New York Criminal
Practice Handbook
Editor-in-Chief
Robert W. VInal, Esq.
Contributing Authors
Arnold D. Berliner, Esq.
Melvin Bressler, Esq.
Thomas G. Collins, Esq.
John W. Condon,lr., Esq.
Terrence M. Connors, Esq.
Hon. Kenneth Gribetz
Richard A. Hennessy, Jr., Esq.
Sondra S. Holt, Esq.
E. Stewart Jones, Jr., Esq.
Barry Kamins, Esq.
Hon. John F. Keenan
Hon. Judy Harris Kluger
Joseph M. LaTona, Esq.
Gary M. Levine, Esq.
MarkJ. Mahoney, Esq.
Hon. Joseph P. McCarthy
Hon. William L. Murphy
Stewart D. O'Brien, Esq.
Peter Preiser, Esq.
Arnold D. Roseman, Esq.
Michael S. Ross, Esq.
Brian Schiffrin, Esq.
AnneJ. Swern, Esq.
Robert W. Vrnal, Esq.
Harry E. Youtt, Esq.
Donald H. Zuckerman, Esq.
New York State Bar Association
1991
~
11111
~
CHAPTER TWENTY
SENTENCING
Joseph M. LaTona, Esq.
Peter Preiser, Esq.
Donald H. Zuckerman, Esq.
SENTENCING
685
I. THE PRESENTENCE MEMORANDUM
A. Introduction
One of the greatest, but least recognized achievements a criminal
defense lawyer can attain is to minimize successfully the traumatic
impact of a client's guilty plea or the debilitating effect of a guilty
verdict. This is accomplished through vigorous pursuit of the best possible sentence for the client. When asked at the initial conference to list
their priorities, clients invariably earmark avoidance (or at least minimization) of jail time as their major goal.
The ominous potential for mechanistic or policy-oriented sentencing
is constantly increasing. The criminal defense lawyer must intensify his
or her efforts in providing the effective sentencing representation to
which the particular client is entitled. The task is ultimately to humanize
and individualize the offender in a setting which has a demonstrated and
increasing tendancy to focus upon the offense and the victim rather than
the offender. 1
The lawyer's role at sentencing demands thorough preparation and
total commitment. The key to effective sentencing representation is to
state concisely your client's case in writing and in advance of "judgment
day." Frame your submission in a fashion which implicitly assures the
court that an exercise of leniency will not later resurface as an embarrassment or catalyst for public criticism.
B. Collection of Information to be Included in the Memorandum
1. Case Preparation Information
During client interviews you will be gathering information as to the
alleged offense and the client's entire personal history. Regardless of
any sentencing consideration, you will be accumulating this information
to assess the strengths and weaknesses of your case and of the client's
potential trial testimony. You should also be gathering such information
I A well prepared presentence memorandum is especially necessary to counterbalance the victim impact
statement which is now included in the presentence investigation report to the court. CPL
§ 390.30(3)(b).
686
NEW YORK CRIMINAL PRACTICE HANDBOOK
during your witness interviews, especially when interviewing possible
character witnesses. Utilize information obtained during the defense
investigation, preliminary and other hearings, motions, discovery, etc.
Remember, Brady encompasses information which is favorable not
only with respect to the determination of guilt or innocence, but also as
to the severity of the sentence in the event of conviction (for example, in
a negligent homicide case where the pedestrian victim was more drunk
than the defendant and was staggering in the road at the time of the
accident).
During the initial interview, speak to the client regarding his postoffense conduct. Convince the client as to the importance of maintaining impeccable habits during all phases of the subsequent proceedings,
both in and out of court.
2. Post-Conviction Activities
Consider having the defendant commence professional treatment
even before the verdict or plea. Where the offense conduct is related to
any specific mental, emotional or physical condition, a positive pattern
of treatment should be demonstrable as of the time of sentence. The
sentencing court will be persuaded only by progress the defendant has
already made. A promise on the day of sentence that the defendant will
embark on a course of treatment in the future will have little or no
favorable impact on the sentencing judge.
Obtain documentary material (e.g., letters from neighbors, teachers,
employers, etc., and medical reports, photographs, military records,
degrees, awards, etc.) to append to the sentencing memorandum.
C. Content ofthe Memorandum
Criminal Procedure Law § 390.40 (hereinafter "CPL") authorizes
the submission of a presentence memorandum. Under that section the
defense attorney may set forth any pertinent information. Moreover,
defense counsel may annex written statements from others in support of
the facts contained in the memorandum. Any prosecution sentence
memorandum must be served upon defense counsel at least ten days
before sentencing under CPL § 390.40(2).
SENTENCING
687
The attorney should strive to structure the submission to meet the
needs of the particular case. Try to avoid the "mag card" or "word
processor" approach.
The memorandum should be subdivided into separate categories such
as the following:
1. Biography
Personalize your client by setting forth the events in his life which
underscore the fact that he is a human being. Forthrightly confront and
proceed to mitigate a prior criminal record as much as possible. Stress
the client's accomplishments (i.e., community activities, church, military, athletics, school, employment, etc.). Mention any type of handicap which the client must endeavor to overcome.
2. Family
Identify who they are, what they do, how the client's imprisonment
would adversely affect them, and what rehabilitative support they can
offer the client if he or she lives with them rather than in a distant
correctional facility.
3. The Offense
Recite the underlying events in a candid fashion. Include all mitigating factors coupled with the factual support for same. If feasible, pinpoint aspects of the offense which are uncharacteristic of a hardened or
habitual criminal (e.g., a blind Boy Scout could have caught your client).
4. Sentencing Criteria
Find out all of the possible sentencing options available to the court.
Briefly outline the range and types of penalties available under the
circumstances. Summarize the compelling factors from the foregoing
sections as means of inferentially satisfying the court that the client is
not a recidivist candidate. Quote relevant portions of pertinent cases or
publications (e.g., A.B.A. Standards on Sentencing Alternatives and
Procedures). Tactfully suggest the particular sentence deemed appropri-
688
NEW YORK CRIMINAL PRACTICE HANDBOOK
ate and set forth the factors supporting your recommendation. Avoid the
standardized plea for probation where probation is clearly not warranted by the facts of the case, but consider recommending innovative
sentencing alternatives such as intermittent sentencing, split sentencing,
or community service. 2 Where feasible, provide reasons which underscore the inappropriateness of harsher sentencing options.
S. Appendix of Letters and Exhibits
Try to avoid losing the effect of these attachments through oversaturation. The sentencing judge will probably not read a large number of
letters anyway, so be selective. Try to attach letters and documents
which will corroborate the factual information set forth in the memorandum.
Although each lawyer has his or her own writing style, strive to draft
an objective and brief memorandum. It is imperative to establish and
maintain your credibility with the court without sacrificing your role as
an advocate.
D. Submitting the Memorandum
Counsel should offer to send a copy of the defense memorandum to
the probation officer. If that offer is refused, abide by the refusal.
However, if your offer is accepted send the memorandum as soon as
practicable, as it may have a favorable impact upon the probation department presentence report.
Presumably, the client has read the memorandum and has approved
of its content before it is submitted to anyone else. Be sure to forward a
copy of the memorandum to the prosecutor.
The original memorandum should be provided to the court about two
weeks to ten days before sentencing. Do not expect that the judge will
read or consider your memorandum if it is not made available until the
last minute.
2 For example. the New York City Probation Department's state-funded Intensive Supervision Program
for prison-bound convicted felons af!d the Defendant's Community Service Program.
SENTENCING
n.
689
TIIE SENTENCING STRUCTURE AND
AUTHORlZEDSENTENCES
A. Classification of Offenses for Sentencing
The New York sentencing structure utilizes a classification system to
link the gravity of offenses to the severity of authorized sentence. Thus,
by noting the classification of an offense, one can discern the sentence
authorized to be imposed. Conversely, knowledge of the authorized
sentence for an offense reveals its classification. Note also that classification does not vary with the sentence actually imposed: it always is .
based upon the maximum sentence permitted by law. 3
Three fundamental concepts of gravity are used for classification
purposes: felonious crime ("felony"); nonfelonious crime ("misdemeanor"); and noncriminal offense ("violation" or "traffic infraction").
Felonious crime ("felony"), the gravest classification, is defined as
"an offense for which a term of imprisonment in excess of one year may
be imposed:'4 All felonies in the N. Y. Penal Law are specifically labeled as such and, in addition, are designated as falling within one of
five basic categories. These are, in order of descending gravity, class A,
class B, class C, class D and class E. N.Y. Penal Law §§ 55.05 (1),
55.10 (l)(a) (McKinney 1987). An offense contained in a statute outside
the Penal Law that is not categorized but is only labeled as a felony, or
for which a sentence of imprisonment in excess of one year is prescribed, is automatically deemed to be a class E felony. N. Y. Penal Law
§ 55.10 (1)(b).
A conceptual view of the manner in which the classification system
applies to structure the grading of felonies is as follows under N. Y.
Penal Law § 70.00 (2):
3 The classification system applies to all offenses whether defined within or outside of the N. Y. Penal
Law, N.Y. Penal Law § 55.00 (McKinney 1987), It is designed so that the sentencing structure set
forth in the N. Y. Penal Law is applicable to all offenses punishable under the laws of New York,
wherever defined. N.Y. Penal Law § 60.00.
4 N.¥. Penal Law§ 10.00(5).
690
NEW YORK CRIMINAL PRACTICE HANDBOOK
Felony Classification
Maximum Term of Sentence
Class A felony
Class B felony
Class C felony
Class D felony
Class E felony
Life imprisonment
Up to 25 years
Up to 15 years
Up to 7 years
Up t04 years
The nonfelonious crime category ("misdemeanor") comprises offenses punishable by a term of imprisonment that may exceed fifteen
days but may not exceed one year. N.Y. Penal Law § 10.00 (4).5 Apart
from offenses designated as traffic infractions in the N. Y. Vehicle and
Traffic Law, any offense for which the authorized sentence is a term in
excess of fifteen days is a misdemeanor (unless, of course, the authorized term is in excess of one year, in which case it is a felony). All
misdemeanors in the Penal Law are specifically labeled as such and are
ranked in a two level classification system: class A and class B. N. Y.
