| Assembly Actions - Lowercase Senate Actions - UPPERCASE |
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| Jan 23, 2023 | referred to codes |
assembly Bill A2036
2023-2024 Legislative Session
Eliminates mandatory minimum sentences; repealer
Sponsored By
MEEKS
Current Bill Status - In Assembly Committee
- Introduced
- In Committee
- On Floor Calendar
- Passed Senate
- Passed Assembly
- Delivered to Governor
- Signed/Vetoed by Governor
Your Voice
Actions
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view actions (1)
Co-Sponsors
Kenny Burgos
Karines Reyes
Chris Burdick
Anna Kelles
- view additional co-sponsors
Harvey Epstein
Jeffrion Aubry
Catalina Cruz
Khaleel Anderson
Chantel Jackson
Emily Gallagher
Latrice Walker
Taylor Darling
Zohran Mamdani
Marcela Mitaynes
Robert C. Carroll
Eddie Gibbs
Nikki Lucas
Andrew Hevesi
Jessica Gonzalez-Rojas
Linda Rosenthal
Amanda Septimo
David Weprin
Vivian Cook
Jonathan Rivera
Al Taylor
Sarah Clark
J. Gary Pretlow
Brian Cunningham
Yudelka Tapia
Sarahana Shrestha
Ron Kim
Inez E. Dickens
Tony Simone
George Alvarez
Stefani Zinerman
Maritza Davila
MaryJane Shimsky
Monique Chandler-Waterman
Juan Ardila
Steven Raga
Phara Souffrant Forrest
Dana Levenberg
Multi-Sponsors
Jo Anne Simon
A2036 (ACTIVE) - Details
- Current Committee:
- Assembly Codes
- Law Section:
- Penal Law
- Laws Affected:
- Rpld §70.02 subs 2 & 4, §70.70 subs 3 & 4, §490.25 sub 2 ¶(d), §§60.06, 60.07, 60.11-a, 70.04, 70.06, 70.07, 70.08 & 70.10, amd Pen L, generally; amd §§380.50, 390.30, 390.50 & 220.10, rpld §§220.35, 400.15, 400.16, 400.19, 400.20 & 400.21, §220.30 sub 3, CP L; amd §74, Chap 3 of 1995; amd §10, Chap 339 of 1972; amd §76, Chap 435 of 1997; amd Part E §15, Chap 62 of 2003; amd §§2 & 865, rpld §73 sub 10, Cor L
- Versions Introduced in 2021-2022 Legislative Session:
-
A9166
A2036 (ACTIVE) - Bill Text download pdf
S T A T E O F N E W Y O R K
________________________________________________________________________
2036
2023-2024 Regular Sessions
I N A S S E M B L Y
January 23, 2023
___________
Introduced by M. of A. MEEKS, BURGOS, REYES, BURDICK, KELLES, EPSTEIN,
AUBRY, CRUZ, ANDERSON, JACKSON, GALLAGHER, WALKER, DARLING, MAMDANI,
MITAYNES, CARROLL, GIBBS, LUCAS, HEVESI, GONZALEZ-ROJAS, L. ROSENTHAL,
SEPTIMO, WEPRIN, COOK, RIVERA, TAYLOR, CLARK, PRETLOW, CUNNINGHAM,
TAPIA -- Multi-Sponsored by -- M. of A. SIMON -- read once and
referred to the Committee on Codes
AN ACT to amend the penal law, the criminal procedure law and the
correction law, in relation to eliminating mandatory minimums; to
amend chapter 3 of the laws of 1995 enacting the sentencing reform act
of 1995, in relation to the effectiveness thereof; to amend chapter
339 of the laws of 1972, amending the correction law and the penal law
relating to inmate work release, furlough and leave, in relation to
the effectiveness thereof; to amend chapter 435 of the laws of 1997,
amending the military law and other laws relating to various
provisions, in relation to the effectiveness thereof; to amend part E
of chapter 62 of the laws of 2003, amending the correction law and
other laws relating to various provisions, in relation to the effec-
tiveness thereof; and to repeal certain provisions of the penal law,
the criminal procedure law and the correction law relating thereto
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Subdivision 6 of section 1.05 of the penal law, as amended
by chapter 98 of the laws of 2006, is amended to read as follows:
6. To [insure the public] PROMOTE COMMUNITY safety by [preventing the
commission of offenses through the deterrent influence of the sentences
authorized,] SUPPORTING the rehabilitation of [those] INDIVIDUALS WHO
HAVE BEEN convicted, [the promotion of] their successful and productive
reentry and reintegration into society, and [their] confinement ONLY
when required [in the interests of public protection] IN ACCORDANCE WITH
SUBDIVISION THREE OF SECTION 60.03 OF THIS CHAPTER.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD04611-01-3
A. 2036 2
§ 2. The penal law is amended by adding a new section 60.03 to read as
follows:
§ 60.03 PRESUMPTION AGAINST SENTENCES OF IMPRISONMENT.
1. THERE SHALL BE A PRESUMPTION AGAINST SENTENCES OF IMPRISONMENT IN
ALL CASES WHICH MAY BE OVERCOME ONLY IN EXTRAORDINARY CIRCUMSTANCES. THE
TERM "SENTENCE OF IMPRISONMENT" MEANS ANY SENTENCE OF INCARCERATION.
2. FOR ANY FELONY, AN AUTHORIZED SENTENCE INCLUDES A SENTENCE OTHER
THAN INCARCERATION OR A DEFINITE SENTENCE OF IMPRISONMENT. THE COURT MAY
FIX SUCH AUTHORIZED SENTENCE FOR ONE YEAR OR LESS.
3. (A) BEFORE IMPOSING A SENTENCE OF IMPRISONMENT, THE COURT SHALL
CONDUCT A HEARING TO DETERMINE WHETHER THE PRESUMPTION AGAINST INCARCER-
ATION HAS BEEN OVERCOME.
(I) IN ORDER TO OVERCOME THE PRESUMPTION AGAINST INCARCERATION, THE
PROSECUTOR MUST SHOW, BY CLEAR AND CONVINCING EVIDENCE, THAT THERE ARE
NO MEANS TO ADDRESS THE UNLAWFUL BEHAVIOR AND PROMOTE COMMUNITY SAFETY
OTHER THAN IMPRISONMENT.
(II) AT THE HEARING THE COURT SHALL CONSIDER ORAL AND WRITTEN ARGU-
MENTS, TAKE TESTIMONY FROM WITNESSES OFFERED BY EITHER PARTY, AND
CONSIDER RELEVANT EVIDENCE TO ASSIST IN MAKING ITS DETERMINATION,
INCLUDING TESTIMONY AND EVIDENCE ADMITTED IN PRIOR PROCEEDINGS IN THE
SAME CASE. RELIABLE HEARSAY SHALL BE ADMISSIBLE AT SUCH HEARING. TESTI-
MONY OF WITNESSES RELATING TO PRIOR BAD ACTS OR CONVICTIONS OF THE
DEFENDANT SHALL NOT BE CONSIDERED RELEVANT TO THE COURT'S DETERMINATION.
(III) THE COURT SHALL DETAIL ITS FINDINGS IN WRITING, INCLUDING AN
INDIVIDUALIZED FINDING AS TO WHY THE PRESUMPTION HAS BEEN OVERCOME.
(IV) IF THE COURT FINDS THAT THE PRESUMPTION HAS BEEN OVERCOME, IT
SHALL PROCEED TO IMPOSE THE MINIMUM TERM OF IMPRISONMENT NECESSARY TO
ACHIEVE THE GOALS OF SENTENCING.
(V) IF A HEARING IS NOT HELD OR THE PRESUMPTION HAS NOT BEEN OVERCOME
THE COURT SHALL IMPOSE A NON-INCARCERATORY SENTENCE UNLESS THE HEARING
HAS BEEN WAIVED PURSUANT TO SUBDIVISION FIVE OF THIS SECTION.
(VI) A DEFENDANT SHALL NOT BE REQUIRED TO PAY FOR ANY PART OF THE COST
OF THEIR SENTENCE.
(VII) UPON REQUEST OF THE DEFENDANT, THE COURT SHALL CONDUCT THE HEAR-
ING PROMPTLY AFTER THE RENDERING OF A GUILTY VERDICT OR THE ENTRY OF A
GUILTY PLEA.
(B) IN CONSIDERING WHETHER THE PRESUMPTION AGAINST INCARCERATION HAS
BEEN OVERCOME AND, WHERE RELEVANT, WHAT THE APPROPRIATE INCARCERATORY
SENTENCE SHOULD BE, THE COURT SHALL CONSIDER THE FOLLOWING:
(I) THE UNIQUE HARMS OF IMPRISONMENT, INCLUDING INTERRUPTION OF
DEFENDANT'S CONNECTIONS TO FAMILY, EMPLOYMENT, NEEDED PUBLIC BENEFITS,
HEALTHCARE, AND HOUSING;
(II) THE FINANCIAL COST OF INCARCERATION TO THE STATE AND/OR LOCALI-
TIES;
(III) ANY MITIGATING CIRCUMSTANCES THAT BEAR ON THE MANNER IN WHICH
THE CRIME WAS COMMITTED; AND
(IV) THE HISTORY, CHARACTER AND CONDITION OF THE DEFENDANT, INCLUDING,
BUT NOT LIMITED TO:
(1) PRESENCE OF PHYSICAL OR EMOTIONAL TRAUMA EITHER DIRECT OR
WITNESSED;
(2) NEED FOR COMMUNITY-BASED TREATMENT TO ADDRESS SUBSTANCE USE,
MENTAL HEALTH, AND/OR PHYSICAL HEALTH ISSUES;
(3) HISTORY OF LEARNING DISABILITIES, BELOW AVERAGE IQ, ACADEMIC
DIFFICULTY, OR PHYSICAL DISABILITY;
A. 2036 3
(4) HISTORY OF FAMILIAL DISRUPTION SUCH AS DIVORCE, DOMESTIC VIOLENCE,
SEXUAL ABUSE, ASSAULT, DRUG OR ALCOHOL ABUSE, OR INVOLVEMENT IN THE
CRIMINAL LEGAL SYSTEM;
(5) AGE;
(6) POTENTIAL IMMIGRATION CONSEQUENCES OF SENTENCE;
(7) LACK OF PRIOR CRIMINAL RECORD;
(8) HISTORY OF EMPLOYMENT;
(9) LACK OF STABLE HOUSING, EDUCATION, OR FINANCIAL INSTABILITY;
(10) VULNERABILITY TO ABUSE IN PRISON, INCLUDING EVIDENCE OF PAST
VICTIMIZATION; AND
(11) THE FACTORS SET FORTH IN SUBDIVISION ONE OF SECTION 60.12 OF THIS
ARTICLE.
(C) THE COURT SHALL NOT CONSIDER OR DRAW ANY NEGATIVE INFERENCE FROM A
DEFENDANT'S SILENCE OR FAILURE TO EXPRESS REMORSE.
4. IF A DEFENDANT TESTIFIES AT THE HEARING, SUCH TESTIMONY SHALL NOT
BE ADMISSIBLE IN ANY SUBSEQUENT PROCEEDING.
5. A DEFENDANT MAY KNOWINGLY AND VOLUNTARILY WAIVE THEIR RIGHTS UNDER
THIS SECTION.
§ 3. Subdivision 1 of section 380.50 of the criminal procedure law, as
amended by chapter 307 of the laws of 1992, is amended to read as
follows:
1. THE COURT SHALL IMPOSE SENTENCE IN ACCORDANCE WITH THE PROCEDURES
SET FORTH IN SECTION 60.03 OF THE PENAL LAW. At the time of pronouncing
sentence, the court must accord the prosecutor an opportunity to make a
statement with respect to any matter relevant to the question of
sentence. The court must then accord counsel for the defendant an oppor-
tunity to speak on behalf of the defendant. The defendant also has the
right to make a statement personally in his or her own behalf, and
before pronouncing sentence the court must ask the defendant whether he
or she wishes to make such a statement.
§ 4. Paragraph (a) of subdivision 3 of section 390.30 of the criminal
procedure law, as added by chapter 14 of the laws of 1985, is amended to
read as follows:
(a) The report of the pre-sentence investigation must contain an anal-
ysis of as much of the information gathered in the investigation as the
agency that conducted the investigation deems relevant to the question
of sentence. The report must also include any other [imformation] INFOR-
MATION that the court directs to be included and the material required
by paragraph (b) of this subdivision which shall be considered part of
the report. THE REPORT SHALL INCLUDE AN ANALYSIS OF THE ACTUAL FINAN-
CIAL COST OF INCARCERATION TO THE STATE AND/OR LOCALITIES OF THE POTEN-
TIAL SENTENCES THAT MAY BE IMPOSED.
