senate Bill S643A

2011-2012 Legislative Session

Establishes crime of aggravated criminal conduct

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Archive: Last Bill Status - In Committee


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor

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Actions

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Jun 12, 2012 print number 643a
amend (t) and recommit to codes
Jan 04, 2012 referred to codes
returned to senate
died in assembly
Jun 16, 2011 referred to codes
delivered to assembly
passed senate
Jun 01, 2011 advanced to third reading
May 25, 2011 2nd report cal.
May 24, 2011 1st report cal.802
Jan 05, 2011 referred to codes

Bill Amendments

Original
A (Active)
Original
A (Active)

Co-Sponsors

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S643 - Bill Details

Current Committee:
Law Section:
Criminal Procedure Law
Laws Affected:
Amd §§180.60 & 190.30, CP L; add §240.75, Pen L
Versions Introduced in 2009-2010 Legislative Session:
S2105

S643 - Bill Texts

view summary

Establishes crime of aggravated criminal conduct to provide more severe penalties for persons who have committed 3 or more qualifying misdemeanors or felonies within ten years of the present class A misdemeanor offense.

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BILL NUMBER:S643

TITLE OF BILL:
An act
to amend the penal law and the criminal procedure law, in relation
to sentence for persistent misdemeanor offenders

SUMMARY OF PROVISIONS:
Adds a new section 70.16 to the penal law which
defines a persistent misdemeanor offender as a person who stands
convicted of a misdemeanor after having previously been convicted of
five or more crimes within the last five years (excluding time during
which the defendant was incarcerated). When sentencing a persistent
misdemeanor offender, the court must impose a definite sentence of
imprisonment of no less than thirty days, and may impose any sentence
authorized by law other than and in addition to such sentence of
imprisonment.

Adds new section 400.14 to the criminal procedure law which addresses
the procedure for determining whether a defendant should be sentenced
as a persistent misdemeanor offender. The court shall consider the
history and character of the defendant and the nature and
circumstances of his criminal conduct, as well as the public
interest, when determining the length of the definite sentence to be
imposed. The court may order a hearing to determine whether a
persistent misdemeanor offender sentence should be imposed.

PURPOSE AND JUSTIFICATION:
Creates a new classification of "persistent
misdemeanor offender" for the purposes of sentencing, and prescribes
the sentences therefor.

Misdemeanors are serious offenses. Persistent misdemeanor offenders
should face strict and mandatory penalties for their illegal
behavior. More severe punishment may serve as a deterrent to future
criminal activity and will guarantee our citizens that persistent
misdemeanor offenses will not be treated lightly.

PRIOR LEGISLATIVE HISTORY:
2009-10: S.2105 - CODES
2007-08 - S.2050 - CODES
2005-06 - S.2884 - CODES
2004 - S.2050/A.5842 - CODES/Codes
2002 - S.2616/A.633-A - CODES/Codes
2000 - S.2943/A.1002 - RULES/Codes
1999 - S.2943/A.1002 - PASSED SENATE/Codes
1998 - S.252/A.173 - CODES/Codes
1996 - S.489/A.3782 - CODES/Codes

FISCAL IMPLICATIONS:
Undetermined.

LOCAL FISCAL IMPLICATIONS:
Undetermined.

EFFECTIVE DATE:


First day of November next succeeding the date on
which it shall have become a law.

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

                                   643

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 5, 2011
                               ___________

Introduced  by  Sens.  GOLDEN, DeFRANCISCO, JOHNSON, RANZENHOFER -- read
  twice and ordered printed, and when printed to  be  committed  to  the
  Committee on Codes

AN  ACT  to  amend  the  penal  law  and  the criminal procedure law, in
  relation to sentence for persistent misdemeanor offenders

