NY-PEN Penal Law NY

Short title.

This chapter shall be known as the "Penal Law. "

General purposes.

The general purposes of the provisions of this chapter are:

1. To proscribe conduct which unjustifiably and inexcusably causes or

threatens substantial harm to individual or public interests;

2. To give fair warning of the nature of the conduct proscribed and of

the sentences authorized upon conviction;

3. To define the act or omission and the accompanying mental state

which constitute each offense;

4. To differentiate on reasonable grounds between serious and minor

offenses and to prescribe proportionate penalties therefor;

5. To provide for an appropriate public response to particular

offenses, including consideration of the consequences of the offense for

the victim, including the victim's family, and the community; and

6. To insure the public safety by preventing the commission of

offenses through the deterrent influence of the sentences authorized,

the rehabilitation of those convicted, the promotion of their successful

and productive reentry and reintegration into society, and their

confinement when required in the interests of public protection.

Penal law not strictly construed.

The general rule that a penal statute is to be strictly construed does

not apply to this chapter, but the provisions herein must be construed

according to the fair import of their terms to promote justice and

effect the objects of the law.

Application of chapter to offenses committed before and after

enactment.

1. The provisions of this chapter shall govern the construction of and

punishment for any offense defined in this chapter and committed after

the effective date hereof, as well as the construction and application

of any defense to a prosecution for such an offense.

2. Unless otherwise expressly provided, or unless the context

otherwise requires, the provisions of this chapter shall govern the

construction of and punishment for any offense defined outside of this

chapter and committed after the effective date thereof, as well as the

construction and application of any defense to a prosecution for such an

offense.

3. The provisions of this chapter do not apply to or govern the

construction of and punishment for any offense committed prior to the

effective date of this chapter, or the construction and application of

any defense to a prosecution for such an offense. Such an offense must

be construed and punished according to the provisions of law existing at

the time of the commission thereof in the same manner as if this chapter

had not been enacted.

Other limitations on applicability of this chapter.

1. Except as otherwise provided, the procedure governing the

accusation, prosecution, conviction and punishment of offenders and

offenses is not regulated by this chapter but by the criminal procedure

law.

2. This chapter does not affect any power conferred by law upon any

court-martial or other military authority or officer to prosecute and

punish conduct and offenders violating military codes or laws.

3. This chapter does not bar, suspend, or otherwise affect any right

or liability to damages, penalty, forfeiture or other remedy authorized

by law to be recovered or enforced in a civil action, regardless of

whether the conduct involved in such civil action constitutes an offense

defined in this chapter.

4. Sections 120.45, 120.50, 120.55, 120.60 and 240.25, subdivisions

two and three of section 240.26, and sections 240.70 and 240.71 of this

chapter (a) do not apply to conduct which is otherwise lawful under the

provisions of the National Labor Relations Act as amended, the National

Railway Labor Act as amended, or the Federal Employment Labor Management

Act as amended, and (b) do not bar any conduct, including, but not

limited to, peaceful picketing or other peaceful demonstration,

protected from legal prohibition by the federal and state constitutions.

Definitions of terms of general use in this chapter.

Except where different meanings are expressly specified in subsequent

provisions of this chapter, the following terms have the following

meanings:

1. "Offense" means conduct for which a sentence to a term of

imprisonment or to a fine is provided by any law of this state or by any

law, local law or ordinance of a political subdivision of this state, or

by any order, rule or regulation of any governmental instrumentality

authorized by law to adopt the same.

2. "Traffic infraction" means any offense defined as "traffic

infraction" by section one hundred fifty-five of the vehicle and traffic

law.

3. "Violation" means an offense, other than a "traffic infraction,"

for which a sentence to a term of imprisonment in excess of fifteen days

cannot be imposed.

4. "Misdemeanor" means an offense, other than a "traffic infraction,"

for which a sentence to a term of imprisonment in excess of fifteen days

may be imposed, but for which a sentence to a term of imprisonment in

excess of one year cannot be imposed.

5. "Felony" means an offense for which a sentence to a term of

imprisonment in excess of one year may be imposed.

6. "Crime" means a misdemeanor or a felony.

7. "Person" means a human being, and where appropriate, a public or

private corporation, an unincorporated association, a partnership, a

government or a governmental instrumentality.

8. "Possess" means to have physical possession or otherwise to

exercise dominion or control over tangible property.

9. "Physical injury" means impairment of physical condition or

substantial pain.

10. "Serious physical injury" means physical injury which creates a

substantial risk of death, or which causes death or serious and

protracted disfigurement, protracted impairment of health or protracted

loss or impairment of the function of any bodily organ.

11. "Deadly physical force" means physical force which, under the

circumstances in which it is used, is readily capable of causing death

or other serious physical injury.

12. "Deadly weapon" means any loaded weapon from which a shot, readily

capable of producing death or other serious physical injury, may be

discharged, or a switchblade knife, pilum ballistic knife, metal knuckle

knife, dagger, billy, blackjack, plastic knuckles, or metal knuckles.

13. "Dangerous instrument" means any instrument, article or substance,

including a "vehicle" as that term is defined in this section, which,

under the circumstances in which it is used, attempted to be used or

threatened to be used, is readily capable of causing death or other

serious physical injury.

14. "Vehicle" means a "motor vehicle", "trailer" or "semi-trailer," as

defined in the vehicle and traffic law, any snowmobile as defined in the

parks and recreation law, any aircraft, or any vessel equipped for

propulsion by mechanical means or by sail.

15. "Public servant" means (a) any public officer or employee of the

state or of any political subdivision thereof or of any governmental

instrumentality within the state, or (b) any person exercising the

functions of any such public officer or employee. The term public

servant includes a person who has been elected or designated to become a

public servant.

16. "Juror" means any person who is a member of any jury, including a

grand jury, impaneled by any court in this state or by any public

servant authorized by law to impanel a jury. The term juror also

includes a person who has been drawn or summoned to attend as a

prospective juror.

17. "Benefit" means any gain or advantage to the beneficiary and

includes any gain or advantage to a third person pursuant to the desire

or consent of the beneficiary.

18. "Juvenile offender" means (1) a person thirteen years old who is

criminally responsible for acts constituting murder in the second degree

as defined in subdivisions one and two of section 125.25 of this chapter

or such conduct as a sexually motivated felony, where authorized

pursuant to section 130.91 of the penal law; and

(2) a person fourteen or fifteen years old who is criminally

responsible for acts constituting the crimes defined in subdivisions one

and two of section 125.25 (murder in the second degree) and in

subdivision three of such section provided that the underlying crime for

the murder charge is one for which such person is criminally

responsible; section 135.25 (kidnapping in the first degree); 150.20

(arson in the first degree); subdivisions one and two of section 120.10

(assault in the first degree); 125.20 (manslaughter in the first

degree); paragraphs (a) and (b) of subdivision one, paragraphs (a) and

(b) of subdivision two, and paragraphs (a) and (b) of subdivision three

of section 130.35 (rape in the first degree); former subdivisions one

and two of section 130.35 (rape in the first degree); subdivisions one

and two of the former section 130.50; 130.70 (aggravated sexual abuse in

the first degree); 140.30 (burglary in the first degree); subdivision

one of section 140.25 (burglary in the second degree); 150.15 (arson in

the second degree); 160.15 (robbery in the first degree); subdivision

two of section 160.10 (robbery in the second degree) of this chapter; or

section 265.03 of this chapter, where such machine gun or such firearm

is possessed on school grounds, as that phrase is defined in subdivision

fourteen of section 220.00 of this chapter; or defined in this chapter

as an attempt to commit murder in the second degree or kidnapping in the

first degree, or such conduct as a sexually motivated felony, where

authorized pursuant to section 130.91 of this chapter.

19. For the purposes of section 260.30 and 120.01 of this chapter the

term "child day care provider" shall be defined as provided for in

section three hundred ninety of the social services law.

20. For purposes of sections 120.13, 120.18, 125.11, 125.21 and 125.22

of this chapter, the term "peace officer" means a peace officer as

defined in subdivision one, two, three, four, six, twelve, thirteen,

fifteen, sixteen, seventeen, eighteen, nineteen, twenty, twenty-one,

twenty-three, twenty-three-a, twenty-four, twenty-five, twenty-six,

twenty-eight, twenty-nine, thirty, thirty-one, thirty-two, thirty-four,

thirty-five, thirty-six, forty-three, forty-five, forty-seven,

forty-eight, forty-nine, fifty-one, fifty-two, fifty-eight, sixty-one,

as added by chapter two hundred fifty-seven of the laws of nineteen

hundred ninety-two, sixty-one, as added by chapter three hundred

twenty-one of the laws of nineteen hundred ninety-two, sixty-two, as

added by chapter two hundred four of the laws of nineteen hundred

ninety-three, sixty-two, as added by chapter six hundred eighty-seven of

the laws of nineteen hundred ninety-three, sixty-three, as amended by

chapter six hundred thirty-eight of the laws of two thousand three,

sixty-four, sixty-five, sixty-eight, as added by chapter one hundred

sixty-eight of the laws of two thousand, sixty-eight, as added by

chapter three hundred eighty-one of the laws of two thousand, seventy,

seventy-one, seventy-four, as added by chapter five hundred forty-eight

of the laws of two thousand one, seventy-five, as added by chapter three

hundred twenty-one of the laws of two thousand two, seventy-five, as

added by chapter six hundred twenty-three of the laws of two thousand

two, seventy-seven, as added by chapter three hundred sixty-seven of the

laws of two thousand four, seventy-eight or seventy-nine, as added by

chapter two hundred forty-one of the laws of two thousand four, of

section 2.10 of the criminal procedure law, as well as any federal law

enforcement officer defined in section 2.15 of the criminal procedure

law.

21. "Drug trafficking felony" means any of the following offenses

defined in article two hundred twenty of this chapter: violation of use

of a child to commit a controlled substance offense as defined in

section 220.28; criminal sale of a controlled substance in the fourth

degree as defined in section 220.34; criminal sale of a controlled

substance in the third degree as defined in section 220.39; criminal

sale of a controlled substance in the second degree as defined in

section 220.41; criminal sale of a controlled substance in the first

degree as defined in section 220.43; criminal sale of a controlled

substance in or near school grounds as defined in section 220.44;

unlawful manufacture of methamphetamine in the second degree as defined

in section 220.74; unlawful manufacture of methamphetamine in the first

degree as defined in section 220.75; or operating as a major trafficker

as defined in section 220.77.

22. For the purposes of section 20.20 of this part and section 60.27

of this chapter, the term "employee" shall mean any person providing

labor or services for remuneration for a private entity or business

within New York state, without regard to an individual's immigration

status, and shall include part-time workers, independent contractors,

apprentices, domestic workers, home care and personal care workers, day

laborers, farmworkers, and other temporary and seasonal workers.

Culpability; definitions of terms.

The following definitions are applicable to this chapter:

1. "Act" means a bodily movement.

2. "Voluntary act" means a bodily movement performed consciously as a

result of effort or determination, and includes the possession of

property if the actor was aware of his physical possession or control

thereof for a sufficient period to have been able to terminate it.

3. "Omission" means a failure to perform an act as to which a duty of

performance is imposed by law.

4. "Conduct" means an act or omission and its accompanying mental

state.

5. "To act" means either to perform an act or to omit to perform an

act.

6. "Culpable mental state" means "intentionally" or "knowingly" or

"recklessly" or with "criminal negligence," as these terms are defined

in section 15.05.

Culpability; definitions of culpable mental states.

The following definitions are applicable to this chapter:

1. "Intentionally." A person acts intentionally with respect to a

result or to conduct described by a statute defining an offense when his

conscious objective is to cause such result or to engage in such

conduct.

2. "Knowingly." A person acts knowingly with respect to conduct or to

a circumstance described by a statute defining an offense when he is

aware that his conduct is of such nature or that such circumstance

exists.

3. "Recklessly." A person acts recklessly with respect to a result or

to a circumstance described by a statute defining an offense when he is

aware of and consciously disregards a substantial and unjustifiable risk

that such result will occur or that such circumstance exists. The risk

must be of such nature and degree that disregard thereof constitutes a

gross deviation from the standard of conduct that a reasonable person

would observe in the situation. A person who creates such a risk but is

unaware thereof solely by reason of voluntary intoxication also acts

recklessly with respect thereto.

4. "Criminal negligence." A person acts with criminal negligence with

respect to a result or to a circumstance described by a statute defining

an offense when he fails to perceive a substantial and unjustifiable

risk that such result will occur or that such circumstance exists. The

risk must be of such nature and degree that the failure to perceive it

constitutes a gross deviation from the standard of care that a

reasonable person would observe in the situation.

Requirements for criminal liability in general and for offenses

of strict liability and mental culpability.

The minimal requirement for criminal liability is the performance by a

person of conduct which includes a voluntary act or the omission to

perform an act which he is physically capable of performing. If such

conduct is all that is required for commission of a particular offense,

or if an offense or some material element thereof does not require a

culpable mental state on the part of the actor, such offense is one of

"strict liability." If a culpable mental state on the part of the actor

is required with respect to every material element of an offense, such

offense is one of "mental culpability."

Construction of statutes with respect to culpability

requirements.

1. When the commission of an offense defined in this chapter, or some

element of an offense, requires a particular culpable mental state, such

mental state is ordinarily designated in the statute defining the

offense by use of the terms "intentionally," "knowingly," "recklessly"

or "criminal negligence," or by use of terms, such as "with intent to

defraud" and "knowing it to be false," describing a specific kind of

intent or knowledge. When one and only one of such terms appears in a

statute defining an offense, it is presumed to apply to every element of

the offense unless an intent to limit its application clearly appears.

2. Although no culpable mental state is expressly designated in a

statute defining an offense, a culpable mental state may nevertheless be

required for the commission of such offense, or with respect to some or

all of the material elements thereof, if the proscribed conduct

necessarily involves such culpable mental state. A statute defining a

crime, unless clearly indicating a legislative intent to impose strict

liability, should be construed as defining a crime of mental

culpability. This subdivision applies to offenses defined both in and

outside this chapter.

Effect of ignorance or mistake upon liability.

1. A person is not relieved of criminal liability for conduct because

he engages in such conduct under a mistaken belief of fact, unless:

(a) Such factual mistake negatives the culpable mental state required

for the commission of an offense; or

(b) The statute defining the offense or a statute related thereto

expressly provides that such factual mistake constitutes a defense or

exemption; or

(c) Such factual mistake is of a kind that supports a defense of

justification as defined in article thirty-five of this chapter.

2. A person is not relieved of criminal liability for conduct because

he engages in such conduct under a mistaken belief that it does not, as

a matter of law, constitute an offense, unless such mistaken belief is

founded upon an official statement of the law contained in (a) a statute

or other enactment, or (b) an administrative order or grant of

permission, or (c) a judicial decision of a state or federal court, or

(d) an interpretation of the statute or law relating to the offense,

officially made or issued by a public servant, agency or body legally

charged or empowered with the responsibility or privilege of

administering, enforcing or interpreting such statute or law.

3. Notwithstanding the use of the term "knowingly" in any provision of

this chapter defining an offense in which the age of a child is an

element thereof, knowledge by the defendant of the age of such child is

not an element of any such offense and it is not, unless expressly so

provided, a defense to a prosecution therefor that the defendant did not

know the age of the child or believed such age to be the same as or

greater than that specified in the statute.

4. Notwithstanding the use of the term "knowingly" in any provision of

this chapter defining an offense in which the aggregate weight of a

controlled substance or marihuana is an element, knowledge by the

defendant of the aggregate weight of such controlled substance or

marihuana is not an element of any such offense and it is not, unless

expressly so provided, a defense to a prosecution therefor that the

defendant did not know the aggregate weight of the controlled substance

or marihuana.

Effect of intoxication upon liability.

Intoxication is not, as such, a defense to a criminal charge; but in

any prosecution for an offense, evidence of intoxication of the

defendant may be offered by the defendant whenever it is relevant to

negative an element of the crime charged.

Criminal liability for conduct of another.

When one person engages in conduct which constitutes an offense,

another person is criminally liable for such conduct when, acting with

the mental culpability required for the commission thereof, he solicits,

requests, commands, importunes, or intentionally aids such person to

engage in such conduct.

Criminal liability for conduct of another; no defense.

In any prosecution for an offense in which the criminal liability of

the defendant is based upon the conduct of another person pursuant to

section 20.00, it is no defense that:

1. Such other person is not guilty of the offense in question owing to

criminal irresponsibility or other legal incapacity or exemption, or to

unawareness of the criminal nature of the conduct in question or of the

defendant's criminal purpose or to other factors precluding the mental

state required for the commission of the offense in question; or

2. Such other person has not been prosecuted for or convicted of any

offense based upon the conduct in question, or has previously been

acquitted thereof, or has legal immunity from prosecution therefor; or

3. The offense in question, as defined, can be committed only by a

particular class or classes of persons, and the defendant, not belonging

to such class or classes, is for that reason legally incapable of

committing the offense in an individual capacity.

Criminal liability for conduct of another; exemption.

Notwithstanding the provisions of sections 20.00 and 20.05, a person

is not criminally liable for conduct of another person constituting an

offense when his own conduct, though causing or aiding the commission of

such offense, is of a kind that is necessarily incidental thereto. If

such conduct constitutes a related but separate offense upon the part of

the actor, he is liable for that offense only and not for the conduct or

offense committed by the other person.

Convictions for different degrees of offense.

Except as otherwise expressly provided in this chapter, when, pursuant

to section 20.00, two or more persons are criminally liable for an

offense which is divided into degrees, each person is guilty of such

degree as is compatible with his own culpable mental state and with his

own accountability for an aggravating fact or circumstance.

Criminal liability of corporations.

1. As used in this section:

(a) "Agent" means any director, officer or employee of a corporation,

or any other person who is authorized to act in behalf of the

corporation.

(b) "High managerial agent" means an officer of a corporation or any

other agent in a position of comparable authority with respect to the

formulation of corporate policy or the supervision in a managerial

capacity of subordinate employees.

2. A corporation is guilty of an offense when:

(a) The conduct constituting the offense consists of an omission to

discharge a specific duty of affirmative performance imposed on

corporations by law; or

(b) The conduct constituting the offense is engaged in, authorized,

solicited, requested, commanded, or recklessly tolerated by the board of

directors or by a high managerial agent acting within the scope of his

employment and in behalf of the corporation; or

(c) The conduct constituting the offense is engaged in by an agent of

the corporation while acting within the scope of his employment and on

behalf of the corporation, and the offense is (i) a misdemeanor or a

violation, (ii) one defined by a statute which clearly indicates a

legislative intent to impose such criminal liability on a corporation,

(iii) any offense set forth in title twenty-seven of article seventy-one

of the environmental conservation law, or (iv) is in relation to a crime

involving the death or serious physical injury of an employee where the

corporation acted negligently, recklessly, intentionally, or knowingly.

Criminal liability of an individual for corporate conduct.

A person is criminally liable for conduct constituting an offense

which he performs or causes to be performed in the name of or in behalf

of a corporation to the same extent as if such conduct were performed in

his own name or behalf.

Defenses; burden of proof.

1. When a "defense," other than an "affirmative defense," defined by

statute is raised at a trial, the people have the burden of disproving

such defense beyond a reasonable doubt.

2. When a defense declared by statute to be an "affirmative defense"

is raised at a trial, the defendant has the burden of establishing such

defense by a preponderance of the evidence.

Infancy.

1. Except as provided in subdivisions two and three of this section, a

person less than seventeen, or commencing October first, two thousand

nineteen, a person less than eighteen years old is not criminally

responsible for conduct.

2. A person thirteen, fourteen or, fifteen years of age is criminally

responsible for acts constituting murder in the second degree as defined

in subdivisions one and two of section 125.25 and in subdivision three

of such section provided that the underlying crime for the murder charge

is one for which such person is criminally responsible or for such

conduct as a sexually motivated felony, where authorized pursuant to

section 130.91 of this chapter; and a person fourteen or, fifteen years

of age is criminally responsible for acts constituting the crimes

defined in section 135.25 (kidnapping in the first degree); 150.20

(arson in the first degree); subdivisions one and two of section 120.10

(assault in the first degree); 125.20 (manslaughter in the first

degree); paragraphs (a) and (b) of subdivision one, paragraphs (a) and

(b) of subdivision two and paragraphs (a) and (b) of subdivision three

of section 130.35 (rape in the first degree); former subdivisions one

and two of section 130.35 (rape in the first degree); subdivisions one

and two of former section 130.50; 130.70 (aggravated sexual abuse in the

first degree); 140.30 (burglary in the first degree); subdivision one of

section 140.25 (burglary in the second degree); 150.15 (arson in the

second degree); 160.15 (robbery in the first degree); subdivision two of

section 160.10 (robbery in the second degree) of this chapter; or

section 265.03 of this chapter, where such machine gun or such firearm

is possessed on school grounds, as that phrase is defined in subdivision

fourteen of section 220.00 of this chapter; or defined in this chapter

as an attempt to commit murder in the second degree or kidnapping in the

first degree, or for such conduct as a sexually motivated felony, where

authorized pursuant to section 130.91 of this chapter.

3. A person sixteen or commencing October first, two thousand

nineteen, seventeen years of age is criminally responsible for acts

constituting:

(a) a felony, as defined in subdivision five of section 10.00 of this

chapter;

(b) a traffic infraction, as defined in subdivision two of section

10.00 of this chapter;

(c) a violation, as defined in subdivision three of section 10.00 of

this chapter;

(d) a misdemeanor as defined in subdivision four of section 10.00 of

this chapter, but only when the charge for such misdemeanor is:

(i) accompanied by a felony charge that is shown to have been

committed as a part of the same criminal transaction, as defined in

subdivision two of section 40.10 of the criminal procedure law;

(ii) results from reduction or dismissal in satisfaction of a charge

for a felony offense, in accordance with a plea of guilty pursuant to

subdivision four of section 220.10 of the criminal procedure law, unless

the proceeding is removed to the family court pursuant to paragraph

(g-1) of subdivision five of section 220.10 of the criminal procedure

law; or

(iii) a misdemeanor defined in the vehicle and traffic law.

4. In any prosecution for an offense, lack of criminal responsibility

by reason of infancy, as defined in this section, is a defense.

Justification; a defense.

In any prosecution for an offense, justification, as defined in

sections 35.05 through 35.30, is a defense.

Justification; generally.

Unless otherwise limited by the ensuing provisions of this article

defining justifiable use of physical force, conduct which would

otherwise constitute an offense is justifiable and not criminal when:

1. Such conduct is required or authorized by law or by a judicial

decree, or is performed by a public servant in the reasonable exercise

of his official powers, duties or functions; or

2. Such conduct is necessary as an emergency measure to avoid an

imminent public or private injury which is about to occur by reason of a

situation occasioned or developed through no fault of the actor, and

which is of such gravity that, according to ordinary standards of

intelligence and morality, the desirability and urgency of avoiding such

injury clearly outweigh the desirability of avoiding the injury sought

to be prevented by the statute defining the offense in issue. The

necessity and justifiability of such conduct may not rest upon

considerations pertaining only to the morality and advisability of the

statute, either in its general application or with respect to its

application to a particular class of cases arising thereunder. Whenever

evidence relating to the defense of justification under this subdivision

is offered by the defendant, the court shall rule as a matter of law

whether the claimed facts and circumstances would, if established,

constitute a defense.

Justification; use of physical force generally.

The use of physical force upon another person which would otherwise

constitute an offense is justifiable and not criminal under any of the

following circumstances:

1. A parent, guardian or other person entrusted with the care and

supervision of a person under the age of twenty-one or an incompetent

person, and a teacher or other person entrusted with the care and

supervision of a person under the age of twenty-one for a special

purpose, may use physical force, but not deadly physical force, upon

such person when and to the extent that he reasonably believes it

necessary to maintain discipline or to promote the welfare of such

person.

2. A warden or other authorized official of a jail, prison or

correctional institution may, in order to maintain order and discipline,

use such physical force as is authorized by the correction law.

3. A person responsible for the maintenance of order in a common

carrier of passengers, or a person acting under his direction, may use

physical force when and to the extent that he reasonably believes it

necessary to maintain order, but he may use deadly physical force only

when he reasonably believes it necessary to prevent death or serious

physical injury.

4. A person acting under a reasonable belief that another person is

about to commit suicide or to inflict serious physical injury upon

himself may use physical force upon such person to the extent that he

reasonably believes it necessary to thwart such result.

5. A duly licensed physician, or a person acting under a physician's

direction, may use physical force for the purpose of administering a

recognized form of treatment which he or she reasonably believes to be

adapted to promoting the physical or mental health of the patient if (a)

the treatment is administered with the consent of the patient or, if the

patient is under the age of eighteen years or an incompetent person,

with the consent of the parent, guardian or other person entrusted with

the patient's care and supervision, or (b) the treatment is administered

in an emergency when the physician reasonably believes that no one

competent to consent can be consulted and that a reasonable person,

wishing to safeguard the welfare of the patient, would consent.

6. A person may, pursuant to the ensuing provisions of this article,

use physical force upon another person in self-defense or defense of a

third person, or in defense of premises, or in order to prevent larceny

of or criminal mischief to property, or in order to effect an arrest or

prevent an escape from custody. Whenever a person is authorized by any

such provision to use deadly physical force in any given circumstance,

nothing contained in any other such provision may be deemed to negate or

qualify such authorization.

Justification; use of physical force in defense of a person.

1. A person may, subject to the provisions of subdivision two, use

physical force upon another person when and to the extent he or she

reasonably believes such to be necessary to defend himself, herself or a

third person from what he or she reasonably believes to be the use or

imminent use of unlawful physical force by such other person, unless:

(a) The latter's conduct was provoked by the actor with intent to

cause physical injury to another person; or

(b) The actor was the initial aggressor; except that in such case the

use of physical force is nevertheless justifiable if the actor has

withdrawn from the encounter and effectively communicated such

withdrawal to such other person but the latter persists in continuing

the incident by the use or threatened imminent use of unlawful physical

force; or

(c) The physical force involved is the product of a combat by

agreement not specifically authorized by law.

2. A person may not use deadly physical force upon another person

under circumstances specified in subdivision one unless:

(a) The actor reasonably believes that such other person is using or

about to use deadly physical force. Even in such case, however, the

actor may not use deadly physical force if he or she knows that with

complete personal safety, to oneself and others he or she may avoid the

necessity of so doing by retreating; except that the actor is under no

duty to retreat if he or she is:

(i) in his or her dwelling and not the initial aggressor; or

(ii) a police officer or peace officer or a person assisting a police

officer or a peace officer at the latter's direction, acting pursuant to

section 35.30; or

(b) He or she reasonably believes that such other person is committing

or attempting to commit a kidnapping, forcible rape, forcible aggravated

sexual abuse, a crime formerly defined in section 130.50 of this chapter

by force, or robbery; or

(c) He or she reasonably believes that such other person is committing

or attempting to commit a burglary, and the circumstances are such that

the use of deadly physical force is authorized by subdivision three of

section 35.20.

Justification; use of physical force in defense of premises and

in defense of a person in the course of burglary.

1. Any person may use physical force upon another person when he or

she reasonably believes such to be necessary to prevent or terminate

what he or she reasonably believes to be the commission or attempted

commission by such other person of a crime involving damage to premises.

Such person may use any degree of physical force, other than deadly

physical force, which he or she reasonably believes to be necessary for

such purpose, and may use deadly physical force if he or she reasonably

believes such to be necessary to prevent or terminate the commission or

attempted commission of arson.

2. A person in possession or control of any premises, or a person

licensed or privileged to be thereon or therein, may use physical force

upon another person when he or she reasonably believes such to be

necessary to prevent or terminate what he or she reasonably believes to

be the commission or attempted commission by such other person of a

criminal trespass upon such premises. Such person may use any degree of

physical force, other than deadly physical force, which he or she

reasonably believes to be necessary for such purpose, and may use deadly

physical force in order to prevent or terminate the commission or

attempted commission of arson, as prescribed in subdivision one, or in

the course of a burglary or attempted burglary, as prescribed in

subdivision three.

3. A person in possession or control of, or licensed or privileged to

be in, a dwelling or an occupied building, who reasonably believes that

another person is committing or attempting to commit a burglary of such

dwelling or building, may use deadly physical force upon such other

person when he or she reasonably believes such to be necessary to

prevent or terminate the commission or attempted commission of such

burglary.

4. As used in this section, the following terms have the following

meanings:

(a) The terms "premises," "building" and "dwelling" have the meanings

prescribed in section 140.00;

(b) Persons "licensed or privileged" to be in buildings or upon other

premises include, but are not limited to:

(i) police officers or peace officers acting in the performance of

their duties; and

(ii) security personnel or employees of nuclear powered electric

generating facilities located within the state who are employed as part

of any security plan approved by the federal operating license agencies

acting in the performance of their duties at such generating facilities.

For purposes of this subparagraph, the term "nuclear powered electric

generating facility" shall mean a facility that generates electricity

using nuclear power for sale, directly or indirectly, to the public,

including the land upon which the facility is located and the safety and

security zones as defined under federal regulations.

Justification; use of physical force to prevent or terminate

larceny or criminal mischief.

A person may use physical force, other than deadly physical force,

upon another person when and to the extent that he or she reasonably

believes such to be necessary to prevent or terminate what he or she

reasonably believes to be the commission or attempted commission by such

other person of larceny or of criminal mischief with respect to property

other than premises.

Justification; use of physical force in resisting arrest

prohibited.

A person may not use physical force to resist an arrest, whether

authorized or unauthorized, which is being effected or attempted by a

police officer or peace officer when it would reasonably appear that the

latter is a police officer or peace officer.

Justification; use of physical force in making an arrest or in

preventing an escape.

1. A police officer or a peace officer, in the course of effecting or

attempting to effect an arrest, or of preventing or attempting to

prevent the escape from custody, of a person whom he or she reasonably

believes to have committed an offense, may use physical force when and

to the extent he or she reasonably believes such to be necessary to

effect the arrest, or to prevent the escape from custody, or in

self-defense or to defend a third person from what he or she reasonably

believes to be the use or imminent use of physical force; except that

deadly physical force may be used for such purposes only when he or she

reasonably believes that:

(a) The offense committed by such person was:

(i) a felony or an attempt to commit a felony involving the use or

attempted use or threatened imminent use of physical force against a

person; or

(ii) kidnapping, arson, escape in the first degree, burglary in the

first degree or any attempt to commit such a crime; or

(b) The offense committed or attempted by such person was a felony and

that, in the course of resisting arrest therefor or attempting to escape

from custody, such person is armed with a firearm or deadly weapon; or

(c) Regardless of the particular offense which is the subject of the

arrest or attempted escape, the use of deadly physical force is

necessary to defend the police officer or peace officer or another

person from what the officer reasonably believes to be the use or

imminent use of deadly physical force.

2. The fact that a police officer or a peace officer is justified in

using deadly physical force under circumstances prescribed in paragraphs

(a) and (b) of subdivision one does not constitute justification for

reckless conduct by such police officer or peace officer amounting to an

offense against or with respect to innocent persons whom he or she is

not seeking to arrest or retain in custody.

3. A person who has been directed by a police officer or a peace

officer to assist such police officer or peace officer to effect an

arrest or to prevent an escape from custody may use physical force,

other than deadly physical force, when and to the extent that he or she

reasonably believes such to be necessary to carry out such police

officer's or peace officer's direction, unless he or she knows that the

arrest or prospective arrest is not or was not authorized and may use

deadly physical force under such circumstances when:

(a) He or she reasonably believes such to be necessary for

self-defense or to defend a third person from what he or she reasonably

believes to be the use or imminent use of deadly physical force; or

(b) He or she is directed or authorized by such police officer or

peace officer to use deadly physical force unless he or she knows that

the police officer or peace officer is not authorized to use deadly

physical force under the circumstances.

4. A private person acting on his or her own account may use physical

force, other than deadly physical force, upon another person when and to

the extent that he or she reasonably believes such to be necessary to

effect an arrest or to prevent the escape from custody of a person whom

he or she reasonably believes to have committed an offense and who in

fact has committed such offense; and may use deadly physical force for

such purpose when he or she reasonably believes such to be necessary to:

(a) Defend himself, herself or a third person from what he or she

reasonably believes to be the use or imminent use of deadly physical

force; or

(b) Effect the arrest of a person who has committed murder,

manslaughter in the first degree, robbery, forcible rape or forcible

criminal sexual act and who is in immediate flight therefrom.

5. A guard, police officer or peace officer who is charged with the

duty of guarding prisoners in a detention facility, as that term is

defined in section 205.00, or while in transit to or from a detention

facility, may use physical force when and to the extent that he or she

reasonably believes such to be necessary to prevent the escape of a

prisoner from a detention facility or from custody while in transit

thereto or therefrom.

Duress.

1. In any prosecution for an offense, it is an affirmative defense

that the defendant engaged in the proscribed conduct because he was

coerced to do so by the use or threatened imminent use of unlawful

physical force upon him or a third person, which force or threatened

force a person of reasonable firmness in his situation would have been

unable to resist.

2. The defense of duress as defined in subdivision one of this section

is not available when a person intentionally or recklessly places

himself in a situation in which it is probable that he will be subjected

to duress.

Entrapment.

In any prosecution for an offense, it is an affirmative defense that

the defendant engaged in the proscribed conduct because he was induced

or encouraged to do so by a public servant, or by a person acting in

cooperation with a public servant, seeking to obtain evidence against

him for purpose of criminal prosecution, and when the methods used to

obtain such evidence were such as to create a substantial risk that the

offense would be committed by a person not otherwise disposed to commit

it. Inducement or encouragement to commit an offense means active

inducement or encouragement. Conduct merely affording a person an

opportunity to commit an offense does not constitute entrapment.

Renunciation.

1. In any prosecution for an offense, other than an attempt to commit

a crime, in which the defendant's guilt depends upon his criminal

liability for the conduct of another person pursuant to section 20.00,

it is an affirmative defense that, under circumstances manifesting a

voluntary and complete renunciation of his criminal purpose, the

defendant withdrew from participation in such offense prior to the

commission thereof and made a substantial effort to prevent the

commission thereof.

2. In any prosecution for criminal facilitation pursuant to article

one hundred fifteen, it is an affirmative defense that, prior to the

commission of the felony which he facilitated, the defendant made a

substantial effort to prevent the commission of such felony.

3. In any prosecution pursuant to section 110.00 for an attempt to

commit a crime, it is an affirmative defense that, under circumstances

manifesting a voluntary and complete renunciation of his criminal

purpose, the defendant avoided the commission of the crime attempted by

abandoning his criminal effort and, if mere abandonment was insufficient

to accomplish such avoidance, by taking further and affirmative steps

which prevented the commission thereof.

