senate Bill S4664A

Signed by Governor

Relates to sentences of probation and pre-sentence reports

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Sponsor

Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed by Governor
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actions

  • 17 / Apr / 2013
    • REFERRED TO CODES
  • 23 / May / 2013
    • AMEND AND RECOMMIT TO CODES
  • 23 / May / 2013
    • PRINT NUMBER 4664A
  • 12 / Jun / 2013
    • COMMITTEE DISCHARGED AND COMMITTED TO RULES
  • 12 / Jun / 2013
    • ORDERED TO THIRD READING CAL.1351
  • 13 / Jun / 2013
    • PASSED SENATE
  • 13 / Jun / 2013
    • DELIVERED TO ASSEMBLY
  • 13 / Jun / 2013
    • REFERRED TO CODES
  • 19 / Jun / 2013
    • SUBSTITUTED FOR A4582B
  • 19 / Jun / 2013
    • ORDERED TO THIRD READING RULES CAL.189
  • 19 / Jun / 2013
    • PASSED ASSEMBLY
  • 19 / Jun / 2013
    • RETURNED TO SENATE
  • 30 / Dec / 2013
    • DELIVERED TO GOVERNOR
  • 10 / Jan / 2014
    • SIGNED CHAP.556
  • 10 / Jan / 2014
    • APPROVAL MEMO.18

Summary

Relates to imposing sentences of probation and to waiving pre-sentence investigations and written reports thereon in any city having a population of one million or more for certain offenses.

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Bill Details

See Assembly Version of this Bill:
A4582B
Versions:
S4664
S4664A
Legislative Cycle:
2013-2014
Law Section:
Penal Law
Laws Affected:
Amd §65.00, Pen L; amd §§410.70 & 390.20, CP L

Sponsor Memo

BILL NUMBER:S4664A

TITLE OF BILL: An act to amend the penal law and the criminal procedure
law, in relation to establishing terms of probation sentences and revo-
cations thereof under certain circumstances; and to amend the criminal
procedure law, in relation to pre-sentence investigations and written
reports thereon in any city having a population of one million or more

SUMMARY OF PROVISIONS:

Section 1 of the bill would amend Penal Law ("PL") § 65.00(3)(a)(1) to
provide the court with the discretion to impose a probation term of
three, four or five years for a felony. This would only apply to felo-
nies other than (1) Class A-II felonies defined in PL Article 220; (2)
the Class P felony defined in PL § 220.48; (3) any other Class B felony
defined in PL Article 220 committed by a second felony drug offender; or
(4) any felony involving a sexual assault.

Section 2 of the bill would amend PL § 65.00(3)(b)(i) to provide the
court with the discretion to impose a probation term of two or three
years for a class A misdemeanor other than a sexual assault.

Section 3 of the bill would amend PL § 65.00(3)(d) to give the court the
discretion to impose a probation term of two or three years for an
unclassified misdemeanor, for which the authorized sentence of imprison-
ment is greater than three months.

Section 4 of the bill would amend PL § 65.00 by adding a new subdivision
4, which would clarify that when a person is found to have violated
terms of probation and the court continues or modifies the sentence, the
court may extend remaining period of probation up to the maximum term
authorized by § 65.00.

Section 5 of the bill would amend Criminal Procedure Law ("CPL")
410.70(5) to make corresponding changes that reflect the amendments
proposed by section 4 of the bill.

Section 6 of the bill would add a new subdivision 5 to CPL § 390.20,
which would provide that notwithstanding the provisions of subdivision 1
or 2 of the section, in any city having a population of one million or
more a pre-sentence investigation and report thereon ("PSI") would not
be required where a negotiated sentence of imprisonment for a term of
three hundred sixty-five days or less has been mutually agreed upon by
the parties, with the consent of the judge, as a result of a conviction
or revocation of a sentence of probation, and no sentence of probation
will be imposed.

REASONS FOR SUPPORT: This proposal reflects "evidence-based practices" -
that is, practices based on studies of what has been proven to be effec-
tive in the probation field - and reflects the idea that appropriate
judicial discretion is critical to imposing correct probation term
lengths in order to advance public safety and that eliminating the cost-

ly requirement of Pre Sentence Investigation's (PSI) for negotiated
sentences in cities of one million or more, will allow the New York City
Department of Probation to more appropriately reassign probation offi-
cers to provide supervision and services to probation clients.

Currently, sentences involving probation are oriented to the conviction,
rather than to the offender. Penal Law 05.00 stipulates that, with very
few exceptions, a period of probation for a felony offense must be five
years, and a period of probation for a class A misdemeanor must be three
years. However, research into community supervision and community
corrections has shown that: (1) most re-offending and technical
violations occur within the first eighteen months of one's probation
term; and (2) supervision has its greatest impact in the first twelve
months. Unlike sentences of incarceration, about which judges maintain
broad discretion in determining the length of the sentence, judges in
New York have no such discretion determining the lengths of probation
sentences.