§ 5. Paragraph (a) of subdivision 2 of section 390.50 of the criminal
procedure law, as amended by chapter 31 of the laws of 2019, is amended
to read as follows:
(a) Not less than one court day prior to sentencing, unless such time
requirement is waived by the parties, the pre-sentence report or memo-
randum shall be made available by the court for examination and for
copying AND RETENTION by the defendant's attorney, the defendant himself
OR HERSELF, [if he has no attorney,] and the prosecutor. THE DEFENDANT
SHALL BE GIVEN AN OPPORTUNITY TO CHALLENGE OR CORRECT ANY FACT OR
CONCLUSION IN THE PRE-SENTENCE REPORT OR MEMORANDUM PRIOR TO THE COURT'S
PRONOUNCEMENT OF SENTENCE AND NO LATER THAN AT THE HEARING CONDUCTED IN
ACCORDANCE WITH SUBDIVISION THREE OF SECTION 60.03 OF THE PENAL LAW. In
its discretion, the court may except from disclosure a part or parts of
the report or memoranda which are not relevant to a proper sentence, or
A. 2036 4
a diagnostic opinion which might seriously disrupt a program of rehabil-
itation, or sources of information which have been obtained on a promise
of confidentiality, or any other portion thereof, disclosure of which
would not be in the interest of justice. In all cases where a part or
parts of the report or memoranda are not disclosed, the court shall
state for the record that a part or parts of the report or memoranda
have been excepted and the reasons for its action. The action of the
court excepting information from disclosure shall be subject to appel-
late review. The pre-sentence report shall be made available by the
court for examination and copying in connection with any appeal in the
case, including an appeal under this subdivision. Upon written request,
the court shall make a copy of the presentence report, other than a part
or parts of the report redacted by the court pursuant to this paragraph,
available to the defendant for use before the parole board for release
consideration or an appeal of a parole board determination or an appli-
cation for resentencing pursuant to section 440.46 or 440.47 of this
[chapter. In his or her written request to the court the defendant shall
affirm that he or she anticipates an appearance before the parole board
or intends to file an administrative appeal of a parole board determi-
nation or meets the eligibility criteria for and intends to file a
motion for resentencing pursuant to 440.46 of this chapter or has
received notification from the court which received his or her request
to apply for resentencing pursuant to section 440.47 of this chapter
confirming that he or she is eligible to submit an application for
resentencing pursuant to section 440.47 of this chapter] PART. The
court shall respond to the defendant's written request within twenty
days from receipt of the defendant's written request.
§ 6. Section 70.00 of the penal law, the section heading as amended by
chapter 277 of the laws of 1973, subdivision 1 as amended by chapter 7
of the laws of 2007, subdivisions 2, 3 and 4 as amended by chapter 738
of the laws of 2004, paragraph (a) of subdivision 3 as amended by chap-
ter 107 and paragraph (b) of subdivision 3 as amended by chapter 746 of
the laws of 2006, subdivision 5 as amended by section 40-a of part WWW
of chapter 59 of the laws of 2017, and subdivision 6 as amended by chap-
ter 1 of the laws of 1998, is amended to read as follows:
§ 70.00 Sentence of imprisonment for felony.
1. Indeterminate sentence. Except as provided in subdivisions THREE
AND four[, five and six] of this section or section 70.80 of this arti-
cle, [a] THE TERM OF sentence [of imprisonment] for a felony, other than
a felony defined in article two hundred twenty [or two hundred twenty-
one] of this chapter, shall be FIXED BY THE COURT IN ACCORDANCE WITH
SECTION 60.03 OF THIS TITLE. IF A COURT FINDS THAT A SENTENCE OF IMPRI-
SONMENT OF MORE THAN ONE YEAR IS THE MINIMUM TERM OF IMPRISONMENT NECES-
SARY TO ACHIEVE THE GOALS OF SENTENCING, THE COURT SHALL IMPOSE an inde-
terminate sentence. When such a sentence is imposed, the court shall
impose a maximum term in accordance with the provisions of subdivision
two of this section [and the minimum period of imprisonment shall be as
provided in subdivision three of this section]. THE MINIMUM PERIOD
SHALL BE FIXED BY THE COURT AND SPECIFIED IN THE SENTENCE AND SHALL BE
NOT LESS THAN ONE YEAR NOR MORE THAN ONE-THIRD OF THE MAXIMUM TERM
IMPOSED, OR THE COURT MAY IMPOSE A DEFINITE SENTENCE OF IMPRISONMENT AND
FIX A TERM OF ONE YEAR OR LESS.
2. Maximum term of sentence. The maximum term of an indeterminate
sentence shall be at least three years and the term shall be fixed as
follows:
(a) For a class A felony, the term shall be life imprisonment;
A. 2036 5
(b) For a class B felony, the term shall be fixed by the court, and
shall not exceed twenty-five years;
(c) For a class C felony, the term shall be fixed by the court, and
shall not exceed fifteen years;
(d) For a class D felony, the term shall be fixed by the court, and
shall not exceed seven years; and
(e) For a class E felony, the term shall be fixed by the court, and
shall not exceed four years.
3. [Minimum period of imprisonment. The minimum period of imprisonment
under an indeterminate sentence shall be at least one year and shall be
fixed as follows:
(a) In the case of a class A felony, the minimum period shall be fixed
by the court and specified in the sentence.
(i) For a class A-I felony, such minimum period shall not be less than
fifteen years nor more than twenty-five years; provided, however, that
(A) where a sentence, other than a sentence of death or life imprison-
ment without parole, is imposed upon a defendant convicted of murder in
the first degree as defined in section 125.27 of this chapter such mini-
mum period shall be not less than twenty years nor more than twenty-five
years, and, (B) where a sentence is imposed upon a defendant convicted
of murder in the second degree as defined in subdivision five of section
125.25 of this chapter or convicted of aggravated murder as defined in
section 125.26 of this chapter, the sentence shall be life imprisonment
without parole, and, (C) where a sentence is imposed upon a defendant
convicted of attempted murder in the first degree as defined in article
one hundred ten of this chapter and subparagraph (i), (ii) or (iii) of
paragraph (a) of subdivision one and paragraph (b) of subdivision one of
section 125.27 of this chapter or attempted aggravated murder as defined
in article one hundred ten of this chapter and section 125.26 of this
chapter such minimum period shall be not less than twenty years nor more
than forty years.
(ii) For a class A-II felony, such minimum period shall not be less
than three years nor more than eight years four months, except that for
the class A-II felony of predatory sexual assault as defined in section
130.95 of this chapter or the class A-II felony of predatory sexual
assault against a child as defined in section 130.96 of this chapter,
such minimum period shall be not less than ten years nor more than twen-
ty-five years.
(b) For any other felony, the minimum period shall be fixed by the
court and specified in the sentence and shall be not less than one year
nor more than one-third of the maximum term imposed.
4. Alternative definite sentence for class D and E felonies. When a
person, other than a second or persistent felony offender, is sentenced
for a class D or class E felony, and the court, having regard to the
nature and circumstances of the crime and to the history and character
of the defendant, is of the opinion that a sentence of imprisonment is
necessary but that it would be unduly harsh to impose an indeterminate
or determinate sentence, the court may impose a definite sentence of
imprisonment and fix a term of one year or less.
5.] Life imprisonment without parole. Notwithstanding any other
provision of law, a defendant sentenced to life imprisonment without
parole shall not be or become eligible for parole or conditional
release. For purposes of commitment and custody, other than parole and
conditional release, such sentence shall be deemed to be an indetermi-
nate sentence. A defendant may be sentenced to life imprisonment without
parole upon conviction for the crime of murder in the first degree as
A. 2036 6
defined in section 125.27 of this chapter and in accordance with the
procedures provided by law for imposing a sentence for such crime. A
defendant who was eighteen years of age or older at the time of the
commission of the crime must be sentenced to life imprisonment without
parole upon conviction for the crime of terrorism as defined in section
490.25 of this chapter, where the specified offense the defendant
committed is a class A-I felony; the crime of criminal possession of a
chemical weapon or biological weapon in the first degree as defined in
section 490.45 of this chapter; or the crime of criminal use of a chemi-
cal weapon or biological weapon in the first degree as defined in
section 490.55 of this chapter; provided, however, that nothing in this
subdivision shall preclude or prevent a sentence of death when the
defendant is also convicted of the crime of murder in the first degree
as defined in section 125.27 of this chapter. A defendant who was seven-
teen years of age or younger at the time of the commission of the crime
may be sentenced, in accordance with law, to the applicable indetermi-
nate sentence with a maximum term of life imprisonment. A defendant must
be sentenced to life imprisonment without parole upon conviction for the
crime of murder in the second degree as defined in subdivision five of
section 125.25 of this chapter or for the crime of aggravated murder as
defined in subdivision one of section 125.26 of this chapter. A defend-
ant may be sentenced to life imprisonment without parole upon conviction
for the crime of aggravated murder as defined in subdivision two of
section 125.26 of this chapter.
[6.] 4. Determinate sentence. [Except as provided in subdivision four
of this section and subdivisions two and four of section 70.02, when]
WHEN a person is sentenced as a violent felony offender pursuant to
section 70.02 [or as a second violent felony offender pursuant to
section 70.04 or as a second felony offender on a conviction for a
violent felony offense pursuant to section 70.06] OF THIS ARTICLE, the
SENTENCE SHALL BE FIXED BY THE court IN ACCORDANCE WITH SECTION 60.03 OF
THIS TITLE. IF A COURT FINDS THAT A SENTENCE OF IMPRISONMENT OF MORE
THAN ONE YEAR IS THE MINIMUM TERM OF IMPRISONMENT NECESSARY TO ACHIEVE
THE GOALS OF SENTENCING, THE COURT must impose a determinate sentence of
imprisonment in accordance with the provisions of such [sections and
such sentence shall include, as a part thereof, a period of post-release
supervision in accordance with section 70.45] SECTION.
§ 7. Subdivision d of section 74 of chapter 3 of the laws of 1995,
enacting the sentencing reform act of 1995, as amended by section 19 of
part A of chapter 55 of the laws of 2021, is amended to read as follows:
d. Sections one-a [through], ONE-B, TWO, FOUR THROUGH EIGHT, ELEVEN,
TWELVE, twenty, twenty-four through twenty-eight, thirty through thir-
ty-nine, forty-two and forty-four of this act shall be deemed repealed
on September 1, 2023;
§ 8. Subdivisions 2 and 4 of section 70.02 of the penal law are
REPEALED and subdivision 3, as amended by chapter 765 of the laws of
2005, paragraphs (b) and (c) as amended by chapter 1 of the laws of
2013, is amended to read as follows:
[3.] 2. Term of sentence. The term [of a determinate sentence] for a
violent felony offense must be fixed by the court IN ACCORDANCE WITH
SECTION 60.03 OF THIS TITLE. IF A COURT FINDS THAT A SENTENCE OF IMPRI-
SONMENT OF MORE THAN ONE YEAR IS THE MINIMUM TERM OF IMPRISONMENT NECES-
SARY TO ACHIEVE THE GOALS OF SENTENCING, THE COURT SHALL IMPOSE A DETER-
MINATE SENTENCE as follows:
(a) For a class B felony, the term must be at least [five years] ONE
YEAR and must not exceed twenty-five years, provided, however, that the
A. 2036 7
term [must be]: (i) [at least ten years and] must not exceed thirty
years where the sentence is for the crime of aggravated assault upon a
police officer or peace officer as defined in section 120.11 of this
chapter; and (ii) [at least ten years and] must not exceed thirty years
where the sentence is for the crime of aggravated manslaughter in the
first degree as defined in section 125.22 of this chapter;
(b) For a class C felony, the term must be at least [three and one-
half years] ONE YEAR and must not exceed fifteen years, provided, howev-
er, that the term [must be]: (i) [at least seven years and] must not
exceed twenty years where the sentence is for the crime of aggravated
manslaughter in the second degree as defined in section 125.21 of this
chapter; (ii) [at least seven years and] must not exceed twenty years
where the sentence is for the crime of attempted aggravated assault upon
a police officer or peace officer as defined in section 120.11 of this
chapter; (iii) [at least three and one-half years and] must not exceed
twenty years where the sentence is for the crime of aggravated criminal-
ly negligent homicide as defined in section 125.11 of this chapter; and
(iv) [at least five years and] must not exceed fifteen years where the
sentence is imposed for the crime of aggravated criminal possession of a
weapon as defined in section 265.19 of this chapter;
(c) For a class D felony, the term must be at least [two years] ONE
YEAR and must not exceed seven years, provided, however, that the term
[must be]: (i) [at least two years and] must not exceed eight years
where the sentence is for the crime of menacing a police officer or
peace officer as defined in section 120.18 of this chapter; and (ii) [at
least three and one-half years and] must not exceed seven years where
the sentence is imposed for the crime of criminal possession of a weapon
in the third degree as defined in subdivision ten of section 265.02 of
this chapter; AND
(d) For a class E felony, the term must be at least one [and one-half
years] YEAR and must not exceed four years.
§ 9. Sections 60.06, 60.07, 60.11-a, 70.04, 70.06, 70.07, 70.08 and
70.10 of the penal law are REPEALED.
§ 10. Subdivisions 1 and 3 of section 70.05 of the penal law, subdivi-
sion 1 as amended by chapter 615 of the laws of 1984, subdivision 3 as
added by chapter 481 of the laws of 1978, paragraph (a) of subdivision 3
as amended by chapter 174 of the laws of 2003 and paragraph (c) of
subdivision 3 as amended by chapter 435 of the laws of 1998, are amended
to read as follows:
1. Indeterminate sentence. A sentence of imprisonment for a felony
committed by a juvenile offender shall be FIXED BY THE COURT IN ACCORD-
ANCE WITH SECTION 60.03 OF THIS TITLE. IF A COURT FINDS THAT A SENTENCE
OF IMPRISONMENT OF MORE THAN ONE YEAR IS THE MINIMUM TERM OF IMPRISON-
MENT NECESSARY TO ACHIEVE THE GOALS OF SENTENCING, THE COURT SHALL
IMPOSE an indeterminate sentence. When such a sentence is imposed, the
court shall impose a maximum term in accordance with the provisions of
subdivision two of this section and the minimum period of imprisonment
shall be as provided in subdivision three of this section. The court
shall further provide that where a juvenile offender is under placement
pursuant to article three of the family court act, any sentence imposed
pursuant to this section which is to be served consecutively with such
placement shall be served in a facility designated pursuant to subdivi-
sion four of section 70.20 of this article prior to service of the
placement in any previously designated facility.
