Relates to sentences of probation and pre-sentence reports

Section 2 of the bill would amend PL § 65.00(3)(b)(i) to 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 amend PL § 65.00(3)(d) to 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 imprison- ment is greater than three months.

Section 4 of the bill would amend PL § 65.00 by adding a new subdivision 4, which would clarify that when a person 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 of the bill would amend Criminal Procedure Law ("CPL") 410.70(5) to make corresponding changes that reflect the amendments proposed by section 4 of the bill.

Section 6 of the bill would add a new subdivision 5 to CPL § 390.20, which would provide that notwithstanding the provisions of subdivision 1 or 2 of the section, in any city having a population of one million or more a pre-sentence investigation and report thereon ("PSI") would not be required where a negotiated sentence of imprisonment for a term of three hundred sixty-five days or less has been mutually agreed upon by the parties, with the consent of the judge, as a result of a conviction or revocation of a sentence of probation, and no sentence of probation will be imposed.

Reasons for support

This proposal reflects "evidence-based practices" - that is, practices based on studies of what has been proven to be effec- tive 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 and that eliminating the cost-

ly requirement of Pre Sentence Investigation's (PSI) for negotiated sentences in cities of one million or more, will allow the New York City Department of Probation to more appropriately reassign probation offi- cers to provide supervision and services to probation clients.

Currently, sentences involving probation are oriented to the conviction, rather than to the offender. Penal Law 05.00 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. However, 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. Unlike sentences of incarceration, about which judges maintain broad discretion in determining the length of the sentence, judges in New York have no such discretion 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 histo- ry; 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 and sexual assault offenses, receive five-year probation terms with no discretion for the court to distinguish between the levels of such felo- nies (e.g., Vehicular manslaughter in the First Degree, a class C felo- ny; Assault in the Second Degree, a class D felony, and Auto stripping in the Second Degree, a class E felony). Therefore, probation sentences do not appropriately correlate to the severity of the conviction, nor to the risk factors posed by the offender. Additionally, this proposal provides the court directly, and probation departments indirectly, with a new tool to impose graduated sanctions when the terms of probation are violated.

Currently, the court has limited options when a probationer violates the terms of his/her probation. The court can revoke the probation sentence and sentence the individual to incarceration, or a period of incarcera- tion and probation; or, the court can release the individual and place him/her back on probation. 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 when a violation of probation is sustained, to the maximum probation sentence that could have originally been imposed by the court.

This intermediate option would be consistent with evidence-based prac- tices, which suggest that graduated and appropriate responses to behav- ior increase a probationer's likelihood of success and decrease future criminal behavior. This proposal would also eliminate the costly requirement of Pre Sentence Investigation's (PSI) for cities of one million or more, and allow The New York City Department of Probation to more appropriately reassign probation officers to provide supervision

and services to probation clients sentenced to a negotiated sentence of one year or less in jail, who also pose a higher risk of recidivism.

Currently, probation departments throughout the State are required to conduct PSIs and prepare written reports on all defendants convicted in felony cases, and on all defendants convicted in misdemeanor cases who receive a sentence of imprisonment for a term in excess of 180 days.

This bill would amend § 390.20 to maintain these requirements except where a negotiated sentence of imprisonment for a term of 365 days or less has been reached as a result of a conviction or revocation of a probation sentence, and where probation will not be imposed under either scenario. In the interest of public safety, probation departments would continue to prepare PSIs in all other felony cases, including those where a plea bargain is reached and the defendant is returning to the community (i.e., probation, fine, conditional discharge).

The current PSI requirements necessitate additional court hearings, delay sentencing, and expend public resources for a pre-sentence inves- tigation and report that rarely impact the final sentencing outcome. It is important to note that subdivision 3 of CPL § 390.20 (proposed to be renumbered subdivision 5) allows judges to order a PSI in any case when they believe it is appropriate. This proposal would not affect the discretion of the Court to order a PSI even if the statute would no longer automatically require one. In instances where a PSI is not required, and the judge does not order one, a defendant and the prosecu- tor can always submit their own PSI if they deem it appropriate (CPL 390.40).

Finally, the bill contains a technical amendment that would eliminate the closing paragraph of § 390.20(4)(a) in order to implement and conform to the amendments proposed in the bill, whether they pertain to indeterminate or determinate sentences. That provision (in effect until September 1, 2013) now prohibits the waiver of a PSI if an indeterminate or determinate sentence of imprisonment is imposed -- essentially all cases with a sentence of imprisonment. The same rationale applies to the amendment proposed by section 3 of the bill, which would repeal the provisions of the statute that go back into effect on September 1, 2013. The removal of the PSI requirement would include cases where a plea deal has been reached and the defendant will be sentenced to an indeterminate term of imprisonment.

Fiscal impact

None to NYS

Effective date

Immediately