2013 New York Consolidated Laws
PEN - Penal
Part 2 - SENTENCES
Title E - SENTENCES
Article 70 - (70.00 - 70.85) SENTENCES OF IMPRISONMENT
70.02 - Sentence of imprisonment for a violent felony offense.

 
  § 70.02 Sentence of imprisonment for a violent felony offense.
    1. Definition of a violent felony offense. A violent felony offense is
  a  class  B  violent felony offense, a class C violent felony offense, a
  class D violent felony offense, or a class  E  violent  felony  offense,
  defined as follows:
    (a)  Class  B  violent felony offenses: an attempt to commit the class
  A-I felonies of murder in  the  second  degree  as  defined  in  section
  125.25, kidnapping in the first degree as defined in section 135.25, and
  arson  in the first degree as defined in section 150.20; manslaughter in
  the first degree as defined in section 125.20,  aggravated  manslaughter
  in  the  first  degree  as  defined in section 125.22, rape in the first
  degree as defined in section 130.35, criminal sexual act  in  the  first
  degree  as  defined  in  section  130.50, aggravated sexual abuse in the
  first degree as defined in section  130.70,  course  of  sexual  conduct
  against  a  child  in  the  first  degree  as defined in section 130.75;
  assault in the first degree as defined in section 120.10, kidnapping  in
  the  second  degree  as defined in section 135.20, burglary in the first
  degree as defined in section 140.30,  arson  in  the  second  degree  as
  defined  in  section  150.15,  robbery in the first degree as defined in
  section 160.15, incest in the first degree as defined in section 255.27,
  criminal possession of a weapon  in  the  first  degree  as  defined  in
  section 265.04, criminal use of a firearm in the first degree as defined
  in  section  265.09,  criminal  sale of a firearm in the first degree as
  defined in section 265.13, aggravated assault upon a police officer or a
  peace officer as defined in section 120.11, gang assault  in  the  first
  degree as defined in section 120.07, intimidating a victim or witness in
  the  first degree as defined in section 215.17, hindering prosecution of
  terrorism in the first degree as defined  in  section  490.35,  criminal
  possession  of  a  chemical  weapon  or  biological weapon in the second
  degree as defined in section 490.40, and  criminal  use  of  a  chemical
  weapon  or  biological  weapon in the third degree as defined in section
  490.47.
    (b) Class C violent felony offenses: an attempt to commit any  of  the
  class  B  felonies  set  forth  in  paragraph  (a)  of this subdivision;
  aggravated criminally negligent homicide as defined in  section  125.11,
  aggravated  manslaughter  in  the  second  degree  as defined in section
  125.21, aggravated sexual abuse in  the  second  degree  as  defined  in
  section  130.67,  assault on a peace officer, police officer, fireman or
  emergency medical services professional as defined  in  section  120.08,
  assault  on  a  judge  as defined in section 120.09, gang assault in the
  second degree as defined in section 120.06, strangulation in  the  first
  degree  as  defined  in section 121.13, burglary in the second degree as
  defined in section 140.25, robbery in the second degree  as  defined  in
  section  160.10, criminal possession of a weapon in the second degree as
  defined in section 265.03, criminal use  of  a  firearm  in  the  second
  degree  as  defined in section 265.08, criminal sale of a firearm in the
  second degree as defined in section 265.12, criminal sale of  a  firearm
  with  the  aid  of  a  minor  as  defined  in section 265.14, aggravated
  criminal possession of a weapon as defined in section 265.19, soliciting
  or providing support for an act of terrorism  in  the  first  degree  as
  defined  in  section  490.15,  hindering prosecution of terrorism in the
  second degree as defined in section 490.30, and criminal possession of a
  chemical weapon or biological weapon in the third degree as  defined  in
  section 490.37.