3. Minimum period of imprisonment. The minimum period of imprisonment
under an indeterminate sentence for a juvenile offender shall be NOT
A. 2036 8
LESS THAN ONE YEAR NOR MORE THAN ONE-THIRD OF THE MAXIMUM TERM IMPOSED
AND specified in the sentence as follows:
(a) For the class A felony of murder in the second degree, the minimum
period of imprisonment shall be fixed by the court and shall [be not
less than five years but shall] not exceed nine years provided, however,
that where the sentence is for an offense specified in subdivision one
or two of section 125.25 of this chapter and the defendant was fourteen
or fifteen years old at the time of such offense, the minimum period of
imprisonment shall [be not less than seven and one-half years but shall]
not exceed fifteen years;
(b) For the class A felony of arson in the first degree, or for the
class A felony of kidnapping in the first degree, the minimum period of
imprisonment shall be fixed by the court and shall [be not less than
four years but shall] not exceed six years; and
(c) For a class B, C or D felony, the minimum period of imprisonment
shall be fixed by the court at one-third of the maximum term imposed.
§ 11. Subdivision 1 of section 70.15 of the penal law, as amended by
section 1 of part OO of chapter 55 of the laws of 2019, is amended to
read as follows:
1. Class A misdemeanor. A sentence of imprisonment for a class A
misdemeanor shall be a definite sentence. When such a sentence is
imposed the term shall be fixed by the court, IN ACCORDANCE WITH SECTION
60.03 OF THIS TITLE, and shall not exceed three hundred sixty-four days.
§ 12. Paragraph (a) of subdivision 1 of section 70.20 of the penal
law, as amended by section 124 of subpart B of part C of chapter 62 of
the laws of 2011, is amended to read as follows:
(a) Indeterminate or determinate sentence. Except as provided in
subdivision four of this section, when an indeterminate or determinate
sentence of imprisonment is imposed, the court shall commit the defend-
ant to the custody of the state department of corrections and community
supervision for the term of his or her sentence and until released in
accordance with the law[; provided, however, that a defendant sentenced
pursuant to subdivision seven of section 70.06 shall be committed to the
custody of the state department of corrections and community supervision
for immediate delivery to a reception center operated by the depart-
ment].
§ 13. Section 70.25 of the penal law, subdivision 1 as amended and
subdivision 5 as added by chapter 372 of the laws of 1981, paragraph (a)
of subdivision 1, subdivision 2-b, and paragraphs (a) and (b) of subdi-
vision 5 as amended by chapter 3 of the laws of 1995, subdivision 2 as
amended by chapter 56 of the laws of 1984, subdivision 2-a as amended by
chapter 495 of the laws of 2009, subdivisions 2-c and 2-d as added by
chapter 795 of the laws of 1986, subdivision 2-e as added by chapter 122
of the laws of 1996, subdivision 2-f as added by chapter 1 of the laws
of 2000, subdivision 2-g as added by chapter 394 of the laws of 2005 and
subdivision 4 as added by chapter 782 of the laws of 1975, is amended to
read as follows:
§ 70.25 Concurrent and consecutive terms of imprisonment.
1. Except as provided in [subdivisions] SUBDIVISION two[, two-a and
five] of this section, when multiple sentences of imprisonment are
imposed on a person at the same time, or when a person who is subject to
any undischarged 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 concur-
rently or consecutively with respect to each other and the undischarged
term or terms in such manner as the court directs at the time of
A. 2036 9
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
with all other terms; and
(b) A definite sentence shall run concurrently with [any sentence
imposed at the same time and shall be consecutive to any other term] ALL
OTHER TERMS.
2. When more than one sentence of imprisonment is imposed on a person
for two or more offenses committed through a single act or omission, or
through an act or omission which in itself constituted one of the
offenses and also was a material element of the other, the sentences,
except if one or more of such sentences is for a violation of section
270.20 of this chapter, must run concurrently.
[2-a. When an indeterminate or determinate sentence of imprisonment is
imposed pursuant to section 70.04, 70.06, 70.07, 70.08, 70.10, subdivi-
sion three or four of section 70.70, subdivision three or four of
section 70.71 or subdivision five of section 70.80 of this article, or
is imposed for a class A-I felony pursuant to section 70.00 of this
article, and such person is subject to an undischarged indeterminate or
determinate sentence of imprisonment imposed prior to the date on which
the present crime was committed, the court must impose a sentence to run
consecutively with respect to such undischarged sentence.
2-b. When a person is convicted of a violent felony offense committed
after arraignment and while released on recognizance or bail, but
committed prior to the imposition of sentence on a pending felony
charge, and if an indeterminate or determinate sentence of imprisonment
is imposed in each case, such sentences shall run consecutively.
Provided, however, that the court may, in the interest of justice, order
a sentence to run concurrently in a situation where consecutive
sentences are required by this subdivision if it finds either mitigating
circumstances that bear directly upon the manner in which the crime was
committed or, where the defendant was not the sole participant in the
crime, the defendant's participation was relatively minor although not
so minor as to constitute a defense to the prosecution. The defendant
and the district attorney shall have an opportunity to present relevant
information to assist the court in making this 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 should not be ordered, it shall make a statement
on the record of the facts and circumstances upon which such determi-
nation is based.
2-c. When a person is convicted of bail jumping in the second degree
as defined in section 215.56 or bail jumping in the first degree as
defined in section 215.57 committed after arraignment and while released
on recognizance or bail in connection with a pending indictment or
information charging one or more felonies, at least one of which he is
subsequently convicted, and if an indeterminate sentence of imprisonment
is imposed in each case, such sentences shall run consecutively.
Provided, however, that the court may, in the interest of justice, order
a sentence to run concurrently in a situation where consecutive
sentences are required by this subdivision 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 oppor-
tunity to present relevant information to assist the court in making
this determination and the court may, in its discretion, conduct a hear-
ing with respect to any issue bearing upon such determination. If the
A. 2036 10
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.
2-d. When a person is convicted of escape in the second degree as
defined in section 205.10 or escape in the first degree as defined in
section 205.15 committed after issuance of a securing order, as defined
in subdivision five of section 500.10 of the criminal procedure law, in
connection with a pending indictment or information charging one or more
felonies, at least one of which he is subsequently convicted, and if an
indeterminate sentence of imprisonment is imposed in each case, such
sentences shall run consecutively. Provided, however, that the court
may, in the interest of justice, order a sentence to run concurrently in
a situation where consecutive sentences are required by this subdivision
if it finds mitigating circumstances that bear directly upon the manner
in which the crime was committed. The defendant and the district attor-
ney shall have an opportunity to present relevant information to assist
the court in making this 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
should not be ordered, it shall make a statement on the record of the
facts and circumstances upon which such determination is based.
2-e.] 2-A. Whenever a person is convicted of course of sexual conduct
against a child in the first degree as defined in section 130.75 or
course of sexual conduct against a child in the second degree as defined
in section 130.80 and any other crime under article one hundred thirty
OF THIS CHAPTER committed against the same child and within the period
charged under section 130.75 or 130.80 OF THIS CHAPTER, the sentences
must run concurrently.
[2-f.] 2-B. Whenever a person is convicted of facilitating a sex
offense with a controlled substance as defined in section 130.90 of this
chapter, the sentence imposed by the court for such offense may be
ordered to run consecutively to any sentence imposed upon conviction of
an offense defined in article one hundred thirty of this chapter arising
from the same criminal transaction.
[2-g.] 2-C. Whenever a person is convicted of unlawful manufacture of
methamphetamine in the third degree as defined in section 220.73 of this
chapter, unlawful manufacture of methamphetamine in the second degree as
defined in section 220.74 of this chapter, or unlawful manufacture of
methamphetamine in the first degree as defined in section 220.75 of this
chapter, or any attempt to commit any of such offenses, and such person
is also convicted, with respect to such unlawful methamphetamine labora-
tory, of unlawful disposal of methamphetamine laboratory material as
defined in section 220.76 of this chapter, the sentences must run
concurrently.
3. Where consecutive definite sentences of imprisonment are not
prohibited by subdivision two of this section and are imposed on a
person for offenses which were committed as parts of a single incident
or transaction, the aggregate of the terms of such sentences shall not
exceed one year.
4. When a person, who is subject to any undischarged term of imprison-
ment imposed at a previous time by a court of another jurisdiction, is
sentenced to an additional term or terms of imprisonment by a court of
this state, the sentence or sentences imposed by the court of this
state, subject to the provisions of subdivisions one, two and three of
this section, shall run either concurrently or consecutively with
respect to such undischarged term in such manner as the court directs at
A. 2036 11
the time of sentence. If the court of this state does not specify the
manner in which a sentence imposed by it is to run, the sentence or
sentences shall run [consecutively] CONCURRENTLY.
[5. (a) Except as provided in paragraph (c) of this subdivision, when
a person is convicted of assault in the second degree, as defined in
subdivision seven of section 120.05 of this chapter, any definite, inde-
terminate or determinate term of imprisonment which may be imposed as a
sentence upon such conviction shall run consecutively to any undisc-
harged term of imprisonment to which the defendant was subject and for
which he was confined at the time of the assault.
(b) Except as provided in paragraph (c) of this subdivision, when a
person is convicted of assault in the second degree, as defined in
subdivision seven of section 120.05 of this chapter, any definite, inde-
terminate or determinate term of imprisonment which may be imposed as a
sentence upon such conviction shall run consecutively to any term of
imprisonment which was previously imposed or which may be prospectively
imposed where the person was confined within a detention facility at the
time of the assault upon a charge which culminated in such sentence of
imprisonment.
(c) Notwithstanding the provisions of paragraphs (a) and (b) of this
subdivision, a term of imprisonment imposed upon a conviction to assault
in the second degree as defined in subdivision seven of section 120.05
of this chapter may run concurrently to any other term of imprisonment,
in the interest of justice, provided the court sets forth in the record
its reasons for imposing a concurrent sentence. Nothing in this section
shall require the imposition of a sentence of imprisonment where it is
not otherwise required by law.]
§ 14. Paragraphs (a) and (f) of subdivision 1 of section 70.30 of the
penal law, paragraph (a) as amended by chapter 3 of the laws of 1995 and
paragraph (f) as added by chapter 481 of the laws of 1978 and as relet-
tered by chapter 3 of the laws of 1995, are amended to read as follows:
(a) If the sentences run concurrently, the time served under imprison-
ment on any of the sentences shall be credited against the minimum AND
MAXIMUM periods of all the concurrent indeterminate sentences and
against the terms of all the concurrent determinate sentences. The maxi-
mum term or terms of the indeterminate sentences and the term or terms
of the determinate sentences shall merge in and be satisfied by
discharge of the term which has the longest unexpired time to run;
(f) The aggregate maximum term of consecutive sentences imposed upon a
juvenile offender for two or more crimes, not including a class A felo-
ny, committed before he OR SHE has reached the age of sixteen, shall, if
it exceeds ten years, be deemed to be ten years. If consecutive indeter-
minate sentences imposed upon a juvenile offender include a sentence for
the class A felony of arson in the first degree or for the class A felo-
ny of kidnapping in the first degree, then the aggregate maximum term of
such sentences shall, if it exceeds fifteen years, be deemed to be
fifteen years. Where the aggregate maximum term of two or more consec-
utive sentences is reduced by a calculation made pursuant to this para-
graph, the aggregate minimum period of imprisonment, if it exceeds
[one-half] ONE-THIRD of the aggregate maximum term as so reduced, shall
be deemed to be [one-half] ONE-THIRD of the aggregate maximum term as so
reduced.
§ 15. Section 10 of chapter 339 of the laws of 1972, amending the
correction law and the penal law relating to inmate work release,
furlough and leave, as amended by section 6 of part A of chapter 55 of
the laws of 2021, is amended to read as follows:
A. 2036 12
§ 10. This act shall take effect 30 days after it shall have become a
law and SECTIONS ONE THROUGH EIGHT shall remain in effect until Septem-
ber 1, 2023, and provided further that the commissioner of correctional
services shall report each January first, and July first, to the chair-
man of the senate crime victims, crime and correction committee, the
senate codes committee, the assembly correction committee, and the
assembly codes committee, the number of eligible inmates in each facili-
ty under the custody and control of the commissioner who have applied
for participation in any program offered under the provisions of work
release, furlough, or leave, and the number of such inmates who have
been approved for participation.
§ 16. Section 70.35 of the penal law, as amended by section 127-a of
subpart B of part C of chapter 62 of the laws of 2011, is amended to
read as follows:
§ 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 corrections and community supervision to commence service
of the indeterminate 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 corrections and communi-
ty supervision.
§ 17. Paragraph a of subdivision 6 of section 76 of chapter 435 of the
laws of 1997, amending the military law and other laws relating to vari-
ous provisions, as amended by section 15 of part A of chapter 55 of the
laws of 2021, is amended to read as follows:
a. sections forty-three through [forty-five] FORTY-FOUR of this act
shall expire and be deemed repealed on September 1, 2023;
§ 18. Subdivisions (f), (g) and (h) of section 15 of part E of chapter
62 of the laws of 2003, amending the correction law and other laws
relating to various provisions, are amended to read as follows:
(f) the amendments made to subdivision 2 of section 259-c of the exec-
utive law made by section seven of this act shall not affect the expira-
tion of such subdivision and shall be deemed to expire therewith; AND
(g) the amendments to paragraph (a) of subdivision 2 and subparagraph
(i) of paragraph (a) and paragraph (d) of subdivision 3 of section 259-i
of the executive law made by section eleven of this act shall not affect
the expiration of such paragraph (a) of subdivision 2, such subparagraph
(i) of paragraph (a) and such paragraph (d) of subdivision 3 and shall
be deemed to expire therewith[; and
(h) paragraph (c) of subdivision 1 of section 70.40 of the penal law
as added by section thirteen of this act shall expire and be deemed
repealed on the same date as subdivision 6 of section 76 of chapter 435
of the laws of 1997, as amended].
