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. TIIE SENTENCING STRUCTURE AND AUTHORlZEDSENTENCES

A. Classification of Offenses for Sentencing

689

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

Class A felony Class B felony Class C felony Class D felony Class E felony

Maximum Term of Sentence

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

SENTENCING

Misdemeanor Classification

Class A misdemeanor Class B misdemeanor

Unclassified misdemeanor

Maximum Sentence

Up to 1 year Up to 3 months

As specified in the specific statute but not over 1 year

691

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 I I

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 maxi-

9 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 time~rather 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).

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------

FELONIES,FIRST FELONY OFFENDERS

PreJllred bl' I'ref. Peter '"'her 2!S7 - Albany law Scbool

(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

2 - NO OTHER RESTRICTION

1 - CLASS A FELONY - PLEA MUST INCLUDE AT LEAST A CLASS C YFO

2 - CLASS B FElotlV - PLEA MUST INCLUDE AT LEAST A CLASS E FELONY

AUTHORIZED DISPOSITIONS (PL. 160.05)

CONVICTION INDETERMINATE DEFINITE INTER- SPLIT PROS. DISCHG. I

MAX MPI MITT. CONIUN I

Class A Felony life 15 (to 25) NO NO NO NO NO

Class B Felony 3 (to 25) 1 Yr to 1/3 Max Imposed

NO NO NO NO NO

Class C Felony 3 (to 15) 1 Yr to 1/3 (restricted l ) Max Imposed

NO NO NO NO NO

Class C Felony 3 (to 15) 1 Yr to 1/3 NO' NO NO' 5 Yrs 3 Yrs (other) Max Imposed

Class 0 Felony 3 (to 7) 1 Yr to 1/3 YES YES YES NO NO (restricted!) Max Imposed

Class 0 Felony 3 (to 7) 1 Yr to 1/3 YES YES YES 5 Yrs 3 Yrs (other) Max Imposed

Class E Felony 3 (to 4) 1 Yr to 1/3 YES YES YES 5 Yrs 3 Yrs Max Imposed

- - - - - - --- - -- -- -

ICertain Claaa C and Claaa D feloniea carry reatricted sentencing options that require imprisonment. These are:

cl •• s Cri_ P.L. 5 CIa •• erb. P.r.. 5

C Attempt Bribery 1· 200.04 C Cr. Poss. Controlled Subst. 4- 220.0' "1-1'1 Aitempt Bribe Receiving 1° 200.12 -Cr. Sale Controlled Bobst. 4- 220.34 (1 • 2

!ti::~i g~~:r~!!C~i;:hief 2· 105.15 Att. PrOmote Prostitution 1- 220.32 145.12 PrOMoting Prostitution 2- 230.30

Arson 3° 150.10 0 ~;::~li ~,sault 1° 120.10 criminal usury 1- 190.42 120.05 Rewarding Off. Misconduct 1° 200.22 Att. Promote Prostitution 2· 230.30 Receiv. Reward Off. Miscon. 2· 200.27

"Exception, A definite sentence is svaiiable for any cla8s C falony dafined in Art. 220 (drug) or Art. 221 (marihuana).

! C'l

~

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.

I.

2.

No restriction on Post Indictment:

Indictment Charge

Class B Felony

Class C Felony

Pre.,.red Ity Prof. "tar Pntser 2/87 - AT bany law School

VIOLENT FELONY OFFENSES

EXCLUDING ARMED FELONIES AND MANDATORY ~ GUN ~ OFFENSES

pre-indictment reduction to misdemeanor.

Mandatory Sentence Range Lowest Plea Mandatory Sentence Range Max MPI

6 (to 25) 1/3 Max Imposed No restriction on sentence. except C1 ass D VFO Att. Assault 1° or Assault 2° sent-

4~(toI5) 1/3 Max Imposed ence must include a definite tenn-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 ~ ~ CLASS CRIME r1....!

