Allows predicate felony offenders to be sentenced as first felony offenders with the consent of the district attorney and the court if they are of the opinion that the plea is in the interests of justice.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A7715
TITLE OF BILL:
An act to amend the criminal procedure law, in relation to allowing
predicate felony offenders to be sentenced as first felony offenders
with the consent of the district attorney and the court
This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of his Advisory
Committee on Criminal Law and Procedure.
Mandatory minimum sentences for predicate offenders (those defendants
convicted of a felony within the previous ten years) often results in
seemingly arbitrary excessive sentences, leading to injustices, prison
crowding, and high costs for taxpayers without a clear contribution
toward promoting public safety or preventing recidivism. For example,
Penal Law § 70.06, does not differentiate between defendants who were
released from incarceration one week before a new arrest and those where
the rearrest occurs a month short of the ten-year mark. Under such
circumstances, mandatory minimums for predicate felony offenders repre-
sent an unwarranted intrusion into the discretion of judges. There is
presently no judicial "safety valve" to allow a court after reviewing
the totality of the circumstances-with the agreement of the prosecutor-
to impose a lesser sentence that would have been available but for the
defendant's predicate status. One example of the quintessential injus-
tice that this reform seeks to empower courts to address is the offender
rearrested for possessing with the intent to sell a small quantity of a
narcotic drug, violating Penal Law § 220.16(1), just before the ten-year
timeframe expires after his/her release for a violent felony offense.
This Class B drug felony would carry a mandatory minimum sentence of six
years under Penal Law § 70.70, and the court is now powerless to consid-
er any mitigating circumstances.
This measure would give judges and prosecutors the ability to impose and
recommend appropriate sentences below the mandatory minimums in cases
where it is in the interest of justice to do so after examining on the
record the nature of the crime, and the history and characteristics of
the defendant, and the available evidence. The measure requires that the
People concur in this assessment and join in this application. When such
a lesser sentence is appropriate, the court may then impose a sentence
as if the offender were not a predicate. Notwithstanding, the prose-
cution is explicitly permitted to condition such a plea on the defendant
being adjudicated as a second felony, second felony drug, or second
violent felony offender, as appropriate, to allow for more serious
penalties to be imposed were such a defendant to subsequently reoffend
despite being offered this leniency.
This measure would take effect immediately.
2021-22 LEGISLATIVE HISTORY:
None. New Proposal.