This lack of judicial discretion prevents judges from distinguishing
among convicted individuals on the basis of their prior criminal histo-
ry; degree of culpability (major/minor actors); the risk level they pose
to public safety; and their actuarially determined risk of re-offense.
Moreover, all felony convictions, except those for certain drug-related
and sexual assault offenses, receive five-year probation terms with no
discretion for the court to distinguish between the levels of such felo-
nies (e.g., Vehicular manslaughter in the First Degree, a class C felo-
ny; Assault in the Second Degree, a class D felony, and Auto stripping
in the Second Degree, a class E felony). Therefore, probation sentences
do not appropriately correlate to the severity of the conviction, nor to
the risk factors posed by the offender. Additionally, this proposal
provides the court directly, and probation departments indirectly, with
a new tool to impose graduated sanctions when the terms of probation are
violated.

Currently, the court has limited options when a probationer violates the
terms of his/her probation. The court can revoke the probation sentence
and sentence the individual to incarceration, or a period of incarcera-
tion and probation; or, the court can release the individual and place
him/her back on probation. This proposal provides the court with an
intermediate option, which is to impose a longer period of probation. In
instances where an individual does not receive the maximum amount of
probation time at sentencing, that sentence can be increased when a
violation of probation is sustained, to the maximum probation sentence
that could have originally been imposed by the court.

This intermediate option would be consistent with evidence-based prac-
tices, which suggest that graduated and appropriate responses to behav-
ior increase a probationer's likelihood of success and decrease future
criminal behavior. This proposal would also eliminate the costly
requirement of Pre Sentence Investigation's (PSI) for cities of one
million or more, and allow The New York City Department of Probation to
more appropriately reassign probation officers to provide supervision

and services to probation clients sentenced to a negotiated sentence of
one year or less in jail, who also pose a higher risk of recidivism.

Currently, probation departments throughout the State are required to
conduct PSIs and prepare written reports on all defendants convicted in
felony cases, and on all defendants convicted in misdemeanor cases who
receive a sentence of imprisonment for a term in excess of 180 days.

This bill would amend § 390.20 to maintain these requirements except
where a negotiated sentence of imprisonment for a term of 365 days or
less has been reached as a result of a conviction or revocation of a
probation sentence, and where probation will not be imposed under either
scenario. In the interest of public safety, probation departments would
continue to prepare PSIs in all other felony cases, including those
where a plea bargain is reached and the defendant is returning to the
community (i.e., probation, fine, conditional discharge).

The current PSI requirements necessitate additional court hearings,
delay sentencing, and expend public resources for a pre-sentence inves-
tigation and report that rarely impact the final sentencing outcome. It
is important to note that subdivision 3 of CPL § 390.20 (proposed to be
renumbered subdivision 5) allows judges to order a PSI in any case when
they believe it is appropriate. This proposal would not affect the
discretion of the Court to order a PSI even if the statute would no
longer automatically require one. In instances where a PSI is not
required, and the judge does not order one, a defendant and the prosecu-
tor can always submit their own PSI if they deem it appropriate (CPL
390.40).

Finally, the bill contains a technical amendment that would eliminate
the closing paragraph of § 390.20(4)(a) in order to implement and
conform to the amendments proposed in the bill, whether they pertain to
indeterminate or determinate sentences. That provision (in effect until
September 1, 2013) now prohibits the waiver of a PSI if an indeterminate
or determinate sentence of imprisonment is imposed -- essentially all
cases with a sentence of imprisonment. The same rationale applies to the
amendment proposed by section 3 of the bill, which would repeal the
provisions of the statute that go back into effect on September 1, 2013.
The removal of the PSI requirement would include cases where a plea deal
has been reached and the defendant will be sentenced to an indeterminate
term of imprisonment.

FISCAL IMPACT: None to NYS

EFFECTIVE DATE: Immediately

view bill text
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 4664--A

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                             April 17, 2013
                               ___________

Introduced  by  Sen.  GOLDEN -- read twice and ordered printed, and when
  printed to be  committed  to  the  Committee  on  Codes  --  committee
  discharged, bill amended, ordered reprinted as amended and recommitted
  to said committee

AN  ACT  to  amend  the  penal  law  and  the criminal procedure law, in
  relation to establishing terms of probation sentences and  revocations
  thereof  under certain circumstances; and to amend the criminal proce-
  dure law, in  relation  to  pre-sentence  investigations  and  written
  reports thereon in any city having a population of one million or more