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

  Section  1.  The penal law is amended by adding a new section 70.16 to
read as follows:
S 70.16 SENTENCE OF IMPRISONMENT FOR PERSISTENT MISDEMEANOR OFFENDER.
  1. DEFINITION OF PERSISTENT MISDEMEANOR OFFENDER.
  (A) A PERSISTENT MISDEMEANOR OFFENDER IS A PERSON WHO STANDS CONVICTED
OF A MISDEMEANOR AFTER HAVING PREVIOUSLY BEEN CONVICTED OF FIVE OR  MORE
CRIMES, AS PROVIDED IN PARAGRAPH (B) OF THIS SUBDIVISION.
  (B) A PREVIOUS CRIMINAL CONVICTION WITHIN THE MEANING OF PARAGRAPH (A)
OF THIS SUBDIVISION IS A CONVICTION OF A CRIME IN THIS STATE, PROVIDED:
  (I) THAT A SENTENCE FOR SUCH CONVICTION WAS IMPOSED THEREFOR; AND
  (II) THAT THE DEFENDANT WAS SENTENCED FOR SUCH CONVICTION PRIOR TO THE
DATE OF COMMISSION OF THE PRESENT MISDEMEANOR; AND
  (III)  SUBJECT  TO  THE  PERIOD  OF  TIME  EXCLUDED  PURSUANT  TO  THE
PROVISIONS OF PARAGRAPH (C) OF THIS SUBDIVISION, THAT THE DEFENDANT  WAS
SENTENCED  FOR SUCH CONVICTION NO MORE THAN FIVE YEARS PRIOR TO THE DATE
OF COMMISSION OF THE PRESENT MISDEMEANOR; AND
  (IV) THAT THE DEFENDANT WAS NOT PARDONED ON THE GROUNDS OF INNOCENCE.
  (C) ANY PERIOD OF TIME DURING WHICH THE DEFENDANT WAS INCARCERATED FOR
ANY REASON BETWEEN THE DATE OF COMMISSION OF THE PREVIOUS CRIME AND  THE
DATE  OF  COMMISSION  OF THE PRESENT MISDEMEANOR SHALL NOT COUNT AS TIME
WHICH HAS ELAPSED IN DETERMINING THE FIVE YEAR PERIOD WITHIN  WHICH  THE
DEFENDANT MUST HAVE BEEN SENTENCED FOR THE PREVIOUS CRIME UNDER SUBPARA-
GRAPH  (III) OF PARAGRAPH (B) OF THIS SUBDIVISION; SUCH FIVE YEAR PERIOD