Penal Law §§ 55.05 (2), 55.10 (2)(a). Offenses defined in statutes
outside the Penal Law that are simply declared to be a misdemeanor
without specification as to class or sentence are deemed to be class A
misdemeanors. N.Y. Penal Law § 55.10 (2)(b). However, if a specific
sentence in excess of fifteen days but less than one year is provided, an
offense defined outside the Penal Law is ranked as an "unclassified
misdemeanor." N.Y. Penal Law § 55.10 (2)(C).6
A preliminary view of the manner in which the classification system
applies to structure the grading of misdemeanors is as follows under
N.Y. Penal Law § 70.15:
5 There is, however, one exception to this general definition and that is for offenses designated as
"traffic infractions" in the Vehicle and Traffic Law.
6 This is subject to an exception for offenses in existence prior to September 1, 1967. If an offense was
considered noncriminal (below the grade of misdemeanor) prior to September I, 1967, it will not be
deemed to be a misdemeanor simply because the authorized sentence exceeds 15 days. Instead. it will
be deemed to be a noncriminal "violation" under the Penal Law classification system. N. Y. Penal Law
§ 55.10 (2)(c), (3)(b).
·i
691
SENTENCING
Misdemeanor Classification
Maximum Sentence
Class A misdemeanor
Class B misdemeanor
Unclassified misdemeanor
Up to 1 year
Up to 3 months
As specified in the specific
statute but not over 1 year
The petty offense or "violation" is not a crime. A violation is defined
as an offense for which the sentence cannot exceed fifteen days. N. Y.
Penal Law § 10.00 (3). Every violation found in the Penal Law is
expressly designated as such. N.Y. Penal Law § 55.10 (3). Offenses
defined in statutes outside the Penal Law are deemed to be violations if
(i) expressly designated as such; or (ii) the sentence prescribed is not in
excess of fifteen days; or (iii) the sentence prescribed consists solely of a
fine; or (iv) irrespective of the sentence, the offense was enacted prior to
September 1, 1967, and was not a crime prior to that date. As in the case
of misdemeanors, the foregoing criteria do not apply to offenses defined
as "traffic infractions" in the Vehicle and Traffic Law. N. Y. Penal Law
§ 55.10 (4).
B. Overview of Authorized Sentences
Article 60 of the Penal Law governs the sentences permitted for each
of the classifications. No sentence can be imposed for any offense,
whether defined within or outside of the Penal Law, unless it is authorized by the provisions of Article 60. N.Y. Penal Law § 60.00. Therefore, after ascertaining the classification of an offense, it is necessary to
consult Article 60 to determine the sentencing possibilities. N. Y. Penal
Law § 60.01 sets forth the dispositions (sentences) generally available,
subject to numerous other provisions of the article that impose restrictions on the use of the generally available dispositions.
The basic sentences are: probation, conditional discharge, unconditional discharge, imprisonment, and monetary sanctions. The statutory
692
NEW YORK CRIMINAL PRACTICE HANDBOOK
structure also provides for a death penalty, N. Y. Penal Law § 60.06, but
the present statute has been held to be unconstitutional. 7
1. Probation, Conditional Discharge and Unconditional Discharge
Probation and conditional discharge are sentences under which the
defendant is released to the community without imprisonment but subject to conditions imposed by the court. N. Y. Penal Law § 65.10 (Supp.
1990). The difference between the two sentences is that, when probation is imposed, the defendant will be under the supervision of a probation officer, while conditional discharge does not entail such supervision. Sentences of probation and conditional discharge are imposed for
terms fixed by statute in accordance with the gravity of the offense,
N.Y. Penal Law §§ 65.00(3),65.05(3), but can be terminated prior to
expiration of the term in the discretion of the court. CPL § 410.90.'
These sentences also can be revoked at any time prior to expiration of
their term in the event the defendant violates one of the conditions
imposed; and the conditions may be changed or modified at any time
during the term. CPL Art. 410 (Supp. 1990).
In contrast, a sentence of unconditional discharge releases the defendant absolutely, without imposition of any term or condition. N. Y.
Penal Law § 65.20.
2. Sentences of Incarceration
a. Definite Sentences
Sentences of imprisonment in New York are divided into two categories: the "definite" sentence; and the "indeterminate" sentence. A definite sentence is imposed for a fixed term that cannot exceed one year.
7 People v. Davis, 43 N.Y.2d 17, 371 N.E.2d 456. 400 N.y'S.2d 735 (1977); People v. Smith, 63
N.Y.2d 41,468 N.E.2d 879. 479 N.Y.S.2d 706 (1984), cert. denied, 469 U.S. 1227 (1985).
8 Ordinarily, sentences of probation and conditional discharge may be terminated at any time in the
~iscretion of the court. CPL § 410.90(1). There is. however, one exception. A sentence of lifetime
probation (permitted for certain drug felonies-N. Y. Penal Law § 65.00 (l)(b), (3)(a)(ii» cannot be
terminated unless the defendant has been on unrevoked probation for at least five consecutive years.
CPL § 410.90(2),
SENTENCING
693
N.Y. Penal Law § 70.15 (Supp. 1990). It most commonly is used for
offenses below the felony classification, but it can be used in certain
situations for a felony conviction. N. Y. Penal Law § 70.02(4) (Supp.
1990). Where a definite sentence is imposed, imprisonment must be in a
county institution and not in a state correctional facility. N. Y. Penal Law
§ 70.20(2). Thus, definite sentences are commonly known as "jail
sentences." An inmate serving a definite sentence of imprisonment may
earn credit against the term of the sentence for good behavior. The
maximum allowable credit is one-third of the term and the credit is
applied as a reduction in term that results in early discharge. N.Y. Penal
Law § 70.30(4)(b); N.Y. Correct. Law § 804 (McKinney 1987). Thus,
every person sentenced to a definite term of imprisonment has the opportunity to satisfy the sentence by serving only two-thirds of the term
imposed (e.g., a sentence of one year can be satisfied by service of eight
months in jail). Definite sentence inmates who receive a term in excess
of ninety days are eligible for a form of parole called "conditional
release" after service of sixty days of the term. N. Y. Penal Law
§ 70.40(2) (Supp. 1990). To obtain this, an inmate must apply to the
state Board of Parole. N. Y. Exec. Law Art. 12-B (McKinney 1982 &
Supp. 1990). Release is in the discretion of the Board and, if granted,
will be subject to such conditions as the Board may impose. Releasees
must remain under parole supervision for a period of one year (irrespective of the fact that the remaining portion of the jail term is less than one
year), and the grant of release remains revocable during that period for
violation of any of the conditions. If release is revoked by the Board, the
offender must resume service of the term of incarceration retroactive to
the date of release. N.Y. Penal Law § 70.40(2) (Supp. 1990). Thus, for
example, if an inmate sentenced to nine months in jail is released after
service of three months and is returned for a violation of release conditions eleven months later, he will have to serve the remaining six months
of his term (less any" good time" earned) and will get no credit for the
eleven months under parole supervision.
b. Intermittent Imprisonment
Intermittent imprisonment (commonly known as "weekend jail") is a
variation upon the definite sentence of imprisonment. Under this sen-
I
II
694
NEW YORK CRIMINAL PRACTICE HANDBOOK
tence the court may order that the defendant be imprisoned during a
specified period of time, but only on certain days or during certain parts
of days within that period. Thus, for example, the court may sentence a
person to spend weekends or evenings or from 7 p.m. to 7 a.m. in jail
during the ninety day period commencing on X date and ending on Y
date. N. Y. Penal Law Article 85.
Generally speaking, the sentence may be used in any case where a
definite sentence of imprisonment can be imposed and can be for any
period of time within the maximum authorized sentence of imprisonment. It is important to observe, however, that the sentence is calculated
based upon the time span it covers and not upon the days actually spent
in jail. N. Y. Penal Law § 85.00(3). An intermittent sentence may be
modified or revoked at any time during its lifespan. If the sentence is
revoked, another authorized sentence (which may be a term of imprisonment) may be imposed in its stead. N. Y. Penal Law § 60.01 (2)(a)(ii),
(3). In such case the defendant would receive credit against the term of
the new sentence for time spent in jail under the intermittent sentence.
N.Y. Penal Law § 85.05(4).
c. Split Sentences
What is commonly refered to as a "split sentence" is a combination
of a definite sentence or an intermittent sentence of imprisonment with a
sentence of probation or of conditional discharge. The defendant serves
his jail term and then goes free subject to conditions; and, where the
sentence includes probation, subject also to supervision. When a split
sentence is imposed, the term of imprisonment cannot exceed sixty days
for a misdemeanor, six months for a felony, or four months in any case
where intermittent imprisonment is used. The term runs concurrently
with the period of probation or conditional discharge and cannot be used
to lengthen that period. N. Y. Penal Law § 60.01(2)(d).
d. Indeterminate Sentences
An indeterminate sentence of imprisonment, commonly called a
"prison sentence," is a sentence for a term in excess of one year and
SENTENCING
695
requires commitment to the state Department of Correctional Services. 9
N.Y. Penal Law § 70.20(1). The sentence is composed oftwo parts: a
minimum period of imprisonment ("MPI") that must be at least one
year, and a maximum term that must be at least three years. N. Y. Penal
Law § 70.00. The function of the MPI is to fix the time that must be
served under incarceration prior to eligibility for discretionary release
on parole by the state Board of Parole. N.Y. Penal Law § 70.40(1);
N.Y. Exec. Law § 259-i (Supp. 1990). In other words, the MPI imposed by the court bars the Board from exercising its discretion to
release an offender prior to its expiration. 10 The maximum term defines
the outer limit of the sentence. If an inmate is granted parole after
service of the MPI, the Parole Board will fix conditions (somewhat
similar in nature to those used under a sentence of probation) and the
individual will be permitted to leave the institution and live in the community subject to the conditions for the remaining balance of the maximum term of the sentence. The Board has the power to revoke parole at
any time prior to expiration of the maximum term for a violation of the
conditions of parole. N.Y. Exec. Law § 259i(3) (Supp. 1990). It also
has the authority to terminate the sentence and discharge the offender
prior to expiration of the term, provided the offender has been on
unrevoked parole for at least three consecutive years. N. Y. Exec. Law
§ 259-j (Supp. 1990). Unlike the conditional release previously described for definite sentences, parolees continue service of the maximum term while in the community and, therefore, receive credit against
that term for the time served under parole supervision. N. Y. Penal Law
§ 70.40(1).
