inmate to determine if continued placement in the program is appropri-
ate. No person convicted of any escape or absconding offense defined in
article two hundred five of the penal law shall be eligible for tempo-
rary release. Notwithstanding the foregoing, no person who is an other-
wise eligible inmate who is 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 may
participate in a temporary release program without the written approval
of the commissioner. The commissioner shall promulgate regulations
giving direction to the temporary release committee at each institution
in order to aid such committees in carrying out this mandate.
§ 14. Subdivision 1 of section 865 of the correction law, as amended
by chapter 264 of the laws of 2003, is amended to read as follows:
1. "Eligible inmate" means a person sentenced to an indeterminate term
of imprisonment who will become eligible for release on parole within
three years or sentenced to a determinate term of imprisonment who will
become eligible for conditional release within three years, who has not
reached the age of forty years, [who will become eligible for release on
parole within three years,] who has not previously been convicted of a
felony upon which an indeterminate or determinate term of imprisonment
was imposed and who was between the ages of sixteen and forty years at
the time of commission of the crime upon which his or her present
sentence was based except, however, an eligible inmate shall not include
a person sentenced to a determinate sentence of three and one-half years
or more as a second felony drug offender pursuant to subdivision three
of section 70.70 of the penal law for a conviction of a class B felony
offense defined in article two hundred twenty of the penal law.
Notwithstanding the foregoing, no person who is convicted of any of the
following crimes shall be deemed eligible to participate in this
program: (a) a violent felony offense as defined in article seventy of
the penal law, (b) an A-I felony offense, (c) manslaughter in the second
degree, vehicular manslaughter in the second degree, vehicular
manslaughter in the first degree, and criminally negligent homicide as
defined in article one hundred twenty-five of the penal law, (d) rape in
the second degree, rape in the third degree, criminal sexual act in the
second degree, criminal sexual act in the third degree, attempted sexual
abuse in the first degree, attempted rape in the second degree and
attempted criminal sexual act in the second degree as defined in arti-
cles one hundred ten and one hundred thirty of the penal law and (e) any
escape or absconding offense as defined in article two hundred five of
the penal law.
§ 15. Subdivision 4 of section 867 of the correction law, as amended
by chapter 55 of the laws of 1992, is amended to read as follows:
4. An inmate who has successfully completed a shock incarceration
program shall be eligible to receive such a certificate of earned eligi-
bility pursuant to section eight hundred five of this chapter. Notwith-
standing any other provision of law, an inmate sentenced to a determi-
nate sentence of imprisonment who has successfully completed a shock
incarceration program shall be eligible to receive such a certificate of
earned eligibility and shall be immediately eligible to be conditionally
released.
§ 16. Subparagraph (ii) of paragraph (a) of subdivision 5 of section
220.10 of the criminal procedure law is REPEALED and subparagraph (i) of
paragraph (a) of such subdivision 5, as amended by chapter 410 of the
laws of 1979, is amended to read as follows:
(i) Where the indictment charges one of the class [A-I] A felonies
defined in article two hundred twenty of the penal law or the attempt to
commit any such class [A-I] A felony, then any plea of guilty entered
pursuant to subdivision three or four of this section must be or must
include at least a plea of guilty [of class A-II felony, except that an
eligible youth, as defined in subdivision two of section 720.10 of this
chapter, may upon consent of the district attorney, plea to a class B
felony for purposes of adjudication as a youthful offender] of a class B
felony.
§ 17. Subdivision 7 of section 220.50 of the criminal procedure law,
as added by chapter 3 of the laws of 1995, is amended to read as
follows:
7. Prior to accepting a defendant's plea of guilty to a count or
counts of an indictment or a superior court information charging a felo-
ny offense, the court must advise the defendant on the record, that if
the defendant is not a citizen of the United States, the defendant's
plea of guilty and the court's acceptance thereof may result in the
defendant's deportation, exclusion from admission to the United States
or denial of naturalization pursuant to the laws of the United States.
Where the plea of guilty is to a count or counts of an indictment charg-
ing a felony offense other than a violent felony offense as defined in
section 70.02 of the penal law or an A-I felony offense other than an
A-I felony as defined in article two hundred twenty of the penal law,
the court must also, prior to accepting such plea, advise the defendant
that, if the defendant is not a citizen of the United States and is or
becomes the subject of a final order of deportation issued by the United
States Immigration and Naturalization Service, the defendant may be
paroled to the custody of the Immigration and Naturalization Service for
deportation purposes at any time subsequent to the commencement of any
indeterminate or determinate prison sentence imposed as a result of the
defendant's plea. The failure to advise the defendant pursuant to this
subdivision shall not be deemed to affect the voluntariness of a plea of
guilty or the validity of a conviction, nor shall it afford a defendant
any rights in a subsequent proceeding relating to such defendant's
deportation, exclusion or denial of naturalization.
§ 18. Section 400.21 of the criminal procedure law, as added by chap-
ter 277 of the laws of 1973 and subdivision 4 as amended by chapter 1051
of the laws of 1973, is amended to read as follows:
§ 400.21 Procedure for determining whether defendant is a second felony
offender or a second felony drug offender.
1. Applicability. The provisions of this section govern the procedure
that must be followed in any case where it appears that a defendant who
stands convicted of a felony has previously been convicted of a predi-
cate felony and may be a second felony offender as defined in section
70.06 of the penal law or a second felony drug offender as defined in
either paragraph (b) of subdivision one of section 70.70 of the penal
law, or paragraph (b) of subdivision one of section 70.71 of the penal
law.