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD04233-01-1

S. 643                              2

SHALL BE EXTENDED BY SUCH PERIOD OR PERIODS OF TIME SERVED IN INCARCERA-
TION.
  (D) THE TERM "SENTENCE", WHEN REFERRING TO THE SENTENCE FOR A PREVIOUS
CRIMINAL CONVICTION WITHIN THE MEANING OF PARAGRAPH (B) OF THIS SUBDIVI-
SION,  SHALL  INCLUDE  BUT  NOT  BE  LIMITED TO: A SUSPENDED SENTENCE; A
SUSPENDED EXECUTION OF SENTENCE; A SENTENCE OF PROBATION; A SENTENCE  OF
CONDITIONAL  DISCHARGE  OR  OF  UNCONDITIONAL  DISCHARGE;  A SENTENCE OF
CERTIFICATION TO THE CARE AND CUSTODY OF THE OFFICE  OF  ALCOHOLISM  AND
SUBSTANCE  ABUSE  SERVICES;  OR  A SENTENCE OF ANY COMBINATION OF ONE OR
MORE OF THE FOREGOING SENTENCES.
  2. AUTHORIZED SENTENCE. WHEN THE COURT  HAS  FOUND,  PURSUANT  TO  THE
PROVISIONS  OF THE CRIMINAL PROCEDURE LAW, THAT A PERSON IS A PERSISTENT
MISDEMEANOR OFFENDER, THE COURT  MUST  IMPOSE  A  DEFINITE  SENTENCE  OF
IMPRISONMENT,  THE  TERM OF WHICH SHALL BE FIXED BY THE COURT AT NO LESS
THAN THIRTY DAYS AND NO MORE THAN ONE YEAR, AND MAY IMPOSE ANY  SENTENCE
AUTHORIZED  BY LAW OTHER THAN AND IN ADDITION TO SUCH SENTENCE OF IMPRI-
SONMENT. IN FIXING THE LENGTH OF THE TERM OF  SUCH  DEFINITE  PERIOD  OF
IMPRISONMENT TO WHICH THE COURT MUST SENTENCE THE DEFENDANT UPON A FIND-
ING  THAT  SUCH  PERSON  IS A PERSISTENT MISDEMEANOR OFFENDER, THE COURT
SHALL CONSIDER THE HISTORY AND CHARACTER OF THE DEFENDANT AND THE NATURE
AND CIRCUMSTANCES OF SUCH PERSON'S CRIMINAL CONDUCT AND  SHALL  SENTENCE
THE DEFENDANT TO A TERM HAVING A LENGTH, WITHIN THE FOREGOING PRESCRIBED
LIMITS, THAT WILL BEST SERVE THE PUBLIC INTEREST.
  S  2.  The  criminal  procedure law is amended by adding a new section
400.14 to read as follows:
S  400.14    PROCEDURE  FOR  DETERMINING  WHETHER  DEFENDANT  SHOULD  BE
               SENTENCED AS A PERSISTENT MISDEMEANOR OFFENDER.
  1.  APPLICABILITY. THE PROVISIONS OF THIS SECTION GOVERN THE PROCEDURE
THAT MUST BE FOLLOWED IN ORDER  TO  IMPOSE  THE  PERSISTENT  MISDEMEANOR
OFFENDER  SENTENCE AUTHORIZED BY SUBDIVISION TWO OF SECTION 70.16 OF THE
PENAL LAW. SUCH SENTENCE MAY NOT BE IMPOSED UNLESS, BASED UPON  EVIDENCE
IN  THE RECORD OF A HEARING HELD PURSUANT TO THIS SECTION, THE COURT (A)
HAS FOUND THAT THE DEFENDANT IS A  PERSISTENT  MISDEMEANOR  OFFENDER  AS
DEFINED  IN  SUBDIVISION  ONE OF SECTION 70.16 OF THE PENAL LAW, AND (B)
HAS CONSIDERED THE HISTORY AND CHARACTER OF THE DEFENDANT AND THE NATURE
AND CIRCUMSTANCES OF HIS OR HER CRIMINAL CONDUCT, AS WELL AS THE  PUBLIC
INTEREST,  IN  DETERMINING  THE  LENGTH  OF  THE DEFINITE SENTENCE TO BE
IMPOSED WITHIN THE LIMITS PRESCRIBED BY SUBDIVISION TWO OF SECTION 70.16
OF THE PENAL LAW.
  2. AUTHORIZATION FOR HEARING. WHEN INFORMATION AVAILABLE TO THE  COURT
PRIOR  TO SENTENCING INDICATES THAT THE DEFENDANT IS A PERSISTENT MISDE-
MEANOR OFFENDER, AND WHEN, IN THE OPINION OF THE  COURT,  THE  AVAILABLE
INFORMATION SHOWS THAT A PERSISTENT MISDEMEANOR OFFENDER SENTENCE MAY BE
WARRANTED,  THE  COURT  MAY ORDER A HEARING TO DETERMINE (A) WHETHER THE
DEFENDANT IS IN FACT A PERSISTENT MISDEMEANOR OFFENDER, AND (B)  IF  SO,
WHETHER A PERSISTENT MISDEMEANOR OFFENDER SENTENCE SHOULD BE IMPOSED.
  3.  ORDER  DIRECTING A HEARING. AN ORDER DIRECTING A HEARING TO DETER-
MINE WHETHER THE DEFENDANT SHOULD BE SENTENCED AS A PERSISTENT MISDEMEA-
NOR OFFENDER MUST BE FILED WITH THE CLERK OF THE COURT AND MUST  SPECIFY
A DATE FOR THE HEARING NOT LESS THAN TWENTY DAYS FROM THE DATE THE ORDER
IS  FILED.  THE  COURT MUST ANNEX TO AND FILE WITH THE ORDER A STATEMENT
SETTING FORTH THE FOLLOWING:
  (A) THE DATES AND PLACES OF THE PREVIOUS CONVICTIONS WHICH RENDER  THE
DEFENDANT  A  PERSISTENT  MISDEMEANOR OFFENDER AS DEFINED IN SUBDIVISION
ONE OF SECTION 70.16 OF THE PENAL LAW; AND