Indeterminate sentence inmates (other than those sentenced to life
imprisonment) can earn time allowances of up to one-third of the maxi9 Juvenile offenders who are convicted or who receive youthful offender treatment are committed to the
custody of the state Director of the Division for Youth until they are released or are old enough to be
transferred to the Department of Correctional Services. N. Y. Penal Law § 70.20[4].
iO
There is one exception to this. Inmates under twenty-four years of age convicted of certain felonies
and sentenced to minimums of3 years or less may participate in a "shock incarceration program" and
receive a certificate of "earned eligibility" after six months. This will permit parole release at that
than after service of the 3 year minimum. N.Y. Correct. Law Article 26-A (Supp.
1990); N.Y. Penal Law § 70.40(1)(a).
time~rather
696
NEW YORK CRIMINAL PRACTICE HANDBOOK
mum term for good behavior ("good time"). N.Y. Penal Law
§ 70.30(4); N.Y. Correct Law § 803 (Supp. 1990). As a practical
matter, tbis is useful only where an inmate: (a) is not released on parole
prior to service of two-tbirds of his maximum term, which would be a
rare case; or (b) has been returned for violation of parole and has dim
prospects for rerelease prior to service of two-tbirds of tbe remaining
portion of tbe maximum term. Unlike good time earned by definite
sentence inmates, good time earned against tbe term of an indeterminate
sentence does not actually shorten tbe term. It can only be used to
require release under parole supervision. N. Y. Penal Law
§ 70.40(l)(b). This type of release is called "conditional release" and,
except for tbe manner in which release is obtained-conditional release
must be granted when sufficient credit has been earned, while ordinary
parole release is in tbe discretion of tbe Board of Parole-conditional
release under an indeterminate sentence is similar in all respects to
parole.
3. Monetary Sanctions
Monetary sanctions consist of "fines:' "restitution or reparation,"
and a "surcharge." A fine is an amount to be paid to tbe public treasury
and is considered a sentence. It may be imposed as tbe sole sentence
(where imprisonment is not mandatory) or it may be imposed in addition to anotber sentence (e.g., imprisonment and a fine; probation and a
fine). N.Y. Penal Law § 60.01 (2)(c), (3)(c).
Restitution and reparation are paid over to tbe victim (not directly, but
tbrough a "restitution agency"). CPL § 420.10 (Supp. 1990). Although
tbese sanctions are not deemed to be sentences, as such, tbe court is
required to consider tbem in every case and, when imposed, tbe requirement of restitution or reparation is deemed part of the sentence. N. Y.
Penal Law § 60.27.
Where the court imposes a fine, restitution or reparation, it also may
direct tbat tbe defendant be imprisoned for failure to make payment as
specified. CPL § 420.10 (Supp. 1990). This would be in addition to any
sentence of imprisonment imposed, but tbe aggregate lengtb of tbe term
SENTENCING
697
of imprisonment and the period imposed for failure to pay a fine could
not exceed the maximum term of imprisonment authorized for the
crime. CPL § 420.10(4) (Supp. 1990).
Surcharges are mandatory on conviction for all crimes, N. Y. Penal
Law § 60.35, but they may be waived where, because of indigence, an
unreasonable hardship would result. CPL § 420.35.
C. Specific Authorized Sentences
Although the basic sentencing structure originally was quite simple
and was designed to give sentencing judges a good deal of discretion,
mandatory imprisonment provisions to curb judicial discretion, engrafted year after year in the two decades since its enactment, have
turned the task of finding the authorized sentence for many felonies and
some misdemeanors into one that rivals navigation of a complex maze.
Moreover, as a concomitant, the Legislature has imposed an intricate
series of restrictions on plea bargaining to safeguard against the use of
lesser pleas as a way of avoiding the mandatory sentences. Accordingly,
when one starts with an accusatory instrument and attempts to determine what sentence can be agreed upon in a plea bargain, it is necessary
to be familiar with both the intricate restrictions on bargained pleas to
lesser offenses, CPL §§ 220.10, 220.20, and the complex sentencing
restrictions of the N. Y. Penal Law.
The eight charts set forth below (A-H) are designed to serve as a basic
guide through the forest. The first five, A-E, show the pleading restrictions and authorized sentences for felonies and the sixth, chart F, depicts
the special sentencing structure for juvenile offenders and youthful offenders. These require some explanation, which follows. The two remaining charts, G and H, are self-explanatory. Chart G shows the sentencing structure for misdemeanors and violations (other than traffic
infractions), exclusive of monetary sanctions. Chart H furnishes a summary of all authorized monetary sanctions (fines, restitution or reparation and surcharges), exclusive of those authorized for convicted corporations.
698
NEW YORK CRIMINAL PRACTICE HANDBOOK
Chart A-Basic Felony Sentences
Explanation
Chart A covers the pleading restrictions, pre- and post-indictment,
for persons charged with a felony who have no prior conviction of a
felony. It excludes three special mandatory imprisonment categories:
the violent felony offense; gun control offenses; and Article 220 drug
offenses.
It is to be noted that even here mandatory imprisonment is required
for particular offenses-i.e., all class A and B felonies as well as certain
designated class C and D felonies.
_________------------c--------'-C------
PreJllred bl' I'ref. Peter '"'her
2!S7 - Albany law Scbool
FELONIES,FIRST FELONY OFFENDERS
(EXCLUDING VFO. MANDATORY SENTENCE GUN CONTROL & ARTICLE 220 DRUG OFFENSES)
PRE~IHDICTMENT
PLEADING RESTRICTIONS
POST-INDICTMENT PLEADING RESTRICTIONS
1 - -NO REDUCTION TO MISDEMEANOR ON CLASS A FELONY CHARGE
1 - CLASS A FELONY - PLEA MUST INCLUDE AT LEAST A CLASS C YFO
2 - NO OTHER RESTRICTION
2 - CLASS B FElotlV - PLEA MUST INCLUDE AT LEAST A CLASS E FELONY
CONVICTION
Class A Felony
Class B Felony
MAX
DEFINITE
INDETERMINATE
life
3 (to 25)
MPI
INTERMITT.
PROS.
DISCHG.
CONIUN
NO
NO
NO
NO
NO
1 Yr to 1/3
NO
NO
NO
NO
NO
1 Yr to 1/3
Max Imposed
NO
NO
NO
NO
NO
1 Yr to 1/3
NO'
NO
NO'
5 Yrs
3 Yrs
1 Yr to 1/3
YES
YES
YES
NO
NO
YES
5 Yrs
3 Yrs
Class C Felony
(restricted l )
3 (to 15)
Class C Felony
(other)
3 (to 15)
Class 0 Felony
(restricted!)
3
Class 0 Felony
(other)
3
(to 7)
1 Yr to 1/3
Max Imposed
YES
YES
Class E Felony
3
(to 4)
1 Yr to 1/3
Max Imposed
YES
YES
Max Imposed
(to 7)
SPLIT
15 (to 25)
Max Imposed
Max Imposed
!
C'l
AUTHORIZED DISPOSITIONS (PL. 160.05)
-
-
-
-
-
---
I
3 Yrs
5 Yrs
YES
-
I
-
-- --
-
ICertain Claaa C and Claaa D feloniea carry reatricted sentencing options that require imprisonment. These are:
cl•• s
Cri_
P.L. 5
CIa ••
C
Attempt Bribery 1·
Aitempt Bribe Receiving 1°
200.04
200.12
105.15
145.12
150.10
190.42
200.22
200.27
C
!ti::~i g~~:r~!!C~i;:hief
2·
Arson 3°
criminal usury 1Rewarding Off. Misconduct 1°
Receiv. Reward Off. Miscon. 2·
0
erb.
Cr. Poss. Controlled Subst. 4-Cr. Sale Controlled Bobst. 4Att. PrOmote Prostitution 1PrOMoting Prostitution 2~;::~li ~,sault 1°
Att. Promote Prostitution 2·
P.r.. 5
"1-1'1
220.0'
220.34 (1 • 2
220.32
230.30
120.10
120.05
230.30
"Exception, A definite sentence is svaiiable for any cla8s C falony dafined in Art. 220 (drug) or Art. 221 (marihuana).
~
700
NEW YORK CRIMINAL PRACTICE HANDBOOK
Chart B-Violent Felony Offense Sentences
Explanation
Chart B deals with violent felony offenses (VFO) that are not armed
felonies or mandatory sentence gun control offenses (VFOs are designated in N. Y. Penal Law § 70.02). The purpose of creating this special
category was twofold: (1) to assure that a plea bargain for a class B or C
VFO must include at least a plea to a class D VFO, so that, if the
defendant subsequently commits another felony, the mandatory second
felony offender sentences will apply (see Chart E); and (2) to provide
more severe prison terms for persons convicted of class B and class C
violent felony offenses.
Thus, it should be noted, the VFO provisions do not impose any
special restrictions upon pleading or sentencing where a person is indicted for a class D VFO, or upon sentencing where a plea is taken to a
class D VFO.
Pre.,.red Ity Prof. "tar Pntser
2/87 - AT bany law School
VIOLENT
FELONY
EXCLUDING ARMED FELONIES AND MANDATORY
I.
2.
OFFENSES
~
GUN
~
OFFENSES
No restriction on pre-indictment reduction to misdemeanor.
(")
Post Indictment:
Mandatory Sentence Range
Indictment Charge
Max
6 (to 25)
Class B Felony
Class C Felony
4~(toI5)
~
Lowest Plea
Mandatory Sentence Range
~
MPI
1/3 Max Imposed
C1 ass D VFO
No restriction on sentence. except
Att. Assault 1° or Assault 2° sentence must include a definite tenn-
1/3 Max Imposed
any time up to 1 year (intermittent
or split sentence is permitted).