2. Statement to be filed. When information available to the court or
to the people prior to sentencing for a felony indicates that the
defendant may have previously been subjected to a predicate felony
conviction, a statement must be filed by the prosecutor before sentence
is imposed setting forth the date and place of each alleged predicate
felony conviction and whether the predicate felony conviction was a
violent felony as that term is defined in subdivision one of section
70.02 of the penal law, or in any other jurisdiction of an offense which
includes all of the essential elements of any such felony for which a
sentence to a term of imprisonment in excess of one year or death was
authorized and is authorized in this state regardless of whether such
sentence was imposed. Where the provisions of subparagraph (v) of para-
graph (b) of subdivision one of section 70.06 of the penal law apply,
such statement also shall set forth the date of commencement and the
date of termination as well as the [place of imprisonment] state or
local incarcerating agency for each period of incarceration to be used
for tolling of the ten year limitation set forth in subparagraph (iv) of
paragraph (b) of such subdivision.
3. Preliminary examination. The defendant must be given a copy of
such statement and the court must ask him or her whether he or she wish-
es to controvert any allegation made therein. If the defendant wishes to
controvert any allegation in the statement, he must specify the partic-
ular allegation or allegations he wishes to controvert. Uncontroverted
allegations in the statement shall be deemed to have been admitted by
the defendant.
4. Cases where further hearing is not required. Where the uncontro-
verted allegations in the statement are sufficient to support a finding
that the defendant has been subjected to a predicate felony conviction
the court must enter such finding, including a finding that the predi-
cate felony conviction was of a violent felony as that term is defined
in subdivision one of section 70.02 of the penal law, or in any other
jurisdiction of an offense which includes all of the essential elements
of any such felony for which a sentence to a term of imprisonment in
excess of one year or death was authorized and is authorized in this
state regardless of whether such sentence was imposed, and when imposing
sentence must sentence the defendant in accordance with the applicable
provisions of section 70.06, 70.70 or 70.71 of the penal law.
5. Cases where further hearing is required. Where the defendant
controverts an allegation in the statement and the uncontroverted alle-
gations in such statement are not sufficient to support a finding that
the defendant has been subjected to such a predicate felony conviction
the court must proceed to hold a hearing.
6. Time for hearing. In any case where a copy of the statement was not
received by the defendant at least two days prior to the preliminary
examination, the court must upon request of the defendant grant an
adjournment of at least two days before proceeding with the hearing.
7. Manner of conducting hearing. (a) A hearing pursuant to this
section must be before the court without jury. The burden of proof is
upon the people and a finding that the defendant has been subjected to
such a predicate felony conviction must be based upon proof beyond a
reasonable doubt by evidence admissible under the rules applicable to a
trial of the issue of guilt.
(b) A previous conviction in this or any other jurisdiction which was
obtained in violation of the rights of the defendant under the applica-
ble provisions of the constitution of the United States must not be
counted in determining whether the defendant has been subjected to such
a predicate felony conviction. The defendant may, at any time during
the course of the hearing hereunder controvert an allegation with
respect to such conviction in the statement on the grounds that the
conviction was unconstitutionally obtained. Failure to challenge the
previous conviction in the manner provided herein constitutes a waiver
on the part of the defendant of any allegation of unconstitutionality
unless good cause be shown for such failure to make timely challenge.
(c) At the conclusion of the hearing the court must make a finding as
to whether or not the defendant has been subjected to a predicate felony
conviction, including a finding as to whether or not the predicate felo-
ny conviction was of a violent felony as that term is defined in subdi-
vision one of section 70.02 of the penal law, or in any other jurisdic-
tion of an offense which includes all of the essential elements of any
such felony for which a sentence to a term of imprisonment in excess of
one year or death was authorized and is authorized in this state regard-
less of whether such sentence was imposed.
8. Subsequent use of predicate felony conviction finding. Where a
finding has been entered pursuant to this section, such finding shall be
binding upon that defendant in any future proceeding in which the issue
may arise.
§ 19. Intentionally omitted.
§ 20. The penal law is amended by adding a new section 60.04 to read
as follows:
§ 60.04 Authorized disposition; controlled substances and marihuana
felony offenses.
1. Applicability. Notwithstanding the provisions of any law, this
section shall govern the dispositions authorized when a person is to be
sentenced upon a conviction of a felony offense defined in article two
hundred twenty or two hundred twenty-one of this chapter or when a
person is to be sentenced upon a conviction of such a felony as a multi-
ple felony offender as defined in subdivision five of this section.
2. Class A felony. Every person convicted of a class A felony must be
sentenced to imprisonment in accordance with section 70.71 of this
title, unless such person is convicted of a class A-II felony and is
sentenced to probation for life in accordance with section 65.00 of this
title.
3. Class B felonies. Every person convicted of a class B felony must
be sentenced to imprisonment in accordance with the applicable
provisions of section 70.70 of this title, unless such person is
convicted of a class B felony and is sentenced to probation in accord-
ance with section 65.00 of this title.
4. Alternative sentence. Where a sentence of imprisonment or a
sentence of probation as an alternative to imprisonment is not required
to be imposed pursuant to subdivision two, three or five of this
section, the court may impose any other sentence authorized by section
60.01 of this article, provided that when the court imposes a sentence
of imprisonment, such sentence must be in accordance with section 70.70
of this title. Where the court imposes a sentence of imprisonment in
accordance with this section, the court may also impose a fine author-
ized by article eighty of this title and in such case the sentence shall
be both imprisonment and a fine.
5. Multiple felony offender. Where the court imposes a sentence upon a
second felony drug offender, as defined in paragraph (b) of subdivision
one of section 70.70 of this title, it must sentence such offender to
imprisonment in accordance with the applicable provisions of section
70.70 of this title.
6. Substance abuse treatment. When the court imposes a sentence of
imprisonment which requires a commitment to the state department of
correctional services upon a person who stands convicted of a controlled
substance or marihuana offense, the court may, upon motion of the
defendant in its discretion, issue an order directing that the depart-
ment of correctional services enroll the defendant in the comprehensive
alcohol and substance abuse treatment program in an alcohol and
substance abuse correctional annex as defined in subdivision eighteen of
section two of the correction law, provided that the defendant will
satisfy the statutory eligibility criteria for participation in such
program. Notwithstanding the foregoing provisions of this subdivision,
any defendant to be enrolled in such program pursuant to this subdivi-
sion shall be governed by the same rules and regulations promulgated by
the department of correctional services, including without limitation
those rules and regulations establishing requirements for completion and
those rules and regulations governing discipline and removal from the
program. No such period of court ordered corrections based drug abuse
treatment pursuant to this subdivision shall be required to extend
beyond the defendant's conditional release date.