4. In any prosecution for criminal solicitation pursuant to article

one hundred or for conspiracy pursuant to article one hundred five in

which the crime solicited or the crime contemplated by the conspiracy

was not in fact committed, it is an affirmative defense that, under

circumstances manifesting a voluntary and complete renunciation of his

criminal purpose, the defendant prevented the commission of such crime.

5. A renunciation is not "voluntary and complete" within the meaning

of this section if it is motivated in whole or in part by (a) a belief

that circumstances exist which increase the probability of detection or

apprehension of the defendant or another participant in the criminal

enterprise, or which render more difficult the accomplishment of the

criminal purpose, or (b) a decision to postpone the criminal conduct

until another time or to transfer the criminal effort to another victim

or another but similar objective.

Mental disease or defect.

In any prosecution for an offense, it is an affirmative defense that

when the defendant engaged in the proscribed conduct, he lacked criminal

responsibility by reason of mental disease or defect. Such lack of

criminal responsibility means that at the time of such conduct, as a

result of mental disease or defect, he lacked substantial capacity to

know or appreciate either:

1. The nature and consequences of such conduct; or

2. That such conduct was wrong.

Applicability of article.

The provisions of this article govern the classification and

designation of every offense, whether defined within or outside of this

chapter.

Classifications of felonies and misdemeanors.

1. Felonies. Felonies are classified, for the purpose of sentence,

into five categories as follows:

(a) Class A felonies;

(b) Class B felonies;

(c) Class C felonies;

(d) Class D felonies; and

(e) Class E felonies.

Class A felonies are subclassified, for the purpose of sentence, into

two categories as follows: subclass I and subclass II, to be known as

class A-I and class A-II felonies, respectively.

2. Misdemeanors. Misdemeanors are classified, for the purpose of

sentence, into three categories as follows:

(a) Class A misdemeanors;

(b) Class B misdemeanors; and

(c) Unclassified misdemeanors.

Designation of offenses.

1. Felonies.

(a) The particular classification or subclassification of each felony

defined in this chapter is expressly designated in the section or

article defining it.

(b) Any offense defined outside this chapter which is declared by law

to be a felony without specification of the classification thereof, or

for which a law outside this chapter provides a sentence to a term of

imprisonment in excess of one year, shall be deemed a class E felony.

2. Misdemeanors.

(a) Each misdemeanor defined in this chapter is either a class A

misdemeanor or a class B misdemeanor, as expressly designated in the

section or article defining it.

(b) Any offense defined outside this chapter which is declared by law

to be a misdemeanor without specification of the classification thereof

or of the sentence therefor shall be deemed a class A misdemeanor.

(c) Except as provided in paragraph (b) of subdivision three, where an

offense is defined outside this chapter and a sentence to a term of

imprisonment in excess of fifteen days but not in excess of one year is

provided in the law or ordinance defining it, such offense shall be

deemed an unclassified misdemeanor.

3. Violations. Every violation defined in this chapter is expressly

designated as such. Any offense defined outside this chapter which is

not expressly designated a violation shall be deemed a violation if:

(a) Notwithstanding any other designation specified in the law or

ordinance defining it, a sentence to a term of imprisonment which is not

in excess of fifteen days is provided therein, or the only sentence

provided therein is a fine; or

(b) A sentence to a term of imprisonment in excess of fifteen days is

provided for such offense in a law or ordinance enacted prior to the

effective date of this chapter but the offense was not a crime prior to

that date.

4. Traffic infraction. Notwithstanding any other provision of this

section, an offense which is defined as a "traffic infraction" shall not

be deemed a violation or a misdemeanor by virtue of the sentence

prescribed therefor.

Applicability of provisions.

1. The sentences prescribed by this article shall apply in the case of

every offense, whether defined within or outside of this chapter.

2. The sole provision of this article that shall apply in the case of

an offense committed by a juvenile offender is section 60.10 of this

article and no other provisions of this article shall be deemed or

construed to apply in any such case.

Authorized dispositions; generally.

1. Applicability. Except as otherwise specified in this article, when

the court imposes sentence upon a person convicted of an offense, the

court must impose a sentence prescribed by this section.

2. Revocable dispositions.

(a) The court may impose a revocable sentence as herein specified:

(i) the court, where authorized by article sixty-five, may sentence a

person to a period of probation or to a period of conditional discharge

as provided in that article; or

(ii) the court, where authorized by article eighty-five, may sentence

a person to a term of intermittent imprisonment as provided in that

article.

(b) A revocable sentence shall be deemed a tentative one to the extent

that it may be altered or revoked in accordance with the provisions of

the article under which it was imposed, but for all other purposes shall

be deemed to be a final judgment of conviction.

(c) In any case where the court imposes a sentence of probation,

conditional discharge, or a sentence of intermittent imprisonment, it

may also impose a fine authorized by article eighty.

(d) In any case where the court imposes a sentence of imprisonment not

in excess of sixty days, for a misdemeanor or not in excess of six

months for a felony or in the case of a sentence of intermittent

imprisonment not in excess of four months, it may also impose a sentence

of probation or conditional discharge provided that the term of

probation or conditional discharge together with the term of

imprisonment shall not exceed the term of probation or conditional

discharge authorized by article sixty-five of this chapter. The sentence

of imprisonment shall be a condition of and run concurrently with the

sentence of probation or conditional discharge.

3. Other dispositions. When a person is not sentenced as specified in

subdivision two, or when a sentence specified in subdivision two is

revoked, the sentence of the court must be as follows:

(a) A term of imprisonment; or

(b) A fine authorized by article eighty, provided, however, that when

the conviction is of a class B felony or of any felony defined in

article two hundred twenty, the sentence shall not consist solely of a

fine; or

(c) Both imprisonment and a fine; or

(d) Where authorized by section 65.20, unconditional discharge as

provided in that section; or

(e) Following revocation of a sentence of conditional discharge

imposed pursuant to section 65.05 of this chapter or paragraph (d) of

subdivision two of this section, probation as provided in section 65.00

of this chapter or to the sentence of imprisonment and probation as

provided for in paragraph (d) of subdivision two of this section.

4. In any case where a person has been sentenced to a period of

probation imposed pursuant to section 65.00 of this chapter, if the part

of the sentence that provides for probation is revoked, the court must

sentence such person to imprisonment or to the sentence of imprisonment

and probation as provided for in paragraph (d) of subdivision two of

this section.

Authorized disposition; youthful offender.

When a person is to be sentenced upon a youthful offender finding, the

court must impose a sentence as follows:

(1) If the sentence is to be imposed upon a youthful offender finding

which has been substituted for a conviction of an offense other than a

felony, the court must impose a sentence authorized for the offense for

which the youthful offender finding was substituted, except that if the

youthful offender finding was entered pursuant to paragraph (b) of

subdivision one of section 720.20 of the criminal procedure law, the

court must not impose a definite or intermittent sentence of

imprisonment with a term of more than six months; or

(2) If the sentence is to be imposed upon a youthful offender finding

which has been substituted for a conviction for any felony, the court

must impose a sentence authorized to be imposed upon a person convicted

of a class E felony provided, however, that the court must not impose a

sentence of conditional discharge or unconditional discharge if the

youthful offender finding was substituted for a conviction of a felony

defined in article two hundred twenty of this chapter.

(4) Notwithstanding any other provision of law in this section, if the

sentence is to be imposed upon a youthful offender finding which has

been substituted for a conviction of prostitution or loitering for the

purposes of prostitution provided that the person does not stand charged

with loitering for the purpose of patronizing a prostitute, and such

offense occurred when the person was sixteen or seventeen years of age,

the court must impose a sentence authorized to be imposed upon a person

convicted of a violation as defined in subdivision three of section

10.00 of the penal law and where the court imposes a revocable sentence

authorized for a violation may order any of the specialized services

enumerated in title eight-A of article six of the social services law or

other appropriate services made available to persons in need of

supervision in accordance with article seven of the family court act.

Authorized disposition; controlled substances and marihuana

felony offenses.

1. Applicability. Notwithstanding the provisions of any law, this

section shall govern the dispositions authorized when a person is to be

sentenced upon a conviction of a felony offense defined in article two

hundred twenty or two hundred twenty-one of this chapter or when a

person is to be sentenced upon a conviction of such a felony as a

multiple felony offender as defined in subdivision five of this section.

2. Class A felony. Every person convicted of a class A felony must be

sentenced to imprisonment in accordance with section 70.71 of this

title, unless such person is convicted of a class A-II felony and is

sentenced to probation for life in accordance with section 65.00 of this

title.

3. Class B felonies. Every person convicted of a class B felony must

be sentenced to imprisonment in accordance with the applicable

provisions of section 70.70 of this chapter, a definite sentence of

imprisonment with a term of one year or less or probation in accordance

with section 65.00 of this chapter provided, however, a person convicted

of criminal sale of a controlled substance to a child as defined in

section 220.48 of this chapter must be sentenced to a determinate

sentence of imprisonment in accordance with the applicable provisions of

section 70.70 of this chapter or to a sentence of probation in

accordance with the opening paragraph of paragraph (b) of subdivision

one of section 65.00 of this chapter.

4. Alternative sentence. Where a sentence of imprisonment or a

sentence of probation as an alternative to imprisonment is not required

to be imposed pursuant to subdivision two, three or five of this

section, the court may impose any other sentence authorized by section

60.01 of this article, provided that when the court imposes a sentence

of imprisonment, such sentence must be in accordance with section 70.70

of this title. Where the court imposes a sentence of imprisonment in

accordance with this section, the court may also impose a fine

authorized by article eighty of this title and in such case the sentence

shall be both imprisonment and a fine.

5. Multiple felony offender. Where the court imposes a sentence

pursuant to subdivision three of section 70.70 of this chapter upon a

second felony drug offender, as defined in paragraph (b) of subdivision

one of section 70.70 of this chapter, it must sentence such offender to

imprisonment in accordance with the applicable provisions of section

70.70 of this chapter, a definite sentence of imprisonment with a term

of one year or less, or probation in accordance with section 65.00 of

this chapter, provided, however, that where the court imposes a sentence

upon a class B second felony drug offender, it must sentence such

offender to a determinate sentence of imprisonment in accordance with

the applicable provisions of section 70.70 of this chapter or to a

sentence of probation in accordance with the opening paragraph of

paragraph (b) of subdivision one of section 65.00 of this chapter. When

the court imposes sentence on a second felony drug offender pursuant to

subdivision four of section 70.70 of this chapter, it must impose a

determinate sentence of imprisonment in accordance with such

subdivision.

6. Substance abuse treatment. When the court imposes a sentence of

imprisonment which requires a commitment to the state department of

corrections and community supervision upon a person who stands convicted

of a controlled substance or marihuana offense, the court may, upon

motion of the defendant in its discretion, issue an order directing that

the department of corrections and community supervision enroll the

defendant in the comprehensive alcohol and substance abuse treatment

program in an alcohol and substance abuse correctional annex as defined

in subdivision eighteen of section two of the correction law, provided

that the defendant will satisfy the statutory eligibility criteria for

participation in such program. Notwithstanding the foregoing provisions

of this subdivision, any defendant to be enrolled in such program

pursuant to this subdivision shall be governed by the same rules and

regulations promulgated by the department of corrections and community

supervision, including without limitation those rules and regulations

establishing requirements for completion and those rules and regulations

governing discipline and removal from the program. No such period of

court ordered corrections based drug abuse treatment pursuant to this

subdivision shall be required to extend beyond the defendant's

conditional release date.

7. a. Shock incarceration participation. When the court imposes a

sentence of imprisonment which requires a commitment to the department

of corrections and community supervision upon a person who stands

convicted of a controlled substance or marihuana offense, upon motion of

the defendant, the court may issue an order directing that the

department of corrections and community supervision enroll the defendant

in the shock incarceration program as defined in article twenty-six-A of

the correction law, provided that the defendant is an eligible

incarcerated individual, as described in subdivision one of section

eight hundred sixty-five of the correction law. Notwithstanding the

foregoing provisions of this subdivision, any defendant to be enrolled

in such program pursuant to this subdivision shall be governed by the

same rules and regulations promulgated by the department of corrections

and community supervision, including without limitation those rules and

regulations establishing requirements for completion and such rules and

regulations governing discipline and removal from the program.

b. (i) In the event that an incarcerated individual designated by

court order for enrollment in the shock incarceration program requires a

degree of medical care or mental health care that cannot be provided at

a shock incarceration facility, the department, in writing, shall notify

the incarcerated individual, provide a proposal describing a proposed

alternative-to-shock-incarceration program, and notify him or her that

he or she may object in writing to placement in such

alternative-to-shock-incarceration program. If the incarcerated

individual objects in writing to placement in such

alternative-to-shock-incarceration program, the department of

corrections and community supervision shall notify the sentencing court,

provide such proposal to the court, and arrange for the incarcerated

individual's prompt appearance before the court. The court shall provide

the proposal and notice of a court appearance to the people, the

incarcerated individual and the appropriate defense attorney. After

considering the proposal and any submissions by the parties, and after a

reasonable opportunity for the people, the incarcerated individual and

counsel to be heard, the court may modify its sentencing order

accordingly, notwithstanding the provisions of section 430.10 of the

criminal procedure law.

(ii) An incarcerated individual who successfully completes an

alternative-to-shock-incarceration program within the department of

corrections and community supervision shall be treated in the same

manner as a person who has successfully completed the shock

incarceration program, as set forth in subdivision four of section eight

hundred sixty-seven of the correction law.

Authorized dispositions; other class A, B, certain C and D

felonies and multiple felony offenders.

1. Applicability. Except as provided in section 60.04 of this article

governing the authorized dispositions applicable to felony offenses

defined in article two hundred twenty or two hundred twenty-one of this

chapter or in section 60.13 of this article governing the authorized

dispositions applicable to felony sex offenses defined in paragraph (a)

of subdivision one of section 70.80 of this title, this section shall

govern the dispositions authorized when a person is to be sentenced upon

a conviction of a class A felony, a class B felony or a class C, class D

or class E felony specified herein, or when a person is to be sentenced

upon a conviction of a felony as a multiple felony offender.

2. Class A felony. Except as provided in subdivisions three and four

of section 70.06 of this chapter, every person convicted of a class A

felony must be sentenced to imprisonment in accordance with section

70.00 of this title, unless such person is convicted of murder in the

first degree and is sentenced in accordance with section 60.06 of this

article.

3. Class B felony. Except as provided in subdivision six of this

section, every person convicted of a class B violent felony offense as

defined in subdivision one of section 70.02 of this title, must be

sentenced to imprisonment in accordance with such section 70.02; and,

except as provided in subdivision six of this section, every person

convicted of any other class B felony must be sentenced to imprisonment

in accordance with section 70.00 of this title.

4. Certain class C felonies. Except as provided in subdivision six,

every person convicted of a class C violent felony offense as defined in

subdivision one of section 70.02 of this title, must be sentenced to

imprisonment in accordance with section 70.02 of this title; and, except

as provided in subdivision six of this section, every person convicted

of the class C felonies of: attempt to commit any of the class B

felonies of bribery in the first degree as defined in section 200.04,

bribe receiving in the first degree as defined in section 200.12,

conspiracy in the second degree as defined in section 105.15 and

criminal mischief in the first degree as defined in section 145.12;

criminal usury in the first degree as defined in section 190.42,

rewarding official misconduct in the first degree as defined in section

200.22, receiving reward for official misconduct in the first degree as

defined in section 200.27, attempt to promote prostitution in the first

degree as defined in section 230.32, promoting prostitution in the

second degree as defined in section 230.30, arson in the third degree as

defined in section 150.10 of this chapter, must be sentenced to

imprisonment in accordance with section 70.00 of this title.

5. Certain class D felonies. Except as provided in subdivision six of

this section, every person convicted of the class D felonies of assault

in the second degree as defined in section 120.05, strangulation in the

second degree as defined in section 121.12 or attempt to commit a class

C felony as defined in section 230.30 of this chapter, must be sentenced

in accordance with section 70.00 or 85.00 of this title.

6. Multiple felony offender. When the court imposes sentence upon a

second violent felony offender, as defined in section 70.04, or a second

felony offender, as defined in section 70.06, the court must impose a

sentence of imprisonment in accordance with section 70.04 or 70.06, as

the case may be, unless it imposes a sentence of imprisonment in

accordance with section 70.08 or 70.10.

7. Fines. Where the court imposes a sentence of imprisonment in

accordance with this section, the court also may impose a fine

authorized by article eighty and in such case the sentence shall be both

imprisonment and a fine.

8. Shock incarceration participation. (a) When the court imposes a

determinate sentence of imprisonment pursuant to subdivision three of

section 70.02 of this chapter or subdivision six of section 70.06 of

this chapter upon a person who stands convicted either of burglary in

the second degree as defined in subdivision two of section 140.25 of

this chapter or robbery in the second degree as defined in subdivision

one of section 160.10 of this chapter, or an attempt thereof, upon

motion of the defendant, the court may issue an order directing that the

department of corrections and community supervision enroll the defendant

in the shock incarceration program as defined in article twenty-six-A of

the correction law, provided that the defendant is an eligible

incarcerated individual, as described in subdivision one of section

eight hundred sixty-five of the correction law. Notwithstanding the

foregoing provisions of this subdivision, any defendant to be enrolled

in such program pursuant to this subdivision shall be governed by the

same rules and regulations promulgated by the department of corrections

and community supervision, including without limitation those rules and

regulations establishing requirements for completion and such rules and

regulations governing discipline and removal from the program.

(b) Paragraph b of subdivision seven of section 60.04 of this article

shall apply in the event an incarcerated individual designated by court

order for enrollment in the shock incarceration program requires a

degree of medical care or mental health care that cannot be provided at

a shock incarceration facility.

Authorized disposition; murder in the first degree offenders;

aggravated murder offenders; certain murder in the second

degree offenders; certain terrorism offenders; criminal

possession of a chemical weapon or biological weapon

offenders; criminal use of a chemical weapon or biological

weapon offenders.

When a defendant is convicted of murder in the first degree as defined

in section 125.27 of this chapter, the court shall, in accordance with

the provisions of section 400.27 of the criminal procedure law, sentence

the defendant to death, to life imprisonment without parole in

accordance with subdivision five of section 70.00 of this title, or to a

term of imprisonment for a class A-I felony other than a sentence of

life imprisonment without parole, in accordance with subdivisions one

through three of section 70.00 of this title. When a person is convicted

of murder in the second degree as defined in subdivision five of section

125.25 of this chapter or of the crime of aggravated murder as defined

in subdivision one of section 125.26 of this chapter, the court shall

sentence the defendant to life imprisonment without parole in accordance

with subdivision five of section 70.00 of this title. When a defendant

is convicted of the crime of terrorism as defined in section 490.25 of

this chapter, and the specified offense the defendant committed is a

class A-I felony offense, or when a defendant is convicted of the crime

of criminal possession of a chemical weapon or biological weapon in the

first degree as defined in section 490.45 of this chapter, or when a

defendant is convicted of the crime of criminal use of a chemical weapon

or biological weapon in the first degree as defined in section 490.55 of

this chapter, the court shall sentence the defendant to life

imprisonment without parole in accordance with subdivision five of

section 70.00 of this title; provided, however, that nothing in this

section shall preclude or prevent a sentence of death when the defendant

is also convicted of murder in the first degree as defined in section

125.27 of this chapter. When a defendant is convicted of aggravated

murder as defined in subdivision two of section 125.26 of this chapter,

the court shall sentence the defendant to life imprisonment without

parole or to a term of imprisonment for a class A-I felony other than a

sentence of life imprisonment without parole, in accordance with

subdivisions one through three of section 70.00 of this title.

Authorized disposition; criminal attack on operators of for-hire

vehicles.

1. Notwithstanding any other provision of law to the contrary, when a

court has found, pursuant to the provisions of section 200.61 of the

criminal procedure law, both that a person has been convicted of a

specified offense as defined in subdivision two of this section and the

victim of such offense was operating a for-hire vehicle in the course of

providing for-hire vehicle services at the time of the commission of

such offense, the sentence of imprisonment imposed upon conviction for

such offense shall be the sentence authorized by the applicable

provisions of article seventy of this chapter, provided, however, that

the minimum term of an indeterminate sentence or minimum determinate

sentence shall be not less than three years nor more than five years

greater than the minimum term or sentence otherwise required to be

imposed pursuant to such provisions. The provisions of this subdivision

shall not apply where the court, having regard to the nature and

circumstances of the crime and the history and character of the

defendant, finds on the record that such additional term or sentence

would be unduly harsh and that not imposing such additional term or

sentence would be consistent with the public safety and would not

deprecate the seriousness of the crime.

2. For purposes of this section:

(a) the term "specified offense" shall mean an attempt to commit

murder in the second degree as defined in section 125.25 of this

chapter, gang assault in the first degree as defined in section 120.07

of this chapter, gang assault in the second degree as defined in section

120.06 of this chapter, assault in the first degree as defined in

section 120.10 of this chapter, manslaughter in the first degree as

defined in section 125.20 of this chapter, manslaughter in the second

degree as defined in section 125.15 of this chapter, robbery in the

first degree as defined in section 160.15 of this chapter, robbery in

the second degree as defined in section 160.10 of this chapter, or the

attempted commission of any of the following offenses: gang assault in

the first degree as defined in section 120.07, assault in the first

degree as defined in section 120.10, manslaughter in the first degree as

defined in section 125.20 or robbery in the first degree as defined in

section 160.15;

(b) the term "for-hire vehicle" shall mean a vehicle designed to carry

not more than five passengers for compensation and such vehicle is a

taxicab, as defined in section one hundred forty-eight-a of the vehicle

and traffic law, a livery, as such term is defined in section one

hundred twenty-one-e of the vehicle and traffic law, or a "black car",

as such term is defined in paragraph (g) of this subdivision;

(c) the term "livery car base" shall mean a central facility, wherever

located, that dispatches a livery operator to both pick-up and discharge

passengers in the state;

(d) "for-hire vehicle services" shall mean:

(i) with respect to a taxicab, the transport of passengers pursuant to

a license or permit issued by a local authority by a person duly

authorized to operate such taxicab;

(ii) with respect to a livery, the transport of passengers by a livery

operator while affiliated with a livery car base; or

(iii) with respect to a "black car", the transport of passengers by a

"black car operator" pursuant to dispatches from or by a central

dispatch facility regardless of where the pick-up and discharge occurs,

and, with respect to dispatches from or by a central dispatch facility

located outside the state, all dispatches involving a pick-up in the

state, regardless of where the discharge occurs.

(e) "livery operator" shall mean the registered owner of a livery, as

such term is defined in section one hundred twenty-one-e of the vehicle

and traffic law, or a driver designated by such registered owner to

operate the registered owner's livery as the registered owner's

authorized designee, where such registered owner or driver provides

services while affiliated with a livery car base;

(f) "black car operator" shall mean the registered owner of a "black

car" or a driver designated by such registered owner to operate the

registered owner's black car as the registered owner's authorized

designee; and

(g) "black car" shall mean a for-hire vehicle dispatched from a

central facility, which has certified to the satisfaction of the

department of state pursuant to article six-F of the executive law that

more than ninety percent of the central facility's for-hire business is

on a payment basis other than direct cash payment by a passenger.

Authorized dispositions; resentencing of certain controlled

substance offenders.

Any person convicted of an offense and sentenced to prison for an

indeterminate sentence, the minimum of which was at least one year and

the maximum of which was life imprisonment, which sentence was imposed

pursuant to chapter two hundred seventy-six, two hundred seventy-seven,

two hundred seventy-eight, or ten hundred fifty-one of the laws of

nineteen hundred seventy-three, and for which such sentence was imposed

upon conviction of the crime of criminal possession of a controlled

substance in the first degree, criminal possession of a controlled

substance in the second degree, criminal possession of a controlled

substance in the third degree, criminal sale of a controlled substance

in the first degree, criminal sale of a controlled substance in the

second degree, or criminal sale of a controlled substance in the third

degree, and the sole controlled substance involved was methadone, may

apply, upon notice to the appropriate district attorney, for

resentencing in the court which originally imposed sentence.

Such resentencing shall, unless substantial justice dictates

otherwise, be pursuant to the current provisions of the penal law, and

shall include credit for any jail time incurred upon the subject

conviction as well as credit for any period of incarceration incurred

pursuant to the sentence originally imposed.

In cases where the proof before the court is not available or is not

sufficiently reliable to determine the amount of methadone present in

any preparation, compound, mixture or substance containing methadone,

there shall exist a rebuttable presumption that each ounce of the

preparation, compound, mixture or substance contained sixty milligrams

of methadone.

Authorized dispositions; resentencing of certain persons

convicted of specified controlled substance offenses.

a. Any person convicted of an offense as defined in section 115.05,

220.16, 220.18, 220.39 or 220.41 of this chapter or of an attempt

thereof, for an act committed on or after September first, nineteen

hundred seventy-three but prior to the date on which the provisions of

this section become effective, may, upon notice to the appropriate

district attorney, apply for resentencing in the court which originally

imposed sentence. Such resentencing shall be in accordance with the

provisions of subdivision (b) of this section and shall include credit

for any jail time incurred upon the subject conviction as well as credit

for any period of incarceration incurred pursuant to the sentence

originally imposed.

b. A court, upon an application specified in subdivision (a) of this

section may resentence a person as follows:

(i) if the conviction was for a class A-III offense the court may

impose a new maximum term which shall be no less than three times the

amount of the minimum term imposed in the original sentence and no more

than twenty-five years;

(ii) if the conviction was for a class A-II offense the court may

impose a new minimum term which shall be no less than three years

imprisonment and no more than eight and one-third years;

(iii) upon resentence of a person as specified in paragraph (i) of

this subdivision the court shall resentence the person to the same

minimum term previously imposed;

(iv) upon resentence of a person as specified in paragraph (ii) of

this subdivision the court shall impose a maximum term of life

imprisonment;

(v) if the conviction was for an offense as specified in section

115.05 of this chapter and the offense which was the object of the

criminal facilitation was a class A-III felony then the court shall set

aside the conviction and substitute it with a conviction for violation

of section 115.01 or 115.00 of this chapter, whichever is appropriate

under the facts of the case, and impose a sentence in accordance with

those provisions.

c. Upon resentence as provided in this section the court may not

impose a sentence greater than the sentence previously imposed.

Authorized disposition; juvenile offender.

1. When a juvenile offender is convicted of a crime, the court shall

sentence the defendant to imprisonment in accordance with section 70.05

or sentence him upon a youthful offender finding in accordance with

section 60.02 of this chapter.

2. Subdivision one of this section shall apply when sentencing a

juvenile offender notwithstanding the provisions of any other law that

deals with the authorized sentence for persons who are not juvenile

offenders. Provided, however, that the limitation prescribed by this

section shall not be deemed or construed to bar use of a conviction of a

juvenile offender, other than a juvenile offender who has been

adjudicated a youthful offender pursuant to section 720.20 of the

criminal procedure law, as a previous or predicate felony offender under

section 70.04, 70.06, 70.08 or 70.10, when sentencing a person who

commits a felony after he has reached the age of sixteen.

Authorized disposition; adolescent offender.

When an adolescent offender is convicted of an offense, the court

shall sentence the defendant to any sentence authorized to be imposed on

a person who committed such offense at age eighteen or older. When a

sentence is imposed, the court shall consider the age of the defendant

in exercising its discretion at sentencing.

Authorized dispositions; criminal possession of a weapon in the

fourth degree.

When a person is to be sentenced upon a conviction of the crime of

criminal possession of a weapon in the fourth degree as defined in

subdivision one of section 265.01 as a result of a plea of guilty

entered in satisfaction of an indictment or count thereof charging the

defendant with the class D violent felony offense of criminal possession

of a weapon in the third degree as defined in subdivision four of

section 265.02, the court must sentence the defendant in accordance with

the provisions of section 70.15.

Authorized dispositions; certain criminal possession of a

weapon in the third degree offenders.

When a person is to be sentenced upon conviction of the crime of

criminal possession of a weapon in the third degree as defined in

subdivision ten of section 265.02 of this chapter, the court must

sentence such defendant to a determinate sentence as provided in

subparagraph (ii) of paragraph (c) of subdivision three of section 70.02

of this chapter, unless a greater minimum sentence is otherwise required

by another provision of this chapter.

Authorized disposition; alternative sentence; domestic violence

cases.

1. Notwithstanding any other provision of law, where a court is

imposing sentence upon a person pursuant to section 70.00, 70.02, 70.06

or subdivision two or three of section 70.71 of this title, other than

for an offense defined in section 125.26, 125.27, subdivision five of

section 125.25, or article 490 of this chapter, or for an offense which

would require such person to register as a sex offender pursuant to

article six-C of the correction law, an attempt or conspiracy to commit

any such offense, and is authorized or required pursuant to sections

70.00, 70.02, 70.06 or subdivision two or three of section 70.71 of this

title to impose a sentence of imprisonment, the court, upon a

determination following a hearing that (a) at the time of the instant

offense, the defendant was a victim of domestic violence subjected to

substantial physical, sexual or psychological abuse inflicted by a

member of the same family or household as the defendant as such term is

defined in subdivision one of section 530.11 of the criminal procedure

law; (b) such abuse was a significant contributing factor to the

defendant's criminal behavior; (c) having regard for the nature and

circumstances of the crime and the history, character and condition of

the defendant, that a sentence of imprisonment pursuant to section

70.00, 70.02, 70.06 or subdivision two or three of section 70.71 of this

title would be unduly harsh may instead impose a sentence in accordance

with this section.

A court may determine that such abuse constitutes a significant

contributing factor pursuant to paragraph (b) of this subdivision

regardless of whether the defendant raised a defense pursuant to article

thirty-five, article forty, or subdivision one of section 125.25 of this

chapter.

At the hearing to determine whether the defendant should be sentenced

pursuant to this section, the court shall consider oral and written

arguments, take testimony from witnesses offered by either party, and

consider relevant evidence to assist in making its determination.

Reliable hearsay shall be admissible at such hearings.

2. Where a court would otherwise be required to impose a sentence

pursuant to section 70.02 of this title, the court may impose a definite

sentence of imprisonment of one year or less, or probation in accordance

with the provisions of section 65.00 of this title, or may fix a

determinate term of imprisonment as follows:

(a) For a class B felony, the term must be at least one year and must

not exceed five years;

(b) For a class C felony, the term must be at least one year and must

not exceed three and one-half years;

(c) For a class D felony, the term must be at least one year and must

not exceed two years; and

(d) For a class E felony, the term must be one year and must not

exceed one and one-half years.

3. Where a court would otherwise be required to impose a sentence for

a class A felony offense pursuant to section 70.00 of this title, the

court may fix a determinate term of imprisonment of at least five years

and not to exceed fifteen years.

4. Where a court would otherwise be required to impose a sentence for

a class A felony offense pursuant to subparagraph (i) of paragraph (b)

of subdivision two of section 70.71 of this title, the court may fix a

determinate term of imprisonment of at least five years and not to

exceed eight years.

5. Where a court would otherwise be required to impose a sentence for

a class A felony offense pursuant to subparagraph (i) of paragraph (b)

of subdivision three of section 70.71 of this title, the court may fix a

determinate term of imprisonment of at least five years and not to

exceed twelve years.

6. Where a court would otherwise be required to impose a sentence for

a class A felony offense pursuant to subparagraph (ii) of paragraph (b)

of subdivision two of section 70.71 of this title, the court may fix a

determinate term of imprisonment of at least one year and not to exceed

three years.

7. Where a court would otherwise be required to impose a sentence for

a class A felony offense pursuant to subparagraph (ii) of paragraph (b)

of subdivision three of section 70.71 of this title, the court may fix a

determinate term of imprisonment of at least three years and not to

exceed six years.

8. Where a court would otherwise be required to impose a sentence

pursuant to subdivision six of section 70.06 of this title, the court

may fix a term of imprisonment as follows:

(a) For a class B felony, the term must be at least three years and

must not exceed eight years;

(b) For a class C felony, the term must be at least two and one-half

years and must not exceed five years;

(c) For a class D felony, the term must be at least two years and must

not exceed three years;

(d) For a class E felony, the term must be at least one and one-half

years and must not exceed two years.

9. Where a court would otherwise be required to impose a sentence for

a class B, C, D or E felony offense pursuant to section 70.00 of this

title, the court may impose a sentence in accordance with the provisions

of subdivision two of section 70.70 of this title.

10. Except as provided in subdivision seven of this section, where a

court would otherwise be required to impose a sentence pursuant to

subdivision three of section 70.06 of this title, the court may impose a

sentence in accordance with the provisions of subdivision three of

section 70.70 of this title.

11. Where a court would otherwise be required to impose a sentence

pursuant to subdivision three of section 70.06 of this title, where the

prior felony conviction was for a felony offense defined in section

70.02 of this title, the court may impose a sentence in accordance with

the provisions of subdivision four of section 70.70 of this title.

Authorized dispositions; felony sex offenses.

When a person is to be sentenced upon a conviction for any felony

defined in article one hundred thirty of this chapter, including a

sexually motivated felony, or patronizing a person for prostitution in

the first degree as defined in section 230.06 of this chapter,

aggravated patronizing a minor for prostitution in the third degree as

defined in section 230.11 of this chapter, aggravated patronizing a

minor for prostitution in the second degree as defined in section 230.12

of this chapter, aggravated patronizing a minor for prostitution in the

first degree as defined in section 230.13 of this chapter, incest in the

second degree as defined in section 255.26 of this chapter, or incest in

the first degree as defined in section 255.27 of this chapter, or a

felony attempt or conspiracy to commit any of these crimes, the court

must sentence the defendant in accordance with the provisions of section

70.80 of this title.

Authorized dispositions; traffic infraction.

1. When a person is convicted of a traffic infraction, the sentence of

the court shall be as follows:

(a) A period of conditional discharge, as provided in article

sixty-five; or

(b) Unconditional discharge as provided in section 65.20; or

(c) A fine or a sentence to a term of imprisonment, or both, as

prescribed in and authorized by the provision that defines the

infraction; or

(d) A sentence of intermittent imprisonment, as provided in article

eighty-five.

2. Where a sentence of conditional discharge is imposed for a traffic

infraction, all incidents of the sentence shall be the same as would be

applicable if the sentence were for a violation.

Authorized dispositions; driving while intoxicated or aggravated

driving while intoxicated.

Notwithstanding paragraph (d) of subdivision two of section 60.01 of

this article, when a person is to be sentenced upon a conviction for a

violation of subdivision two, two-a or three of section eleven hundred

ninety-two of the vehicle and traffic law, the court may sentence such

person to a period of imprisonment authorized by article seventy of this

title and shall sentence such person to a period of probation or

conditional discharge in accordance with the provisions of section 65.00

of this title and shall order the installation and maintenance of a

functioning ignition interlock device. Such period of probation or

conditional discharge shall run consecutively to any period of

imprisonment and shall commence immediately upon such person's release

from imprisonment.

Authorized dispositions; corporation.

