Legislation

Search OpenLegislation Statutes
This entry was published on 2021-08-13
The selection dates indicate all change milestones for the entire volume, not just the location being viewed. Specifying a milestone date will retrieve the most recent version of the location before that date.
SECTION 70.30
Calculation of terms of imprisonment
Penal (PEN) CHAPTER 40, PART 2, TITLE E, ARTICLE 70
§ 70.30 Calculation of terms of imprisonment.

1. * Indeterminate or determinate sentences.

* NB Effective until September 1, 2023

* Indeterminate sentences.

* NB Effective September 1, 2023

* An indeterminate or determinate sentence of imprisonment commences
when the prisoner is received in an institution under the jurisdiction
of the state department of corrections and community supervision. Where
a person is under more than one indeterminate or determinate sentence,
the sentences shall be calculated as follows:

* NB Effective until September 1, 2023

* An indeterminate sentence of imprisonment commences when the
prisoner is received in an institution under the jurisdiction of the
state department of corrections and community supervision. Where a
person is under more than one indeterminate sentence, the sentences
shall be calculated as follows:

* NB Effective September 1, 2023

* (a) If the sentences run concurrently, the time served under
imprisonment on any of the sentences shall be credited against the
minimum periods of all the concurrent indeterminate sentences and
against the terms of all the concurrent determinate sentences. The
maximum 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;

* NB Effective until September 1, 2023

* (a) If the sentences run concurrently, the time served under
imprisonment on any of the sentences shall be credited against the
minimum periods of all the concurrent sentences, and the maximum terms
merge in and are satisfied by discharge of the term which has the
longest unexpired time to run;

* NB Effective September 1, 2023

* (b) If the defendant is serving two or more indeterminate sentences
which run consecutively, the minimum periods of imprisonment are added
to arrive at an aggregate minimum period of imprisonment equal to the
sum of all the minimum periods, and the maximum terms are added to
arrive at an aggregate maximum term equal to the sum of all the maximum
terms, provided, however, that both the aggregate maximum term and the
aggregate minimum period of imprisonment shall be subject to the
limitations set forth in paragraphs (e) and (f) of this subdivision,
where applicable;

* NB Effective until September 1, 2023

* (b) If the sentences run consecutively, the minimum periods of
imprisonment are added to arrive at an aggregate minimum period of
imprisonment equal to the sum of all the minimum periods, and the
maximum terms are added to arrive at an aggregate maximum term equal to
the sum of all the maximum terms, provided, however, that both the
aggregate maximum term and the aggregate minimum period of imprisonment
shall be subject to the limitations set forth in paragraphs (c) and (d)
of this subdivision, where applicable;

* NB Effective September 1, 2023

* (c) If the defendant is serving two or more determinate sentences of
imprisonment which run consecutively, the terms of the determinate
sentences are added to arrive at an aggregate maximum term of
imprisonment, provided, however, that the aggregate maximum term of
imprisonment shall be subject to the limitations set forth in paragraphs
(e) and (f) of this subdivision, where applicable.

* NB Effective until September 1, 2023

* (c) (i) Except as provided in subparagraph (ii) or (iii) of this
paragraph, the aggregate maximum term of consecutive sentences imposed
for two or more crimes, other than two or more crimes that include a
class A felony, committed prior to the time the person was imprisoned
under any of such sentences shall, if it exceeds twenty years, be deemed
to be twenty years, unless one of the sentences was imposed for a class
B felony, in which case the aggregate maximum term shall, if it exceeds
thirty years, be deemed to be thirty years. Where the aggregate maximum
term of two or more consecutive sentences is reduced by calculation made
pursuant to this paragraph, the aggregate minimum period of
imprisonment, if it exceeds one-half of the aggregate maximum term as so
reduced, shall be deemed to be one-half of the aggregate maximum term as
so reduced;

(ii) Notwithstanding subparagraph (i) of this paragraph, the aggregate
maximum term of consecutive sentences imposed for the conviction of two
violent felony offenses committed prior to the time the person was
imprisoned under any of such sentences and one of which is a class B
violent felony offense, shall, if it exceeds forty years, be deemed to
be forty years;

