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

                                  2105

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                            February 11, 2009
                               ___________

Introduced  by  Sens.  GOLDEN,  ALESI,  DeFRANCISCO,  O. JOHNSON, LANZA,
  LARKIN, MORAHAN, PADAVAN, ROBACH, SEWARD, SKELOS  --  read  twice  and
  ordered  printed, and when printed to be committed to the Committee on
  Codes

AN ACT to amend the  penal  law  and  the  criminal  procedure  law,  in
  relation to sentence for persistent misdemeanor offenders

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

  Section 1. The penal law is amended by adding a new section  70.16  to
read as follows:
S 70.16 SENTENCE OF IMPRISONMENT FOR PERSISTENT MISDEMEANOR OFFENDER.
  1. DEFINITION OF PERSISTENT MISDEMEANOR OFFENDER.
  (A) A PERSISTENT MISDEMEANOR OFFENDER IS A PERSON WHO STANDS CONVICTED
OF  A MISDEMEANOR AFTER HAVING PREVIOUSLY BEEN CONVICTED OF FIVE OR MORE
CRIMES, AS PROVIDED IN PARAGRAPH (B) OF THIS SUBDIVISION.
  (B) A PREVIOUS CRIMINAL CONVICTION WITHIN THE MEANING OF PARAGRAPH (A)
OF THIS SUBDIVISION IS A CONVICTION OF A CRIME IN THIS STATE, PROVIDED:
  (I) THAT A SENTENCE FOR SUCH CONVICTION WAS IMPOSED THEREFOR; AND
  (II) THAT THE DEFENDANT WAS SENTENCED FOR SUCH CONVICTION PRIOR TO THE
DATE OF COMMISSION OF THE PRESENT MISDEMEANOR; AND
  (III)  SUBJECT  TO  THE  PERIOD  OF  TIME  EXCLUDED  PURSUANT  TO  THE
PROVISIONS  OF PARAGRAPH (C) OF THIS SUBDIVISION, THAT THE DEFENDANT WAS
SENTENCED FOR SUCH CONVICTION NO MORE THAN FIVE YEARS PRIOR TO THE  DATE
OF COMMISSION OF THE PRESENT MISDEMEANOR; AND
  (IV) THAT THE DEFENDANT WAS NOT PARDONED ON THE GROUNDS OF INNOCENCE.
  (C) ANY PERIOD OF TIME DURING WHICH THE DEFENDANT WAS INCARCERATED FOR
ANY  REASON BETWEEN THE DATE OF COMMISSION OF THE PREVIOUS CRIME AND THE
DATE OF COMMISSION OF THE PRESENT MISDEMEANOR SHALL NOT  COUNT  AS  TIME
WHICH  HAS  ELAPSED IN DETERMINING THE FIVE YEAR PERIOD WITHIN WHICH THE
DEFENDANT MUST HAVE BEEN SENTENCED FOR THE PREVIOUS CRIME UNDER SUBPARA-
GRAPH (III) OF PARAGRAPH (B) OF THIS SUBDIVISION; SUCH FIVE YEAR  PERIOD