§ 21. The opening paragraph and subdivision 1 of section 220.18 of the
penal law, as amended by chapter 75 of the laws of 1995, are amended to
read as follows:
A person is guilty of criminal possession of a controlled substance in
the second degree when he or she knowingly and unlawfully possesses:
1. one or more preparations, compounds, mixtures or substances
containing a narcotic drug and said preparations, compounds, mixtures or
substances are of an aggregate weight of [two] four ounces or more; or
§ 22. The opening paragraph and subdivision 1 of section 220.21 of the
penal law, as amended by chapter 75 of the laws of 1995, are amended to
read as follows:
A person is guilty of criminal possession of a controlled substance in
the first degree when he or she knowingly and unlawfully possesses:
1. one or more preparations, compounds, mixtures or substances
containing a narcotic drug and said preparations, compounds, mixtures or
substances are of an aggregate weight of [four] eight ounces or more; or
§ 23. Notwithstanding any contrary provision of law, any person in the
custody of the department of correctional services convicted of a class
A-I felony offense defined in article 220 of the penal law which was
committed prior to the effective date of this section, and sentenced
thereon to an indeterminate term of imprisonment with a minimum period
not less than fifteen years pursuant to provisions of the law in effect
prior to the effective date of this section, may, upon notice to the
appropriate district attorney, apply to be resentenced in accordance
with section 70.71 of the penal law in the court which imposed the
original sentence. Such application shall be referred for determination
to the judge or justice who imposed the original sentence upon such
person. If at the time of the application the original sentencing judge
or justice is a judge or justice of a court of competent jurisdiction,
but such court is not the court in which the original sentence was
imposed, then the application shall be randomly assigned to another
judge or justice of the court in which the original sentence was
imposed, provided that the district attorney and applicant may agree
that the application be referred to the original sentencing judge. If
the original sentencing judge is no longer a judge or justice of a court
of competent jurisdiction, then the application shall be randomly
assigned to another judge or justice of the court. If the court deter-
mines that such person does not stand convicted of such a class A-I
felony offense, it shall issue an order denying the application. If the
court determines that such person does stand convicted of such a class
A-I felony offense, it may consider any facts or circumstances relevant
to the imposition of a new sentence which are submitted by such person
or the people and may, in addition, consider the institutional record of
confinement of such person, but shall not order a new pre-sentence
investigation and report or entertain any matter challenging the under-
lying basis of the subject conviction. The court shall offer an opportu-
nity for a hearing and bring the applicant before it. The court may also
conduct a hearing, if necessary, to determine whether such person quali-
fies to be resentenced or to determine any controverted issue of fact
relevant to the issue of sentencing. Upon its review of the submissions
and the findings of fact made in connection with the application, the
court shall, unless substantial justice dictates that the application
should be denied, in which event the court shall issue an order denying
the application, specify and inform such person of the term of a deter-
minate sentence of imprisonment it would impose upon such conviction, as
authorized for a class A-I felony by and in accordance with section
70.71 of the penal law, in the event of a resentence and shall enter an
order to that effect. The court shall notify the person that, unless he
or she withdraws the application or appeals from such order, the court
will enter an order vacating the sentence originally imposed and impos-
ing a determinate sentence of imprisonment authorized to be imposed upon
such conviction by section 70.71 of the penal law; provided that the
term thereof shall be the same as the court previously specified. Any
order issued by a court pursuant to this section must include written
findings of fact and the reasons for such order. An appeal may be taken
as of right in accordance with applicable provisions of the criminal
procedure law: (a) from an order denying resentencing; or (b) from a new
sentence imposed under this provision and may be based on the grounds
that (i) the term of the new sentence is harsh or excessive; or (ii)
that the term of the new sentence is unauthorized as a matter of law.
An appeal in accordance with the applicable provisions of the criminal
procedure law may also be taken as of right by the defendant from an
order specifying and informing such person of the term of the determi-
nate sentence the court would impose upon resentencing on the ground
that the term of the proposed sentence is harsh or excessive; upon
remand to the sentencing court following such appeal the defendant shall
be given an opportunity to withdraw an application for resentencing
before any resentence is imposed. Subdivision 1 of section 717 and
subdivision 4 of section 722 of the county law and the related
provisions of article 18-A of such law shall apply to the preparation of
and proceedings on applications pursuant to this section. In calculat-
ing the term of imprisonment to be served by the person pursuant to the
determinate sentence imposed, such person shall be credited for any jail
time credited towards the subject conviction as well as any period of
incarceration credited toward the sentence originally imposed.
§ 24. The section heading and subdivisions 1, 2, 3, 4 and 5 of section
60.05 of the penal law, the section heading and subdivisions 3 and 5 as
amended by chapter 410 of the laws of 1979, subdivision 1 as amended by
chapter 233 of the laws of 1980, subdivision 2 as amended by chapter 1
of the laws of 1995 and subdivision 4 as amended by chapter 711 of the
laws of 1981, are amended to read as follows:
Authorized dispositions; other class A, B, certain C and D felonies
and multiple felony offenders.
1. Applicability. [This] Except as provided in section 60.04 of this
article governing the authorized dispositions applicable to felony
offenses defined in article two hundred twenty or two hundred twenty-one
of this chapter, this section shall govern the dispositions authorized
when a person is to be sentenced upon a conviction of a class A felony,
a class B felony or a class C, class D or class E felony specified here-
in, or when a person is to be sentenced upon a conviction of a felony as
a multiple felony offender.