-
-~-
-_ ..
_-
-
The following crimes are Violent felony Offenses; The ones marked wfth an asterisk ('II) constitute or contafn Armed Felony Offenses or aft! Mandatory Sentence Gun Control Offenses, Use the chert on page 4, infra for Armed Felony Offenses and Mandatory Sentence Gun Control Offenses.
CLASS
~
Attempt Murder 2e
Attempt Kidnapping 1Attempt Arson 1Manslaughter 1°
Sodomy 1°
Agg.Sexual Abuse
Kidnapping 21tSurglary 1°
Arson 2·
"'Robbery Ie
Cr Poss Dang Wpn 1*Cr Use Firearm 1*Agg Aslt on Offfcer
Intim. Yic or Wft 1°
~
CLASS
125.25
135.25
150.20
125.20
IlO.50
130.70
135.20
140.30
150.15
160.15
265.04
265.09
120.11
215.17
C
D
CRIME
r1....!
Att Class B YFO
'"Assault Ie
'"Burglary 2"'Robbery 2·
"'Cr Poss Weapon 2·
"'Cr Use Flreal'lll 2·
120.10
140.25
160.10
265.03
265.08
Att Clan C YFO
"'Assault 2Sexual Abuse I·Cr Poss IIpn 3·Cr Poss IIpn 3·
*Cr Sale Firearm 1inUrn. Yic or Wft 2-
120.05
130.65
265.02 [4]
265.02 [5]
265.12
215.16
.Att Cr Poss IIpn 3- as plea to
charge of Pl 265.02 [4] or [5].
Where indictment 15 for a Class 0 YFO. there Ire
no pleading restrictions Ind no IIIIIndltorY sinttnces on lesser pleas. except for _.Articht 265 °Gun
Contro'- crimes.
The Class E YFO 15 fictional & 15 only for plel to
Class 0 mandatory sentence -Gun Control- charges.
Is
702
NEW YORK CRIMINAL PRACTICE HANDBOOK
Chart C-Armed Felony & Mandatory Sentence Gun Control
Offenses
Explanation
The armed felony category, defined in CPL § 1.20(41), is designed to
assure that anyone charged with a class B or C felony that includes a
loaded gun as one of its elements cannot avoid a state prison sentence
unless: (1) by virtue of an acquittal or a verdict of guilty of some other
offense; or (2) there is a judicial finding of the presence of one or more
of three statutorily specified mitigating factors. See N.Y. Penal Law
§ 70.02(5). Note that this is the only category of offense, other than a
class A felony, where there can be no preindictment reduction to a
misdemeanor.
All armed felonies are VFOs and thus the mandatory sentences for
the armed felony offenses are the same as for the VFO, with two exceptions. Consistent with the aforesaid objective of assuring a state prison
term for armed felonies, a defendant who pleads to a class D VFO in
satisfaction of an indictment charging an armed felony must receive an
indeterminate sentence of imprisonment (absent ajudicial finding of one
of the mitigating factors). N.Y. Penal Law § 70.02(5). Also, upon
conviction of a class B armed felony, the court has discretion to increase
the ratio of the minimum period of imprisonment to one-half the maximum term imposed. N.Y. Penal Law § 70.02(4).
The mandatory imprisonment gun control offenses are the only
crimes charged as class D VFOs that carry plea bargaining restrictions
and require mandatory imprisonment upon conviction. There are three
such offenses: (1) criminal possession of a weapon in the third degree as
defined in N. Y. Penal Law § 265.02(4); (2) criminal possession of a
weapon in the third degree as defined in N.Y. Penal Law § 265.02(5);
and (3) criminal sale of a firearm as defined in Penal Law § 265.12. It
should be noted that where a definite sentence is permitted for one of
these offenses, the term of the sentence must be a flat term of one year
(not up to one year). See N. Y. Penal Law §§ 70.02(2)(c), 70. 15(l)(c)
(Supp. 1990). This type of sentence is known in some parts of the state
as "a bullet."
rre.,.red by Prof. Peter Preiser
2/87 - Albany Law School
AR"fD FELOI' I "AIDA TOR' Sf.TEICE SUI COITROl OFFEISfS
ARHED FELONY DEFINITION
MANDATORY SENTENCE GUN CONTROL OFFENSES
ANY VFO THAT INCLUDES AS AN ELEHENT OF THE STATUTORY DEFINITION OF THE
CRIHE EITHER:
(Al POSSESSION. ARMED WITH OR CAUSING SERIOUS PHYSICAL INJURY BY MEANS OF A
DEADLY WEAPON. IF THE WEAPON IS A LOADED WEAPON FROH WHICH A SHOT READILY
CAPABlE Of PRODUCING DEATH OR SERIOUS INJURY MAY BE DISCHARGED; OR
{Bl DISPLAY Of WHAT APPEARS TO BE A PISTOL, REVOLVER. RIFLE. SHOTGUN, MACHINE GUH OR OTHER FIREARM.
RESTRICTIONS DN LESSER PLEAS APPLY FOR CRIMES
CHARGED AS CLASS D -GUM CONTROL· OfFENSES (CR
POSS WPN 3" PL 1265.02 [4J,[5J. CR SALE F/ARH I"
PL 1265.12). MANDATORY SENTENCES APPLY TO THESE
CHARGES AND TO LESSER PLEAS.
1. No pre-indfctment reduction to misdemeanor.
2. Post Indfctment
Class B f~lony
Class C Felony
MBndatory Sentence Range
"PI
"u
6 (to 25)
1/3 to 1/2
/tIax Imposed
4\ (to 15) 1/3 Max
Lowest Plea
MBndatory Sentence
"PI
Class C VFO
4Is (to 15) 1/3 Max
""
Imposed
Class 0 VFO
I
~
Chss D Felony -QnI Cofttrel llestrtetfons·
1. No restriction on pre-Indictment II:Ihdemeanor reduction
(except for Armed Felony).
Ar.d FelO!!l .strfctfons
Indictment Chg
,
3 (to 7)*
Imposed
1/3 Max
Imposed
2. Mandatory sentence*:
A. Indetel'lll1nate sentence ~ Max 3 (to 7l
MPI lYr (to l/3 Max IIIIp) OR
B. As an alternatfve. a defintte sentence of 1 ,Year to
be served In county jafl or penitentiary.
3. lower Plea:
A. Class E YFO (Att Cr Pass Wpn 3") Dnty - OR
8. If charge is Cr Poss Wpn 3· (PL §265.02 [4])
loaded & outside home or place of business _ and
defendant has not been convicted tn the past 5 Yrs
of a felony or of a Penal Law Class A I!Ifsdellleanor,
Class A Mhdemeanor (Cr Pass Wpn 4"- PL 265.01 [1])
Class D felony
No mandatory sentence and no pleading restriction
except where "Gun Control" offense is charged
--- - - - -
.~~
Where defendant is conv1cted of II clllss 0 II.rmed felony, or of a gun
control class Dar E felony or class A misdemeanor, the court need not impose the
IIIII.ndll.tory sentence of Imprisonment If ft finds that one or more of the following
factors exist: Ol m1tlgatfng cfrcumstances that bear directly upon the manner In
whfch the crtme was cOlllllltted. or, elf) where the defendant was not the sole parttcipant In the crime, -defendant's part1cfpatlon was reht1vely minor; or (U1)
possible defIciencies In proof of defendant's cOlllllfssfon of an armed felony.
4.
Mandatory sentence*:
A. For Class E,YFO - lndetenntnate sentence
Max 3 (to 4) HPI lYr to 1/3 Max IlI:Iposed OR
8. Alternathe, and also for Class It. Mtsdellleanor
(Cr Possess Wpn 4°), deftntte sentence of 1 Yur.
." £JIceptfons~ Court may noid IIIiIndatory gun contral sentence: (0 where it 15 of the opinion that the sentence is
unduly harsh. if. D has no prior PL class It. mlsdeJll(!anor conv1ct10n within 5 years; or (11) 1n any case, by applying
one of the factors listed In the exceptfon under amed felony.
8
704
NEW YORK CRIMINAL PRACTICE HANDBOOK
Chart D-Mandatory Sentence Drug Offenses
Explanation
Chart D depicts all that remains of the so-called Rockefeller drug law
sentences. These laws were originally designed to provide a sentence of
life imprisonment for all drug sales. In order to accomplish this and
nevertheless maintain some degrees of distinction for various levels of
severity, the class A felony category (which provides for life imprisonment) was broken down into three subclassifications known as class AI, class A-II, and class A-III. The A-II and subsequently abolished A-III
classes provided for lower minimum periods of imprisonment. The
remnant of this system can be seen in the difference between the minimum for the A-I felony and the A-II felony as depicted on the chart. The
Article 220 drug offenses are the only offenses that utilize this subclassification system and, accordingly, there are no other A-II felonies.
I
PreplM bJ Prof...tat- ....t ..1'
2/87 a A-1hany law 5cll001
CoHrkOLLBn SOBSTARCBS (DRUG OFPRRSBS)
(orimea defined in Penal law Art 220)
1)
2)
I
No restriotion on pre-indiotment_,rec1uotion.
poat-inc1ictment pleadinq restrictions' mandatory sentenoes as follows I
nmICftIBR'!' CIWtGB
MPJIII)A'fOR1' SIHft'HllCll:
IIPI
"""
Life
L
Class A-I Palony
Class A-II Felony
15 (to 25)
Life
3 to 8-1/3
"""""
......
L01I'BR PLRA JlWlDA'fOlll' BBIft'JDIICB
IIPI
"'"
Class A-II only
[YO may plesd to B
on oonsent of DA]
Life
3 (to 8-1/3)
Class B felony only
3 to 25
1 (to 1/3 Max
imposed)
ClAas D felony
No Restriction
~
~
I
(see nota I)
Class B Palony
sale in or near
school, PL S220.44
3 (to 25)
1 (to 1/3
Max Imposed
6 (to 25)
1/3
Max Imposed
(see not.e 1)
3 (to 15)
ClAss C Felony
(Certain ones only,
PL S60.0S [41
. .