S. 643                              3

  (B) THE FACTORS IN  THE  DEFENDANT'S  BACKGROUND  AND  PRIOR  CRIMINAL
CONDUCT,  AS WELL AS THE PUBLIC INTEREST, WHICH THE COURT DEEMS RELEVANT
FOR THE PURPOSE OF SENTENCING THE DEFENDANT AS A PERSISTENT  MISDEMEANOR
OFFENDER.
  4.  NOTICE  OF HEARING. UPON RECEIPT OF THE ORDER AND STATEMENT OF THE
COURT, THE CLERK OF THE COURT MUST SEND  A  NOTICE  OF  HEARING  TO  THE
DEFENDANT,  HIS  OR  HER  COUNSEL AND THE DISTRICT ATTORNEY. SUCH NOTICE
MUST SPECIFY THE TIME AND PLACE OF THE HEARING AND  THE  FACT  THAT  THE
PURPOSE  OF  THE  HEARING  IS  TO DETERMINE WHETHER OR NOT THE DEFENDANT
SHOULD BE SENTENCED AS A PERSISTENT MISDEMEANOR  OFFENDER.  EACH  NOTICE
REQUIRED  TO  BE  SENT  HEREUNDER  MUST  BE ACCOMPANIED BY A COPY OF THE
STATEMENT OF THE COURT.
  5. BURDEN AND STANDARD OF  PROOF;  EVIDENCE.  UPON  ANY  HEARING  HELD
PURSUANT TO THIS SECTION THE BURDEN OF PROOF IS UPON THE PEOPLE. A FIND-
ING  THAT THE DEFENDANT IS A PERSISTENT MISDEMEANOR OFFENDER, AS DEFINED
IN SUBDIVISION ONE OF SECTION 70.16 OF THE PENAL LAW, MUST BE BASED UPON
PROOF BEYOND A REASONABLE DOUBT BY EVIDENCE ADMISSIBLE UNDER  THE  RULES
APPLICABLE TO THE TRIAL OF THE ISSUE OF GUILT. MATTERS PERTAINING TO THE
DEFENDANT'S  HISTORY  AND  CHARACTER AND THE NATURE AND CIRCUMSTANCES OF
HIS OR HER CRIMINAL CONDUCT, AS WELL AS  THE  PUBLIC  INTEREST,  MAY  BE
ESTABLISHED BY ANY RELEVANT EVIDENCE, NOT LEGALLY PRIVILEGED, REGARDLESS
OF ADMISSIBILITY UNDER THE EXCLUSIONARY RULES OF EVIDENCE, AND THE STAN-
DARD  OF  PROOF WITH RESPECT TO SUCH MATTERS SHALL BE A PREPONDERANCE OF
THE EVIDENCE.
  6. CONSTITUTIONALITY OF PRIOR CONVICTIONS. A  PREVIOUS  CONVICTION  IN
THIS  OR  ANY  OTHER JURISDICTION WHICH WAS OBTAINED IN VIOLATION OF THE
RIGHTS OF THE DEFENDANT UNDER THE APPLICABLE PROVISIONS OF THE CONSTITU-
TION OF THE UNITED STATES MAY NOT BE COUNTED IN DETERMINING WHETHER  THE
DEFENDANT  IS  A  PERSISTENT MISDEMEANOR OFFENDER. THE DEFENDANT MAY, AT
ANY TIME DURING THE COURSE OF THE HEARING HEREUNDER CONTROVERT AN  ALLE-
GATION  WITH RESPECT TO SUCH CONVICTION IN THE STATEMENT OF THE COURT ON
THE GROUNDS THAT THE CONVICTION WAS UNCONSTITUTIONALLY OBTAINED.   FAIL-
URE  TO  CHALLENGE THE PREVIOUS CONVICTION IN THE MANNER PROVIDED HEREIN
CONSTITUTES A WAIVER ON THE PART OF THE DEFENDANT OF ANY  ALLEGATION  OF
UNCONSTITUTIONALITY  UNLESS GOOD CAUSE BE SHOWN FOR SUCH FAILURE TO MAKE
TIMELY CHALLENGE.
  7. PRELIMINARY EXAMINATION. WHEN THE DEFENDANT APPEARS FOR THE HEARING
THE COURT MUST ASK HIM OR HER WHETHER HE OR SHE WISHES TO CONTROVERT ANY
ALLEGATION MADE IN THE STATEMENT PREPARED BY THE COURT, AND  WHETHER  HE
OR SHE WISHES TO PRESENT EVIDENCE ON THE ISSUE OF WHETHER HE OR SHE IS A
PERSISTENT  MISDEMEANOR  OFFENDER OR ON THE QUESTION OF HIS OR HER BACK-
GROUND AND CRIMINAL CONDUCT. IF THE DEFENDANT WISHES TO  CONTROVERT  ANY
ALLEGATION  IN  THE  STATEMENT  OF THE COURT, HE OR SHE MUST SPECIFY THE
PARTICULAR ALLEGATION OR ALLEGATIONS HE OR SHE WISHES TO CONTROVERT.  IF
HE OR SHE WISHES TO PRESENT EVIDENCE IN HIS OR HER OWN BEHALF, HE OR SHE
MUST  SPECIFY THE NATURE OF SUCH EVIDENCE. UNCONTROVERTED ALLEGATIONS IN
THE STATEMENT OF THE COURT ARE DEEMED EVIDENCE IN THE RECORD.
  8. CASES WHERE FURTHER HEARING IS NOT REQUIRED.  WHERE  THE  UNCONTRO-
VERTED  ALLEGATIONS  IN  THE  STATEMENT  OF  THE COURT ARE SUFFICIENT TO
SUPPORT A FINDING THAT THE DEFENDANT IS A PERSISTENT MISDEMEANOR  OFFEN-
DER  AND  THE COURT IS SATISFIED THAT (A) THE UNCONTROVERTED ALLEGATIONS
WITH RESPECT TO THE DEFENDANT'S BACKGROUND AND THE NATURE OF HIS OR  HER
PRIOR CRIMINAL CONDUCT, AS WELL AS THE PUBLIC INTEREST, WARRANT SENTENC-
ING  THE  DEFENDANT  AS  A  PERSISTENT MISDEMEANOR OFFENDER, AND (B) THE
DEFENDANT EITHER HAS NO RELEVANT EVIDENCE TO PRESENT OR THE FACTS  WHICH
COULD BE ESTABLISHED THROUGH THE EVIDENCE OFFERED BY THE DEFENDANT WOULD