2. Class A felony. Except as provided in subdivisions three and four
of section 70.06 of this chapter, every person convicted of a class A
felony must be sentenced to imprisonment in accordance with section
70.00 of this title, unless such person is convicted of [either] murder
in the first degree and is sentenced in accordance with section 60.06
[or of a class A-II felony and is sentenced to probation in accordance
with section 65.00] of this article.
3. Class B felony. Except as provided in subdivision six of this
section, every person convicted of a class B violent felony offense as
defined in subdivision one of section 70.02 of this title, must be
sentenced to imprisonment in accordance with such section 70.02; and,
except as provided in subdivision six of this section, every person
convicted of any other class B felony must be sentenced to imprisonment
in accordance with section 70.00[, unless such person is convicted of a
class B felony defined in article two hundred twenty and is sentenced to
a period of probation for life in accordance with section 65.00] of this
title.
4. Certain class C felonies. Except as provided in subdivision six,
every person convicted of a class C violent felony offense as defined in
subdivision one of section 70.02 of this title, must be sentenced to
imprisonment in accordance with section 70.02 of this title; and, except
as provided in subdivision six of this section, every person convicted
of the class C felonies of: attempt to commit any of the class B felo-
nies of bribery in the first degree as defined in section 200.04, bribe
receiving in the first degree as defined in section 200.12, conspiracy
in the second degree as defined in section 105.15 and criminal mischief
in the first degree as defined in section 145.12; criminal usury in the
first degree as defined in section 190.42, rewarding official misconduct
in the first degree as defined in section 200.22, receiving reward for
official misconduct in the first degree as defined in section 200.27,
[criminal possession of a controlled substance in the fourth degree as
defined in subdivision one, two, three, four, five, six, seven, eight or
nine of section 220.09, or criminal sale of a controlled substance in
the fourth degree as defined in subdivision one or two of section
220.34,] attempt to promote prostitution in the first degree as defined
in section 230.32, promoting prostitution in the second degree as
defined in section 230.30, arson in the third degree as defined in
section 150.10 of this chapter, must be sentenced to imprisonment in
accordance with section 70.00 of this title.
5. Certain class D felonies. Except as provided in subdivision six of
this section, every person convicted of the class D felonies of [attempt
to commit assault in the first degree as defined in section 120.10, or]
assault in the second degree as defined in section 120.05[,] or attempt
to commit a class C felony as defined in section 230.30 of this chapter,
must be sentenced in accordance with section 70.00 or 85.00 of this
title.
§ 25. The opening paragraph of paragraph (a) of subdivision 1 of
section 65.00 of the penal law, as amended by chapter 471 of the laws of
1980, is amended to read as follows:
Except as otherwise required by section 60.04 or 60.05 of this title,
and except as provided by paragraph (b) hereof, the court may sentence a
person to a period of probation upon conviction of any crime if the
court, having regard to the nature and circumstances of the crime and to
the history, character and condition of the defendant, is of the opinion
that:
§ 26. Subparagraph (ii) of paragraph (a) of subdivision 3 of section
65.00 of the penal law, as amended by chapter 264 of the laws of 2003,
is amended to read as follows:
(ii) For a class A-II felony controlled substance offender as defined
in paragraph (a) of subdivision one of section 70.71 of this chapter or
a class B second felony [defined in article two hundred twenty] drug
offender as defined in paragraph (b) of subdivision one of section 70.70
of this chapter, the period of probation shall be life, and for a class
B felony drug offender as defined in paragraph (a) of subdivision one of
section 70.70 of this chapter, the period of probation shall be twenty-
five years;
§ 27. Intentionally omitted.
§ 28. Subdivisions 1, 2, 3 and 4 of section 70.00 of the penal law,
subdivision 1 as amended by chapter 3 of the laws of 1995, subdivisions
2 and 3 as amended by chapter 276 of the laws of 1973, paragraph (b) of
subdivision 2 as amended by chapter 280 of the laws of 1986, subpara-
graph (i) of paragraph (a) of subdivision 3 as amended by chapter 459 of
the laws of 2004, subparagraph (ii) of paragraph (a) of subdivision 3 as
amended by chapter 410 of the laws of 1979, paragraph (b) of subdivision
3 and subdivision 4 as amended by chapter 1 of the laws of 1998, are
amended to read as follows:
1. Indeterminate sentence. Except as provided in subdivisions four,
five and six of this section, a sentence of imprisonment for a felony,
other than a felony defined in article two hundred twenty or two hundred
twenty-one of this chapter, shall be an indeterminate sentence. When
such a sentence is imposed, the court shall impose a maximum term in
accordance with the provisions of subdivision two of this section and
the minimum period of imprisonment shall be as provided in subdivision
three of this section.
2. Maximum term of sentence. The maximum term of an indeterminate
sentence shall be at least three years and the term shall be fixed as
follows:
(a) For a class A felony, the term shall be life imprisonment;
(b) For a class B felony, the term shall be fixed by the court, and
shall not exceed twenty-five years; [provided, however, that where the
sentence is for a class B felony offense specified in subdivision two of
section 220.44, the maximum term must be at least six years and must not
exceed twenty-five years;]
(c) For a class C felony, the term shall be fixed by the court, and
shall not exceed fifteen years;
(d) For a class D felony, the term shall be fixed by the court, and
shall not exceed seven years; and
(e) For a class E felony, the term shall be fixed by the court, and
shall not exceed four years.
3. Minimum period of imprisonment. The minimum period of imprisonment
under an indeterminate sentence shall be at least one year and shall be
fixed as follows:
(a) In the case of a class A felony, the minimum period shall be fixed
by the court and specified in the sentence.
(i) For a class A-I felony, such minimum period shall not be less than
fifteen years nor more than twenty-five years; provided, however, that
(A) where a sentence, other than a sentence of death or life imprison-
ment without parole, is imposed upon a defendant convicted of murder in
the first degree as defined in section 125.27 of this chapter such mini-
mum period shall be not less than twenty years nor more than twenty-five
years, and, (B) where a sentence is imposed upon a defendant convicted
of murder in the second degree as defined in subdivision five of section
125.25 of this chapter the sentence shall be life imprisonment without
parole.