(ese note 2)
I (to 1/3
Max Imposed)
or
No Restriction
Not Applicable
Alternative Definite
Sentence (up to 1 Year
in County Institution)
CPCS 4th S220.09
euhds. 11H91
CSCS 4th S220.34
suhds. [1] • 121
...
-
-
--
.HOTE 1: Under certafn cfrcumstances a court wftll the concurrence of the administrative judge may, upon reCOlllllendatlon of the prosecv'tor, sentence
a person convicted of a class A~II or Cless B Article 200 felony to lifetfme probatfon fn lieu of Imprisonment. Penal Law 565.00 [l]{&). Slfch
sentence can be terminated by the court after 5 years. CpL 1410.90
NOTE 2: If the plea 15 to a Class C felony, rather than to a Class 0 felony, In certain cues there would be a restrlct10n on sentence (see above
chart under Class C felony (certatn cases onlY]).
~
706
NEW YORK CRIMINAL PRACTICE HANDBOOK
Chart E-Second & Persistent Felony Offender Sentences
Explanation
The sentencing structure contains four types of multiple felony offender sentences: two for second felony offenders and two for third and
subsequent (or persistent) felony offenders. Each of these has somewhat
different criteria for counting prior convictions which are set forth on
the chart, but there is one point that should be stressed for conceptual
purposes. A defendant does not become a second or third felony offender under any provision of New York law unless the present crime is
committed after sentence was imposed for the predicate crime. Thus the
mandatory sentences required by the second and persistent felony offender laws do not apply to a person who commits several felonies
before he is sentenced for anyone of them (concurrent and consecutive
sentence rules are applied for this purpose). The thrust of the multiple
felony offender laws is to subject the offender who already has been
sentenced for a felony to more severe sentencing the next time he commits a felony.
The two categories of sentences for second felony offenders are: the
second violent felony offender category, N. Y. Penal Law § 70.04, and
sentences for second felony offenders convicted of crimes other than
VFOs or a class A-I felony, N.Y. Penal Law § 70.06. These are both
mandatory" and require an indeterminate sentence of imprisonment (as
shown on the chart) within a range that is more severe than for first
offenders. It should be noted that a defendant can escape second felony
[I There is one exception to mandatory imprisonment. A person convicted of a class A-II or class B drug
offense defined in Penal Law Article 220 may be sentenced to lifetime probation under the circumstances set forth in Penal Law §65.00. See Penal Law § 70.06(5).
Note: Where guilty pleas are entered, the crimes to which the pleas were taken govern, nat the crimes
charged in the indictment. Thus it is possible to receive consecutive sentences for crimes charged in an
indictment that ordinarily would not yield consecutive sentences on conviction after trial. People v.
Adams. 57 N.Y2d 1035.444 N.E.2d 33. 457 N. YS.2d 783 (1982).
BUT NOTE: The court need not impose any of the foregoing sentences (unless otherwise required) and
may nevertheless make one of the sentences concurrent, if it finds mitigation in accordance with
statutory procedure.
SENTENCING
707
offender treatment by obtaining a reduction to a misdemeanor prior to
indictment. But, after indictment, no such plea is permitted. CPL
§ § 210.10, 220.30 (Supp. 1990). Moreover, a person indicted for a
VFO will not be permitted to plead to a felony other than a VFO, id., so
that the more severe sentence required for the second VFO cannot be
avoided by any sort of bargain.
The two types of third (or persistent) felony offender sentences are:
the persistent VFO sentence for third and subsequent VFOs, which is
mandatory, N. Y. Penal Law § 70.08, and the ordinary persistent felony
offender sentence, which may be imposed in the discretion of the court,
N.Y. Penal Law § 70.10. Ifa third or subsequent felony offender is not
a VFO and does not receive the discretionary life sentence otherwise
available, he must be sentenced as a second felony offender.
~""
MULTIPLE iELONY OFFENDERS
MANDATORY
SENTENCE
~
by f're.f. Pett;r '"her
2/81 ~ Alban)' law Scbool
RAN G E
,
SECOND FELONY OFFENOER
HPI
Max
CLASS
2d VIOLENT FELONY OFFENDER
Max
HPI
A-II Felony
*Ufe
6 (to 12-1/2)
B Felony
*9 (to 25)
1/2 Max Imposed
12 (to 25)
C Felony
6 (to 15)
1/2 Max Imposed
o Felony
4 (to 7)
E Felony
3 (to 4)
N/A
PERSISTENT (3d) V F 0
XIX
'WI
N/A
N/A
N/A
1/2 Max Imposed
life
10 (to 25)
8 (to 15)
1/2 Max Imposed
Life
8 (to 25)
1/2 Max Imposed
5 (to 7)
1/2 Max Imposed
life
6 (to 25)
1/2 Max Imposed
4 Years
2 'fears
life
2 Years
IOTE: Penal lew 10.10 provides II discretionary Persistent Felony Offender Sentence (3rd felony), l1fe Imprhonillent as the Nxl~UIII and 15-25 as
the MPI range. A prlor felony for this purpose fs I prior NY felony or a prior c:rlllle 1n any other jurisdiction. provided In either cue tltlt II
sentence to a term 111 ucess of one year was imposed (or a sentence of death). The statute requfres that II convfUfon and fmprfsonlllent for tile
flrst crime occur before cOlllilhsion of the second and that conViction and Imprisonment for the second crime occur before connisslon of the third
or persistent felony offense.
PRBnICA'fI: l'Bt01I'! ClU'fDlA
SZCO'JI) 7JW)1l!" 0J"PBBt)D
rPL
SBC<)1ID V~OL£R'!
70.06)
nLOIIt OlL'PPPD (l?L
70.04)
Prior felony in this at~te or offense in other jurisdiction th~t would be ~ felony here
second felony offender criterl~. except
prior conviction must have been of a cl~ss A felony (non
drug) or of an offenae defined as a VPO.
Sentence for prior crime imposed not more than 10
years before commission of present crime (excluding
time D incarcerated)
(For offenses committed prior to 1967 Penal Law
of-state offenBes, match elements).
Prior suspended sentence and other a~elior~tive
sentencea count, but conviction does not count if 0
pardoned on ground of innocence.
2 or more predicate VFO convictions
NBI
--
B~me
~s
requl~r
PDSIGDR'I' VIOLn"f JPJrLO!I1' OJ'!'Blll)U (PL
~nd
70.08)
A PRIOR PELONY CONVICTION WILL NOT BAR A PRE-INDICTMENT REDUCTION, BUT A PREDICATE PELONY CONVICTION AS
DEPINED ABOVE WILL BAR A POST INDICTMENT PLEA TO A MISDEMEANOR.
*DrUg offenders (PL Art 220)
~re
nevertheless still eligible for the speCial lifetime probation sentence.
out-
~
~
~
I
~
I
~
I
SENTENCING
709
Chart F-Juvenile & Youthful Offender Sentences
Explanation
The term "juvenile offender," defined in N. Y. Penal Law
§ lO.OO(l8), was added to the law for the purpose of subjecting persons
between the ages of thirteen and sixteen to criminal responsibility and
criminal sanctions for certain of the more serious criminal offenses. The
list of crimes for which a person under the age of sixteen may be
prosecuted is set forth in N.Y. Penal Law § 30(2). When a juvenile
offender is convicted of a crime, the only sentence authorized is an
indeterminate sentence of imprisonment. N.Y. Penal Law § 60.lO. It
should be noted, however, that there are numerous stages during the
criminal proceeding-even after verdict (but before sentence)-when
juvenile offender cases may be transferred to the Family Court for
further handling in accordance with Article 3 of the Family Court Act,
and such transfer ends the prospect of criminal responsibility and sentence. See CPL Art. 725. The court also has the option of utilizing the
youthful offender procedure, provided the juvenile offender meets the
eligibility requirements (see chart).
The youthful offender procedure occurs after a plea or verdict of
guilty and may be used in the discretion of the court, if the defendant
meets the eligibility requirements. See CPL Art. 720 (Supp. 1990). The
basic advantages for a defendant are: (I) a "youthful offender finding"
is substituted for the "conviction" and, when sentence is imposed, the
proceeding results in a "youthful offender adjudication" which is not
deemed to be a conviction of a crime and the offender will not be subject
to the disqualifications that normally accompany criminal conviction,
(2) the court will not be required to impose any mandatory sentence for
the offense; and (3) for first offender misdemeanants, the proceeding is
not made public.
...
-.l
hoe,.,.
Q
b1 ....,. r.Ur PmIV'
'l/B7 • Albany laN School
JUVEMILR AND yotiTiJi,DL OPPBRDRR SER"rENCRS
.nJVriJ:r.s
OP!'BIIDD fPL
no.osi
COIIVIC'!':Ia.
IWt
Murder 2d (class AI
Arson let iC1aB8 AI
Ridnapplnq 1.
~Cl
"AI
'101J'1'RPOL 0PI'BlIDJDl SnftIICB "(PI. 160~02)
."r_
-
ilfe
1.
MP'
,4
(to 6)
12 It'o' is)
4
(to 6)
Class B felony
3 (to 10)
"1/3 Max
Imposed
Class C felony
--
3 (to 7)
Any authorized sentence, but no imprisonment in
excess"of 6 months
"'"'5 (to 91
"'; 12" :(to~':lS)
1/3 Ml!tx
Imposed
--
Misdsmeanor' No Prior Crime or Y.O.I
2.
Misdameanor" (other cues)1
Any sentence that would have been permitted for
underlyinq crime
3.
Pe10nYI
Any sentence authorized for Class B felony, but
no conditional or unconditional discharqe where
underlying crime is druq (Art, 2201 felony.
Juvenile Offender Offenses.
See PL S30;OO""[2i, cPi:."Sl.2~ (42)
Juvenile Of tender Removal to Family Courtl
see CPL Article 725.