When a corporation is convicted of an offense, the sentence of the

court shall be as follows:

(a) A fine authorized by section 80.10; or

(b) Where authorized by section 65.05, a period of conditional

discharge as provided in that section; or

(c) Where authorized by section 65.20, unconditional discharge as

provided in that section.

In any case where a corporation has been sentenced to a period of

conditional discharge and such sentence is revoked, the court shall

sentence the corporation to pay a fine.

Restitution and reparation.

1. In addition to any of the dispositions authorized by this article,

the court shall consider restitution or reparation to the victim of the

crime and may require restitution or reparation as part of the sentence

imposed upon a person convicted of an offense, and after providing the

district attorney with an opportunity to be heard in accordance with the

provisions of this subdivision, require the defendant to make

restitution of the fruits of his or her offense or reparation for the

actual out-of-pocket loss caused thereby and, in the case of a violation

of section 190.78, 190.79, 190.80, 190.82 or 190.83 of this chapter, any

costs or losses incurred due to any adverse action taken against the

victim. The district attorney shall where appropriate, advise the court

at or before the time of sentencing that the victim seeks restitution or

reparation, the extent of injury or economic loss or damage of the

victim, and the amount of restitution or reparation sought by the victim

in accordance with his or her responsibilities under subdivision two of

section 390.50 of the criminal procedure law and article twenty-three of

the executive law. The court shall hear and consider the information

presented by the district attorney in this regard. In that event, or

when the victim impact statement reports that the victim seeks

restitution or reparation, the court shall require, unless the interests

of justice dictate otherwise, in addition to any of the dispositions

authorized by this article that the defendant make restitution of the

fruits of the offense and reparation for the actual out-of-pocket loss

and, in the case of a violation of section 190.78, 190.79, 190.80,

190.82 or 190.83 of this chapter, any costs or losses incurred due to

any adverse action, caused thereby to the victim. In the event that

restitution or reparation are not ordered, the court shall clearly state

its reasons on the record. Adverse action as used in this subdivision

shall mean and include actual loss incurred by the victim, including an

amount equal to the value of the time reasonably spent by the victim

attempting to remediate the harm incurred by the victim from the

offense, and the consequential financial losses from such action.

2. Whenever the court requires restitution or reparation to be made,

the court must make a finding as to the dollar amount of the fruits of

the offense and the actual out-of-pocket loss to the victim caused by

the offense. In making this finding, the court must consider any victim

impact statement provided to the court. If the record does not contain

sufficient evidence to support such finding or upon request by the

defendant, the court must conduct a hearing upon the issue in accordance

with the procedure set forth in section 400.30 of the criminal procedure

law.

3. The provisions of sections 420.10, 420.20 and 420.30 of the

criminal procedure law shall apply in the collection and remission of

restitution and reparation.

4. For purposes of the imposition, determination and collection of

restitution or reparation, the following definitions shall apply:

(a) the term "offense" shall include the offense for which a defendant

was convicted, as well as any other offense that is part of the same

criminal transaction or that is contained in any other accusatory

instrument disposed of by any plea of guilty by the defendant to an

offense.

(b) the term "victim" shall include the victim of the offense, the

representative of a crime victim as defined in subdivision six of

section six hundred twenty-one of the executive law, an individual whose

identity was assumed or whose personal identifying information was used

in violation of section 190.78, 190.79 or 190.80 of this chapter, or any

person who has suffered a financial loss as a direct result of the acts

of a defendant in violation of section 190.78, 190.79, 190.80, 190.82 or

190.83 of this chapter, a good samaritan as defined in section six

hundred twenty-one of the executive law and the office of victim

services or other governmental agency that has received an application

for or has provided financial assistance or compensation to the victim.

A victim shall also mean any owner or lawful producer of a master

recording, or a trade association that represents such owner or lawful

producer, that has suffered injury as a result of an offense as defined

in article two hundred seventy-five of this chapter.

5. (a) Except upon consent of the defendant or as provided in

paragraph (b) of this subdivision, or as a condition of probation or

conditional discharge as provided in paragraph (g) of subdivision two of

section 65.10 of this chapter, the amount of restitution or reparation

required by the court shall not exceed fifteen thousand dollars in the

case of a conviction for a felony, or ten thousand dollars in the case

of a conviction for any offense other than a felony. Notwithstanding the

provisions of this subdivision, if an officer of a school district is

convicted of violating any section of article one hundred fifty-five of

this chapter where the victim of such crime is such officer's school

district, the court may require an amount of restitution up to the full

amount of the fruits of the offense or reparation up to the full amount

of the actual out-of-pocket loss suffered by the victim, provided

further that in such case the provisions of paragraph (b) of this

subdivision shall not apply.

(b) The court in its discretion may impose restitution or reparation

in excess of the amounts specified in paragraph (a) of this subdivision,

provided however that the amount in excess must be limited to the return

of the victim's property, including money, or the equivalent value

thereof; and reimbursement for medical expenses actually incurred by the

victim prior to sentencing as a result of the offense committed by the

defendant.

(c) If a corporation is found guilty of an offense involving the death

or serious physical injury of an employee in violation of subparagraph

(iv) of paragraph (c) of subdivision two of section 20.20 of this

chapter, the court may order restitution or reparation in excess of the

amounts specified in paragraphs (a) and (b) of this subdivision.

6. Any payment made as restitution or reparation pursuant to this

section shall not limit, preclude or impair any liability for damages in

any civil action or proceeding for an amount in excess of such payment.

7. In the event that the court requires restitution or reparation to

be made to a person and that person dies prior to the completion of said

restitution or reparation, the remaining payments shall be made to the

estate of the deceased.

8. The court shall in all cases where restitution or reparation is

imposed direct as part of the disposition that the defendant pay a

designated surcharge of five percent of the entire amount of a

restitution or reparation payment to the official or organization

designated pursuant to subdivision eight of section 420.10 of the

criminal procedure law. The designated surcharge shall not exceed five

percent of the amount actually collected. Upon the filing of an

affidavit of the official or organization designated pursuant to

subdivision eight of section 420.10 of the criminal procedure law

demonstrating that the actual cost of the collection and administration

of restitution or reparation in a particular case exceeds five percent

of the entire amount of the payment or the amount actually collected, as

the case may be, the court shall direct that the defendant pay an

additional surcharge of not more than five percent of the entire amount

of a restitution or reparation payment to such official or organization,

or the actual cost of collection or administration, whichever is less

unless, upon application of the defendant, the court determines that

imposition of such additional surcharge would cause undue hardship to

the defendant, or any other person who is financially supported by the

defendant, or would otherwise not be in the interest of justice. Such

additional surcharge, when added to the initial five percent surcharge,

shall not exceed ten percent of the amount actually collected.

9. If the offense of which a person is convicted is a class A, class

B, class C, or class D felony involving the sale of a controlled

substance, as defined in article two hundred twenty of this chapter, and

no other victim who is a person is seeking restitution in the case, the

term "victim" as used in this section, in addition to its ordinary

meaning, shall mean any law enforcement agency of the state of New York

or of any subdivision thereof which has expended funds in the purchase

of any controlled substance from such person or his agent as part of the

investigation leading to such conviction. Any restitution which may be

required to be made to a law enforcement agency pursuant to this section

shall be limited to the amount of funds expended in the actual purchase

of such controlled substance by such law enforcement agency, less the

amount of any funds which have been or will be recovered from any other

source, and shall not include a designated surcharge pursuant to

subdivision eight of this section. Any law enforcement agency seeking

restitution pursuant to this section shall file with the court and the

district attorney an affidavit stating that funds expended in the actual

purchase of a controlled substance for which restitution is being sought

have not been and will not be recovered from any other source or in any

other civil or criminal proceeding. Any law enforcement agency receiving

restitution pursuant to this section shall promptly transmit to the

commissioner of the division of criminal justice services a report

stating the dollar amount of the restitution received.

10. If the offense of which a person is convicted is defined in

section 150.10, 150.15 or 150.20 of this chapter, and no other victim

who is a person is seeking restitution in the case, the term "victim" as

used in this section, in addition to its ordinary meaning, shall mean

any municipality or volunteer fire company which has expended funds or

will expend funds for the purpose of restoration, rehabilitation or

clean-up of the site of the arson. Any restitution which may be required

to be made to a municipality or volunteer fire company pursuant to this

section shall be limited to the amount of funds reasonably expended or

to be expended for the purpose of restoration, rehabilitation or

clean-up of the site of the arson, less the amount of any funds which

have been or will be recovered from any other source, and shall not

include a designated surcharge pursuant to subdivision eight of this

section. Any municipality or volunteer fire company seeking restitution

pursuant to this section shall file with the court, district attorney

and defense counsel an affidavit stating that the funds reasonably

expended or to be expended for which restitution is being sought have

not been and will not be recovered from any other source or in any other

civil or criminal proceeding. For the purposes of this subdivision,

"volunteer fire company" means a fire company as defined in paragraph a

of subdivision two of section one hundred of the general municipal law.

11. Notwithstanding any other provision of this section to the

contrary, when a person is convicted of harming an animal trained to aid

a person with a disability in the second degree as defined in section

195.11 of this chapter, or harming an animal trained to aid a person

with a disability in the first degree as defined in section 195.12 of

this chapter, the court, in addition to any other sentence, shall order

the payment of restitution to the person with a disability who was aided

by such animal.

12. If the offense of which a person is convicted is defined in

section 155.25, 155.30, 155.35, 155.40 or 155.42 of this chapter, and

the property taken is timber, the court may upon conviction, in addition

to any other sentence, direct the defendant to pay the rightful owner of

such timber an amount equal to treble the stumpage value of the timber

stolen as defined in section 71-0703 of the environmental conservation

law and for any permanent and substantial damage caused to the land or

the improvements thereon as a result of such violation. Such reparations

shall be of such kind, nature and extent as will reasonably restore the

lands affected by the violation to their condition immediately before

the violation and may be made by physical restoration of such lands

and/or by the assessment of monetary payment to make such restoration.

13. If the offense of which a person is convicted is defined in

section 240.50, subdivision one or two of section 240.55, section

240.60, section 240.61, section 240.62 or section 240.63 of this

chapter, and no other victim who is a person is seeking restitution in

the case, the term "victim" as used in this subdivision, in addition to

the ordinary meaning, shall mean any school, municipality, fire

district, fire company, fire corporation, ambulance association,

ambulance corporation, or other legal or public entity engaged in

providing emergency services which has expended funds for the purpose of

responding to a false report of an incident or false bomb as defined in

section 240.50, subdivision one or two of section 240.55, section

240.60, section 240.61, section 240.62, or section 240.63 of this

chapter. Any restitution which may be required to be made to a victim

pursuant to this subdivision shall be limited to the amount of funds

reasonably expended for the purpose of responding to such false report

of incident or false bomb, less the amount of any funds which have been

or will be recovered from any other source and shall not include a

designated surcharge pursuant to subdivision eight of this section. Any

victim seeking restitution pursuant to this subdivision shall file with

the court, district attorney and defense counsel an affidavit stating

that the funds reasonably expended for which restitution is being sought

have not been and will not be recovered from any other source or in any

other civil or criminal proceeding, except as provided for by section

3-112 of the general obligations law.

14. Where a transfer of probation has occurred pursuant to section

410.80 of the criminal procedure law and the probationer is subject to a

restitution condition, the department of probation in the county in

which the order of restitution was imposed shall notify the appropriate

district attorney. Upon notification by the department of probation,

such district attorney shall file a certified copy of the judgment with

the clerk of the county in the receiving jurisdiction for purposes of

establishing a first lien and to permit institution of civil proceedings

pursuant to the provisions of subdivision six of section 420.10 of the

criminal procedure law.

Authorized disposition; making graffiti and possession of

graffiti instruments.

When a person is convicted of an offense defined in section 145.60 or

145.65 of this chapter, or of an attempt to commit such offense, and the

sentence imposed by the court for such conviction includes a sentence of

probation or conditional discharge, the court shall, where appropriate,

include as a condition of such sentence the defendant's successful

participation in a graffiti removal program pursuant to paragraph (h) of

subdivision two of section 65.10 of this chapter.

Authorized disposition; cemetery desecration.

When a person is convicted of an offense defined in section 145.22 or

145.23 of this chapter or of an attempt to commit such an offense, and

the sentence imposed by the court for such conviction includes a

sentence of probation or conditional discharge, such sentence shall,

where appropriate, be in accordance with paragraph (h) of subdivision

two of section 65.10 of this article as such section relates to cemetery

crime.

Civil penalties.

This article does not deprive the court of any authority conferred by

law to decree a forfeiture of property, suspend or cancel a license,

remove a person from office, or impose any other civil penalty and any

appropriate order exercising such authority may be included as part of

the judgment of conviction.

Mandatory surcharge, sex offender registration fee, DNA databank

fee, supplemental sex offender victim fee and crime victim

assistance fee required in certain cases.

1. (a) Except as provided in section eighteen hundred nine of the

vehicle and traffic law and section 27.12 of the parks, recreation and

historic preservation law, whenever proceedings in an administrative

tribunal or a court of this state result in a conviction for a felony, a

misdemeanor, or a violation, as these terms are defined in section 10.00

of this chapter, there shall be levied at sentencing a mandatory

surcharge, sex offender registration fee, DNA databank fee and a crime

victim assistance fee in addition to any sentence required or permitted

by law, in accordance with the following schedule:

(i) a person convicted of a felony shall pay a mandatory surcharge of

three hundred dollars and a crime victim assistance fee of twenty-five

dollars;

(ii) a person convicted of a misdemeanor shall pay a mandatory

surcharge of one hundred seventy-five dollars and a crime victim

assistance fee of twenty-five dollars;

(iii) a person convicted of a violation shall pay a mandatory

surcharge of ninety-five dollars and a crime victim assistance fee of

twenty-five dollars;

(iv) a person convicted of a sex offense as defined by subdivision two

of section one hundred sixty-eight-a of the correction law or a sexually

violent offense as defined by subdivision three of section one hundred

sixty-eight-a of the correction law shall, in addition to a mandatory

surcharge and crime victim assistance fee, pay a sex offender

registration fee of fifty dollars.

(v) a person convicted of a designated offense as defined by

subdivision seven of section nine hundred ninety-five of the executive

law shall, in addition to a mandatory surcharge and crime victim

assistance fee, pay a DNA databank fee of fifty dollars.

(b) When the felony or misdemeanor conviction in subparagraphs (i),

(ii) or (iv) of paragraph (a) of this subdivision results from an

offense contained in article one hundred thirty of this chapter, incest

in the third, second or first degree as defined in sections 255.25,

255.26 and 255.27 of this chapter or an offense contained in article two

hundred sixty-three of this chapter, the person convicted shall pay a

supplemental sex offender victim fee of one thousand dollars in addition

to the mandatory surcharge and any other fee.

2. Where a person is convicted of two or more crimes or violations

committed through a single act or omission, or through an act or

omission which in itself constituted one of the crimes or violations and

also was a material element of the other, the court shall impose a

mandatory surcharge and a crime victim assistance fee, and where

appropriate a supplemental sex offender victim fee, in accordance with

the provisions of this section for the crime or violation which carries

the highest classification, and no other sentence to pay a mandatory

surcharge, crime victim assistance fee or supplemental sex offender

victim fee required by this section shall be imposed. Where a person is

convicted of two or more sex offenses or sexually violent offenses, as

defined by subdivisions two and three of section one hundred

sixty-eight-a of the correction law, 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, the court

shall impose only one sex offender registration fee. Where a person is

convicted of two or more designated offenses, as defined by subdivision

seven of section nine hundred ninety-five of the executive law,

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, the court shall impose only one DNA

databank fee.

3. The mandatory surcharge, sex offender registration fee, DNA

databank fee, crime victim assistance fee, and supplemental sex offender

victim fee provided for in subdivision one of this section shall be paid

to the clerk of the court or administrative tribunal that rendered the

conviction. Within the first ten days of the month following collection

of the mandatory surcharge, crime victim assistance fee, and

supplemental sex offender victim fee, the collecting authority shall

determine the amount of mandatory surcharge, crime victim assistance

fee, and supplemental sex offender victim fee collected and, if it is an

administrative tribunal, or a town or village justice court, it shall

then pay such money to the state comptroller who shall deposit such

money in the state treasury pursuant to section one hundred twenty-one

of the state finance law to the credit of the criminal justice

improvement account established by section ninety-seven-bb of the state

finance law. Within the first ten days of the month following collection

of the sex offender registration fee and DNA databank fee, the

collecting authority shall determine the amount of the sex offender

registration fee and DNA databank fee collected and, if it is an

administrative tribunal, or a town or village justice court, it shall

then pay such money to the state comptroller who shall deposit such

money in the state treasury pursuant to section one hundred twenty-one

of the state finance law to the credit of the general fund. If such

collecting authority is any other court of the unified court system, it

shall, within such period, pay such money attributable to the mandatory

surcharge or crime victim assistance fee to the state commissioner of

taxation and finance to the credit of the criminal justice improvement

account established by section ninety-seven-bb of the state finance law.

If such collecting authority is any other court of the unified court

system, it shall, within such period, pay such money attributable to the

sex offender registration fee and the DNA databank fee to the state

commissioner of taxation and finance to the credit of the general fund.

4. Any person who has paid a mandatory surcharge, sex offender

registration fee, DNA databank fee, a crime victim assistance fee or a

supplemental sex offender victim fee under the authority of this section

based upon a conviction that is subsequently reversed or who paid a

mandatory surcharge, sex offender registration fee, DNA databank fee, a

crime victim assistance fee or supplemental sex offender victim fee

under the authority of this section which is ultimately determined not

to be required by this section shall be entitled to a refund of such

mandatory surcharge, sex offender registration fee, DNA databank fee,

crime victim assistance fee or supplemental sex offender victim fee upon

application, in the case of a town or village court, to the state

comptroller. The state comptroller shall require such proof as is

necessary in order to determine whether a refund is required by law. In

all other cases, such application shall be made to the department,

agency or court that collected such surcharge or fee. Such department,

agency or court shall initiate the refund process and the state

comptroller shall pay the refund pursuant to subdivision fifteen of

section eight of the state finance law.

5. When a person who is convicted of a crime or violation and

sentenced to a term of imprisonment has failed to pay the mandatory

surcharge, sex offender registration fee, DNA databank fee, crime victim

assistance fee or supplemental sex offender victim fee required by this

section, the clerk of the court that rendered the conviction shall

notify the superintendent or the municipal official of the facility

where the person is confined. The superintendent or the municipal

official shall cause any amount owing to be collected from such person

during his or her term of imprisonment from moneys to the credit of an

incarcerated individuals' fund or such moneys as may be earned by a

person in a work release program pursuant to section eight hundred sixty

of the correction law. Such moneys attributable to the mandatory

surcharge or crime victim assistance fee shall be paid over to the state

comptroller to the credit of the criminal justice improvement account

established by section ninety-seven-bb of the state finance law and such

moneys attributable to the sex offender registration fee or DNA databank

fee shall be paid over to the state comptroller to the credit of the

general fund, except that any such moneys collected which are

surcharges, sex offender registration fees, DNA databank fees, crime

victim assistance fees or supplemental sex offender victim fees levied

in relation to convictions obtained in a town or village justice court

shall be paid within thirty days after the receipt thereof by the

superintendent or municipal official of the facility to the justice of

the court in which the conviction was obtained. For the purposes of

collecting such mandatory surcharge, sex offender registration fee, DNA

databank fee, crime victim assistance fee and supplemental sex offender

victim fee, the state shall be legally entitled to the money to the

credit of an incarcerated individuals' fund or money which is earned by

an incarcerated individual in a work release program. For purposes of

this subdivision, the term "incarcerated individuals' fund" shall mean

moneys in the possession of an incarcerated individual at the time of

his or her admission into such facility, funds earned by him or her as

provided for in section one hundred eighty-seven of the correction law

and any other funds received by him or her or on his or her behalf and

deposited with such superintendent or municipal official.

6. Notwithstanding any other provision of this section, where a person

has made restitution or reparation pursuant to section 60.27 of this

article, such person shall not be required to pay a mandatory surcharge

or a crime victim assistance fee.

7. Notwithstanding the provisions of subdivision one of section 60.00

of this article, the provisions of subdivision one of this section shall

not apply to a violation under any law other than this chapter.

8. Subdivision one of section 130.10 of the criminal procedure law

notwithstanding, at the time that the mandatory surcharge, sex offender

registration fee or DNA databank fee, crime victim assistance fee or

supplemental sex offender victim fee is imposed a town or village court

may, and all other courts shall, issue and cause to be served upon the

person required to pay the mandatory surcharge, sex offender

registration fee or DNA databank fee, crime victim assistance fee or

supplemental sex offender victim fee, a summons directing that such

person appear before the court regarding the payment of the mandatory

surcharge, sex offender registration fee or DNA databank fee, crime

victim assistance fee or supplemental sex offender victim fee, if after

sixty days from the date it was imposed it remains unpaid. The

designated date of appearance on the summons shall be set for the first

day court is in session falling after the sixtieth day from the

imposition of the mandatory surcharge, sex offender registration fee or

DNA databank fee, crime victim assistance fee or supplemental sex

offender victim fee. The summons shall contain the information required

by subdivision two of section 130.10 of the criminal procedure law

except that in substitution for the requirement of paragraph (c) of such

subdivision the summons shall state that the person served must appear

at a date, time and specific location specified in the summons if after

sixty days from the date of issuance the mandatory surcharge, sex

offender registration fee or DNA databank fee, crime victim assistance

fee or supplemental sex offender victim fee remains unpaid. The court

shall not issue a summons under this subdivision to a person who is

being sentenced to a term of confinement in excess of sixty days in jail

or in the department of corrections and community supervision. The

mandatory surcharges, sex offender registration fee and DNA databank

fees, crime victim assistance fees and supplemental sex offender victim

fees for those persons shall be governed by the provisions of section

60.30 of this article.

9. Notwithstanding the provisions of subdivision one of this section,

in the event a proceeding is in a town or village court, such court

shall add an additional five dollars to the surcharges imposed by such

subdivision one.

Authorized dispositions; driving while intoxicated offenses.

Where a court is imposing a sentence for a violation of subdivision

two, two-a, or three of section eleven hundred ninety-two of the vehicle

and traffic law pursuant to sections 65.00 or 65.05 of this title and,

as a condition of such sentence, orders the installation and maintenance

of an ignition interlock device, the court may impose any other penalty

authorized pursuant to section eleven hundred ninety-three of the

vehicle and traffic law.

Authorized disposition; certain offenses.

When a person has been charged with an offense and the elements of

such offense meet the criteria of an "eligible offense" and such person

qualifies as an "eligible person" as such terms are defined in section

four hundred fifty-eight-l of the social services law, the court may, as

a condition of adjournment in contemplation of dismissal in accordance

with section 170.55 of the criminal procedure law, or a condition of

probation or a conditional discharge, direct that the defendant

participate in an education reform program pursuant to subdivision two

of section four hundred fifty-eight-l of the social services law.

Sentence of probation.

1. Criteria. (a) Except as otherwise required by section 60.04 or

60.05 of this title, and except as provided by paragraph (b) hereof, the

court may sentence a person to a period of probation upon conviction of

any crime if the court, having regard to the nature and circumstances of

the crime and to the history, character and condition of the defendant,

is of the opinion that:

(i) Institutional confinement for the term authorized by law of the

defendant is or may not be necessary for the protection of the public;

(ii) the defendant is in need of guidance, training or other

assistance which, in his case, can be effectively administered through

probation supervision; and

(iii) such disposition is not inconsistent with the ends of justice.

(b) The court, with the concurrence of either the administrative judge

of the court or of the judicial district within which the court is

situated or such administrative judge as the presiding justice of the

appropriate appellate division shall designate, may sentence a person to

a period of probation upon conviction of a class A-II felony defined in

article two hundred twenty, the class B felony defined in section 220.48

of this chapter or any other class B felony defined in article two

hundred twenty of this chapter where the person is a second felony drug

offender as defined in paragraph (b) of subdivision one of section 70.70

of this chapter, if the prosecutor either orally on the record or in a

writing filed with the indictment recommends that the court sentence

such person to a period of probation upon the ground that such person

has or is providing material assistance in the investigation,

apprehension or prosecution of any person for a felony defined in

article two hundred twenty or the attempt or the conspiracy to commit

any such felony, and if the court, having regard to the nature and

circumstances of the crime and to the history, character and condition

of the defendant is of the opinion that:

(i) Institutional confinement of the defendant is not necessary for

the protection of the public;

(ii) The defendant is in need of guidance, training or other

assistance which, in his case, can be effectively administered through

probation supervision;

(iii) The defendant has or is providing material assistance in the

investigation, apprehension or prosecution of a person for a felony

defined in article two hundred twenty or the attempt or conspiracy to

commit any such felony; and

(iv) Such disposition is not inconsistent with the ends of justice.

* Provided, however, that the court shall not, except to the extent

authorized by paragraph (d) of subdivision two of section 60.01 of this

chapter, impose a sentence of probation in any case where it sentences a

defendant for more than one crime and imposes a sentence of imprisonment

for any one of the crimes, or where the defendant is subject to an

undischarged indeterminate or determinate sentence of imprisonment which

was imposed at a previous time by a court of this state and has more

than one year to run.

* NB Effective until September 1, 2027

* Provided, however, that the court shall not, except to the extent

authorized by paragraph (d) of subdivision two of section 60.01 of this

chapter, impose a sentence of probation in any case where it sentences a

defendant for more than one crime and imposes a sentence of imprisonment

for any one of the crimes, or where the defendant is subject to an

undischarged indeterminate or reformatory sentence of imprisonment which

was imposed at a previous time by a court of this state and has more

than one year to run.

* NB Effective September 1, 2027

2. Sentence. When a person is sentenced to a period of probation the

court shall, except to the extent authorized by paragraph (d) of

subdivision two of section 60.01 of this chapter, impose the period

authorized by subdivision three of this section and shall specify, in

accordance with section 65.10, the conditions to be complied with. The

court may modify or enlarge the conditions or, if the defendant commits

an additional offense or violates a condition, revoke the sentence at

any time prior to the expiration or termination of the period of

probation.

3. Periods of probation. Unless terminated sooner in accordance with

the criminal procedure law, the period of probation shall be as follows:

(a) (i) For a felony, other than a class A-II felony defined in

article two hundred twenty of this chapter or the class B felony defined

in section 220.48 of this chapter, or any other class B felony defined

in article two hundred twenty of this chapter committed by a second

felony drug offender, or a sexual assault, the period of probation shall

be a term of three, four or five years;

(ii) For a class A-II felony drug offender as defined in paragraph (a)

of subdivision one of section 70.71 of this chapter as described in

paragraph (b) of subdivision one of this section, or a class B felony

committed by a second felony drug offender described in paragraph (b) of

subdivision one of this section, the period of probation shall be life

and for a class B felony defined in section 220.48 of this chapter, the

period of probation shall be twenty-five years;

(iii) For a felony sexual assault, the period of probation shall be

ten years.

(b) (i) For a class A misdemeanor, other than a sexual assault, the

period of probation shall be a term of two or three years;

(ii) For a class A misdemeanor sexual assault, the period of probation

shall be six years.

(c) For a class B misdemeanor, the period of probation shall be one

year, except the period of probation shall be no less than one year and

no more than three years for the class B misdemeanor of public lewdness

as defined in section 245.00 of this chapter;

(d) For an unclassified misdemeanor, the period of probation shall be

a term of two or three years if the authorized sentence of imprisonment

is in excess of three months, otherwise the period of probation shall be

one year.

For the purposes of this section, the term "sexual assault" means an

offense defined in article one hundred thirty or two hundred

sixty-three, or in section 255.25, 255.26 or 255.27 of this chapter, or

an attempt to commit any of the foregoing offenses.

4. If during the periods of probation referenced in subparagraph (i)

of paragraph (a), subparagraph (i) of paragraph (b) and paragraph (d) of

subdivision three of this section an alleged violation is sustained

following a hearing pursuant to section 410.70 of the criminal procedure

law and the court continues or modifies the sentence, the court may

extend the remaining period of probation up to the maximum term

authorized by this section. Provided, however, a defendant shall receive

credit for the time during which he or she was supervised under the

original probation sentence prior to any declaration of delinquency and

for any time spent in custody pursuant to this article for an alleged

violation of probation.

5. In any case where a court pursuant to its authority under

subdivision four of section 60.01 of this chapter revokes probation and

sentences such person to imprisonment and probation, as provided in

paragraph (d) of subdivision two of section 60.01 of this chapter, the

period of probation shall be the remaining period of the original

probation sentence or one year whichever is greater.

Sentence of conditional discharge.

1. Criteria. (a) Except as otherwise required by section 60.05, the

court may impose a sentence of conditional discharge for an offense if

the court, having regard to the nature and circumstances of the offense

and to the history, character and condition of the defendant, is of the

opinion that neither the public interest nor the ends of justice would

be served by a sentence of imprisonment and that probation supervision

is not appropriate.

(b) When a sentence of conditional discharge is imposed for a felony,

the court shall set forth in the record the reasons for its action.

2. Sentence. Except to the extent authorized by paragraph (d) of

subdivision two of section 60.01 of this chapter, when the court imposes

a sentence of conditional discharge the defendant shall be released with

respect to the conviction for which the sentence is imposed without

imprisonment or probation supervision but subject, during the period of

conditional discharge, to such conditions as the court may determine.

The court shall impose the period of conditional discharge authorized by

subdivision three of this section and shall specify, in accordance with

section 65.10, the conditions to be complied with. If a defendant is

sentenced pursuant to paragraph (e) of subdivision two of section 65.10

of this chapter, the court shall require the administrator of the

program to provide written notice to the court of any violation of

program participation by the defendant. The court may modify or enlarge

the conditions or, if the defendant commits an additional offense or

violates a condition, revoke the sentence at any time prior to the

expiration or termination of the period of conditional discharge.

3. Periods of conditional discharge. Unless terminated sooner in

accordance with the criminal procedure law, the period of conditional

discharge shall be as follows:

(a) Three years in the case of a felony; and

(b) One year in the case of a misdemeanor or a violation.

Where the court has required, as a condition of the sentence, that the

defendant make restitution of the fruits of his or her offense or make

reparation for the loss caused thereby and such condition has not been

satisfied, the court, at any time prior to the expiration or termination

of the period of conditional discharge, may impose an additional period.

The length of the additional period shall be fixed by the court at the

time it is imposed and shall not be more than two years. All of the

incidents of the original sentence, including the authority of the court

to modify or enlarge the conditions, shall continue to apply during such

additional period.

Conditions of probation and of conditional discharge.

1. In general. The conditions of probation and of conditional

discharge shall be such as the court, in its discretion, deems

reasonably necessary to insure that the defendant will lead a

law-abiding life or to assist him to do so.

2. Conditions relating to conduct and rehabilitation. When imposing a

sentence of probation or of conditional discharge, the court shall, as a

condition of the sentence, consider restitution or reparation and may,

as a condition of the sentence, require that the defendant:

(a) Avoid injurious or vicious habits;

(b) Refrain from frequenting unlawful or disreputable places or

consorting with disreputable persons;

(c) Work faithfully at a suitable employment or faithfully pursue a

course of study or of vocational training that will equip him for

suitable employment;

(d) Undergo available medical or psychiatric treatment and remain in a

specified institution, when required for that purpose;

(e) Participate in an alcohol or substance abuse program or an

intervention program approved by the court after consultation with the

local probation department having jurisdiction, or such other public or

private agency as the court determines to be appropriate;

(e-1) Participate in a motor vehicle accident prevention course. The

court may require such condition where a person has been convicted of a

traffic infraction for a violation of article twenty-six of the vehicle

and traffic law where the commission of such violation caused the

serious physical injury or death of another person. For purposes of this

paragraph, the term "motor vehicle accident prevention course" shall

mean a motor vehicle accident prevention course approved by the

department of motor vehicles pursuant to article twelve-B of the vehicle

and traffic law;

(f) Support his dependents and meet other family responsibilities;

(g) Make restitution of the fruits of his or her offense or make

reparation, in an amount he can afford to pay, for the actual

out-of-pocket loss caused thereby. When restitution or reparation is a

condition of the sentence, the court shall fix the amount thereof, the

manner of performance, specifically state the date when restitution is

to be paid in full prior to the expiration of the sentence of probation

and may establish provisions for the early termination of a sentence of

probation or conditional discharge pursuant to the provisions of

subdivision three of section 410.90 of the criminal procedure law after

the restitution and reparation part of a sentence of probation or

conditional discharge has been satisfied. The court shall provide that

in the event the person to whom restitution or reparation is to be made

dies prior to the completion of said restitution or reparation, the

remaining payments shall be made to the estate of the deceased.

(h) Perform services for a public or not-for-profit corporation,

association, institution or agency, including but not limited to

services for the division of substance abuse services, services in an

appropriate community program for removal of graffiti from public or

private property, including any property damaged in the underlying

offense, or services for the maintenance and repair of real or personal

property maintained as a cemetery plot, grave, burial place or other

place of interment of human remains. Provided however, that the

performance of any such services shall not result in the displacement of

employed workers or in the impairment of existing contracts for

services, nor shall the performance of any such services be required or

permitted in any establishment involved in any labor strike or lockout.

The court may establish provisions for the early termination of a

sentence of probation or conditional discharge pursuant to the

provisions of subdivision three of section 410.90 of the criminal

procedure law after such services have been completed. Such sentence may

only be imposed upon conviction of a misdemeanor, violation, or class D

or class E felony, or a youthful offender finding replacing any such

conviction, where the defendant has consented to the amount and

conditions of such service;

(i) If a person under the age of twenty-one years, (i) resides with

his parents or in a suitable foster home or hostel as referred to in

section two hundred forty-four of the executive law, (ii) attends

school, (iii) spends such part of the period of the sentence as the

court may direct, but not exceeding two years, in a facility made

available by the division for youth pursuant to article nineteen-G of

the executive law, provided that admission to such facility may be made

only with the prior consent of the division for youth, (iv) attend a

non-residential program for such hours and pursuant to a schedule

prescribed by the court as suitable for a program of rehabilitation of

youth, (v) contribute to his own support in any home, foster home or

hostel;

(j) Post a bond or other security for the performance of any or all

conditions imposed;

(k) Observe certain specified conditions of conduct as set forth in an

order of protection issued pursuant to section 530.12 or 530.13 of the

criminal procedure law.

(k-1) Install and maintain a functioning ignition interlock device, as

that term is defined in section one hundred nineteen-a of the vehicle

and traffic law, in any vehicle owned or operated by the defendant if

the court in its discretion determines that such a condition is

necessary to ensure the public safety. The court may require such

condition only where a person has been convicted of a violation of

subdivision two, two-a or three of section eleven hundred ninety-two of

the vehicle and traffic law, or any crime defined by the vehicle and

traffic law or this chapter of which an alcohol-related violation of any

provision of section eleven hundred ninety-two of the vehicle and

traffic law is an essential element. The offender shall be required to

install and operate the ignition interlock device only in accordance

with section eleven hundred ninety-eight of the vehicle and traffic law.

