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

                                  3984

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            January 29, 2009
                               ___________

Introduced  by  M.  of  A. AUBRY, GANTT, WRIGHT, CLARK, PRETLOW, GREENE,
  JAFFEE, JEFFRIES, ROSENTHAL -- Multi-Sponsored by -- M. of A.  ARROYO,
  BOYLAND,  BRADLEY,  COOK,  DIAZ, ESPAILLAT, FARRELL, GLICK, GOTTFRIED,
  HEASTIE, HOOPER, HOYT, JACOBS, JOHN, McENENY,  ORTIZ,  PAULIN,  PERRY,
  PHEFFER,  SCARBOROUGH,  TOWNS, WEISENBERG -- read once and referred to
  the Committee on Codes

AN ACT to amend the penal law, the criminal procedure law and the  state
  finance  law,  in relation to authorized sentences of imprisonment for
  possession and sale of  controlled  substances;  to  amend  the  state
  finance law, in relation to establishing the crime reduction fund; and
  making an appropriation therefor

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

  Section 1. Section 60.05 of the penal law, as amended by  chapter  410
of  the laws of 1979, the section heading and subdivisions 2, 3, 4 and 5
as amended by chapter 738 of the laws  of  2004  and  subdivision  1  as
amended by chapter 7 of the laws of 2007, is amended to read as follows:
S 60.05 Authorized dispositions; other class A, B, certain C and D felo-
          nies and multiple felony offenders.
  1.  Applicability. Except as provided in section 60.04 of this article
governing the authorized  dispositions  applicable  to  felony  offenses
defined  in article two hundred twenty or two hundred twenty-one of this
chapter or in section 60.13 of this  article  governing  the  authorized
dispositions  applicable to felony sex offenses defined in paragraph (a)
of subdivision one of section 70.80 of this title,  this  section  shall
govern the dispositions authorized when a person is to be sentenced upon
a conviction of a class A felony, a class B felony or a class C, class D
or  class E felony specified herein, or when a person is to be sentenced
upon a conviction of a felony as a multiple felony offender.
  2. Class A felony. Except as provided in subdivisions three  and  four
of  section  70.06  of this [chapter] TITLE, every person convicted of a

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD04198-01-9
              

A. 3984                             2

class A felony must be sentenced  to  imprisonment  in  accordance  with
section  70.00  of this title, unless such person is convicted of murder
in the first degree and is sentenced in accordance with section 60.06 of
this article.
  3.  Class  B  felony.  Except  as  provided in subdivision six of this
section, every person convicted of a class B violent felony  offense  as
defined  in  subdivision  one  of  section  70.02 of this title, must be
sentenced to imprisonment in accordance with such  section  70.02;  and,
except  as  provided  in  subdivision  six of this section, every person
convicted of any other class B felony must be sentenced to  imprisonment
in  accordance  with  section  70.00  of  this  title OR TO PROBATION IN
ACCORDANCE WITH SECTION 65.00 OF THIS TITLE.
  4. Certain class C felonies. Except as provided  in  subdivision  six,
every person convicted of a class C violent felony offense as defined in
subdivision  one  of  section  70.02 of this title, must be sentenced to
imprisonment in accordance with section 70.02 of this title; and, except
as provided in subdivision six of this section, every  person  convicted
of  the  class C felonies of: attempt to commit any of the class B felo-
nies of bribery in the first degree as defined in section 200.04,  bribe
receiving  in  the first degree as defined in section 200.12, conspiracy
in the second degree as defined in section 105.15 and criminal  mischief
in  the first degree as defined in section 145.12; criminal usury in the
first degree as defined in section 190.42, rewarding official misconduct
in the first degree as defined in section 200.22, receiving  reward  for
official  misconduct  in  the first degree as defined in section 200.27,
attempt to promote prostitution  in  the  first  degree  as  defined  in
section  230.32,  promoting prostitution in the second degree as defined
in section 230.30, arson in the  third  degree  as  defined  in  section
150.10  of this chapter, must be sentenced to imprisonment in accordance
with section 70.00 of this title OR  TO  PROBATION  IN  ACCORDANCE  WITH
SECTION 65.00 OF THIS TITLE.
  5.  Certain class D felonies. Except as provided in subdivision six of
this section, every person convicted of the class D felonies of  assault
in the second degree as defined in section 120.05 or attempt to commit a
class  C  felony  as  defined in section 230.30 of this chapter, must be
sentenced in accordance with section 70.00 or 85.00 of this title.
  6. Multiple felony offender. When the court imposes  sentence  upon  a
second violent felony offender, as defined in section 70.04,[or a second
felony  offender,  as defined in section 70.06,] the court must impose a
sentence of imprisonment in accordance with section 70.04 [or 70.06,  as
the  case  may  be],  unless  it  imposes  a sentence of imprisonment in
accordance with section 70.08  [or  70.10].    WHEN  THE  COURT  IMPOSES
SENTENCE UPON A SECOND FELONY OFFENDER, AS DEFINED IN SECTION 70.06, THE
COURT  MUST  IMPOSE  A  SENTENCE  IN ACCORDANCE WITH SUCH SECTION 70.06,
UNLESS IT IMPOSES A SENTENCE IN ACCORDANCE WITH SECTION 70.10.
  7. Fines. Where the  court  imposes  a  sentence  of  imprisonment  in
accordance  with  this section, the court also may impose a fine author-
ized by article eighty and in such  case  the  sentence  shall  be  both
imprisonment and a fine.
  S  2.  Section 65.00 of the penal law, subdivisions 1 and 2 as amended
by chapter 835 of the laws of 1974, the opening paragraph  of  paragraph
(a)  of subdivision 1 and subparagraph (ii) of paragraph (a) of subdivi-
sion 3 as amended by chapter 738 of the laws of 2004, the opening  para-
graph of paragraph (b) of subdivision 1 as amended by chapter 410 of the
laws of 1979, the closing paragraph of subdivision 1 as amended by chap-
ter  3  of  the laws of 1995, subdivisions 3 and 4 as amended by chapter