Attempt Murder 2e 125.25 C Att Class B YFO Attempt Kidnapping 1- 135.25 '"Assault Ie 120.10 Attempt Arson 1- 150.20 '"Burglary 2- 140.25 Manslaughter 1° 125.20 "'Robbery 2· 160.10 Sodomy 1° IlO.50 "'Cr Poss Weapon 2· 265.03 Agg.Sexual Abuse 130.70 "'Cr Use Flreal'lll 2· 265.08 Kidnapping 2- 135.20

1tSurglary 1° 140.30 D Att Clan C YFO Arson 2· 150.15 "'Assault 2- 120.05

"'Robbery Ie 160.15 Sexual Abuse I- 130.65 Where indictment 15 for a Class 0 YFO. there Ire Cr Poss Dang Wpn 1- 265.04 ·Cr Poss IIpn 3- 265.02 [4] no pleading restrictions Ind no IIIIIndltorY sinttn-

*Cr Use Firearm 1- 265.09 ·Cr Poss IIpn 3· 265.02 [5] ces on lesser pleas. except for _.Articht 265 °Gun *Agg Aslt on Offfcer 120.11 *Cr Sale Firearm 1- 265.12 Contro'- crimes.

Intim. Yic or Wft 1° 215.17 inUrn. Yic or Wft 2- 215.16

.Att Cr Poss IIpn 3- as plea to The Class E YFO 15 fictional & 15 only for plel to charge of Pl 265.02 [4] or [5]. Class 0 mandatory sentence -Gun Control- charges.

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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

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.

Ar.d FelO!!l .strfctfons

1. No pre-indfctment reduction to misdemeanor. 2. Post Indfctment

Indictment Chg MBndatory Sentence Range Lowest Plea MBndatory Sentence

"u "PI "" "PI

Class B f~lony 6 (to 25) 1/3 to 1/2 Class C VFO 4Is (to 15) 1/3 Max /tIax Imposed Imposed

Class C Felony 4\ (to 15) 1/3 Max Class 0 VFO 3 (to 7)* 1/3 Max Imposed Imposed

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.

MANDATORY SENTENCE GUN CONTROL OFFENSES ,

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.

Chss D Felony -QnI Cofttrel llestrtetfons·

1. No restriction on pre-Indictment II:Ihdemeanor reduction (except for Armed Felony).

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])

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.

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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.

CoHrkOLLBn SOBSTARCBS (DRUG OFPRRSBS) (orimea defined in Penal law Art 220)

1) No restriotion on pre-indiotment_,rec1uotion. 2) poat-inc1ictment pleadinq restrictions' mandatory sentenoes as follows I

I nmICftIBR'!' CIWtGB MPJIII)A'fOR1' SIHft'HllCll: """"" ...... L """ IIPI

Class A-I Palony Life 15 (to 25) Class A-II only [YO may plesd to B on oonsent of DA]

Class A-II Felony Life 3 to 8-1/3 Class B felony only

(see nota I)

Class B Palony 3 (to 25) 1 (to 1/3 ClAas D felony Max Imposed

sale in or near 6 (to 25) 1/3 . . . school, PL S220.44 Max Imposed

(see not.e 1) (ese note 2)

ClAss C Felony 3 (to 15) I (to 1/3 (Certain ones only, Max Imposed) PL S60.0S [41

or No Restriction CPCS 4th S220.09 Alternative Definite euhds. 11H91 Sentence (up to 1 Year

in County Institution) CSCS 4th S220.34 suhds. [1] • 121

- - --

PreplM bJ Prof ... tat- .... t .. 1'

2/87 a A-1hany law 5cll001

L01I'BR PLRA JlWlDA'fOlll' BBIft'JDIICB

"'" IIPI

Life 3 (to 8-1/3)

3 to 25 1 (to 1/3 Max imposed)

No Restriction

. .

Not Applicable

~ I

.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]).

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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 RAN G E

CLASS SECOND FELONY OFFENOER 2d VIOLENT FELONY OFFENDER Max HPI Max HPI

A-II Felony *Ufe 6 (to 12-1/2) N/A N/A

B Felony *9 (to 25) 1/2 Max Imposed 12 (to 25) 1/2 Max Imposed

C Felony 6 (to 15) 1/2 Max Imposed 8 (to 15) 1/2 Max Imposed

o Felony 4 (to 7) 1/2 Max Imposed 5 (to 7) 1/2 Max Imposed

E Felony 3 (to 4) 1/2 Max Imposed 4 Years 2 'fears

~"" by f're.f. Pett;r '"her 2/81 ~ Alban)' law Scbool

PERSISTENT (3d) V F 0 XIX 'WI

N/A N/A

life 10 (to 25)

Life 8 (to 25)

life 6 (to 25)

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 70.06)

Prior felony in this at~te or offense in other jur­isdiction th~t would be ~ felony here

Sentence for prior crime imposed not more than 10 years before commission of present crime (excluding time D incarcerated)

Prior suspended sentence and other a~elior~tive sentencea count, but conviction does not count if 0 pardoned on ground of innocence.