    (c)  Class  D violent felony offenses: an attempt to commit any of the
  class C felonies set forth in paragraph (b); reckless assault of a child
  as defined in section 120.02, assault in the second degree as defined in
  section 120.05, menacing a police officer or peace officer as defined in

  section 120.18, stalking in the first degree, as defined in  subdivision
  one  of section 120.60, strangulation in the second degree as defined in
  section 121.12, rape in the second degree as defined in section  130.30,
  criminal  sexual  act in the second degree as defined in section 130.45,
  sexual abuse in the first degree as defined in section 130.65, course of
  sexual conduct against a child  in  the  second  degree  as  defined  in
  section  130.80,  aggravated sexual abuse in the third degree as defined
  in  section  130.66,  facilitating  a  sex  offense  with  a  controlled
  substance  as defined in section 130.90, criminal possession of a weapon
  in the third degree as defined in subdivision five, six,  seven,  eight,
  nine  or  ten of section 265.02, criminal sale of a firearm in the third
  degree as defined in section 265.11, intimidating a victim or witness in
  the second degree as defined in section 215.16, soliciting or  providing
  support  for  an  act  of  terrorism  in the second degree as defined in
  section 490.10, and making a terroristic threat as  defined  in  section
  490.20,  falsely reporting an incident in the first degree as defined in
  section 240.60, placing a false bomb or hazardous substance in the first
  degree as defined in section 240.62, placing a false bomb  or  hazardous
  substance  in a sports stadium or arena, mass transportation facility or
  enclosed shopping mall as defined  in  section  240.63,  and  aggravated
  unpermitted use of indoor pyrotechnics in the first degree as defined in
  section 405.18.
    (d)  Class  E violent felony offenses: an attempt to commit any of the
  felonies of criminal possession of a  weapon  in  the  third  degree  as
  defined  in subdivision five, six, seven or eight of section 265.02 as a
  lesser included offense of that section as defined in section 220.20  of
  the  criminal  procedure  law,  persistent  sexual  abuse  as defined in
  section 130.53, aggravated sexual abuse in the fourth degree as  defined
  in  section 130.65-a, falsely reporting an incident in the second degree
  as defined in section 240.55 and  placing  a  false  bomb  or  hazardous
  substance in the second degree as defined in section 240.61.
    2. Authorized sentence.
    * (a)  Except  as  provided  in  subdivision six of section 60.05, the
  sentence imposed upon a person who stands convicted  of  a  class  B  or
  class  C  violent  felony  offense  must  be  a  determinate sentence of
  imprisonment which shall be in whole or half years.  The  term  of  such
  sentence  must be in accordance with the provisions of subdivision three
  of this section.
    * NB Effective until September 1, 2015
    * (a) The sentence imposed upon a person who  stands  convicted  of  a
  class  B  or  class  C  violent  felony offense must be an indeterminate
  sentence of imprisonment. Except as  provided  in  subdivision  five  of
  section  60.05,  the maximum term of such sentence must be in accordance
  with the provisions of subdivision three of this section and the minimum
  period of imprisonment under such sentence must be  in  accordance  with
  subdivision four of this section.
    * NB Effective September 1, 2015
    (b)  Except  as  provided  in  paragraph  (b-1)  of  this subdivision,
  subdivision six of section 60.05 and subdivision four of  this  section,
  the  sentence  imposed  upon  a person who stands convicted of a class D
  violent felony offense, other than the offense of criminal possession of
  a weapon in the third degree as defined in subdivision  five,  seven  or
  eight  of  section  265.02  or  criminal  sale of a firearm in the third
  degree as defined in section 265.11, must  be  in  accordance  with  the
  applicable provisions of this chapter relating to sentencing for class D
  felonies  provided,  however,  that  where a sentence of imprisonment is
  imposed  which  requires  a  commitment  to  the  state  department   of
  corrections   and  community  supervision,  such  sentence  shall  be  a

  determinate sentence in accordance with  paragraph  (c)  of  subdivision
  three of this section.
    (b-1)  Except  as  provided  in  subdivision six of section 60.05, the
  sentence imposed upon a person who  stands  convicted  of  the  class  D
  violent  felony offense of menacing a police officer or peace officer as
  defined in section 120.18 of this chapter must be a determinate sentence
  of imprisonment.
    (c) Except as provided  in  subdivision  six  of  section  60.05,  the
  sentence  imposed  upon  a  person  who  stands convicted of the class D
  violent felony offenses of criminal possession of a weapon in the  third
  degree  as  defined in subdivision five, seven, eight or nine of section
  265.02, criminal sale of a firearm in the third  degree  as  defined  in
  section  265.11  or  the  class E violent felonies of attempted criminal
  possession of a weapon in the third degree  as  defined  in  subdivision
  five,  seven,  eight  or  nine of section 265.02 must be a sentence to a
  determinate period of imprisonment, or, in the alternative,  a  definite
  sentence  of  imprisonment for a period of no less than one year, except
  that:
    (i) the court may impose any other sentence authorized by law  upon  a
  person  who  has  not  been  previously  convicted  in  the  five  years
  immediately preceding the commission  of  the  offense  for  a  class  A
  misdemeanor  defined  in this chapter, if the court having regard to the
  nature and circumstances of the crime and to the history  and  character
  of the defendant, finds on the record that such sentence would be unduly
  harsh  and that the alternative sentence would be consistent with public
  safety and does not deprecate the seriousness of the crime; and
    (ii) the court may apply the provisions of paragraphs (b) and  (c)  of
  subdivision  four of this section when imposing a sentence upon a person
  who has previously been convicted of a class A  misdemeanor  defined  in
  this  chapter  in the five years immediately preceding the commission of
  the offense.