S. 643                              4

NOT  AFFECT THE COURT'S DECISION, THE COURT MAY ENTER A FINDING THAT THE
DEFENDANT IS A PERSISTENT MISDEMEANOR OFFENDER AND SENTENCE HIM  OR  HER
IN ACCORDANCE WITH THE PROVISIONS OF SUBDIVISION TWO OF SECTION 70.16 OF
THE PENAL LAW.
  9.  CASES  WHERE  FURTHER  HEARING  IS  REQUIRED.  WHERE THE DEFENDANT
CONTROVERTS AN ALLEGATION IN THE STATEMENT OF THE COURT AND  THE  UNCON-
TROVERTED  ALLEGATIONS IN SUCH STATEMENT ARE NOT SUFFICIENT TO SUPPORT A
FINDING THAT THE DEFENDANT  IS  A  PERSISTENT  MISDEMEANOR  OFFENDER  AS
DEFINED  IN  SUBDIVISION ONE OF SECTION 70.16 OF THE PENAL LAW, OR WHERE
THE UNCONTROVERTED ALLEGATIONS WITH RESPECT TO THE  DEFENDANT'S  HISTORY
AND  THE  NATURE  OF  HIS  OR HER PRIOR CRIMINAL CONDUCT, AS WELL AS THE
PUBLIC INTEREST, WARRANT SENTENCING HIM OR  HER  TO  A  LESSER  TERM  OF
IMPRISONMENT  AS  A  PERSISTENT  MISDEMEANOR  OFFENDER,  WITHIN THE TERM
LIMITS PRESCRIBED BY LAW, OR WHERE THE DEFENDANT HAS OFFERED TO  PRESENT
EVIDENCE  TO  ESTABLISH  FACTS THAT WOULD AFFECT THE COURT'S DECISION ON
THE QUESTION OF WHETHER A PERSISTENT MISDEMEANOR  OFFENDER  SENTENCE  IS
WARRANTED, THE COURT MAY FIX A DATE FOR A FURTHER HEARING.  SUCH HEARING
SHALL  BE BEFORE THE COURT WITHOUT A JURY AND EITHER PARTY MAY INTRODUCE
EVIDENCE WITH RESPECT TO  THE  CONTROVERTED  ALLEGATIONS  OR  ANY  OTHER
MATTER  RELEVANT  TO THE ISSUE OF WHETHER OR NOT THE DEFENDANT SHOULD BE
SENTENCED AS A PERSISTENT MISDEMEANOR OFFENDER AND ON THE ISSUE  OF  THE
LENGTH  OF  SUCH  SENTENCE.   AT THE CONCLUSION OF THE HEARING THE COURT
MUST MAKE A FINDING AS TO WHETHER OR NOT THE DEFENDANT IS  A  PERSISTENT
MISDEMEANOR  OFFENDER  AND,  UPON A FINDING THAT HE OR SHE IS SUCH, MUST
THEN MAKE SUCH FINDINGS OF FACT AS IT DEEMS RELEVANT TO THE QUESTION  OF
WHAT LENGTH OF PERSISTENT MISDEMEANOR OFFENDER INCARCERATION SENTENCE IS
WARRANTED,  AND WHAT OTHER SENTENCE AUTHORIZED BY LAW SHOULD BE IMPOSED.
IF THE COURT FINDS THAT THE DEFENDANT IS A PERSISTENT MISDEMEANOR OFFEN-
DER, IT MAY SENTENCE THE DEFENDANT IN ACCORDANCE WITH THE PROVISIONS  OF
SUBDIVISION TWO OF SECTION 70.16 OF THE PENAL LAW.
  10. TERMINATION OF HEARING. AT ANY TIME DURING THE PENDENCY OF A HEAR-
ING  PURSUANT  TO THIS SECTION, THE COURT MAY, IN ITS DISCRETION, TERMI-
NATE THE HEARING WITHOUT MAKING ANY FINDING.  IN SUCH CASE,  UNLESS  THE
COURT  RECOMMENCES THE PROCEEDINGS AND MAKES THE NECESSARY FINDINGS, THE
DEFENDANT MAY NOT BE SENTENCED AS A PERSISTENT MISDEMEANOR OFFENDER.
  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.