§ 19. Subdivisions 1, 2, 2-a and 3 of section 70.45 of the penal law,
subdivision 1 as amended by chapter 141 of the laws of 2008, subdivision
2 as amended and subdivision 2-a as added by chapter 7 of the laws of
A. 2036 13
2007, paragraphs (a), (b), (c), (d), (e) and (f) of subdivision 2 as
amended by chapter 31 of the laws of 2019, and subdivision 3 as added by
chapter 1 of the laws of 1998, are amended to read as follows:
1. In general. When a court imposes a determinate sentence it shall in
each case state not only the term of imprisonment, but also an addi-
tional period of post-release supervision as determined pursuant to this
article. Such period shall commence as provided in subdivision five of
this section and a violation of any condition of supervision occurring
at any time during such period of post-release supervision shall subject
the defendant to a further period of imprisonment up to the balance of
the remaining period of post-release supervision, not to exceed five
years; provided, however, that a defendant serving a term of post-re-
lease supervision for a conviction of a felony sex offense, as defined
in section 70.80 of this article, may be subject to a further period of
imprisonment up to the balance of the remaining period of post-release
supervision. NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRA-
RY, NO PERSON SERVING A PERIOD OF POST-RELEASE SUPERVISION SHALL BE
CONFINED IN A CORRECTIONAL FACILITY, INCLUDING A RESIDENTIAL TREATMENT
FACILITY AS DEFINED IN SUBDIVISION SIX OF SECTION TWO OF THE CORRECTION
LAW, EXCEPT FOLLOWING A REVOCATION HEARING AS SET FORTH IN SECTION TWO
HUNDRED FIFTY-NINE-I OF THE EXECUTIVE LAW. Such maximum limits shall not
preclude a longer period of further imprisonment for a violation where
the defendant is subject to indeterminate and determinate sentences.
2. Period of post-release supervision for other than felony sex
offenses. The period of post-release supervision for a determinate
sentence, other than a determinate sentence imposed for a felony sex
offense as defined in paragraph (a) of subdivision one of section 70.80
of this article, shall [be] NOT EXCEED five years except that:
(a) such period shall [be] NOT EXCEED one year whenever a determinate
sentence of imprisonment is imposed pursuant to subdivision two of
section 70.70 of this article or subdivision nine of section 60.12 of
this title upon a conviction of a class D or class E felony offense;
(b) such period shall be not [less than one year nor] more than two
years whenever a determinate sentence of imprisonment is imposed pursu-
ant to subdivision two of section 70.70 of this article or subdivision
nine of section 60.12 of this title upon a conviction of a class B or
class C felony offense;
(c) such period shall be not [less than one year nor] more than two
years whenever a determinate sentence of imprisonment is imposed pursu-
ant to [subdivision three or four of section 70.70 of this article upon
conviction of a class D or class E felony offense or] subdivision ten of
section 60.12 of this title;
(d) such period shall be not [less than one and one-half years nor]
more than three years whenever a determinate sentence of imprisonment is
imposed pursuant to [subdivision three or four of section 70.70 of this
article upon conviction of a class B felony or class C felony offense
or] subdivision eleven of section 60.12 of this title;
(e) such period shall be not [less than one and one-half years nor]
more than three years whenever a determinate sentence of imprisonment is
imposed pursuant to subdivision [three] TWO of section 70.02 of this
article or subdivision two or eight of section 60.12 of this title upon
a conviction of a class D or class E violent felony offense or subdivi-
sion four, five, six, or seven of section 60.12 of this title;
(f) such period shall be not [less than two and one-half years nor]
more than five years whenever a determinate sentence of imprisonment is
imposed pursuant to subdivision [three] TWO of section 70.02 of this
A. 2036 14
article or subdivision two or eight of section 60.12 of this title upon
a conviction of a class B or class C violent felony offense.
2-a. Periods of post-release supervision for felony sex offenses. The
period of post-release supervision for a determinate sentence imposed
for a felony sex offense as defined in paragraph (a) of subdivision one
of section 70.80 of this article shall be as follows:
(a) not [less than three years nor] more than ten years whenever a
determinate sentence of imprisonment is imposed pursuant to subdivision
four of section 70.80 of this article upon a conviction of a class D or
class E felony sex offense;
(b) not [less than five years nor] more than fifteen years whenever a
determinate sentence of imprisonment is imposed pursuant to subdivision
four of section 70.80 of this article upon a conviction of a class C
felony sex offense;
(c) not [less than five years nor] more than twenty years whenever a
determinate sentence of imprisonment is imposed pursuant to subdivision
four of section 70.80 of this article upon a conviction of a class B
felony sex offense;
(d) not [less than three years nor] more than ten years whenever a
determinate sentence is imposed pursuant to subdivision [three] TWO of
section 70.02 of this article upon a conviction of a class D or class E
violent felony sex offense as defined in paragraph (b) of subdivision
one of section 70.80 of this article;
(e) not [less than five years nor] more than fifteen years whenever a
determinate sentence is imposed pursuant to subdivision [three] TWO of
section 70.02 of this article upon a conviction of a class C violent
felony sex offense as defined in section 70.80 of this article;
(f) not [less than five years nor] more than twenty years whenever a
determinate sentence is imposed pursuant to subdivision [three] TWO of
section 70.02 of this article upon a conviction of a class B violent
felony sex offense as defined in section 70.80 of this article;
(g) not [less than five years nor] more than fifteen years whenever a
determinate sentence of imprisonment is imposed pursuant to [either
section 70.04, section 70.06, or subdivision five of] section 70.80 of
this article upon a conviction of a class D or class E violent or non-
violent felony sex offense as defined in section 70.80 of this article;
(h) not [less than seven years nor] more than twenty years whenever a
determinate sentence of imprisonment is imposed pursuant to [either
section 70.04, section 70.06, or subdivision five of] section 70.80 of
this article upon a conviction of a class C violent or non-violent felo-
ny sex offense as defined in section 70.80 of this article; AND
(i) such period shall be not [less than ten years nor] more than twen-
ty-five years whenever a determinate sentence of imprisonment is imposed
pursuant to [either section 70.04, section 70.06, or subdivision five
of] section 70.80 of this article upon a conviction of a class B violent
or non-violent felony sex offense as defined in section 70.80 of this
article[; and
(j) such period shall be not less than ten years nor more than twenty
years whenever any determinate sentence of imprisonment is imposed
pursuant to subdivision four of section 70.07 of this article].
3. Conditions of post-release supervision. The board of parole shall
establish and impose conditions of post-release supervision in the same
manner and to the same extent as it may establish and impose conditions
in accordance with the executive law upon persons who are granted parole
or conditional release[; provided that, notwithstanding any other
provision of law, the board of parole may impose as a condition of post-
A. 2036 15
release supervision that for a period not exceeding six months imme-
diately following release from the underlying term of imprisonment the
person be transferred to and participate in the programs of a residen-
tial treatment facility as that term is defined in subdivision six of
section two of the correction law]. Upon release from the underlying
term of imprisonment, the person shall be furnished with a written
statement setting forth the conditions of post-release supervision in
sufficient detail to provide for the person's conduct and supervision.
§ 20. Subdivisions 1 and 2 of section 70.70 of the penal law, as added
by chapter 738 of the laws of 2004, paragraphs (a) and (b) of subdivi-
sion 1 and paragraphs (b) and (c) of subdivision 2 as amended by chapter
92 of the laws of 2021, subparagraph (i) of paragraph (a) of subdivision
2 as amended by section 21 and paragraph (d) of subdivision 2 as added
by section 23 of part AAA of chapter 56 of the laws of 2009, are amended
to read as follows:
1. For the purposes of this section, [the following terms shall mean:
(a) "Felony] "FELONY drug offender" means a defendant who stands
convicted of any felony, defined in article two hundred twenty or two
hundred twenty-two of this chapter other than a class A felony.
[(b) "Second felony drug offender" means a second felony offender as
that term is defined in subdivision one of section 70.06 of this arti-
cle, who stands convicted of any felony, defined in article two hundred
twenty or two hundred twenty-two of this chapter other than a class A
felony.
(c) "Violent felony" shall have the same meaning as that term is
defined in subdivision one of section 70.02 of this article.]
2. [Except as provided in subdivision three or four of this section,
a] (A) TERM OF SENTENCE. THE TERM OF sentence [of imprisonment] for a
felony drug offender shall be FIXED BY THE COURT IN ACCORDANCE WITH
SECTION 60.03 OF THIS TITLE. IF A COURT FINDS THAT A SENTENCE OF IMPRI-
SONMENT OF MORE THAN ONE YEAR IS THE MINIMUM TERM OF IMPRISONMENT NECES-
SARY TO ACHIEVE THE GOALS OF SENTENCING, THE COURT SHALL IMPOSE a deter-
minate sentence as provided in paragraph [(a)] (B) of this subdivision.
[(a)] (B) Term of determinate sentence. [Except as provided in para-
graph (b) or (c) of this subdivision, the court shall impose a] A deter-
minate term of imprisonment [upon a felony drug offender which] shall be
imposed by the court in whole or half years, which shall include as a
part thereof a period of post-release supervision in accordance with
section 70.45 of this article. The terms of imprisonment authorized for
such determinate sentences are as follows:
(i) for a class B felony, the term shall [be at least one year and
shall] not exceed nine years[, except that for the class B felony of
criminal sale of a controlled substance in or near school grounds as
defined in subdivision two of section 220.44 of this chapter or on a
school bus as defined in subdivision seventeen of section 220.00 of this
chapter or criminal sale of a controlled substance to a child as defined
in section 220.48 of this chapter, the term shall be at least two years
and shall not exceed nine years];
(ii) for a class C felony, the term shall [be at least one year and
shall] not exceed five and one-half years;
(iii) for a class D felony, the term shall [be at least one year and
shall] not exceed two and one-half years; and
(iv) for a class E felony, the term shall [be at least one year and
shall] not exceed one and one-half years.
[(b) Probation. Notwithstanding any other provision of law, the court
may sentence a defendant convicted of a class B, class C, class D or
A. 2036 16
class E felony offense defined in article two hundred twenty or two
hundred twenty-two of this chapter to probation in accordance with the
provisions of sections 60.04 and 65.00 of this chapter.
(c) Alternative definite sentence for class B, class C, class D, and
class E felonies. If the court, having regard to the nature and circum-
stances of the crime and to the history and character of the defendant,
is of the opinion that a sentence of imprisonment is necessary but that
it would be unduly harsh to impose a determinate sentence upon a person
convicted of a class C, class D or class E felony offense defined in
article two hundred twenty or two hundred twenty-two of this chapter, or
a class B felony defined in article two hundred twenty of this chapter,
other than the class B felony defined in section 220.48 of this chapter,
as added by a chapter of the laws of two thousand nine the court may
impose a definite sentence of imprisonment and fix a term of one year or
less.
(d) The court may direct that a determinate sentence imposed on a
defendant convicted of a class B felony, other than the class B felony
defined in section 220.48 of this chapter, pursuant to this subdivision
be executed as a sentence of parole supervision in accordance with
section 410.91 of the criminal procedure law.]
§ 21. Subdivisions 3 and 4 of section 70.70 of the penal law are
REPEALED.
§ 22. Section 70.71 of the penal law, as added by chapter 738 of the
laws of 2004, paragraph (a) of subdivision 2 as amended and subdivision
5 as added by section 26 of part AAA of chapter 56 of the laws of 2009,
is amended to read as follows:
§ 70.71 Sentence of imprisonment for a class A felony drug offender.
1. For the purposes of this section, the following terms shall mean:
(a) "Felony drug offender" means a defendant who stands convicted of
any class A felony as defined in article two hundred twenty of this
chapter.
(b) ["Second felony drug offender" means a second felony offender as
that term is defined in subdivision one of section 70.06 of this arti-
cle, who stands convicted of and is to be sentenced for any class A
felony as defined in article two hundred twenty of this chapter.
(c)] "Violent felony offense" shall have the same meaning as that term
is defined in subdivision one of section 70.02 of this article.
2. Sentence of imprisonment for a first felony drug offender.
(a) Applicability. Except as provided in subdivision three[, four or
five] of this section, this subdivision shall apply to a person
convicted of a class A felony as defined in article two hundred twenty
of this chapter.
(b) Authorized sentence. The TERM OF SENTENCE SHALL BE FIXED BY THE
COURT IN ACCORDANCE WITH SECTION 60.03 OF THIS TITLE. IF A COURT FINDS
THAT A SENTENCE OF IMPRISONMENT IS THE MINIMUM TERM OF IMPRISONMENT
NECESSARY TO ACHIEVE THE GOALS OF SENTENCING, THE court shall impose a
determinate term of imprisonment which shall be imposed by the court in
whole or half years and which shall include as a part thereof a period
of post-release supervision in accordance with section 70.45 of this
article. The terms authorized for such determinate sentences are as
follows:
(i) for a class A-I felony, the term shall [be at least eight years
and shall] not exceed twenty years;
(ii) for a class A-II felony, the term shall [be at least three years
and shall] not exceed ten years.
A. 2036 17
[(c) Lifetime probation. Notwithstanding any other provision of law,
the court may sentence a defendant convicted of a class A-II felony
defined in article two hundred twenty of this chapter to lifetime
probation in accordance with the provisions of section 65.00 of this
chapter.]
3. [Sentence of imprisonment for a second felony drug offender.
(a) Applicability. This subdivision shall apply to a second felony
drug offender whose prior felony conviction or convictions did not
include one or more violent felony offenses.
(b) Authorized sentence. When the court has found pursuant to the
provisions of section 400.21 of the criminal procedure law that a
defendant is a second felony drug offender who stands convicted of a
class A felony as defined in article two hundred twenty or two hundred
twenty-one of this chapter, the court shall impose a determinate
sentence of imprisonment. Such determinate sentence shall include as a
part thereof a period of post-release supervision in accordance with
section 70.45 of this article. Such determinate sentence shall be
imposed by the court in whole or half years as follows:
(i) for a class A-I felony, the term shall be at least twelve years
and shall not exceed twenty-four years;
(ii) for a class A-II felony, the term shall be at least six years and
shall not exceed fourteen years.
(c) Lifetime probation. Notwithstanding any other provision of law,
the court may sentence a defendant convicted of a class A-II felony
defined in article two hundred twenty of this chapter to lifetime
probation in accordance with the provisions of section 65.00 of this
chapter.