    3. Term of sentence. The term of a determinate sentence for a  violent
  felony offense must be fixed by the court as follows:
    (a)  For  a  class  B felony, the term must be at least five years and
  must not exceed twenty-five years, provided, however, that the term must
  be:  (i) at least ten years and must not exceed thirty years  where  the
  sentence is for the crime of aggravated assault upon a police officer or
  peace  officer as defined in section 120.11 of this chapter; and (ii) at
  least ten years and must not exceed thirty years where the  sentence  is
  for  the crime of aggravated manslaughter in the first degree as defined
  in section 125.22 of this chapter;
    (b) For a class C felony, the term must be at least three and one-half
  years and must not exceed fifteen years,  provided,  however,  that  the
  term  must be: (i) at least seven years and must not exceed twenty years
  where the sentence is for the crime of aggravated  manslaughter  in  the
  second  degree  as  defined  in  section 125.21 of this chapter; (ii) at
  least seven years and must not exceed twenty years where the sentence is
  for the crime of attempted aggravated assault upon a police  officer  or
  peace  officer  as  defined  in section 120.11 of this chapter; (iii) at
  least three and one-half years and must not exceed  twenty  years  where
  the  sentence  is  for  the  crime  of  aggravated  criminally negligent
  homicide as defined in section 125.11 of this chapter; and (iv) at least
  five years and must not exceed  fifteen  years  where  the  sentence  is
  imposed  for  the crime of aggravated criminal possession of a weapon as
  defined in section 265.19 of this chapter;
    (c) For a class D felony, the term must be at least two years and must
  not exceed seven years, provided, however, that the term must be: (i) at
  least two years and must not exceed eight years where  the  sentence  is

  for  the  crime of menacing a police officer or peace officer as defined
  in section 120.18 of this chapter; and (ii) at least three and  one-half
  years  and must not exceed seven years where the sentence is imposed for
  the  crime  of  criminal  possession  of a weapon in the third degree as
  defined in subdivision ten of section 265.02 of this chapter;
    (d) For a class E felony, the term must be at least one  and  one-half
  years and must not exceed four years.
    4.  (a) Except as provided in paragraph (b) of this subdivision, where
  a plea of guilty to a class D violent felony offense is entered pursuant
  to  section  220.10  or  220.30  of  the  criminal  procedure   law   in
  satisfaction  of  an  indictment  charging  the  defendant with an armed
  felony, as defined in subdivision  forty-one  of  section  1.20  of  the
  criminal  procedure law, the court must impose a determinate sentence of
  imprisonment.
    (b) In any case in which the  provisions  of  paragraph  (a)  of  this
  subdivision  or  the provisions of subparagraph (ii) of paragraph (c) of
  subdivision two of this section apply, the court may impose  a  sentence
  other  than  a  determinate  sentence  of  imprisonment,  or  a definite
  sentence of imprisonment for a period of no less than one  year,  if  it
  finds  that  the alternate sentence is consistent with public safety and
  does not deprecate the seriousness of the crime and that one or more  of
  the following factors exist:
    (i)  mitigating  circumstances  that  bear directly upon the manner in
  which the crime was committed; or
    (ii) where the defendant was not the sole participant  in  the  crime,
  the defendant's participation was relatively minor although not so minor
  as to constitute a defense to the prosecution; or
    (iii)  possible deficiencies in proof of the defendant's commission of
  an armed felony.
    (c) The defendant and the district attorney shall have an  opportunity
  to  present  relevant  information  to  assist  the  court  in  making a
  determination pursuant to paragraph (b) of  this  subdivision,  and  the
  court  may,  in  its  discretion,  conduct a hearing with respect to any
  issue bearing upon such determination. If the court  determines  that  a
  determinate  sentence  of imprisonment should not be imposed pursuant to
  the provisions of such paragraph (b), it shall make a statement  on  the
  record  of  the facts and circumstances upon which such determination is
  based. A transcript of the court's statement, which shall set forth  the
  recommendation of the district attorney, shall be forwarded to the state
  division  of  criminal  justice  services  along  with  a  copy  of  the
  accusatory instrument.