1'.0. JlLIGIBILI'f1' (CPL 1720.10 (2))
Age 14-19 at time of crime
Crime is not I
"- Class A-I": or A-II felony,
- Armed Felony, Rl!tpe 1-, Sodomy 1-, Aqqravated
Sexual Abuse·
NO prior felony conviction or felony Y,O. Adjud.
No prior JD for designl!tted felony Act.
-c:ourt may qrant Y.O. for theoe crimes if it finda miti- "
qatinq circumstances as outlined in the statutory criteria. CPL 5720.10(31.
~
~
~
("'J
I
~
("'J
:j
Q
ig
~
Chart - G
Prepared by Prof. Peter Preiser
AUTHORIZED SENTENCES FOR MISDEMEANORS & VIOLATIONS
(EXCLUDING MONETARY SANCTIONS)
CONVICTION
Class A Misdemeanor1
Class B Misdemeanor
Unclassified Misd.
VioJation 2
DEFINITE SENTENCE
OR INTERMITTENT
Up to 1 year
Up to 3 months
As prescribed in
law defining off·
PROBATION
ense but not more
over 3 months.
Otherwise 1 year
Not available
than 1 year
Up to 15 days
3 years
1 year
3 years if auth·
CON
DIS
1 Vr
1 Vr
1 Vr
UNCON
DIS
Ves
Ves
Ves
1 Vr
Ves
orized jail term
~
("'l
~
SPLIT
SENT
Probation
or
Conditional
Discharge
Upto 15 days
&Corid. Dis.
1. A temporary law, which had been renewed year-ta-year (former Penal Law § 70.15[11), allowed for a maximum term of6 months
for a class A misdemeanor, and was subject to a long list of exclusions. This law was not renewed as of July 1, 1990.
2. For violations defined outside the Penal Law, if the sentence is prescribed in the law that defines the offense and consists solely of a
fine, no term of imprisonment can be imposed.
Unlawful Possession of Marihuana (Penal Law § 221.05) is not punishable by imprisonment unless the defendant has two prior
convictions of offenses defined in the marihuana article (Article 220) or the drug article (Article 221).
-..l
....
....
~""---------~-------'-'--------"""-""-~
MONETARY
SENTENCES
...
--l
""P1Nd II,. h-of. "ter Pre1se..
2/87 • Albany In, School
N
fiNES (Penal law Art. 80):
May be imposed together with any other sentence or AS sole sentence for any offense. except may not b~ imposed as
the sole sentence where imprisonment is mandatory or for Article 220 (drug) felony.
'
Fixed Amounts
Alternat1ves
Felony
Up to $5.000
Class A Misdemeanor
Up
Class B Misdemeanor
Up to $500
Unclassified Misd.
As authorized in
§ defining crime
Violation
Up to $250
RESTITUTION OR REPARATION
to $1.000
1.
For all offenses. an alternatfve ffne in an amount not
exceeding 2X defendant's gain therefrom.
2.
For the felony of Enterpr1se Corruption (PL §460.20), an
alternat1ve ffne not exceeding 3X defendant's gross gain
or 3X gross loss caused. whichever is higher (PL§460.30).
3.
For the Class A misdemeanor of Unlawful Disposition of
Assets subject to forfeiture (PL §215.80), an amount
equal to 2X value of property unlawfully disposed of.
:::;
Ci~
::0::
(Penal Law 160.27)
Amount found by" the court to be the fruits of the offense or the loss or damage caused thereby, provided that -Without consent of defendant, or unless f1xed as a cond1tion of probation or of conditional discharge, the amount
cannot exceed:
$10,000 for a Felony.
$ 5,000 for a Lesser Offense; or
such greater amount as may be required for return of the victim's property, including money or the equtval,ent
value thereof and reimbursement for medical expenses actually incurred by the victim pr10r to sentence.
Plus, in all cases. a designated surcharge of 5% of the amount of restitution or reparation actually made.
1Wl00TORY SURCHARGE ASSESSlEIIT
Felony $100
~
Misdemeanor $60
(Penal Law 160.35)
Yfolatfon $25
Note: Tlt1s SLirchll'ge does not applY to offenses definad outside tha Pl or to YO adjudications
and is not required where defendant hn .de resUtution or repar.tion.
~
!
~\l
~
i
o
o
::0::
SENTENCING
713
D. Incidents of Thrms of Imprisonment
1. Imposition of Concurrent and Consecutive Thrms, N.Y. Penal
Law § 70.25
a. In General
Where a court imposes multiple sentences or imposes sentence upon
a person already subject to another sentence, the sentence or sentences
may be imposed as concurrent or consecutive to each other and/or to
any pre-existing sentence. If the court does not specify, then: an indeterminate sentence runs concurrently with all other terms, whether imposed at the same or at a prior time; and a definite sentence runs concurrently with any sentence imposed at the same time and consecutively
with any other term.
b. Exceptions, Concurrent Sentences Required
Multiple sentences imposed for two or more offenses committed
through a single act or omission, or through an act or omission which in
itself constituted one of the offenses and also was a material element of
the other must run concurrently unless one of the crimes is the class E
felony of unlawful wearing of a body vest, N. Y. Penal Law § 270.20, in
which case the court has discretion as to whether or not a consecutive
sentence should be imposed.
Multiple definite sentences for two or more offenses committed as
part of a single incident or transaction cannot exceed one year.
c. Exceptions, Consecutive Sentences Required
An indeterminate sentence imposed upon a second or third felony
offender must be consecutive to any term imposed for a crime committed prior to the one for which sentence is to be imposed.
If sentences of imprisonment are imposed in any of the following
situations they must run consecutively:
Two indeterminate sentences, one for a VFO committed while on
recognizance or bail after arraignment for a crime and the other for
that crime itself;
714
NEW YORK CRIMINAL PRACTICE HANDBOOK
Two indeterminate sentences, one for bail jumping second, N. V.
Penal Law § 215.56, or first, N.V. Penal Law § 215.57, degree
committed after arraignment on an indictment or information (not
felony complaint) charging one or more felonies and the other for one
of such felonies;
Two indeterminate sentences, one for escape second, N.Y. Penal
Law § 205.10, or first, N.V. Penal Law § 205.15, degree after
issuance of a securing order for one or more felonies and the other for
one of such felonies;
A sentence (whether definite or indeterminate) for the class D felony
of assault second degree while confined in a correctional facility,
N. V. Penal Law § 120.05(7), and the sentence being served at the
time the assault is committed;
Two sentences of imprisonment (whether definite or indeterminate),
one for the class D felony of assault second degree while confined in a
detention facility, N.Y. Penal Law § 120.05(7), and the other for the
crime upon which the detention was based.
2. Calculation of Indeterminate Sentences, N.Y. Penal Law
§ 70.30
a. In General
(1) Commencement
Sentence commences when defendant arrives at institution under its
commitment.
(2) Concurrent Sentences
Maximum terms merge and are satisfied by term which has the longest time to run. Minima are credited with time served on any of the
sentences.
(3) Consecutive Sentences
Subject to limitations (under heading B, infra), minima and maxima
are added to arrive at an aggregate for each.
SENTENCING
715
b. Limitations
(1) Adults
Where (a) two or more indeterminate sentences are imposed for
crimes committed prior to imprisonment under any of them, then (b)
exclusive of any sentence imposed for a class A felony, (c) the aggregate
maximum term and MPI of the multiple sentences are calculated so as
not to exceed the following:
Aggregate
3 or more VFO sentences including a VFO "B" . . . . ..
2 or more VFO sentences including a VFO "B" ..... ,
2 or more sentences including any other "B" ....... ,
2 or more sentences, highest crime a "C" .......... ,
Max Min
--50
40
30
20
25
20
15
10
2. Juvenile Offenders
Where two or more indeterminate sentences are imposed for crimes
committed before reaching the age of sixteen and before imprisonment
under any of the sentences, then the aggregate maximum term and MPI
of the multiple sentences are calculated so as not to exceed the followmg:
Aggregate
Max Min
2 or more sentences including a Murder 2d 0
2 or more sentences including an Arson Ist O
2 or more sentences including a Kidnapping Ist O
2 or more sentences without any of the above
N/A N/A
15 7'12
15 7'12
10
5
c. Good Behavior Time
One-third of the maximum or aggregate maximum term may be
earned.
716
NEW YORK CRIMINAL PRACTICE HANDBOOK
d. Jail Time
(1) In General
Time spent in custody pursuant to the charge that culminates in the
sentence. Applies as a credit to reduce both the maximum term and the
MPI.
(2) Concurrent Sentences
Jail time is applied against each.
(3) Consecutive Sentences
Jail time is applied against aggregate maximum term and aggregate
MPI.
(4) Dismissed Charges
Time that would have been allowed against a charge that has been
dismissed will be allowed against sentence for subsequent charge, if
warrant or commitment for subsequent charge was lodged during custody on dismissed charge.
S. Limitation
No credit is allowed where custody is due to another term defendant
is serving if sentence on that term is credited with the time.
3. Definite Sentences
a. Commencement
Sentence commences when defendant arrives at institution under its
commitment.
b. Multiple Sentences
(1) Concurrent Sentences
Concurrent sentences merge with each other and are satisfied by
service of the longest unexpired term. Where sentences are to be served
in separate institutions, credit is given for time served under first sentence after second sentence is imposed.
SENTENCING
717
(2) Consecutive Sentences
Consecutive sentences are added to arrive at an aggregate term subject to a limitation of two years plus any term imposed for an offense
committed while under sentence. This applies even though the sentences are to be served in different institutions.
(3) Good Behavior TIme
One-third of term or aggregate term.
(4) Jail TIme
Credit against term or aggregate term. Same rules as for indeterminate.
(5) Merger
A defendant who receives a definite sentence for a crime committed
prior to imposition of an indeterminate sentence does not serve the
definite sentence. The definite sentence is satisfied by service of the
indeterminate sentence and the defendant is delivered directly to a state
correctional facility. N.Y. Penal Law § 70.35 (Supp. 1990).
