Relates to establishing terms of probation sentences

Section 2 of the bill would provide the court with the discretion to impose a probation term of two or three years for a class A misdemeanor other than a sexual assault.

Section 3 of the bill would give the court the discretion to impose a probation term of two or three years for an unclassified misdemeanor, for which the authorized sentence of imprisonment is greater than three months.

Section 4 of the bill would amend would clarify that when someone is found to have violated terms of probation and the court continues or modifies the sentence, the court may extend remaining period of probation up to the maximum term authorized by § 65.00.

Section 5 amends Criminal Procedure Law § 410.70(5) to make corresponding changes

Reasons for support

Currently, sentences involving probation are oriented to the conviction, rather than to the offender. Penal Law § 65.00 stipulates that, with very few exceptions, a period of probation for a felony offense must be five years, and a period of probation for a class A misdemeanor must be three years. Unlike sentences of incarceration, about which judges maintain broad discretion in determining the length of the sentence, judges are limited when determining the lengths of probation sentences.

This lack of judicial discretion prevents judges from distinguishing among convicted individuals on the basis of their prior criminal history; degree of culpability (major/minor actors); the risk level they pose to public safety; and their actuarially determined risk of re-offense. Moreover, all felony convictions, except those for certain drug-related offenses, receive five-year probation terms with no discretion for the

court to distinguish between the levels of such felonies (e.g., Vehicular manslaughter in the First Degree.

This proposal reflects "evidence-based practices" - that is, practices based on studies of what has been proven to be effective in the probation field - and reflects the idea that appropriate judicial discretion is critical to imposing correct probation term lengths in order to advance public safety. Research into community supervision and community corrections has shown that: (1) most re-offending and technical violations occur within the first eighteen months of one's probation term; and (2) supervision has its greatest impact in the first twelve months. As such, of those felony probationers who violate their terms of probation, more than 80% do so within the first three years, and 80% of misdemeanor probationers who violate the terms of supervision do so within the first two years.

This bill would allow probation departments to advance public safety by focusing scarce probation resources on the period of time when probationers are most likely to re-offend and when probation supervision is most effective. All Counties in New York, including the five boroughs New York City, are now employing evidence-based risk assessment instruments mandated by the State's Office of Probation and Correctional Alternatives. These are one of several tools that counties are utilizing to provide probation services that are tailored more closely to the individual. They can be used to guide judges in determining probation lengths, allowing their probation departments to focus scarce resources on higher risk probationers,- while lower-risk probationers are supervised for the period of time when it matters most. This use of evidence-based practices to concentrate resources on those who pose the highest risk to public safety will result in lower recidivism rates and increased positive outcomes for persons on probation.

Additionally, this proposal provides the court directly, and probation departments indirectly, with a new tool to impose graduated sanctions when probation is revoked. Currently, upon revocation, the only sanction available to the Court is to sentence an individual to incarceration, or a period of incarceration and probation. In other words, if a probationer is not following all the terms of probation - even if the mistakes are not criminal in nature - the only recourse the court has is to sentence the probationer to a period in jailor prison. This proposal provides the court with an intermediate option, which is to impose a longer period of probation. In instances where an individual does not receive the maximum amount of probation time at sentencing, that sentence can be increased upon revocation, to the maximum probation sentence that had been originally available to the court.

Fiscal impact

To be determined.

Effective date

This act shall take effect immediately and would apply to offenses committed on or after the date upon which it becomes law. It shall also apply to offenses committed before such date, where the sentence upon conviction for such offense is imposed no earlier than ten days after such date.