Provides for revocation of probation where a person is convicted of a new offense while such person is under probation supervision for a felony offense

Summary of provisions

This bill would require that the court revoke probation and impose a State prison sentence for felony offenders, where they are subsequently convicted of committing a new felony while on probation and sentenced to State time for that new felony. Additionally, the bill would mandate that this new sentence run consecutively to the new term of imprisonment, unless the court finds that mitigating circumstances exist, in which case the court may impose a concurrent term of incarceration. This bill would amend subdivision 4 of 560.01 of the Penal Law ("PL") with respect to authorized dispositions, and would add a new subdivision 6 to PL § 70.25, the section pertaining to concurrent and consecutive terms of imprisonment. In addition, subdivision 2 of Criminal Procedure Law ("CPL") § 410.10 and subdivision 1 of CPL § 410,70 would be amended, which govern conditions of probation and hearings on violation of probation, respectively. Subdivision 1 of CPL § 410.90 would also be amended, stating that the court may at any time terminate either a period of probation, other than a period of lifetime probation, for conviction of a crime or a period of conditional discharge for an offense, except that conviction of a new felony or conviction of an offense in another jurisdiction which if committed in this state would constitute a felony, which new felony is committed while under his or her present probation supervision for a felony offense, shall result in revocation of probation upon imposition of an indeterminate or determinate sentence for the new offense pursuant to subdivision four of section 60.01 of the penal law, and shall not result in the termination of probation. Section 6. This act shall take effect on the ninetieth day after it shall have become a law.

Justification

Current law does not mandate revocation of probation under circumstances where a person on probation for having been convicted of a felony is convicted of a new felony. In fact, existing law does not mandate revocation of probation at all, regardless of the nature of the violation of probation. When the court determines that an offender is in violation of the conditions of probation, Judges have the

discretion to impose whatever penalty they choose, including restoring the person to probation, terminating probation without any penalty or imposing a concurrent sentence which merely runs along with a sentence for a new offense. Although CPL § 410.10(2) specifically states that commission of an additional offense while on probation is grounds for revocation of such probation sentence, some courts nevertheless do not revoke probation and re-sentence offenders to State time for the original offense, even when these offenders are already on probation for a felony and are now convicted of another felony. What most commonly occurs is that probation is terminated or the probationer receives a concurrent sentence. In either case, the probationer is receiving no additional time for the underling felony. Failure of some courts to revoke probation and impose a consecutive sentence of incarceration in this situation provides the defendant with felony convictions that remain unpunished. In other words, their first felony is absolutely free. Any probation sentence represents an agreement between the defendant and the court that he or she will not be incarcerated, provided that he or she remains law-abiding and complies with the conditions of supervision. The defendant is being given a second chance. A sentence of anything less than a consecutive sentence sends the message to probationers that they need not worry about committing another felony while on probation, because the first felony may be virtually ignored. It also signals that there may be few or no consequences for lesser offenses or failure to comply with court or probation directives, thereby undermining Department of Probation's ability to safely supervise these offenders in the community. In general, the goal of a sentence of probation is to rehabilitate the offender, and particular conditions of probation are imposed that are deemed "reasonably necessary to insure that the defendant will lead a law abiding life or assist him to do so," PL § 65.10(1). Commission of a new felony while on probation is a obviously a serious violation of probation, and one that should have serious consequences. In contrast, with respect to State parolees, Executive Law § 259-i (3)(d)(iii) provides for the automatic declaration of delinquency when a parolee has been convicted of a new felony and sentenced to state prison. Moreover, PL § 70.25 currently provides for consecutive sentences in special circumstances. This bill would amend PL §§ 60.01 and 70.25 and CPL §§ 410.10 and 410.70 to minor the Executive Law by requiring revocation of probation for felony probationers who have been convicted of a new felony and are sentenced to state time for that new felony. It also would require a sentence of at least a year on the original felony, and would add this to the situations triggering consecutive sentences, unless a judge finds mitigating circumstances.

Legislative history

2014: S.2298 Passed Senate / A4966 Referred to Codes 2012: S.2944 - Referred to Codes/A.10427 - Referred to Codes 2011: S.2944 - Referred to Codes 2010: S.613 Referred to Codes/A.7809 - Referred to Codes 2009: S.613 - Referred to Codes/A.7809 - Referred to Codes 2008: S.5802 - Passed Senate/A.8384 - Referred to Codes 2007: S.5802 - Passed Senate/A.8384 - Referred to Codes

Fiscal implications

None.

Effective date

This act shall take effect on the ninetieth day after it shall have become law.