2006 New York Code - 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, 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); 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, gang assault in the second
  degree as defined in section 120.06, 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,  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); 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, 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, criminal
  possession of a weapon in the third degree  as  defined  in  subdivision
  four,  five,  six,  seven or eight 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 four, 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, 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, 2009
    * (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, 2009
    (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 four, 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
  correctional  services, 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 four, five, seven or eight  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
  four,  five,  seven  or  eight 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; and (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;
    (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 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
    (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.

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