S T A T E O F N E W Y O R K
________________________________________________________________________
1064
2009-2010 Regular Sessions
I N S E N A T E
January 23, 2009
___________
Introduced by Sen. KRUGER -- read twice and ordered printed, and when
printed to be committed to the Committee on Codes
AN ACT to amend the penal law, the criminal procedure law and the judi-
ciary law, in relation to increasing the minimum sentence for a second
violent felony offense; and to repeal section 70.08 of the penal law
relating thereto
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Subdivision 6 of section 60.05 of the penal law, as amended
by chapter 410 of the laws of 1979, is amended to read as follows:
6. Multiple felony offender. When the court imposes sentence upon a
[second] PERSISTENT 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.
S 2. Subdivision 2 of section 60.10 of the penal law, as amended by
chapter 411 of the laws of 1979, is amended to read as follows:
2. Subdivision one of this section shall apply when sentencing a juve-
nile offender notwithstanding the provisions of any other law that deals
with the authorized sentence for persons who are not juvenile offenders.
Provided, however, that the limitation prescribed by this section shall
not be deemed or construed to bar use of a conviction of a juvenile
offender, other than a juvenile offender who has been adjudicated a
youthful offender pursuant to section 720.20 of the criminal procedure
law, as a previous or predicate felony offender under section 70.04,
70.06[, 70.08] or 70.10, when sentencing a person who commits a felony
after he has reached the age of sixteen.
S 3. Section 70.04 of the penal law, as added by chapter 481 of the
laws of 1978, subparagraph (iii) of paragraph (b) of subdivision 1 as
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD06558-01-9
S. 1064 2
amended by chapter 471 of the laws of 1980 and subdivisions 2 and 3 as
amended by chapter 3 of the laws of 1995, is amended to read as follows:
S 70.04 Sentence of imprisonment for [second] PERSISTENT violent felony
offender.
1. Definition of second violent felony offender.
(a) A [second] PERSISTENT violent felony offender is a person who
stands convicted of a violent felony offense as defined in subdivision
one of section 70.02 after having previously been subjected to a predi-
cate violent felony conviction as defined in paragraph (b) of this
subdivision.
(b) For the purpose of determining whether a prior conviction is a
predicate violent felony conviction the following criteria shall apply:
(i) The conviction must have been in this state of a class A felony
(other than one defined in article two hundred twenty) or of a violent
felony offense as defined in subdivision one of section 70.02, or of an
offense defined by the penal law in effect prior to September first,
nineteen hundred sixty-seven, which includes all of the essential
elements of any such felony, or in any other jurisdiction of an offense
which includes all of the essential elements of any such felony for
which a sentence to a term of imprisonment in excess of one year or a
sentence of death was authorized and is authorized in this state irre-
spective of whether such sentence was imposed;
(ii) Sentence upon such prior conviction must have been imposed before
commission of the present felony;
(iii) Suspended sentence, suspended execution of sentence, a sentence
of probation, a sentence of conditional discharge or of unconditional
discharge, and a sentence of certification to the care and custody of
the division of substance abuse services, shall be deemed to be a
sentence;
(iv) Except as provided in subparagraph (v) of this paragraph,
sentence must have been imposed not more than ten years before commis-
sion of the felony of which the defendant presently stands convicted;
(v) In calculating the ten year period under subparagraph (iv), any
period of time during which the person was incarcerated for any reason
between the time of commission of the previous felony and the time of
commission of the present felony shall be excluded and such ten year
period shall be extended by a period or periods equal to the time served
under such incarceration;
(vi) An offense for which the defendant has been pardoned on the
ground of innocence shall not be deemed a predicate violent felony
conviction.
2. Authorized sentence. When the court has found, pursuant to the
provisions of the criminal procedure law, that a person is a [second]
PERSISTENT violent felony offender, the court must impose a determinate
sentence of imprisonment which shall be [in whole or half years. Except
where sentence is imposed in accordance with the provisions of section
70.10, the term of such sentence must be in accordance with the
provisions of subdivision three of this section.
3. Term of sentence. The term of a determinate sentence for a second
violent felony offender must be fixed by the court as follows:
(a) For a class B felony, the term must be at least ten years and must
not exceed twenty-five years;
(b) For a class C felony, the term must be at least seven years and
must not exceed fifteen years; and
(c) For a class D felony, the term must be at least five years and
must not exceed seven years.
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(d) For a class E felony, the term must be at least three years and
must not exceed four years] AT LEAST TWENTY-FIVE YEARS.
S 4. Subdivisions 2 and 3 of section 70.04 of the penal law, as added
by chapter 481 of the laws of 1978, paragraph (d) of subdivision 3 as
added by chapter 233 of the laws of 1980, are amended to read as
follows:
2. Authorized sentence. When the court has found, pursuant to the
provisions of the criminal procedure law, that a person is a [second]
PERSISTENT violent felony offender, the court must impose an indetermi-
nate sentence of imprisonment, THE MAXIMUM TERM OF WHICH SHALL BE LIFE
IMPRISONMENT, AND THE MINIMUM TERM OF WHICH SHALL BE TWENTY-FIVE YEARS.
[Except where sentence is imposed in accordance with the provisions of
section 70.10, the maximum term of such sentence must be in accordance
with the provisions of subdivision three of this section and the minimum
period of imprisonment under such sentence must be in accordance with
subdivision four of this section.