(ii) For a class A-II felony, such minimum period shall not be less
than three years nor more than eight years four months.
(b) [Where the sentence is for a class B felony offense specified in
subdivision two of section 220.44, the minimum period must be fixed by
the court at one-third of the maximum term imposed and must be specified
in the sentence. Where the sentence is for any other] For a class B
felony, the minimum period shall be fixed by the court and specified in
the sentence and shall be not less than one year nor more than one-third
of the maximum term imposed.
4. Alternative definite sentence for class D[,] and E[, and certain
class C] felonies. When a person, other than a second or persistent
felony offender, is sentenced for a class D or class E felony, [or to a
class C felony specified in article two hundred twenty or article two
hundred twenty-one,] and the court, having regard to the nature and
circumstances of the crime and to the history and character of the
defendant, is of the opinion that a sentence of imprisonment is neces-
sary but that it would be unduly harsh to impose an indeterminate or
determinate sentence, the court may impose a definite sentence of impri-
sonment and fix a term of one year or less.
§ 29. Subdivision 1 of section 70.00 of the penal law, as amended by
chapter 1 of the laws of 1995, is amended to read as follows:
1. Indeterminate sentence. Except as provided in subdivisions four and
five of this section, a sentence of imprisonment for a felony, other
than a felony defined in article two hundred twenty or two hundred twen-
ty-one of this chapter, shall be an indeterminate sentence. When such a
sentence is imposed, the court shall impose a maximum term in accordance
with the provisions of subdivision two of this section and the minimum
period of imprisonment shall be as provided in subdivision three of this
section.
§ 30. 1. Notwithstanding any contrary provision of law, any person
convicted of a felony defined in article 220 or 221 of the penal law,
other than a class A-I felony offense defined in article 220 of the
penal law, which was committed prior to the effective date of this
section, and sentenced thereon to an indeterminate term of imprisonment
pursuant to provisions of the law in effect prior to the effective date
of this section and who meets the eligibility requirements of paragraph
(d) of subdivision 1 of section 803 of the correction law as it existed
on the effective date of this section, may receive an additional merit
time allowance not to exceed one-sixth of the minimum term or period
imposed by the court provided the inmate either: (i) successfully
participates or has participated in two or more of the four program
objectives set forth in paragraph (d) of subdivision 1 of section 803 of
the correction law, or (ii) successfully participates in one of the
program objectives set forth in paragraph (d) of subdivision 1 of
section 803 of the correction law and successfully maintains employment
while in a work release program for a period of not less than three
months.
2. Such allowance shall be withheld for any serious disciplinary
infraction or upon a judicial determination that the person, while an
inmate, commenced or continued a civil action, proceeding or claim that
was found to be frivolous as defined in subdivision (c) of section
8303-a of the civil practice law and rules, or an order of a federal
court pursuant to Rule 11 of the federal rules of civil procedure impos-
ing sanctions in an action commenced by a person, while an inmate,
against a state agency, officer or employee.
§ 31. Subdivision 5 of section 70.06 of the penal law is REPEALED.
§ 32. Subdivision 7 of section 70.06 of the penal law, as added by
chapter 3 of the laws of 1995, is amended to read as follows:
7. Notwithstanding any other provision of law, in the case of a person
sentenced for a specified offense or offenses as defined in subdivision
five of section 410.91 of the criminal procedure law, who stands
convicted of no other felony offense, who has not previously been
convicted of either a violent felony offense as defined in section 70.02
of this article, a class A felony offense or a class B felony offense,
and is not [subject to an undischarged term of imprisonment] under the
jurisdiction of or awaiting delivery to the department of correctional
services, the court may direct that such sentence be executed as a
parole supervision sentence as defined in and pursuant to the procedures
prescribed in section 410.91 of the criminal procedure law.
§ 33. Subdivision 2-a of section 70.25 of the penal law, as amended by
chapter 3 of the laws of 1995, is amended to read as follows:
2-a. When an indeterminate or determinate sentence of imprisonment is
imposed pursuant to section 70.04, 70.06, 70.08 [or], 70.10, subdivision
three or four of section 70.70 or subdivision three or four of section
70.71 of this article, and such person is subject to an undischarged
indeterminate or determinate sentence of imprisonment imposed prior to
the date on which the present crime was committed, the court must impose
a sentence to run consecutively with respect to such undischarged
sentence.
§ 34. Subdivision 2-a of section 70.25 of the penal law, as added by
chapter 481 of the laws of 1978, is amended to read as follows:
2-a. When an indeterminate or determinate sentence of imprisonment is
imposed pursuant to section 70.04, 70.06, 70.08 [or], 70.10, subdivision
three or four of section 70.70 or subdivision three or four of section
70.71 of this article, and such person is subject to an undischarged
indeterminate sentence of imprisonment imposed prior to the date on
which the present crime was committed, the court must impose a sentence
to run consecutively with respect to such undischarged sentence.
§ 35. Subdivision 2 of section 70.45 of the penal law, as added by
chapter 1 of the laws of 1998, is amended to read as follows:
2. Period of post-release supervision. The period of post-release
supervision for a determinate sentence shall be five years[, except that
such period shall be three years whenever a determinate sentence of
imprisonment is imposed pursuant to section 70.02 of this article upon a
conviction for a class D or class E violent felony offense; provided,
however, that when a determinate sentence is imposed pursuant to section
70.02 of this article, the court, at the time of sentence, may specify a
shorter period of post-release supervision of not less than two and
one-half years upon a conviction for a class B or class C violent felony
offense and a shorter period of post-release supervision of not less
than one and one-half years upon a conviction for a class D or class E
violent felony offense.] except that:
(a) such period shall be one year whenever a determinate sentence of
imprisonment is imposed pursuant to subdivision two of section 70.70 of
this article upon a conviction of a class D or class E felony offense;
(b) such period shall be not less than one year nor more than two
years whenever a determinate sentence of imprisonment is imposed pursu-
ant to subdivision two of section 70.70 of this article upon a
conviction of a class B or class C felony offense;
(c) such period shall be not less than one year nor more than two
years whenever a determinate sentence of imprisonment is imposed pursu-
ant to subdivision three or four of section 70.70 of this article upon
conviction of a class D or class E felony offense;
(d) such period shall be not less than one and one-half years nor more
than three years whenever a determinate sentence of imprisonment is
imposed pursuant to subdivision three or four of section 70.70 of this
article upon conviction of a class B felony or class C felony offense;
(e) such period shall be not less than one and one-half years nor more
than three years whenever a determinate sentence of imprisonment is
imposed pursuant to subdivision three of section 70.02 of this article
upon a conviction of a class D or class E violent felony offense;
(f) such period shall be not less than two and one-half years nor more
than five years whenever a determinate sentence of imprisonment is
imposed pursuant to subdivision three of section 70.02 of this article
upon a conviction of a class B or class C violent felony offense.