A. 3984                             3

264 of the laws of 2003, paragraph (c) of subdivision 3  as  amended  by
chapter 568 of the laws of 2004 and the closing paragraph of subdivision
3  as  amended by chapter 320 of the laws of 2006, is amended to read as
follows:
S 65.00 Sentence of probation.
  1.  Criteria.  [(a)]  Except as otherwise required by section 60.04 or
60.05 of this title, [and except as provided by paragraph  (b)  hereof,]
the court may sentence a person to a period of probation upon conviction
of any crime if the court, having regard to the nature and circumstances
of  the crime and to the history, character and condition of the defend-
ant, is of the opinion that:
  [(i)] (A) Institutional confinement for the term authorized by law  of
the  defendant  is  or  may  not  be necessary for the protection of the
public;
  [(ii)] (B) the defendant is in need of  guidance,  training  or  other
assistance  which,  in his case, can be effectively administered through
probation supervision; and
  [(iii)] (C) such disposition is not  inconsistent  with  the  ends  of
justice.
  [(b)  The  court,  with  the  concurrence of either the administrative
judge of the court or of the judicial district within which the court is
situated or such administrative judge as the presiding  justice  of  the
appropriate appellate division shall designate, may sentence a person to
a  period of probation upon conviction of a class A-II felony or a class
B felony defined in article two hundred twenty if the prosecutor  either
orally  on  the  record or in a writing filed with the indictment recom-
mends that the court sentence such person to a period of probation  upon
the  ground  that such person has or is providing material assistance in
the investigation, apprehension or prosecution of any person for a felo-
ny defined in article two hundred twenty or the attempt or the conspira-
cy to commit any such felony, and if the court,  having  regard  to  the
nature  and circumstances of the crime and to the history, character and
condition of the defendant is of the opinion that:
  (i) Institutional confinement of the defendant is  not  necessary  for
the protection of the public;
  (ii)  The  defendant is in need of guidance, training or other assist-
ance which,  in  his  case,  can  be  effectively  administered  through
probation supervision;
  (iii)  The  defendant  has  or is providing material assistance in the
investigation, apprehension or prosecution of  a  person  for  a  felony
defined  in  article  two hundred twenty or the attempt or conspiracy to
commit any such felony; and
  (iv) Such disposition is not inconsistent with the ends of justice.]
  Provided, however, that the court shall  not,  except  to  the  extent
authorized  by paragraph (d) of subdivision two of section 60.01 of this
[chapter] TITLE, impose a sentence of probation in  any  case  where  it
sentences  a defendant for more than one crime and imposes a sentence of
imprisonment for any one of  the  crimes,  or  where  the  defendant  is
subject  to  an  undischarged  indeterminate  or determinate sentence of
imprisonment which was imposed at a previous time by  a  court  of  this
state and has more than one year to run.
  2.  Sentence.  When a person is sentenced to a period of probation the
court shall, except to the extent authorized by paragraph (d) of  subdi-
vision  two  of section 60.01 of this [chapter] TITLE, impose the period
authorized by subdivision three of this section and  shall  specify,  in
accordance  with  section 65.10, the conditions to be complied with. The