4. Sentence of imprisonment for a second felony drug offender previ-
ously convicted of a violent felony offense.
(a) Applicability. This subdivision shall apply to a second felony
drug offender whose prior felony conviction was a violent felony.
(b) Authorized sentence. When the court has found pursuant to the
provisions of section 400.21 of the criminal procedure law that a
defendant is a second felony drug offender whose prior felony conviction
was a violent felony, who stands convicted of a class A felony as
defined in article two hundred twenty or two hundred twenty-one of this
chapter, the court shall impose a determinate sentence of imprisonment.
Such determinate sentence shall include as a part thereof a period of
post-release supervision in accordance with section 70.45 of this arti-
cle. Such determinate sentence shall be imposed by the court in whole or
half years as follows:
(i) for a class A-I felony, the term shall be at least fifteen years
and shall not exceed thirty years;
(ii) for a class A-II felony, the term shall be at least eight years
and shall not exceed seventeen years.
5.] Sentence of imprisonment for operating as a major trafficker.
(a) Applicability. This subdivision shall apply to a person convicted
of the class A-I felony of operating as a major trafficker as defined in
section 220.77 of this chapter.
(b) Authorized sentence. [Except as provided in paragraph (c) of this
subdivision, the] THE TERM OF SENTENCE SHALL BE FIXED IN THE COURT IN
ACCORDANCE WITH SECTION 60.03 OF THIS TITLE. IF A COURT FINDS THAT A
SENTENCE OF IMPRISONMENT IS THE MINIMUM TERM OF IMPRISONMENT NECESSARY
TO ACHIEVE THE GOALS OF SENTENCING, THE court shall impose an indetermi-
nate term of imprisonment for an A-I felony, in accordance with the
provisions of section 70.00 of this article.
A. 2036 18
[(c) Alternative determinate sentence. If a defendant stands convicted
of violating section 220.77 of this chapter, and if the court, having
regard to the nature and circumstances of the crime and the history and
character of the defendant, is of the opinion that a sentence of impri-
sonment is necessary but that it would be unduly harsh to impose the
indeterminate sentence for a class A-I felony specified under section
70.00 of this article, the court may instead impose the determinate
sentence of imprisonment authorized by clause (i) of subparagraph (b) of
subdivision two of this section for a class A-I drug felony; in such
case, the reasons for the court's opinion shall be set forth on the
record.]
§ 23. Section 70.80 of the penal law, as added by chapter 7 of the
laws of 2007, paragraph (a) of subdivision 1 as amended by chapter 368
of the laws of 2015, is amended to read as follows:
§ 70.80 Sentences of imprisonment for conviction of a felony sex
offense.
1. Definitions. (a) For the purposes of this section, a "felony sex
offense" means a conviction of any felony defined in article one hundred
thirty of this chapter, including a sexually motivated felony, or
patronizing a person for prostitution in the first degree as defined in
section 230.06 of this chapter, patronizing a person for prostitution in
the second degree as defined in section 230.05 of this chapter, aggra-
vated patronizing a minor for prostitution in the third degree as
defined in section 230.11 of this chapter, aggravated patronizing a
minor for prostitution in the second degree as defined in section 230.12
of this chapter, aggravated patronizing a minor for prostitution in the
first degree as defined in section 230.13 of this chapter, incest in the
second degree as defined in section 255.26 of this chapter, or incest in
the first degree as defined in section 255.27 of this chapter, or a
felony attempt or conspiracy to commit any of the above.
(b) A felony sex offense shall be deemed a "violent felony sex
offense" if it is for an offense defined as a violent felony offense in
section 70.02 of this article, or for a sexually motivated felony as
defined in section 130.91 of this chapter where the specified offense is
a violent felony offense as defined in section 70.02 of this article.
(c) [For the purposes of this section, a "predicate felony sex offen-
der" means a person who stands convicted of any felony sex offense as
defined in paragraph (a) of this subdivision, other than a class A-I
felony, after having previously been subjected to one or more predicate
felony convictions as defined in subdivision one of section 70.06 or
subdivision one of section 70.04 of this article.
(d)] For purposes of this section, a "violent felony offense" is any
felony defined in subdivision one of section 70.02 of this article, and
a "non-violent felony offense" is any felony not defined therein.
2. In imposing a sentence within the authorized statutory range for
any felony sex offense, the court may consider all relevant factors set
forth in section 1.05 of this chapter, and in particular, may consider
the defendant's criminal history, if any, including any history of sex
offenses; any mental illness or mental abnormality from which the
defendant may suffer; the defendant's ability or inability to control
his sexual behavior; and, if the defendant has difficulty controlling
such behavior, the extent to which that difficulty may pose a threat to
society.
3. Except as provided by subdivision four, five, six[,] OR seven [or
eight] of this section, or when a defendant is being sentenced for a
conviction of the class A-II felonies of predatory sexual assault and
A. 2036 19
predatory sexual assault against a child as defined in sections 130.95
and 130.96 of this chapter, or for any class A-I sexually motivated
felony for which a life sentence or a life without parole sentence
[must] MAY be imposed, a sentence imposed upon a defendant convicted of
a felony sex offense shall be FIXED BY THE COURT IN ACCORDANCE WITH
SECTION 60.03 OF THIS TITLE. IF A COURT FINDS THAT A SENTENCE OF IMPRI-
SONMENT IS THE MINIMUM TERM OF IMPRISONMENT NECESSARY TO ACHIEVE THE
GOALS OF SENTENCING, THE COURT SHALL IMPOSE a determinate sentence. The
determinate sentence shall be imposed by the court in whole or half
years, and shall include as a part thereof a period of post-release
supervision in accordance with subdivision two-a of section 70.45 of
this article. [Persons eligible for sentencing under section 70.07 of
this article governing second child sexual assault felonies shall be
sentenced under such section and paragraph (j) of subdivision two-a of
section 70.45 of this article.]
4. [(a)] Sentences of imprisonment for felony sex offenses. Except as
provided in subdivision five, six[,] OR seven[, or eight] of this
section, the term of the determinate sentence must be fixed by the court
as follows:
[(i)] (A) for a class B felony, the term must [be at least five years
and must] not exceed twenty-five years;
[(ii)] (B) for a class C felony, the term must [be at least three and
one-half years and must] not exceed fifteen years;
[(iii)] (C) for a class D felony, the term must [be at least two years
and must] not exceed seven years; and
[(iv)] (D) for a class E felony, the term must [be at least one and
one-half years and must] not exceed four years.
[(b) Probation. The court may sentence a defendant convicted of a
class D or class E felony sex offense to probation in accordance with
the provisions of section 65.00 of this title.
(c) Alternative definite sentences for class D and class E felony sex
offenses. If the court, having regard to the nature and circumstances of
the crime and to the history and character of the defendant, is of the
opinion that a sentence of imprisonment is necessary but that it would
be unduly harsh to impose a determinate sentence upon a person convicted
of a class D or class E felony sex offense, the court may impose a defi-
nite sentence of imprisonment and fix a term of one year or less.
5. Sentence of imprisonment for a predicate felony sex offender. (a)
Applicability. This subdivision shall apply to a predicate felony sex
offender who stands convicted of a non-violent felony sex offense and
who was previously convicted of one or more felonies.
(b) Non-violent predicate felony offense. When the court has found,
pursuant to the provisions of the criminal procedure law, that a person
is a predicate felony sex offender, and the person's predicate
conviction was for a non-violent felony offense, the court must impose a
determinate sentence of imprisonment, the term of which must be fixed by
the court as follows:
(i) for a class B felony, the term must be at least eight years and
must not exceed twenty-five years;
(ii) for a class C felony, the term must be at least five years and
must not exceed fifteen years;
(iii) for a class D felony, the term must be at least three years and
must not exceed seven years; and
(iv) for a class E felony, the term must be at least two years and
must not exceed four years.
A. 2036 20
(c) Violent predicate felony offense. When the court has found, pursu-
ant to the provisions of the criminal procedure law, that a person is a
predicate felony sex offender, and the person's predicate conviction was
for a violent felony offense, the court must impose a determinate
sentence of imprisonment, the term of which must be fixed by the court
as follows:
(i) for a class B felony, the term must be at least nine years and
must not exceed twenty-five years;
(ii) for a class C felony, the term must be at least six years and
must not exceed fifteen years;
(iii) for a class D felony, the term must be at least four years and
must not exceed seven years; and
(iv) for a class E felony, the term must be at least two and one-half
years and must not exceed four years.
(d) A defendant who stands convicted of a non-violent felony sex
offense, other than a class A-I or class A-II felony, who is adjudicated
a persistent felony offender under section 70.10 of this article, shall
be sentenced pursuant to the provisions of section 70.10 or pursuant to
this subdivision.
6.] 5. Sentence of imprisonment for a violent felony sex offense.
Except as provided in subdivisions SIX AND seven [and eight] of this
section, a defendant who stands convicted of a violent felony sex
offense must be sentenced pursuant to the provisions of section 70.02[,
section 70.04, subdivision six of section 70.06, section 70.08, or
section 70.10] of this article, as applicable.
[7.] 6. Sentence for a class A felony sex offense. When a person
stands convicted of a sexually motivated felony pursuant to section
130.91 of this chapter and the specified offense is a class A felony,
the court must sentence the defendant in accordance with the provisions
of:
(a) section 60.06 of this [chapter] TITLE and section 70.00 of this
article, as applicable, if such offense is a class A-I felony; and
(b) section 70.00, [70.06 or 70.08 of this article, as applicable,] if
such offense is a class A-II felony.
[8.] 7. Whenever a juvenile offender stands convicted of a felony sex
offense, he or she must be sentenced pursuant to the provisions of
sections 60.10 and 70.05 of this [chapter] TITLE.
[9.] 8. Every determinate sentence for a felony sex offense, as
defined in paragraph (a) of subdivision one of this section, imposed
pursuant to any section of this article, shall include as a part thereof
a period of post-release supervision in accordance with subdivision
two-a of section 70.45 of this article.
§ 24. Paragraph (b) of subdivision 3 of section 60.01 of the penal
law, as amended by chapter 548 of the laws of 1984, is amended to read
as follows:
(b) A fine authorized by article eighty[, provided, however, that when
the conviction is of a class B felony or of any felony defined in arti-
cle two hundred twenty, the sentence shall not consist solely of a fine]
OF THIS TITLE; or
§ 25. Subdivision 2 of section 60.02 of the penal law, as amended by
chapter 471 of the laws of 1980, is amended to read as follows:
(2) If the sentence is to be imposed upon a youthful offender finding
which has been substituted for a conviction for any felony, the court
must impose a sentence authorized to be imposed upon a person convicted
of a class E felony [provided, however, that the court must not impose a
sentence of conditional discharge or unconditional discharge if the
A. 2036 21
youthful offender finding was substituted for a conviction of a felony
defined in article two hundred twenty of this chapter].
§ 26. Section 60.04 of the penal law, as added by chapter 738 of the
laws of 2004, subdivisions 3 and 5 as amended by section 17 of part AAA
of chapter 56 of the laws of 2009, subdivision 6 as amended by section
120 of subpart B of part C of chapter 62 of the laws of 2011 and subdi-
vision 7 as amended by chapter 322 of the laws of 2021, is amended to
read as follows:
§ 60.04 Authorized disposition; controlled substances [and marihuana
felony] offenses.
1. Applicability. Notwithstanding the provisions of any law, this
section shall govern the dispositions authorized when a person is to be
sentenced upon a conviction of a felony offense defined in article two
hundred twenty [or two hundred twenty-one] of this chapter [or when a
person is to be sentenced upon a conviction of such a felony as a multi-
ple felony offender as defined in subdivision five of this section].
2. Class A felony. Every person convicted of a class A felony must be
sentenced [to imprisonment] in accordance with section 70.71 of this
title[, unless such person is convicted of a class A-II felony and is
sentenced to probation for life in accordance with section 65.00 of this
title].
3. Class B felonies. Every person convicted of a class B felony must
be sentenced [to imprisonment] in accordance with the applicable
provisions of section 70.70 of this [chapter, a definite sentence of
imprisonment with a term of one year or less or probation in accordance
with section 65.00 of this chapter provided, however, a person convicted
of criminal sale of a controlled substance to a child as defined in
section 220.48 of this chapter must be sentenced to a determinate
sentence of imprisonment in accordance with the applicable provisions of
section 70.70 of this chapter or to a sentence of probation in accord-
ance with the opening paragraph of paragraph (b) of subdivision one of
section 65.00 of this chapter] TITLE.
4. Alternative sentence. [Where a sentence of imprisonment or a
sentence of probation as an alternative to imprisonment is not required
to be imposed pursuant to subdivision two, three or five of this
section, the court may impose any other sentence authorized by section
60.01 of this article, provided that when the court imposes a sentence
of imprisonment, such sentence must be in accordance with section 70.70
of this title.] Where the court imposes a sentence of imprisonment in
accordance with this section, the court may also impose a fine author-
ized by article eighty of this title and in such case the sentence shall
be both imprisonment and a fine.
5. [Multiple felony offender. Where the court imposes a sentence
pursuant to subdivision three of section 70.70 of this chapter upon a
second felony drug offender, as defined in paragraph (b) of subdivision
one of section 70.70 of this chapter, it must sentence such offender to
imprisonment in accordance with the applicable provisions of section
70.70 of this chapter, a definite sentence of imprisonment with a term
of one year or less, or probation in accordance with section 65.00 of
this chapter, provided, however, that where the court imposes a sentence
upon a class B second felony drug offender, it must sentence such offen-
der to a determinate sentence of imprisonment in accordance with the
applicable provisions of section 70.70 of this chapter or to a sentence
of probation in accordance with the opening paragraph of paragraph (b)
of subdivision one of section 65.00 of this chapter. When the court
imposes sentence on a second felony drug offender pursuant to subdivi-
A. 2036 22
sion four of section 70.70 of this chapter, it must impose a determinate
sentence of imprisonment in accordance with such subdivision.