§ 36. The penal law is amended by adding two new sections 70.70 and
70.71 to read as follows:
§ 70.70 Sentence of imprisonment for felony drug offender other than a
class A felony.
1. For the purposes of this section, the following terms shall mean:
(a) "Felony drug offender" means a defendant who stands convicted of
any felony, defined in article two hundred twenty or two hundred twen-
ty-one of this chapter other than a class A felony.
(b) "Second felony drug offender" means a second felony offender as
that term is defined in subdivision one of section 70.06 of this arti-
cle, who stands convicted of any felony, defined in article two hundred
twenty or two hundred twenty-one of this chapter other than a class A
felony.
(c) "Violent felony" shall have the same meaning as that term is
defined in subdivision one of section 70.02 of this article.
2. Except as provided in subdivision three or four of this section, a
sentence of imprisonment for a felony drug offender shall be a determi-
nate sentence as provided in paragraph (a) of this subdivision.
(a) Term of determinate sentence. Except as provided in paragraph (b)
or (c) of this subdivision, the court shall impose a determinate term of
imprisonment upon a felony drug offender which shall be imposed by the
court in whole or half years, which shall include as a part thereof a
period of post-release supervision in accordance with section 70.45 of
this article. The terms of imprisonment authorized for such determinate
sentences are as follows:
(i) for a class B felony, the term shall be at least one year and
shall not exceed nine years, except that for the class B felony of crim-
inal sale of a controlled substance in or near school grounds as defined
in subdivision two of section 220.44 of this chapter, the term shall be
at least two years and shall not exceed nine years;
(ii) for a class C felony, the term shall be at least one year and
shall not exceed five and one-half years;
(iii) for a class D felony, the term shall be at least one year and
shall not exceed two and one-half years; and
(iv) for a class E felony, the term shall be at least one year and
shall not exceed one and one-half years.
(b) Probation. Notwithstanding any other provision of law, the court
may sentence a defendant convicted of a class B, class C, class D or
class E felony offense defined in article two hundred twenty or two
hundred twenty-one of this chapter to probation in accordance with the
provisions of section 65.00 of this chapter.
(c) Alternative definite sentence for class C, class D, and class E
felonies. If the court, having regard to the nature and circumstances of
the crime and to the history and character of the defendant, is of the
opinion that a sentence of imprisonment is necessary but that it would
be unduly harsh to impose a determinate sentence upon a person convicted
of a class C, class D or class E felony offense defined in article two
hundred twenty or two hundred twenty-one of this chapter, the court may
impose a definite sentence of imprisonment and fix a term of one year or
less.
3. Sentence of imprisonment for second felony drug offender.
(a) Applicability. This subdivision shall apply to a second felony
drug offender whose prior felony conviction was not a violent felony.
(b) Authorized sentence. Except as provided in paragraph (c) or (d) of
this subdivision, when the court has found pursuant to the provisions of
section 400.21 of the criminal procedure law that a defendant is a
second felony drug offender who stands convicted of a class B, class C,
class D or class E felony offense defined in article two hundred twenty
or two hundred twenty-one of this chapter the court shall impose a
determinate sentence of imprisonment. Such determinate sentence shall
include as a part thereof a period of post-release supervision in
accordance with section 70.45 of this article. The terms of such deter-
minate sentence shall be imposed by the court in whole or half years as
follows:
(i) for a class B felony, the term shall be at least three and one-
half years and shall not exceed twelve years;
(ii) for a class C felony, the term shall be at least two years and
shall not exceed eight years;
(iii) for a class D felony, the term shall be at least one and one-
half years and shall not exceed four years; and
(iv) for a class E felony, the term shall be at least one and one-half
years and shall not exceed two years.
(c) Lifetime probation. Notwithstanding any other provision of law,
the court may sentence a defendant convicted of a class B felony defined
in article two hundred twenty of this chapter to lifetime probation in
accordance with the provisions of section 65.00 of this chapter.
(d) Sentence of parole supervision. In the case of a person sentenced
for a specified offense or offenses as defined in subdivision five of
section 410.91 of the criminal procedure law, who stands convicted of no
other felony offense, who has not previously been convicted of either a
violent felony offense as defined in section 70.02 of this article, a
class A felony offense or a class B felony offense, and is not under the
jurisdiction of or awaiting delivery to the department of correctional
services, the court may direct that a determinate sentence imposed
pursuant to this subdivision shall be executed as a parole supervision
sentence as defined in and pursuant to the procedures prescribed in
section 410.91 of the criminal procedure law.
4. Sentence of imprisonment for second felony drug offender previously
convicted of a violent felony.
(a) Applicability. This subdivision shall apply to a second felony
drug offender whose prior felony conviction was a violent felony.
