BILL NUMBER:S2405

TITLE OF BILL:
An act to amend the criminal procedure law, in relation to a sentence of
parole supervision

PURPOSE:
To amend the Drug Law Reform Act ("DLRA") of 2004 to clarify "sentence
of parole supervision" and in accordance with express language of the
Penal Law.

SUMMARY OF PROVISIONS:
This measure would amend subdivisions one and three of Section 410.91 of
the Criminal Procedure Law to clarify that a determinate sentence of
imprisonment imposed pursuant to Penal Law section 70.70(3)(d) upon an
"eligible defendant," as that term is defined in subdivision two of
section 410.91, may, where the court so directs, be executed as a
sentence of parole supervision.

JUSTIFICATION:
As part of the DLRA, the Legislature added three new sections to the
Penal Law (sections 60.04, 70.70 and 70.71) to replace the existing
indeterminate sentencing scheme for felony drug offenses with a new,
determinate, sentencing scheme. See, L. 2004, c.  738, §§20, 36, effec-
tive 1/13/05. In establishing the available determinate sentences of
imprisonment for non-class A "second felony drug offenders" under the
              

newly added Penal Law section 70.70(3), the Legislature made clear that
where the felony drug offense for which sentence is to be imposed is
also a "specified offense" under CPL section 410.91(5), and the defend-
ant is otherwise eligible therefor, the court may direct that the deter-
minate sentence "be executed as a parole supervision sentence" pursuant
to the procedures prescribed in section 410.91. See, Penal Law
§70.70(3)(d) and CPL 410.91(5) including within the definition of "spec-
ified offense" all class D and class E controlled substance and marijua-
na felony offenses defined in Penal Law Articles 220 and 221. Due to an
apparent oversight, however, the Legislature failed to include in the
DLRA an amendment to CPL section 410.91, which currently defines a
"sentence of parole supervision" only as an indeterminate sentence.
Thus, for example, subdivision one of that section currently provides,
in relevant part, that a "sentence of parole supervision" is an indeter-
minate sentence of imprisonment which may be imposed upon an eligible
defendant, as defined in subdivision two of this section.  Such sentence
shall have a minimum term and a maximum term within the ranges specified
by subdivisions three and four of section 70.06 of the Penal Law. CPL
410.91(1); emphasis added.  Similarly, subdivision three of section
410.91 currently provides, in relevant part, that "when an indeterminate
sentence of imprisonment is imposed upon an eligible defendant for a
specified offense...the court may direct that such sentence be executed
as a sentence of parole supervision" provided the court makes certain
enumerated findings regarding, inter alia, the defendant's drug depend-
ence. See, CPL 410.91(3); emphasis added.  This measure would correct

this legislative oversight by amending subdivisions one and three of
section 410.91 to clarify that, in accordance with the express language
of Penal Law sections 70.70(3)(d), a sentence of parole supervision can
be either an indeterminate sentence of imprisonment or a determinate
sentence of imprisonment imposed upon an "eligible defendant."  The
measure further clarifies that, if the sentence is a determinate parole
supervision sentence, the term of such sentence must be in accordance
with the applicable provisions of Penal Law section 70.70(3)(b)(iii) and
(iv) establishing the term of a determinate sentence for a second felony
drug offender convicted of a class D or class E felony, respectively,
where the offender's prior felony conviction was not a violent felony.

LEGISLATIVE HISTORY:

2008 - S.3910 - Referred to Codes
(Office of Court Administration Departmental- Internal #24 - 2007)
2007: S.3910 - Passed Senate

FISCAL IMPLICATIONS:
None.

EFFECTIVE DATE:
Immediately.