(iii) Notwithstanding subparagraphs (i) and (ii) of this paragraph,
the aggregate maximum term of consecutive sentences imposed for the
conviction of three or more violent felony offenses committed prior to
the time the person was imprisoned under any of such sentences and one
of which is a class B violent felony offense, shall, if it exceeds fifty
years, be deemed to be fifty years;

* NB Effective September 1, 2023

* (d) If the defendant is serving one or more indeterminate sentences
of imprisonment and one or more determinate sentence of imprisonment
which run consecutively, the minimum term or terms of the indeterminate
sentence or sentences and the term or terms of the determinate sentence
or sentences are added to arrive at an aggregate maximum term of
imprisonment, provided, however, (i) that in no event shall the
aggregate maximum so calculated be less than the term or maximum term of
imprisonment of the sentence which has the longest unexpired time to
run; and (ii) that the aggregate maximum term of imprisonment shall be
subject to the limitations set forth in paragraphs (e) and (f) of this
subdivision, where applicable.

* NB Effective until September 1, 2023

* (d) The aggregate maximum term of consecutive sentences imposed upon
a juvenile offender for two or more crimes, not including a class A
felony, committed before he has reached the age of sixteen, shall, if it
exceeds ten years, be deemed to be ten years. If consecutive
indeterminate 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 felony 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 consecutive sentences is reduced by a calculation made pursuant to
this paragraph, the aggregate minimum period of imprisonment, if it
exceeds one-half of the aggregate maximum term as so reduced, shall be
deemed to be one-half of the aggregate maximum term as so reduced.

* NB Effective September 1, 2023

* (e) (i) Except as provided in subparagraph (ii), (iii), (iv), (v),
(vi) or (vii) of this paragraph, the aggregate maximum term of
consecutive sentences, all of which are indeterminate sentences or all
of which are determinate sentences, imposed for two or more crimes,
other than two or more crimes that include a class A felony, committed
prior to the time the person was imprisoned under any of such sentences
shall, if it exceeds twenty years, be deemed to be twenty years, unless
one of the sentences was imposed for a class B felony, in which case the
aggregate maximum term shall, if it exceeds thirty years, be deemed to
be thirty years. Where the aggregate maximum term of two or more
indeterminate consecutive sentences is reduced by calculation made
pursuant to this paragraph, the aggregate minimum period of
imprisonment, if it exceeds one-half of the aggregate maximum term as so
reduced, shall be deemed to be one-half of the aggregate maximum term as
so reduced;

(ii) Where the aggregate maximum term of two or more consecutive
sentences, one or more of which is a determinate sentence and one or
more of which is an indeterminate sentence, imposed for two or more
crimes, other than two or more crimes that include a class A felony,
committed prior to the time the person was imprisoned under any of such
sentences, exceeds twenty years, and none of the sentences was imposed
for a class B felony, the following rules shall apply:

(A) if the aggregate maximum term of the determinate sentence or
sentences exceeds twenty years, the defendant shall be deemed to be
serving to a determinate sentence of twenty years.

(B) if the aggregate maximum term of the determinate sentence or
sentences is less than twenty years, the defendant shall be deemed to be
serving an indeterminate sentence the maximum term of which shall be
deemed to be twenty years. In such instances, the minimum sentence shall
be deemed to be ten years or six-sevenths of the term or aggregate
maximum term of the determinate sentence or sentences, whichever is
greater.

(iii) Where the aggregate maximum term of two or more consecutive
sentences, one or more of which is a determinate sentence and one or
more of which is an indeterminate sentence, imposed for two or more
crimes, other than two or more crimes that include a class A felony,
commmitted prior to the time the person was imprisoned under any of such
sentences, exceeds thirty years, and one of the sentences was imposed
for a class B felony, the following rules shall apply:

(A) if the aggregate maximum term of the determinate sentence or
sentences exceeds thirty years, the defendant shall be deemed to be
serving a determinate sentence of thirty years;

(B) if the aggregate maximum term of the determinate sentence or
sentences is less than thirty years, the defendant shall be deemed to be
serving an indeterminate sentence the maximum term of which shall be
deemed to be thirty years. In such instances, the minimum sentence shall
be deemed to be fifteen years or six-sevenths of the term or aggregate
maximum term of the determinate sentence or sentences, whichever is
greater.

