BILL NUMBER:A11051

TITLE  OF BILL:  An act to amend the criminal procedure law, in relation
to a sentence of parole supervision

PURPOSE: To amend the Drug Law Reform Act ("DLRA") of  2004  to  clarify
"sentence of parole supervision" and in accordance with express language
of the Penal Law.

SUMMARY  OF  PROVISIONS:  This  measure would amend subdivisions one and
three of Section 410.91 of the Criminal Procedure Law to clarify that  a
determinate  sentence  of  imprisonment  imposed  pursuant  to Penal Law
section 70.70(3)(d) upon  an  "eligible  defendant,"  as  that  term  is
defined  in  subdivision  two of section 410.91, may, where the court so
directs, be executed as a sentence of parole supervision.

JUSTIFICATION: As part of the DLRA,  the  Legislature  added  three  new
sections  to  the Penal Law {sections 60.04, 70.70 and 70.71) to replace
the existing indeterminate sentencing scheme for  felony  drug  offenses
with a new, determinate, sentencing scheme. See, L. 2004, c.  738, §§20,
36,   effective  1/13/05.  In  establishing  the  available  determinate
sentences of imprisonment for non-class A "second felony drug offenders"
under the newly added Penal Law section 70.70(3), the  Legislature  made
clear  that  where  the  felony drug offense for which sentence is to be
imposed is also a "specified offense" under CPL section 41 0.91(5),  and
the defendant is otherwise eligible therefore, the court may direct that
              

the  determinate sentence "be executed as a parole supervision sentence"
pursuant to the procedures prescribed in section 410.91. See, Penal  Law
570.70(3)(d) and CPL 410.91(5) including within the definition of "spec-
ified offense" all class D and class E controlled substance and marijua-
na  felony offenses defined in Penal Law Articles 220 and 221. Due to an
apparent oversight, however, the Legislature failed to  include  in  the
DLRA  an  amendment  to  CPL  section  410.91, which currently defines a
"sentence of parole supervision" only as an indeterminate sentence.

Thus, for example, subdivision one of that section  currently  provides,
in relevant part, that" 1! sentence of parole supervision is an indeter-
minate  sentence  of  imprisonment which may be imposed upon an eligible
defendant, as defined in subdivision two of this section.  Such sentence
shall have a minimum term and a maximum term within the ranges specified
by subdivisions three and four of section 70.05 of the Penal  Law.  "CPL
410.91(1);  emphasis  added.  Similarly,  subdivision  three  of section
410.91 currently provides, in relevant part, that "when an indeterminate
sentence of imprisonment is imposed upon an  eligible  defendant  for  a
specified  offense...the court may direct that such sentence be executed
as a sentence of parole supervision" provided the  court  makes  certain
enumerated  findings regarding, inter alia, the defendant's drug depend-
ence. See, CPL 410.91(3); emphasis added.  This  measure  would  correct
this  legislative  oversight  by  amending subdivisions one and three of
section 410.91 to clarify that, in accordance with the express  language
of Penal Law sections 70.73(3) (d), a sentence of parole supervision can
be  either  an  indeterminate  sentence of imprisonment or a determinate

sentence of imprisonment imposed upon an "eligible defendant." The meas-
ure further clarifies that, if the  sentence  is  a  determinate  parole
supervision  sentence,  the  term of such sentence must be in accordance
with the applicable provisions of Penal Law section 70.70(3)(b)(iii) and
(iv) establishing the term of a determinate sentence for a second felony
drug  offender  convicted  of a class D or class E felony, respectively,
where the offender's prior felony conviction was not a violent felony.

LEGISLATIVE HISTORY:
2008 S.3910
2007 S.3910

FISCAL IMPLICATIONS: None.

EFFECTIVE DATE: Immediately