A. 3984                             4

court may modify or enlarge the conditions or, if the defendant  commits
an  additional  offense  or violates a condition, revoke the sentence at
any time prior to  the  expiration  or  termination  of  the  period  of
probation.
  3.  Periods  of probation. Unless terminated sooner in accordance with
the criminal procedure law, the period of probation shall be as follows:
  (a) [(i)] For a felony, [other than a class A-II felony or a  class  B
felony defined in article two hundred twenty of this chapter or a sexual
assault,] the period of probation shall be five years;
  [(ii) For a class A-II felony controlled substance offender as defined
in  paragraph (a) of subdivision one of section 70.71 of this chapter or
a class B second felony drug offender as defined  in  paragraph  (b)  of
subdivision  one  of  section  70.70  of  this  chapter,  the  period of
probation shall be life, and for a  class  B  felony  drug  offender  as
defined  in  paragraph  (a)  of subdivision one of section 70.70 of this
chapter, the period of probation shall be twenty-five years;
  (iii) For a felony sexual assault, the period of  probation  shall  be
ten years.]
  (b)  (i)  For  a class A misdemeanor, other than a sexual assault, the
period of probation shall be three years;
  (ii) For a class A misdemeanor sexual assault, the period of probation
shall be six years.
  (c) For a class B misdemeanor, the period of probation  shall  be  one
year,  except the period of probation shall be no less than one year and
no more than three years for the class B misdemeanor of public  lewdness
as defined in section 245.00 of this chapter;
  (d)  For an unclassified misdemeanor, the period of probation shall be
three years if the authorized sentence of imprisonment is in  excess  of
three months, otherwise the period of probation shall be one year.
  For  the  purposes of this section, the term "sexual assault" means an
offense defined in article one hundred  thirty  or  two  hundred  sixty-
three,  or  in  section  255.25, 255.26 or 255.27 of this chapter, or an
attempt to commit any of the foregoing offenses.
  4. In any case where a court pursuant to its authority under  subdivi-
sion four of section 60.01 of this [chapter] TITLE revokes probation and
sentences  such  person  to  imprisonment  and probation, as provided in
paragraph (d) of subdivision two of  section  60.01  of  this  [chapter]
TITLE,  the  period  of  probation  shall be the remaining period of the
original probation sentence or one year whichever is greater.
  S 3. Subdivision 1 of section 70.00 of the penal law,  as  amended  by
section  36  of  chapter  7  of the laws of 2007, is amended and two new
subdivisions 4-a and 4-b are added to read as follows:
  1. Indeterminate sentence. Except as provided  in  subdivisions  four,
five  and  six  of  this  section  or  section  70.80 of this article, a
sentence of imprisonment for a felony, other than a  felony  defined  in
article  two  hundred  twenty or two hundred twenty-one of this chapter,
shall be an indeterminate sentence. When such a sentence is imposed, the
court, EXCEPT AS PROVIDED IN SUBDIVISIONS  FOUR-A  AND  FOUR-B  OF  THIS
SECTION,  shall  impose a maximum term in accordance with the provisions
of subdivision two of this section and the minimum period  of  imprison-
ment shall be as provided in subdivision three of this section.
  4-A. ALTERNATIVE SENTENCE FOR CERTAIN CLASS A FELONIES. WHEN A PERSON,
OTHER  THAN  A  PERSISTENT  FELONY  OFFENDER, IS SENTENCED FOR A CLASS A
FELONY SPECIFIED IN ARTICLE TWO HUNDRED TWENTY  AND  THE  COURT,  HAVING
REGARD  TO  THE NATURE AND CIRCUMSTANCES OF THE CRIME AND TO THE HISTORY
AND CHARACTER OF THE DEFENDANT, IS OF THE OPINION  THAT  A  SENTENCE  OF