(k-2) (i) Refrain, upon sentencing for a crime involving unlawful

sexual conduct committed against a metropolitan transportation authority

passenger, customer, or employee or a crime involving assault against a

metropolitan transportation authority employee, committed in or on any

facility or conveyance of the metropolitan transportation authority or a

subsidiary thereof or the New York city transit authority or a

subsidiary thereof, from using or entering any of such authority's

subways, trains, buses or other conveyances or facilities specified by

the court for a period of up to three years, or a specified period of

such probation or conditional discharge, whichever is less. For purposes

of this section, a crime involving assault shall mean an offense

described in article one hundred twenty of this chapter which has as an

element the causing of physical injury or serious physical injury to

another as well as the attempt thereof.

(ii) The court may, in its discretion, suspend, modify or cancel a

condition imposed under this paragraph in the interest of justice at any

time. If the person depends on the authority's subways, trains, buses,

or other conveyances or facilities for trips of necessity, including,

but not limited to, travel to or from medical or legal appointments,

school or training classes or places of employment, obtaining food,

clothing or necessary household items, or rendering care to family

members, the court may modify such condition to allow for a trip or

trips as in its discretion are necessary.

(iii) A person at liberty and subject to a condition under this

paragraph who applies, within thirty days after the date such condition

becomes effective, for a refund of any prepaid fare amounts rendered

unusable in whole or in part by such condition including, but not

limited to, a monthly pass, shall be issued a refund of the amounts so

prepaid.

(l) Satisfy any other conditions reasonably related to his

rehabilitation.

3. Conditions relating to supervision. When imposing a sentence of

probation the court, in addition to any conditions imposed pursuant to

subdivision two of this section, shall require as conditions of the

sentence, that the defendant:

(a) Report to a probation officer as directed by the court or the

probation officer and permit the probation officer to visit him at his

place of abode or elsewhere;

(b) Remain within the jurisdiction of the court unless granted

permission to leave by the court or the probation officer. Where a

defendant is granted permission to move or travel outside the

jurisdiction of the court, the defendant shall sign a written waiver of

extradition agreeing to waive extradition proceedings where such

proceedings are the result of the issuance of a warrant by the court

pursuant to subdivision two of section 410.40 of the criminal procedure

law based on an alleged violation of probation. Where any county or the

city of New York incurs costs associated with the return of any

probationer based on the issuance of a warrant by the court pursuant to

subdivision two of section 410.40 of the criminal procedure law, the

jurisdiction may collect the reasonable and necessary expenses involved

in connection with his or her transport, from the probationer; provided

that where the sentence of probation is not revoked pursuant to section

410.70 of the criminal procedure law no such expenses may be collected.

(c) Answer all reasonable inquiries by the probation officer and

notify the probation officer prior to any change in address or

employment.

4. Electronic monitoring. When imposing a sentence of probation the

court may, in addition to any conditions imposed pursuant to

subdivisions two and three of this section, require the defendant to

submit to the use of an electronic monitoring device and/or to follow a

schedule that governs the defendant's daily movement. Such condition may

be imposed only where the court, in its discretion, determines that

requiring the defendant to comply with such condition will advance

public safety, probationer control or probationer surveillance.

Electronic monitoring shall be used in accordance with uniform

procedures developed by the office of probation and correctional

alternatives.

4-a. Mandatory conditions for sex offenders. (a) When imposing a

sentence of probation or conditional discharge upon a person convicted

of an offense defined in article one hundred thirty, two hundred

thirty-five or two hundred sixty-three of this chapter, or section

255.25, 255.26 or 255.27 of this chapter, and the victim of such offense

was under the age of eighteen at the time of such offense or such person

has been designated a level three sex offender pursuant to subdivision

six of section 168-l of the correction law, the court shall require, as

a mandatory condition of such sentence, that such sentenced offender

shall refrain from knowingly entering into or upon any school grounds,

as that term is defined in subdivision fourteen of section 220.00 of

this chapter, or any other facility or institution primarily used for

the care or treatment of persons under the age of eighteen while one or

more of such persons under the age of eighteen are present, provided

however, that when such sentenced offender is a registered student or

participant or an employee of such facility or institution or entity

contracting therewith or has a family member enrolled in such facility

or institution, such sentenced offender may, with the written

authorization of his or her probation officer or the court and the

superintendent or chief administrator of such facility, institution or

grounds, enter such facility, institution or upon such grounds for the

limited purposes authorized by the probation officer or the court and

superintendent or chief officer. Nothing in this subdivision shall be

construed as restricting any lawful condition of supervision that may be

imposed on such sentenced offender.

(b) When imposing a sentence of probation or conditional discharge

upon a person convicted of an offense for which registration as a sex

offender is required pursuant to subdivision two or three of section one

hundred sixty-eight-a of the correction law, and the victim of such

offense was under the age of eighteen at the time of such offense or

such person has been designated a level three sex offender pursuant to

subdivision six of section one hundred sixty-eight-l of the correction

law or the internet was used to facilitate the commission of the crime,

the court shall require, as mandatory conditions of such sentence, that

such sentenced offender be prohibited from using the internet to access

pornographic material, access a commercial social networking website,

communicate with other individuals or groups for the purpose of

promoting sexual relations with persons under the age of eighteen, and

communicate with a person under the age of eighteen when such offender

is over the age of eighteen, provided that the court may permit an

offender to use the internet to communicate with a person under the age

of eighteen when such offender is the parent of a minor child and is not

otherwise prohibited from communicating with such child. Nothing in this

subdivision shall be construed as restricting any other lawful condition

of supervision that may be imposed on such sentenced offender. As used

in this subdivision, a "commercial social networking website" shall mean

any business, organization or other entity operating a website that

permits persons under eighteen years of age to be registered users for

the purpose of establishing personal relationships with other users,

where such persons under eighteen years of age may: (i) create web pages

or profiles that provide information about themselves where such web

pages or profiles are available to the public or to other users; (ii)

engage in direct or real time communication with other users, such as a

chat room or instant messenger; and (iii) communicate with persons over

eighteen years of age; provided, however, that, for purposes of this

subdivision, a commercial social networking website shall not include a

website that permits users to engage in such other activities as are not

enumerated herein.

5. Other conditions. When imposing a sentence of probation the court

may, in addition to any conditions imposed pursuant to subdivisions two,

three and four of this section, require that the defendant comply with

any other reasonable condition as the court shall determine to be

necessary or appropriate to ameliorate the conduct which gave rise to

the offense or to prevent the incarceration of the defendant.

5-a. Other conditions for sex offenders. When imposing a sentence of

probation upon a person convicted of an offense for which registration

as a sex offender is required pursuant to subdivision two or three of

section one hundred sixty-eight-a of the correction law, in addition to

any conditions required under subdivisions two, three, four, four-a and

five of this section, the court may require that the defendant comply

with a reasonable limitation on his or her use of the internet that the

court determines to be necessary or appropriate to ameliorate the

conduct which gave rise to the offense or to protect public safety,

provided that the court shall not prohibit such sentenced offender from

using the internet in connection with education, lawful employment or

search for lawful employment.

Calculation of periods of probation and of conditional

discharge.

1. A period of probation or a period or additional period of

conditional discharge commences on the day it is imposed. Multiple

periods, whether imposed at the same or at different times, shall run

concurrently.

2. When a person has violated the conditions of his or her probation

or conditional discharge and is declared delinquent by the court, the

declaration of delinquency shall interrupt the period of the sentence as

of the date of the delinquency and such interruption shall continue

until a final determination as to the delinquency has been made by the

court pursuant to a hearing held in accordance with the provisions of

the criminal procedure law. Any order for the installation and

maintenance of a functioning ignition interlock device imposed pursuant

to section 60.21 of this title shall remain in effect throughout the

delinquency and the court may extend the period of such installation and

maintenance by the period of the delinquency; provided, however, that

the defendant shall get credit for any period where the device was

installed and maintained during the delinquency.

* 3. In any case where a person who is under a sentence of probation

or of conditional discharge is also under an indeterminate or

determinate sentence of imprisonment, imposed for some other offense by

a court of this state the service of the sentence of imprisonment shall

satisfy the sentence of probation or of conditional discharge unless the

sentence of probation or of conditional discharge is revoked prior to

the next to occur of parole or conditional release under, or

satisfaction of, the sentence of imprisonment. Provided, however, that

the service of an indeterminate or determinate sentence of imprisonment

shall not satisfy a sentence of probation if the sentence of probation

was imposed at a time when the sentence of imprisonment had one year or

less to run.

* NB Effective until September 1, 2027

* 3. In any case where a person who is under a sentence of probation

or of conditional discharge is also under an indeterminate sentence of

imprisonment, or a reformatory sentence of imprisonment authorized by

section 75.00, imposed for some other offense by a court of this state

the service of the sentence of imprisonment shall satisfy the sentence

of probation or of conditional discharge unless the sentence of

probation or of conditional discharge is revoked prior to the next to

occur of parole or conditional release under, or satisfaction of, the

sentence of imprisonment. Provided, however, that the service of an

indeterminate or a reformatory sentence of imprisonment shall not

satisfy a sentence of probation if the sentence of probation was imposed

at a time when the sentence of imprisonment had one year or less to run.

* NB Effective September 1, 2027

Sentence of unconditional discharge.

1. Criteria. The court may impose a sentence of unconditional

discharge in any case where it is authorized to impose a sentence of

conditional discharge under section 65.05 if the court is of the opinion

that no proper purpose would be served by imposing any condition upon

the defendant's release.

When a sentence of unconditional discharge is imposed for a felony,

the court shall set forth in the record the reasons for its action.

2. Sentence. When the court imposes a sentence of unconditional

discharge, the defendant shall be released with respect to the

conviction for which the sentence is imposed without imprisonment, fine

or probation supervision. A sentence of unconditional discharge is for

all purposes a final judgment of conviction.

Sentence of imprisonment for felony.

* 1. Indeterminate sentence. Except as provided in subdivisions four,

five and six of this section or section 70.80 of this article, a

sentence of imprisonment for a felony, other than a felony defined in

article two hundred twenty or two hundred twenty-one of this chapter,

shall be an indeterminate sentence. When such a sentence is imposed, the

court shall impose a maximum term in accordance with the provisions of

subdivision two of this section and the minimum period of imprisonment

shall be as provided in subdivision three of this section.

* NB Effective until September 1, 2027

* 1. Indeterminate sentence. Except as provided in subdivisions four

and five of this section or section 70.80 of this article, a sentence of

imprisonment for a felony, other than a felony defined in article two

hundred twenty or two hundred twenty-one of this chapter, shall be an

indeterminate sentence. When such a sentence is imposed, the court shall

impose a maximum term in accordance with the provisions of subdivision

two of this section and the minimum period of imprisonment shall be as

provided in subdivision three of this section.

* NB Effective September 1, 2027

2. Maximum term of sentence. The maximum term of an indeterminate

sentence shall be at least three years and the term shall be fixed as

follows:

(a) For a class A felony, the term shall be life imprisonment;

(b) For a class B felony, the term shall be fixed by the court, and

shall not exceed twenty-five years;

(c) For a class C felony, the term shall be fixed by the court, and

shall not exceed fifteen years;

(d) For a class D felony, the term shall be fixed by the court, and

shall not exceed seven years; and

(e) For a class E felony, the term shall be fixed by the court, and

shall not exceed four years.

3. Minimum period of imprisonment. The minimum period of imprisonment

under an indeterminate sentence shall be at least one year and shall be

fixed as follows:

(a) In the case of a class A felony, the minimum period shall be fixed

by the court and specified in the sentence.

(i) For a class A-I felony, such minimum period shall not be less than

fifteen years nor more than twenty-five years; provided, however, that

(A) where a sentence, other than a sentence of death or life

imprisonment without parole, is imposed upon a defendant convicted of

murder in the first degree as defined in section 125.27 of this chapter

such minimum period shall be not less than twenty years nor more than

twenty-five years, and, (B) where a sentence is imposed upon a defendant

convicted of murder in the second degree as defined in subdivision five

of section 125.25 of this chapter or convicted of aggravated murder as

defined in section 125.26 of this chapter, the sentence shall be life

imprisonment without parole, and, (C) where a sentence is imposed upon a

defendant convicted of attempted murder in the first degree as defined

in article one hundred ten of this chapter and subparagraph (i), (ii) or

(iii) of paragraph (a) of subdivision one and paragraph (b) of

subdivision one of section 125.27 of this chapter or attempted

aggravated murder as defined in article one hundred ten of this chapter

and section 125.26 of this chapter such minimum period shall be not less

than twenty years nor more than forty years.

(ii) For a class A-II felony, such minimum period shall not be less

than three years nor more than eight years four months, except that for

the class A-II felony of predatory sexual assault as defined in section

130.95 of this chapter or the class A-II felony of predatory sexual

assault against a child as defined in section 130.96 of this chapter,

such minimum period shall be not less than ten years nor more than

twenty-five years.

(b) For any other felony, the minimum period shall be fixed by the

court and specified in the sentence and shall be not less than one year

nor more than one-third of the maximum term imposed.

4. Alternative definite sentence for class D and E felonies. When a

person, other than a second or persistent felony offender, is sentenced

for a class D or class E felony, and the court, having regard to the

nature and circumstances of the crime and to the history and character

of the defendant, is of the opinion that a sentence of imprisonment is

necessary but that it would be unduly harsh to impose an indeterminate

or determinate sentence, the court may impose a definite sentence of

imprisonment and fix a term of one year or less.

5. Life imprisonment without parole. Notwithstanding any other

provision of law, a defendant sentenced to life imprisonment without

parole shall not be or become eligible for parole or conditional

release. For purposes of commitment and custody, other than parole and

conditional release, such sentence shall be deemed to be an

indeterminate sentence. A defendant may be sentenced to life

imprisonment without parole upon conviction for the crime of murder in

the first degree as defined in section 125.27 of this chapter and in

accordance with the procedures provided by law for imposing a sentence

for such crime. A defendant who was eighteen years of age or older at

the time of the commission of the crime must be sentenced to life

imprisonment without parole upon conviction for the crime of terrorism

as defined in section 490.25 of this chapter, where the specified

offense the defendant committed is a class A-I felony; the crime of

criminal possession of a chemical weapon or biological weapon in the

first degree as defined in section 490.45 of this chapter; or the crime

of criminal use of a chemical weapon or biological weapon in the first

degree as defined in section 490.55 of this chapter; provided, however,

that nothing in this subdivision shall preclude or prevent a sentence of

death when the defendant is also convicted of the crime of murder in the

first degree as defined in section 125.27 of this chapter. A defendant

who was seventeen years of age or younger at the time of the commission

of the crime may be sentenced, in accordance with law, to the applicable

indeterminate sentence with a maximum term of life imprisonment. A

defendant must be sentenced to life imprisonment without parole upon

conviction for the crime of murder in the second degree as defined in

subdivision five of section 125.25 of this chapter or for the crime of

aggravated murder as defined in subdivision one of section 125.26 of

this chapter. A defendant may be sentenced to life imprisonment without

parole upon conviction for the crime of aggravated murder as defined in

subdivision two of section 125.26 of this chapter.

* 6. Determinate sentence. Except as provided in subdivision four of

this section and subdivisions two and four of section 70.02, when a

person is sentenced as a violent felony offender pursuant to section

70.02 or as a second violent felony offender pursuant to section 70.04

or as a second felony offender on a conviction for a violent felony

offense pursuant to section 70.06, the court must impose a determinate

sentence of imprisonment in accordance with the provisions of such

sections and such sentence shall include, as a part thereof, a period of

post-release supervision in accordance with section 70.45.

* NB Repealed September 1, 2027

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, a crime formerly 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, sex trafficking as

defined in paragraphs (a) and (b) of subdivision five of section 230.34,

sex trafficking of a child as defined in section 230.34-a, 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, firefighter

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, aggravated strangulation as defined

in section 121.13-a, 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,

a crime formerly 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, labor trafficking as defined in paragraphs (a) and (b)

of subdivision three of section 135.35, 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, aggravated

unpermitted use of indoor pyrotechnics in the first degree as defined in

section 405.18, and criminal manufacture, sale, or transport of an

undetectable firearm, rifle or shotgun as defined in section 265.50.

(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, 2027

* (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, 2027

(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, 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, or criminal manufacture,

sale, or transport of an undetectable firearm, rifle or shotgun as

defined in section 265.50 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.

Sentence of imprisonment for second violent felony offender.

1. Definition of second violent felony offender.

(a) A second violent felony offender is a person who stands convicted

of a violent felony offense as defined in subdivision one of section

70.02 after having previously been subjected to a predicate violent

felony conviction as defined in paragraph (b) of this subdivision.

(b) For the purpose of determining whether a prior conviction is a

predicate violent felony conviction the following criteria shall apply:

(i) The conviction must have been in this state of a class A felony

(other than one defined in article two hundred twenty) or of a violent

felony offense as defined in subdivision one of section 70.02, or of an

offense defined by the penal law in effect prior to September first,

nineteen hundred sixty-seven, which includes all of the essential

elements of any such felony, or in any other jurisdiction of an offense

which includes all of the essential elements of any such felony for

which a sentence to a term of imprisonment in excess of one year or a

sentence of death was authorized and is authorized in this state

irrespective of whether such sentence was imposed;

(ii) Sentence upon such prior conviction must have been imposed before

commission of the present felony;

(iii) Suspended sentence, suspended execution of sentence, a sentence

of probation, a sentence of conditional discharge or of unconditional

discharge, and a sentence of certification to the care and custody of

the division of substance abuse services, shall be deemed to be a

sentence;

(iv) Except as provided in subparagraph (v) of this paragraph,

sentence must have been imposed not more than ten years before

commission of the felony of which the defendant presently stands

convicted;

(v) In calculating the ten year period under subparagraph (iv), any

period of time during which the person was incarcerated for any reason

between the time of commission of the previous felony and the time of

commission of the present felony shall be excluded and such ten year

period shall be extended by a period or periods equal to the time served

under such incarceration;

(vi) An offense for which the defendant has been pardoned on the

ground of innocence shall not be deemed a predicate violent felony

conviction.

* 2. Authorized sentence. When the court has found, pursuant to the

provisions of the criminal procedure law, that a person is a second

violent felony offender the court must impose a determinate sentence of

imprisonment which shall be in whole or half years. Except where

sentence is imposed in accordance with the provisions of section 70.10,

the term of such sentence must be in accordance with the provisions of

subdivision three of this section.

* NB Effective until September 1, 2027

* 2. Authorized sentence. When the court has found, pursuant to the

provisions of the criminal procedure law, that a person is a second

violent felony offender the court must impose an indeterminate sentence

of imprisonment. Except where sentence is imposed in accordance with the

provisions of section 70.10, 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, 2027

* 3. Term of sentence. The term of a determinate sentence for a second

violent felony offender must be fixed by the court as follows:

(a) For a class B felony, the term must be at least ten years and must

not exceed twenty-five years;

(b) For a class C felony, the term must be at least seven years and

must not exceed fifteen years; and

(c) For a class D felony, the term must be at least five years and

must not exceed seven years.

(d) For a class E felony, the term must be at least three years and

must not exceed four years.

* NB Effective until September 1, 2027

* 3. Maximum term of sentence. The maximum term of an indeterminate

sentence for a second violent felony offender must be fixed by the court

as follows:

(a) For a class B felony, the term must be at least twelve years and

must not exceed twenty-five years;

(b) For a class C felony, the term must be at least eight years and

must not exceed fifteen years; and

(c) For a class D felony, the term must be at least five years and

must not exceed seven years.

(d) For a class E felony, the term must be at least four years.

* NB Effective September 1, 2027

* 4. Minimum period of imprisonment. The minimum period of

imprisonment under an indeterminate sentence for a second violent felony

offender must be fixed by the court at one-half of the maximum term

imposed and must be specified in the sentence.

* NB Effective September 1, 2027

Sentence of imprisonment for juvenile offender.

1. Indeterminate sentence. A sentence of imprisonment for a felony

committed by a juvenile offender shall be an indeterminate sentence.

When such a sentence is imposed, the court shall impose a maximum term

in accordance with the provisions of subdivision two of this section and

the minimum period of imprisonment shall be as provided in subdivision

three of this section. The court shall further provide that where a

juvenile offender is under placement pursuant to article three of the

family court act, any sentence imposed pursuant to this section which is

to be served consecutively with such placement shall be served in a

facility designated pursuant to subdivision four of section 70.20 of

this article prior to service of the placement in any previously

designated facility.

2. Maximum term of sentence. The maximum term of an indeterminate

sentence for a juvenile offender shall be at least three years and the

term shall be fixed as follows:

(a) For the class A felony of murder in the second degree, the term

shall be life imprisonment;

(b) For the class A felony of arson in the first degree, or for the

class A felony of kidnapping in the first degree the term shall be fixed

by the court, and shall be at least twelve years but shall not exceed

fifteen years;

(c) For a class B felony, the term shall be fixed by the court, and

shall not exceed ten years;

(d) For a class C felony, the term shall be fixed by the court, and

shall not exceed seven years; and

(e) For a class D felony, the term shall be fixed by the court and

shall not exceed four years.

3. Minimum period of imprisonment. The minimum period of imprisonment

under an indeterminate sentence for a juvenile offender shall be

specified in the sentence as follows:

(a) For the class A felony of murder in the second degree, the minimum

period of imprisonment shall be fixed by the court and shall be not less

than five years but shall not exceed nine years provided, however, that

where the sentence is for an offense specified in subdivision one or two

of section 125.25 of this chapter and the defendant was fourteen or

fifteen years old at the time of such offense, the minimum period of

imprisonment shall be not less than seven and one-half years but shall

not exceed fifteen years;

(b) For the class A felony of arson in the first degree, or for the

class A felony of kidnapping in the first degree, the minimum period of

imprisonment shall be fixed by the court and shall be not less than four

years but shall not exceed six years; and

(c) For a class B, C or D felony, the minimum period of imprisonment

shall be fixed by the court at one-third of the maximum term imposed.

Sentence of imprisonment for second felony offender.

1. Definition of second felony offender.

(a) A second felony offender is a person, other than a second violent

felony offender as defined in section 70.04, who stands convicted of a

felony defined in this chapter, other than a class A-I felony, after

having previously been subjected to one or more predicate felony

convictions as defined in paragraph (b) of this subdivision.

(b) For the purpose of determining whether a prior conviction is a

predicate felony conviction the following criteria shall apply:

(i) The conviction must have been in this state of a felony, or in any

other jurisdiction of an offense for which a sentence to a term of

imprisonment in excess of one year or a sentence of death was authorized

and is authorized in this state irrespective of whether such sentence

was imposed;

(ii) Sentence upon such prior conviction must have been imposed before

commission of the present felony;

(iii) Suspended sentence, suspended execution of sentence, a sentence

of probation, a sentence of conditional discharge or of unconditional

discharge, and a sentence of certification to the care and custody of

the division of substance abuse services, shall be deemed to be a

sentence;

(iv) Except as provided in subparagraph (v) of this paragraph,

sentence must have been imposed not more than ten years before

commission of the felony of which the defendant presently stands

convicted;

(v) In calculating the ten year period under subparagraph (iv), any

period of time during which the person was incarcerated for any reason

between the time of commission of the previous felony and the time of

commission of the present felony shall be excluded and such ten year

period shall be extended by a period or periods equal to the time served

under such incarceration;

(vi) An offense for which the defendant has been pardoned on the

ground of innocence shall not be deemed a predicate felony conviction.

* 2. Authorized sentence. Except as provided in subdivision five or

six of this section, or as provided in subdivision five of section 70.80

of this article, when the court has found, pursuant to the provisions of

the criminal procedure law, that a person is a second felony offender

the court must impose an indeterminate sentence of imprisonment. 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 until September 1, 2027

* 2. Authorized sentence. Except as provided in subdivision five of

this section, or as provided in subdivision five of section 70.80 of

this article, when the court has found, pursuant to the provisions of

the criminal procedure law, that a person is a second felony offender

the court must impose an indeterminate sentence of imprisonment. 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, 2027

* 3. Maximum term of sentence. Except as provided in subdivision five

or six of this section, or as provided in subdivision five of section

70.80 of this article, the maximum term of an indeterminate sentence for

a second felony offender must be fixed by the court as follows:

(a) For a class A-II felony, the term must be life imprisonment;

(b) For a class B felony, the term must be at least nine years and

must not exceed twenty-five years;

(c) For a class C felony, the term must be at least six years and must

not exceed fifteen years;

(d) For a class D felony, the term must be at least four years and

must not exceed seven years; and

(e) For a class E felony, the term must be at least three years and

must not exceed four years; provided, however, that where the sentence

is for the class E felony offense specified in section 240.32 of this

chapter, the maximum term must be at least three years and must not

exceed five years.

* NB Effective until September 1, 2027

* 3. Maximum term of sentence. Except as provided in subdivision five

of this section, or as provided in subdivision five of section 70.80 of

this article, the maximum term of an indeterminate sentence for a second

felony offender must be fixed by the court as follows:

(a) For a class A-II felony, the term must be life imprisonment;

(b) For a class B felony, the term must be at least nine years and

must not exceed twenty-five years;

(c) For a class C felony, the term must be at least six years and must

not exceed fifteen years;

(d) For a class D felony, the term must be at least four years and

must not exceed seven years; and

(e) For a class E felony, the term must be at least three years and

must not exceed four years.

* NB Effective September 1, 2027

4. Minimum period of imprisonment. (a) The minimum period of

imprisonment for a second felony offender convicted of a class A-II

felony must be fixed by the court at no less than six years and not to

exceed twelve and one-half years and must be specified in the sentence,

except that for the class A-II felony of predatory sexual assault as

defined in section 130.95 of this chapter or the class A-II felony of

predatory sexual assault against a child as defined in section 130.96 of

this chapter, such minimum period shall be not less than ten years nor

more than twenty-five years.

(b) Except as provided in paragraph (a), the minimum period of

imprisonment under an indeterminate sentence for a second felony

offender must be fixed by the court at one-half of the maximum term

imposed and must be specified in the sentence.

* 6. Determinate sentence. When the court has found, pursuant to the

provisions of the criminal procedure law, that a person is a second

felony offender and the sentence to be imposed on such person is for a

violent felony offense, as defined in subdivision one of section 70.02,

the court must impose a determinate sentence of imprisonment the term of

which must be fixed by the court as follows:

(a) For a class B violent felony offense, the term must be at least

eight years and must not exceed twenty-five years;

(b) For a class C violent felony offense, the term must be at least

five years and must not exceed fifteen years;

(c) For a class D violent felony offense, the term must be at least

three years and must not exceed seven years; and

(d) For a class E violent felony offense, the term must be at least

two years and must not exceed four years.

* NB Repealed September 1, 2027

* 7. Notwithstanding any other provision of law, in the case of a

person sentenced for a specified offense or offenses as defined in

subdivision five of section 410.91 of the criminal procedure law, who

stands convicted of no other felony offense, who has not previously been

convicted of either a violent felony offense as defined in section 70.02

of this article, a class A felony offense or a class B felony offense,

and is not under the jurisdiction of or awaiting delivery to the

department of corrections and community supervision, the court may

direct that such sentence be executed as a parole supervision sentence

as defined in and pursuant to the procedures prescribed in section

410.91 of the criminal procedure law.

* NB Repealed September 1, 2027

Sentence of imprisonment for second child sexual assault felony

offender.

1. A person who stands convicted of a felony offense for a sexual

assault against a child, having been subjected to a predicate felony

conviction for a sexual assault against a child, must be sentenced in

accordance with the provisions of subdivision four or five of this

section.

2. A "sexual assault against a child" means a felony offense, other

than persistent sexual abuse as defined in section 130.53 of this

chapter, (a) the essential elements of which include the commission or

attempted commission of sexual conduct, as defined in subdivision ten of

section 130.00 of this chapter, (b) committed or attempted to be

committed against a child less than fifteen years old.

3. For purposes of determining whether a person has been subjected to

a predicate felony conviction under this section, the criteria set forth

in paragraph (b) of subdivision one of section 70.06 shall apply

provided however that for purposes of this subdivision, the terms "ten

year" or "ten years", as provided in subparagraphs (iv) and (v) of

paragraph (b) of subdivision one of such section 70.06, shall be

"fifteen year" or "fifteen years". The provisions of section 400.19 of

the criminal procedure law shall govern the procedures that must be

followed to determine whether a person who stands convicted of a sexual

assault against a child has been previously subjected to a predicate

felony conviction for such a sexual assault and whether such offender

was eighteen years of age or older at the time of the commission of the

predicate felony.

4. Where the court has found pursuant to subdivision three of this

section that a person who stands convicted of a felony offense defined

in article one hundred thirty of this chapter for the commission or

attempted commission of a sexual assault against a child has been

subjected to a predicate felony conviction for a sexual assault against

a child, the court shall sentence the defendant as follows:

(a) where the defendant stands convicted of such sexual assault

against a child and such conviction is for a class A-II or class B

felony offense, and the predicate conviction for such sexual assault

against a child is for a class A-II, class B or class C felony offense,

the court shall impose an indeterminate sentence of imprisonment, the

maximum term of which shall be life and the minimum period of which

shall be at least fifteen years and no more than twenty-five years;

(b) where the defendant stands convicted of such sexual assault

against a child and the conviction is for a class C felony offense, and

the predicate conviction for such sexual assault against a child is for

a class A-II, class B or class C felony offense, the court shall impose

a determinate sentence of imprisonment, the term of which must be at

least twelve years and must not exceed thirty years; provided however,

that if the court determines that a longer sentence is warranted, the

court shall set forth on the record the reasons for such determination

and, in lieu of imposing such sentence of imprisonment, may impose an

indeterminate sentence of imprisonment, the maximum term of which shall

be life and the minimum period of which shall be at least fifteen years

and no more than twenty-five years;

(c) where the defendant stands convicted of such sexual assault

against a child and the conviction is for a class B felony offense, and

the predicate conviction for such sexual assault against a child is for

a class D or class E felony offense, the court shall impose a

determinate sentence of imprisonment, the term of which must be at least

twelve years and must not exceed thirty years;

(d) where the defendant stands convicted of such sexual assault

against a child and the conviction is for a class C felony offense, and

the predicate conviction for such sexual assault against a child is for

a class D or class E felony offense, the court shall impose a

determinate sentence of imprisonment, the term of which must be at least

ten years and must not exceed twenty-five years;

(e) where the defendant stands convicted of such sexual assault

against a child and the conviction is for a class D felony offense, and

the predicate conviction for such sexual assault against a child is for

a felony offense, the court shall impose a determinate sentence of

imprisonment, the term of which must be at least five years and must not

exceed fifteen years; and

(f) where the defendant stands convicted of such sexual assault

against a child and the conviction is for a class E felony offense, and

the predicate conviction for such sexual assault against a child is for

a felony offense, the court shall impose a determinate sentence of

imprisonment, the term of which must be at least four years and must not

exceed twelve years.

5. Notwithstanding subdivision four of this section, where the court

has found pursuant to subdivision three of this section that a person:

(a) stands convicted of a felony offense defined in article one hundred

thirty of this chapter for the commission or attempted commission of a

sexual assault against a child; and (b) has been subjected to a

predicate felony conviction for sexual assault against a child as

defined in subdivision two of this section; and (c) who was under the

age of eighteen years at the time of the commission of such predicate

felony offense, then the court may, in lieu of the sentence authorized

by subdivision four of this section, sentence the defendant to a term of

imprisonment in accordance with the sentence authorized for the instant

felony offense pursuant to subdivision three of section 70.04 of this

article. The court shall set forth on the record the reasons for such

determination.

Sentence of imprisonment for persistent violent felony offender;

criteria.

1. Definition of persistent violent felony offender.

(a) A persistent violent felony offender is a person who stands

convicted of a violent felony offense as defined in subdivision one of

section 70.02 or the offense of predatory sexual assault as defined in

section 130.95 of this chapter or the offense of predatory sexual

assault against a child as defined in section 130.96 of this chapter,

after having previously been subjected to two or more predicate violent

felony convictions as defined in paragraph (b) of subdivision one of

section 70.04 of this article.

(b) For the purpose of determining whether a person has two or more

predicate violent felony convictions, the criteria set forth in

paragraph (b) of subdivision one of section 70.04 shall apply.

2. Authorized sentence. When the court has found, pursuant to the

provisions of the criminal procedure law, that a person is a persistent

violent felony offender the court must impose an indeterminate sentence

of imprisonment, the maximum term of which shall be life imprisonment.

The minimum period of imprisonment under such sentence must be in

accordance with subdivision three of this section.

* 3. Minimum period of imprisonment. The minimum period of

imprisonment under an indeterminate life sentence for a persistent

violent felony offender must be fixed by the court as follows:

(a) For the class A-II felony of predatory sexual assault as defined

in section 130.95 of this chapter or the class A-II felony of predatory

sexual assault against a child as defined in section 130.96 of this

chapter, the minimum period must be twenty-five years;

(a-1) For a class B felony, the minimum period must be at least twenty

years and must not exceed twenty-five years;

(b) For a class C felony, the minimum period must be at least sixteen

years and must not exceed twenty-five years;

(c) For a class D felony, the minimum period must be at least twelve

years and must not exceed twenty-five years.

* NB Effective until September 1, 2027

* 3. Minimum period of imprisonment. The minimum period of

imprisonment under an indeterminate life sentence for a persistent

violent felony offender must be fixed by the court as follows:

(a) For the class A-II felony of predatory sexual assault as defined

in section 130.95 of this chapter or the class A-II felony of predatory

sexual assault against a child as defined in section 130.96 of this

chapter, the minimum period must be twenty-five years;

(a-1) For a class B felony, the minimum period must be at least ten

years and must not exceed twenty-five years;

(b) For a class C felony, the minimum period must be at least eight

years and must not exceed twenty-five years;

(c) For a class D felony, the minimum period must be at least six

years and must not exceed twenty-five years.

* NB Effective September 1, 2027

Sentence of imprisonment for persistent felony offender.

1. Definition of persistent felony offender.

(a) A persistent felony offender is a person, other than a persistent

violent felony offender as defined in section 70.08, who stands

convicted of a felony after having previously been convicted of two or

more felonies, as provided in paragraphs (b) and (c) of this

subdivision.