(iv) Notwithstanding subparagraph (i) of this paragraph, the aggregate
maximum term of consecutive sentences, all of which are indeterminate
sentences or all of which are determinate sentences, imposed for the
conviction of two violent felony offenses committed prior to the time
the person was imprisoned under any of such sentences and one of which
is a class B violent felony offense, shall, if it exceeds forty years,
be deemed to be forty years;

(v) Notwithstanding subparagraphs (ii) and (iii) of this paragraph,
where the aggregate maximum term of two or more consecutive sentences,
one or more of which is a determinate sentence and one or more of which
is an indeterminate sentence, and where such sentences are imposed for
the conviction of two violent felony offenses committed prior to the
time the person was imprisoned under any such sentences and where one of
which is a class B violent felony offense, the following rules shall
apply:

(A) if the aggregate maximum term of the determinate sentence or
sentences exceeds forty years, the defendant shall be deemed to be
serving a determinate sentence of forty years;

(B) if the aggregate maximum term of the determinate sentence or
sentences is less than forty years, the defendant shall be deemed to be
serving an indeterminate sentence the maximum term of which shall be
deemed to be forty years. In such instances, the minimum sentence shall
be deemed to be twenty years or six-sevenths of the term or aggregate
maximum term of the determinate sentence or sentences, whichever is
greater.

(vi) Notwithstanding subparagraphs (i) and (iv) of this paragraph, the
aggregate maximum term of consecutive sentences, all of which are
indeterminate or all of which are determinate sentences, imposed for the
conviction of three or more violent felony offenses committed prior to
the time the person was imprisoned under any of such sentences and one
of which is a class B violent felony offense, shall, if it exceeds fifty
years, be deemed to be fifty years;

(vii) Notwithstanding subparagraphs (ii), (iii) and (v) of this
paragraph, where the aggregate maximum term of two or more consecutive
sentences, one or more of which is a determinate sentence and one or
more of which is an indeterminate sentence, and where such sentences are
imposed for the conviction of three or more violent felony offenses
committed prior to the time the person was imprisoned under any such
sentences and one of which is a class B violent felony offense, the
following rules shall apply:

(A) if the aggregate maximum term of the determinate sentence or
sentences exceeds fifty years, the defendant shall be deemed to be
serving a determinate sentence of fifty years.

(B) if the aggregate maximum term of the determinate sentence or
sentences is less than fifty years, the defendant shall be deemed to be
serving an indeterminate sentence the maximum term of which shall be
deemed to be fifty years. In such instances, the minimum sentence shall
be deemed to be twenty-five years or six-sevenths of the term or
aggregate maximum term of the determinate sentence or sentences,
whichever is greater.

(viii) Notwithstanding any provision of this subdivision to the
contrary where a person is serving two or more consecutive sentences,
one or more of which is an indeterminate sentence and one or more of
which is a determinate sentence, and if he would be eligible for a
reduction provision pursuant to this subdivision if the maximum term or
aggregate maximum term of the indeterminate sentence or sentences were
added to the term or aggregate maximum term of the determinate sentence
or sentences, the person shall be deemed to be eligible for the
applicable reduction provision and the rules set forth in this
subdivision shall apply.

* NB Effective until September 1, 2023

* (f) The aggregate maximum term of consecutive sentences imposed upon
a juvenile offender for two or more crimes, not including a class A
felony, committed before he has reached the age of sixteen, shall, if it
exceeds ten years, be deemed to be ten years. If consecutive
indeterminate 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 felony 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 consecutive sentences is reduced by a calculation made pursuant to
this paragraph, the aggregate minimum period of imprisonment, if it
exceeds one-half of the aggregate maximum term as so reduced, shall be
deemed to be one-half of the aggregate maximum term as so reduced.