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD08243-01-9
              

S. 2105                             2

SHALL BE EXTENDED BY SUCH PERIOD OR PERIODS OF TIME SERVED IN INCARCERA-
TION.
  (D) THE TERM "SENTENCE", WHEN REFERRING TO THE SENTENCE FOR A PREVIOUS
CRIMINAL CONVICTION WITHIN THE MEANING OF PARAGRAPH (B) OF THIS SUBDIVI-
SION,  SHALL  INCLUDE  BUT  NOT  BE  LIMITED TO: A SUSPENDED SENTENCE; A
SUSPENDED EXECUTION OF SENTENCE; A SENTENCE OF PROBATION; A SENTENCE  OF
CONDITIONAL  DISCHARGE  OR  OF  UNCONDITIONAL  DISCHARGE;  A SENTENCE OF
CERTIFICATION TO THE CARE AND CUSTODY OF THE OFFICE  OF  ALCOHOLISM  AND
SUBSTANCE  ABUSE  SERVICES;  OR  A SENTENCE OF ANY COMBINATION OF ONE OR
MORE OF THE FOREGOING SENTENCES.
  2. AUTHORIZED SENTENCE. WHEN THE COURT  HAS  FOUND,  PURSUANT  TO  THE
PROVISIONS  OF THE CRIMINAL PROCEDURE LAW, THAT A PERSON IS A PERSISTENT
MISDEMEANOR OFFENDER, THE COURT  MUST  IMPOSE  A  DEFINITE  SENTENCE  OF
IMPRISONMENT,  THE  TERM OF WHICH SHALL BE FIXED BY THE COURT AT NO LESS
THAN THIRTY DAYS AND NO MORE THAN ONE YEAR, AND MAY IMPOSE ANY  SENTENCE
AUTHORIZED  BY LAW OTHER THAN AND IN ADDITION TO SUCH SENTENCE OF IMPRI-
SONMENT. IN FIXING THE LENGTH OF THE TERM OF  SUCH  DEFINITE  PERIOD  OF
IMPRISONMENT TO WHICH THE COURT MUST SENTENCE THE DEFENDANT UPON A FIND-
ING  THAT  SUCH  PERSON  IS A PERSISTENT MISDEMEANOR OFFENDER, THE COURT
SHALL CONSIDER THE HISTORY AND CHARACTER OF THE DEFENDANT AND THE NATURE
AND CIRCUMSTANCES OF SUCH PERSON'S CRIMINAL CONDUCT AND  SHALL  SENTENCE
THE DEFENDANT TO A TERM HAVING A LENGTH, WITHIN THE FOREGOING PRESCRIBED
LIMITS, THAT WILL BEST SERVE THE PUBLIC INTEREST.
  S  2.  The  criminal  procedure law is amended by adding a new section
400.14 to read as follows:
S  400.14    PROCEDURE  FOR  DETERMINING  WHETHER  DEFENDANT  SHOULD  BE
               SENTENCED AS A PERSISTENT MISDEMEANOR OFFENDER.
  1.  APPLICABILITY. THE PROVISIONS OF THIS SECTION GOVERN THE PROCEDURE
THAT MUST BE FOLLOWED IN ORDER  TO  IMPOSE  THE  PERSISTENT  MISDEMEANOR
OFFENDER  SENTENCE AUTHORIZED BY SUBDIVISION TWO OF SECTION 70.16 OF THE
PENAL LAW. SUCH SENTENCE MAY NOT BE IMPOSED UNLESS, BASED UPON  EVIDENCE
IN  THE RECORD OF A HEARING HELD PURSUANT TO THIS SECTION, THE COURT (A)
HAS FOUND THAT THE DEFENDANT IS A  PERSISTENT  MISDEMEANOR  OFFENDER  AS
DEFINED  IN  SUBDIVISION  ONE OF SECTION 70.16 OF THE PENAL LAW, AND (B)
HAS CONSIDERED THE HISTORY AND CHARACTER OF THE DEFENDANT AND THE NATURE
AND CIRCUMSTANCES OF HIS OR HER CRIMINAL CONDUCT, AS WELL AS THE  PUBLIC
INTEREST,  IN  DETERMINING  THE  LENGTH  OF  THE DEFINITE SENTENCE TO BE
IMPOSED WITHIN THE LIMITS PRESCRIBED BY SUBDIVISION TWO OF SECTION 70.16
OF THE PENAL LAW.
  2. AUTHORIZATION FOR HEARING. WHEN INFORMATION AVAILABLE TO THE  COURT
PRIOR  TO SENTENCING INDICATES THAT THE DEFENDANT IS A PERSISTENT MISDE-
MEANOR OFFENDER, AND WHEN, IN THE OPINION OF THE  COURT,  THE  AVAILABLE
INFORMATION SHOWS THAT A PERSISTENT MISDEMEANOR OFFENDER SENTENCE MAY BE
WARRANTED,  THE  COURT  MAY ORDER A HEARING TO DETERMINE (A) WHETHER THE
DEFENDANT IS IN FACT A PERSISTENT MISDEMEANOR OFFENDER, AND (B)  IF  SO,
WHETHER A PERSISTENT MISDEMEANOR OFFENDER SENTENCE SHOULD BE IMPOSED.
  3.  ORDER  DIRECTING A HEARING. AN ORDER DIRECTING A HEARING TO DETER-
MINE WHETHER THE DEFENDANT SHOULD BE SENTENCED AS A PERSISTENT MISDEMEA-
NOR OFFENDER MUST BE FILED WITH THE CLERK OF THE COURT AND MUST  SPECIFY
A DATE FOR THE HEARING NOT LESS THAN TWENTY DAYS FROM THE DATE THE ORDER
IS  FILED.  THE  COURT MUST ANNEX TO AND FILE WITH THE ORDER A STATEMENT
SETTING FORTH THE FOLLOWING:
  (A) THE DATES AND PLACES OF THE PREVIOUS CONVICTIONS WHICH RENDER  THE
DEFENDANT  A  PERSISTENT  MISDEMEANOR OFFENDER AS DEFINED IN SUBDIVISION
ONE OF SECTION 70.16 OF THE PENAL LAW; AND