(b) A previous felony conviction within the meaning of paragraph (a)

of this subdivision is a conviction of a felony in this state, or of a

crime in any other jurisdiction, provided:

(i) that a sentence to a term of imprisonment in excess of one year,

or a sentence to death, was imposed therefor; and

(ii) that the defendant was imprisoned under sentence for such

conviction prior to the commission of the present felony; and

(iii) that the defendant was not pardoned on the ground of innocence;

and

(iv) that such conviction was for a felony offense other than

persistent sexual abuse, as defined in section 130.53 of this chapter;

grand larceny in the fourth degree as defined in subdivision twelve of

section 155.30 of this chapter; grand larceny in the third degree as

defined in subdivision three of section 155.35 of this chapter; grand

larceny in the second degree as defined in subdivision three of section

155.40 of this chapter; or grand larceny in the first degree as defined

in subdivision two of section 155.42 of this chapter.

(c) For the purpose of determining whether a person has two or more

previous felony convictions, two or more convictions of crimes that were

committed prior to the time the defendant was imprisoned under sentence

for any of such convictions shall be deemed to be only one conviction.

2. Authorized sentence. When the court has found, pursuant to the

provisions of the criminal procedure law, that a person is a persistent

felony offender, and when it is of the opinion that the history and

character of the defendant and the nature and circumstances of his

criminal conduct indicate that extended incarceration and life-time

supervision will best serve the public interest, the court, in lieu of

imposing the sentence of imprisonment authorized by section 70.00,

70.02, 70.04, 70.06 or subdivision five of section 70.80 for the crime

of which such person presently stands convicted, may impose the sentence

of imprisonment authorized by that section for a class A-I felony. In

such event the reasons for the court's opinion shall be set forth in the

record.

Sentences of imprisonment for misdemeanors and violation.

1. Class A misdemeanor. A sentence of imprisonment for a class A

misdemeanor shall be a definite sentence. When such a sentence is

imposed the term shall be fixed by the court, and shall not exceed three

hundred sixty-four days.

1-a. (a) Notwithstanding the provisions of any other law, whenever the

phrase "one year" or "three hundred sixty-five days" or "365 days" or

any similar phrase appears in any provision of this chapter or any other

law in reference to the definite sentence or maximum definite sentence

of imprisonment that is imposed, or has been imposed, or may be imposed

after enactment of this subdivision, for a misdemeanor conviction in

this state, such phrase shall mean, be interpreted and be applied as

three hundred sixty-four days.

(b) The amendatory provisions of this subdivision are ameliorative and

shall apply to all persons who are sentenced before, on or after the

effective date of this subdivision, for a crime committed before, on or

after the effective date of this subdivision.

(c) Any sentence for a misdemeanor conviction imposed prior to the

effective date of this subdivision that is a definite sentence of

imprisonment of one year, or three hundred sixty-five days, shall, by

operation of law, be changed to, mean and be interpreted and applied as

a sentence of three hundred sixty-four days. In addition to any other

right of a person to obtain a record of a proceeding against him or her,

a person so sentenced prior to the effective date of this subdivision

shall be entitled to obtain, from the criminal court or the clerk

thereof, a certificate of conviction, as described in subdivision one of

section 60.60 of the criminal procedure law, setting forth such sentence

as the sentence specified in this paragraph.

(d) Any sentence for a misdemeanor conviction imposed prior to the

effective date of this subdivision that is other than a definite

sentence of imprisonment of one year may be set aside, upon motion of

the defendant under section 440.20 of the criminal procedure law based

on a showing that the judgment and sentence under the law in effect at

the time of conviction imposed prior to the effective date of this

subdivision is likely to result in collateral consequences, in order to

permit the court to resentence the defendant in accordance with the

amendatory provisions of this subdivision.

(e) Resentence by operation of law is without prejudice to an

individual seeking further relief pursuant to paragraph (j) of

subdivision one of section 440.10 of the criminal procedure law. Nothing

in this section is intended to diminish or abrogate any rights or

remedies otherwise available to the individual.

2. Class B misdemeanor. A sentence of imprisonment for a class B

misdemeanor shall be a definite sentence. When such a sentence is

imposed the term shall be fixed by the court, and shall not exceed three

months.

3. Unclassified misdemeanor. A sentence of imprisonment for an

unclassified misdemeanor shall be a definite sentence. When such a

sentence is imposed the term shall be fixed by the court, and shall be

in accordance with the sentence specified in the law or ordinance that

defines the crime but, in any event, it shall not exceed three hundred

sixty-four days.

4. Violation. A sentence of imprisonment for a violation shall be a

definite sentence. When such a sentence is imposed the term shall be

fixed by the court, and shall not exceed fifteen days.

In the case of a violation defined outside this chapter, if the

sentence is expressly specified in the law or ordinance that defines the

offense and consists solely of a fine, no term of imprisonment shall be

imposed.

Place of imprisonment.

* 1. (a) Indeterminate or determinate sentence. Except as provided in

subdivision four of this section, when an indeterminate or determinate

sentence of imprisonment is imposed, the court shall commit the

defendant to the custody of the state department of corrections and

community supervision for the term of his or her sentence and until

released in accordance with the law; provided, however, that a defendant

sentenced pursuant to subdivision seven of section 70.06 shall be

committed to the custody of the state department of corrections and

community supervision for immediate delivery to a reception center

operated by the department.

(b) The court in committing a defendant who is not yet eighteen years

of age to the department of corrections and community supervision shall

inquire as to whether the parents or legal guardian of the defendant, if

present, will grant to the minor the capacity to consent to routine

medical, dental and mental health services and treatment.

(c) Notwithstanding paragraph (b) of this subdivision, where the court

commits a defendant who is not yet eighteen years of age to the custody

of the department of corrections and community supervision in accordance

with this section and no medical consent has been obtained prior to said

commitment, the commitment order shall be deemed to grant the capacity

to consent to routine medical, dental and mental health services and

treatment to the person so committed.

(d) Nothing in this subdivision shall preclude a parent or legal

guardian of an incarcerated individual who is not yet eighteen years of

age from making a motion on notice to the department of corrections and

community supervision pursuant to article twenty-two of the civil

practice law and rules and section one hundred forty of the correction

law, objecting to routine medical, dental or mental health services and

treatment being provided to such incarcerated individual under the

provisions of paragraph (b) of this subdivision.

(e) Nothing in this section shall require that consent be obtained

from the parent or legal guardian, where no consent is necessary or

where the defendant is authorized by law to consent on his or her own

behalf to any medical, dental, and mental health service or treatment.

* NB Effective until September 1, 2027

* 1. (a) Indeterminate sentence. Except as provided in subdivision

four of this section, when an indeterminate sentence of imprisonment is

imposed, the court shall commit the defendant to the custody of the

state department of corrections and community supervision for the term

of his or her sentence and until released in accordance with the law.

(b) The court in committing a defendant who is not yet eighteen years

of age to the department of corrections and community supervision shall

inquire as to whether the parents or legal guardian of the defendant, if

present, will grant to the minor the capacity to consent to routine

medical, dental and mental health services and treatment.

(c) Notwithstanding paragraph (b) of this subdivision, where the court

commits a defendant who is not yet eighteen years of age to the custody

of the department of corrections and community supervision in accordance

with this section and no medical consent has been obtained prior to said

commitment, the commitment order shall be deemed to grant the capacity

to consent to routine medical, dental and mental health services and

treatment to the person so committed.

(d) Nothing in this subdivision shall preclude a parent or legal

guardian of an incarcerated individual who is not yet eighteen years of

age from making a motion on notice to the department of corrections and

community supervision pursuant to article twenty-two of the civil

practice law and rules and section one hundred forty of the correction

law, objecting to routine medical, dental or mental health services and

treatment being provided to such incarcerated individual under the

provisions of paragraph (b) of this subdivision.

(e) Nothing in this section shall require that consent be obtained

from the parent or legal guardian, where no consent is necessary or

where the defendant is authorized by law to consent on his or her own

behalf to any medical, dental, and mental health service or treatment.

* NB Effective September 1, 2027

2. Definite sentence. Except as provided in subdivision four of this

section, when a definite sentence of imprisonment is imposed, the court

shall commit the defendant to the county or regional correctional

institution for the term of his sentence and until released in

accordance with the law.

2-a. Sentence of life imprisonment without parole. When a sentence of

life imprisonment without parole is imposed, the court shall commit the

defendant to the custody of the state department of corrections and

community supervision for the remainder of the life of the defendant.

* 3. Undischarged imprisonment in other jurisdiction. When a defendant

who is subject to an undischarged term of imprisonment, imposed at a

previous time by a court of another jurisdiction, is sentenced to an

additional term or terms of imprisonment by a court of this state to run

concurrently with such undischarged term, as provided in subdivision

four of section 70.25, the return of the defendant to the custody of the

appropriate official of the other jurisdiction shall be deemed a

commitment for such portion of the term or terms of the sentence imposed

by the court of this state as shall not exceed the said undischarged

term. The defendant shall be committed to the custody of the state

department of corrections and community supervision if the additional

term or terms are indeterminate or determinate or to the appropriate

county or regional correctional institution if the said term or terms

are definite for such portion of the term or terms of the sentence

imposed as shall exceed such undischarged term or until released in

accordance with law. If such additional term or terms imposed shall run

consecutively to the said undischarged term, the defendant shall be

committed as provided in subdivisions one and two of this section.

* NB Effective until September 1, 2027

* 3. Undischarged imprisonment in other jurisdiction. When a defendant

who is subject to an undischarged term of imprisonment, imposed at a

previous time by a court of another jurisdiction, is sentenced to an

additional term or terms of imprisonment by a court of this state to run

concurrently with such undischarged term, as provided in subdivision

four of section 70.25, the return of the defendant to the custody of the

appropriate official of the other jurisdiction shall be deemed a

commitment for such portion of the term or terms of the sentence imposed

by the court of this state as shall not exceed the said undischarged

term. The defendant shall be committed to the custody of the state

department of corrections and community supervision if the additional

term or terms are indeterminate or to the appropriate county or regional

correctional institution if the said term or terms are definite for such

portion of the term or terms of the sentence imposed as shall exceed

such undischarged term or until released in accordance with law. If such

additional term or terms imposed shall run consecutively to the said

undischarged term, the defendant shall be committed as provided in

subdivisions one and two of this section.

* NB Effective September 1, 2027

4. (a) Notwithstanding any other provision of law to the contrary, a

juvenile offender, adolescent offender, or a juvenile offender or

adolescent offender who is adjudicated a youthful offender, who is given

an indeterminate, determinate or a definite sentence, and who is under

the age of twenty-one at the time of sentencing, shall be committed to

the custody of the commissioner of the office of children and family

services who shall arrange for the confinement of such offender in

secure facilities of the office; provided, however if an adolescent

offender who committed a crime on or after the youth's sixteenth

birthday receives a definite sentence not exceeding one year, the judge

may order that the adolescent offender serve such sentence in a

specialized secure juvenile detention facility for older youth certified

by the office of children and family services in conjunction with the

state commission of correction and operated pursuant to section two

hundred eighteen-a of the county law. The release or transfer of such

juvenile offenders or adolescent offenders from the office of children

and family services shall be governed by section five hundred eight of

the executive law.

(a-2) Notwithstanding any other provision of law to the contrary, a

person sixteen years of age who commits a vehicle and traffic law

offense that does not constitute an adolescent offender offense on or

after October first, two thousand eighteen and a person seventeen years

of age who commits such an offense on or after October first, two

thousand nineteen who is sentenced to a term of imprisonment who is

under the age of twenty-one at the time he or she is sentenced shall be

committed to a specialized secure detention facility for older youth

certified by the office of children and family services in conjunction

with the state commission of correction.

(b) The court in committing a juvenile offender and youthful offender

to the custody of the office of children and family services shall

inquire as to whether the parents or legal guardian of the youth, if

present, will consent for the office of children and family services to

provide routine medical, dental and mental health services and

treatment.

(c) Notwithstanding paragraph (b) of this subdivision, where the court

commits an offender to the custody of the office of children and family

services in accordance with this section and no medical consent has been

obtained prior to said commitment, the commitment order shall be deemed

to grant consent for the office of children and family services to

provide for routine medical, dental and mental health services and

treatment to the offender so committed.

(d) Nothing in this subdivision shall preclude a parent or legal

guardian of an offender who is not yet eighteen years of age from making

a motion on notice to the office of children and family services

pursuant to article twenty-two of the civil practice law and rules

objecting to routine medical, dental or mental health services and

treatment being provided to such offender under the provisions of

paragraph (b) of this subdivision.

(e) Nothing in this section shall require that consent be obtained

from the parent or legal guardian, where no consent is necessary or

where the offender is authorized by law to consent on his or her own

behalf to any medical, dental and mental health service or treatment.

5. Subject to regulations of the department of health, routine

medical, dental and mental health services and treatment is defined for

the purposes of this section to mean any routine diagnosis or treatment,

including without limitation the administration of medications or

nutrition, the extraction of bodily fluids for analysis, and dental care

performed with a local anesthetic. Routine mental health treatment shall

not include psychiatric administration of medication unless it is part

of an ongoing mental health plan or unless it is otherwise authorized by

law.

Concurrent and consecutive terms of imprisonment.

1. Except as provided in subdivisions two, two-a and five of this

section, when multiple sentences of imprisonment are imposed on a person

at the same time, or when a person who is subject to any undischarged

term of imprisonment imposed at a previous time by a court of this state

is sentenced to an additional term of imprisonment, the sentence or

sentences imposed by the court shall run either concurrently or

consecutively with respect to each other and the undischarged term or

terms in such manner as the court directs at the time of sentence. If

the court does not specify the manner in which a sentence imposed by it

is to run, the sentence shall run as follows:

* (a) An indeterminate or determinate sentence shall run concurrently

with all other terms; and

* NB Effective until September 1, 2027

* (a) An indeterminate sentence shall run concurrently with all other

terms; and

* NB Effective September 1, 2027

(b) A definite sentence shall run concurrently with any sentence

imposed at the same time and shall be consecutive to any other term.

2. When more than one sentence of imprisonment is imposed on a person

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, the sentences,

except if one or more of such sentences is for a violation of section

270.20 of this chapter, must run concurrently.

* 2-a. When an indeterminate or determinate sentence of imprisonment

is imposed pursuant to section 70.04, 70.06, 70.07, 70.08, 70.10,

subdivision three or four of section 70.70, subdivision three or four of

section 70.71 or subdivision five of section 70.80 of this article, or

is imposed for a class A-I felony pursuant to section 70.00 of this

article, and such person is subject to an undischarged indeterminate or

determinate sentence of imprisonment imposed prior to the date on which

the present crime was committed, the court must impose a sentence to run

consecutively with respect to such undischarged sentence.

* NB Effective until September 1, 2027

* 2-a. When an indeterminate or determinate sentence of imprisonment

is imposed pursuant to section 70.04, 70.06, 70.07, 70.08, 70.10,

subdivision three or four of section 70.70, subdivision three or four of

section 70.71 or subdivision five of section 70.80 of this article, or

is imposed for a class A-I felony pursuant to section 70.00 of this

article, and such person is subject to an undischarged indeterminate

sentence of imprisonment imposed prior to the date on which the present

crime was committed, the court must impose a sentence to run

consecutively with respect to such undischarged sentence.

* NB Effective September 1, 2027

* 2-b. When a person is convicted of a violent felony offense

committed after arraignment and while released on recognizance or bail,

but committed prior to the imposition of sentence on a pending felony

charge, and if an indeterminate or determinate sentence of imprisonment

is imposed in each case, such sentences shall run consecutively.

Provided, however, that the court may, in the interest of justice, order

a sentence to run concurrently in a situation where consecutive

sentences are required by this subdivision if it finds either mitigating

circumstances that bear directly upon the manner in which the crime was

committed or, 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. The defendant

and the district attorney shall have an opportunity to present relevant

information to assist the court in making this determination and the

court may, in its discretion, conduct a hearing with respect to any

issue bearing upon such determination. If the court determines that

consecutive sentences should not be ordered, it shall make a statement

on the record of the facts and circumstances upon which such

determination is based.

* NB Effective until September 1, 2027

* 2-b. When a person is convicted of a violent felony offense

committed after arraignment and while released on recognizance or bail,

but committed prior to the imposition of sentence on a pending felony

charge, and if an indeterminate sentence of imprisonment is imposed in

each case, such sentences shall run consecutively. Provided, however,

that the court may, in the interest of justice, order a sentence to run

concurrently in a situation where consecutive sentences are required by

this subdivision if it finds either mitigating circumstances that bear

directly upon the manner in which the crime was committed or, 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. The defendant and the district

attorney shall have an opportunity to present relevant information to

assist the court in making this determination and the court may, in its

discretion, conduct a hearing with respect to any issue bearing upon

such determination. If the court determines that consecutive sentences

should not be ordered, it shall make a statement on the record of the

facts and circumstances upon which such determination is based.

* NB Effective September 1, 2027

2-c. When a person is convicted of bail jumping in the second degree

as defined in section 215.56 or bail jumping in the first degree as

defined in section 215.57 committed after arraignment and while released

on recognizance or bail in connection with a pending indictment or

information charging one or more felonies, at least one of which he is

subsequently convicted, and if an indeterminate sentence of imprisonment

is imposed in each case, such sentences shall run consecutively.

Provided, however, that the court may, in the interest of justice, order

a sentence to run concurrently in a situation where consecutive

sentences are required by this subdivision if it finds mitigating

circumstances that bear directly upon the manner in which the crime was

committed. The defendant and the district attorney shall have an

opportunity to present relevant information to assist the court in

making this determination and the court may, in its discretion, conduct

a hearing with respect to any issue bearing upon such determination. If

the court determines that consecutive sentences should not be ordered,

it shall make a statement on the record of the facts and circumstances

upon which such determination is based.

2-d. When a person is convicted of escape in the second degree as

defined in section 205.10 or escape in the first degree as defined in

section 205.15 committed after issuance of a securing order, as defined

in subdivision five of section 500.10 of the criminal procedure law, in

connection with a pending indictment or information charging one or more

felonies, at least one of which he is subsequently convicted, and if an

indeterminate sentence of imprisonment is imposed in each case, such

sentences shall run consecutively. Provided, however, that the court

may, in the interest of justice, order a sentence to run concurrently in

a situation where consecutive sentences are required by this subdivision

if it finds mitigating circumstances that bear directly upon the manner

in which the crime was committed. The defendant and the district

attorney shall have an opportunity to present relevant information to

assist the court in making this determination and the court may, in its

discretion, conduct a hearing with respect to any issue bearing upon

such determination. If the court determines that consecutive sentences

should not be ordered, it shall make a statement on the record of the

facts and circumstances upon which such determination is based.

2-e. Whenever a person is convicted of course of sexual conduct

against a child in the first degree as defined in section 130.75 or

course of sexual conduct against a child in the second degree as defined

in section 130.80 and any other crime under article one hundred thirty

committed against the same child and within the period charged under

section 130.75 or 130.80, the sentences must run concurrently.

2-f. Whenever a person is convicted of facilitating a sex offense with

a controlled substance as defined in section 130.90 of this chapter, the

sentence imposed by the court for such offense may be ordered to run

consecutively to any sentence imposed upon conviction of an offense

defined in article one hundred thirty of this chapter arising from the

same criminal transaction.

2-g. Whenever a person is convicted of unlawful manufacture of

methamphetamine in the third degree as defined in section 220.73 of this

chapter, unlawful manufacture of methamphetamine in the second degree as

defined in section 220.74 of this chapter, or unlawful manufacture of

methamphetamine in the first degree as defined in section 220.75 of this

chapter, or any attempt to commit any of such offenses, and such person

is also convicted, with respect to such unlawful methamphetamine

laboratory, of unlawful disposal of methamphetamine laboratory material

as defined in section 220.76 of this chapter, the sentences must run

concurrently.

3. Where consecutive definite sentences of imprisonment are not

prohibited by subdivision two of this section and are imposed on a

person for offenses which were committed as parts of a single incident

or transaction, the aggregate of the terms of such sentences shall not

exceed one year.

4. When a person, who is subject to any undischarged term of

imprisonment imposed at a previous time by a court of another

jurisdiction, is sentenced to an additional term or terms of

imprisonment by a court of this state, the sentence or sentences imposed

by the court of this state, subject to the provisions of subdivisions

one, two and three of this section, shall run either concurrently or

consecutively with respect to such undischarged term in such manner as

the court directs at the time of sentence. If the court of this state

does not specify the manner in which a sentence imposed by it is to run,

the sentence or sentences shall run consecutively.

5. * (a) Except as provided in paragraph (c) of this subdivision, when

a person is convicted of assault in the second degree, as defined in

subdivision seven of section 120.05 of this chapter, any definite,

indeterminate or determinate term of imprisonment which may be imposed

as a sentence upon such conviction shall run consecutively to any

undischarged term of imprisonment to which the defendant was subject and

for which he was confined at the time of the assault.

* NB Effective until September 1, 2027

* (a) Except as provided in paragraph (c) of this subdivision, when a

person is convicted of assault in the second degree, as defined in

subdivision seven of section 120.05 of this chapter, any definite or

indeterminate term of imprisonment which may be imposed as a sentence

upon such conviction shall run consecutively to any undischarged term of

imprisonment to which the defendant was subject and for which he was

confined at the time of the assault.

* NB Effective September 1, 2027

* (b) Except as provided in paragraph (c) of this subdivision, when a

person is convicted of assault in the second degree, as defined in

subdivision seven of section 120.05 of this chapter, any definite,

indeterminate or determinate term of imprisonment which may be imposed

as a sentence upon such conviction shall run consecutively to any term

of imprisonment which was previously imposed or which may be

prospectively imposed where the person was confined within a detention

facility at the time of the assault upon a charge which culminated in

such sentence of imprisonment.

* NB Effective until September 1, 2027

* (b) Except as provided in paragraph (c) of this subdivision, when a

person is convicted of assault in the second degree, as defined in

subdivision seven of section 120.05 of this chapter, any definite or

indeterminate term of imprisonment which may be imposed as a sentence

upon such conviction shall run consecutively to any term of imprisonment

which was previously imposed or which may be prospectively imposed where

the person was confined within a detention facility at the time of the

assault upon a charge which culminated in such sentence of imprisonment.

* NB Effective September 1, 2027

(c) Notwithstanding the provisions of paragraphs (a) and (b) of this

subdivision, a term of imprisonment imposed upon a conviction to assault

in the second degree as defined in subdivision seven of section 120.05

of this chapter may run concurrently to any other term of imprisonment,

in the interest of justice, provided the court sets forth in the record

its reasons for imposing a concurrent sentence. Nothing in this section

shall require the imposition of a sentence of imprisonment where it is

not otherwise required by law.

Calculation of terms of imprisonment.

1. * Indeterminate or determinate sentences.

* NB Effective until September 1, 2027

* Indeterminate sentences.

* NB Effective September 1, 2027

* An indeterminate or determinate sentence of imprisonment commences

when the prisoner is received in an institution under the jurisdiction

of the state department of corrections and community supervision. Where

a person is under more than one indeterminate or determinate sentence,

the sentences shall be calculated as follows:

* NB Effective until September 1, 2027

* An indeterminate sentence of imprisonment commences when the

prisoner is received in an institution under the jurisdiction of the

state department of corrections and community supervision. Where a

person is under more than one indeterminate sentence, the sentences

shall be calculated as follows:

* NB Effective September 1, 2027

* (a) If the sentences run concurrently, the time served under

imprisonment on any of the sentences shall be credited against the

minimum periods of all the concurrent indeterminate sentences and

against the terms of all the concurrent determinate sentences. The

maximum term or terms of the indeterminate sentences and the term or

terms of the determinate sentences shall merge in and be satisfied by

discharge of the term which has the longest unexpired time to run;

* NB Effective until September 1, 2027

* (a) If the sentences run concurrently, the time served under

imprisonment on any of the sentences shall be credited against the

minimum periods of all the concurrent sentences, and the maximum terms

merge in and are satisfied by discharge of the term which has the

longest unexpired time to run;

* NB Effective September 1, 2027

* (b) If the defendant is serving two or more indeterminate sentences

which run consecutively, the minimum periods of imprisonment are added

to arrive at an aggregate minimum period of imprisonment equal to the

sum of all the minimum periods, and the maximum terms are added to

arrive at an aggregate maximum term equal to the sum of all the maximum

terms, provided, however, that both the aggregate maximum term and the

aggregate minimum period of imprisonment shall be subject to the

limitations set forth in paragraphs (e) and (f) of this subdivision,

where applicable;

* NB Effective until September 1, 2027

* (b) If the sentences run consecutively, the minimum periods of

imprisonment are added to arrive at an aggregate minimum period of

imprisonment equal to the sum of all the minimum periods, and the

maximum terms are added to arrive at an aggregate maximum term equal to

the sum of all the maximum terms, provided, however, that both the

aggregate maximum term and the aggregate minimum period of imprisonment

shall be subject to the limitations set forth in paragraphs (c) and (d)

of this subdivision, where applicable;

* NB Effective September 1, 2027

* (c) If the defendant is serving two or more determinate sentences of

imprisonment which run consecutively, the terms of the determinate

sentences are added to arrive at an aggregate maximum term of

imprisonment, provided, however, that the aggregate maximum term of

imprisonment shall be subject to the limitations set forth in paragraphs

(e) and (f) of this subdivision, where applicable.

* NB Effective until September 1, 2027

* (c) (i) Except as provided in subparagraph (ii) or (iii) of this

paragraph, the aggregate maximum term of consecutive sentences imposed

for two or more crimes, other than two or more crimes that include a

class A felony, committed prior to the time the person was imprisoned

under any of such sentences shall, if it exceeds twenty years, be deemed

to be twenty years, unless one of the sentences was imposed for a class

B felony, in which case the aggregate maximum term shall, if it exceeds

thirty years, be deemed to be thirty years. Where the aggregate maximum

term of two or more consecutive sentences is reduced by calculation made

pursuant to this paragraph, the aggregate minimum period of

imprisonment, if it exceeds one-half of the aggregate maximum term as so

reduced, shall be deemed to be one-half of the aggregate maximum term as

so reduced;

(ii) Notwithstanding subparagraph (i) of this paragraph, the aggregate

maximum term of consecutive sentences imposed for the conviction of two

violent felony offenses committed prior to the time the person was

imprisoned under any of such sentences and one of which is a class B

violent felony offense, shall, if it exceeds forty years, be deemed to

be forty years;

(iii) Notwithstanding subparagraphs (i) and (ii) of this paragraph,

the aggregate maximum term of consecutive sentences imposed for the

conviction of three or more violent felony offenses committed prior to

the time the person was imprisoned under any of such sentences and one

of which is a class B violent felony offense, shall, if it exceeds fifty

years, be deemed to be fifty years;

* NB Effective September 1, 2027

* (d) If the defendant is serving one or more indeterminate sentences

of imprisonment and one or more determinate sentence of imprisonment

which run consecutively, the minimum term or terms of the indeterminate

sentence or sentences and the term or terms of the determinate sentence

or sentences are added to arrive at an aggregate maximum term of

imprisonment, provided, however, (i) that in no event shall the

aggregate maximum so calculated be less than the term or maximum term of

imprisonment of the sentence which has the longest unexpired time to

run; and (ii) that the aggregate maximum term of imprisonment shall be

subject to the limitations set forth in paragraphs (e) and (f) of this

subdivision, where applicable.

* NB Effective until September 1, 2027

* (d) The aggregate maximum term of consecutive sentences imposed upon

a juvenile offender for two or more crimes, not including a class A

felony, committed before he has reached the age of sixteen, shall, if it

exceeds ten years, be deemed to be ten years. If consecutive

indeterminate sentences imposed upon a juvenile offender include a

sentence for the class A felony of arson in the first degree or for the

class A felony of kidnapping in the first degree, then the aggregate

maximum term of such sentences shall, if it exceeds fifteen years, be

deemed to be fifteen years. Where the aggregate maximum term of two or

more consecutive sentences is reduced by a calculation made pursuant to

this paragraph, the aggregate minimum period of imprisonment, if it

exceeds one-half of the aggregate maximum term as so reduced, shall be

deemed to be one-half of the aggregate maximum term as so reduced.

* NB Effective September 1, 2027

* (e) (i) Except as provided in subparagraph (ii), (iii), (iv), (v),

(vi) or (vii) of this paragraph, the aggregate maximum term of

consecutive sentences, all of which are indeterminate sentences or all

of which are determinate sentences, imposed for two or more crimes,

other than two or more crimes that include a class A felony, committed

prior to the time the person was imprisoned under any of such sentences

shall, if it exceeds twenty years, be deemed to be twenty years, unless

one of the sentences was imposed for a class B felony, in which case the

aggregate maximum term shall, if it exceeds thirty years, be deemed to

be thirty years. Where the aggregate maximum term of two or more

indeterminate consecutive sentences is reduced by calculation made

pursuant to this paragraph, the aggregate minimum period of

imprisonment, if it exceeds one-half of the aggregate maximum term as so

reduced, shall be deemed to be one-half of the aggregate maximum term as

so reduced;

(ii) Where the aggregate maximum term of two or more consecutive

sentences, one or more of which is a determinate sentence and one or

more of which is an indeterminate sentence, imposed for two or more

crimes, other than two or more crimes that include a class A felony,

committed prior to the time the person was imprisoned under any of such

sentences, exceeds twenty years, and none of the sentences was imposed

for a class B felony, the following rules shall apply:

(A) if the aggregate maximum term of the determinate sentence or

sentences exceeds twenty years, the defendant shall be deemed to be

serving to a determinate sentence of twenty years.

(B) if the aggregate maximum term of the determinate sentence or

sentences is less than twenty years, the defendant shall be deemed to be

serving an indeterminate sentence the maximum term of which shall be

deemed to be twenty years. In such instances, the minimum sentence shall

be deemed to be ten years or six-sevenths of the term or aggregate

maximum term of the determinate sentence or sentences, whichever is

greater.

(iii) Where the aggregate maximum term of two or more consecutive

sentences, one or more of which is a determinate sentence and one or

more of which is an indeterminate sentence, imposed for two or more

crimes, other than two or more crimes that include a class A felony,

commmitted prior to the time the person was imprisoned under any of such

sentences, exceeds thirty years, and one of the sentences was imposed

for a class B felony, the following rules shall apply:

(A) if the aggregate maximum term of the determinate sentence or

sentences exceeds thirty years, the defendant shall be deemed to be

serving a determinate sentence of thirty years;

(B) if the aggregate maximum term of the determinate sentence or

sentences is less than thirty years, the defendant shall be deemed to be

serving an indeterminate sentence the maximum term of which shall be

deemed to be thirty years. In such instances, the minimum sentence shall

be deemed to be fifteen years or six-sevenths of the term or aggregate

maximum term of the determinate sentence or sentences, whichever is

greater.

(iv) Notwithstanding subparagraph (i) of this paragraph, the aggregate

maximum term of consecutive sentences, all of which are indeterminate

sentences or all of which are determinate sentences, imposed for the

conviction of two violent felony offenses committed prior to the time

the person was imprisoned under any of such sentences and one of which

is a class B violent felony offense, shall, if it exceeds forty years,

be deemed to be forty years

(v) Notwithstanding subparagraphs (ii) and (iii) of this paragraph,

where the aggregate maximum term of two or more consecutive sentences,

one or more of which is a determinate sentence and one or more of which

is an indeterminate sentence, and where such sentences are imposed for

the conviction of two violent felony offenses committed prior to the

time the person was imprisoned under any such sentences and where one of

which is a class B violent felony offense, the following rules shall

apply:

(A) if the aggregate maximum term of the determinate sentence or

sentences exceeds forty years, the defendant shall be deemed to be

serving a determinate sentence of forty years;

(B) if the aggregate maximum term of the determinate sentence or

sentences is less than forty years, the defendant shall be deemed to be

serving an indeterminate sentence the maximum term of which shall be

deemed to be forty years. In such instances, the minimum sentence shall

be deemed to be twenty years or six-sevenths of the term or aggregate

maximum term of the determinate sentence or sentences, whichever is

greater.

(vi) Notwithstanding subparagraphs (i) and (iv) of this paragraph, the

aggregate maximum term of consecutive sentences, all of which are

indeterminate or all of which are determinate sentences, imposed for the

conviction of three or more violent felony offenses committed prior to

the time the person was imprisoned under any of such sentences and one

of which is a class B violent felony offense, shall, if it exceeds fifty

years, be deemed to be fifty years;

(vii) Notwithstanding subparagraphs (ii), (iii) and (v) of this

paragraph, where the aggregate maximum term of two or more consecutive

sentences, one or more of which is a determinate sentence and one or

more of which is an indeterminate sentence, and where such sentences are

imposed for the conviction of three or more violent felony offenses

committed prior to the time the person was imprisoned under any such

sentences and one of which is a class B violent felony offense, the

following rules shall apply:

(A) if the aggregate maximum term of the determinate sentence or

sentences exceeds fifty years, the defendant shall be deemed to be

serving a determinate sentence of fifty years.

(B) if the aggregate maximum term of the determinate sentence or

sentences is less than fifty years, the defendant shall be deemed to be

serving an indeterminate sentence the maximum term of which shall be

deemed to be fifty years. In such instances, the minimum sentence shall

be deemed to be twenty-five years or six-sevenths of the term or

aggregate maximum term of the determinate sentence or sentences,

whichever is greater.

(viii) Notwithstanding any provision of this subdivision to the

contrary where a person is serving two or more consecutive sentences,

one or more of which is an indeterminate sentence and one or more of

which is a determinate sentence, and if he would be eligible for a

reduction provision pursuant to this subdivision if the maximum term or

aggregate maximum term of the indeterminate sentence or sentences were

added to the term or aggregate maximum term of the determinate sentence

or sentences, the person shall be deemed to be eligible for the

applicable reduction provision and the rules set forth in this

subdivision shall apply.

* NB Effective until September 1, 2027

* (f) The aggregate maximum term of consecutive sentences imposed upon

a juvenile offender for two or more crimes, not including a class A

felony, committed before he has reached the age of sixteen, shall, if it

exceeds ten years, be deemed to be ten years. If consecutive

indeterminate sentences imposed upon a juvenile offender include a

sentence for the class A felony of arson in the first degree or for the

class A felony of kidnapping in the first degree, then the aggregate

maximum term of such sentences shall, if it exceeds fifteen years, be

deemed to be fifteen years. Where the aggregate maximum term of two or

more consecutive sentences is reduced by a calculation made pursuant to

this paragraph, the aggregate minimum period of imprisonment, if it

exceeds one-half of the aggregate maximum term as so reduced, shall be

deemed to be one-half of the aggregate maximum term as so reduced.

* NB Effective until September 1, 2027

2. Definite sentences. A definite sentence of imprisonment commences

when the prisoner is received in the institution named in the

commitment. Where a person is under more than one definite sentence, the

sentences shall be calculated as follows:

(a) If the sentences run concurrently and are to be served in a single

institution, the terms merge in and are satisfied by discharge of the

term which has the longest unexpired time to run;

(b) If the sentences run consecutively and are to be served in a

single institution, the terms are added to arrive at an aggregate term

and are satisfied by discharge of such aggregate term, or by service of

two years imprisonment plus any term imposed for an offense committed

while the person is under the sentences, whichever is less;

(c) If the sentences run concurrently and are to be served in more

than one institution, the term of each such sentence shall be credited

with the portion of any concurrent term served after that sentence was

imposed;

(d) If the sentences run consecutively and are to be served in more

than one institution, the aggregate of the time served in all of the

institutions shall not exceed two years plus any term imposed for an

offense committed while the person is under the sentences.

