senate Bill S6880

2011-2012 Legislative Session

Relates to establishing terms of probation sentences

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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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Apr 04, 2012 referred to codes

S6880 - Bill Details

See Assembly Version of this Bill:
A8089
Current Committee:
Senate Codes
Law Section:
Penal Law
Laws Affected:
Amd §65.00, Pen L; amd §410.70, CP L

S6880 - Bill Texts

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Relates to establishing terms of probation sentences.

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BILL NUMBER:S6880

TITLE OF BILL:
An act
to amend the penal law and the criminal procedure law, in relation to
establishing terms of probation sentences and revocations thereof under
certain circumstances

SUMMARY OF PROVISIONS:
The bill would amend PL § 65.00 to provide the
court with the discretion to impose a probation term of three, four
or five years for a felony. This would only apply to felonies other
than (1) Class A-II felonies defined in PL Article 220; (2) the Class
B felony defined in PL § 220.48; (3) any other Class B felony defined
in PL Article 220 committed by a second felony drug offender; or (4)
any felony involving a sexual assault.

Section 2 of the bill would provide the court with the discretion to
impose a probation term of two or three years for a class A
misdemeanor other than a sexual assault.

Section 3 of the bill would give the court the discretion to impose a
probation term of two or three years for an unclassified misdemeanor,
for which the authorized sentence of imprisonment is greater than
three months.

Section 4 of the bill would amend would clarify that when someone is
found to have violated terms of probation and the court continues or
modifies the sentence, the court may extend remaining period of
probation up to the maximum term authorized by § 65.00.

Section 5 amends Criminal Procedure Law § 410.70(5) to make
corresponding changes

REASONS FOR SUPPORT:
Currently, sentences involving probation are
oriented to the conviction, rather than to the offender. Penal Law
§ 65.00 stipulates that, with very few exceptions, a period of
probation for a felony offense must be five years, and a period of
probation for a class A misdemeanor must be three years. Unlike
sentences of incarceration, about which judges maintain broad
discretion in determining the length of the sentence, judges are
limited when determining the lengths of probation sentences.

This lack of judicial discretion prevents judges from distinguishing
among convicted individuals on the basis of their prior criminal
history; degree of culpability (major/minor actors); the risk level
they pose to public safety; and their actuarially determined risk of
re-offense.
Moreover, all felony convictions, except those for certain drug-related
offenses, receive five-year probation terms with no discretion for the

court to distinguish between the levels of such felonies (e.g.,
Vehicular manslaughter in the First Degree.

This proposal reflects "evidence-based practices" - that is,
practices based on studies of what has been proven to be effective in
the probation field - and reflects the idea that appropriate judicial
discretion is critical to imposing correct probation term lengths in
order to advance public safety. Research into community supervision
and community corrections has shown that: (1) most re-offending and
technical violations occur within the first eighteen months of one's
probation term; and (2) supervision has its greatest impact in the
first twelve months. As such, of those felony probationers who
violate their terms of probation, more than 80% do so within the
first three years, and 80% of misdemeanor probationers who violate
the terms of supervision do so within the first two years.

This bill would allow probation departments to advance public safety
by focusing scarce probation resources on the period of time when
probationers are most likely to re-offend and when probation
supervision is most effective. All Counties in New York, including
the five boroughs New York City, are now employing evidence-based
risk assessment instruments mandated by the State's Office of
Probation and Correctional Alternatives. These are one of several
tools that counties are utilizing to provide probation services that
are tailored more closely to the individual. They can be used to
guide judges in determining probation lengths, allowing their
probation departments to focus scarce resources on higher risk
probationers,- while lower-risk probationers are supervised for the
period of time when it matters most. This use of evidence-based
practices to concentrate resources on those who pose the highest risk
to public safety will result in lower recidivism rates and increased
positive outcomes for persons on probation.

Additionally, this proposal provides the court directly, and probation
departments indirectly, with a new tool to impose graduated sanctions
when probation is revoked. Currently, upon revocation, the only
sanction available to the Court is to sentence an individual to
incarceration, or a period of incarceration and probation. In other
words, if a probationer is not following all the terms of probation -
even if the mistakes are not criminal in nature - the only recourse
the court has is to sentence the probationer to a period in jailor
prison. This proposal provides the court with an intermediate option,
which is to impose a longer period of probation. In instances where
an individual does not receive the maximum amount of probation time
at sentencing, that sentence can be increased upon revocation, to the
maximum probation sentence that had been originally available to the
court.