A. 3984                             5

IMPRISONMENT IS NECESSARY BUT THAT IT WOULD BE UNDULY HARSH TO IMPOSE AN
INDETERMINATE  SENTENCE  IN ACCORDANCE WITH PARAGRAPH (A) OF SUBDIVISION
TWO AND PARAGRAPH (A) OF SUBDIVISION THREE OF THIS  SECTION,  THE  COURT
MAY  IMPOSE  A  LESSER  SENTENCE  OF IMPRISONMENT IN ACCORDANCE WITH ANY
OTHER PROVISION OF THIS SECTION.
  4-B. ALTERNATIVE SENTENCE FOR CERTAIN CLASS B FELONIES. WHEN A PERSON,
OTHER THAN A PERSISTENT FELONY OFFENDER, IS  SENTENCED  FOR  A  CLASS  B
FELONY  SPECIFIED  IN  ARTICLE  TWO  HUNDRED TWENTY OR ANY OTHER CLASS B
FELONY NOT DEFINED IN SUBDIVISION ONE OF SECTION 70.02  AND  THE  COURT,
HAVING  REGARD  TO  THE NATURE AND CIRCUMSTANCES OF THE CRIME AND TO THE
HISTORY AND CHARACTER OF  THE  DEFENDANT,  IS  OF  THE  OPINION  THAT  A
SENTENCE  OF IMPRISONMENT IS NECESSARY BUT THAT IT WOULD BE UNDULY HARSH
TO IMPOSE AN INDETERMINATE SENTENCE IN ACCORDANCE WITH PARAGRAPH (B)  OF
SUBDIVISION  TWO AND PARAGRAPH (B) OF SUBDIVISION THREE OF THIS SECTION,
THE COURT MAY IMPOSE A LESSER SENTENCE  OF  IMPRISONMENT  IN  ACCORDANCE
WITH ANY OTHER PROVISION OF THIS SECTION.
  S  4.  Subdivision  1 of section 70.00 of the penal law, as amended by
section 37 of chapter 7 of the laws of  2007,  is  amended  to  read  as
follows:
  1. Indeterminate sentence. Except as provided in subdivisions four and
five  of  this  section  or section 70.80 of this article, a sentence of
imprisonment for a felony, other than a felony defined  in  article  two
hundred  twenty  or  two hundred twenty-one of this chapter, shall be an
indeterminate sentence. When such a  sentence  is  imposed,  the  court,
EXCEPT  AS  PROVIDED  IN SUBDIVISIONS FOUR-A AND FOUR-B OF THIS SECTION,
shall impose a maximum term in accordance with the provisions of  subdi-
vision  two of this section and the minimum period of imprisonment shall
be as provided in subdivision three of this section.
  S 5. Section 70.06 of the penal law is amended by adding a new  subdi-
vision 2-a to read as follows:
  2-A.  NOTWITHSTANDING  THE  PROVISIONS  OF  SUBDIVISION  TWO  OF  THIS
SECTION, THE COURT, HAVING REGARD TO THE NATURE AND CIRCUMSTANCES OF THE
CRIME AND TO THE HISTORY, CHARACTER AND CONDITION OF THE DEFENDANT, MAY,
IN THE INTEREST OF JUSTICE, SENTENCE A SECOND FELONY OFFENDER IN ACCORD-
ANCE WITH SECTION 70.00 OR SECTION 65.00.
  S 6. Section 110.05 of the penal law, as amended by chapter 276 of the
laws of 1973, subdivision 1 as amended by chapter 93 of the laws of 2006
and subdivisions 3, 4, 5, 6, 7 and 8 as renumbered by chapter 410 of the
laws of 1979, is amended to read as follows:
S 110.05 Attempt to commit a crime; punishment.
  An attempt to commit a crime is a:
  1. Class A-I felony when the crime attempted  is  the  A-I  felony  of
murder  in the first degree, aggravated murder as defined in subdivision
one of  section  125.26  of  this  chapter,  criminal  possession  of  a
controlled substance in the first degree[, criminal sale of a controlled
substance  in  the  first  degree,  criminal possession of a chemical or
biological weapon in the first degree or criminal use of a  chemical  or
biological weapon in the first degree;
  2. Class A-II felony when the crime attempted is a class A-II felony];
  [3]2.   Class B felony when the crime attempted is a class A-I OR A-II
felony except as provided in subdivision one hereof;
  [4]3.  Class C felony when the crime attempted is a class B felony;
  [5]4.  Class D felony when the crime attempted is a class C felony;
  [6]5.  Class E felony when the crime attempted is a class D felony;
  [7]6.  Class A misdemeanor when the crime attempted is a class E felo-
ny;

