Senate Bill S613

                                 BILL NUMBER:  S613                REVISED 4/17/09

 TITLE OF BILL :
An act to amend the penal law and the criminal procedure law, in
relation to revocation of probation and re-sentencing upon conviction
of a felony while under probation supervision for a felony conviction


 PURPOSE :
This bill would require that the court revoke probation and impose a
State prison sentence for felony offenders, where they are
subsequently convicted of committing a new felony while on probation
and sentenced to State time for that new felony. Additionally, the
bill would mandate that this new sentence run consecutively to the new
term of imprisonment, unless the court finds that mitigating
circumstances exist, in which case the court may impose a concurrent
term of incarceration.

 SUMMARY OF PROVISIONS :
This bill would require that the court revoke probation and impose a
State prison sentence for felony offenders, where they are
subsequently convicted of committing a new felony while on probation
and sentenced to State time for that new felony. Additionally, the
bill would mandate that this new sentence run consecutively to the new
term of imprisonment, unless the court finds that mitigating
circumstances exist, in which case the court may impose a concurrent
              

term of incarceration. This bill would amend subdivision 4 of § 60.01
of the Penal Law ("PL") with respect to authorized dispositions, and
would add a new subdivision 6 to PL § 70.25, the section pertaining to
concurrent and consecutive terms of imprisonment. In addition,
subdivision 2 of Criminal Procedure Law ("CPL") § 410.10 and
subdivision 1 of CPL § 410.70 would be amended, which govern
conditions of probation and hearings on violation of probation,
respectively. Subdivision 1 of CPL § 410.90 would also be amended,
stating that the court may at any time terminate either a period of
probation, other than a period of lifetime probation, for conviction
of a crime or a period of conditional discharge for an offense, except
that conviction of a new felony or conviction of an offense in another
jurisdiction which if committed in this state would constitute a
felony, which new felony is committed while under his or her present
probation supervision for a felony offense, shall result in revocation
of probation upon imposition of an indeterminate or determinate
sentence for the new offense pursuant to subdivision four of section
60.01 of the penal law, and shall not result in the termination of
probation. Section 6. This act shall take effect on the ninetieth day
after it shall have become a law.

 JUSTIFICATION :
Current law does not mandate revocation of probation under
circumstances where a person on probation for having been convicted of
a felony is convicted of a new felony. In fact, existing law does not
mandate revocation of probation at all, regardless of the nature of
the violation of probation. When the court determines that an offender
is in violation of the conditions of probation, Judges have the
discretion to impose whatever penalty they choose, including restoring
the person to probation, terminating probation without any penalty or
imposing a concurrent sentence which merely runs along with a sentence
for a new offense. Although CPL § 410.10(2) specifically states that
commission of an additional offense while on probation is grounds for
revocation of such probation sentence, some courts nevertheless do not
revoke probation and re-sentence offenders to State time for the
original offense, even when these offenders are already on probation
for a felony and are now convicted of another felony. What most
commonly occurs is that probation is terminated or the probationer
receives a concurrent sentence. In either case, the probationer is
receiving no additional time for the underling felony.  Failure of
some courts to revoke probation and impose a consecutive sentence of
incarceration in this situation provides the defendant with felony
convictions that remain unpunished. In other words, their first felony
is absolutely free. Any probation sentence represents an agreement
between the defendant and the court that he or she will not be
incarcerated, provided that he or she remains law-abiding and complies
with the conditions of supervision. The defendant is being given a
second chance. A sentence of anything less than a consecutive sentence
sends the message to probationers that they need not worry about
committing another felony while on probation, because the first felony
may be virtually ignored. It also signals that there may be few or no
consequences for lesser offenses or failure to comply with court or
probation directives, thereby undermining Department of Probation's
ability to safely supervise these offenders in the community. In
general, the goal of a sentence of probation is to rehabilitate the
offender, and particular conditions of probation are imposed that are
deemed "reasonably necessary to insure that the defendant will lead a
law abiding life or assist him to do so," PL § 65.10(1). Commission of
a new felony while on probation is a obviously a serious violation of
probation, and one that should have serious consequences. In contrast,
with respect to State parolees, Executive Law § 259-i (3)(d)(iii)
provides for the automatic declaration of delinquency when a parolee
has been convicted of a new felony and sentenced to state prison.
Moreover, PL . 70.25 currently provides for consecutive sentences in
special circumstances. This bill would amend PL §§ 60.01 and 70.25 and
CPL §§ 410.10 and 410.70 to minor the Executive Law by requiring
revocation of probation for felony probationers who have been
convicted of a new felony and are sentenced to state time for that new
felony. It also would require a sentence of at least a year on the
original felony, and would add this to the situations triggering
consecutive sentences, unless a judge finds mitigating circumstances.

 LEGISLATIVE HISTORY :
2008: S.5802 - Passed Senate/A.8384 - Referred to Codes.  2007: S.5802
- Passed Senate/A.8384 - Referred to Codes.

 FISCAL IMPLICATIONS :
None.

 EFFECTIVE DATE :
This act shall take effect on the ninetieth day after it shall have
become law.