2010 New York Code
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);  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.
    * NB Effective until November 11, 2010
    * (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,
  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,
  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.
    * NB Effective November 11, 2010
    * (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, 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 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.
    * NB Effective until November 11, 2010
    * (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 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.
    * NB Effective November 11, 2010
    (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, 2011
    * (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, 2011
    (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.