* NB Effective until September 1, 2023

2. Definite sentences. A definite sentence of imprisonment commences
when the prisoner is received in the institution named in the
commitment. Where a person is under more than one definite sentence, the
sentences shall be calculated as follows:

(a) If the sentences run concurrently and are to be served in a single
institution, the terms merge in and are satisfied by discharge of the
term which has the longest unexpired time to run;

(b) If the sentences run consecutively and are to be served in a
single institution, the terms are added to arrive at an aggregate term
and are satisfied by discharge of such aggregate term, or by service of
two years imprisonment plus any term imposed for an offense committed
while the person is under the sentences, whichever is less;

(c) If the sentences run concurrently and are to be served in more
than one institution, the term of each such sentence shall be credited
with the portion of any concurrent term served after that sentence was
imposed;

(d) If the sentences run consecutively and are to be served in more
than one institution, the aggregate of the time served in all of the
institutions shall not exceed two years plus any term imposed for an
offense committed while the person is under the sentences.

2-a. Undischarged imprisonment in other jurisdiction. Where a person
who is subject to an undischarged term of imprisonment 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, to
run concurrently with such undischarged term, such additional term or
terms shall be deemed to commence when the said person is returned to
the custody of the appropriate official of such other jurisdiction where
the undischarged term of imprisonment is being served. If the additional
term or terms imposed shall run consecutively to the said undischarged
term, such additional term or terms shall commence when the prisoner is
received in the appropriate institution as provided in subdivisions one
and two of this section. The term or terms of such imprisonment shall be
calculated and such other pertinent provisions of this section applied
in the same manner as where a person is under more than one sentence in
this state as provided in this section.

* 3. Jail time. The term of a definite sentence, a determinate
sentence, or the maximum term of an indeterminate sentence imposed on a
person shall be credited with and diminished by the amount of time the
person spent in custody prior to the commencement of such sentence as a
result of the charge that culminated in the sentence. In the case of an
indeterminate sentence, if the minimum period of imprisonment has been
fixed by the court or by the board of parole, the credit shall also be
applied against the minimum period. The credit herein provided shall be
calculated from the date custody under the charge commenced to the date
the sentence commences and shall not include any time that is credited
against the term or maximum term of any previously imposed sentence or
period of post-release supervision to which the person is subject. Where
the charge or charges culminate in more than one sentence, the credit
shall be applied as follows:

(a) If the sentences run concurrently, the credit shall be applied
against each such sentence;

(b) If the sentences run consecutively, the credit shall be applied
against the aggregate term or aggregate maximum term of the sentences
and against the aggregate minimum period of imprisonment.

In any case where a person has been in custody due to a charge that
culminated in a dismissal or an acquittal, the amount of time that would
have been credited against a sentence for such charge, had one been
imposed, shall be credited against any sentence that is based on a
charge for which a warrant or commitment was lodged during the pendency
of such custody.

* NB Effective until September 1, 2023

* 3. Jail time. The term of a definite sentence or the maximum term of
an indeterminate sentence imposed on a person shall be credited with and
diminished by the amount of time the person spent in custody prior to
the commencement of such sentence as a result of the charge that
culminated in the sentence. In the case of an indeterminate sentence, if
the minimum period of imprisonment has been fixed by the court or by the
board of parole, the credit shall also be applied against the minimum
period. The credit herein provided shall be calculated from the date
custody under the charge commenced to the date the sentence commences
and shall not include any time that is credited against the term or
maximum term of any previously imposed sentence or period of
post-release supervision to which the person is subject. Where the
charge or charges culminate in more than one sentence, the credit shall
be applied as follows:

(a) If the sentences run concurrently, the credit shall be applied
against each such sentence;

(b) If the sentences run consecutively, the credit shall be applied
against the aggregate term or aggregate maximum term of the sentences
and against the aggregate minimum period of imprisonment.

In any case where a person has been in custody due to a charge that
culminated in a dismissal or an acquittal, the amount of time that would
have been credited against a sentence for such charge, had one been
imposed, shall be credited against any sentence that is based on a
charge for which a warrant or commitment was lodged during the pendency
of such custody.

