsible unless a plea of guilty is accepted pursuant to
54 [subparagraph (iii)] paragraph (c) of this [paragraph] subdivision;
55 [(iii)] (c) Where the indictment does not charge a crime specified in
56 [subparagraph (i)] paragraph (a) of this [paragraph] subdivision, the
A. 2036--B 34
1 district attorney may recommend removal of the action to the family
2 court. Upon making such recommendation the district attorney shall
3 submit a subscribed memorandum setting forth: [(1)] (i) a recommendation
4 that the interests of justice would best be served by removal of the
5 action to the family court; and [(2)] (ii) if the indictment charges a
6 thirteen year old with the crime of murder in the second degree, or a
7 fourteen or fifteen year old with the crimes of rape in the first degree
8 as defined in subdivision one of section 130.35 of the penal law, or
9 criminal sexual act in the first degree as defined in subdivision one of
10 section 130.50 of the penal law, or an armed felony as defined in para-
11 graph (a) of subdivision forty-one of section 1.20 of this chapter
12 specific factors, one or more of which reasonably supports the recommen-
13 dation, showing, [(i)] (1) mitigating circumstances that bear directly
14 upon the manner in which the crime was committed, or [(ii)] (2) where
15 the defendant was not the sole participant in the crime, that the
16 defendant's participation was relatively minor although not so minor as
17 to constitute a defense to the prosecution, or [(iii)] (3) possible
18 deficiencies in proof of the crime, or [(iv)] (4) where the juvenile
19 offender has no previous adjudications of having committed a designated
20 felony act, as defined in subdivision eight of section 301.2 of the
21 family court act, regardless of the age of the offender at the time of
22 commission of the act, that the criminal act was not part of a pattern
23 of criminal behavior and, in view of the history of the offender, is not
24 likely to be repeated.
25 If the court is of the opinion based on specific factors set forth in
26 the district attorney's memorandum that the interests of justice would
27 best be served by removal of the action to the family court, a plea of
28 guilty of a crime or act for which the defendant is not criminally
29 responsible may be entered pursuant to subdivision three or four of this
30 section, except that a thirteen year old charged with the crime of
31 murder in the second degree may only plead to a designated felony act,
32 as defined in subdivision eight of section 301.2 of the family court
33 act.
34 Upon accepting any such plea, the court must specify upon the record
35 the portion or portions of the district attorney's statement the court
36 is relying upon as the basis of its opinion and that it believes the
37 interests of justice would best be served by removal of the proceeding
38 to the family court. Such plea shall then be deemed to be a juvenile
39 delinquency fact determination and the court upon entry thereof must
40 direct that the action be removed to the family court in accordance with
41 the provisions of article seven hundred twenty-five of this chapter.
42 [(g-1) Where a defendant is an adolescent offender, the provisions of
43 paragraphs (a), (b), (c) and (d) of this subdivision shall not apply.]
44 5-a. Where the plea is to an offense constituting a misdemeanor, the
45 plea shall be deemed replaced by an order of fact-finding in a juvenile
46 delinquency proceeding, pursuant to section 346.1 of the family court
47 act, and the action shall be removed to the family court in accordance
48 with article seven hundred twenty-five of this chapter. Where the plea
49 is to an offense constituting a felony, the court may remove the action
50 to the family court in accordance with section 722.23 and article seven
51 hundred twenty-five of this chapter.
52 [(h) Where the indictment charges the class E felony offense of aggra-
53 vated harassment of an employee by an incarcerated individual as defined
54 in section 240.32 of the penal law, then a plea of guilty must include
55 at least a plea of guilty to a class E felony.]
A. 2036--B 35
1 6. The defendant may, with both the permission of the court and the
2 consent of the people, enter a plea of not responsible by reason of
3 mental disease or defect to the indictment in the manner prescribed in
4 section 220.15 of this chapter.
