S T A T E O F N E W Y O R K
________________________________________________________________________
5079
2009-2010 Regular Sessions
I N A S S E M B L Y
February 10, 2009
___________
Introduced by M. of A. LENTOL -- read once and referred to the Committee
on Codes
AN ACT to amend the penal law, in relation to the sentencing of certain
persons convicted of criminal possession of a controlled substance in
the first or second degree
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Subdivision 2 of section 60.05 of the penal law, as amended
by chapter 738 of the laws of 2004, is amended to read as follows:
2. Class A felony. Except as provided in subdivisions three and four
of section 70.06 of this chapter, every person convicted of a 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, OR POSSESSION OF A CONTROLLED SUBSTANCE IN THE FIRST OR SECOND
DEGREE AND IS SENTENCED IN ACCORDANCE WITH SECTION 60.14 OF THIS
ARTICLE.
S 2. The penal law is amended by adding a new section 60.14 to read as
follows:
S 60.14 AUTHORIZED DISPOSITION; CRIMINAL POSSESSION OF A CONTROLLED
SUBSTANCE IN THE FIRST OR SECOND DEGREE.
1. NOTWITHSTANDING THE PROVISIONS OF SUBDIVISION TWO OF SECTION 60.05,
THE COURT MAY, IN THE FURTHERANCE OF JUSTICE, IMPOSE UPON A PERSON
CONVICTED OF THE CLASS A-I FELONY OF CRIMINAL POSSESSION OF A CONTROLLED
SUBSTANCE IN THE FIRST DEGREE AS DEFINED IN SECTION 220.21 OF THIS CHAP-
TER, OR THE CLASS A-II FELONY OF CRIMINAL POSSESSION OF A CONTROLLED
SUBSTANCE IN THE SECOND DEGREE AS DEFINED IN SECTION 220.18 OF THIS
CHAPTER, A SENTENCE AUTHORIZED TO BE IMPOSED HAD THE PERSON BEEN
CONVICTED OF CRIMINAL POSSESSION OF A CONTROLLED SUBSTANCE IN THE THIRD
DEGREE, AS DEFINED IN SECTION 220.16 OF THIS CHAPTER.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD05921-01-9
A. 5079 2
2. SENTENCE MAY BE IMPOSED IN ACCORDANCE WITH SUBDIVISION ONE OF THIS
SECTION WHERE THE COURT DETERMINES THAT UPON CONSIDERATION OF THE
FACTORS SPECIFIED IN SUBDIVISION ONE OF SECTION 210.40 OF THE CRIMINAL
PROCEDURE LAW IMPOSING SUCH A SENTENCE WOULD BE IN THE INTEREST OF
JUSTICE.
3. IN ADDITION TO THE FACTORS SPECIFIED IN SUBDIVISION ONE OF SECTION
210.40 OF THE CRIMINAL PROCEDURE LAW THE COURT MAY CONSIDER THE FOLLOW-
ING FACTORS:
(A) THE DEFENDANT'S CONDUCT, FOR WHICH THE DEFENDANT WAS CONVICTED,
WAS LIMITED TO A SINGLE INCIDENT;
(B) THE DEFENDANT'S CONDUCT WAS ISOLATED FROM THE CRIMINAL CONDUCT OF
OTHERS EXCEPT INSOFAR AS ANOTHER PERSON SO SOLICITED, REQUESTED,
COMMANDED, IMPORTUNED OR INTENTIONALLY AIDED THE DEFENDANT TO RECEIVE,
POSSESS, TRANSPORT AND/OR DELIVER THE CONTROLLED SUBSTANCE, AND THE
DEFENDANT DID SO;
(C) THE DEFENDANT HAD NO OTHER PARTICIPATION OR INTEREST IN OR
CONNECTION TO ANY BROADER CRIMINAL TRANSACTION, CONSPIRACY OR ENTERPRISE
TO WHICH THE DEFENDANT'S CONDUCT RELATED.
4. THE DEFENDANT AND THE DISTRICT ATTORNEY SHALL HAVE AN OPPORTUNITY
TO PRESENT RELEVANT INFORMATION TO ASSIST THE COURT IN MAKING A DETERMI-
NATION PURSUANT TO SUBDIVISIONS TWO AND THREE OF THIS SECTION, AND THE
COURT MAY, IN ITS DISCRETION, CONDUCT A HEARING WITH RESPECT TO ANY
ISSUE BEARING UPON SUCH DETERMINATION.
5. WHEN A COURT DETERMINES TO IMPOSE, OR IS REQUESTED AND DETERMINES
NOT TO IMPOSE, A SENTENCE AUTHORIZED BY THIS SECTION, THE COURT SHALL
MAKE A STATEMENT ON THE RECORD OF THE FACTS AND CIRCUMSTANCES UPON WHICH
SUCH DETERMINATION IS BASED.
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.