(b) Authorized sentence. When the court has found pursuant to the
provisions of section 400.21 of the criminal procedure law that a
defendant is a second felony drug offender whose prior felony conviction
was a violent felony, who stands convicted of a class B, class C, class
D or class E felony offense defined in article two hundred twenty or two
hundred twenty-one of this chapter, the court shall impose a determinate
sentence of imprisonment. Such determinate sentence shall include as a
part thereof a period of post-release supervision in accordance with
section 70.45 of this article. The terms of such determinate sentence
shall be imposed by the court in whole or half years as follows:
(i) for a class B felony, the term shall be at least six years and
shall not exceed fifteen years;
(ii) for a class C felony, the term shall be at least three and one-
half years and shall not exceed nine years;
(iii) for a class D felony, the term shall be at least two and one-
half years and shall not exceed four and one-half years; and
(iv) for a class E felony, the term shall be at least two years and
shall not exceed two and one-half years.
§ 70.71 Sentence of imprisonment for a class A felony drug offender.
1. For the purposes of this section, the following terms shall mean:
(a) "Felony drug offender" means a defendant who stands convicted of
any class A felony as defined in article two hundred twenty of this
chapter.
(b) "Second felony drug offender" means a second felony offender as
that term is defined in subdivision one of section 70.06 of this arti-
cle, who stands convicted of and is to be sentenced for any class A
felony as defined in article two hundred twenty of this chapter.
(c) "Violent felony offense" shall have the same meaning as that term
is defined in subdivision one of section 70.02 of this article.
2. Sentence of imprisonment for a first felony drug offender.
(a) Applicability. Except as provided in subdivision three or four of
this section, this subdivision shall apply to a person convicted of a
class A felony as defined in article two hundred twenty of this chapter.
(b) Authorized sentence. The court shall impose a determinate term of
imprisonment which shall be imposed by the court in whole or half years
and which shall include as a part thereof a period of post-release
supervision in accordance with section 70.45 of this article. The terms
authorized for such determinate sentences are as follows:
(i) for a class A-I felony, the term shall be at least eight years and
shall not exceed twenty years;
(ii) for a class A-II felony, the term shall be at least three years
and shall not exceed ten years.
(c) Lifetime probation. Notwithstanding any other provision of law,
the court may sentence a defendant convicted of a class A-II felony
defined in article two hundred twenty of this chapter to lifetime
probation in accordance with the provisions of section 65.00 of this
chapter.
3. Sentence of imprisonment for a second felony drug offender.
(a) Applicability. This subdivision shall apply to a second felony
drug offender whose prior felony conviction or convictions did not
include one or more violent felony offenses.
(b) Authorized sentence. When the court has found pursuant to the
provisions of section 400.21 of the criminal procedure law that a
defendant is a second felony drug offender who stands convicted of a
class A felony as defined in article two hundred twenty or two hundred
twenty-one of this chapter, the court shall impose a determinate
sentence of imprisonment. Such determinate sentence shall include as a
part thereof a period of post-release supervision in accordance with
section 70.45 of this article. Such determinate sentence shall be
imposed by the court in whole or half years as follows:
(i) for a class A-I felony, the term shall be at least twelve years
and shall not exceed twenty-four years;
(ii) for a class A-II felony, the term shall be at least six years and
shall not exceed fourteen years.
(c) Lifetime probation. Notwithstanding any other provision of law,
the court may sentence a defendant convicted of a class A-II felony
defined in article two hundred twenty of this chapter to lifetime
probation in accordance with the provisions of section 65.00 of this
chapter.
4. Sentence of imprisonment for a second felony drug offender previ-
ously convicted of a violent felony offense.
(a) Applicability. This subdivision shall apply to a second felony
drug offender whose prior felony conviction was a violent felony.
(b) Authorized sentence. When the court has found pursuant to the
provisions of section 400.21 of the criminal procedure law that a
defendant is a second felony drug offender whose prior felony conviction
was a violent felony, who stands convicted of a class A felony as
defined in article two hundred twenty or two hundred twenty-one of this
chapter, the court shall impose a determinate sentence of imprisonment.
Such determinate sentence shall include as a part thereof a period of
post-release supervision in accordance with section 70.45 of this arti-
cle. Such determinate sentence shall be imposed by the court in whole
or half years as follows:
(i) for a class A-I felony, the term shall be at least fifteen years
and shall not exceed thirty years;
(ii) for a class A-II felony, the term shall be at least eight years
and shall not exceed seventeen years.
§ 37. Section 259-j of the executive law is amended by adding a new
subdivision 3-a to read as follows:
3-a. The division of parole must grant termination of sentence after
three years of unrevoked parole to a person serving an indeterminate
sentence for a class A felony offense defined in article two hundred
twenty of the penal law, and must grant termination of sentence after
two years of unrevoked parole to a person serving an indeterminate
sentence for any other felony offense defined in article two hundred
twenty or two hundred twenty-one of the penal law.
§ 38. Section 259-j of the executive law, as amended by section 11 of
part F of chapter 62 of the laws of 2003, is amended to read as follows:
§ 259-j. Discharge from parole and conditional release. 1. Except
where a determinate sentence is imposed for a violent felony offense as
defined in section 70.02 of the penal law, or a sentence with a maximum
term of life imprisonment was imposed for a felony other than a felony
defined in article two hundred twenty of the penal law, if the board of
parole is satisfied that an absolute discharge from parole or from
conditional release is in the best interests of society, the board may
grant such a discharge prior to the expiration of the full maximum term
to any person who has been on unrevoked parole or conditional release
for at least three consecutive years. A discharge granted under this
section shall constitute a termination of the sentence with respect to
which it was granted. No such discharge shall be granted unless the
board of parole is satisfied that the parolee, otherwise financially
able to comply with an order of restitution and the payment of any
mandatory surcharge, sex offender registration fee or DNA databank fee
previously imposed by a court of competent jurisdiction, has made a good
faith effort to comply therewith.
2. The division of parole must grant termination of sentence after
three years of unrevoked parole to a person serving an indeterminate
sentence for a class A felony offense defined in article two hundred
twenty of the penal law, and must grant termination of sentence after
two years of unrevoked parole to a person serving an indeterminate
sentence for any other felony offense defined in article two hundred
twenty or two hundred twenty-one of the penal law.