5 § 42. Subparagraph (iii) of paragraph (g) of subdivision 5 of section
6 220.10 of the criminal procedure law, as amended by chapter 23 of the
7 laws of 2024, is amended to read as follows:
8 [(iii)] (c) Where the indictment does not charge a crime specified in
9 [subparagraph (i)] paragraph (a) of this [paragraph] subdivision, the
10 district attorney may recommend removal of the action to the family
11 court. Upon making such recommendation the district attorney shall
12 submit a subscribed memorandum setting forth: [(1)] (i) a recommendation
13 that the interests of justice would best be served by removal of the
14 action to the family court; and [(2)] (ii) if the indictment charges a
15 thirteen year old with the crime of murder in the second degree, or a
16 fourteen or fifteen year old with the crimes of rape in the first degree
17 as defined in subdivision one of section 130.35 of the penal law, or
18 criminal sexual act in the first degree as defined in subdivision one of
19 section 130.50 of the penal law, or an armed felony as defined in para-
20 graph (a) of subdivision forty-one of section 1.20 of this chapter
21 specific factors, one or more of which reasonably supports the recommen-
22 dation, showing, [(i)] (1) mitigating circumstances that bear directly
23 upon the manner in which the crime was committed, or [(ii)] (2) where
24 the defendant was not the sole participant in the crime, that the
25 defendant's participation was relatively minor although not so minor as
26 to constitute a defense to the prosecution, or [(iii)] (3) possible
27 deficiencies in proof of the crime, or [(iv)] (4) where the juvenile
28 offender has no previous adjudications of having committed a designated
29 felony act, as defined in subdivision eight of section 301.2 of the
30 family court act, regardless of the age of the offender at the time of
31 commission of the act, that the criminal act was not part of a pattern
32 of criminal behavior and, in view of the history of the offender, is not
33 likely to be repeated.
34 § 43. Subdivision 3 of section 220.30 of the criminal procedure law is
35 REPEALED.
36 § 44. Section 430.20 of the criminal procedure law is amended by
37 adding a new subdivision 1-a to read as follows:
38 1-a. Time calculation. (a) If at the time of sentencing the defendant
39 is at liberty, and has accrued jail time credit such that the time
40 accrued may be equal to or exceed the amount of time the defendant would
41 be required to serve to reach the conditional release date of a defi-
42 nite, indeterminate, or determinate sentence, or any jail portion of a
43 sentence of probation pursuant to the sentence or sentences to be
44 imposed, the court shall proceed to impose sentence but shall not commit
45 the defendant to custody, or if the defendant is in custody at the time
46 of sentencing the court shall, upon the defendant's request, release the
47 defendant pending further order of the court. The court shall direct the
48 department of corrections and community supervision, sheriff, or the New
49 York city commissioner of corrections to promptly calculate the jail
50 time credit under section 70.30 of the penal law and determine the good
51 time credit pursuant to section 70.40 of the penal law and sections
52 eight hundred three and eight hundred four of the correction law and
53 certify such credit to the sentencing court. If the credit so certified
54 is sufficient to satisfy the conditional release date of the sentence or
55 sentences imposed by the court, the defendant shall not be further
A. 2036--B 36
1 committed to custody pursuant to such sentence or sentences, except as
2 otherwise expressly provided by law.
3 (b) Where the defendant is otherwise subject to probation, parole,
4 conditional release or post-release supervision under the terms of the
5 court's sentence, the court shall direct the defendant to appear forth-
6 with at the office of the department of corrections and community super-
7 vision or a local probation department. The terms of such probation,
8 parole, conditional release or post-release supervision shall be estab-
9 lished by the court, the department of corrections and community super-
10 vision, or the local probation department, without commitment of the
11 defendant.
12 § 45. This act shall take effect immediately; provided, however, that
13 if chapter 23 of the laws of 2024 shall not have taken effect on or
14 before such date then section forty-two of this act shall take effect on
15 the same date and in the same manner as such chapter of the laws of 2024
16 takes effect.