A. 3984                             6

  [8]7.  Class B misdemeanor when the crime attempted is a misdemeanor.
  S  7.  Subdivision  15 of section 220.09 of the penal law, as added by
chapter 264 of the laws of 2003, is amended and a new subdivision 16  is
added to read as follows:
  15.  one  or  more  preparations,  compounds,  mixtures  or substances
containing gamma hydroxybutyric acid, as defined in  paragraph  four  of
subdivision (e) of schedule I of section thirty-three hundred six of the
public  health  law,  and  said  preparations,  compounds,  mixtures  or
substances are of an aggregate weight of two hundred grams  or  more[.];
OR
  16.  A  NARCOTIC  DRUG  WITH  INTENT  TO SELL IT AND THE NARCOTIC DRUG
WEIGHS TEN GRAINS OR LESS.
  S 8. Subdivision 1 of section 220.16 of the penal law, as  amended  by
chapter 75 of the laws of 1995, is amended to read as follows:
  1. a narcotic drug with intent to sell it AND THE NARCOTIC DRUG WEIGHS
MORE THAN TEN GRAINS; or
  S  9.  Subdivision  9  of section 220.34 of the penal law, as added by
chapter 264 of the laws of 2003, is amended and a new subdivision 10  is
added to read as follows:
  9.  one  or  more  preparations,  compounds,  mixtures  or  substances
containing gamma hydroxybutyric acid, as defined in  paragraph  four  of
subdivision (e) of schedule I of section thirty-three hundred six of the
public  health  law,  and  said  preparations,  compounds,  mixtures  or
substances are of an aggregate weight of twenty-eight grams or  more[.];
OR
  10. A NARCOTIC DRUG AND THE NARCOTIC DRUG WEIGHS TEN GRAINS OR LESS.
  S  10. Subdivision 1 of section 220.39 of the penal law, as amended by
chapter 1051 of the laws of 1973, is amended to read as follows:
  1. a narcotic drug AND THE NARCOTIC DRUG WEIGHS MORE THAN TEN  GRAINS;
or
  S  11.  Paragraphs (a), (b) and (c) of subdivision 5 of section 220.10
of the criminal procedure law, as amended by chapter 410 of the laws  of
1979, subparagraph (i) of paragraph (a) as amended by chapter 738 of the
laws of 2004, are amended to read as follows:
  (a)  [(i)]  Where  the  indictment charges one of the class A felonies
defined in article two hundred twenty of the penal law or the attempt to
commit any such class A felony, then any plea of guilty entered pursuant
to subdivision three or four of this section must be or must include  at
least a plea of guilty of a class [B] C felony.
  [(iii)    Where  the  indictment  charges  one of the class B felonies
defined in article two hundred twenty of the penal law then any plea  of
guilty  entered  pursuant  to  subdivision three or four must be or must
include at least a plea of guilty of a class D felony.]
  (b)  Where the indictment charges any class B  felony,  other  than  a
[class  B  felony defined in article two hundred twenty of the penal law
or a] class B violent felony offense as defined in  subdivision  one  of
section 70.02 of the penal law, then any plea of guilty entered pursuant
to  subdivision three or four must be or must include at least a plea of
guilty of a felony.
  (c)  Where the indictment charges a felony, other than a class A felo-
ny [or class B felony] defined in article  two  hundred  twenty  of  the
penal  law  or  class  B or class C violent felony offense as defined in
subdivision one of section 70.02 of the penal law, and it  appears  that
the  defendant  has  previously  been  subjected  to  a predicate felony
conviction as defined in [penal law] section 70.06 OF THE PENAL LAW then