Co-Sponsors

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S643A (ACTIVE) - Bill Details

Current Committee:
Law Section:
Criminal Procedure Law
Laws Affected:
Amd §§180.60 & 190.30, CP L; add §240.75, Pen L
Versions Introduced in 2009-2010 Legislative Session:
S2105

S643A (ACTIVE) - Bill Texts

view summary

Establishes crime of aggravated criminal conduct to provide more severe penalties for persons who have committed 3 or more qualifying misdemeanors or felonies within ten years of the present class A misdemeanor offense.

view sponsor memo
BILL NUMBER:S643A

TITLE OF BILL:

An act
to amend the criminal procedure law and the penal law, in relation to
aggravated criminal conduct

PURPOSE:

To enhance public safety by providing appropriately severe punishment
for those who repeatedly commit misdemeanor crimes. Specifically, the
bill would strengthen existing law by creating the crime of
aggravated criminal conduct, thereby enabling courts to impose felony
sanctions on persistent misdemeanor offenders.

SUMMARY OF PROVISIONS:

Sections 1 and 3 of the bill would amend section 180.60(8) and
190.30(3-a) of the Criminal Procedure Law respectively, to include
criminal history records among the types of records that are
admissible in hearings upon felony complaints and grand jury
proceedings. In order to be admissible, such records must be
certified by a person designated by the commissioner of the division
of criminal justice services as the person to certify such records.

Section 2 would amend section 190.32(2-a) of the Criminal Procedure
Law to provide that electronic transmissions of criminal history
records are admissible in hearings upon felony complaints and grand
jury proceedings under certain conditions.

Section 4 would amend the Penal Law by adding a new section 240.75,
which would create the new crime of Aggravated Criminal Conduct, an E
felony. A person would commit the Crime of Aggravated Criminal
Conduct when he or she: (1) commits an A misdemeanor defined in the
Penal Law;
and (2) has been previously subjected to three or more qualifying
misdemeanor or felony convictions within the preceding ten years.

For purposes of determining whether a person has been previously
subjected to three or more qualifying misdemeanor or felony
convictions within the preceding ten years, the following conditions
would apply:
(1) each conviction must have been for a felony, a class A misdemeanor
defined in the Penal Law, or a crime in another jurisdiction for
which a sentence of at least one year was and is authorized in New
York; (2) sentence must have been imposed on each of the prior
convictions before commission of the present misdemeanor offense; (3)
a suspended sentence,
suspended execution of sentence, sentence of probation, sentence of
parole supervision, and sentence of conditional or unconditional

discharge are deemed to be a sentence; (4) each sentence must have
been imposed not more than ten years before the commission of the
present offense except that periods of time spent in confinement toll
the ten year limitation; (5) an offense for which a defendant has
been pardoned on the ground of innocence is not deemed to be a
previous conviction;
and (6) prior convictions for which concurrent sentences were imposed
are deemed to be only one conviction.

Section 5 provides that the act shall take effect immediately.

EXISTING LAW:

Under current law, although offenders who commit multiple felonies
reasonably receive enhanced penalties for their repeated felony
conduct, offenders who commit multiple misdemeanors generally do not.

JUSTIFICATION:

Public safety is better protected and promoted by requiring persistent
offenders to serve enhanced sentences. While there have been historic
decreases in crime across New York State since 1995, repeat
misdemeanants continue to plague our streets and communities, often
receiving little or no punishment for the offenses they commit. While
current law adequately recognizes the harm caused by repeat felony
offenders by mandating enhanced penalties, it does not adequately
address the problem of misdemeanor recidivism.

A significant majority of those convicted of misdemeanors every year
have at least one prior conviction and disturbingly large minority
had more than ten prior convictions. Although some of these offenders
have criminal histories dating back to the 1970s, few have received
meaningful sanctions. Regrettably, current law has afforded these
offenders a license to commit misdemeanor offenses virtually without
penalty. For many of these offenders, crime is a way of life. Their
rap sheets are their resumes and although their crimes are not
traditional felony crimes, the constant and repetitive nature of
their offenses can be equally damaging to society.