2-a. Undischarged imprisonment in other jurisdiction. Where a person

who is subject to an undischarged term of imprisonment imposed at a

previous time by a court of another jurisdiction is sentenced to an

additional term or terms of imprisonment by a court of this state, to

run concurrently with such undischarged term, such additional term or

terms shall be deemed to commence when the said person is returned to

the custody of the appropriate official of such other jurisdiction where

the undischarged term of imprisonment is being served. If the additional

term or terms imposed shall run consecutively to the said undischarged

term, such additional term or terms shall commence when the prisoner is

received in the appropriate institution as provided in subdivisions one

and two of this section. The term or terms of such imprisonment shall be

calculated and such other pertinent provisions of this section applied

in the same manner as where a person is under more than one sentence in

this state as provided in this section.

* 3. Jail time. The term of a definite sentence, a determinate

sentence, or the maximum term of an indeterminate sentence imposed on a

person shall be credited with and diminished by the amount of time the

person spent in custody prior to the commencement of such sentence as a

result of the charge that culminated in the sentence. In the case of an

indeterminate sentence, if the minimum period of imprisonment has been

fixed by the court or by the board of parole, the credit shall also be

applied against the minimum period. The credit herein provided shall be

calculated from the date custody under the charge commenced to the date

the sentence commences and shall not include any time that is credited

against the term or maximum term of any previously imposed sentence or

period of post-release supervision to which the person is subject. Where

the charge or charges culminate in more than one sentence, the credit

shall be applied as follows:

(a) If the sentences run concurrently, the credit shall be applied

against each such sentence;

(b) If the sentences run consecutively, the credit shall be applied

against the aggregate term or aggregate maximum term of the sentences

and against the aggregate minimum period of imprisonment.

In any case where a person has been in custody due to a charge that

culminated in a dismissal or an acquittal, the amount of time that would

have been credited against a sentence for such charge, had one been

imposed, shall be credited against any sentence that is based on a

charge for which a warrant or commitment was lodged during the pendency

of such custody.

* NB Effective until September 1, 2027

* 3. Jail time. The term of a definite sentence or the maximum term of

an indeterminate sentence imposed on a person shall be credited with and

diminished by the amount of time the person spent in custody prior to

the commencement of such sentence as a result of the charge that

culminated in the sentence. In the case of an indeterminate sentence, if

the minimum period of imprisonment has been fixed by the court or by the

board of parole, the credit shall also be applied against the minimum

period. The credit herein provided shall be calculated from the date

custody under the charge commenced to the date the sentence commences

and shall not include any time that is credited against the term or

maximum term of any previously imposed sentence or period of

post-release supervision to which the person is subject. Where the

charge or charges culminate in more than one sentence, the credit shall

be applied as follows:

(a) If the sentences run concurrently, the credit shall be applied

against each such sentence;

(b) If the sentences run consecutively, the credit shall be applied

against the aggregate term or aggregate maximum term of the sentences

and against the aggregate minimum period of imprisonment.

In any case where a person has been in custody due to a charge that

culminated in a dismissal or an acquittal, the amount of time that would

have been credited against a sentence for such charge, had one been

imposed, shall be credited against any sentence that is based on a

charge for which a warrant or commitment was lodged during the pendency

of such custody.

* NB Effective September 1, 2027

* 4. Good behavior time. Time allowances earned for good behavior,

pursuant to the provisions of the correction law, shall be computed and

applied as follows:

(a) In the case of a person serving an indeterminate or determinate

sentence, the total of such allowances shall be calculated as provided

in section eight hundred three of the correction law and the allowances

shall be applied as provided in paragraph (b) of subdivision one of

section 70.40;

(b) In the case of a person serving a definite sentence, the total of

such allowances shall not exceed one-third of his term or aggregate term

and the allowances shall be applied as a credit against such term.

* NB Effective until September 1, 2027

* 4. Good behavior time. Time allowances earned for good behavior,

pursuant to the provisions of the correction law, shall be computed and

applied as follows:

(a) In the case of a person serving an indeterminate sentence, the

total of such allowances shall not exceed one-third of his maximum or

aggregate maximum term and the allowances shall be applied as provided

in subdivision one (b) of section 70.40;

(b) In the case of a person serving a definite sentence, the total of

such allowances shall not exceed one-third of his term or aggregate term

and the allowances shall be applied as a credit against such term.

* NB Effective September 1, 2027

5. Time served under vacated sentence. When a sentence of imprisonment

that has been imposed on a person is vacated and a new sentence is

imposed on such person for the same offense, or for an offense based

upon the same act, the new sentence shall be calculated as if it had

commenced at the time the vacated sentence commenced, and all time

credited against the vacated sentence shall be credited against the new

sentence. In any case where a vacated sentence also includes a period of

post-release supervision, all time credited against the period of

post-release supervision shall be credited against the period of

post-release supervision included with the new sentence. In the event a

period of post-release supervision is not included with the new

sentence, such period shall be credited against the new sentence.

6. Escape. When a person who is serving a sentence of imprisonment

escapes from custody, the escape shall interrupt the sentence and such

interruption shall continue until the return of the person to the

institution in which the sentence was being served or, if the sentence

was being served in an institution under the jurisdiction of the state

department of corrections and community supervision, to an institution

under the jurisdiction of that department. Any time spent by such person

in custody from the date of escape to the date the sentence resumes

shall be credited against the term or maximum term of the interrupted

sentence, provided:

(a) That such custody was due to an arrest or surrender based upon the

escape; or

(b) That such custody arose from an arrest on another charge which

culminated in a dismissal or an acquittal; or

(c) That such custody arose from an arrest on another charge which

culminated in a conviction, but in such case, if a sentence of

imprisonment was imposed, the credit allowed shall be limited to the

portion of the time spent in custody that exceeds the period, term or

maximum term of imprisonment imposed for such conviction.

* 7. Absconding from temporary release or furlough program. When a

person who is serving a sentence of imprisonment is permitted to leave

an institution to participate in a program of work release or furlough

program as such term is defined in section six hundred thirty-one of the

correction law, or in the case of an institution under the jurisdiction

of the state department of corrections and community supervision or a

facility under the jurisdiction of the state office of children and

family services to participate in a program of temporary release, fails

to return to the institution or facility at or before the time

prescribed for his or her return, such failure shall interrupt the

sentence and such interruption shall continue until the return of the

person to the institution in which the sentence was being served or, if

the sentence was being served in an institution under the jurisdiction

of the state department of corrections and community supervision or a

facility under the jurisdiction of the state office of children and

family services to an institution under the jurisdiction of that

department or a facility under the jurisdiction of that office. Any time

spent by such person in an institution from the date of his or her

failure to return to the date his or her sentence resumes shall be

credited against the term or maximum term of the interrupted sentence,

provided:

(a) That such incarceration was due to an arrest or surrender based

upon the failure to return; or

(b) That such incarceration arose from an arrest on another charge

which culminated in a dismissal or an acquittal; or

(c) That such custody arose from an arrest on another charge which

culminated in a conviction, but in such case, if a sentence of

imprisonment was imposed, the credit allowed shall be limited to the

portion of the time spent in custody that exceeds the period, term or

maximum term of imprisonment imposed for such conviction.

* NB Expires September 1, 2027

* § 70.35 Merger of certain definite and indeterminate or determinate

sentences.

The service of an indeterminate or determinate sentence of

imprisonment shall satisfy any definite sentence of imprisonment imposed

on a person for an offense committed prior to the time the indeterminate

or determinate sentence was imposed, except as provided in paragraph (b)

of subdivision five of section 70.25 of this article. A person who is

serving a definite sentence at the time an indeterminate or determinate

sentence is imposed shall be delivered to the custody of the state

department of corrections and community supervision to commence service

of the indeterminate or determinate sentence immediately unless the

person is serving a definite sentence pursuant to paragraph (b) of

subdivision five of section 70.25 of this article. In any case where the

indeterminate or determinate sentence is revoked or vacated, the person

shall receive credit against the definite sentence for each day spent in

the custody of the state department of corrections and community

supervision.

* NB Effective until September 1, 2027

* § 70.35 Merger of certain definite and indeterminate sentences.

The service of an indeterminate sentence of imprisonment shall satisfy

any definite sentence of imprisonment imposed on a person for an offense

committed prior to the time the indeterminate sentence was imposed,

except as provided in paragraph (b) of subdivision five of section 70.25

of this article. A person who is serving a definite sentence at the time

an indeterminate sentence is imposed shall be delivered to the custody

of the state department of corrections and community supervision to

commence service of the indeterminate sentence immediately unless the

person is serving a definite sentence pursuant to paragraph (b) of

subdivision five of section 70.25 of this article. In any case where the

indeterminate sentence is revoked or vacated, the person shall receive

credit against the definite sentence for each day spent in the custody

of the state department of corrections and community supervision.

* NB Effective September 1, 2027

Release on parole; conditional release; presumptive release.

1. Indeterminate sentence.

* (a) Release on parole shall be in the discretion of the state board

of parole, and such person shall continue service of his or her sentence

or sentences while on parole, in accordance with and subject to the

provisions of the executive law and the correction law.

(i) A person who is serving one or more than one indeterminate

sentence of imprisonment may be paroled from the institution in which he

or she is confined at any time after the expiration of the minimum or

the aggregate minimum period of the sentence or sentences or, where

applicable, the minimum or aggregate minimum period reduced by the merit

time allowance granted pursuant to paragraph (d) of subdivision one of

section eight hundred three of the correction law.

(ii) A person who is serving one or more than one determinate sentence

of imprisonment shall be ineligible for discretionary release on parole.

(iii) A person who is serving one or more than one indeterminate

sentence of imprisonment and one or more than one determinate sentence

of imprisonment, which run concurrently may be paroled at any time after

the expiration of the minimum period of imprisonment of the

indeterminate sentence or sentences, or upon the expiration of

six-sevenths of the term of imprisonment of the determinate sentence or

sentences, whichever is later.

(iv) A person who is serving one or more than one indeterminate

sentence of imprisonment and one or more than one determinate sentence

of imprisonment which run consecutively may be paroled at any time after

the expiration of the sum of the minimum or aggregate minimum period of

the indeterminate sentence or sentences and six-sevenths of the term or

aggregate term of imprisonment of the determinate sentence or sentences.

(v) Notwithstanding any other subparagraph of this paragraph, a person

may be paroled from the institution in which he or she is confined at

any time on medical parole pursuant to section two hundred fifty-nine-r

or section two hundred fifty-nine-s of the executive law or for

deportation pursuant to paragraph (d) of subdivision two of section two

hundred fifty-nine-i of the executive law or after the successful

completion of a shock incarceration program pursuant to article

twenty-six-A of the correction law.

* NB Effective until September 1, 2027

* (a) (i) A person who is serving one or more than one indeterminate

sentence of imprisonment may be paroled from the institution in which he

or she is confined at any time after the expiration of the minimum or

the aggregate minimum period of imprisonment of the sentence or

sentences or after the successful completion of a shock incarceration

program, as defined in article twenty-six-A of the correction law,

whichever is sooner. Release on parole shall be in the discretion of the

state board of parole, and such person shall continue service of his or

her sentence or sentences while on parole, in accordance with and

subject to the provisions of the executive law and the correction law.

(ii) A person who is serving one or more than one indeterminate

sentence of imprisonment may be paroled from the institution in which he

or she is confined at any time after the expiration of the minimum or

the aggregate minimum period of the sentence or sentences.

* NB Effective September 1, 2027

* (b) A person who is serving one or more than one indeterminate or

determinate sentence of imprisonment shall, if he or she so requests, be

conditionally released from the institution in which he or she is

confined when the total good behavior time allowed to him or her,

pursuant to the provisions of the correction law, is equal to the

unserved portion of his or her term, maximum term or aggregate maximum

term; provided, however, that (i) in no event shall a person serving one

or more indeterminate sentence of imprisonment and one or more

determinate sentence of imprisonment which run concurrently be

conditionally released until serving at least six-sevenths of the

determinate term of imprisonment which has the longest unexpired time to

run and (ii) in no event shall a person be conditionally released prior

to the date on which such person is first eligible for discretionary

parole release. The conditions of release, including those governing

post-release supervision, shall be such as may be imposed by the state

board of parole in accordance with the provisions of the executive law.

Every person so released shall be under the supervision of the state

department of corrections and community supervision for a period equal

to the unserved portion of the term, maximum term, aggregate maximum

term, or period of post-release supervision.

* NB Effective until September 1, 2027

* (b) A person who is serving one or more than one indeterminate

sentence of imprisonment shall, if he or she so requests, be

conditionally released from the institution in which he or she is

confined when the total good behavior time allowed to him or her,

pursuant to the provisions of the correction law, is equal to the

unserved portion of his or her maximum or aggregate maximum term. The

conditions of release, including those governing post-release

supervision, shall be such as may be imposed by the state board of

parole in accordance with the provisions of the executive law.

Every person so released shall be under the supervision of the

department of corrections and community supervision for a period equal

to the unserved portion of the maximum, aggregate maximum term, or

period of post-release supervision.

* NB Effective September 1, 2027

* (c) A person who is serving one or more than one indeterminate

sentence of imprisonment shall, if he or she so requests, be released

from the institution in which he or she is confined if granted

presumptive release pursuant to section eight hundred six of the

correction law. The conditions of release shall be such as may be

imposed by the state board of parole in accordance with the provisions

of the executive law. Every person so released shall be under the

supervision of the department of corrections and community supervision

for a period equal to the unserved portion of his or her maximum or

aggregate maximum term unless discharged in accordance with law.

* NB Repealed September 1, 2027

2. Definite sentence. A person who is serving one or more than one

definite sentence of imprisonment with a term or aggregate term in

excess of ninety days, and is eligible for release according to the

criteria set forth in paragraphs (a), (b) and (c) of subdivision one of

section two hundred seventy-three of the correction law, may, if he or

she so requests, be conditionally released from the institution in which

he or she is confined at any time after service of sixty days of that

term, exclusive of credits allowed under subdivisions four and six of

section 70.30. In computing service of sixty days, the credit allowed

for jail time under subdivision three of section 70.30 shall be

calculated as time served. Conditional release from such institution

shall be in the discretion of the parole board, or a local conditional

release commission established pursuant to article twelve of the

correction law, provided, however that where such release is by a local

conditional release commission, the person must be serving a definite

sentence with a term in excess of one hundred twenty days and may only

be released after service of ninety days of such term. In computing

service of ninety days, the credit allowed for jail time under

subdivision three of section 70.30 of this article shall be calculated

as time served. A conditional release granted under this subdivision

shall be upon such conditions as may be imposed by the parole board, in

accordance with the provisions of the executive law, or a local

conditional release commission in accordance with the provisions of the

correction law.

Conditional release shall interrupt service of the sentence or

sentences and the remaining portion of the term or aggregate term shall

be held in abeyance. Every person so released shall be under the

supervision of the department of corrections and community supervision

or a local probation department and in the custody of the local

conditional release commission in accordance with article twelve of the

correction law, for a period of one year. The local probation department

shall cause complete records to be kept of every person released to its

supervision pursuant to this subdivision. The department of corrections

and community supervision may supply to a local probation department and

the local conditional release commission custody information and records

maintained on persons under the supervision of such local probation

department to aid in the performance of its supervision

responsibilities. Compliance with the conditions of release during the

period of supervision shall satisfy the portion of the term or aggregate

term that has been held in abeyance.

3. Delinquency. (a) When a person is alleged to have violated the

terms of presumptive release or parole by absconding, and the state

board of parole has declared such person to be delinquent, the

declaration of delinquency shall interrupt the person's sentence as of

the date of the delinquency and such interruption shall continue until

the releasee's appearance in response to a notice of violation or the

date of the execution of a warrant, whichever is earlier.

(b) When a person is alleged to have violated the terms of his or her

conditional release or post-release supervision by absconding and has

been declared delinquent by the parole board or the local conditional

release commission having supervision over such person, the declaration

of delinquency shall interrupt the period of supervision or post-release

supervision as of the date of the delinquency. For a conditional

release, such interruption shall continue until the releasee's

appearance in response to a notice of violation or the date of the

execution of a warrant, whichever is earlier. For a person released to

post-release supervision, the provisions of section 70.45 of this

article shall apply.

(c) Any time spent by a person in custody from the time of execution

of a warrant pursuant to paragraph (a) of subdivision three of section

two hundred fifty-nine-i of the executive law to the time service of the

sentence resumes shall be credited against the term or maximum term of

the interrupted sentence.

4. Earned time credits. (a) Any person subject to community

supervision shall be awarded earned time credits. The calculation of

earned time credit periods shall begin on the releasee's first day of

community supervision and shall be awarded after each completed thirty

day period in compliance with the terms of their community supervision.

Any such awarded earned time credits shall be applied against such

person's unserved portion of the maximum term, aggregate maximum term or

period of post-release supervision for any current sentence. Persons

subject to a sentence with a maximum term of life imprisonment or

lifetime supervision shall not be eligible to receive earned time

credits under this section.

(b) After a person has begun a period of community supervision

pursuant to this section and section 70.45 of this article, such period

of community supervision shall be reduced by thirty days for every

thirty days that such person does not violate a condition of and remains

in compliance with all conditions of his or her community supervision,

provided, however, that the person is not subject to any sentence with a

maximum term of life imprisonment or lifetime supervision. When a person

is subject to more than one period of community supervision, the

reduction authorized in this subdivision shall be applied to every such

period of parole or conditional release to which the person is subject.

(c) Retroactive earned time credits shall be awarded to eligible

persons subject to community supervision at the time this legislation

becomes effective, provided, however, that the maximum allowable

retroactive earned time credit awarded shall not exceed a period of two

years. Retroactive earned time credits shall not be awarded to any

releasee serving a term of reincarceration for a sustained parole

violation at the time of the effective date of the chapter of the laws

of two thousand twenty-one that added this subdivision until the

releasee is returned to community supervision. Persons subject to a

sentence with a maximum term of life imprisonment or lifetime

supervision shall not be eligible to receive retroactive earned time

credits under this section.

(d) If a releasee's current period of community supervision has been

interrupted by a period of reincarceration prior to the effective date

of the chapter of the laws of two thousand twenty-one that added this

subdivision, no earned time credits shall be awarded for such period of

reincarceration. The department shall calculate retroactive earned time

credits within one year after the bill shall have become law and shall

prioritize earned time credit calculations for releasees whose terms of

community supervision are due to terminate before June first, two

thousand twenty-two.

(e) Earned time credits may be withheld or revoked for the thirty-day

period commencing from the date of violative behavior as sustained at a

final revocation hearing, or for the period during which a releasee

absconded from supervision, as sustained at a final revocation hearing.

Earned time credits may not be earned and shall be suspended: (i) during

a period of reincarceration imposed for any sustained violation; (ii)

during the period in which the individual has absconded; or (iii)

pending the outcome of a preliminary or final revocation hearing. If, at

the preliminary hearing, there is no finding by a preponderance of the

evidence of a violation of a condition of release in an important

respect or a violation is not sustained at the final revocation hearing,

then the individual shall be deemed to have been in compliance with the

terms of release and shall be awarded earned time credits from the

period in which the accrual was suspended. If a violation is sustained,

the calculation of an earned time credit period shall recommence on the

thirty-first day after the date of the violative behavior or, if the

sustained violation or conviction resulted in a term of reincarceration,

on the day the releasee is restored to community supervision, whichever

is later.

(f) At least every one hundred eighty days from the first date of a

person's release to community supervision, and every one hundred eighty

days thereafter, the department of corrections and community supervision

shall provide each person on community supervision a report indicating

the total earned time credits received, the total earned time credits

received in the prior one hundred eighty days, the total earned time

credits withheld, the total earned time credits withheld in the prior

one hundred eighty days, the total amount of time reduced from the

person's sentence, and the person's earliest release date based on the

amount of earned time credits received. The department shall provide the

report in written or electronic form.

Determinate sentence; post-release supervision.

1. In general. When a court imposes a determinate sentence it shall in

each case state not only the term of imprisonment, but also an

additional period of post-release supervision as determined pursuant to

this article. Such period shall commence as provided in subdivision five

of this section and a violation of any condition of supervision

occurring at any time during such period of post-release supervision

shall subject the defendant to a further period of imprisonment up to

the balance of the remaining period of post-release supervision, not to

exceed five years; provided, however, that a defendant serving a term of

post-release supervision for a conviction of a felony sex offense, as

defined in section 70.80 of this article, may be subject to a further

period of imprisonment up to the balance of the remaining period of

post-release supervision. Such maximum limits shall not preclude a

longer period of further imprisonment for a violation where the

defendant is subject to indeterminate and determinate sentences.

1-a. When, following a final hearing, a time assessment has been

imposed upon a person convicted of a felony sex offense who owes three

years or more on a period of post-release supervision, imposed pursuant

to subdivision two-a of this section, such defendant, after serving

three years of the time assessment, shall be reviewed by the board of

parole and may be re-released to post-release supervision only upon a

determination by the board of parole made in accordance with subdivision

two of section two hundred fifty-nine-i of the executive law. If

re-release is not granted, the board shall specify a date not more than

twenty-four months from such determination for reconsideration, and the

procedures to be followed upon reconsideration shall be the same. If a

time assessment of less than three years is imposed upon such a

defendant, the defendant shall be released upon the expiration of such

time assessment, unless he or she is subject to further imprisonment or

confinement under any provision of law.

2. Period of post-release supervision for other than felony sex

offenses. The period of post-release supervision for a determinate

sentence, other than a determinate sentence imposed for a felony sex

offense as defined in paragraph (a) of subdivision one of section 70.80

of this article, shall be five years except that:

(a) such period shall be one year whenever a determinate sentence of

imprisonment is imposed pursuant to subdivision two of section 70.70 of

this article or subdivision nine of section 60.12 of this title upon a

conviction of a class D or class E felony offense;

(b) such period shall be not less than one year nor more than two

years whenever a determinate sentence of imprisonment is imposed

pursuant to subdivision two of section 70.70 of this article or

subdivision nine of section 60.12 of this title upon a conviction of a

class B or class C felony offense;

(c) such period shall be not less than one year nor more than two

years whenever a determinate sentence of imprisonment is imposed

pursuant to subdivision three or four of section 70.70 of this article

upon conviction of a class D or class E felony offense or subdivision

ten of section 60.12 of this title;

(d) such period shall be not less than one and one-half years nor more

than three years whenever a determinate sentence of imprisonment is

imposed pursuant to subdivision three or four of section 70.70 of this

article upon conviction of a class B felony or class C felony offense or

subdivision eleven of section 60.12 of this title;

(e) such period shall be not less than one and one-half years nor more

than three years whenever a determinate sentence of imprisonment is

imposed pursuant to subdivision three of section 70.02 of this article

or subdivision two or eight of section 60.12 of this title upon a

conviction of a class D or class E violent felony offense or subdivision

four, five, six, or seven of section 60.12 of this title;

(f) such period shall be not less than two and one-half years nor more

than five years whenever a determinate sentence of imprisonment is

imposed pursuant to subdivision three of section 70.02 of this article

or subdivision two or eight of section 60.12 of this title upon a

conviction of a class B or class C violent felony offense.

2-a. Periods of post-release supervision for felony sex offenses. The

period of post-release supervision for a determinate sentence imposed

for a felony sex offense as defined in paragraph (a) of subdivision one

of section 70.80 of this article shall be as follows:

(a) not less than three years nor more than ten years whenever a

determinate sentence of imprisonment is imposed pursuant to subdivision

four of section 70.80 of this article upon a conviction of a class D or

class E felony sex offense;

(b) not less than five years nor more than fifteen years whenever a

determinate sentence of imprisonment is imposed pursuant to subdivision

four of section 70.80 of this article upon a conviction of a class C

felony sex offense;

(c) not less than five years nor more than twenty years whenever a

determinate sentence of imprisonment is imposed pursuant to subdivision

four of section 70.80 of this article upon a conviction of a class B

felony sex offense;

(d) not less than three years nor more than ten years whenever a

determinate sentence is imposed pursuant to subdivision three of section

70.02 of this article upon a conviction of a class D or class E violent

felony sex offense as defined in paragraph (b) of subdivision one of

section 70.80 of this article;

(e) not less than five years nor more than fifteen years whenever a

determinate sentence is imposed pursuant to subdivision three of section

70.02 of this article upon a conviction of a class C violent felony sex

offense as defined in section 70.80 of this article;

(f) not less than five years nor more than twenty years whenever a

determinate sentence is imposed pursuant to subdivision three of section

70.02 of this article upon a conviction of a class B violent felony sex

offense as defined in section 70.80 of this article;

(g) not less than five years nor more than fifteen years whenever a

determinate sentence of imprisonment is imposed pursuant to either

section 70.04, section 70.06, or subdivision five of section 70.80 of

this article upon a conviction of a class D or class E violent or

non-violent felony sex offense as defined in section 70.80 of this

article;

(h) not less than seven years nor more than twenty years whenever a

determinate sentence of imprisonment is imposed pursuant to either

section 70.04, section 70.06, or subdivision five of section 70.80 of

this article upon a conviction of a class C violent or non-violent

felony sex offense as defined in section 70.80 of this article;

(i) such period shall be not less than ten years nor more than

twenty-five years whenever a determinate sentence of imprisonment is

imposed pursuant to either section 70.04, section 70.06, or subdivision

five of section 70.80 of this article upon a conviction of a class B

violent or non-violent felony sex offense as defined in section 70.80 of

this article; and

(j) such period shall be not less than ten years nor more than twenty

years whenever any determinate sentence of imprisonment is imposed

pursuant to subdivision four of section 70.07 of this article.

3. Conditions of post-release supervision. The board of parole shall

establish and impose conditions of post-release supervision in the same

manner and to the same extent as it may establish and impose conditions

in accordance with the executive law upon persons who are granted parole

or conditional release; provided that, notwithstanding any other

provision of law, the board of parole may impose as a condition of

post-release supervision that for a period not exceeding six months

immediately following release from the underlying term of imprisonment

the person be transferred to and participate in the programs of a

residential treatment facility as that term is defined in subdivision

six of section two of the correction law. Upon release from the

underlying term of imprisonment, the person shall be furnished with a

written statement setting forth the conditions of post-release

supervision in sufficient detail to provide for the person's conduct and

supervision.

4. Revocation of post-release supervision. An alleged violation of any

condition of post-release supervision shall be initiated, heard and

determined in accordance with the provisions of subdivisions three and

four of section two hundred fifty-nine-i of the executive law.

5. Calculation of service of period of post-release supervision. A

period or periods of post-release supervision shall be calculated and

served as follows:

(a) A period of post-release supervision shall commence upon the

person's release from imprisonment to supervision by the department of

corrections and community supervision and shall interrupt the running of

the determinate sentence or sentences of imprisonment and the

indeterminate sentence or sentences of imprisonment, if any. The

remaining portion of any maximum or aggregate maximum term shall then be

held in abeyance until the successful completion of the period of

post-release supervision or the person's return to the custody of the

department of corrections and community supervision, whichever occurs

first.

(b) Upon the completion of the period of post-release supervision, the

running of such sentence or sentences of imprisonment shall resume and

only then shall the remaining portion of any maximum or aggregate

maximum term previously held in abeyance be credited with and diminished

by such period of post-release supervision. The person shall then be

under the jurisdiction of the department of corrections and community

supervision for the remaining portion of such maximum or aggregate

maximum term.

(c) When a person is subject to two or more periods of post-release

supervision, such periods shall merge with and be satisfied by discharge

of the period of post-release supervision having the longest unexpired

time to run; provided, however, any time served upon one period of

post-release supervision shall not be credited to any other period of

post-release supervision except as provided in subdivision five of

section 70.30 of this article.

(d) When a person is alleged to have violated a condition of

post-release supervision by absconding and the department of corrections

and community supervision has declared such person to be delinquent: (i)

the declaration of delinquency shall interrupt the period of

post-release supervision; (ii) such interruption shall continue until

the person is restored to post-release supervision; (iii) if the person

is restored to post-release supervision without being returned to the

department of corrections and community supervision, any time spent in

custody from the date of delinquency until restoration to post-release

supervision shall first be credited to the maximum or aggregate maximum

term of the sentence or sentences of imprisonment, but only to the

extent authorized by subdivision three of section 70.40 of this article.

Any time spent in custody solely pursuant to such delinquency after

completion of the maximum or aggregate maximum term of the sentence or

sentences of imprisonment shall be credited to the period of

post-release supervision, if any; and (iv) if the person is ordered

returned to the department of corrections and community supervision, the

person shall be required to serve the time assessment before being

re-released to post-release supervision. If the person is detained

pursuant to paragraph (a) of subdivision three of section two hundred

fifty-nine-i of the executive law pending a preliminary or final

revocation hearing, the time assessment imposed following such hearing

shall commence upon the execution of the warrant. If a warrant was

executed pursuant to paragraph (a) of subdivision three of section two

hundred fifty-nine-i of the executive law but a court released the

person pending a preliminary or final revocation hearing, the time

assessment shall commence upon the issuance of a determination after a

final hearing that the person has violated one or more conditions of

community supervision in an important respect, and shall include the

time period between execution of the warrant and release of the person

pending a preliminary or final revocation hearing. If a releasee is

committed to the custody of the sheriff pursuant to article five hundred

thirty of the criminal procedure law, the time assessment, if any, shall

include any time the releasee spent in such custody. If a notice of

violation was issued pursuant to subdivision three of section two

hundred fifty-nine-i of the executive law, the time assessment shall

commence upon the issuance of a determination after a final hearing that

the person has violated one or more conditions of supervision. While

serving such assessment, the person shall not receive any good behavior

allowance pursuant to section eight hundred three of the correction law.

Any time spent in custody from the date of delinquency until return to

the department of corrections and community supervision shall first be

credited to the maximum or aggregate maximum term of the sentence or

sentences of imprisonment, but only to the extent authorized by

subdivision three of section 70.40 of this article. The maximum or

aggregate maximum term of the sentence or sentences of imprisonment

shall run while the person is serving such time assessment in the

custody of the department of corrections and community supervision. Any

time spent in custody solely pursuant to such delinquency after

completion of the maximum or aggregate maximum term of the sentence or

sentences of imprisonment shall be credited to the period of

post-release supervision, if any.

(e) Notwithstanding paragraph (d) of this subdivision, in the event a

person is sentenced to one or more additional indeterminate or

determinate term or terms of imprisonment prior to the completion of the

period of post-release supervision, such period of post-release

supervision shall be held in abeyance and the person shall be committed

to the custody of the department of corrections and community

supervision in accordance with the requirements of the prior and

additional terms of imprisonment.

(f) When a person serving a period of post-release supervision is

returned to the department of corrections and community supervision

pursuant to an additional consecutive sentence of imprisonment and

without a declaration of delinquency, such period of post-release

supervision shall be held in abeyance while the person is in the custody

of the department of corrections and community supervision. Such period

of post-release supervision shall resume running upon the person's

re-release.

Sentence of imprisonment for felony drug offender other than a

class A felony.

1. For the purposes of this section, the following terms shall mean:

(a) "Felony drug offender" means a defendant who stands convicted of

any felony, defined in article two hundred twenty or two hundred

twenty-two of this chapter other than a class A felony.

(b) "Second felony drug offender" means a second felony offender as

that term is defined in subdivision one of section 70.06 of this

article, who stands convicted of any felony, defined in article two

hundred twenty or two hundred twenty-two of this chapter other than a

class A felony.

(c) "Violent felony" shall have the same meaning as that term is

defined in subdivision one of section 70.02 of this article.

2. Except as provided in subdivision three or four of this section, a

sentence of imprisonment for a felony drug offender shall be a

determinate sentence as provided in paragraph (a) of this subdivision.

(a) Term of determinate sentence. Except as provided in paragraph (b)

or (c) of this subdivision, the court shall impose a determinate term of

imprisonment upon a felony drug offender which shall be imposed by the

court in whole or half years, which shall include as a part thereof a

period of post-release supervision in accordance with section 70.45 of

this article. The terms of imprisonment authorized for such determinate

sentences are as follows:

(i) for a class B felony, the term shall be at least one year and

shall not exceed nine years, except that for the class B felony of

criminal sale of a controlled substance in or near school grounds as

defined in subdivision two of section 220.44 of this chapter or on a

school bus as defined in subdivision seventeen of section 220.00 of this

chapter or criminal sale of a controlled substance to a child as defined

in section 220.48 of this chapter, the term shall be at least two years

and shall not exceed nine years;

(ii) for a class C felony, the term shall be at least one year and

shall not exceed five and one-half years;

(iii) for a class D felony, the term shall be at least one year and

shall not exceed two and one-half years; and

(iv) for a class E felony, the term shall be at least one year and

shall not exceed one and one-half years.

(b) Probation. Notwithstanding any other provision of law, the court

may sentence a defendant convicted of a class B, class C, class D or

class E felony offense defined in article two hundred twenty or two

hundred twenty-two of this chapter to probation in accordance with the

provisions of sections 60.04 and 65.00 of this chapter.

(c) Alternative definite sentence for class B, class C, class D, and

class E felonies. If the court, having regard to the nature and

circumstances of the crime and to the history and character of the

defendant, is of the opinion that a sentence of imprisonment is

necessary but that it would be unduly harsh to impose a determinate

sentence upon a person convicted of a class C, class D or class E felony

offense defined in article two hundred twenty or two hundred twenty-two

of this chapter, or a class B felony defined in article two hundred

twenty of this chapter, other than the class B felony defined in section

220.48 of this chapter, as added by a chapter of the laws of two

thousand nine the court may impose a definite sentence of imprisonment

and fix a term of one year or less.

(d) The court may direct that a determinate sentence imposed on a

defendant convicted of a class B felony, other than the class B felony

defined in section 220.48 of this chapter, pursuant to this subdivision

be executed as a sentence of parole supervision in accordance with

section 410.91 of the criminal procedure law.

3. Sentence of imprisonment for second felony drug offender.

(a) Applicability. This subdivision shall apply to a second felony

drug offender whose prior felony conviction was not a violent felony.

