S T A T E O F N E W Y O R K
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8163
2011-2012 Regular Sessions
I N A S S E M B L Y
June 3, 2011
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Introduced by M. of A. LANCMAN -- read once and referred to the Commit-
tee 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
SHALL BE EXTENDED BY SUCH PERIOD OR PERIODS OF TIME SERVED IN INCARCERA-
TION.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD04233-01-1
A. 8163 2
(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
(B) THE FACTORS IN THE DEFENDANT'S BACKGROUND AND PRIOR CRIMINAL
CONDUCT, AS WELL AS THE PUBLIC INTEREST, WHICH THE COURT DEEMS RELEVANT
A. 8163 3
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
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
A. 8163 4
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.