Law-abiding citizens should not be forced to endure the crimes of
chronic misdemeanor offenders. The bill, therefore, creates the new
felony offense of aggravated criminal conduct and punishes
appropriately those who repeatedly commit misdemeanor offenses. Under
the bill, an offender who commits his or her fourth misdemeanor (or
felony) after having been previously convicted of three or more
misdemeanors (or felonies) within the previous ten years will be
punished as an E felon and will face up to four years in state prison.

Recognizing the challenges prosecutors may face ensuring that repeat
misdemeanor cases are handled properly, the bill also provides that
criminal history records, when certified by a person designated by
the Commissioner of the Division of Criminal Justice Services as the

person to certify such records, including electronic transmissions of
such records, are admissible in felony hearings and grand jury
proceedings.

It is clear that the current system that has allowed persistent
misdemeanor offenders to commit their crimes with minimal or
meaningless sanctions is intolerable. Like repeat felons, repeat
misdemeanor offenders must face enhanced penalties commensurate with
their conduct.

LEGISLATIVE HISTORY:

S.1600/A.7759 of 2007-08, Passed Senate; S.3229 of 2005-06, Passed
Senate 2005, 2006, A.2632/2009

FISCAL IMPLICATIONS:

It is not anticipated that this legislation will have any significant
fiscal impact.

EFFECTIVE DATE:

Immediately.

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

                                 643--A

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 5, 2011
                               ___________

Introduced  by  Sens.  GOLDEN,  BONACIC,  DeFRANCISCO,  JOHNSON,  LANZA,
  RANZENHOFER -- read twice and ordered printed, and when printed to  be
  committed to the Committee on Codes -- recommitted to the Committee on
  Codes   in  accordance  with  Senate  Rule  6,  sec.  8  --  committee
  discharged, bill amended, ordered reprinted as amended and recommitted
  to said committee

AN ACT to amend the  criminal  procedure  law  and  the  penal  law,  in
  relation to aggravated criminal conduct

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

  Section 1.  Subdivision 8 of section 180.60 of the criminal  procedure
law,  as  amended by chapter 307 of the laws of 1975, is amended to read
as follows:
  8. Upon such a hearing, only non-hearsay  evidence  is  admissible  to
demonstrate  reasonable  cause to believe that the defendant committed a
felony; except that reports of experts and technicians  in  professional
and  scientific  fields  and  sworn  statements, FORMS OR RECORDS of the
kinds specified in subdivisions two [and], three AND THREE-A of  section
190.30  are admissible to the same extent as in a grand jury proceeding,
unless the court determines, upon application  of  the  defendant,  that
such  hearsay  evidence  is,  under  the particular circumstances of the
case, not sufficiently reliable, in which case the court  shall  require
that the witness testify in person and be subject to cross-examination.
  S  2. Subdivision 2-a of section 190.30 of the criminal procedure law,
as amended by chapter 453 of the laws of 1999, is  amended  to  read  as
follows:
  2-a.  When  the electronic transmission of a certified report, FORM OR
RECORD, or certified copy thereof, of the kind described in  subdivision
two  or three-a of this section or a sworn statement or copy thereof, of
the kind described in subdivision three of this  section  results  in  a