S. 2105                             3

  (B) THE FACTORS IN  THE  DEFENDANT'S  BACKGROUND  AND  PRIOR  CRIMINAL
CONDUCT,  AS WELL AS THE PUBLIC INTEREST, WHICH THE COURT DEEMS RELEVANT
FOR THE PURPOSE OF SENTENCING THE DEFENDANT AS A PERSISTENT  MISDEMEANOR
OFFENDER.
  4.  NOTICE  OF HEARING. UPON RECEIPT OF THE ORDER AND STATEMENT OF THE
COURT, THE CLERK OF THE COURT MUST SEND  A  NOTICE  OF  HEARING  TO  THE
DEFENDANT,  HIS  OR  HER  COUNSEL AND THE DISTRICT ATTORNEY. SUCH NOTICE
MUST SPECIFY THE TIME AND PLACE OF THE HEARING AND  THE  FACT  THAT  THE
PURPOSE  OF  THE  HEARING  IS  TO DETERMINE WHETHER OR NOT THE DEFENDANT
SHOULD BE SENTENCED AS A PERSISTENT MISDEMEANOR  OFFENDER.  EACH  NOTICE
REQUIRED  TO  BE  SENT  HEREUNDER  MUST  BE ACCOMPANIED BY A COPY OF THE
STATEMENT OF THE COURT.
  5. BURDEN AND STANDARD OF  PROOF;  EVIDENCE.  UPON  ANY  HEARING  HELD
PURSUANT TO THIS SECTION THE BURDEN OF PROOF IS UPON THE PEOPLE. A FIND-
ING  THAT THE DEFENDANT IS A PERSISTENT MISDEMEANOR OFFENDER, AS DEFINED
IN SUBDIVISION ONE OF SECTION 70.16 OF THE PENAL LAW, MUST BE BASED UPON
PROOF BEYOND A REASONABLE DOUBT BY EVIDENCE ADMISSIBLE UNDER  THE  RULES
APPLICABLE TO THE TRIAL OF THE ISSUE OF GUILT. MATTERS PERTAINING TO THE
DEFENDANT'S  HISTORY  AND  CHARACTER AND THE NATURE AND CIRCUMSTANCES OF
HIS CRIMINAL CONDUCT, AS WELL AS THE PUBLIC INTEREST, MAY BE ESTABLISHED
BY ANY RELEVANT EVIDENCE, NOT LEGALLY PRIVILEGED, REGARDLESS OF ADMISSI-
BILITY UNDER THE EXCLUSIONARY RULES OF EVIDENCE,  AND  THE  STANDARD  OF
PROOF  WITH  RESPECT  TO  SUCH  MATTERS  SHALL BE A PREPONDERANCE OF THE
EVIDENCE.
  6. CONSTITUTIONALITY OF PRIOR CONVICTIONS. A  PREVIOUS  CONVICTION  IN
THIS  OR  ANY  OTHER JURISDICTION WHICH WAS OBTAINED IN VIOLATION OF THE
RIGHTS OF THE DEFENDANT UNDER THE APPLICABLE PROVISIONS OF THE CONSTITU-
TION OF THE UNITED STATES MAY NOT BE COUNTED IN DETERMINING WHETHER  THE