3. Maximum term of sentence. The maximum term of an indeterminate
sentence for a second violent felony offender must be fixed by the court
as follows:
(a) For a class B felony, the term must be at least twelve years and
must not exceed twenty-five years;
(b) For a class C felony, the term must be at least eight years and
must not exceed fifteen years; and
(c) For a class D felony, the term must be at least five years and
must not exceed seven years.
(d) For a class E felony, the term must be at least four years.]
S 5. Section 70.08 of the penal law is REPEALED.
S 6. Paragraph (a) of subdivision 1 of section 70.10 of the penal law,
as amended by chapter 481 of the laws of 1978, is amended to read as
follows:
(a) A persistent felony offender is a person[, other than a persist-
ent violent felony offender as defined in section 70.08,] who stands
convicted of a felony after having previously been convicted of [two]
ONE or more felonies, as provided in paragraphs (b) and (c) of this
subdivision.
S 7. Subdivision 2-a of section 70.25 of the penal law, as amended by
section 40 of chapter 7 of the laws of 2007, is amended to read as
follows:
2-a. When an indeterminate or determinate sentence of imprisonment is
imposed pursuant to section 70.04, 70.06, [70.08,] 70.10, subdivision
three or four of section 70.70, subdivision three or four of section
70.71 or subdivision five of section 70.80 of this article, and such
person is subject to an undischarged indeterminate or determinate
sentence of imprisonment imposed prior to the date on which the present
crime was committed, the court must impose a sentence to run consec-
utively with respect to such undischarged sentence.
S 8. Subdivision 2-a of section 70.25 of the penal law, as amended by
section 41 of chapter 7 of the laws of 2007, is amended to read as
follows:
2-a. When an indeterminate or determinate sentence of imprisonment is
imposed pursuant to section 70.04, 70.06, [70.08,] 70.10, subdivision
three or four of section 70.70, subdivision three or four of section
70.71 or subdivision five of section 70.80 of this article, and such
person is subject to an undischarged indeterminate sentence of imprison-
ment imposed prior to the date on which the present crime was committed,
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the court must impose a sentence to run consecutively with respect to
such undischarged sentence.
S 9. Section 215.10 of the criminal procedure law, as added by chapter
837 of the laws of 1986, is amended to read as follows:
S 215.10 Referral of selected felonies to dispute resolution.
Upon or after arraignment in a local criminal court upon a felony
complaint, or upon or after arraignment in a superior court upon an
indictment or superior court information, and before final disposition
thereof, the court, with the consent of the people and of the defendant,
and with reasonable notice to the victim and an opportunity for the
victim to be heard, may order that the action be adjourned in contem-
plation of dismissal, for the purpose of referring the action to a
community dispute center established pursuant to article twenty-one-A of
the judiciary law. Provided, however, that the court may not order any
action adjourned in contemplation of dismissal if the defendant is
charged therein with: (i) a class A felony, or (ii) a violent felony
offense as defined in section 70.02 of the penal law, or (iii) any drug
offense as defined in article two hundred twenty of the penal law, or
(iv) a felony upon the conviction of which defendant must be sentenced
as a second felony offender[, a second violent felony offender,] or a
persistent violent felony offender pursuant to [sections] SECTION
70.06[,] OR 70.04 [and 70.08] of the penal law, or a felony upon the
conviction of which defendant may be sentenced as a persistent felony
offender pursuant to section 70.10 of such law.
S 10. Subdivision 1 of section 400.16 of the criminal procedure law,
as added by chapter 481 of the laws of 1978, is amended to read as
follows:
1. Applicability. The provisions of this section govern the proce-
dure that must be followed in any case where it appears that a defendant
who stands convicted of a violent felony offense as defined in subdivi-
sion one of section 70.02 of the penal law has previously been subjected
to two or more predicate violent felony convictions as defined in para-
graph (b) of subdivision one of section 70.04[, and may be a persistent
violent felony offender as defined in section 70.08] of the penal law.
S 11. Paragraph (f) of subdivision 4 of section 849-b of the judiciary
law, as amended by chapter 837 of the laws of 1986, is amended to read
as follows:
(f) it does not accept for dispute resolution any defendant who is
named in a filed felony complaint, superior court information, or
indictment, charging: (i) a class A felony, or (ii) a violent felony
offense as defined in section 70.02 of the penal law, or (iii) any drug
offense as defined in article two hundred twenty of the penal law, or
(iv) a felony upon the conviction of which defendant must be sentenced
as a second felony offender[, a second violent felony offender,] or a
persistent violent felony offender pursuant to [sections] SECTION
70.06[,] OR 70.04 [and 70.08] of the penal law, or a felony upon the
conviction of which defendant may be sentenced as a persistent felony
offender pursuant to section 70.10 of such law.
S 12. This act shall take effect on the first of November next
succeeding the date on which it shall have become a law and shall apply
to offenses committed on or after such effective date; provided that the
amendments to subdivisions 2 and 3 of section 70.04 of the penal law
made by section three of this act shall be subject to the expiration and
reversion of such subdivisions pursuant to subdivision d of 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; and provided
S. 1064 5
further that the amendments to subdivision 2-a of section 70.25 of the
penal law made by section seven of this act shall be subject to the
expiration and reversion of such subdivision pursuant to subdivision d
of section 74 of chapter 3 of the laws of 1995, as amended, when upon
such date the provisions of section eight of this act shall take effect.
