Senate Bill S2270

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

                                  2270

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                            January 18, 2011
                               ___________

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, in relation to requiring that  indetermi-
  nate sentences run consecutively with all other terms unless the court
  orders  concurrent  sentences and to repeal certain provisions of such
  law relating thereto

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

  Section 1. Subdivision 1 of section 70.25 of the penal law, as amended
by chapter 372 of the laws of 1981 and paragraph (a) as amended by chap-
ter 3 of the laws of 1995, is amended to read as follows:
  1.  [Except  as  provided  in subdivisions two, two-a and five of this
section, when] WHEN multiple sentences of imprisonment are imposed on  a
person  at the same time, or when a person who is subject to any undisc-
harged term of imprisonment imposed at a previous time  by  a  court  of
this  state  is  sentenced  to  an  additional term of imprisonment, the
sentence or sentences imposed by the court shall run either concurrently
or consecutively with respect to each other and the undischarged term or
terms in such manner as the court directs at the time  of  sentence.  If
the  court does not specify the manner in which a sentence imposed by it
is to run, the sentence shall run as follows:
  (a) An indeterminate or determinate sentence shall run  [concurrently]
CONSECUTIVELY  with  all  other terms; [and] PROVIDED, HOWEVER, THAT THE
COURT MAY, IN THE INTEREST OF JUSTICE, ORDER A SENTENCE TO  RUN  CONCUR-
RENTLY  IF IT FINDS MITIGATING CIRCUMSTANCES THAT BEAR DIRECTLY UPON THE
MANNER IN WHICH THE CRIME WAS COMMITTED. THE DEFENDANT AND THE  DISTRICT
ATTORNEY  SHALL  HAVE  AN OPPORTUNITY TO PRESENT RELEVANT INFORMATION TO
ASSIST THE COURT IN MAKING ITS DETERMINATION AND THE COURT MAY,  IN  ITS
DISCRETION,  CONDUCT  A  HEARING  WITH RESPECT TO ANY ISSUE BEARING UPON
SUCH DETERMINATION. IF THE COURT DETERMINES THAT  CONSECUTIVE  SENTENCES

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD07053-01-1

              

S. 2270                             2

SHOULD  NOT  BE  ORDERED, IT SHALL MAKE A STATEMENT ON THE RECORD OF THE
FACTS AND CIRCUMSTANCES UPON WHICH SUCH DETERMINATION IS BASED;
  (b)  A  definite  sentence  shall  run  concurrently with any sentence
imposed at the same time and shall be consecutive to any other term.
  S 2. Paragraph (a) of subdivision 1 of section 70.25 of the penal law,
as amended by chapter 372 of the laws of 1981, is  amended  to  read  as
follows:
  (a)  An  indeterminate sentence shall run [concurrently] CONSECUTIVELY
with all other terms; [and] PROVIDED, HOWEVER, THAT THE  COURT  MAY,  IN
THE  INTEREST  OF  JUSTICE,  ORDER  A SENTENCE TO RUN CONCURRENTLY IF IT
FINDS MITIGATING CIRCUMSTANCES THAT BEAR DIRECTLY  UPON  THE  MANNER  IN
WHICH  THE CRIME WAS COMMITTED.  THE DEFENDANT AND THE DISTRICT ATTORNEY
SHALL HAVE AN OPPORTUNITY TO PRESENT RELEVANT INFORMATION TO ASSIST  THE
COURT  IN MAKING ITS DETERMINATION AND THE COURT MAY, IN ITS DISCRETION,
CONDUCT A HEARING WITH RESPECT TO ANY ISSUE BEARING UPON  SUCH  DETERMI-
NATION. IF THE COURT DETERMINES THAT CONSECUTIVE SENTENCES SHOULD NOT BE
ORDERED,  IT  SHALL  MAKE  A  STATEMENT  ON  THE RECORD OF THE FACTS AND
CIRCUMSTANCES UPON WHICH SUCH DETERMINATION IS BASED;
  S 3. Subdivisions 2-a, 2-b, 2-c, 2-d and 5 of  section  70.25  of  the
penal law are REPEALED.
  S  4.  Section  70.35 of the penal law, as amended by chapter 3 of the
laws of 1995, is amended to read as follows:
S 70.35 Merger of certain  definite  and  indeterminate  or  determinate
            sentences.
  The  service  of an indeterminate or determinate sentence of imprison-
ment shall satisfy any definite sentence of imprisonment  imposed  on  a
person  for  an offense committed prior to the time the indeterminate or
determinate sentence was imposed[, except as provided in  paragraph  (b)
of  subdivision  five of section 70.25 of this article]. A person who is
serving a definite sentence at the time an indeterminate or  determinate
sentence  is  imposed  shall  be  delivered  to the custody of the state
department of correctional services to commence service of the  indeter-
minate or determinate sentence immediately [unless the person is serving
a  definite  sentence  pursuant  to paragraph (b) of subdivision five of
section 70.25 of this article].  In any case where the indeterminate  or
determinate  sentence  is  revoked  or vacated, the person shall receive
credit against the definite sentence for each day spent in  the  custody
of the state department of correctional services.
  S  5. Section 70.35 of the penal law, as amended by chapter 527 of the
laws of 1989, is amended to read as follows:
S 70.35 Merger of certain definite and indeterminate sentences.
  The service of an indeterminate sentence of imprisonment shall satisfy
any definite sentence of imprisonment imposed on a person for an offense
committed prior to the time the  indeterminate  sentence  was  imposed[,
except as provided in paragraph (b) of subdivision five of section 70.25
of  this  article].   A person who is serving a definite sentence at the
time an indeterminate sentence is imposed  shall  be  delivered  to  the
custody  of  the  state  department of correctional services to commence
service of the indeterminate sentence immediately [unless the person  is
serving  a  definite  sentence  pursuant to paragraph (b) of subdivision
five of section 70.25 of this article].  In any case where the  indeter-
minate  sentence  is revoked or vacated, the person shall receive credit
against the definite sentence for each day spent in the custody  of  the
state department of correctional services.
  S 6. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law and shall apply only to

S. 2270                             3

sentences  imposed  on  or  after  such date provided, however, that the
amendments to paragraph (a) of subdivision 1 of  section  70.25  of  the
penal  law made by section one of this act shall be subject to the expi-
ration and reversion of such paragraph pursuant to section 74 of chapter
3 of the laws of 1995, as amended, when upon such date the provisions of
section  two of this act shall take effect and provided further that the
amendments to section 70.35 of the penal law made  by  section  four  of
this  act  shall  be  subject  to  the  expiration and reversion of such
section pursuant to section 74 of chapter 3 of  the  laws  of  1995,  as
amended,  when upon such date the provisions of section five of this act
shall take effect.