* NB Effective September 1, 2023

* 4. Good behavior time. Time allowances earned for good behavior,
pursuant to the provisions of the correction law, shall be computed and
applied as follows:

(a) In the case of a person serving an indeterminate or determinate
sentence, the total of such allowances shall be calculated as provided
in section eight hundred three of the correction law and the allowances
shall be applied as provided in paragraph (b) of subdivision one of
section 70.40;

(b) In the case of a person serving a definite sentence, the total of
such allowances shall not exceed one-third of his term or aggregate term
and the allowances shall be applied as a credit against such term.

* NB Effective until September 1, 2023

* 4. Good behavior time. Time allowances earned for good behavior,
pursuant to the provisions of the correction law, shall be computed and
applied as follows:

(a) In the case of a person serving an indeterminate sentence, the
total of such allowances shall not exceed one-third of his maximum or
aggregate maximum term and the allowances shall be applied as provided
in subdivision one (b) of section 70.40;

(b) In the case of a person serving a definite sentence, the total of
such allowances shall not exceed one-third of his term or aggregate term
and the allowances shall be applied as a credit against such term.

* NB Effective September 1, 2023

5. Time served under vacated sentence. When a sentence of imprisonment
that has been imposed on a person is vacated and a new sentence is
imposed on such person for the same offense, or for an offense based
upon the same act, the new sentence shall be calculated as if it had
commenced at the time the vacated sentence commenced, and all time
credited against the vacated sentence shall be credited against the new
sentence. In any case where a vacated sentence also includes a period of
post-release supervision, all time credited against the period of
post-release supervision shall be credited against the period of
post-release supervision included with the new sentence. In the event a
period of post-release supervision is not included with the new
sentence, such period shall be credited against the new sentence.

6. Escape. When a person who is serving a sentence of imprisonment
escapes from custody, the escape shall interrupt the sentence and such
interruption shall continue until the return of the person to the
institution in which the sentence was being served or, if the sentence
was being served in an institution under the jurisdiction of the state
department of corrections and community supervision, to an institution
under the jurisdiction of that department. Any time spent by such person
in custody from the date of escape to the date the sentence resumes
shall be credited against the term or maximum term of the interrupted
sentence, provided:

(a) That such custody was due to an arrest or surrender based upon the
escape; or

(b) That such custody arose from an arrest on another charge which
culminated in a dismissal or an acquittal; or

(c) That such custody arose from an arrest on another charge which
culminated in a conviction, but in such case, if a sentence of
imprisonment was imposed, the credit allowed shall be limited to the
portion of the time spent in custody that exceeds the period, term or
maximum term of imprisonment imposed for such conviction.

* 7. Absconding from temporary release or furlough program. When a
person who is serving a sentence of imprisonment is permitted to leave
an institution to participate in a program of work release or furlough
program as such term is defined in section six hundred thirty-one of the
correction law, or in the case of an institution under the jurisdiction
of the state department of corrections and community supervision or a
facility under the jurisdiction of the state office of children and
family services to participate in a program of temporary release, fails
to return to the institution or facility at or before the time
prescribed for his or her return, such failure shall interrupt the
sentence and such interruption shall continue until the return of the
person to the institution in which the sentence was being served or, if
the sentence was being served in an institution under the jurisdiction
of the state department of corrections and community supervision or a
facility under the jurisdiction of the state office of children and
family services to an institution under the jurisdiction of that
department or a facility under the jurisdiction of that office. Any time
spent by such person in an institution from the date of his or her
failure to return to the date his or her sentence resumes shall be
credited against the term or maximum term of the interrupted sentence,
provided:

(a) That such incarceration was due to an arrest or surrender based
upon the failure to return; or

(b) That such incarceration arose from an arrest on another charge
which culminated in a dismissal or an acquittal; or

(c) That such custody arose from an arrest on another charge which
culminated in a conviction, but in such case, if a sentence of
imprisonment was imposed, the credit allowed shall be limited to the
portion of the time spent in custody that exceeds the period, term or
maximum term of imprisonment imposed for such conviction.

* NB Expires September 1, 2023