SBC<)1ID V~OL£R'! nLOIIt OlL'PPPD (l?L 70.04)

B~me ~s requl~r 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.

(For offenses committed prior to 1967 Penal Law ~nd out­of-state offenBes, match elements).

PDSIGDR'I' VIOLn"f JPJrLO!I1' OJ'!'Blll)U (PL 70.08)

2 or more predicate VFO convictions

NBI 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.

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SENTENCING

Chart F-Juvenile & Youthful Offender Sentences

Explanation

709

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.

JUVEMILR AND yotiTiJi,DL OPPBRDRR SER"rENCRS

hoe,.,. b1 .... ,. r.Ur PmIV' 'l/B7 • Albany laN School

.nJVriJ:r.s OP!'BIIDD fPL no.osi '101J'1'RPOL 0PI'BlIDJDl SnftIICB "(PI. 160~02)

COIIVIC'!':Ia. .-IWt "r_ MP'

Murder 2d (class AI ilfe "'"'5 (to 91

Arson let iC1aB8 AI "'; 12" :(to~':lS) ,4 (to 6)

Ridnapplnq 1. ~Cl "AI 12 It'o' is) 4 (to 6)

Class B felony 3 (to 10) "1/3 Max Imposed

Class C felony 3 (to 7) 1/3 Ml!tx Imposed

-- --

Juvenile Offender Offenses.

See PL S30;OO""[2i, cPi:."Sl.2~ (42)

Juvenile Of tender Removal to Family Courtl see CPL Article 725.

1. Misdsmeanor' No Prior Crime or Y.O.I

Any authorized sentence, but no imprisonment in excess"of 6 months

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.

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.

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Chart - G Prepared by Prof. Peter Preiser

AUTHORIZED SENTENCES FOR MISDEMEANORS & VIOLATIONS (EXCLUDING MONETARY SANCTIONS)

CONVICTION DEFINITE SENTENCE PROBATION CON UNCON SPLIT OR INTERMITTENT DIS DIS SENT

Class A Misdemeanor 1 Up to 1 year 3 years 1 Vr Ves

Class B Misdemeanor Up to 3 months 1 year 1 Vr Ves

Unclassified Misd. As prescribed in 3 years if auth· 1 Vr Ves Probation law defining off· orized jail term or ense but not more over 3 months. Conditional than 1 year Otherwise 1 year Discharge

VioJation2 Up to 15 days Not available 1 Vr Ves 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).

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""P1Nd II,. h-of. "ter Pre1se .. 2/87 • Albany In, School

MONETARY SENTENCES

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

Felony

Class A Misdemeanor

Class B Misdemeanor

Unclassified Misd.

Violation

Up to $5.000

Up to $1.000

Up to $500

As authorized in § defining crime

Up to $250

RESTITUTION OR REPARATION (Penal Law 160.27)

Alternat1ves

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.

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 (Penal Law 160.35)

Felony $100 Misdemeanor $60 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.

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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

Max Min ----3 or more VFO sentences including a VFO "B" . . . . .. 50 25 2 or more VFO sentences including a VFO "B" ..... , 40 20 2 or more sentences including any other "B" ....... , 30 15 2 or more sentences, highest crime a "C" .......... , 20 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:

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

c. Good Behavior Time

Aggregate

Max Min

N/A N/A 15 7'12 15 7'12 10 5

One-third of the maximum or aggregate maximum term may be earned.

716

d. Jail Time

(1) In General

NEW YORK CRIMINAL PRACTICE HANDBOOK

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).

720 NEW YORK CRIMINAL PRACTICE HANDBOOK

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 Specific ranges are not given due to the limited number of cases and the extreme variation possible within the category

7 30 -60 40-72 60-96 Months Months Months

6 22 -40 30-50 46-72 Months Months Months

4-5 16- 30 20 - 38 30-54 Months Months Months

2-3 14 -24 18 - 30 20- 36 Months Months Months Months

1 12 - 18 14 -24 16 - 28 least severe Months Months Months

SENTENCING 721

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 TOTALS

Zero to Two.... . .. ' .... ' ...... =0 Three or More. . . . . . . . . . . . . . .. . ...... = I

Hem #2: NUMBER OF PRIOR JAIL TERMS

Zero to One ....... . Two to Three ... . Four or More ...... .