Note, however, that this does not apply to a consecutive definite
sentence for assault second degree committed while confined in a correctional facility. Penal Law § 120.05 (7).
c. Conditional Release
Discretionary release on parole may be granted after service of sixty
days, if the term or aggregate term exceeds ninety days. N. Y. Penal
Law § 70.40(2) (Supp. 1990).
m. PRISONER CLASSIFICATION AND RELEASE
DETERMINATIONS
A. Introduction
While the foregoing discussion has set forth in considerable detail the
sentence ranges available for various kinds of offenses and offenders, it
is important to recognize that -to a certain extent from the prosecution
718
NEW YORK CRIMINAL PRACTICE HANDBOOK
perspective, but to a much greater extent from the defendant's viewpoint-it is not the range which is important, but the length of the
minimum sentence.
You, as defense counsel, know, for example, that your client is going
to receive a bargained-for sentence of five-to-fifteen years upon his
conviction by guilty plea to first-degree manslaughter, N. Y. Penal Law
§ 125.20, a class B violent felony offense. You know, too, that your
client has received a double benefit in exchange for his plea: first, he has
pled to a B felony to cover an A felony indictment (second-degree
murder: N. Y. Penal Law § 125.25), thereby reducing to five years his
"exposure" on the minimum sentence (compared with a minimum of
not less than fifteen years were he to be convicted of murder), and he
has exchanged the possibility of a life maximum for a much less severe
maximum of fifteen years. You know, furthermore, that the five-tofifteen year sentence to be imposed is considerably less severe than the
eight and one-third-to-twenty-five year sentence which is permitted to
be imposed upon a first offender convicted of a class B felony. 10
When, therefore, you are asked by your client or his family how
many years he is likely to serve before being released, you can reply
with complete confidence that, unless he amasses an absolutely horrendous prison disciplinary record (resulting in a significant loss of "good
time")," the incarcerative portion of his sentence will not exceed ten
years. This is so because New York, having resisted the trend to "determinate sentencing;' 12 has chosen to retain a sentencing scheme which is
in part symbolic. A fifteen-year maximum does not signify fifteen
years' incarceration; it means no more than ten years, followed by the
balance of the maximum term under community supervision.
As each inmate of the state correctional system receives one day of
"good time" for every three days he or she is incarcerated, and as the
12 See N. Y. Penal Law § 70.02(1)(a), (3), (4) (Supp. 1990).
13 See N. Y. Correct. Law § 803 (Supp. 1990).
14 See generally "Determinate Sentencing Report and Recommendations," New York State Committee
on Sentencing Guidelines, March 29, 1985.
SENTENCING
719
inmate is entitled to be conditionally released, as if on parole, "when the
total good behavior time allowed to him, pursuant to the provisions of
the correction law, is equal to the unserved portion of his maximum or
aggregate maximum term," 15 your client's discharge to parole or conditional release will occur at or before two-thirds of the stated maximum
term.
What you are less likely to be able to ascertain-because the governing provisions are found not in the N. Y. Penal Law or the N. Y. Criminal
Procedure Law, but in Division of Parole and Department of Correctional Services manuals of limited circulation-is the likelihood that
your client will receive an early parole date or that he will, in advance of
his release on parole, be permitted to participate in a program of temporary release (e.g., furlough, work release, community services program, educational leave or industrial training leave).
B. Parole
Although New York has, as noted above, successfully resisted determinate sentencing in the judicial sphere, parole board decision-making
is expressly predicated upon a guidelines system modeled upon the
original federal sentencing guidelines. While the guidelines range has
twice been adjusted, principally to expand the ranges in several of the
grid boxes, during the ten years the Board has employed guidelines,
they have undergone no fundamental changes (such as a revised scoring
system). As shown schematically below, the guidelines employ a Prior
Criminal History (PCH) axis and an Offense Severity Score (OSS) axis,
numerically ranking on a scale the heinousness of the current offense:
15 N.Y. Penal Law § 70AO(I)(b).
NEW YORK CRIMINAL PRACTICE HANDBOOK
720
NEW YORK STATE BOARD OF PAROLE GUIDELINES
PRIOR CRIMINAL HISTORY SCORE
OFFENSE SEVERITY
SCORE
0 - 1 (GOOD) 2 - 5 (MODERATE) 6 - 11 (SERIOUS)
8-9
most severe
7
Specific ranges are not given due to the
limited number of cases and the extreme
variation possible within the category
30 -60
Months
40-72
Months
60-96
Months
22 -40
30-50
46-72
Months
Months
Months
16- 30
Months
20 - 38
30-54
Months
Months
Months
14 -24
Months
18 - 30
Months
20- 36
Months
1
12 - 18
14 -24
16 - 28
least severe
Months
Months
Months
6
4-5
2-3
721
SENTENCING
At the intersection of these axes is the guidelines range for the particular offender appearing before the board for release consideration.
Therefore, in the case of your hypothetical client with no prior criminal
record '6 who is convicted of first-degree manslaughter, a
16 The PCH score, which can range from 0 to 11, is calculated with reference to the following chart:
Item #1: NUMBER OF PRIOR MISDEMEANORS
Zero to Two....
Three or More. . . . .
TOTALS
. .. ' .... ' ...... =0
. . . . . . . . . .. . ...... = I
Hem #2: NUMBER OF PRIOR JAIL TERMS
Zero to One ....... .
Two to Three ... .
Four or More ...... .
. ............. =0
.=1
............ =2
Hem #3: NUMBER OF PRIOR FELONIES
Zero .. .
One .. .
Two ."
Three or More ...
. ..... =0
...... =1
.=2
.=3
Item #4: NUMBER OF PRIOR PRISON TERMS
Zero .. .
One ............. .
Two Of More ..... .
.. ... =0
.=2
.. .... =3
Item #5: PRIOR PROBATION OR PAROLE REVOCATIONS
No. "
Yes ..
.=0
.= 1
Item #6: ON PAROLE/PROBATION AT THE TIME OF
CURRENT OFFENSE
No.
Yes.
.. .. =0
.=1
722
NEW YORK CRIMINAL PRACTICE HANDBOOK
class B violent felony offense, his offense severity score will be either a
seven or an eight, depending upon whether the homicide was accomplished by means of a weapon. 17
You will note that once an inmate gets into the upper reaches of the
offense severity axis, no guideline range is given, the board having
made a policy determination that it will review, without regard to the
guidelines, all murder and most first-degree manslaughter convictions.
While the first of the reasons put forth for that policy decision-that
there are relatively few cases falling into the upper range-is certainly
open to question, the board has expressly provided in its regulations that
the guidelines are intended to be advisory only and "not a substitute for
the careful consideration of the circumstances of each individual
case."" Accordingly, a decision not to employ the guidelines in a partic17 The OSS score is calculated by assigning four points for the class B felony conviction, three points for
the death and either one or zero points for the use or nonuse of a weapon. (See chart below.)
lIem #1; FELONY CLASS OF CONVICTION
A ...
B ..
C ............. .
D ...... .
E.
YO .....
mTALS
. ............... =5
. .... =4
.........
. ..... =3
. .................. =2
...........
.= 1
. ...... =1
Item #2; WEAPON POSSESSION
No .. .
yes .... .
.=0
.............. =1
Item #3: FORCIBLE CONTACT
. ................. =0
...... =1
Force/Physical Injury
Serious Injury .. .
. .................... =2
Death ............... . ..................... =3
None ..
"
9 NYCRR § 8001.3.
SENTENCING
723
ular case, even were it subject to the very limited judicial review given
parole board decisions 19 is unlikely to be overturned.
Let us assume for the moment that your hypothetical client has been
convicted of first-degree manslaughter effectuated without the use of a
weapon. His OSS score of seven and PCH score of zero produce a
guideline range of thirty to sixty months (two and one-half to five
years). Accordingly, assuming good institutional adjustment, there is a
reasonably good chance that he will be released upon the expiration of
his minimum sentence term of five years.
Because unarmed manslaughter is an infrequent occurrence, other
crimes will necessarily provide a more realistic picture of how the
guidelines operate. Vary the hypothetical, therefore, and have the victim survive your client's savage attack. The defendant, having been
indicted for first-degree assault under N.Y. Penal Law § 120.10(1)
("With intent to cause serious physical injury to another person, he
causes such injury ... by means of a deadly weapon or dangerous
instrument"), pleads to second-degree assault, a class D violent felony,
and is sentenced to the maximum term permitted, viz. two and one-third
to seven years. Instead of finding himself with a score of seven or eight,
he scores either a four or five (two points for the D felony, one for
"force/physical injury" or two for "serious injury,"20 and one for possession of a weapon). His guideline range is therefore sixteen to thirty
months. Having been sentenced to a twenty-eight-month minimum, he,
thus, stands a good chance of release at his initial appearance before the
board.
Vary the hypothetical situation further, and saddle the convicted defendant with (a) three prior misdemeanor convictions, one of which
resulted in a jail term, (b) two prior felony convictions, the first of
19 See generally Russo v. Board a/Parole, 50 N. Y.2d 69, 405 N.E.2d 225. 427 N.Y.S.2d 982 (1980).
20 The Board continues to score the offense on the basis of the crime charged in the indictment (to use the
board's terminology, "the actual offense"), rather than the crime of conviction. There is. however,
some case law suggesting that the Board may not properly look beyond the crime of conviction. See
Edge v. Hammock, 80 A.D.2d 953, 438 N.Y.S.2d 38 (3rd Dep't 1981); but see Qafa v. Hammock, 80
A.D.2d 952. 438 N. Y.S.2d 40 (3,d Dep'11981).
724
NEW YORK CRIMINAL PRACTICE HANDBOOK
which resulted in ajail term21 and the second in a state prison term, upon
which (c) he was paroled and was subsequently reincarcerated for having violated his parole. Your client's PCR score of seven will produce a
forty-to-seventy-two-month guideline range, making it exceedingly unlikely that he will be paroled at the expiration of the minimum twentyeight-month term.
