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This entry was published on 2021-09-24
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SECTION 70.45
Determinate sentence; post-release supervision
Penal (PEN) CHAPTER 40, PART 2, TITLE E, ARTICLE 70
§ 70.45 Determinate sentence; post-release supervision.

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
additional 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-release 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. 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.

1-a. When, following a final hearing, a time assessment has been
imposed upon a person convicted of a felony sex offense who owes three
years or more on a period of post-release supervision, imposed pursuant
to subdivision two-a of this section, such defendant, after serving
three years of the time assessment, shall be reviewed by the board of
parole and may be re-released to post-release supervision only upon a
determination by the board of parole made in accordance with subdivision
two of section two hundred fifty-nine-i of the executive law. If
re-release is not granted, the board shall specify a date not more than
twenty-four months from such determination for reconsideration, and the
procedures to be followed upon reconsideration shall be the same. If a
time assessment of less than three years is imposed upon such a
defendant, the defendant shall be released upon the expiration of such
time assessment, unless he or she is subject to further imprisonment or
confinement under any provision of law.

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 five years except that:

(a) such period shall be 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
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 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
pursuant 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 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 subdivision
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 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 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 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 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 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
felony sex offense as defined in section 70.80 of this article;

(i) such period shall be not less than ten years nor more than
twenty-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-release supervision that for a period not exceeding six months
immediately following release from the underlying term of imprisonment
the person be transferred to and participate in the programs of a
residential 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.

4. Revocation of post-release supervision. An alleged violation of any
condition of post-release supervision shall be initiated, heard and
determined in accordance with the provisions of subdivisions three and
four of section two hundred fifty-nine-i of the executive law.

5. Calculation of service of period of post-release supervision. A
period or periods of post-release supervision shall be calculated and
served as follows:

(a) A period of post-release supervision shall commence upon the
person's release from imprisonment to supervision by the department of
corrections and community supervision and shall interrupt the running of
the determinate sentence or sentences of imprisonment and the
indeterminate sentence or sentences of imprisonment, if any. The
remaining portion of any maximum or aggregate maximum term shall then be
held in abeyance until the successful completion of the period of
post-release supervision or the person's return to the custody of the
department of corrections and community supervision, whichever occurs
first.

(b) Upon the completion of the period of post-release supervision, the
running of such sentence or sentences of imprisonment shall resume and
only then shall the remaining portion of any maximum or aggregate
maximum term previously held in abeyance be credited with and diminished
by such period of post-release supervision. The person shall then be
under the jurisdiction of the department of corrections and community
supervision for the remaining portion of such maximum or aggregate
maximum term.

(c) When a person is subject to two or more periods of post-release
supervision, such periods shall merge with and be satisfied by discharge
of the period of post-release supervision having the longest unexpired
time to run; provided, however, any time served upon one period of
post-release supervision shall not be credited to any other period of
post-release supervision except as provided in subdivision five of
section 70.30 of this article.

* (d) When a person is alleged to have violated a condition of
post-release supervision and the department of corrections and community
supervision has declared such person to be delinquent: (i) the
declaration of delinquency shall interrupt the period of post-release
supervision; (ii) such interruption shall continue until the person is
restored to post-release supervision; (iii) if the person is restored to
post-release supervision without being returned to the department of
corrections and community supervision, any time spent in custody from
the date of delinquency until restoration to post-release supervision
shall first be credited to the maximum or aggregate maximum term of the
sentence or sentences of imprisonment, but only to the extent authorized
by subdivision three of section 70.40 of this article. Any time spent in
custody solely pursuant to such delinquency after completion of the
maximum or aggregate maximum term of the sentence or sentences of
imprisonment shall be credited to the period of post-release
supervision, if any; and (iv) if the person is ordered returned to the
department of corrections and community supervision, the person shall be
required to serve the time assessment before being re-released to
post-release supervision. In the event the balance of the remaining
period of post-release supervision is six months or less, such time
assessment may be up to six months unless a longer period is authorized
pursuant to subdivision one of this section. The time assessment shall
commence upon the issuance of a determination after a final hearing that
the person has violated one or more conditions of supervision. While
serving such assessment, the person shall not receive any good behavior
allowance pursuant to section eight hundred three of the correction law.
Any time spent in custody from the date of delinquency until return to
the department of corrections and community supervision shall first be
credited to the maximum or aggregate maximum term of the sentence or
sentences of imprisonment, but only to the extent authorized by
subdivision three of section 70.40 of this article. The maximum or
aggregate maximum term of the sentence or sentences of imprisonment
shall run while the person is serving such time assessment in the
custody of the department of corrections and community supervision. Any
time spent in custody solely pursuant to such delinquency after
completion of the maximum or aggregate maximum term of the sentence or
sentences of imprisonment shall be credited to the period of
post-release supervision, if any.

