Relates to sentencing; repeals section 410.91 of the criminal procedure law relating to parole sentencing

This measure would amend provisions of the Penal Law and the Criminal Procedure Law to simplify the State's increasingly complex sentencing laws and to rectify anomalies in those laws. In so doing, this measure incorporates recommendations of the Temporary State Commission on Sentencing Reform in its January 2009 report. It is not, however, a measure that is designed to effectuate substantive or comprehensive sentencing reform. While our Commission believes that such reform would be desirable and hopes that this measure is a necessary first step in that direction, the Commission understands that now is the time to do no more than clean up the existing law to free it of anomalies and obscure provisions that stand in the way of implementation in accordance with legislative intent and has limited this measure accordingly.

The following will summarize the contents of this measure:

Section one amends Penal Law § 60.02(2) to clarify the applicable class E felony sentencing options for a youthful offender. When originally enacted, there was only one set of sentencing options for a class E felony. Since then, various other sets of options have been added depending on whether the offender is a drug offender, sex offender, or violent felony offender. As a result, for example, a youthful offender of a drug felony may face a longer state prison sentence than would be authorized for an adult. This provision continues the full panoply of sentencing options for the youthful offender while making sure that any authorized state prison sentence be that which an adult would be subject to. Also, for the youthful offender of a drug felony, the "parole supervision" (drug treatment) sentence is authorized; and, the restriction on the imposition of a conditional or unconditional discharge is repealed as it was some years ago for adults.

Section two and three transfer authorization for the "parole supervision" (drug treatment) sentence from the Criminal Procedure Law to the Penal Law article, which sets forth the applicable sentencing options for offenses. Amendments are also made to clarify, without changing current law, when the sentence is available.

Sections four, five and six make conforming amendments to provisions of the Penal Law, which presently authorize the "parole supervision" sentence.

Section seven amends Penal Law § 70.0(4) to authorize a definite sentence of imprisonment for non-violent class C felonies, except those specified in Penal Law § 60.05(4). That amendment reasonably puts most non-violent C felonies on a par with D and E felonies. Thus, for example, the amendment avoids having to chose between state

prison and probation for a number of non-violent crimes when local jail or local jail and probation is the appropriate sentence.

Section eight amends Penal Law § 70.02(3)(c) to authorize a determinate sentence of imprisonment range of 1.5 to 7 years, in lieu of a range of 2 to 7 years, for a first time conviction of a class D violent felony offense. For most class D violent felony offenses, a state prison sentence is not mandatory for the first offender. At present, the first offender may receive a one year definite sentence of imprisonment or a two year state prison sentence. The amendment allows for an intermediate sentence of 1.5 years in state prison.

Sections nine and ten cure 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 indeterminate sentence of imprisonment imposed for a class E persistent violent felony 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.

Section eleven amends Penal Law § 70.10(2) to state specifically that the sentence for a discretionary persistent felony offender is 15-25 years to life, as it has been since the inception of the current Penal Law. The clarification is necessary because when initially enacted the sentence was keyed to that of a class A felony and at that time, there was only one class A felony sentence. Since then, several different class A felonies have been enacted. It is thus necessary to now specify the applicable sentence.

Section twelve amends Penal Law § 485.10(4) to conform the sentence for a "hate crime" to the sentence of the separate crime of murder in the second degree pursuant to Penal Law § 125.25(5) (intentional murder of a child of less than fourteen while committing a sex offense), namely, life without parole, when that murder is an element of the "hate crime." Currently, the sentence for such "hate crime," which is committed in conjunction with that murder and is thus a more serious crime, is less than that authorized for the murder alone.

Sections thirteen and fourteen amend CPL §§ 220.10(5)(d)(ii) and 220.30(3)(b)(iv) to authorize, with the consent of the prosecutor and the court, a plea to manslaughter in the second degree (a class C felony) when the defendant is charged with manslaughter in the first degree (a class B felony).

Section fifteen makes a technical amendment to Penal Law § 70.20(4) to allow for the commitment of a juvenile offender who, in accord with section one of this measure, is accorded youthful offender treatment and given a determinate sentence.

Section sixteen prescribes an immediate effective date and makes its provisions applicable to offenses committed on or after the effective date.

This act would have no fiscal impact.

2013-14 Legislative History: OCA 2013-58 Senate 5108 (Sen. Nozzolio) (Codes)

2012 Legislative History:OCA 2012-84 Senate 7395 (Sen. Saland) (Codes)

{1} The New York State Sentencing Commission was established by the Chief Judge of the State in 2010. It is co-chaired by the Hon. Derek Champagne, Franklin County Family Court Judge and former Franklin County District Attorney, and Hon. Cyrus Vance, Jr., New York County District Attorney. Its members include a broad spectrum of representatives from the criminal justice community, including criminal defense attorneys, judges, policymakers, academics and victim advocates. The Commission serves in an advisory capacity to the Chief Judge and is charged with comprehensively evaluating sentencing laws and practices and recommending reforms that will improve the quality and effectiveness of statewide sentencing policy.