These several examples of the exercise of parole board discretion
may prove less valid in the future if the Legislature continues to limit
parole board discretion. The N.Y. Correction Law now provides that
any inmate serving an indeterminate term having a minimum of six
years or less (the vast majority of state prison terms fall within this
category) who has been issued a "certificate of earned eligibility" shall
be paroled at the expiration of this minimum term "unless the board of
parole determines that there is a reasonable probability that, if such
inmate is released, he will not live and remain at liberty without violatiug the law and that his release is not compatible with the welfare of
society."22
Thus, once the certificate of earned eligibility issues, the affected
inmate is clothed with a virtual entitlement to parole unless the Board
can muster exceedingly strong reasons for denying him release. This
legislative change increases the power of the Commissioner of Correctional Services at the expense of the Board of Parole, for the critical
release determination is now the issuance or denial of the certificate of
earned eligibility. It is the Commissioner, rather than the Board, who is
empowered to review the inmate's institutional record to determine
whether he has complied with his assigned work and treatment program
and is, thus, to be the recipient of the valued certificate. 23
21 See N. Y. Penal Law
§ 70.00(4).
22 N.Y. Correct Law § 805 (Supp. 1990).
23 Any inmate who is selected for and successfully completes the rigorous six-month program in a shock
incarceration facility, N. y, Correct. Law Art. 26-A is eligible as well to receive a certificate of earned
eligibility, and thus to be paroled. N. Y. Correct. Law §§ 805, 867(4)(Supp. 1990).
SENTENCING
725
C. Thmporary Release
If your client is among the relatively few inmates eligible for temporary release, you should advise him that the N. Y. Correction Law24
provides for TIR eligibility two years in advance of parole eligibility.
Therefore, assuming for the moment your sentenced-to-five-to-fifteenyears client's eligibility for temporary release (an extremely dubious
proposition, as will shortly be shown), he will be parole-eligible at five
years and temporary release-eligible after service of three years.
The Legislature has, however, kept a very close watch on the temporary release program, renewing its availability one year at a time, at
times almost grudgingly, as the Dodgers did for decades with the contracts of managers Walter Alston and Thmmy Lasorda.25 The Legislature has, furthermore, limited the availability of temporary release to
those it has determined are more likely than not to succeed in the program. Persons convicted of escape and other offenses defined in Article
205 of the N. Y. Penal Law are, understandably, ineligible for temporary
release consideration. Furthermore, the following classes of inmates,
otherwise eligible for temporary release, may not be released without
written approval from the Commissioner of Correctional Services:
those persons "under sentence for a crime involving: (a) infliction of
serious physical injury upon another as defined in the Penal Law, (b) a
sex offense involving forcible compulsion, or (c) any other offense
involving the use or threatened use of a deadly weapon ."26
The specialized leaves (educational, industrial training, community
services) and work release all entail the inmate's being permitted to
leave his place of confinement for up to fourteen hours a day. Furloughs
are of limited duration-no longer than seven days-for specified purposes: solving family problems or maintaining family ties; seeking post24 N.Y. Correct. Law Art. 26 (Supp. 1990).
25 Recently, however, the Legislature has advanced T/R eligibility from one to two years before parole
eligibility and has extended the temporary release program to September 1, 1991. It does not seem
unduly cynical to suggest that the prison overcrOWding crisis was at the heart of these amendments.
26 N.Y. Correct. Law § 851(2) (Supp. 1990).
726
NEW YORK CRIMINAL PRACTICE HANDBOOK
release housing; seeking employment. General "leaves of absence" are
of unlimited duration, but for highly specialized purposes, including
family member deathbed visits and funerals or for essential medical
care which cannot be obtained within the inmate's correctional facility.
Successful completion of a leave of absence or furlough substantially
increases the likelihood that the inmate's future temporary release applications will be granted. Conversely, and understandably, a return more
than ten hours late from any form of temporary release is presumed to
be an abscondance from supervision, effectively barring the inmate
from future T/R participation.
The evaluation of a temporary release application (which in the first
instance is considered by the three-member facility Temporary Release
Committee) is predicated upon the nature of the inmate's present conviction, his prior criminal record, and his pattern of success or failure
while under community supervision (parole, conditional release, probation, temporary release)."
D. Prisoner Classification
With over 42,000 inmates in the state correctional system, bureaucratization is a necessary concomitant of any system of inmate classification. Newly committed inmates complete this initial classification
within three to fourteen days after their "reception" into the state system, and that classification is predicated upon generally objective criteria, such as the pattern of violence in the inmate's past, his escape/bailjumping/absconding history, the amount of time remaining until his
projected release, the percentage of the sentence already served, his job
and family stability, and his disciplinary adjustment during previous
incarcerations. This initial classification will result in the inmate being
cIassifiedas maximum (e.g., Auburn), medium (e.g., Hudson), or minimum (e.g., Lyon Mountain). A copy of a Program and Security Assessment Summary (pSAS-DOCS Form 3612) appears on the following
27 The guidelines employed in the administration of the temporary release program are found at 7
NYCRR§ 1900.
SENTENCING
727
page. As an inmate's classification is reviewed every six months, his
current institutional adjustment necessarily plays an ever larger role in
his classification. Maximum security inmates are reclassified once they
are within fifty months of earliest release eligibility, while medium
security inmates are reclasssified upon reaching thirty-eight months
from their potential release.
The correctional system also attempts to recognize the special vulnerability of "special needs inmates," e.g., mentally ill, mentally retarded,
physically disabled, and victim-prone individuals, as well as AIDS patients, so that these inmates may be placed outside the general prison
population.
Inmates suspected of organized crime connections or otherwise warranting special monitoring are, although part of the general prison population, designated "Central Monitoring Cases." A CMC designation
necessarily affects the inmate's eligibility to participate in certain prison
programs, and such designation is appealable to DOCS Counsel.
The classification process, therefore, affords a significant role to
attorneys in the specialized area of CMC appeals and in the more general field of initial classification determinations. It should be recognized
that as these latter determinations are made under severe time constraints, counsel must be prepared to submit, upon the inmate's arrival
at the reception facility, a memorandum individualizing the client, counsel's goal being to persuade the facility classification counselor to recommend the lowest level of security possible. While the prospects of
success in this regard are not good-simply because of the pressure of
numbers and the very limited availability of bed space in the lower
security facilities-effective advocacy may make a difference, one
which will affect the conditions under which your client serves out his
or her sentence. Furthermore, a favorable classification determination
may enhance the client's prospects for early temporary release and
parole.
FORM 3612
(REY.5/82)
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730
NEW YORK CRIMINAL PRACTICE HANDBOOK
E. Conclusion
Whether you are a defense attorney or a prosecutor, a basic familiarity with the parole, temporary release, and prison classification guidelines will be of inestimable value to you, for it will allow you to advance
practical concerns at both the plea and sentence stages of the proceeding, which may shape the sentence imposed on the defendant. On the
most elementary level, if the court at a presentence conference declares
its inclination to impose a two-to-six-year sentence upon the defendant,
. the prosecutor may argue that such a sentence would make the defendant immediately eligible for temporary release consideration and subject society to the specter of his release into the community before any
meaningful attempts at his rehabilitation have been undertaken. Equally
knowledgeable defense counsel may counter (assuming the facts warrant it) that the nature of his client's offense bars him from consideration
for temporary release; in any event, he may credibly argue that the
practical realities of the temporary release process are such that virtually no one enters upon long-term temporary release (i.e., work release)
before he or she has served a minimum of six to eight months in prison.
Your familiarity with paroleand the other post-sentencing determinations which will impact upon both the length and the nature of your
client's prison term may benefit him years after sentence is pronounced.
For example, the presentence report is the probation officer-prepared
document which sets forth the "official" version of the circumstances
surrounding the crime of conviction. As previously suggested, you
should seek to have input into that report by telephoning or, preferably,
meeting with the probation officer as early as possible during its preparation. If your overtures in that regard are rebuffed, you are not without
a remedy. CPL § 390.40 authorizes the submission of presentence
memorandum by both prosecution and defense. While a prosecution
memorandum is not essential in every case because the prosecutor is
much more likely than defense counsel to have the ear of the probation
officer, a defense memorandum should be submitted in virtually every
case.
SENTENCING
731
This is true even when it is a foregone conclusion what sentence will
be imposed. We turn once again to your client whose bargained-for plea
to first -degree manslaughter has been conditioned oy the People upon
the court's imposition of a term of no less than five to fifteen years.
Come hell or high water, the judge is going to sentence him to five to
fifteen, and it is not going to make any difference whether you submit a
presentence memorandum or are as articulate as Daniel Webster when
you address the court before sentence is pronounced. So why should
you go to the trouble of preparing an extensive presentence memorandum? Because it will aid the defendant years later.
In apparent recognition of the fact that the presentence report and any
documents accompanying it serve as the basis for all the in-prison determinations affecting New York's 42,OOO-plus state prison inmates, the
Legislature has mandated28 that not only the presentence report but also
"a copy of any presentence memorandum filed by the defendant" accompany him to his place of incarceration. While there is no statutory
requirement that the prosecution's presentence memorandum be included in the packet of materials accompanying the defendant, no judge
is likely to refuse a prosecution request that it also be sent to the reception center (for men, either Downstate, Wende or Clinton; for adolescent males, Elmira; for all females, Bedford Hills), which is the defendant's first stop in the state prison system. The Legislature has, furthermore, put teeth in that mandate by providing as follows in CPL
§ 390.60(2):
A commitment is not void by reason of failure to comply with the
provisions of subdivision one, but the person in charge of the
correctional facility to which the defendant has been delivered in
28 CPL § 390.60(l)(Supp. 1990).
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NEW YORK CRIMINAL PRACTICE HANDBOOK
execution of the sentence is authorized to refuse to accept custody
of such person until the required report is delivered. 29
At a time when prisons are operating at or near their rated population
capacity, this is no idle threat.
29 Not infrequently judges specify at the time of sentence a particular state correctional facility where the
c-onvicted defendant is to serve his term of incarceration. N. Y. Correction Law provision, § 71(6), is
comparable to CPL § 390.60(2). Section 71(6) of the N. Y. Correction Law provides that "[a] commitment to a specified institution in the department [of correctional services], rather than to the custody of
the department, which is valid in all other respects shall not be void for such reason but shall be deemed
a commitment to the custody ofthe department and the person so committed shall be conveyed to the
p-roper institution as prescribed by this section."