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD04233-02-2

S. 643--A                           2

written  document,  such  written document may be received in such grand
jury proceeding provided that: (a) a transmittal memorandum completed by
the person sending the report, FORM OR RECORD contains  a  certification
that  the  report, FORM OR RECORD has not been altered and a description
of the report, FORM OR RECORD specifying the number of  pages;  and  (b)
the  person  who receives the electronically transmitted document certi-
fies that such document and transmittal memorandum were so received; and
(c) a certified report, FORM OR RECORD or  a  certified  copy  or  sworn
statement  or  sworn  copy thereof is filed with the court within twenty
days following arraignment upon the indictment; and (d) where such writ-
ten document is a sworn statement or sworn  copy  thereof  of  the  kind
described  in subdivision three of this section, such sworn statement or
sworn copy thereof is also provided to  the  defendant  or  his  counsel
within twenty days following arraignment upon the indictment.
  S  3. Subdivision 3-a of section 190.30 of the criminal procedure law,
as added by chapter 453 of the laws of  1999,  is  amended  to  read  as
follows:
  3-a.  A  sex  offender  registration  form,  sex offender registration
continuation/supplemental form, sex offender registry address  verifica-
tion form, sex offender change of address form, CRIMINAL HISTORY RECORD,
or a copy of such form OR RECORD, maintained by the division of criminal
justice  services concerning an individual who is the subject of a grand
jury proceeding, may, when certified  by  a  person  designated  by  the
commissioner  of the division of criminal justice services as the person
to certify such FORMS OR records, as a true copy thereof, be received in
such grand jury proceeding as evidence of the facts stated therein.
  S 4. The penal law is amended by adding a new section 240.75  to  read
as follows:
S 240.75 AGGRAVATED CRIMINAL CONDUCT.
  1.  A PERSON IS GUILTY OF AGGRAVATED CRIMINAL CONDUCT WHEN SUCH PERSON
COMMITS A CLASS A MISDEMEANOR DEFINED IN THIS CHAPTER AFTER HAVING  BEEN
PREVIOUSLY  SUBJECTED  TO THREE OR MORE QUALIFYING MISDEMEANOR OR FELONY
CONVICTIONS WITHIN THE PRECEDING TEN YEARS.
  2. THE PROVISIONS OF SECTION 200.60  OF  THE  CRIMINAL  PROCEDURE  LAW
SHALL APPLY TO ANY PROSECUTION UNDER THIS SECTION.
  3.  FOR  THE PURPOSES OF THIS SECTION, IN DETERMINING WHETHER A PERSON
HAS BEEN PREVIOUSLY SUBJECTED TO THREE OR MORE QUALIFYING MISDEMEANOR OR
FELONY CONVICTIONS WITHIN THE PRECEDING TEN YEARS, THE FOLLOWING  CRITE-
RIA SHALL APPLY:
  (A)  EACH  CONVICTION MUST HAVE BEEN IN THIS STATE OF A CLASS A MISDE-
MEANOR DEFINED IN THIS CHAPTER OR OF A FELONY, OR  OF  A  CRIME  IN  ANY
OTHER  JURISDICTION FOR WHICH A SENTENCE TO A TERM OF IMPRISONMENT OF AT
LEAST ONE YEAR OR A SENTENCE OF DEATH WAS AUTHORIZED AND  IS  AUTHORIZED
IN THIS STATE IRRESPECTIVE OF WHETHER SUCH SENTENCE WAS IMPOSED;
  (B)  SENTENCE  UPON  EACH SUCH PRIOR CONVICTION MUST HAVE BEEN IMPOSED
BEFORE COMMISSION OF THE PRESENT MISDEMEANOR;
  (C) SUSPENDED SENTENCE, SUSPENDED EXECUTION OF SENTENCE,  SENTENCE  OF
PROBATION,  SENTENCE  OF PAROLE SUPERVISION, AND SENTENCE OF CONDITIONAL
DISCHARGE OR  OF  UNCONDITIONAL  DISCHARGE  SHALL  BE  DEEMED  TO  BE  A
SENTENCE;
  (D)  EXCEPT  AS  PROVIDED  IN  PARAGRAPH (E) OF THIS SUBDIVISION, EACH
SENTENCE MUST HAVE BEEN IMPOSED NOT MORE THAN TEN YEARS  BEFORE  COMMIS-
SION OF THE PRESENT MISDEMEANOR;
  (E)  IN  CALCULATING  THE  TEN YEAR PERIOD UNDER PARAGRAPH (D) OF THIS
SUBDIVISION, ANY PERIOD OF TIME DURING WHICH THE DEFENDANT WAS INCARCER-
ATED FOR ANY REASON BETWEEN THE TIME OF COMMISSION OF ANY OF THE  PREVI-

S. 643--A                           3

OUS  CONVICTIONS  AND  THE TIME OF COMMISSION OF THE PRESENT MISDEMEANOR
SHALL BE EXCLUDED AND SUCH TEN YEAR PERIOD SHALL BE EXTENDED BY A PERIOD
OR PERIODS EQUAL TO THE TIME SERVED;
  (F) AN OFFENSE FOR WHICH THE DEFENDANT HAS BEEN PARDONED ON THE GROUND
OF  INNOCENCE  SHALL  NOT  BE  DEEMED  A  PREVIOUS MISDEMEANOR OR FELONY
CONVICTION;
  (G) WHEN MULTIPLE SENTENCES FOR TWO OR MORE CONVICTIONS  WERE  IMPOSED
AT THE SAME TIME, ALL CONVICTIONS SHALL BE DEEMED TO CONSTITUTE ONLY ONE
CONVICTION.
  4.  NOTHING CONTAINED IN THIS SECTION SHALL BE CONSTRUED TO PRECLUDE A
PROSECUTION OR CONVICTION FOR ANY OTHER OFFENSE, A NECESSARY ELEMENT  OF
WHICH IS A PREVIOUS CONVICTION FOR AN OFFENSE.
  AGGRAVATED CRIMINAL CONDUCT IS A CLASS E FELONY.
  S 5. This act shall take effect immediately.

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