A. 3984                             7

any plea of guilty entered pursuant to subdivision three or four must be
or must include at least a plea of guilty of a felony.
  S 12. Paragraph (b) of subdivision 3 of section 220.30 of the criminal
procedure  law, as amended by chapter 1051 of the laws of 1973, subpara-
graph (i) as amended and subparagraphs (viii) and (ix) as added by chap-
ter 410 of the laws of 1979, subparagraphs (ii) and (vi) as  amended  by
chapter  481  of the laws of 1978, subparagraphs (iii) and (iv) as added
and subparagraphs (vi), (viii) and (ix) as renumbered by chapter 233  of
the laws of 1980, subparagraph (v) as amended by chapter 189 of the laws
of  2000  and  subparagraph (vii) as amended by chapter 1 of the laws of
1995, is amended to read as follows:
  (b)  (i) A plea of guilty, whether to  the  entire  indictment  or  to
part  of  the indictment for any crime other than AT LEAST a class [A] C
felony, may not be accepted on  the  condition  that  it  constitutes  a
complete  disposition  of  one  or  more  other  indictments against the
defendant wherein is charged a class [A-I] A felony as defined in  arti-
cle  two  hundred  twenty of the penal law [or the attempt to commit any
such class A-I felony, except that an  eligible  youth,  as  defined  in
subdivision  two  of  section 720.10, may plea to a class B felony, upon
consent of the district attorney, for  purposes  of  adjudication  as  a
youthful offender].
  (ii)    Where  it  appears  that  the  defendant  has  previously been
subjected to a predicate felony conviction as defined in  paragraph  (b)
of  subdivision  [(1)]  ONE of section 70.06 of the penal law, a plea of
guilty, whether to the entire indictment or to part of  the  indictment,
of  any offense other than a felony may not be accepted on the condition
that it constitutes a complete disposition of one or more other  indict-
ments  against  the  defendant wherein is charged a felony, other than a
class A felony or a class B or class C violent felony offense as defined
in subdivision one of section 70.02 of the penal law.
  (iii)  A plea of guilty, whether to the entire indictment or  part  of
the  indictment for any crime other than a class A felony NOT DEFINED IN
ARTICLE TWO HUNDRED TWENTY OF THE PENAL LAW or a  class  B  or  class  C
violent felony offense as defined in subdivision one of section 70.02 of
the  penal law, may not be accepted on the condition that it constitutes
a complete disposition of one or  more  other  indictments  against  the
defendant  wherein is charged a class A felony, other than those defined
in article two hundred twenty of the penal law, or  a  class  B  violent
felony offense which is also an armed felony offense.
  (iv)    Except  as provided in subparagraph (iii) of this paragraph, a
plea of guilty, whether to the entire indictment or part of the  indict-
ment,  for  any crime other than a class A felony NOT DEFINED IN ARTICLE
TWO HUNDRED TWENTY OF THE PENAL LAW or a class B, C, or D violent felony
offense as defined in subdivision one of section 70.02 of the penal law,
may not be accepted on the condition  that  it  constitutes  a  complete
disposition of one or more other indictments against the defendant wher-
ein is charged a class B or class C violent felony offense as defined in
subdivision one of section 70.02 of the penal law[,].
  (v)  A plea of guilty, whether to the entire indictment or part of the
indictment, for any crime other than a violent felony offense as defined
in section 70.02 of the penal law, may not be accepted on the  condition
that  it constitutes a complete disposition of one or more other indict-
ments against the defendant wherein is charged the class D violent felo-
ny offenses of criminal possession of a weapon in the  third  degree  as
defined in subdivision [four,] five, seven or eight of section 265.02 of
the  penal  law;  provided,  however,  a  plea of guilty, whether to the

A. 3984                             8

entire indictment or part of the indictment, for the class A misdemeanor
of criminal possession of a weapon in the fourth degree  as  defined  in
subdivision  one  of  section 265.01 of the penal law may be accepted on
the  condition that it constitutes a complete disposition of one or more
other indictments against the defendant wherein is charged the  class  D
violent  felony  offense of criminal possession of a weapon in the third
degree as defined in [subdivision four of] section 265.02 of  the  penal
law  when  the  defendant has not been previously convicted of a class A
misdemeanor defined in the penal law in the  five  years  preceding  the
commission of the offense.
  (vi)  A plea of guilty, whether to the entire indictment or to part of
the indictment for any crime other than a felony, may not be accepted on
the  condition that it constitutes a complete disposition of one or more
other indictments against the defendant wherein is  charged  a  class  B
felony  other than a class B violent felony offense as defined in subdi-
vision one of section 70.02 of the penal law.
  (vii) A defendant may not enter a plea  of  guilty  to  the  crime  of
murder  in  the  first  degree as defined in section 125.27 of the penal
law; provided, however, that a defendant may enter such a plea with both
the permission of the court and the  consent  of  the  people  when  the
agreed  upon  sentence  is  either life imprisonment without parole or a
term of imprisonment for the class A-I felony of  murder  in  the  first
degree other than a sentence of life imprisonment without parole.
  [(viii)  A plea of guilty, whether to the entire indictment or to part
of  the  indictment for any crime other than a class A or class B felony
may not be accepted on condition that it constitutes a complete disposi-
tion of one or more other indictments against the defendant  wherein  is
charged a class A-II felony defined in article two hundred twenty of the
penal law or the attempt to commit any such felony.
  (ix)  A plea of guilty, whether to the entire indictment or to part of
the indictment for any crime other than a class B, a class C, or a class
D  felony,  may  not  be  accepted  on  condition  that it constitutes a
complete disposition of  one  or  more  other  indictments  against  the
defendant  wherein  is  charged  a class B felony defined in article two
hundred twenty of the penal law.]
  S 13. Subdivision 1 of section 440.20 of the criminal  procedure  law,
as  amended  by  chapter  1  of  the laws of 1995, is amended to read as
follows:
  1. At any time after the entry of a judgment, the court in  which  the
judgment  was  entered  may, upon motion of the defendant, set aside the
sentence upon the ground that
  (A) it was unauthorized, illegally imposed or otherwise invalid  as  a
matter of law, OR
  (B)  THE DEFENDANT WAS CONVICTED ON OR AFTER SEPTEMBER FIRST, NINETEEN
HUNDRED SEVENTY-THREE AND NEW SENTENCING OPTIONS WERE ENACTED SINCE  THE
ENTRY  OF  JUDGMENT AGAINST THE DEFENDANT WHICH, HAD THEY BEEN AVAILABLE
AT TIME OF SENTENCING, COULD HAVE BEEN APPLIED BY THE COURT WHEN  IMPOS-
ING  SENTENCE;  PROVIDED, HOWEVER, THAT SUCH NEW SENTENCING OPTIONS WERE
ENACTED PURSUANT TO THE CHAPTER OF THE LAWS OF TWO THOUSAND  NINE  WHICH
ADDED THIS PARAGRAPH.
  Where  the  judgment  includes a sentence of death, the court may also
set aside the sentence upon any of the grounds set  forth  in  paragraph
(b),  (c),  (f),  (g)  or  (h)  of  subdivision one of section 440.10 as
applied to  a  separate  sentencing  proceeding  under  section  400.27,
provided,  however,  that  to  the extent the ground or grounds asserted
include one or more of the aforesaid paragraphs of  subdivision  one  of

