Relates to sentencing

BILL NUMBER:S5761

Title of bill

An act to amend the penal law, in relation to sentencing

Purpose

To amend the penal law curing an omission in sentencing for a class E persistent violent felony offender.

Summary of provisions

Section one of the bill amends § 70.08(3) of the penal law specifying that for a class E felony the minimum period of imprisonment sentenced must be at least three years and must not exceed twenty five years.

Section two of the bill amends the reverter clause of § 70.08(3) of the penal law to conform to the same language as section one of this bill.

Section three of the bill provides for an effective date.

Justification

This legislation has been recommended by the Office of Court Administration (OCA) New York State Permanent Sentencing Commission established by the Chief Judge. This bill cures a penal law omission by adding a paragraph to penal law § 70.08(3) to specify what the minimum period of imprisonment must be for an offender. That minimum is set, as dictated by People v Tolbert, 93 NY2d 86 (1999), to be not less than three years nor more than twenty-five years. The maximum is currently set by statute at life imprisonment.

In 1986 the Court of Appeals determined, in People v. Green, 68 NY2d 151 (1986) that the minimum would be two years:

"the rationale for that conclusion was that the minimum period of imprisonment of the indeterminate sentence to be imposed on a "second" violent felony offender convicted of a class E felony was, at the time Green was decided, two years, and thus the legislative intent for the "persistent" - a third - violent felony offender should be no less. In the words of the Court: 'the minimum set forth in (the then governing second felony offender statute) should logically apply to persistent offenders (id, at 153 (emphasis supplied)).

In 1995, the legislature changed the sentence for a second violent felony offender from an indeterminate to a determinate sentence. "In the same legislation, the minimum periods of the indeterminate term of imprisonment for a persistent violent felony offender of a Class B, C, and D felony were amended to double the low end of the required minimum period; but the Legislature did not amend the statute to specify any minimum for the Class E felony. Subsequently, in People v. Tolbert (93 NY2d 86, 88 (1991)), the Court of Appeals followed the rationale of Green and held that "the amended determinate sentence for Class E second violent felony offenders should also be applied as the minimum sentence for Class E persistent violent felony offenders."

Legislative history

New bill.

Fiscal implications

None.

Effective date

This act shall take effect immediately provided however that this act shall apply to offenses committed on or after such effective date.