Relates to a sentence of parole

BILL NUMBER:A11051

Title of bill

An act to amend the criminal procedure law, in relation to a sentence of parole supervision

Purpose

To amend the Drug Law Reform Act ("DLRA") of 2004 to clarify "sentence of parole supervision" and in accordance with express language of the Penal Law.

Summary of provisions

This measure would amend subdivisions one and three of Section 410.91 of the Criminal Procedure Law to clarify that a determinate sentence of imprisonment imposed pursuant to Penal Law section 70.70(3)(d) upon an "eligible defendant," as that term is defined in subdivision two of section 410.91, may, where the court so directs, be executed as a sentence of parole supervision.

Justification

As part of the DLRA, the Legislature added three new sections to the Penal Law {sections 60.04, 70.70 and 70.71) to replace the existing indeterminate sentencing scheme for felony drug offenses with a new, determinate, sentencing scheme. See, L. 2004, c. 738, §§20, 36, effective 1/13/05. In establishing the available determinate sentences of imprisonment for non-class A "second felony drug offenders" under the newly added Penal Law section 70.70(3), the Legislature made clear that where the felony drug offense for which sentence is to be imposed is also a "specified offense" under CPL section 41 0.91(5), and the defendant is otherwise eligible therefore, the court may direct that the determinate sentence "be executed as a parole supervision sentence" pursuant to the procedures prescribed in section 410.91. See, Penal Law 570.70(3)(d) and CPL 410.91(5) including within the definition of "spec- ified offense" all class D and class E controlled substance and marijua- na felony offenses defined in Penal Law Articles 220 and 221. Due to an apparent oversight, however, the Legislature failed to include in the DLRA an amendment to CPL section 410.91, which currently defines a "sentence of parole supervision" only as an indeterminate sentence.

Thus, for example, subdivision one of that section currently provides, in relevant part, that" 1! sentence of parole supervision is an indeter- minate sentence of imprisonment which may be imposed upon an eligible defendant, as defined in subdivision two of this section. Such sentence shall have a minimum term and a maximum term within the ranges specified by subdivisions three and four of section 70.05 of the Penal Law. "CPL 410.91(1); emphasis added. Similarly, subdivision three of section 410.91 currently provides, in relevant part, that "when an indeterminate sentence of imprisonment is imposed upon an eligible defendant for a specified offense...the court may direct that such sentence be executed as a sentence of parole supervision" provided the court makes certain enumerated findings regarding, inter alia, the defendant's drug depend- ence. See, CPL 410.91(3); emphasis added. This measure would correct this legislative oversight by amending subdivisions one and three of section 410.91 to clarify that, in accordance with the express language of Penal Law sections 70.73(3) (d), a sentence of parole supervision can be either an indeterminate sentence of imprisonment or a determinate

sentence of imprisonment imposed upon an "eligible defendant." The meas- ure further clarifies that, if the sentence is a determinate parole supervision sentence, the term of such sentence must be in accordance with the applicable provisions of Penal Law section 70.70(3)(b)(iii) and (iv) establishing the term of a determinate sentence for a second felony drug offender convicted of a class D or class E felony, respectively, where the offender's prior felony conviction was not a violent felony.

Legislative history

2008 S.3910 2007 S.3910

Fiscal implications

None.

Effective date

Immediately