FISCAL IMPACT:
To be determined.

EFFECTIVE DATE:

This act shall take effect immediately and would apply
to offenses committed on or after the date upon which it becomes law.
It shall also apply to offenses committed before such date, where the
sentence upon conviction for such offense is imposed no earlier than
ten days after such date.

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

                                  6880

                            I N  S E N A T E

                              April 4, 2012
                               ___________

Introduced  by  Sen.  GOLDEN -- 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 establishing terms of probation sentences and revocations
  thereof under certain circumstances

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

  Section  1.  Subparagraph  (i)  of  paragraph  (a) of subdivision 3 of
section 65.00 of the penal law, as amended by section 20 of part AAA  of
chapter 56 of the laws of 2009, is amended to read as follows:
  (i)  For  a  felony, other than a class A-II felony defined in article
two hundred twenty of this chapter or the  class  B  felony  defined  in
section  220.48  of this chapter, or any other class B felony defined in
article two hundred twenty of this chapter committed by a second  felony
drug  offender,  or a sexual assault, the period of probation shall be A
TERM OF THREE, FOUR OR five years;
  S 2. Subparagraph (i) of paragraph (b) of  subdivision  3  of  section
65.00  of  the penal law, as amended by chapter 264 of the laws of 2003,
is amended to read as follows:
  (i) For a class A misdemeanor, other than a sexual assault, the period
of probation shall be A TERM OF TWO OR three years;
  S 3. Paragraph (d) of subdivision 3 of section 65.00 of the penal law,
as amended by chapter 264 of the laws of 2003, is  amended  to  read  as
follows:
  (d)  For an unclassified misdemeanor, the period of probation shall be
A TERM OF TWO OR three years if the authorized sentence of  imprisonment
is in excess of three months, otherwise the period of probation shall be
one year.
  S  4.    Subdivision 4 of section 65.00 of the penal law is renumbered
subdivision 5 and a new subdivision 4 is added to read as follows:
  4. IF DURING THE PERIODS OF PROBATION REFERENCED IN  SUBPARAGRAPH  (I)
OF PARAGRAPH (A), SUBPARAGRAPH (I) OF PARAGRAPH (B) AND PARAGRAPH (D) OF
SUBDIVISION  THREE OF THIS SECTION AN ALLEGED VIOLATION IS SUSTAINED AND
THE COURT CONTINUES OR MODIFIES THE SENTENCE, THE COURT MAY  EXTEND  THE

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD11927-01-1

S. 6880                             2

REMAINING  PERIOD OF PROBATION UP TO THE MAXIMUM TERM AUTHORIZED BY THIS
SECTION.
  S 5. Subdivision 5 of section 410.70 of the criminal procedure law, as
amended  by  chapter  112  of  the  laws  of 1985, is amended to read as
follows:
  5. Revocation; modification; continuation. At the  conclusion  of  the
hearing  the  court  may  revoke,  continue  or  modify  the sentence of
probation  or  conditional  discharge.  Where  the  court  revokes   the
sentence, it must impose sentence as specified in subdivisions three and
four  of  section  60.01  of the penal law. Where the court continues or
modifies the sentence, it must vacate the declaration of delinquency and
direct that the defendant be  released.  If  the  alleged  violation  is
sustained  and  the  court  continues  or  modifies the sentence, it may
extend the sentence up to the period of interruption specified in subdi-
vision two of section 65.15 of the penal law,  but  any  time  spent  in
custody  in  any  correctional institution pursuant to section 410.60 of
this article shall  be  credited  against  the  term  of  the  sentence.
PROVIDED FURTHER, WHERE THE ALLEGED VIOLATION IS SUSTAINED AND THE COURT
CONTINUES  OR  MODIFIES  THE  SENTENCE,  THE  COURT  MAY ALSO EXTEND THE
REMAINING PERIOD OF PROBATION UP  TO  THE  MAXIMUM  TERM  AUTHORIZED  BY
SECTION 65.00 OF THE PENAL LAW.
  S  6.  This act shall take effect immediately; provided, however, that
it shall apply to offenses committed on or after the date this act shall
have become a law, and provided, further, however, that  it  shall  also
apply  to  offenses  committed before such date, where the sentence upon
conviction for such offense is imposed no earlier than  ten  days  after
such date.

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