6.] Substance abuse treatment. When the court imposes a sentence of
imprisonment which requires a commitment to the state department of
corrections and community supervision [upon a person who stands
convicted of a controlled substance or marihuana offense], the court
may, upon motion of the defendant in its discretion, issue an order
directing that the department of corrections and community supervision
enroll the defendant in the comprehensive alcohol and substance abuse
treatment program in an alcohol and substance abuse TREATMENT correc-
tional annex as defined in subdivision eighteen of section two of the
correction law, provided that the defendant will satisfy the statutory
eligibility criteria for participation in such program. Notwithstanding
the foregoing provisions of this subdivision, any defendant to be
enrolled in such program pursuant to this subdivision shall be governed
by the same rules and regulations promulgated by the department of
corrections and community supervision, including without limitation
those rules and regulations establishing requirements for completion and
those rules and regulations governing discipline and removal from the
program. No such period of court ordered corrections based drug abuse
treatment pursuant to this subdivision shall be required to extend
beyond the defendant's conditional release date.
[7.] 6. a. Shock incarceration participation. When the court imposes a
sentence of imprisonment which requires a commitment to the department
of corrections and community supervision upon a person [who stands
convicted of a controlled substance or marihuana offense], upon motion
of the defendant, the court may issue an order directing that the
department of corrections and community supervision enroll the defendant
in the shock incarceration program as defined in article twenty-six-A of
the correction law, provided that the defendant is an eligible incarcer-
ated individual, as described in subdivision one of section eight
hundred sixty-five of the correction law. Notwithstanding the foregoing
provisions of this subdivision, any defendant to be enrolled in such
program pursuant to this subdivision shall be governed by the same rules
and regulations promulgated by the department of corrections and commu-
nity supervision, including without limitation those rules and regu-
lations establishing requirements for completion and such rules and
regulations governing discipline and removal from the program.
b. (i) In the event that an incarcerated individual designated by
court order for enrollment in the shock incarceration program requires a
degree of medical care or mental health care that cannot be provided at
a shock incarceration facility, the department, in writing, shall notify
the incarcerated individual, provide a proposal describing a proposed
alternative-to-shock-incarceration program, and notify him or her that
he or she may object in writing to placement in such alternative-to-
shock-incarceration program. If the incarcerated individual objects in
writing to placement in such alternative-to-shock-incarceration program,
the department of corrections and community supervision shall notify the
sentencing court, provide such proposal to the court, and arrange for
the incarcerated individual's prompt appearance before the court. The
court shall provide the proposal and notice of a court appearance to the
people, the incarcerated individual and the appropriate defense attor-
ney. After considering the proposal and any submissions by the parties,
and after a reasonable opportunity for the people, the incarcerated
individual and counsel to be heard, the court may modify its sentencing
A. 2036 23
order accordingly, notwithstanding the provisions of section 430.10 of
the criminal procedure law.
(ii) An incarcerated individual who successfully completes an alterna-
tive-to-shock-incarceration program within the department of corrections
and community supervision shall be treated in the same manner as a
person who has successfully completed the shock incarceration program,
as set forth in subdivision four of section eight hundred sixty-seven of
the correction law.
§ 27. Section 60.05 of the penal law, as amended by chapter 410 of the
laws of 1979, the section heading and subdivisions 2, 3 and 4 as amended
by chapter 738 of the laws of 2004, subdivision 1 as amended by chapter
7 of the laws of 2007, subdivision 5 as amended by chapter 405 of the
laws of 2010 and subdivision 8 as amended by chapter 486 of the laws of
2022, is amended to read as follows:
§ 60.05 Authorized dispositions; other class A, B, certain C and D felo-
nies [and multiple felony offenders].
1. Applicability. Except as provided in section 60.04 of this article
governing the authorized dispositions applicable to felony offenses
defined in article two hundred twenty [or two hundred twenty-one] of
this chapter or in section 60.13 of this article governing the author-
ized dispositions applicable to felony sex offenses defined in paragraph
(a) of subdivision one of section 70.80 of this title, this section
shall govern the dispositions authorized when a person is to be
sentenced upon a conviction of a class A felony, a class B felony or a
class C, class D or class E felony specified [herein, or when a person
is to be sentenced upon a conviction of a felony as a multiple felony
offender] IN THIS SECTION.
2. Class A felony. [Except as provided in subdivisions three and four
of section 70.06 of this chapter, every] EVERY person convicted of a
class A felony must be sentenced [to imprisonment] in accordance with
section 70.00 of this title[, unless such person is convicted of murder
in the first degree and is sentenced in accordance with section 60.06 of
this article].
3. Class B felony. [Except as provided in subdivision six of this
section, every] EVERY person convicted of a class B violent felony
offense as defined in subdivision one of section 70.02 of this title,
must be sentenced [to imprisonment] in accordance with such section
[70.02]; and[, except as provided in subdivision six of this section,]
every person convicted of any other class B felony must be sentenced [to
imprisonment] in accordance with section 70.00 of this title.
4. Certain class C felonies. [Except as provided in subdivision six,
every] EVERY person convicted of a class C violent felony offense as
defined in subdivision one of section 70.02 of this title, must be
sentenced [to imprisonment] in accordance with section 70.02 of this
title[; and, except as provided in subdivision six of this section,
every person convicted of the class C felonies of: attempt to commit any
of the class B felonies of bribery in the first degree as defined in
section 200.04, bribe receiving in the first degree as defined in
section 200.12, conspiracy in the second degree as defined in section
105.15 and criminal mischief in the first degree as defined in section
145.12; criminal usury in the first degree as defined in section 190.42,
rewarding official misconduct in the first degree as defined in section
200.22, receiving reward for official misconduct in the first degree as
defined in section 200.27, attempt to promote prostitution in the first
degree as defined in section 230.32, promoting prostitution in the
second degree as defined in section 230.30, arson in the third degree as
A. 2036 24
defined in section 150.10 of this chapter, must be sentenced to impri-
sonment in accordance with section 70.00 of this title].
5. Certain class D felonies. [Except as provided in subdivision six of
this section, every] EVERY person convicted of the class D felonies of
assault in the second degree as defined in section 120.05, strangulation
in the second degree as defined in section 121.12 or attempt to commit a
class C felony as defined in section 230.30 of this chapter, must be
sentenced in accordance with section 70.00 or 85.00 of this title.
6. [Multiple felony offender. When the court imposes sentence upon a
second violent felony offender, as defined in section 70.04, or a second
felony offender, as defined in section 70.06, the court must impose a
sentence of imprisonment in accordance with section 70.04 or 70.06, as
the case may be, unless it imposes a sentence of imprisonment in accord-
ance with section 70.08 or 70.10.
7.] Fines. Where the court imposes a sentence of imprisonment in
accordance with this section, the court also may impose a fine author-
ized by article eighty OF THIS TITLE and in such case the sentence shall
be both imprisonment and a fine.
[8.] 7. Shock incarceration participation. (a) When the court imposes
a determinate sentence of imprisonment pursuant to subdivision [three]
TWO of section 70.02 of this [chapter or subdivision six of section
70.06 of this chapter upon a person who stands convicted either of
burglary in the second degree as defined in subdivision two of section
140.25 of this chapter or robbery in the second degree as defined in
subdivision one of section 160.10 of this chapter, or an attempt there-
of] TITLE, upon motion of the defendant, the court may issue an order
directing that the department of corrections and community supervision
enroll the defendant in the shock incarceration program as defined in
article twenty-six-A of the correction law, provided that the defendant
is an eligible incarcerated individual, as described in subdivision one
of section eight hundred sixty-five of the correction law. Notwithstand-
ing the foregoing provisions of this subdivision, any defendant to be
enrolled in such program pursuant to this subdivision shall be governed
by the same rules and regulations promulgated by the department of
corrections and community supervision, including without limitation
those rules and regulations establishing requirements for completion and
such rules and regulations governing discipline and removal from the
program.
(b) Paragraph b of subdivision seven of section 60.04 of this article
shall apply in the event an incarcerated individual designated by court
order for enrollment in the shock incarceration program requires a
degree of medical care or mental health care that cannot be provided at
a shock incarceration facility.
§ 28. Paragraph (ii) of subdivision b of section 60.09 of the penal
law, as added by chapter 410 of the laws of 1979, is amended to read as
follows:
(ii) if the conviction was for a class A-II offense the court may
impose a new minimum term which shall be [no less than three years
imprisonment and] no more than eight and one-third years;
§ 29. Section 60.10 of the penal law, as amended by chapter 411 of the
laws of 1979, is amended to read as follows:
§ 60.10 Authorized disposition; juvenile offender.
1. When a juvenile offender is convicted of a crime, the court shall
sentence the defendant [to imprisonment] in accordance with section
70.05 OF THIS TITLE or sentence him upon a youthful offender finding in
accordance with section 60.02 of this [chapter] ARTICLE.
A. 2036 25
2. Subdivision one of this section shall apply when sentencing a juve-
nile offender notwithstanding the provisions of any other law that deals
with the authorized sentence for persons who are not juvenile offenders.
[Provided, however, that the limitation prescribed by this section shall
not be deemed or construed to bar use of a conviction of a juvenile
offender, other than a juvenile offender who has been adjudicated a
youthful offender pursuant to section 720.20 of the criminal procedure
law, as a previous or predicate felony offender under section 70.04,
70.06, 70.08 or 70.10, when sentencing a person who commits a felony
after he has reached the age of sixteen.]
§ 30. Section 60.12 of the penal law, as amended by chapter 31 of the
laws of 2019, subdivision 1 as amended by section 1 of part WW of chap-
ter 55 of the laws of 2019, is amended to read as follows:
§ 60.12 Authorized disposition; alternative sentence; domestic violence
cases.
1. Notwithstanding any other provision of law, where a court is impos-
ing sentence upon a person pursuant to section 70.00, 70.02[, 70.06] or
subdivision two or three of section 70.71 of this title, [other than for
an offense defined in section 125.26, 125.27, subdivision five of
section 125.25, or article 490 of this chapter, or for an offense which
would require such person to register as a sex offender pursuant to
article six-C of the correction law, an attempt or conspiracy to commit
any such offense,] and is authorized [or required] pursuant to sections
70.00, 70.02[, 70.06] or subdivision two or three of section 70.71 of
this title to impose a sentence of imprisonment, the court, upon a
determination following a hearing that (a) at the time of the instant
offense, the defendant was a victim of domestic violence subjected to
substantial physical, sexual or psychological abuse inflicted by a
member of the same family or household as the defendant as such term is
defined in subdivision one of section 530.11 of the criminal procedure
law; (b) such abuse was a significant contributing factor to the defend-
ant's criminal behavior; (c) having regard for the nature and circum-
stances of the crime and the history, character and condition of the
defendant, that a sentence of imprisonment pursuant to section 70.00,
70.02[, 70.06] or subdivision two or three of section 70.71 of this
title would be unduly harsh may instead impose a sentence in accordance
with this section, EXCEPT THAT NOTHING IN THIS SECTION SHALL RELIEVE THE
PROSECUTION OF ITS BURDEN UNDER THE PROVISIONS OF SECTION 60.03 OF THIS
ARTICLE, OR ABROGATE THE PROCESS AFFORDED THE DEFENDANT IN SUCH SECTION.
A court may determine that such abuse constitutes a significant
contributing factor pursuant to paragraph (b) of this subdivision
regardless of whether the defendant raised a defense pursuant to article
thirty-five, article forty, or subdivision one of section 125.25 of this
chapter.
At the hearing to determine whether the defendant should be sentenced
pursuant to this section, the court shall consider oral and written
arguments, take testimony from witnesses offered by either party, and
consider relevant evidence to assist in making its determination. Reli-
able hearsay shall be admissible at such hearings.
2. Where a court would otherwise be required to impose a sentence
pursuant to section 70.02 of this title, the court may impose a definite
sentence of imprisonment of one year or less, or probation in accordance
with the provisions of section 65.00 of this title, or may fix a deter-
minate term of imprisonment as follows:
(a) For a class B felony, the term must be at least one year and must
not exceed five years;
A. 2036 26
(b) For a class C felony, the term must be at least one year and must
not exceed three and one-half years;
(c) For a class D felony, the term must be at least one year and must
not exceed two years; and
(d) For a class E felony, the term must be one year and must not
exceed one and one-half years.
3. Where a court would otherwise be required to impose a sentence for
a class A felony offense pursuant to section 70.00 of this title, the
court may fix a determinate term of imprisonment of at least [five
years] ONE YEAR and not to exceed fifteen years, OR IMPOSE A DEFINITE
SENTENCE OF IMPRISONMENT OF ONE YEAR OR LESS, OR PROBATION IN ACCORDANCE
WITH THE PROVISIONS OF SECTION 65.00 OF THIS TITLE.
4. Where a court would otherwise be required to impose a sentence for
a class A felony offense pursuant to subparagraph (i) of paragraph (b)
of subdivision two of section 70.71 of this title, the court may fix a
determinate term of imprisonment of at least [five years] ONE YEAR and
not to exceed eight years, OR IMPOSE A DEFINITE SENTENCE OF IMPRISONMENT
OF ONE YEAR OR LESS, OR PROBATION IN ACCORDANCE WITH THE PROVISIONS OF
SECTION 65.00 OF THIS TITLE.
5. Where a court would otherwise be required to impose a sentence for
a class A felony offense pursuant to subparagraph (i) of paragraph (b)
of subdivision three of section 70.71 of this title, the court may fix a
determinate term of imprisonment of at least [five years] ONE YEAR and
not to exceed twelve years, OR IMPOSE A DEFINITE SENTENCE OF IMPRISON-
MENT OF ONE YEAR OR LESS, OR PROBATION IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 65.00 OF THIS TITLE.