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Subparagraph (i) of  paragraph  (a)  of  subdivision  3  of
section  65.00 of the penal law, as amended by section 20 of part AAA of
chapter 56 of the laws of 2009, is amended to read as follows:
  (i) For a felony, other than a class A-II felony  defined  in  article
two  hundred  twenty  of  this  chapter or the class B felony defined in
section 220.48 of this chapter, or any other class B felony  defined  in
article  two hundred twenty of this chapter committed by a second felony
drug offender, or a sexual assault, the period of probation shall  be  A
TERM OF THREE, FOUR OR five years;
  S  2.  Subparagraph  (i)  of paragraph (b) of subdivision 3 of section
65.00 of the penal law, as amended by chapter 264 of the laws  of  2003,
is amended to read as follows:
  (i) For a class A misdemeanor, other than a sexual assault, the period
of probation shall be A TERM OF TWO OR three years;
  S 3. Paragraph (d) of subdivision 3 of section 65.00 of the penal law,
as  amended  by  chapter  264 of the laws of 2003, is amended to read as
follows:
  (d) For an unclassified misdemeanor, the period of probation shall  be
A  TERM OF TWO OR three years if the authorized sentence of imprisonment

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD10220-03-3

S. 4664--A                          2

is in excess of three months, otherwise the period of probation shall be
one year.
  S  4.    Subdivision 4 of section 65.00 of the penal law is renumbered
subdivision 5 and a new subdivision 4 is added to read as follows:
  4. IF DURING THE PERIODS OF PROBATION REFERENCED IN  SUBPARAGRAPH  (I)
OF PARAGRAPH (A), SUBPARAGRAPH (I) OF PARAGRAPH (B) AND PARAGRAPH (D) OF
SUBDIVISION  THREE OF THIS SECTION AN ALLEGED VIOLATION IS SUSTAINED AND
THE COURT CONTINUES OR MODIFIES THE SENTENCE, THE COURT MAY  EXTEND  THE
REMAINING  PERIOD OF PROBATION UP TO THE MAXIMUM TERM AUTHORIZED BY THIS
SECTION.
  S 5. Subdivision 5 of section 410.70 of the criminal procedure law, as
amended by chapter 112 of the laws  of  1985,  is  amended  to  read  as
follows:
  5.  Revocation;  modification;  continuation. At the conclusion of the
hearing the court  may  revoke,  continue  or  modify  the  sentence  of
probation   or  conditional  discharge.  Where  the  court  revokes  the
sentence, it must impose sentence as specified in subdivisions three and
four of section 60.01 of the penal law. Where  the  court  continues  or
modifies the sentence, it must vacate the declaration of delinquency and
direct  that  the  defendant  be  released.  If the alleged violation is
sustained and the court continues  or  modifies  the  sentence,  it  may
extend the sentence up to the period of interruption specified in subdi-
vision  two  of  section  65.15  of the penal law, but any time spent in
custody in any correctional institution pursuant to  section  410.60  of
this  article  shall  be  credited  against  the  term  of the sentence.
PROVIDED FURTHER, WHERE THE ALLEGED VIOLATION IS SUSTAINED AND THE COURT
CONTINUES OR MODIFIES THE  SENTENCE,  THE  COURT  MAY  ALSO  EXTEND  THE
REMAINING  PERIOD  OF  PROBATION  UP  TO  THE MAXIMUM TERM AUTHORIZED BY
SECTION 65.00 OF THE PENAL LAW.
  S 6. Section 390.20 of the criminal procedure law is amended by adding
a new subdivision 5 to read as follows:
  5. NEGOTIATED SENTENCE OF IMPRISONMENT. IN ANY  CITY  HAVING  A  POPU-
LATION  OF  ONE  MILLION  OR  MORE AND NOTWITHSTANDING THE PROVISIONS OF
SUBDIVISION ONE OR TWO OF THIS SECTION, A PRE-SENTENCE INVESTIGATION AND
WRITTEN REPORT THEREON SHALL NOT BE REQUIRED WHERE A NEGOTIATED SENTENCE
OF IMPRISONMENT FOR A TERM OF THREE HUNDRED SIXTY-FIVE DAYS OR LESS  HAS
BEEN MUTUALLY AGREED UPON BY THE PARTIES WITH CONSENT OF THE JUDGE, AS A
RESULT OF A CONVICTION OR REVOCATION OF A SENTENCE OF PROBATION.
  S  7.  This act shall take effect immediately; provided, however, that
sections one through five of this act shall apply to offenses  committed
on  or  after  the date this act shall have become a law, and shall also
apply to offenses committed before such date, where  the  sentence  upon
conviction  for  such  offense  has  not yet been imposed; and provided,
further, that section six of this act shall take effect on the ninetieth
day after it shall have become a law.

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