(b) Except as provided in paragraphs (c), (d) and (e) of this

subdivision, when the court has found pursuant to the provisions of

section 400.21 of the criminal procedure law that a defendant is a

second felony drug offender who stands convicted of a class B, class C,

class D or class E felony offense defined in article two hundred twenty

or two hundred twenty-two of this chapter the court shall impose a

determinate sentence of imprisonment. Such determinate sentence shall

include as a part thereof a period of post-release supervision in

accordance with section 70.45 of this article. The terms of such

determinate sentence shall be imposed by the court in whole or half

years as follows:

(i) for a class B felony, the term shall be at least two years and

shall not exceed twelve years;

(ii) for a class C felony, the term shall be at least one and one-half

years and shall not exceed eight years;

(iii) for a class D felony, the term shall be at least one and

one-half years and shall not exceed four years; and

(iv) for a class E felony, the term shall be at least one and one-half

years and shall not exceed two years.

(c) Probation. Notwithstanding any other provision of law, the court

may sentence a second felony drug offender convicted of a class B felony

to lifetime probation in accordance with the provisions of section 65.00

of this chapter and may sentence a second felony drug offender convicted

of a class C, class D or class E felony to probation in accordance with

the provisions of section 65.00 of this chapter.

(d) Sentence of parole supervision. In the case of a person sentenced

for a specified offense or offenses as defined in subdivision five of

section 410.91 of the criminal procedure law, who stands convicted of no

other felony offense, who has not previously been convicted of either a

violent felony offense as defined in section 70.02 of this article, a

class A felony offense or a class B felony offense, and is not under the

jurisdiction of or awaiting delivery to the department of corrections

and community supervision, the court may direct that a determinate

sentence imposed pursuant to this subdivision shall be executed as a

parole supervision sentence as defined in and pursuant to the procedures

prescribed in section 410.91 of the criminal procedure law.

(e) Alternate definite sentence for class C, class D and class E

felonies. If the court, having regard to the nature and circumstances of

the crime and to the history and character of the defendant, is of the

opinion that a sentence of imprisonment is necessary but that it would

be unduly harsh to impose a determinate sentence upon a person convicted

of a class C, class D or class E felony offense defined in article two

hundred twenty or two hundred twenty-two of this chapter, the court may

impose a definite sentence of imprisonment and fix a term of one year or

less.

4. Sentence of imprisonment for second felony drug offender previously

convicted of a violent felony.

(a) Applicability. This subdivision shall apply to a second felony

drug offender whose prior felony conviction was a violent felony.

(b) Authorized sentence. When the court has found pursuant to the

provisions of section 400.21 of the criminal procedure law that a

defendant is a second felony drug offender whose prior felony conviction

was a violent felony, who stands convicted of a class B, class C, class

D or class E felony offense defined in article two hundred twenty or two

hundred twenty-two of this chapter, the court shall impose a determinate

sentence of imprisonment. Such determinate sentence shall include as a

part thereof a period of post-release supervision in accordance with

section 70.45 of this article. The terms of such determinate sentence

shall be imposed by the court in whole or half years as follows:

(i) for a class B felony, the term shall be at least six years and

shall not exceed fifteen years;

(ii) for a class C felony, the term shall be at least three and

one-half years and shall not exceed nine years;

(iii) for a class D felony, the term shall be at least two and

one-half years and shall not exceed four and one-half years; and

(iv) for a class E felony, the term shall be at least two years and

shall not exceed two and one-half years.

Sentence of imprisonment for a class A felony drug offender.

1. For the purposes of this section, the following terms shall mean:

(a) "Felony drug offender" means a defendant who stands convicted of

any class A felony as defined in article two hundred twenty of this

chapter.

(b) "Second felony drug offender" means a second felony offender as

that term is defined in subdivision one of section 70.06 of this

article, who stands convicted of and is to be sentenced for any class A

felony as defined in article two hundred twenty of this chapter.

(c) "Violent felony offense" shall have the same meaning as that term

is defined in subdivision one of section 70.02 of this article.

2. Sentence of imprisonment for a first felony drug offender.

(a) Applicability. Except as provided in subdivision three, four or

five of this section, this subdivision shall apply to a person convicted

of a class A felony as defined in article two hundred twenty of this

chapter.

(b) Authorized sentence. The court shall impose a determinate term of

imprisonment which shall be imposed by the court in whole or half years

and which shall include as a part thereof a period of post-release

supervision in accordance with section 70.45 of this article. The terms

authorized for such determinate sentences are as follows:

(i) for a class A-I felony, the term shall be at least eight years and

shall not exceed twenty years;

(ii) for a class A-II felony, the term shall be at least three years

and shall not exceed ten years.

(c) Lifetime probation. Notwithstanding any other provision of law,

the court may sentence a defendant convicted of a class A-II felony

defined in article two hundred twenty of this chapter to lifetime

probation in accordance with the provisions of section 65.00 of this

chapter.

3. Sentence of imprisonment for a second felony drug offender.

(a) Applicability. This subdivision shall apply to a second felony

drug offender whose prior felony conviction or convictions did not

include one or more violent felony offenses.

(b) Authorized sentence. When the court has found pursuant to the

provisions of section 400.21 of the criminal procedure law that a

defendant is a second felony drug offender who stands convicted of a

class A felony as defined in article two hundred twenty or two hundred

twenty-one of this chapter, the court shall impose a determinate

sentence of imprisonment. Such determinate sentence shall include as a

part thereof a period of post-release supervision in accordance with

section 70.45 of this article. Such determinate sentence shall be

imposed by the court in whole or half years as follows:

(i) for a class A-I felony, the term shall be at least twelve years

and shall not exceed twenty-four years;

(ii) for a class A-II felony, the term shall be at least six years and

shall not exceed fourteen years.

(c) Lifetime probation. Notwithstanding any other provision of law,

the court may sentence a defendant convicted of a class A-II felony

defined in article two hundred twenty of this chapter to lifetime

probation in accordance with the provisions of section 65.00 of this

chapter.

4. Sentence of imprisonment for a second felony drug offender

previously convicted of a violent felony offense.

(a) Applicability. This subdivision shall apply to a second felony

drug offender whose prior felony conviction was a violent felony.

(b) Authorized sentence. When the court has found pursuant to the

provisions of section 400.21 of the criminal procedure law that a

defendant is a second felony drug offender whose prior felony conviction

was a violent felony, who stands convicted of a class A felony as

defined in article two hundred twenty or two hundred twenty-one of this

chapter, the court shall impose a determinate sentence of imprisonment.

Such determinate sentence shall include as a part thereof a period of

post-release supervision in accordance with section 70.45 of this

article. Such determinate sentence shall be imposed by the court in

whole or half years as follows:

(i) for a class A-I felony, the term shall be at least fifteen years

and shall not exceed thirty years;

(ii) for a class A-II felony, the term shall be at least eight years

and shall not exceed seventeen years.

5. Sentence of imprisonment for operating as a major trafficker.

(a) Applicability. This subdivision shall apply to a person convicted

of the class A-I felony of operating as a major trafficker as defined in

section 220.77 of this chapter.

(b) Authorized sentence. Except as provided in paragraph (c) of this

subdivision, the court shall impose an indeterminate term of

imprisonment for an A-I felony, in accordance with the provisions of

section 70.00 of this article.

(c) Alternative determinate sentence. If a defendant stands convicted

of violating section 220.77 of this chapter, and if the court, having

regard to the nature and circumstances of the crime and the history and

character of the defendant, is of the opinion that a sentence of

imprisonment is necessary but that it would be unduly harsh to impose

the indeterminate sentence for a class A-I felony specified under

section 70.00 of this article, the court may instead impose the

determinate sentence of imprisonment authorized by clause (i) of

subparagraph (b) of subdivision two of this section for a class A-I drug

felony; in such case, the reasons for the court's opinion shall be set

forth on the record.

Sentences of imprisonment for conviction of a felony sex

offense.

1. Definitions. (a) For the purposes of this section, a "felony sex

offense" means a conviction of any felony defined in article one hundred

thirty of this chapter, including a sexually motivated felony, or

patronizing a person for prostitution in the first degree as defined in

section 230.06 of this chapter, patronizing a person for prostitution in

the second degree as defined in section 230.05 of this chapter,

aggravated patronizing a minor for prostitution in the third degree as

defined in section 230.11 of this chapter, aggravated patronizing a

minor for prostitution in the second degree as defined in section 230.12

of this chapter, aggravated patronizing a minor for prostitution in the

first degree as defined in section 230.13 of this chapter, incest in the

second degree as defined in section 255.26 of this chapter, or incest in

the first degree as defined in section 255.27 of this chapter, or a

felony attempt or conspiracy to commit any of the above.

(b) A felony sex offense shall be deemed a "violent felony sex

offense" if it is for an offense defined as a violent felony offense in

section 70.02 of this article, or for a sexually motivated felony as

defined in section 130.91 of this chapter where the specified offense is

a violent felony offense as defined in section 70.02 of this article.

(c) For the purposes of this section, a "predicate felony sex

offender" means a person who stands convicted of any felony sex offense

as defined in paragraph (a) of this subdivision, other than a class A-I

felony, after having previously been subjected to one or more predicate

felony convictions as defined in subdivision one of section 70.06 or

subdivision one of section 70.04 of this article.

(d) For purposes of this section, a "violent felony offense" is any

felony defined in subdivision one of section 70.02 of this article, and

a "non-violent felony offense" is any felony not defined therein.

2. In imposing a sentence within the authorized statutory range for

any felony sex offense, the court may consider all relevant factors set

forth in section 1.05 of this chapter, and in particular, may consider

the defendant's criminal history, if any, including any history of sex

offenses; any mental illness or mental abnormality from which the

defendant may suffer; the defendant's ability or inability to control

his sexual behavior; and, if the defendant has difficulty controlling

such behavior, the extent to which that difficulty may pose a threat to

society.

3. Except as provided by subdivision four, five, six, seven or eight

of this section, or when a defendant is being sentenced for a conviction

of the class A-II felonies of predatory sexual assault and predatory

sexual assault against a child as defined in sections 130.95 and 130.96

of this chapter, or for any class A-I sexually motivated felony for

which a life sentence or a life without parole sentence must be imposed,

a sentence imposed upon a defendant convicted of a felony sex offense

shall be a determinate sentence. The determinate sentence shall be

imposed by the court in whole or half years, and shall include as a part

thereof a period of post-release supervision in accordance with

subdivision two-a of section 70.45 of this article. Persons eligible for

sentencing under section 70.07 of this article governing second child

sexual assault felonies shall be sentenced under such section and

paragraph (j) of subdivision two-a of section 70.45 of this article.

4. (a) Sentences of imprisonment for felony sex offenses. Except as

provided in subdivision five, six, seven, or eight of this section, the

term of the determinate sentence must be fixed by the court as follows:

(i) for a class B felony, the term must be at least five years and

must not exceed twenty-five years;

(ii) for a class C felony, the term must be at least three and

one-half years and must not exceed fifteen years;

(iii) for a class D felony, the term must be at least two years and

must not exceed seven years; and

(iv) for a class E felony, the term must be at least one and one-half

years and must not exceed four years.

(b) Probation. The court may sentence a defendant convicted of a class

D or class E felony sex offense to probation in accordance with the

provisions of section 65.00 of this title.

(c) Alternative definite sentences for class D and class E felony sex

offenses. If the court, having regard to the nature and circumstances of

the crime and to the history and character of the defendant, is of the

opinion that a sentence of imprisonment is necessary but that it would

be unduly harsh to impose a determinate sentence upon a person convicted

of a class D or class E felony sex offense, the court may impose a

definite sentence of imprisonment and fix a term of one year or less.

5. Sentence of imprisonment for a predicate felony sex offender. (a)

Applicability. This subdivision shall apply to a predicate felony sex

offender who stands convicted of a non-violent felony sex offense and

who was previously convicted of one or more felonies.

(b) Non-violent predicate felony offense. When the court has found,

pursuant to the provisions of the criminal procedure law, that a person

is a predicate felony sex offender, and the person's predicate

conviction was for a non-violent felony offense, the court must impose a

determinate sentence of imprisonment, the term of which must be fixed by

the court as follows:

(i) for a class B felony, the term must be at least eight years and

must not exceed twenty-five years;

(ii) for a class C felony, the term must be at least five years and

must not exceed fifteen years;

(iii) for a class D felony, the term must be at least three years and

must not exceed seven years; and

(iv) for a class E felony, the term must be at least two years and

must not exceed four years.

(c) Violent predicate felony offense. When the court has found,

pursuant to the provisions of the criminal procedure law, that a person

is a predicate felony sex offender, and the person's predicate

conviction was for a violent felony offense, the court must impose a

determinate sentence of imprisonment, the term of which must be fixed by

the court as follows:

(i) for a class B felony, the term must be at least nine years and

must not exceed twenty-five years;

(ii) for a class C felony, the term must be at least six years and

must not exceed fifteen years;

(iii) for a class D felony, the term must be at least four years and

must not exceed seven years; and

(iv) for a class E felony, the term must be at least two and one-half

years and must not exceed four years.

(d) A defendant who stands convicted of a non-violent felony sex

offense, other than a class A-I or class A-II felony, who is adjudicated

a persistent felony offender under section 70.10 of this article, shall

be sentenced pursuant to the provisions of section 70.10 or pursuant to

this subdivision.

6. Sentence of imprisonment for a violent felony sex offense. Except

as provided in subdivisions seven and eight of this section, a defendant

who stands convicted of a violent felony sex offense must be sentenced

pursuant to the provisions of section 70.02, section 70.04, subdivision

six of section 70.06, section 70.08, or section 70.10 of this article,

as applicable.

7. Sentence for a class A felony sex offense. When a person stands

convicted of a sexually motivated felony pursuant to section 130.91 of

this chapter and the specified offense is a class A felony, the court

must sentence the defendant in accordance with the provisions of:

(a) section 60.06 of this chapter and section 70.00 of this article,

as applicable, if such offense is a class A-I felony; and

(b) section 70.00, 70.06 or 70.08 of this article, as applicable, if

such offense is a class A-II felony.

8. Whenever a juvenile offender stands convicted of a felony sex

offense, he or she must be sentenced pursuant to the provisions of

sections 60.10 and 70.05 of this chapter.

9. Every determinate sentence for a felony sex offense, as defined in

paragraph (a) of subdivision one of this section, imposed pursuant to

any section of this article, shall include as a part thereof a period of

post-release supervision in accordance with subdivision two-a of section

70.45 of this article.

Transitional exception to determinate sentencing laws.

This section shall apply only to cases in which a determinate sentence

was imposed between September first, nineteen hundred ninety-eight, and

the effective date of this section, and was required by law to include a

term of post-release supervision, but the court did not explicitly state

such a term when pronouncing sentence. When such a case is again before

the court pursuant to section six hundred one-d of the correction law or

otherwise, for consideration of whether to resentence, the court may,

notwithstanding any other provision of law but only on consent of the

district attorney, re-impose the originally imposed determinate sentence

of imprisonment without any term of post-release supervision, which then

shall be deemed a lawful sentence.

Sentence of intermittent imprisonment.

1. Definition. A sentence of intermittent imprisonment is a revocable

sentence of imprisonment to be served on days or during certain periods

of days, or both, specified by the court as part of the sentence. A

person who receives a sentence of intermittent imprisonment shall be

incarcerated in the institution to which he is committed at such times

as are specified by the court in the sentence.

2. Authorization for use of sentence. The court may impose a sentence

of intermittent imprisonment in any case where:

(a) the court is imposing sentence, upon a person other than a second

or persistent felony offender, for a class D or class E felony or for

any offense that is not a felony; and

(b) the court is not imposing any other sentence of imprisonment upon

the defendant at the same time; and

(c) the defendant is not under any other sentence of imprisonment with

a term in excess of fifteen days imposed by any other court; and

3. Duration of sentence. A sentence of intermittent imprisonment may

be for any term that could be imposed as a definite sentence of

imprisonment for the offense for which such sentence is imposed. The

term of the sentence shall commence on the day it is imposed and shall

be calculated upon the basis of the duration of its term, rather than

upon the basis of the days spent in confinement, so that no person shall

be subject to any such sentence for a period that is longer than a

period that commences on the date the sentence is imposed and ends on

the date the term of the longest definite sentence for the offense would

have expired, after deducting the credit that would have been applicable

to a definite sentence for jail time but without regard to any credit

authorized to be allowed against the term of a definite sentence for

good behavior. The provisions of section five hundred-l of the

correction law shall not be applicable to a sentence of intermittent

imprisonment.

4. Imposition of sentence. (a) When the court imposes a sentence of

intermittent imprisonment the court shall specify in the sentence:

(i) that the court is imposing a sentence of intermittent

imprisonment;

(ii) the term of such sentence;

(iii) the days or parts of days on which the sentence is to be served,

but except as provided in paragraph (iv) hereof such specification need

not include the dates on which such days fall; and

(iv) the first and last dates on which the defendant is to be

incarcerated under the sentence.

(b) The court, in its discretion, may specify any day or days or parts

thereof on which the defendant shall be confined and may specify a

period to commence at the commencement of the sentence and not to exceed

fifteen days during which the defendant is to be continuously confined.

Modification and revocation of sentences of intermittent

imprisonment.

1. Authorization. A sentence of intermittent imprisonment may be

modified by the court in its discretion upon application of the

defendant; and the court on its own motion may modify or revoke any such

sentence if:

(a) the court is satisfied during the term of the sentence that the

defendant has committed another offense during such term;

(b) the defendant has failed to report to the institution to which he

has been committed, or to the institution designated by the head of the

agency to which he has been committed, on a day or dates specified in

the commitment and is unable or unwilling to furnish a reasonable and

acceptable explanation for such failure; or

(c) the defendant has violated a rule or regulation of the institution

or agency to which he has been committed and the head of such

institution or agency or someone delegated by him has reported such

violation in writing to the court.

2. Interruption of sentence. In any case where the defendant fails to

report to the institution or to an institution of the agency to which he

has been committed, the term of the sentence shall be interrupted and

such interruption shall continue until the defendant either reports to

such institution or appears before the court that imposed the sentence,

whichever occurs first. If the defendant reports to the institution

before he appears before the court, he shall be brought before the

court.

3. Action by court. The court shall not modify or revoke a sentence of

intermittent imprisonment unless the defendant has been afforded an

opportunity to be heard. Any modification of a sentence of intermittent

imprisonment:

(a) may provide (i) for different or additional or fewer days or parts

of days on which the defendant is to be confined, or (ii) where the

defendant has failed to report as specified in the sentence, an

extension of the term of the sentence for the period during which it was

interrupted, or (iii) for both; and

(b) shall be by written order of the court and shall be delivered and

filed in the same manner as the original sentence, as specified in

subdivision two of section 85.10 of this article.

4. Jail time. Where a sentence of intermittent imprisonment is revoked

and a sentence of imprisonment is imposed in its place for the same

offense, time spent in confinement under the sentence of intermittent

imprisonment shall be calculated as jail time under subdivision three of

section 70.30 of this chapter and shall be added to any jail time

accrued against such sentence prior to imposition thereof.

Commitment; notifications; warrants.

1. Commitment. Commitment under a sentence of intermittent

imprisonment and execution of the judgment shall be in accordance with

the procedure applicable to a definite sentence of imprisonment, except

that: (a) detention of the defendant under the judgment shall be

executed during the times specified in the sentence; and (b) the court

may provide that the defendant is to report to a specified institution

on a specified date at a specified time to commence service of the

sentence and in such case the defendant need not be taken into or

retained in custody when sentence is imposed.

2. Notifications. A written copy of the sentence imposed by the court

signed by the judge who imposed the sentence shall be delivered to the

defendant and shall be annexed to the commitment and to each copy of the

commitment required to be delivered or filed. When the defendant is not

taken into or retained in custody at the time sentence is imposed, the

commitment and copy of the sentence shall forthwith be delivered to the

person whose duty it is to execute the judgment. If at any time the

defendant fails to report for confinement as provided in the sentence

the officer in charge of the institution or department to which such

commitment is made or someone designated by such officer shall forthwith

notify the court in writing of such failure to report.

3. Warrants. Upon receipt of any such notification the court may issue

a warrant to an appropriate police officer or peace officer directing

him to take the defendant into custody and bring him before the court.

The court may then commit such person to custody or fix bail or release

him on his own recognizance for future appearance before the court.

Subsequent sentences.

* 1. Indeterminate and determinate sentences. The service of an

indeterminate or a determinate sentence of imprisonment shall satisfy

any sentence of intermittent imprisonment imposed on a person for an

offense committed prior to the time the indeterminate or determinate

sentence was imposed. A person who is serving a sentence of intermittent

imprisonment at the time an indeterminate or a determinate sentence of

imprisonment is imposed shall be delivered to the custody of the state

department of corrections and community supervision to commence service

of the indeterminate or determinate sentence immediately.

* NB Effective until September 1, 2027

* 1. Indeterminate and reformatory sentences. The service of an

indeterminate or a reformatory sentence of imprisonment shall satisfy

any sentence of intermittent imprisonment imposed on a person for an

offense committed prior to the time the indeterminate or reformatory

sentence was imposed. A person who is serving a sentence of intermittent

imprisonment at the time an indeterminate or a reformatory sentence of

imprisonment is imposed shall be delivered to the custody of the state

department of corrections and community supervision to commence service

of the indeterminate or reformatory sentence immediately.

* NB Effective September 1, 2027

2. Definite sentences. If a definite sentence of imprisonment is

imposed on a person who is under a previously imposed sentence of

intermittent imprisonment, such person shall commence service of the

definite sentence immediately. Where such definite sentence is for a

term in excess of thirty days, the service of such sentence shall

satisfy the sentence of intermittent imprisonment unless the sentence of

intermittent imprisonment is revoked, or a warrant is issued pursuant to

subdivision three of section 85.10 of this article and prior to

satisfaction of, or conditional release under, such definite sentence of

imprisonment.

Criminal solicitation in the fifth degree.

A person is guilty of criminal solicitation in the fifth degree when,

with intent that another person engage in conduct constituting a crime,

he solicits, requests, commands, importunes or otherwise attempts to

cause such other person to engage in such conduct.

Criminal solicitation in the fifth degree is a violation.

Criminal solicitation in the fourth degree.

A person is guilty of criminal solicitation in the fourth degree when:

1. with intent that another person engage in conduct constituting a

felony, he solicits, requests, commands, importunes or otherwise

attempts to cause such other person to engage in such conduct; or

2. being over eighteen years of age, with intent that another person

under sixteen years of age engage in conduct that would constitute a

crime, he solicits, requests, commands, importunes or otherwise attempts

to cause such other person to engage in such conduct.

Criminal solicitation in the fourth degree is a class A misdemeanor.

Criminal solicitation in the third degree.

A person is guilty of criminal solicitation in the third degree when,

being over eighteen years of age, with intent that another person under

sixteen years of age engage in conduct that would constitute a felony,

he solicits, requests, commands, importunes or otherwise attempts to

cause such other person to engage in such conduct.

Criminal solicitation in the third degree is a class E felony.

Criminal solicitation in the second degree.

A person is guilty of criminal solicitation in the second degree when,

with intent that another person engage in conduct constituting a class A

felony, he solicits, requests, commands, importunes or otherwise

attempts to cause such other person to engage in such conduct.

Criminal solicitation in the second degree is a class D felony.

Criminal solicitation in the first degree.

A person is guilty of criminal solicitation in the first degree when,

being over eighteen years of age, with intent that another person under

sixteen years of age engage in conduct that would constitute a class A

felony, he solicits, requests, commands, importunes or otherwise

attempts to cause such other person to engage in such conduct.

Criminal solicitation in the first degree is a class C felony.

Criminal solicitation; no defense.

It is no defense to a prosecution for criminal solicitation that the

person solicited could not be guilty of the crime solicited owing to

criminal irresponsibility or other legal incapacity or exemption, or to

unawareness of the criminal nature of the conduct solicited or of the

defendant's criminal purpose or to other factors precluding the mental

state required for the commission of the crime in question.

Criminal solicitation; exemption.

A person is not guilty of criminal solicitation when his solicitation

constitutes conduct of a kind that is necessarily incidental to the

commission of the crime solicited. When under such circumstances the

solicitation constitutes an offense other than criminal solicitation

which is related to but separate from the crime solicited, the actor is

guilty of such related and separate offense only and not of criminal

solicitation.

Conspiracy in the sixth degree.

A person is guilty of conspiracy in the sixth degree when, with intent

that conduct constituting a crime be performed, he agrees with one or

more persons to engage in or cause the performance of such conduct.

Conspiracy in the sixth degree is a class B misdemeanor.

Conspiracy in the fifth degree.

A person is guilty of conspiracy in the fifth degree when, with intent

that conduct constituting:

1. a felony be performed, he agrees with one or more persons to engage

in or cause the performance of such conduct; or

2. a crime be performed, he, being over eighteen years of age, agrees

with one or more persons under sixteen years of age to engage in or

cause the performance of such conduct.

Conspiracy in the fifth degree is a class A misdemeanor.

Conspiracy in the fourth degree.

A person is guilty of conspiracy in the fourth degree when, with

intent that conduct constituting:

1. a class B or class C felony be performed, he or she agrees with one

or more persons to engage in or cause the performance of such conduct;

or

2. a felony be performed, he or she, being over eighteen years of age,

agrees with one or more persons under sixteen years of age to engage in

or cause the performance of such conduct; or

3. the felony of money laundering in the third degree as defined in

section 470.10 of this chapter, be performed, he or she agrees with one

or more persons to engage in or cause the performance of such conduct.

Conspiracy in the fourth degree is a class E felony.

Conspiracy in the third degree.

A person is guilty of conspiracy in the third degree when, with intent

that conduct constituting a class B or a class C felony be performed,

he, being over eighteen years of age, agrees with one or more persons

under sixteen years of age to engage in or cause the performance of such

conduct.

Conspiracy in the third degree is a class D felony.

Conspiracy in the second degree.

A person is guilty of conspiracy in the second degree when, with

intent that conduct constituting a class A felony be performed, he

agrees with one or more persons to engage in or cause the performance of

such conduct.

Conspiracy in the second degree is a class B felony.

Conspiracy in the first degree.

A person is guilty of conspiracy in the first degree when, with intent

that conduct constituting a class A felony be performed, he, being over

eighteen years of age, agrees with one or more persons under sixteen

years of age to engage in or cause the performance of such conduct.

Conspiracy in the first degree is a class A-I felony.

Conspiracy; pleading and proof; necessity of overt act.

A person shall not be convicted of conspiracy unless an overt act is

alleged and proved to have been committed by one of the conspirators in

furtherance of the conspiracy.

Conspiracy; jurisdiction and venue.

1. A person may be prosecuted for conspiracy in the county in which he

entered into such conspiracy or in any county in which an overt act in

furtherance thereof was committed.

2. An agreement made within this state to engage in or cause the

performance of conduct in another jurisdiction is punishable herein as a

conspiracy only when such conduct would constitute a crime both under

the laws of this state if performed herein and under the laws of the

other jurisdiction if performed therein.

3. An agreement made in another jurisdiction to engage in or cause the

performance of conduct within this state, which would constitute a crime

herein, is punishable herein only when an overt act in furtherance of

such conspiracy is committed within this state. Under such

circumstances, it is no defense to a prosecution for conspiracy that the

conduct which is the objective of the conspiracy would not constitute a

crime under the laws of the other jurisdiction if performed therein.

Conspiracy; no defense.

It is no defense to a prosecution for conspiracy that, owing to

criminal irresponsibility or other legal incapacity or exemption, or to

unawareness of the criminal nature of the agreement or the object

conduct or of the defendant's criminal purpose or to other factors

precluding the mental state required for the commission of conspiracy or

the object crime, one or more of the defendant's co-conspirators could

not be guilty of conspiracy or the object crime.

Conspiracy; enterprise corruption: applicability.

For purposes of this article, conspiracy to commit the crime of

enterprise corruption in violation of section 460.20 of this chapter

shall not constitute an offense.

Attempt to commit a crime.

A person is guilty of an attempt to commit a crime when, with intent

to commit a crime, he engages in conduct which tends to effect the

commission of such crime.

Attempt to commit a crime; punishment.

An attempt to commit a crime is a:

1. Class A-I felony when the crime attempted is the A-I felony of

murder in the first degree, aggravated murder as defined in subdivision

one of section 125.26 of this chapter, criminal possession of a

controlled substance in the first degree, criminal sale of a controlled

substance in the first degree, criminal possession of a chemical or

biological weapon in the first degree or criminal use of a chemical or

biological weapon in the first degree;

2. Class A-II felony when the crime attempted is a class A-II felony;

3. Class B felony when the crime attempted is a class A-I felony

except as provided in subdivision one hereof;

4. Class C felony when the crime attempted is a class B felony;

5. Class D felony when the crime attempted is a class C felony;

6. Class E felony when the crime attempted is a class D felony;

7. Class A misdemeanor when the crime attempted is a class E felony;

8. Class B misdemeanor when the crime attempted is a misdemeanor;

9. Class D felony when the crime attempted is bribery in the third

degree as defined in section 200.00 of this chapter, a class C felony

when the crime attempted is bribery in the second degree as defined in

section 200.03 of this chapter and a class B felony when the crime

attempted is bribery in the first degree as defined in subdivision two

of section 200.04 of this chapter.

Attempt to commit a crime; no defense.

If the conduct in which a person engages otherwise constitutes an

attempt to commit a crime pursuant to section 110.00, it is no defense

to a prosecution for such attempt that the crime charged to have been

attempted was, under the attendant circumstances, factually or legally

impossible of commission, if such crime could have been committed had

the attendant circumstances been as such person believed them to be.

Criminal facilitation in the fourth degree.

A person is guilty of criminal facilitation in the fourth degree when,

believing it probable that he is rendering aid:

1. to a person who intends to commit a crime, he engages in conduct

which provides such person with means or opportunity for the commission

thereof and which in fact aids such person to commit a felony; or

2. to a person under sixteen years of age who intends to engage in

conduct which would constitute a crime, he, being over eighteen years of

age, engages in conduct which provides such person with means or

opportunity for the commission thereof and which in fact aids such

person to commit a crime.

Criminal facilitation in the fourth degree is a class A misdemeanor.

Criminal facilitation in the third degree.

A person guilty of criminal facilitation in the third degree, when

believing it probable that he is rendering aid to a person under sixteen

years of age who intends to engage in conduct that would constitute a

felony, he, being over eighteen years of age, engages in conduct which

provides such person with means or opportunity for the commission

thereof and which in fact aids such person to commit a felony.

Criminal facilitation in the third degree is a class E felony.

Criminal facilitation in the second degree.

A person is guilty of criminal facilitation in the second degree when,

believing it probable that he is rendering aid to a person who intends

to commit a class A felony, he engages in conduct which provides such

person with means or opportunity for the commission thereof and which in

fact aids such person to commit such class A felony.

Criminal facilitation in the second degree is a class C felony.

Criminal facilitation in the first degree.

A person is guilty of criminal facilitation in the first degree when,

believing it probable that he is rendering aid to a person under sixteen

years of age who intends to engage in conduct that would constitute a

class A felony, he, being over eighteen years of age, engages in conduct

which provides such person with means or opportunity for the commission

thereof and which in fact aids such person to commit such a class A

felony.

Criminal facilitation in the first degree is a class B felony.

Criminal facilitation; no defense.

It is no defense to a prosecution for criminal facilitation that:

1. The person facilitated was not guilty of the underlying felony

owing to criminal irresponsibility or other legal incapacity or

exemption, or to unawareness of the criminal nature of the conduct in

question or to other factors precluding the mental state required for

the commission of such felony; or

2. The person facilitated has not been prosecuted for or convicted of

the underlying felony, or has previously been acquitted thereof; or

3. The defendant himself is not guilty of the felony which he

facilitated because he did not act with the intent or other culpable

mental state required for the commission thereof.

Criminal facilitation; corroboration.

A person shall not be convicted of criminal facilitation upon the

testimony of a person who has committed the felony charged to have been

facilitated unless such testimony be corroborated by such other evidence

as tends to connect the defendant with such facilitation.

Criminal facilitation; definitions and construction.

For purposes of this article, such conduct shall include, but not be

limited to, making available, selling, exchanging, giving or disposing

of a community gun, which in fact, aids a person to commit a crime.

"Community gun" shall mean a firearm that is actually shared, made

available, sold, exchanged, given or disposed of among or between two or

more persons, at least one of whom is not authorized pursuant to law to

possess such firearm. "Dispose of" shall have the same meaning as that

term is defined in section 265.00 of this chapter. "Share" and "make

available" shall, in the case of a firearm, be construed to include

knowingly placing such firearm at a location accessible and known to one

or more other persons.

Assault in the third degree.

A person is guilty of assault in the third degree when:

1. With intent to cause physical injury to another person, he causes

such injury to such person or to a third person; or

2. He recklessly causes physical injury to another person; or

3. With criminal negligence, he causes physical injury to another

person by means of a deadly weapon or a dangerous instrument.

Assault in the third degree is a class A misdemeanor.

Reckless assault of a child by a child day care provider.

A person is guilty of reckless assault of a child when, being a child

day care provider or an employee thereof, he or she recklessly causes

serious physical injury to a child under the care of such provider or

employee who is less than eleven years of age.

Reckless assault of a child by a child day care provider is a class E

felony.

Reckless assault of a child.

1. A person is guilty of reckless assault of a child when, being

eighteen years of age or more, such person recklessly causes serious

physical injury to the brain of a child less than five years old by

shaking the child, or by slamming or throwing the child so as to impact

the child's head on a hard surface or object.

2. For purposes of subdivision one of this section, the following

shall constitute "serious physical injury":

a. "serious physical injury" as defined in subdivision ten of section

10.00 of this chapter; or

b. extreme rotational cranial acceleration and deceleration and one or

more of the following: (i) subdural hemorrhaging; (ii) intracranial

hemorrhaging; or (iii) retinal hemorrhaging.

Reckless assault of a child is a class D felony.

Vehicular assault in the second degree.

A person is guilty of vehicular assault in the second degree when he

or she causes serious physical injury to another person, and either:

(1) operates a motor vehicle in violation of subdivision two, three,

four or four-a of section eleven hundred ninety-two of the vehicle and

traffic law or operates a vessel or public vessel in violation of

paragraph (b), (c), (d) or (e) of subdivision two of section

forty-nine-a of the navigation law, and as a result of such intoxication

or impairment by the use of a drug, or by the combined influence of

drugs or of alcohol and any drug or drugs, operates such motor vehicle,

vessel or public vessel in a manner that causes such serious physical

injury to such other person, or

(2) operates a motor vehicle with a gross vehicle weight rating of

more than eighteen thousand pounds which contains flammable gas,

radioactive materials or explosives in violation of subdivision one of

section eleven hundred ninety-two of the vehicle and traffic law, and

such flammable gas, radioactive materials or explosives is the cause of

such serious physical injury, and as a result of such impairment by the

use of alcohol, operates such motor vehicle in a manner that causes such

serious physical injury to such other person, or

(3) operates a snowmobile in violation of paragraph (b), (c) or (d) of

subdivision one of section 25.24 of the parks, recreation and historic

preservation law or operates an all terrain vehicle as defined in

paragraph (a) of subdivision one of section twenty-two hundred

eighty-one of the vehicle and traffic law and in violation of

subdivision two, three, four, or four-a of section eleven hundred

ninety-two of the vehicle and traffic law, and as a result of such

intoxication or impairment by the use of a drug, or by the combined

influence of drugs or of alcohol and any drug or drugs, operates such

snowmobile or all terrain vehicle in a manner that causes such serious

physical injury to such other person.