6. Where a court would otherwise be required to impose a sentence for
a class A felony offense pursuant to subparagraph (ii) of paragraph (b)
of subdivision two of section 70.71 of this title, the court may fix a
determinate term of imprisonment of at least one year and not to exceed
three years, OR IMPOSE A DEFINITE SENTENCE OF IMPRISONMENT OF ONE YEAR
OR LESS, OR PROBATION IN ACCORDANCE WITH THE PROVISIONS OF SECTION 65.00
OF THIS TITLE.
7. Where a court would otherwise be required to impose a sentence for
a class A felony offense pursuant to subparagraph (ii) of paragraph (b)
of subdivision three of section 70.71 of this title, the court may fix a
determinate term of imprisonment of at least [three years] ONE YEAR and
not to exceed six years, OR IMPOSE A DEFINITE SENTENCE OF IMPRISONMENT
OF ONE YEAR OR LESS, OR PROBATION IN ACCORDANCE WITH THE PROVISIONS OF
SECTION 65.00 OF THIS TITLE.
[8. Where a court would otherwise be required to impose a sentence
pursuant to subdivision six of section 70.06 of this title, the court
may fix a term of imprisonment as follows:
(a) For a class B felony, the term must be at least three years and
must not exceed eight years;
(b) For a class C felony, the term must be at least two and one-half
years and must not exceed five years;
(c) For a class D felony, the term must be at least two years and must
not exceed three years;
(d) For a class E felony, the term must be at least one and one-half
years and must not exceed two years.
9. Where a court would otherwise be required to impose a sentence for
a class B, C, D or E felony offense pursuant to section 70.00 of this
title, the court may impose a sentence in accordance with the provisions
of subdivision two of section 70.70 of this title.
A. 2036 27
10. Except as provided in subdivision seven of this section, where a
court would otherwise be required to impose a sentence pursuant to
subdivision three of section 70.06 of this title, the court may impose a
sentence in accordance with the provisions of subdivision three of
section 70.70 of this title.
11. Where a court would otherwise be required to impose a sentence
pursuant to subdivision three of section 70.06 of this title, where the
prior felony conviction was for a felony offense defined in section
70.02 of this title, the court may impose a sentence in accordance with
the provisions of subdivision four of section 70.70 of this title.]
§ 31. Subdivision h of section 74 of chapter 3 of the laws of 1995,
enacting the sentencing reform act of 1995, as amended by section 8 of
part A of chapter 55 of the laws of 2021, is amended to read as follows:
h. Section fifty-two of this act shall be deemed to have been in full
force and effect on and after April 1, 1995; provided, however, that the
provisions of section 189 of the correction law, as amended by section
fifty-five of this act[, subdivision 5 of section 60.35 of the penal
law, as amended by section fifty-six of this act,] and section fifty-
seven of this act shall expire September 1, 2023, when upon such date
the amendments to the correction law [and penal law] made by [sections]
SECTION fifty-five [and fifty-six] of this act shall revert to and be
read as if the provisions of this act had not been enacted; provided,
however, that sections sixty-two, sixty-three and sixty-four of this act
shall be deemed to have been in full force and effect on and after March
1, 1995 and shall be deemed repealed April 1, 1996 and upon such date
the provisions of subsection (e) of section 9110 of the insurance law
and subdivision 2 of section 89-d of the state finance law shall revert
to and be read as set out in law on the date immediately preceding the
effective date of sections sixty-two and sixty-three of this act;
§ 32. Section 65.00 of the penal law, subdivisions 1 and 2 as amended
by chapter 835 of the laws of 1974, the opening paragraph of paragraph
(a) of subdivision 1 as amended by chapter 738 of the laws of 2004, the
opening paragraph of paragraph (b) of subdivision 1 as amended by
section 19 and subparagraph (ii) of paragraph (a) of subdivision 3 as
amended by section 20 of part AAA of chapter 56 of the laws of 2009, the
closing paragraph of subdivision 1 as amended by chapter 3 of the laws
of 1995, subdivision 3 as amended by chapter 264 of the laws of 2003,
subparagraph (i) of paragraph (a), subparagraph (i) of paragraph (b) and
paragraph (d) of subdivision 3 as amended by chapter 556 of the laws of
2013, paragraph (c) of subdivision 3 as amended by chapter 568 of the
laws of 2004, the closing paragraph of subdivision 3 as amended by chap-
ter 320 of the laws of 2006, subdivision 4 as amended by chapter 17 of
the laws of 2014, and subdivision 5 as amended by chapter 264 of the
laws of 2003 and as renumbered by chapter 556 of the laws of 2013, is
amended to read as follows:
§ 65.00 Sentence of probation.
1. [Criteria. (a) Except as otherwise required by section 60.04 or
60.05 of this title, and except as provided by paragraph (b) hereof, the
court may sentence a person to a period of probation upon conviction of
any crime if the court, having regard to the nature and circumstances of
the crime and to the history, character and condition of the defendant,
is of the opinion that:
(i) Institutional confinement for the term authorized by law of the
defendant is or may not be necessary for the protection of the public;
A. 2036 28
(ii) the defendant is in need of guidance, training or other assist-
ance which, in his case, can be effectively administered through
probation supervision; and
(iii) such disposition is not inconsistent with the ends of justice.
(b) The court, with the concurrence of either the administrative judge
of the court or of the judicial district within which the court is situ-
ated or such administrative judge as the presiding justice of the appro-
priate appellate division shall designate, may sentence a person to a
period of probation upon conviction of a class A-II felony defined in
article two hundred twenty, 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 where the person is a second felony drug
offender as defined in paragraph (b) of subdivision one of section 70.70
of this chapter, if the prosecutor either orally on the record or in a
writing filed with the indictment recommends that the court sentence
such person to a period of probation upon the ground that such person
has or is providing material assistance in the investigation, apprehen-
sion or prosecution of any person for a felony defined in article two
hundred twenty or the attempt or the conspiracy to commit any such felo-
ny, and if the court, having regard to the nature and circumstances of
the crime and to the history, character and condition of the defendant
is of the opinion that:
(i) Institutional confinement of the defendant is not necessary for
the protection of the public;
(ii) The defendant is in need of guidance, training or other assist-
ance which, in his case, can be effectively administered through
probation supervision;
(iii) The defendant has or is providing material assistance in the
investigation, apprehension or prosecution of a person for a felony
defined in article two hundred twenty or the attempt or conspiracy to
commit any such felony; and
(iv) Such disposition is not inconsistent with the ends of justice.
Provided, however, that the court shall not, except to the extent
authorized by paragraph (d) of subdivision two of section 60.01 of this
chapter, impose a sentence of probation in any case where it sentences a
defendant for more than one crime and imposes a sentence of imprisonment
for any one of the crimes, or where the defendant is subject to an
undischarged indeterminate or determinate sentence of imprisonment which
was imposed at a previous time by a court of this state and has more
than one year to run.
2.] Sentence. When a person is sentenced to a period of probation the
court shall, except to the extent authorized by paragraph (d) of subdi-
vision two of section 60.01 of this [chapter] TITLE, impose the period
authorized by subdivision [three] TWO of this section and shall specify,
in accordance with section 65.10 OF THIS ARTICLE, the conditions to be
complied with. The court may modify or enlarge the conditions or, if the
defendant commits an additional offense or violates a condition, revoke
the sentence at any time prior to the expiration or termination of the
period of probation.
[3.] 2. Periods of probation. Unless terminated sooner in accordance
with the criminal procedure law, the period of probation shall be as
follows:
(a) (i) For a felony, other than a class A-II felony defined in arti-
cle 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
A. 2036 29
drug offender,] or a sexual assault, the period of probation shall [be a
term of three, four or] NOT EXCEED five years;
(ii) For a class A-II felony drug offender as defined in paragraph (a)
of subdivision one of section 70.71 of this [chapter as described in
paragraph (b) of subdivision one of this section, or a class B felony
committed by a second felony drug offender described in paragraph (b) of
subdivision one of this section, the] TITLE, ANY period of probation
[shall be life] MAY BE IMPOSED and for a class B felony defined in
section 220.48 of this chapter, the period of probation shall [be] NOT
EXCEED twenty-five years;
(iii) For a felony sexual assault, the period of probation shall [be]
NOT EXCEED ten years.
(b) (i) For a class A misdemeanor, other than a sexual assault, the
period of probation shall [be] NOT EXCEED a term of [two or] three
years;
(ii) For a class A misdemeanor sexual assault, the period of probation
shall [be] NOT EXCEED six years.
(c) For a class B misdemeanor, the period of probation shall [be] NOT
EXCEED one year, except the period of probation shall [be no less than
one year and no more than] NOT EXCEED three years for the class B misde-
meanor of public lewdness as defined in section 245.00 of this chapter;
(d) For an unclassified misdemeanor, the period of probation shall
[be] NOT EXCEED 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] NOT EXCEED one year.
For the purposes of this section, the term "sexual assault" means an
offense defined in article one hundred thirty or two hundred sixty-
three, or in section 255.25, 255.26 or 255.27 of this chapter, or an
attempt to commit any of the foregoing offenses.
[4.] 3. If during the periods of probation referenced in subparagraph
(i) of paragraph (a), subparagraph (i) of paragraph (b) and paragraph
(d) of subdivision [three] TWO of this section an alleged violation is
sustained following a hearing pursuant to section 410.70 of the criminal
procedure law and the court continues or modifies the sentence, the
court may extend the remaining period of probation up to the maximum
term authorized by this section. Provided, however, a defendant shall
receive credit for the time during which he or she was supervised under
the original probation sentence prior to any declaration of delinquency
and for any time spent in custody pursuant to this article for an
alleged violation of probation.
[5.] 4. In any case where a court pursuant to its authority under
subdivision four of section 60.01 of this [chapter] TITLE revokes
probation and sentences such person to imprisonment and probation, as
provided in paragraph (d) of subdivision two of section 60.01 of this
[chapter] TITLE, the period of probation shall be the remaining period
of the original probation sentence or one year whichever is greater.
§ 33. Section 65.05 of the penal law, subdivision 1 as added by chap-
ter 277 of the laws of 1973, paragraph (a) of subdivision 1 and subdivi-
sion 2 as amended by chapter 742 of the laws of 1981 and subdivision 3
as amended by chapter 618 of the laws of 1992, is amended to read as
follows:
§ 65.05 Sentence of conditional discharge.
1. [Criteria. (a) Except as otherwise required by section 60.05, the
court may impose a sentence of conditional discharge for an offense if
the court, having regard to the nature and circumstances of the offense
and to the history, character and condition of the defendant, is of the
A. 2036 30
opinion that neither the public interest nor the ends of justice would
be served by a sentence of imprisonment and that probation supervision
is not appropriate.
(b) When a sentence of conditional discharge is imposed for a felony,
the court shall set forth in the record the reasons for its action.
2.] Sentence. Except to the extent authorized by paragraph (d) of
subdivision two of section 60.01 of this [chapter] TITLE, when the court
imposes a sentence of conditional discharge the defendant shall be
released with respect to the conviction for which the sentence is
imposed without imprisonment or probation supervision but subject,
during the period of conditional discharge, to such conditions as the
court may determine. The court shall impose the period of conditional
discharge authorized by subdivision three of this section and shall
specify, in accordance with section 65.10 OF THIS ARTICLE, the condi-
tions to be complied with. If a defendant is sentenced pursuant to
paragraph (e) of subdivision two of section 65.10 of this [chapter]
ARTICLE, the court shall require the administrator of the program to
provide written notice to the court of any violation of program partic-
ipation by the defendant. The court may modify or enlarge the conditions
or, if the defendant commits an additional offense or violates a condi-
tion, revoke the sentence at any time prior to the expiration or termi-
nation of the period of conditional discharge.
[3.] 2. Periods of conditional discharge. Unless terminated sooner in
accordance with the criminal procedure law, the period of conditional
discharge shall be as follows:
(a) [Three] UP TO THREE years in the case of a felony; and
(b) [One] UP TO ONE year in the case of a misdemeanor or a violation.
Where the court has required, as a condition of the sentence, that the
defendant make restitution of the fruits of his or her offense or make
reparation for the loss caused thereby and such condition has not been
satisfied, the court, at any time prior to the expiration or termination
of the period of conditional discharge, may impose an additional period.
The length of the additional period shall be fixed by the court at the
time it is imposed and shall not be more than two years. All of the
incidents of the original sentence, including the authority of the court
to modify or enlarge the conditions, shall continue to apply during such
additional period.
§ 34. Section 65.20 of the penal law is amended to read as follows:
§ 65.20 Sentence of unconditional discharge.
[1. Criteria. The court may impose a sentence of unconditional
discharge in any case where it is authorized to impose a sentence of
conditional discharge under section 65.05 if the court is of the opinion
that no proper purpose would be served by imposing any condition upon
the defendant's release.
When a sentence of unconditional discharge is imposed for a felony,
the court shall set forth in the record the reasons for its action.
2. Sentence.] When the court imposes a sentence of unconditional
discharge, the defendant shall be released with respect to the
conviction for which the sentence is imposed without imprisonment, fine
or probation supervision. A sentence of unconditional discharge is for
all purposes a final judgment of conviction.
§ 35. Subdivision 2 of section 85.00 of the penal law, as added by
chapter 477 of the laws of 1970, paragraph (a) as amended by chapter 277
of the laws of 1973, is amended to read as follows:
2. Authorization for use of sentence. The court may impose a sentence
of intermittent imprisonment in any case where:
A. 2036 31
(a) [the court is imposing sentence, upon a person other than a second
or persistent felony offender, for a class D or class E felony or for
any offense that is not a felony; and
(b)] the court is not imposing any other sentence of imprisonment upon
the defendant at the same time; and
[(c)] (B) the defendant is not under any other sentence of imprison-
ment with a term in excess of fifteen days imposed by any other court[;
and].