A. 3984                             9

section  440.10, the court must also apply subdivisions two and three of
section 440.10, other than paragraph (d)  of  subdivision  two  of  such
section,  in  determining  the  motion. In the event the court enters an
order  granting  a  motion  to  set aside a sentence of death under this
section, the court must either direct a  new  sentencing  proceeding  in
accordance  with  section  400.27  or,  to the extent that the defendant
cannot be resentenced to death consistent with the laws of this state or
the constitution of this state or of the United States,  resentence  the
defendant to life imprisonment without parole or to a sentence of impri-
sonment  for  the  class  A-I felony of murder in the first degree other
than a sentence of life imprisonment without parole. Upon  granting  the
motion  upon any of the grounds set forth in the aforesaid paragraphs of
subdivision one of section 440.10 and setting aside  the  sentence,  the
court  must  afford  the people a reasonable period of time, which shall
not be less than ten days, to determine whether to take an  appeal  from
the  order  setting aside the sentence of death. The taking of an appeal
by the people stays the effectiveness of that  portion  of  the  court's
order that directs a new sentencing proceeding.
  S  14.  Section  8 of the state finance law is amended by adding a new
subdivision 21 to read as follows:
  21. A.  EXAMINE, AUDIT AND, PRIOR TO MARCH  FIFTEENTH  OF  EACH  YEAR,
CERTIFY TO THE GOVERNOR, THE CHAIRPERSON OF THE SENATE FINANCE COMMITTEE
AND  THE CHAIRPERSON OF THE ASSEMBLY WAYS AND MEANS COMMITTEE THE ACTUAL
ANNUAL SAVINGS BY THE DEPARTMENT OF CORRECTIONAL SERVICES IN THE  PREVI-
OUS CALENDAR YEAR WHICH IS ATTRIBUTABLE TO THE IMPLEMENTATION OF CHAPTER
SEVEN HUNDRED THIRTY-EIGHT OF THE LAWS OF TWO THOUSAND FOUR, CHAPTER SIX
HUNDRED  FORTY-THREE OF THE LAWS OF TWO THOUSAND FIVE AND THE CHAPTER OF
THE LAWS OF TWO THOUSAND  NINE  WHICH  ADDED  THIS  SUBDIVISION.    SUCH
CERTIFICATION  SHALL  BE  BASED  ON THE DECREASE IN THE NUMBER OF INMATE
ADMISSIONS AND THE REDUCTION IN  INMATE  LENGTH  OF  STAY  FOR  OFFENSES
DEFINED IN ARTICLES TWO HUNDRED TWENTY AND TWO HUNDRED TWENTY-ONE OF THE
PENAL  LAW,  AS  WELL AS AN ESTIMATE OF THE EXTENT, IF ANY, BY WHICH ANY
REDUCTION IN THE CRIME RATE DURING SUCH CALENDAR  YEAR  AND  ANY  CORRE-
SPONDING  REDUCTION IN THE NUMBER OF INMATE ADMISSIONS OR LENGTH OF STAY
DURING SUCH PERIOD WAS ATTRIBUTABLE TO THE PROVISION OF  INCREASED  DRUG
TREATMENT,  OFFENDER SUPERVISION AND RELATED INITIATIVES, ENACTED BY THE
CHAPTER OF THE LAWS OF TWO THOUSAND EIGHT WHICH ADDED THIS  SUBDIVISION;
AND
  B.  AUTHORIZE  AND DIRECT THE TRANSFER OF FUNDS EQUAL TO THE AMOUNT OF
SUCH SAVINGS CERTIFIED UNDER PARAGRAPH (A) OF THIS SUBDIVISION FROM  THE
GENERAL  FUND TO THE CRIME REDUCTION FUND AS AUTHORIZED BY SECTION NINE-
TY-SEVEN-J OF THIS CHAPTER.
  S 15. The state finance law is amended by adding a new section 97-j to
read as follows:
  S 97-J. CRIME REDUCTION FUND. 1. THERE IS HEREBY  ESTABLISHED  IN  THE
CUSTODY  OF  THE  STATE  COMPTROLLER  A  SPECIAL FUND TO BE KNOWN AS THE
"CRIME REDUCTION FUND".
  2. SUCH FUND SHALL CONSIST OF ALL  MONEYS  TRANSFERRED  BY  THE  STATE
COMPTROLLER TO SUCH FUND FROM THE GENERAL FUND PURSUANT TO PARAGRAPH (B)
OF  SUBDIVISION  TWENTY-ONE  OF  SECTION EIGHT OF THIS CHAPTER AND OTHER
MONIES CREDITED, APPROPRIATED OR  TRANSFERRED  TO  SUCH  FUND  FROM  THE
GENERAL FUND AND ANY OTHER FUND OR SOURCE.
  3.  MONEYS  IN THE CRIME REDUCTION FUND SHALL BE AVAILABLE PURSUANT TO
APPROPRIATION BY  THE  LEGISLATURE  TO  THE  OFFICE  OF  ALCOHOLISM  AND
SUBSTANCE  ABUSE  SERVICES,  THE  DIVISION OF PROBATION AND CORRECTIONAL
ALTERNATIVES, THE DIVISION OF  PAROLE,  THE  OFFICE  OF  COURT  ADMINIS-

