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This entry was published on 2021-08-13
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SECTION 60.04
Authorized disposition; controlled substances and marihuana felony offenses
Penal (PEN) CHAPTER 40, PART 2, TITLE E, ARTICLE 60
§ 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
multiple 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
accordance with the opening paragraph of paragraph (b) of subdivision
one of section 65.00 of this chapter.

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
authorized 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
offender 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
subdivision 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 correctional 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. 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
incarcerated 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 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. (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 attorney. 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 order
accordingly, notwithstanding the provisions of section 430.10 of the
criminal procedure law.

(ii) An incarcerated individual who successfully completes an
alternative-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.