§ 36. Subdivisions 3, 4 and 5 of section 485.10 of the penal law,
subdivisions 3 and 4 as added by chapter 107 of the laws of 2000 and
subdivision 5 as amended by chapter 624 of the laws of 2022, are amended
to read as follows:
3. [Notwithstanding any other provision of law, when a person is
convicted of a hate crime pursuant to this article and the specified
offense is a class B felony:
(a) the maximum term of the indeterminate sentence must be at least
six years if the defendant is sentenced pursuant to section 70.00 of
this chapter;
(b) the term of the determinate sentence must be at least eight years
if the defendant is sentenced pursuant to section 70.02 of this chapter;
(c) the term of the determinate sentence must be at least twelve years
if the defendant is sentenced pursuant to section 70.04 of this chapter;
(d) the maximum term of the indeterminate sentence must be at least
four years if the defendant is sentenced pursuant to section 70.05 of
this chapter; and
(e) the maximum term of the indeterminate sentence or the term of the
determinate sentence must be at least ten years if the defendant is
sentenced pursuant to section 70.06 of this chapter.
4. Notwithstanding any other provision of law, when a person is
convicted of a hate crime pursuant to this article and the specified
offense is a class A-1 felony, the minimum period of the indeterminate
sentence shall be not less than twenty years.
5.] In addition to any of the dispositions authorized by this chapter,
the court shall require as part of the sentence imposed upon a person
convicted of a hate crime pursuant to this article, that the defendant
complete a program, training session or counseling session directed at
hate crime prevention and education, where the court determines such
program, training session or counseling session is appropriate, avail-
able and was developed or authorized by the court or local agencies in
cooperation with organizations serving the affected community.
§ 37. Paragraph (d) of subdivision 2 of section 490.25 of the penal
law is REPEALED.
§ 38. Sections 220.35, 400.15, 400.16, 400.19, 400.20 and 400.21 of
the criminal procedure law are REPEALED.
§ 39. Subdivision 6 of section 2 of the correction law, as amended by
chapter 476 of the laws of 1970, is amended to read as follows:
6. "Residential treatment facility". A correctional facility consist-
ing of a community based residence in or near a community where employ-
ment, educational and training opportunities are readily available for
persons who [are on parole or conditional release and for persons who]
are or who will soon be eligible for release on parole who intend to
reside in or near that community when released.
§ 40. Subdivision 10 of section 73 of the correction law is REPEALED.
§ 41. Subdivision 1 of section 865 of the correction law, as amended
by chapter 322 of the laws of 2021, is amended to read as follows:
A. 2036 32
1. "Eligible incarcerated individual" means a person sentenced to an
indeterminate term of imprisonment who will become eligible for release
on parole within three years or sentenced to a determinate term of
imprisonment who will become eligible for conditional release within
three years[, who has not reached the age of fifty years, who has not
previously been convicted of a violent felony as defined in article
seventy of the penal law, or a felony in any other jurisdiction which
includes all of the essential elements of any such violent felony, upon
which an indeterminate or determinate term of imprisonment was imposed
and who was between the ages of sixteen and fifty years at the time of
commission of the crime upon which his or her present sentence was
based. Notwithstanding the foregoing, no person who is convicted of any
of the following crimes shall be deemed eligible to participate in this
program: (a) a violent felony offense as defined in article seventy of
the penal law; provided, however, that a person who is convicted of
burglary in the second degree as defined in subdivision two of section
140.25 of the penal law, or robbery in the second degree as defined in
subdivision one of section 160.10 of the penal law, or an attempt there-
of, is eligible to participate, (b) an A-I felony offense, (c) any homi-
cide offense as defined in article one hundred twenty-five of the penal
law, (d) any felony sex offense as defined in article one hundred thirty
of the penal law and (e) any escape or absconding offense as defined in
article two hundred five of the penal law].
§ 42. Section 220.10 of the criminal procedure law, as amended by
chapter 480 of the laws of 1976, subdivision 5 as amended by chapter 410
of the laws of 1979, subparagraph (i) of paragraph (a) of subdivision 5
as amended by chapter 738 of the laws of 2004, paragraph (d) of subdivi-
sion 5 as added by chapter 233 of the laws of 1980, subparagraph (iv) of
paragraph (d) of subdivision 5 as amended by chapter 189 of the laws of
2000, paragraph (e) of subdivision 5 as amended by chapter 1 of the laws
of 1995, subparagraph (iii) of paragraph (g) of subdivision 5 as amended
by chapter 264 of the laws of 2003, the second undesignated paragraph of
paragraph (g) of subdivision 5 as amended by chapter 920 of the laws of
1982, the closing paragraph of paragraph (g) of subdivision 5 as amended
by chapter 411 of the laws of 1979, paragraph (g-1) of subdivision 5 as
added by chapter 809 of the laws of 2021, paragraph (h) of subdivision 5
as amended by chapter 322 of the laws of 2021 and subdivision 6 as added
by chapter 548 of the laws of 1980, is amended to read as follows:
§ 220.10 Plea; kinds of pleas.
The only kinds of pleas which may be entered to an indictment are
those specified in this section:
1. The defendant may as a matter of right enter a plea of "not guilty"
to the indictment.
2. [Except as provided in subdivision five, the] THE defendant may as
a matter of right enter a plea of "guilty" to the entire indictment.
3. [Except as provided in subdivision five, where] WHERE the indict-
ment charges but one crime, the defendant may, with [both] EITHER the
permission of the court [and] IN FURTHERANCE OF JUSTICE IN ACCORDANCE
WITH THE FACTORS OUTLINED IN SUBDIVISION ONE OF SECTION 210.40 OF THIS
PART, OR the consent of the people WITH THE PERMISSION OF THE COURT,
enter a plea of guilty of a lesser included offense.
4. [Except as provided in subdivision five, where] WHERE the indict-
ment charges two or more offenses in separate counts, the defendant may,
with [both] EITHER the permission of the court [and] IN FURTHERANCE OF
JUSTICE IN ACCORDANCE WITH THE FACTORS OUTLINED IN SUBDIVISION ONE OF
A. 2036 33
SECTION 210.40 OF THIS PART, OR the consent of the people WITH THE
PERMISSION OF THE COURT, enter a plea of:
(a) Guilty of one or more but not all of the offenses charged; or
(b) Guilty of a lesser included offense with respect to any or all of
the offenses charged; or
(c) Guilty of any combination of offenses charged and lesser offenses
included within other offenses charged.
5. [(a) (i) Where the indictment charges one of the class A felonies
defined in article two hundred twenty of the penal law or the attempt to
commit any such class A felony, then any plea of guilty entered pursuant
to subdivision three or four of this section must be or must include at
least a plea of guilty of a class B felony.
(iii) Where the indictment charges one of the class B felonies defined
in article two hundred twenty of the penal law then any plea of guilty
entered pursuant to subdivision three or four must be or must include at
least a plea of guilty of a class D felony.
(b) Where the indictment charges any class B felony, other than a
class B felony defined in article two hundred twenty of the penal law or
a class B violent felony offense as defined in subdivision one of
section 70.02 of the penal law, then any plea of guilty entered pursuant
to subdivision three or four must be or must include at least a plea of
guilty of a felony.
(c) Where the indictment charges a felony, other than a class A felony
or class B felony defined in article two hundred twenty of the penal law
or class B or class C violent felony offense as defined in subdivision
one of section 70.02 of the penal law, and it appears that the defendant
has previously been subjected to a predicate felony conviction as
defined in penal law section 70.06 then any plea of guilty entered
pursuant to subdivision three or four must be or must include at least a
plea of guilty of a felony.
(d) Where the indictment charges a class A felony, other than those
defined in article two hundred twenty of the penal law, or charges a
class B or class C violent felony offense as defined in subdivision one
of section 70.02 of the penal law, then a plea of guilty entered pursu-
ant to subdivision three or four must be as follows:
(i) Where the indictment charges a class A felony offense or a class B
violent felony offense which is also an armed felony offense then a plea
of guilty must include at least a plea of guilty to a class C violent
felony offense;
(ii) Except as provided in subparagraph (i) of this paragraph, where
the indictment charges a class B violent felony offense or a class C
violent felony offense, then a plea of guilty must include at least a
plea of guilty to a class D violent felony offense;
(iii) Where the indictment charges the class D violent felony offense
of criminal possession of a weapon in the third degree as defined in
subdivision four of section 265.02 of the penal law, and the defendant
has not been previously convicted of a class A misdemeanor defined in
the penal law in the five years preceding the commission of the offense,
then a plea of guilty must be either to the class E violent felony
offense of attempted criminal possession of a weapon in the third degree
or to the class A misdemeanor of criminal possession of a weapon in the
fourth degree as defined in subdivision one of section 265.01 of the
penal law;
(iv) Where the indictment charges the class D violent felony offenses
of criminal possession of a weapon in the third degree as defined in
subdivision four of section 265.02 of the penal law and the provisions
A. 2036 34
of subparagraph (iii) of this paragraph do not apply, or subdivision
five, seven or eight of section 265.02 of the penal law, then a plea of
guilty must include at least a plea of guilty to a class E violent felo-
ny offense.
(e) A defendant may not enter a plea of guilty to the crime of murder
in the first degree as defined in section 125.27 of the penal law;
provided, however, that a defendant may enter such a plea with both the
permission of the court and the consent of the people when the agreed
upon sentence is either life imprisonment without parole or a term of
imprisonment for the class A-I felony of murder in the first degree
other than a sentence of life imprisonment without parole.
(f) The provisions of this subdivision shall apply irrespective of
whether the defendant is thereby precluded from entering a plea of guil-
ty of any lesser included offense.
(g)] Where the defendant is a juvenile offender, [the provisions of
paragraphs (a), (b), (c) and (d) of this subdivision shall not apply
and] any plea entered pursuant to subdivision three or four of this
section, must be as follows:
[(i)] (A) If the indictment charges a person fourteen or fifteen years
old with the crime of murder in the second degree any plea of guilty
entered pursuant to subdivision three or four must be a plea of guilty
of a crime for which the defendant is criminally responsible;
[(ii)] (B) If the indictment does not charge a crime specified in
[subparagraph (i)] PARAGRAPH (A) of this [paragraph] SUBDIVISION, then
any plea of guilty entered pursuant to subdivision three or four of this
section must be a plea of guilty of a crime for which the defendant is
criminally responsible unless a plea of guilty is accepted pursuant to
[subparagraph (iii)] PARAGRAPH (C) of this [paragraph] SUBDIVISION;
[(iii)] (C) Where the indictment does not charge a crime specified in
[subparagraph (i)] PARAGRAPH (A) of this [paragraph] SUBDIVISION, the
district attorney may recommend removal of the action to the family
court. Upon making such recommendation the district attorney shall
submit a subscribed memorandum setting forth: [(1)] (I) a recommendation
that the interests of justice would best be served by removal of the
action to the family court; and [(2)] (II) if the indictment charges a
thirteen year old with the crime of murder in the second degree, or a
fourteen or fifteen year old with the crimes of rape in the first degree
as defined in subdivision one of section 130.35 of the penal law, or
criminal sexual act in the first degree as defined in subdivision one of
section 130.50 of the penal law, or an armed felony as defined in para-
graph (a) of subdivision forty-one of section 1.20 of this chapter
specific factors, one or more of which reasonably supports the recommen-
dation, showing, [(i)] (1) mitigating circumstances that bear directly
upon the manner in which the crime was committed, or [(ii)] (2) where
the defendant was not the sole participant in the crime, that the
defendant's participation was relatively minor although not so minor as
to constitute a defense to the prosecution, or [(iii)] (3) possible
deficiencies in proof of the crime, or [(iv)] (4) where the juvenile
offender has no previous adjudications of having committed a designated
felony act, as defined in subdivision eight of section 301.2 of the
family court act, regardless of the age of the offender at the time of
commission of the act, that the criminal act was not part of a pattern
of criminal behavior and, in view of the history of the offender, is not
likely to be repeated.
If the court is of the opinion based on specific factors set forth in
the district attorney's memorandum that the interests of justice would
A. 2036 35
best be served by removal of the action to the family court, a plea of
guilty of a crime or act for which the defendant is not criminally
responsible may be entered pursuant to subdivision three or four of this
section, except that a thirteen year old charged with the crime of
murder in the second degree may only plead to a designated felony act,
as defined in subdivision eight of section 301.2 of the family court
act.
Upon accepting any such plea, the court must specify upon the record
the portion or portions of the district attorney's statement the court
is relying upon as the basis of its opinion and that it believes the
interests of justice would best be served by removal of the proceeding
to the family court. Such plea shall then be deemed to be a juvenile
delinquency fact determination and the court upon entry thereof must
direct that the action be removed to the family court in accordance with
the provisions of article seven hundred twenty-five of this chapter.
[(g-1)] 5-A. Where a defendant is an adolescent offender, the
provisions of paragraphs (a), (b)[,] AND (c) [and (d)] of [this] subdi-
vision FIVE OF THIS SECTION shall not apply. Where the plea is to an
offense constituting a misdemeanor, the plea shall be deemed replaced by
an order of fact-finding in a juvenile delinquency proceeding, pursuant
to section 346.1 of the family court act, and the action shall be
removed to the family court in accordance with article seven hundred
twenty-five of this chapter. Where the plea is to an offense constitut-
ing a felony, the court may remove the action to the family court in
accordance with section 722.23 and article seven hundred twenty-five of
this chapter.
[(h) Where the indictment charges the class E felony offense of aggra-
vated harassment of an employee by an incarcerated individual as defined
in section 240.32 of the penal law, then a plea of guilty must include
at least a plea of guilty to a class E felony.]
6. The defendant may, with both the permission of the court and the
consent of the people, enter a plea of not responsible by reason of
mental disease or defect to the indictment in the manner prescribed in
section 220.15 of this [chapter] ARTICLE.
§ 43. Subdivision 3 of section 220.30 of the criminal procedure law is
REPEALED.
§ 44. This act shall take effect immediately.