What's happening
This bill requires mandatory revocation of probation and consecutive prison sentences for felony offenders who commit new felonies while on probation, unless mitigating circumstances exist.
Why it matters
Significantly limits judicial discretion. By making revocation of probation and consecutive prison sentences mandatory (unless the court finds and records mitigating circumstances), judges have far less flexibility to tailor outcomes based on individual circumstances or rehabilitation potential.
Raises the consequences for felony probation violations. Anyone on probation for a felony who commits another felony (even in another jurisdiction) faces automatic prison time, which could serve as a deterrent but also increases the likelihood of extended incarceration for repeat offenders.
Could contribute to increased prison populations. The requirement for consecutive sentences—meaning the new sentence is added on top of the original—means people will serve longer total prison terms, potentially adding to overcrowding and correctional costs.
May disproportionately impact marginalized communities. Given existing disparities in the criminal justice system, this stricter approach to probation violations could disproportionately affect individuals from communities already overrepresented in the system, raising concerns about fairness and equity.
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End Probation for Repeat Felons
Plain English, a few words. Used as the page title.
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History
- Referred to codes
- Referred to codes
Full text
2 pagesUnderlined is new[Struck] is removedOfficial text on nysenate.gov ↗
STATE OF NEW YORK
365
2019-2020 Regular Sessions
IN SENATE (Prefiled)
January 9, 2019
Introduced by Sen. LANZA -- read twice and ordered printed, and when printed to be committed to the Committee on Codes
AN ACT to amend the penal law and the criminal procedure law, in relation to revocation of probation and re-sentencing upon conviction of a felony while under probation supervision for a felony conviction
The People of the State of New York, represented in Senate and Assembly, do enact as follows:
Section 1. Subdivision 4 of section 60.01 of the penal law, as amended by chapter 548 of the laws of 1984, is amended to read as follows:
4. In any case where a person has been sentenced to a period of probation imposed pursuant to section 65.00 of this chapter, if the part of the sentence that provides for probation is revoked, the court must sentence such person to imprisonment or to the sentence of imprisonment and probation as provided for in paragraph (d) of subdivision two of this section. Provided, however, that where a person who has been sentenced to a period of probation upon conviction of a felony is subsequently convicted of a felony or is convicted of an offense in another jurisdiction which if committed in this state would constitute a felony, which subsequent felony is committed while under his or her present probation supervision, and a new indeterminate or determinate sentence is imposed for such subsequent felony, the part of the sentence that provided for probation shall be revoked and such person shall be sentenced to a term of imprisonment of over one year. Such term shall run consecutively to the term of imprisonment imposed for the subsequent felony, unless the court determines that mitigating circumstances exist, in which case the court must place such circumstances on the record and a concurrent sentence may be imposed.
§ 2. Section 70.25 of the penal law is amended by adding a new subdivision 6 to read as follows:
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD03265-01-9
S. 365 2
6. Where a person who has been sentenced to a period of probation imposed pursuant to section 65.00 of this title upon conviction of a felony is subsequently convicted of a felony or is convicted of an offense in another jurisdiction which if committed in this state would constitute a felony, which subsequent felony is committed while under his or her present probation supervision, and a new indeterminate or determinate sentence is imposed for such subsequent felony, the part of the sentence that provided for probation shall be revoked, and such person shall be sentenced to a term of imprisonment of over one year. Such term shall run consecutively to the term of imprisonment imposed for the subsequent felony, unless the court determines that mitigating circumstances exist, in which case the court must place such circumstances on the record and a concurrent sentence may be imposed.
§ 3. Subdivision 2 of section 410.10 of the criminal procedure law is amended to read as follows:
2. Commission of an additional offense, other than a traffic infraction, after imposition of a sentence of probation or of conditional discharge, and prior to expiration or termination of the period of the sentence, constitutes a ground for revocation of such sentence irrespective of whether such fact is specified as a condition of the sentence. Conviction of a subsequent felony or of an offense in another jurisdiction which if committed in this state would constitute a felony, while the defendant is under probation supervision for a felony offense, shall result in revocation of probation upon imposition of an indeterminate or determinate sentence for the subsequent offense.
§ 4. Subdivision 1 of section 410.70 of the criminal procedure law, as amended by chapter 17 of the laws of 2014, is amended to read as follows:
1. In general. The court may not revoke a sentence of probation or a sentence of conditional discharge, or extend a period of probation, unless (a) the court has found that the defendant has violated a condition of the sentence or (b) the defendant while under probation supervision imposed upon conviction of a felony has been convicted of a subsequent felony, or is convicted of an offense in another jurisdiction which if committed in this state would constitute a felony, and [(b)] (c) the defendant has had an opportunity to be heard pursuant to this section. The defendant is entitled to a hearing in accordance with this section promptly after the court has filed a declaration of delinquency or has committed him or her or has fixed bail pursuant to this article.
§ 5. Subdivision 1 of section 410.90 of the criminal procedure law, as amended by chapter 238 of the laws of 1980, is amended to read as follows:
1. The court may at any time terminate either a period of probation, other than a period of lifetime probation, for conviction to a crime or a period of conditional discharge for an offense, except that conviction of a subsequent felony or conviction of an offense in another jurisdiction which if committed in this state would constitute a felony, which subsequent 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 subsequent offense pursuant to subdivision four of section 60.01 of the penal law, and shall not result in the termination of probation.
§ 6. This act shall take effect on the ninetieth day after it shall have become a law.
Reflowed for reading: line numbers and page breaks removed. Cite the official text.
Sponsor's memo
Title of bill
An act to amend the penal law and the criminal proce- dure law, in relation to revocation of probation and re-sentencing upon conviction of a felony while under probation supervision for a felony conviction
Purpose
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 imprison- ment, unless the court finds that mitigating circumstances exist, in which case the court may impose a concurrent term of incarceration.
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 imprison- ment, 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 peri- od 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 determi- nate 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.
Read the full memo (1,083 words)
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 revo- cation 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 what- ever 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 addi- tional 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-abid- ing and complies with the conditions of supervision. The defendant is being given a second chance. A sentence of anything less than a consec- utive sentence sends the message to probationers that they need not worry about committing another felony while on probation, beca use 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 communi- ty. 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 SS 60.01 and 70.25 and CPL SS 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 felo- ny and are sentenced to state time for that ne w 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
2018: S.2633 - Third Reading Calendar / A.6542 - Referred to Codes 2017: S.2633 - Third Reading Calendar/ A.6542 - Referred to Codes 2016: S.4515- Passed Senate 2015: S.4515- Passed Senate 2014: S.2298- Passed Senate / A.4966 -Referred to Codes 2013: S.2298- Passed Senate / A.4966 -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- Referredto 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.
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