DEFENDANT  IS  A  PERSISTENT MISDEMEANOR OFFENDER. THE DEFENDANT MAY, AT
ANY TIME DURING THE COURSE OF THE HEARING HEREUNDER CONTROVERT AN  ALLE-
GATION  WITH RESPECT TO SUCH CONVICTION IN THE STATEMENT OF THE COURT ON
THE GROUNDS THAT THE CONVICTION WAS UNCONSTITUTIONALLY OBTAINED.   FAIL-
URE  TO  CHALLENGE THE PREVIOUS CONVICTION IN THE MANNER PROVIDED HEREIN
CONSTITUTES A WAIVER ON THE PART OF THE DEFENDANT OF ANY  ALLEGATION  OF
UNCONSTITUTIONALITY  UNLESS GOOD CAUSE BE SHOWN FOR SUCH FAILURE TO MAKE
TIMELY CHALLENGE.
  7. PRELIMINARY EXAMINATION. WHEN THE DEFENDANT APPEARS FOR THE HEARING
THE COURT MUST ASK HIM OR HER WHETHER HE OR SHE WISHES TO CONTROVERT ANY
ALLEGATION MADE IN THE STATEMENT PREPARED BY THE COURT, AND  WHETHER  HE
OR SHE WISHES TO PRESENT EVIDENCE ON THE ISSUE OF WHETHER HE OR SHE IS A
PERSISTENT  MISDEMEANOR  OFFENDER OR ON THE QUESTION OF HIS OR HER BACK-
GROUND AND CRIMINAL CONDUCT. IF THE DEFENDANT WISHES TO  CONTROVERT  ANY
ALLEGATION  IN  THE  STATEMENT  OF THE COURT, HE OR SHE MUST SPECIFY THE
PARTICULAR ALLEGATION OR ALLEGATIONS HE OR SHE WISHES TO CONTROVERT.  IF
HE OR SHE WISHES TO PRESENT EVIDENCE IN HIS OR HER OWN BEHALF, HE OR SHE
MUST  SPECIFY THE NATURE OF SUCH EVIDENCE. UNCONTROVERTED ALLEGATIONS IN
THE STATEMENT OF THE COURT ARE DEEMED EVIDENCE IN THE RECORD.
  8. CASES WHERE FURTHER HEARING IS NOT REQUIRED.  WHERE  THE  UNCONTRO-
VERTED  ALLEGATIONS  IN  THE  STATEMENT  OF  THE COURT ARE SUFFICIENT TO
SUPPORT A FINDING THAT THE DEFENDANT IS A PERSISTENT MISDEMEANOR  OFFEN-
DER  AND  THE COURT IS SATISFIED THAT (A) THE UNCONTROVERTED ALLEGATIONS
WITH RESPECT TO THE DEFENDANT'S BACKGROUND AND THE NATURE OF HIS OR  HER
PRIOR CRIMINAL CONDUCT, AS WELL AS THE PUBLIC INTEREST, WARRANT SENTENC-
ING  THE  DEFENDANT  AS  A  PERSISTENT MISDEMEANOR OFFENDER, AND (B) THE
DEFENDANT EITHER HAS NO RELEVANT EVIDENCE TO PRESENT OR THE FACTS  WHICH
COULD BE ESTABLISHED THROUGH THE EVIDENCE OFFERED BY THE DEFENDANT WOULD

