S T A T E O F N E W Y O R K
________________________________________________________________________
3558
2009-2010 Regular Sessions
I N A S S E M B L Y
January 27, 2009
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Introduced by M. of A. PERRY -- Multi-Sponsored by -- M. of A. GALEF,
PHEFFER, SWEENEY, TOWNS -- read once and referred to the Committee on
Codes
AN ACT to amend the criminal procedure law, in relation to sentencing of
felons with a prior youthful offender adjudication on conviction of a
felony where a weapon was used with intent to commit a violent crime
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The criminal procedure law is amended by adding a new
section 400.50 to read as follows:
S 400.50 PROCEDURE FOR DETERMINING PRIOR JUVENILE OFFENDER ADJUDICATION
FOR THE PURPOSE OF SENTENCE IN CERTAIN CASES.
1. APPLICABILITY. WHERE A CONVICTION IS ENTERED FOR A FELONY WHERE A
WEAPON WAS USED WITH INTENT TO COMMIT A VIOLENT CRIME, THE COURT MAY
INQUIRE WHETHER THE DEFENDANT HAS ANY PRIOR YOUTHFUL OFFENDER ADJUDI-
CATION AND MAY, WHERE IT DETERMINES THAT, IN FACT, SUCH DEFENDANT HAS
BEEN SO PREVIOUSLY SENTENCED, UNSEAL ANY RECORDS RELATING TO SUCH ADJU-
DICATION AND CONSIDER THE CONTENTS THEREOF PRIOR TO IMPOSITION OF A
SENTENCE.
2. STATEMENT TO BE FILED. IF IT APPEARS THAT THE DEFENDANT HAS SUCH
A PREVIOUS ADJUDICATION AND THE COURT IN ITS DISCRETION DESIRES TO
IMPOSE A SENTENCE AFTER CONSIDERING SUCH ADJUDICATION, A STATEMENT MUST
BE FILED AFTER CONVICTION AND BEFORE SENTENCE SETTING FORTH THE DATE AND
PLACE OF THE PREVIOUS ADJUDICATIONS AND THE COURT MUST CONDUCT A HEARING
TO DETERMINE WHETHER THE DEFENDANT IS THE SAME PERSON MENTIONED IN THE
RECORD.
3. PRELIMINARY EXAMINATION. THE DEFENDANT MUST BE GIVEN A COPY OF
SUCH STATEMENT AND THE COURT MUST ASK HIM OR HER WHETHER HE OR SHE
ADMITS OR DENIES SUCH PRIOR ADJUDICATION. IF THE DEFENDANT DENIES THE
SAME OR REMAINS MUTE, THE COURT MAY PROCEED WITH THE HEARING.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD02112-01-9
A. 3558 2
4. TIME FOR HEARING. IN ANY CASE WHERE A COPY OF THE STATEMENT WAS
NOT RECEIVED BY THE DEFENDANT AT LEAST TWO DAYS PRIOR TO THE PRELIMINARY
EXAMINATION, THE COURT MUST UPON REQUEST OF THE DEFENDANT GRANT AN
ADJOURNMENT OF AT LEAST TWO DAYS BEFORE PROCEEDING WITH THE HEARING.
5. MANNER OF CONDUCTING HEARING. A HEARING PURSUANT TO THIS SECTION
MUST BE BEFORE THE COURT WITHOUT A JURY. THE BURDEN OF PROOF IS UPON
THE PEOPLE AND A FINDING THAT THE DEFENDANT HAS BEEN ADJUDICATED A
YOUTHFUL OFFENDER AS ALLEGED IN THE STATEMENT MUST BE BASED UPON PROOF
BEYOND A REASONABLE DOUBT BY EVIDENCE ADMISSIBLE UNDER THE RULES APPLI-
CABLE TO TRIAL OF THE ISSUE OF GUILT.
S 2. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law and shall apply to all
proceedings or hearings commenced on or after such effective date.