Hem #3: NUMBER OF PRIOR FELONIES

Zero .. . One .. .

Two ." Three or More ...

Item #4: NUMBER OF PRIOR PRISON TERMS

Zero .. . One ............. . Two Of More ..... .

Item #5: PRIOR PROBATION OR PAROLE REVOCATIONS

No. " Yes ..

Item #6: ON PAROLE/PROBATION AT THE TIME OF CURRENT OFFENSE

No. Yes.

. ............. =0 .=1

............ =2

. ..... =0

...... =1 .=2 .=3

.. ... =0 .=2

.. .... =3

.=0

.= 1

.. .. =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 partic-

17 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 .....

Item #2; WEAPON POSSESSION

No .. . yes .... .

Item #3: FORCIBLE CONTACT

" 9 NYCRR § 8001.3.

None .. Force/Physical Injury Serious Injury .. . Death ............... .

mTALS

. ............... =5 . .... =4

......... . ..... =3 . .................. =2

........... . = 1 . ...... =1

.=0 .............. =1

. ................. =0 ...... =1

. .................... =2

..................... =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 T IR 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 post-

24 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) DISTRIBUTION: WHITE ·C~lIrral Offic~ YELLOW ·C"1I1Ta1 Of1ic~ BLUE .Gufdll1lce PINK .lrutitutio1lal/tlrole

I salnl·An ... ual I Seml·A ...... uaJ t I Tran$/e, I I Tra ... sfer I I Trans/er -

Tra"'$le, R.vl.w Re~lew summuy HOLD

PROGiRAM AND SECURITV ASSESSMENT SUMMARV Perlo(l

STATE OF NEW VORK ji,cmty

COR~~~~~6:!~~::VICES Nlme

! Covered

NAME 0'" I eMe I YES NO CASE

A. DO. .... [" 1ME Cou ... tyof

Commitment

1 CRIME SENTENCE 2CRfME SENTENCE

H E

, , A YESl NO It Yel D WARRANT/ ExD-'a'''' E

DETAINER

R PRIOR NO. OF FELONY ARRESTS I lNO OF FELONY CONVICTIONsl t~o. OF FELONY ARRESTS . r CRIMINAl..

. wtTHOUT CLEAR DISPOSITION

RECORO MOST SER lOUS

10

'"

CrIme S .... t .... <;e PRIOR CONYICTION

Describe Plitt ..... of CrImInal eenlVlar:

TRANSFER RECORD

B. DATE FROM TO CODE DATE FROM TO ICOOE

I I I I CUSTODIAL RECORD PROQRAM RI:CORD

,

N DATE CHARGE DISPOSITION OATES ASSIGNMENT COOl

S , ,

T I

, , T

~ 00

~ ~ ~ C"l

i t'"

~ ~

I ~

T ,

I CUSTODIAL ADJUSTMENT (£)(pl.,.allon) I OUTSTANDING P'fIOGRAM INVOLVEMENT (ltJ!:ptanatJon)

0 I ACCEPTABLE

N I jPOOR I I

H I

I I

S i T 0 R OTHER LeOMOL COUNSEL DRUG ABUSE COUNS. ENEMIES FAMIL. Y PROBLEMS

Y CONSIDERATIONS I [MEDICAL I [PHYSICAL. LIMIT. ~ ~PSYCHIATRIC I MISCEL.L.ANEOUS

explain any Item chec:ked above,

I C.

TRAN"" ... L.I TRAN"'R E"Q"LE·T'ME HOLO I TRAN"" TRANSFER T

EL-IGIBLE Enter 0..11 Ellglllle INEL.IGIIH.E HOLD R A

~'---:[r . --1];, N Cheek Renon I I I """ I .1 0'""

If Appropriate C.dre Diselptlne J I Hulin s Progr.m F RIsk

E Recommended SfI<:ur'ty S~lflt Facility R Leve. If APproPfla!_ If Appropriate

R explain Cneck Mlrks when Necen.ry,

• V -, • w

Il Name of r'o' j"'"

COl,lnselor FACILITY

Counsefor

REVIEW Senior \Oil1l' D.S,

Counselo. 0 ...

- '. '''.,

E. CeClslon

CENTRAL ------,-OFFICE CL.ASS ..

Review". \~~t'! _I Cheek If con~\ MOVEMENT

. Sheet Used . ---. -_.- ~

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).

732 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."