S. 2105                             4

NOT  AFFECT THE COURT'S DECISION, THE COURT MAY ENTER A FINDING THAT THE
DEFENDANT IS A PERSISTENT MISDEMEANOR OFFENDER AND SENTENCE HIM  OR  HER
IN ACCORDANCE WITH THE PROVISIONS OF SUBDIVISION TWO OF SECTION 70.16 OF
THE PENAL LAW.
  9.  CASES  WHERE  FURTHER  HEARING  IS  REQUIRED.  WHERE THE DEFENDANT
CONTROVERTS AN ALLEGATION IN THE STATEMENT OF THE COURT AND  THE  UNCON-
TROVERTED  ALLEGATIONS IN SUCH STATEMENT ARE NOT SUFFICIENT TO SUPPORT A
FINDING THAT THE DEFENDANT  IS  A  PERSISTENT  MISDEMEANOR  OFFENDER  AS
DEFINED  IN  SUBDIVISION ONE OF SECTION 70.16 OF THE PENAL LAW, OR WHERE
THE UNCONTROVERTED ALLEGATIONS WITH RESPECT TO THE  DEFENDANT'S  HISTORY
AND  THE  NATURE  OF  HIS  OR HER PRIOR CRIMINAL CONDUCT, AS WELL AS THE
PUBLIC INTEREST, WARRANT SENTENCING HIM OR  HER  TO  A  LESSER  TERM  OF
IMPRISONMENT  AS  A  PERSISTENT  MISDEMEANOR  OFFENDER,  WITHIN THE TERM
LIMITS PRESCRIBED BY LAW, OR WHERE THE DEFENDANT HAS OFFERED TO  PRESENT
EVIDENCE  TO  ESTABLISH  FACTS THAT WOULD AFFECT THE COURT'S DECISION ON
THE QUESTION OF WHETHER A PERSISTENT MISDEMEANOR  OFFENDER  SENTENCE  IS
WARRANTED, THE COURT MAY FIX A DATE FOR A FURTHER HEARING.  SUCH HEARING
SHALL  BE BEFORE THE COURT WITHOUT A JURY AND EITHER PARTY MAY INTRODUCE
EVIDENCE WITH RESPECT TO  THE  CONTROVERTED  ALLEGATIONS  OR  ANY  OTHER
MATTER  RELEVANT  TO THE ISSUE OF WHETHER OR NOT THE DEFENDANT SHOULD BE
SENTENCED AS A PERSISTENT MISDEMEANOR OFFENDER AND ON THE ISSUE  OF  THE
LENGTH  OF  SUCH  SENTENCE.   AT THE CONCLUSION OF THE HEARING THE COURT
MUST MAKE A FINDING AS TO WHETHER OR NOT THE DEFENDANT IS  A  PERSISTENT
MISDEMEANOR  OFFENDER  AND,  UPON A FINDING THAT HE OR SHE IS SUCH, MUST
THEN MAKE SUCH FINDINGS OF FACT AS IT DEEMS RELEVANT TO THE QUESTION  OF
WHAT LENGTH OF PERSISTENT MISDEMEANOR OFFENDER INCARCERATION SENTENCE IS
WARRANTED,  AND WHAT OTHER SENTENCE AUTHORIZED BY LAW SHOULD BE IMPOSED.
IF THE COURT FINDS THAT THE DEFENDANT IS A PERSISTENT MISDEMEANOR OFFEN-
DER, IT MAY SENTENCE THE DEFENDANT IN ACCORDANCE WITH THE PROVISIONS  OF
SUBDIVISION TWO OF SECTION 70.16 OF THE PENAL LAW.
  10. TERMINATION OF HEARING. AT ANY TIME DURING THE PENDENCY OF A HEAR-
ING  PURSUANT  TO THIS SECTION, THE COURT MAY, IN ITS DISCRETION, TERMI-
NATE THE HEARING WITHOUT MAKING ANY FINDING.  IN SUCH CASE,  UNLESS  THE
COURT  RECOMMENCES THE PROCEEDINGS AND MAKES THE NECESSARY FINDINGS, THE
DEFENDANT MAY NOT BE SENTENCED AS A PERSISTENT MISDEMEANOR OFFENDER.
  S 3. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law.