§ 39. Subdivision 1 of section 508 of the executive law, as amended by
chapter 303 of the laws of 1981 and such section as renumbered by chap-
ter 465 of the laws of 1992, is amended to read as follows:
1. The [division for youth] office of children and family services
shall maintain secure facilities for the care and confinement of juve-
nile offenders committed for an indeterminate, determinate or definite
sentence pursuant to the sentencing provisions of the penal law. Such
facilities shall provide appropriate services to juvenile offenders
including but not limited to residential care, educational and voca-
tional training, physical and mental health services, and employment
counseling.
§ 40. Severability. If any section, part or provision of this act
shall be declared unconstitutional or invalid or ineffective by any
court of competent jurisdiction, such declaration shall be limited to
the section, part or provision directly involved in the controversy in
which such declaration was made and shall not affect any other section,
part or provision thereof.
§ 41. This act shall take effect immediately, provided that:
(a) the amendments to subdivision 18 of section 2 of the correction
law, made by section one of this act, shall be subject to the expiration
and reversion of such subdivision pursuant to subdivision (c) of section
46 of chapter 60 of the laws of 1994, as amended, and subdivision (q) of
section 427 of chapter 55 of the laws of 1992, as amended, when upon
such date the provisions of section two of this act shall take effect;
(b) the amendments to section 851 of the correction law made by
section three of this act shall not affect the expiration of such
section pursuant to section 10 of chapter 339 of the laws of 1972, as
amended, and shall be deemed to expire therewith;
(c) section five of this act shall take effect on the same date as the
reversion of subdivision (a) of section 601 of the correction law as
provided in subdivision d of section 74 of chapter 3 of the laws of
1995, as amended when upon such date the provisions of section six of
this act shall take effect;
(c-1) the provisions of sections seven, eight, nine, ten and ten-a of
this act, and subdivision 2-a of section 803 of the correction law, as
added by section eleven of this act shall apply to persons in custody
serving an indeterminate sentence on the effective date of such
provisions as well as to persons sentenced to an indeterminate sentence
on and after the effective date of such provisions and prior to Septem-
ber 1, 2005 and to persons sentenced to a determinate sentence prior to
September 1, 2011 for a felony as defined in article 220 or 221 of the
penal law;
(d) sections seven and nine of this act shall only take effect if
paragraph (d) of subdivision 1 and subdivision 2-a of section 803 of the
correction law, as added by chapter 435 of the laws of 1997, have not
been repealed prior to the effective date of this act; however if such
provisions of section 803 of the correction law are repealed prior to
the effective date of this act, only then shall sections eight and ten
of this act take effect; provided, further, that upon the expiration of
section 803 of the correction law, pursuant to subdivision d of section
74 of chapter 3 of the laws of 1995, sections seven, eight, nine and ten
of this act shall be repealed, when upon such date the provisions of
sections ten-a and eleven of this act shall take effect;
(d-1) the provisions of sections, twelve, fourteen, fifteen, eighteen,
twenty, twenty-four, twenty-five, twenty-nine, thirty-three, thirty-five
and thirty-six of this act shall take effect on the thirtieth day after
it shall have become a law, and such provisions, with the exception of
subdivision 6 of section 60.04 of the penal law as added by section
twenty of this act, shall apply to crimes committed on or after the
effective date thereof;
(e) the amendments to the opening paragraph of subdivision 2 of
section 851 of the correction law made by section twelve of this act
shall not affect the expiration of such paragraph pursuant to chapter 60
of the laws of 1994, as amended and shall be deemed to expire therewith,
when upon such date section thirteen of this act shall take effect;
provided that the amendments to the opening paragraph of subdivision 2
of section 851 of the correction law made by section thirteen of this
act shall not affect the expiration of such paragraph pursuant to chap-
ter 339 of the laws of 1972, as amended, and shall be deemed to expire
therewith;
(e-1) the provisions of sections sixteen, seventeen, twenty-three,
twenty-six, thirty and thirty-one of this act shall take effect on the
thirteenth day after it shall have become a law;
(f) the amendments to subdivision 7 of section 220.50 of the criminal
procedure law, made by section seventeen of this act shall not affect
the expiration and repeal of such subdivision pursuant to chapter 3 of
the laws of 1995, as amended, and shall expire and be deemed repealed
therewith;
(g) the amendments to subdivision 1 of section 70.00 of the penal law
made by section twenty-eight of this act shall be subject to the expira-
tion and reversion of such subdivision pursuant to subdivision d of
section 74 of chapter 3 of the laws of 1995, as amended, when upon such
date the provisions of section twenty-nine of this act shall take
effect;
(h) the amendments to subdivision 7 of section 70.06 of the penal law
made by section thirty-two of this act shall not affect the expiration
and repeal of such subdivision pursuant to chapter 3 of the laws of
1995, as amended, and shall expire and be deemed repealed therewith;
(i) the amendments to subdivision 2-a of section 70.25 of the penal
law made by section thirty-three of this act shall be subject to the
expiration and reversion of such subdivision pursuant to subdivision d
of section 74 of chapter 3 of the laws of 1995, as amended, when upon
such date the provisions of section thirty-four of this act shall take
effect;
(i-1) section thirty-seven of this act shall take effect on the sixti-
eth day after it shall have become a law; and
(j) the amendments to section 259-j of the executive law, made by
section thirty-seven of this act shall not affect the expiration of such
section pursuant to chapter 3 of the laws of 1995, as amended, and shall
expire therewith, when upon such date the provisions of section thirty-
eight shall take effect.
The Legislature of the STATE OF NEW YORK ss:
Pursuant to the authority vested in us by section 70-b of the Public
Officers Law, we hereby jointly certify that this slip copy of this
session law was printed under our direction and, in accordance with such
section, is entitled to be read into evidence.
JOSEPH L. BRUNO SHELDON SILVER
Temporary President of the Senate Speaker of the Assembly