* NB Effective until March 1, 2022

* (d) When a person is alleged to have violated a condition of
post-release supervision by absconding and the department of corrections
and community supervision has declared such person to be delinquent: (i)
the declaration of delinquency shall interrupt the period of
post-release supervision; (ii) such interruption shall continue until
the person is restored to post-release supervision; (iii) if the person
is restored to post-release supervision without being returned to the
department of corrections and community supervision, any time spent in
custody from the date of delinquency until restoration to post-release
supervision shall first be credited to the maximum or aggregate maximum
term of the sentence or sentences of imprisonment, but only to the
extent authorized by subdivision three of section 70.40 of this article.
Any time spent in custody solely pursuant to such delinquency after
completion of the maximum or aggregate maximum term of the sentence or
sentences of imprisonment shall be credited to the period of
post-release supervision, if any; and (iv) if the person is ordered
returned to the department of corrections and community supervision, the
person shall be required to serve the time assessment before being
re-released to post-release supervision. If the person is detained
pursuant to paragraph (a) of subdivision three of section two hundred
fifty-nine-i of the executive law pending a preliminary or final
revocation hearing, the time assessment imposed following such hearing
shall commence upon the execution of the warrant. If a warrant was
executed pursuant to paragraph (a) of subdivision three of section two
hundred fifty-nine-i of the executive law but a court released the
person pending a preliminary or final revocation hearing, the time
assessment shall commence upon the issuance of a determination after a
final hearing that the person has violated one or more conditions of
community supervision in an important respect, and shall include the
time period between execution of the warrant and release of the person
pending a preliminary or final revocation hearing. If a releasee is
committed to the custody of the sheriff pursuant to article five hundred
thirty of the criminal procedure law, the time assessment, if any, shall
include any time the releasee spent in such custody. If a notice of
violation was issued pursuant to subdivision three of section two
hundred fifty-nine-i of the executive law, the time assessment shall
commence upon the issuance of a determination after a final hearing that
the person has violated one or more conditions of supervision. While
serving such assessment, the person shall not receive any good behavior
allowance pursuant to section eight hundred three of the correction law.
Any time spent in custody from the date of delinquency until return to
the department of corrections and community supervision shall first be
credited to the maximum or aggregate maximum term of the sentence or
sentences of imprisonment, but only to the extent authorized by
subdivision three of section 70.40 of this article. The maximum or
aggregate maximum term of the sentence or sentences of imprisonment
shall run while the person is serving such time assessment in the
custody of the department of corrections and community supervision. Any
time spent in custody solely pursuant to such delinquency after
completion of the maximum or aggregate maximum term of the sentence or
sentences of imprisonment shall be credited to the period of
post-release supervision, if any.

* NB Effective March 1, 2022

(e) Notwithstanding paragraph (d) of this subdivision, in the event a
person is sentenced to one or more additional indeterminate or
determinate term or terms of imprisonment prior to the completion of the
period of post-release supervision, such period of post-release
supervision shall be held in abeyance and the person shall be committed
to the custody of the department of corrections and community
supervision in accordance with the requirements of the prior and
additional terms of imprisonment.

(f) When a person serving a period of post-release supervision is
returned to the department of corrections and community supervision
pursuant to an additional consecutive sentence of imprisonment and
without a declaration of delinquency, such period of post-release
supervision shall be held in abeyance while the person is in the custody
of the department of corrections and community supervision. Such period
of post-release supervision shall resume running upon the person's
re-release.