A. 3984                            10

TRATION,  THE  OFFICE OF CHILDREN AND FAMILY SERVICES AND THE DEPARTMENT
OF  CORRECTIONAL  SERVICES  FOR  PAYMENT  TO   LOCAL   GOVERNMENTS   AND
NOT-FOR-PROFIT  CORPORATIONS. ALL MONEYS FROM THE FUND SHALL BE EXPENDED
FOR ALCOHOL AND SUBSTANCE ABUSE TREATMENT, SERVICES AND EXPENSES RELATED
TO  DRUG TREATMENT ALTERNATIVES TO PRISON AND REENTRY PROGRAMS, AND DRUG
COURT PROGRAMS TO REDUCE OFFENDER RECIDIVISM AND CRIME.
  4. MONEYS IN THE CRIME REDUCTION FUND SHALL BE USED TO SUPPLEMENT, NOT
SUPPLANT, OTHER FUNDING SOURCES.
  S 16. The sum of one hundred twenty million dollars ($120,000,000), or
so much thereof as may be necessary, is hereby appropriated to the crime
reduction fund, established  pursuant  to  section  97-j  of  the  state
finance law, out of any moneys in the state treasury in the general fund
to  the  credit of the state purposes account not otherwise appropriated
for its expenses, in carrying out the provisions of this act.  Such  sum
shall  be  payable  on the audit and warrant of the state comptroller on
vouchers certified or approved in the manner prescribed by law.
  S 17. This act shall take effect immediately; provided, however,  that
the  amendments  to  the  closing  paragraph of subdivision 1 of section
65.00 of the penal law made by section two of this act shall not  affect
the  expiration  of such provisions and shall be deemed to expire there-
with; provided, further, that the amendments to subdivision 1 of section
70.00 of the penal law made by  section  three  of  this  act  shall  be
subject  to the expiration and reversion of such subdivision pursuant to
section 74 of chapter 3 of the laws of 1995, as amended, when upon  such
date the provisions of section four of this act shall take effect.