If it is established that the person operating such motor vehicle,

vessel, public vessel, snowmobile or all terrain vehicle caused such

serious physical injury while unlawfully intoxicated or impaired by the

use of alcohol or a drug, then there shall be a rebuttable presumption

that, as a result of such intoxication or impairment by the use of

alcohol or a drug, or by the combined influence of drugs or of alcohol

and any drug or drugs, such person operated the motor vehicle, vessel,

public vessel, snowmobile or all terrain vehicle in a manner that caused

such serious physical injury, as required by this section.

Vehicular assault in the second degree is a class E felony.

Vehicular assault in the first degree.

A person is guilty of vehicular assault in the first degree when he or

she commits the crime of vehicular assault in the second degree as

defined in section 120.03 of this article, and either:

(1) commits such crime while operating a motor vehicle while such

person has .18 of one per centum or more by weight of alcohol in such

person's blood as shown by chemical analysis of such person's blood,

breath, urine or saliva made pursuant to the provisions of section

eleven hundred ninety-four of the vehicle and traffic law;

(2) commits such crime while knowing or having reason to know that:

(a) his or her license or his or her privilege of operating a motor

vehicle in another state or his or her privilege of obtaining a license

to operate a motor vehicle in another state is suspended or revoked and

such suspension or revocation is based upon a conviction in such other

state for an offense which would, if committed in this state, constitute

a violation of any of the provisions of section eleven hundred

ninety-two of the vehicle and traffic law; or (b) his or her license or

his or her privilege of operating a motor vehicle in the state or his or

her privilege of obtaining a license issued by the commissioner of motor

vehicles is suspended or revoked and such suspension or revocation is

based upon either a refusal to submit to a chemical test pursuant to

section eleven hundred ninety-four of the vehicle and traffic law or

following a conviction for a violation of any of the provisions of

section eleven hundred ninety-two of the vehicle and traffic law;

(3) has previously been convicted of violating any of the provisions

of section eleven hundred ninety-two of the vehicle and traffic law

within the preceding ten years, provided that, for the purposes of this

subdivision, a conviction in any other state or jurisdiction for an

offense which, if committed in this state, would constitute a violation

of section eleven hundred ninety-two of the vehicle and traffic law,

shall be treated as a violation of such law;

(4) causes serious physical injury to more than one other person;

(5) has previously been convicted of violating any provision of this

article or article one hundred twenty-five of this title involving the

operation of a motor vehicle, or was convicted in any other state or

jurisdiction of an offense involving the operation of a motor vehicle

which, if committed in this state, would constitute a violation of this

article or article one hundred twenty-five of this title;

(6) commits such crime while operating a motor vehicle while a child

who is fifteen years of age or less is a passenger in such motor vehicle

and causes serious physical injury to such child; or

(7) commits such crime while operating a vessel in violation of

paragraph (e-1) of subdivision two of section forty-nine-a of the

navigation law while a child who is fifteen years of age or less is a

passenger in such vessel and causes serious physical injury to such

child.

If it is established that the person operating such motor vehicle

caused such serious physical injury or injuries while unlawfully

intoxicated or impaired by the use of alcohol or a drug, or by the

combined influence of drugs or of alcohol and any drug or drugs, then

there shall be a rebuttable presumption that, as a result of such

intoxication or impairment by the use of alcohol or a drug, or by the

combined influence of drugs or of alcohol and any drug or drugs, such

person operated the motor vehicle in a manner that caused such serious

physical injury or injuries, as required by this section and section

120.03 of this article.

Vehicular assault in the first degree is a class D felony.

Aggravated vehicular assault.

A person is guilty of aggravated vehicular assault when he or she

engages in reckless driving as defined by section twelve hundred twelve

of the vehicle and traffic law, and commits the crime of vehicular

assault in the second degree as defined in section 120.03 of this

article, and either:

(1) commits such crimes while operating a motor vehicle while such

person has .18 of one per centum or more by weight of alcohol in such

person's blood as shown by chemical analysis of such person's blood,

breath, urine or saliva made pursuant to the provisions of section

eleven hundred ninety-four of the vehicle and traffic law;

(2) commits such crimes while knowing or having reason to know that:

(a) his or her license or his or her privilege of operating a motor

vehicle in another state or his or her privilege of obtaining a license

to operate a motor vehicle in another state is suspended or revoked and

such suspension or revocation is based upon a conviction in such other

state for an offense which would, if committed in this state, constitute

a violation of any of the provisions of section eleven hundred

ninety-two of the vehicle and traffic law; or (b) his or her license or

his or her privilege of operating a motor vehicle in this state or his

or her privilege of obtaining a license issued by the commissioner of

motor vehicles is suspended or revoked and such suspension or revocation

is based upon either a refusal to submit to a chemical test pursuant to

section eleven hundred ninety-four of the vehicle and traffic law or

following a conviction for a violation of any of the provisions of

section eleven hundred ninety-two of the vehicle and traffic law;

(3) has previously been convicted of violating any of the provisions

of section eleven hundred ninety-two of the vehicle and traffic law

within the preceding ten years, provided that, for the purposes of this

subdivision, a conviction in any other state or jurisdiction for an

offense which, if committed in this state, would constitute a violation

of section eleven hundred ninety-two of the vehicle and traffic law,

shall be treated as a violation of such law;

(4) causes serious physical injury to more than one other person;

(5) has previously been convicted of violating any provision of this

article or article one hundred twenty-five of this title involving the

operation of a motor vehicle, or was convicted in any other state or

jurisdiction of an offense involving the operation of a motor vehicle

which, if committed in this state, would constitute a violation of this

article or article one hundred twenty-five of this title; or

(6) commits such crime while operating a motor vehicle while a child

who is fifteen years of age or less is a passenger in such motor vehicle

and causes serious physical injury to such child.

If it is established that the person operating such motor vehicle

caused such serious physical injury or injuries while unlawfully

intoxicated or impaired by the use of alcohol or a drug, or by the

combined influence of drugs or of alcohol and any drug or drugs, then

there shall be a rebuttable presumption that, as a result of such

intoxication or impairment by the use of alcohol or a drug, or by the

combined influence of drugs or of alcohol and any drug or drugs, such

person operated the motor vehicle in a manner that caused such serious

physical injury or injuries, as required by this section and section

120.03 of this article.

Aggravated vehicular assault is a class C felony.

Assault in the second degree.

A person is guilty of assault in the second degree when:

1. With intent to cause serious physical injury to another person, he

causes such injury to such person or to a third person; or

2. With intent to cause physical injury to another person, he causes

such injury to such person or to a third person by means of a deadly

weapon or a dangerous instrument; or

3. With intent to prevent a peace officer, a police officer,

prosecutor as defined in subdivision thirty-one of section 1.20 of the

criminal procedure law, registered nurse, licensed practical nurse,

public health sanitarian, New York city public health sanitarian,

sanitation enforcement agent, New York city sanitation worker, a

firefighter, including a firefighter acting as a paramedic or emergency

medical technician administering first aid in the course of performance

of duty as such firefighter, an emergency medical service paramedic or

emergency medical service technician, or medical or related personnel in

a hospital emergency department, a city marshal, a school crossing guard

appointed pursuant to section two hundred eight-a of the general

municipal law, a traffic enforcement officer, traffic enforcement agent

or employee of any entity governed by the public service law in the

course of performing an essential service, from performing a lawful

duty, by means including releasing or failing to control an animal under

circumstances evincing the actor's intent that the animal obstruct the

lawful activity of such peace officer, police officer, prosecutor as

defined in subdivision thirty-one of section 1.20 of the criminal

procedure law, registered nurse, licensed practical nurse, public health

sanitarian, New York city public health sanitarian, sanitation

enforcement agent, New York city sanitation worker, firefighter,

paramedic, technician, city marshal, school crossing guard appointed

pursuant to section two hundred eight-a of the general municipal law,

traffic enforcement officer, traffic enforcement agent or employee of an

entity governed by the public service law, he or she causes physical

injury to such peace officer, police officer, prosecutor as defined in

subdivision thirty-one of section 1.20 of the criminal procedure law,

registered nurse, licensed practical nurse, public health sanitarian,

New York city public health sanitarian, sanitation enforcement agent,

New York city sanitation worker, firefighter, paramedic, technician or

medical or related personnel in a hospital emergency department, city

marshal, school crossing guard, traffic enforcement officer, traffic

enforcement agent or employee of an entity governed by the public

service law; or

3-a. With intent to prevent an employee of a local social services

district directly involved in investigation of or response to alleged

abuse or neglect of a child, a vulnerable elderly person or an

incompetent or physically disabled person, from performing such

investigation or response, the actor, not being such child, vulnerable

elderly person or incompetent or physically disabled person, or with

intent to prevent an employee of a local social services district

directly involved in providing public assistance and care from

performing his or her job, causes physical injury to such employee

including by means of releasing or failing to control an animal under

circumstances evincing the actor's intent that the animal obstruct the

lawful activities of such employee; or

3-b. With intent to prevent an employee of the New York city housing

authority from performing his or her lawful duties while located on

housing project grounds, real property, or a building owned, managed, or

operated by such authority he or she causes physical injury to such

employee; or

3-c. With intent to prevent an employee providing direct patient care,

who is not a nurse pursuant to title eight of the education law, whose

principal employment responsibility is to carry out direct patient care

for one or more patients in any hospital, nursing home, residential

health care facility, general hospital, government agency including any

chronic disease hospital, maternity hospital, outpatient department,

emergency center or surgical center under article twenty-eight of the

public health law, from performing a lawful duty, he or she causes

physical injury to such employee providing direct patient care; or

4. He recklessly causes serious physical injury to another person by

means of a deadly weapon or a dangerous instrument; or

4-a. He recklessly causes physical injury to another person who is a

child under the age of eighteen by intentional discharge of a firearm,

rifle or shotgun; or

5. For a purpose other than lawful medical or therapeutic treatment,

he intentionally causes stupor, unconsciousness or other physical

impairment or injury to another person by administering to him, without

his consent, a drug, substance or preparation capable of producing the

same; or

6. In the course of and in furtherance of the commission or attempted

commission of a felony, other than a felony defined in article one

hundred thirty which requires corroboration for conviction, or of

immediate flight therefrom, he, or another participant if there be any,

causes physical injury to a person other than one of the participants;

or

7. Having been charged with or convicted of a crime and while confined

in a correctional facility, as defined in subdivision three of section

forty of the correction law, pursuant to such charge or conviction, with

intent to cause physical injury to another person, he causes such injury

to such person or to a third person; or

8. Being eighteen years old or more and with intent to cause physical

injury to a person less than eleven years old, the defendant recklessly

causes serious physical injury to such person; or

9. Being eighteen years old or more and with intent to cause physical

injury to a person less than seven years old, the defendant causes such

injury to such person; or

10. Acting at a place the person knows, or reasonably should know, is

on school grounds and with intent to cause physical injury, he or she:

(a) causes such injury to an employee of a school or public school

district; or

(b) not being a student of such school or public school district,

causes physical injury to another, and such other person is a student of

such school who is attending or present for educational purposes. For

purposes of this subdivision the term "school grounds" shall have the

meaning set forth in subdivision fourteen of section 220.00 of this

chapter; or

11. With intent to cause physical injury to a train operator, ticket

inspector, conductor, signalperson, bus operator, station agent, station

cleaner, terminal cleaner, station customer assistant, traffic checker;

person whose official duties include the sale or collection of tickets,

passes, vouchers, or other revenue payment media for use on a train,

bus, or ferry the collection or handling of revenues therefrom; a person

whose official duties include the maintenance, repair, inspection,

troubleshooting, testing or cleaning of buses or ferries, a transit

signal system, elevated or underground subway tracks, transit station

structure, including fare equipment, escalators, elevators and other

equipment necessary to passenger service, commuter rail tracks or

stations, train yard, revenue train in passenger service, a ferry

station, or a train or bus station or terminal; or a supervisor of such

personnel, employed by any transit or commuter rail agency, authority or

company, public or private, whose operation is authorized by New York

state or any of its political subdivisions, a city marshal, a school

crossing guard appointed pursuant to section two hundred eight-a of the

general municipal law, a traffic enforcement officer, traffic

enforcement agent, prosecutor as defined in subdivision thirty-one of

section 1.20 of the criminal procedure law, sanitation enforcement

agent, New York city sanitation worker, public health sanitarian, New

York city public health sanitarian, registered nurse, licensed practical

nurse, emergency medical service paramedic, or emergency medical service

technician, he or she causes physical injury to such train operator,

ticket inspector, conductor, signalperson, bus operator, station agent,

station cleaner, terminal cleaner, station customer assistant, traffic

checker; person whose official duties include the sale or collection of

tickets, passes, vouchers or other revenue payment media for use on a

train, bus, or ferry or the collection or handling of revenues

therefrom; a person whose official duties include the maintenance,

repair, inspection, troubleshooting, testing or cleaning of buses or

ferries, a transit signal system, elevated or underground subway tracks,

transit station structure, including fare equipment, escalators,

elevators and other equipment necessary to passenger service, commuter

rail tracks or stations, train yard, revenue train in passenger service,

a ferry station, or a train or bus station or terminal; or a supervisor

of such personnel, city marshal, school crossing guard appointed

pursuant to section two hundred eight-a of the general municipal law,

traffic enforcement officer, traffic enforcement agent, prosecutor as

defined in subdivision thirty-one of section 1.20 of the criminal

procedure law, registered nurse, licensed practical nurse, public health

sanitarian, New York city public health sanitarian, sanitation

enforcement agent, New York city sanitation worker, emergency medical

service paramedic, or emergency medical service technician, while such

employee is performing an assigned duty on, or directly related to, the

operation of a train or bus, cleaning of a train or bus station or

terminal, assisting customers, checking traffic, the sale or collection

of tickets, passes, vouchers, or other revenue media for use on a train,

bus, or ferry or maintenance or cleaning of a train, a bus, a ferry, or

bus station or terminal, signal system, elevated or underground subway

tracks, transit station structure, including fare equipment, escalators,

elevators and other equipment necessary to passenger service, commuter

rail tracks or stations, train yard or revenue train in passenger

service, a ferry station, or such city marshal, school crossing guard,

traffic enforcement officer, traffic enforcement agent, prosecutor as

defined in subdivision thirty-one of section 1.20 of the criminal

procedure law, registered nurse, licensed practical nurse, public health

sanitarian, New York city public health sanitarian, sanitation

enforcement agent, New York city sanitation worker, emergency medical

service paramedic, or emergency medical service technician is performing

an assigned duty; or

11-a. With intent to cause physical injury to an employee of a local

social services district directly involved in investigation of or

response to alleged abuse or neglect of a child, vulnerable elderly

person or an incompetent or physically disabled person, the actor, not

being such child, vulnerable elderly person or incompetent or physically

disabled person, or with intent to prevent an employee of a local social

services district directly involved in providing public assistance and

care from performing his or her job, causes physical injury to such

employee; or

11-b. With intent to cause physical injury to an employee of the New

York city housing authority performing his or her lawful duties while

located on housing project grounds, real property, or a building owned,

managed, or operated by such authority he or she causes physical injury

to such employee; or

11-c. With intent to cause physical injury to an employee providing

direct patient care, who is not a nurse pursuant to title eight of the

education law, whose principal employment responsibility is to carry out

direct patient care for one or more patients in any hospital, nursing

home, residential health care facility, general hospital, government

agency including any chronic disease hospital, maternity hospital,

outpatient department, emergency center or surgical center under article

twenty-eight of the public health law, he or she causes physical injury

to such employee providing direct patient care while such employee is

performing a lawful duty; or

12. With intent to cause physical injury to a person who is sixty-five

years of age or older, he or she causes such injury to such person, and

the actor is more than ten years younger than such person; or

13. Being confined to a secure treatment facility, as such term is

defined in subdivision (o) of section 10.03 of the mental hygiene law,

and with intent to cause physical injury to an employee of such secure

treatment facility performing his or her duties, he or she causes such

injury to such person; or

14. With intent to prevent or obstruct a process server, as defined in

section eighty-nine-t of the general business law, from performing a

lawful duty pursuant to article three of the civil practice law and

rules, or intentionally, as retaliation against such a process server

for the performance of the process server's duties pursuant to such

article, including by means of releasing or failing to control an animal

evincing the actor's intent that the animal prevent or obstruct the

lawful duty of the process server or as retaliation against the process

server, he or she causes physical injury to such process server.

Assault in the second degree is a class D felony.

Gang assault in the second degree.

A person is guilty of gang assault in the second degree when, with

intent to cause physical injury to another person and when aided by two

or more other persons actually present, he causes serious physical

injury to such person or to a third person.

Gang assault in the second degree is a class C felony.

Gang assault in the first degree.

A person is guilty of gang assault in the first degree when, with

intent to cause serious physical injury to another person and when aided

by two or more other persons actually present, he causes serious

physical injury to such person or to a third person.

Gang assault in the first degree is a class B felony.

Assault on a peace officer, police officer, firefighter or

emergency medical services professional.

A person is guilty of assault on a peace officer, police officer,

firefighter or emergency medical services professional when, with intent

to prevent a peace officer, police officer, a firefighter, including a

firefighter acting as a paramedic or emergency medical technician

administering first aid in the course of performance of duty as such

firefighter, or an emergency medical service paramedic or emergency

medical service technician, from performing a lawful duty, he or she

causes serious physical injury to such peace officer, police officer,

firefighter, paramedic or technician.

Assault on a peace officer, police officer, firefighter or emergency

medical services professional is a class C felony.

Assault on a judge.

A person is guilty of assault on a judge when, with intent to prevent

a judge from performing official judicial duties, such person causes

serious physical injury to such judge. For the purposes of this section,

the term judge shall mean a judge of a court of record or a justice

court.

Assault on a judge is a class C felony.

Aggravated assault on a judge.

A person is guilty of aggravated assault on a judge when, with intent

to cause serious physical injury and prevent a judge from performing

official judicial duties, such person causes serious physical injury to

such judge. For the purposes of this section, the term judge shall mean

a judge of a court of record or a justice court.

Aggravated assault on a judge is a class B felony.

Assault in the first degree.

A person is guilty of assault in the first degree when:

1. With intent to cause serious physical injury to another person, he

causes such injury to such person or to a third person by means of a

deadly weapon or a dangerous instrument; or

2. With intent to disfigure another person seriously and permanently,

or to destroy, amputate or disable permanently a member or organ of his

body, he causes such injury to such person or to a third person; or

3. Under circumstances evincing a depraved indifference to human life,

he recklessly engages in conduct which creates a grave risk of death to

another person, and thereby causes serious physical injury to another

person; or

4. In the course of and in furtherance of the commission or attempted

commission of a felony or of immediate flight therefrom, he, or another

participant if there be any, causes serious physical injury to a person

other than one of the participants.

Assault in the first degree is a class B felony.

Aggravated assault upon a police officer or a peace officer.

A person is guilty of aggravated assault upon a police officer or a

peace officer when, with intent to cause serious physical injury to a

person whom he knows or reasonably should know to be a police officer or

a peace officer engaged in the course of performing his official duties,

he causes such injury by means of a deadly weapon or dangerous

instrument.

Aggravated assault upon a police officer or a peace officer is a class

B felony.

Aggravated assault upon a person less than eleven years old.

A person is guilty of aggravated assault upon a person less than

eleven years old when being eighteen years old or more the defendant

commits the crime of assault in the third degree as defined in section

120.00 of this article upon a person less than eleven years old and has

been previously convicted of such crime upon a person less than eleven

years old within the preceding ten years.

Aggravated assault upon a person less than eleven years old is a class

E felony.

Menacing in the first degree.

A person is guilty of menacing in the first degree when he or she

commits the crime of menacing in the second degree and has been

previously convicted of the crime of menacing in the second degree or

the crime of menacing a police officer or peace officer within the

preceding ten years.

Menacing in the first degree is a class E felony.

Menacing in the second degree.

A person is guilty of menacing in the second degree when:

1. He or she intentionally places or attempts to place another person

in reasonable fear of physical injury, serious physical injury or death

by displaying a deadly weapon, dangerous instrument or what appears to

be a pistol, revolver, rifle, shotgun, machine gun or other firearm; or

2. He or she repeatedly follows a person or engages in a course of

conduct or repeatedly commits acts over a period of time intentionally

placing or attempting to place another person in reasonable fear of

physical injury, serious physical injury or death; or

3. He or she commits the crime of menacing in the third degree in

violation of that part of a duly served order of protection, or such

order which the defendant has actual knowledge of because he or she was

present in court when such order was issued, pursuant to article eight

of the family court act, section 530.12 of the criminal procedure law,

or an order of protection issued by a court of competent jurisdiction in

another state, territorial or tribal jurisdiction, which directed the

respondent or defendant to stay away from the person or persons on whose

behalf the order was issued.

Menacing in the second degree is a class A misdemeanor.

Menacing in the third degree.

A person is guilty of menacing in the third degree when, by physical

menace, he or she intentionally places or attempts to place another

person in fear of death, imminent serious physical injury or physical

injury.

Menacing in the third degree is a class B misdemeanor.

Hazing in the first degree.

A person is guilty of hazing in the first degree when, in the course

of another person's initiation into or affiliation with any

organization, he intentionally or recklessly engages in conduct,

including, but not limited to, making physical contact with or requiring

physical activity of such other person, which creates a substantial risk

of physical injury to such other person or a third person and thereby

causes such injury.

Hazing in the first degree is a class A misdemeanor.

Hazing in the second degree.

A person is guilty of hazing in the second degree when, in the course

of another person's initiation or affiliation with any organization, he

intentionally or recklessly engages in conduct, including, but not

limited to, making physical contact with or requiring physical activity

of such other person, which creates a substantial risk of physical

injury to such other person or a third person.

Hazing in the second degree is a violation.

Menacing a police officer or peace officer.

A person is guilty of menacing a police officer or peace officer when

he or she intentionally places or attempts to place a police officer or

peace officer in reasonable fear of physical injury, serious physical

injury or death by displaying a deadly weapon, knife, pistol, revolver,

rifle, shotgun, machine gun or other firearm, whether operable or not,

where such officer was in the course of performing his or her official

duties and the defendant knew or reasonably should have known that such

victim was a police officer or peace officer.

Menacing a police officer or peace officer is a class D felony.

Assault on a retail worker.

1. A person is guilty of assault on a retail worker when, with the

intent to prevent a retail worker from performing an act within the

scope of such worker's employment, such person causes physical injury to

such retail worker and the person knew or reasonably should have known

that such individual was a retail worker.

2. For the purposes of this section:

a. "Retail worker" shall mean any person whose usual place of work is

a retail establishment. This shall include, but is not limited to, an

employee of the retail establishment, an owner of the retail

establishment, or a person who works in the retail establishment under

arrangements made between the person and the establishment.

b. "Retail establishment" shall mean any physical business or

commercial entity engaged in the sale of goods, merchandise, or services

directly to consumers.

Assault on a retail worker is a class E felony.

Reckless endangerment in the second degree.

A person is guilty of reckless endangerment in the second degree when

he recklessly engages in conduct which creates a substantial risk of

serious physical injury to another person.

Reckless endangerment in the second degree is a class A misdemeanor.

Reckless endangerment in the first degree.

A person is guilty of reckless endangerment in the first degree when,

under circumstances evincing a depraved indifference to human life, he

recklessly engages in conduct which creates a grave risk of death to

another person.

Reckless endangerment in the first degree is a class D felony.

Promoting a suicide attempt.

A person is guilty of promoting a suicide attempt when he

intentionally causes or aids another person to attempt suicide.

Promoting a suicide attempt is a class E felony.

Promoting a suicide attempt; when punishable as attempt to

commit murder.

A person who engages in conduct constituting both the offense of

promoting a suicide attempt and the offense of attempt to commit murder

may not be convicted of attempt to commit murder unless he causes or

aids the suicide attempt by the use of duress or deception.

Definitions.

For purposes of sections 120.45, 120.50, 120.55 and 120.60 of this

article:

1. "Kidnapping" shall mean a kidnapping crime defined in article one

hundred thirty-five of this chapter.

2. "Unlawful imprisonment" shall mean an unlawful imprisonment felony

crime defined in article one hundred thirty-five of this chapter.

3. "Sex offense" shall mean a felony defined in article one hundred

thirty of this chapter, sexual misconduct, as defined in section 130.20

of this chapter, sexual abuse in the third degree as defined in section

130.55 of this chapter or sexual abuse in the second degree as defined

in section 130.60 of this chapter.

4. "Immediate family" means the spouse, former spouse, parent, child,

sibling, or any other person who regularly resides or has regularly

resided in the household of a person.

5. "Specified predicate crime" means:

a. a violent felony offense;

b. a crime defined in section 130.20, 130.25, 130.30, 130.55, 130.60,

130.70, 255.25, 255.26 or 255.27, or formerly defined in section 130.40

or 130.45;

c. assault in the third degree, as defined in section 120.00; menacing

in the first degree, as defined in section 120.13; menacing in the

second degree, as defined in section 120.14; coercion in the first

degree, as defined in section 135.65; coercion in the second degree, as

defined in section 135.61; coercion in the third degree, as defined in

section 135.60; aggravated harassment in the second degree, as defined

in section 240.30; harassment in the first degree, as defined in section

240.25; menacing in the third degree, as defined in section 120.15;

criminal mischief in the third degree, as defined in section 145.05;

criminal mischief in the second degree, as defined in section 145.10,

criminal mischief in the first degree, as defined in section 145.12;

criminal tampering in the first degree, as defined in section 145.20;

arson in the fourth degree, as defined in section 150.05; arson in the

third degree, as defined in section 150.10; criminal contempt in the

first degree, as defined in section 215.51; endangering the welfare of a

child, as defined in section 260.10; or

d. stalking in the fourth degree, as defined in section 120.45;

stalking in the third degree, as defined in section 120.50; stalking in

the second degree, as defined in section 120.55; or

e. an offense in any other jurisdiction which includes all of the

essential elements of any such crime for which a sentence to a term of

imprisonment in excess of one year or a sentence of death was authorized

and is authorized in this state irrespective of whether such sentence

was imposed.

Stalking in the fourth degree.

A person is guilty of stalking in the fourth degree when he or she

intentionally, and for no legitimate purpose, engages in a course of

conduct directed at a specific person, and knows or reasonably should

know that such conduct:

1. is likely to cause reasonable fear of material harm to the physical

health, safety or property of such person, a member of such person's

immediate family or a third party with whom such person is acquainted;

or

2. causes material harm to the mental or emotional health of such

person, where such conduct consists of following, telephoning or

initiating communication or contact with such person, a member of such

person's immediate family or a third party with whom such person is

acquainted, and the actor was previously clearly informed to cease that

conduct; or

3. is likely to cause such person to reasonably fear that his or her

employment, business or career is threatened, where such conduct

consists of appearing, telephoning or initiating communication or

contact at such person's place of employment or business, and the actor

was previously clearly informed to cease that conduct.

For the purposes of subdivision two of this section, "following" shall

include the unauthorized tracking of such person's movements or location

through the use of a global positioning system or other device.

Stalking in the fourth degree is a class B misdemeanor.

Stalking in the third degree.

A person is guilty of stalking in the third degree when he or she:

1. Commits the crime of stalking in the fourth degree in violation of

section 120.45 of this article against three or more persons, in three

or more separate transactions, for which the actor has not been

previously convicted; or

2. Commits the crime of stalking in the fourth degree in violation of

section 120.45 of this article against any person, and has previously

been convicted, within the preceding ten years of a specified predicate

crime, as defined in subdivision five of section 120.40 of this article,

and the victim of such specified predicate crime is the victim, or an

immediate family member of the victim, of the present offense; or

3. With intent to harass, annoy or alarm a specific person,

intentionally engages in a course of conduct directed at such person

which is likely to cause such person to reasonably fear physical injury

or serious physical injury, the commission of a sex offense against, or

the kidnapping, unlawful imprisonment or death of such person or a

member of such person's immediate family; or

4. Commits the crime of stalking in the fourth degree and has

previously been convicted within the preceding ten years of stalking in

the fourth degree.

Stalking in the third degree is a class A misdemeanor.

Stalking in the second degree.

A person is guilty of stalking in the second degree when he or she:

1. Commits the crime of stalking in the third degree as defined in

subdivision three of section 120.50 of this article and in the course of

and in furtherance of the commission of such offense: (i) displays, or

possesses and threatens the use of, a firearm, pistol, revolver, rifle,

shotgun, machine gun, electronic dart gun, electronic stun gun, cane

sword, billy, blackjack, bludgeon, plastic knuckles, metal knuckles,

chuka stick, sand bag, sandclub, slingshot, slungshot, shuriken,

throwing star, dagger, dangerous knife, dirk, razor, stiletto, imitation

pistol, dangerous instrument, deadly instrument or deadly weapon; or

(ii) displays what appears to be a pistol, revolver, rifle, shotgun,

machine gun or other firearm; or

2. Commits the crime of stalking in the third degree in violation of

subdivision three of section 120.50 of this article against any person,

and has previously been convicted, within the preceding five years, of a

specified predicate crime as defined in subdivision five of section

120.40 of this article, and the victim of such specified predicate crime

is the victim, or an immediate family member of the victim, of the

present offense; or

3. Commits the crime of stalking in the fourth degree and has

previously been convicted of stalking in the third degree as defined in

subdivision four of section 120.50 of this article against any person;

or

4. Being twenty-one years of age or older, repeatedly follows a person

under the age of fourteen or engages in a course of conduct or

repeatedly commits acts over a period of time intentionally placing or

attempting to place such person who is under the age of fourteen in

reasonable fear of physical injury, serious physical injury or death; or

5. Commits the crime of stalking in the third degree, as defined in

subdivision three of section 120.50 of this article, against ten or more

persons, in ten or more separate transactions, for which the actor has

not been previously convicted.

Stalking in the second degree is a class E felony.

Stalking in the first degree.

A person is guilty of stalking in the first degree when he or she

commits the crime of stalking in the third degree as defined in

subdivision three of section 120.50 or stalking in the second degree as

defined in section 120.55 of this article and, in the course and

furtherance thereof, he or she:

1. intentionally or recklessly causes physical injury to the victim of

such crime; or

2. commits a class A misdemeanor defined in article one hundred thirty

of this chapter, or a class E felony defined in section 130.25, former

section 130.40 or section 130.85 of this chapter, or a class D felony

defined in former section 130.45 or section 130.30 of this chapter.

Stalking in the first degree is a class D felony.

Luring a child.

1. A person is guilty of luring a child when he or she lures a child

into a motor vehicle, aircraft, watercraft, isolated area, building, or

part thereof, for the purpose of committing against such child any of

the following offenses: an offense as defined in section 70.02 of this

chapter; an offense as defined in section 125.25 or 125.27 of this

chapter; a felony offense that is a violation of article one hundred

thirty of this chapter; an offense as defined in section 135.25 of this

chapter; an offense as defined in sections 230.30, 230.33, 230.34 or

230.34-a of this chapter; an offense as defined in sections 255.25,

255.26, or 255.27 of this chapter; or an offense as defined in sections

263.05, 263.10, or 263.15 of this chapter. For purposes of this

subdivision "child" means a person less than seventeen years of age.

Nothing in this section shall be deemed to preclude, if the evidence

warrants, a conviction for the commission or attempted commission of any

crime, including but not limited to a crime defined in article one

hundred thirty-five of this chapter.

2. Luring a child is a class E felony, provided, however, that if the

underlying offense the actor intended to commit against such child

constituted a class A or a class B felony, then the offense of luring a

child in violation of this section shall be deemed respectively, a class

C felony or class D felony.

Homicide defined.

Homicide means conduct which causes the death of a person under

circumstances constituting murder, manslaughter in the first degree,

manslaughter in the second degree, or criminally negligent homicide.

Homicide and related offenses; definition.

The following definition is applicable to this article:

"Person," when referring to the victim of a homicide, means a human

being who has been born and is alive.

Criminally negligent homicide.

A person is guilty of criminally negligent homicide when, with

criminal negligence, he causes the death of another person.

Criminally negligent homicide is a class E felony.

Aggravated criminally negligent homicide.

A person is guilty of aggravated criminally negligent homicide when,

with criminal negligence, he or she causes the death of a police officer

or peace officer where such officer was in the course of performing his

or her official duties and the defendant knew or reasonably should have

known that such victim was a police officer or peace officer.

Aggravated criminally negligent homicide is a class C felony.

Vehicular manslaughter in the second degree.

A person is guilty of vehicular manslaughter in the second degree when

he or she causes the death of another person, and either:

(1) operates a motor vehicle in violation of subdivision two, three,

four or four-a of section eleven hundred ninety-two of the vehicle and

traffic law or operates a vessel or public vessel in violation of

paragraph (b), (c), (d) or (e) of subdivision two of section

forty-nine-a of the navigation law, and as a result of such intoxication

or impairment by the use of a drug, or by the combined influence of

drugs or of alcohol and any drug or drugs, operates such motor vehicle,

vessel or public vessel in a manner that causes the death of such other

person, or

(2) operates a motor vehicle with a gross vehicle weight rating of

more than eighteen thousand pounds which contains flammable gas,

radioactive materials or explosives in violation of subdivision one of

section eleven hundred ninety-two of the vehicle and traffic law, and

such flammable gas, radioactive materials or explosives is the cause of

such death, and as a result of such impairment by the use of alcohol,

operates such motor vehicle in a manner that causes the death of such

other person, or

(3) operates a snowmobile in violation of paragraph (b), (c) or (d) of

subdivision one of section 25.24 of the parks, recreation and historic

preservation law or operates an all terrain vehicle as defined in

paragraph (a) of subdivision one of section twenty-two hundred

eighty-one of the vehicle and traffic law in violation of subdivision

two, three, four, or four-a of section eleven hundred ninety-two of the

vehicle and traffic law, and as a result of such intoxication or

impairment by the use of a drug, or by the combined influence of drugs

or of alcohol and any drug or drugs, operates such snowmobile or all

terrain vehicle in a manner that causes the death of such other person.

If it is established that the person operating such motor vehicle,

vessel, public vessel, snowmobile or all terrain vehicle caused such

death while unlawfully intoxicated or impaired by the use of alcohol or

a drug, then there shall be a rebuttable presumption that, as a result

of such intoxication or impairment by the use of alcohol or a drug, or

by the combined influence of drugs or of alcohol and any drug or drugs,

such person operated the motor vehicle, vessel, public vessel,

snowmobile or all terrain vehicle in a manner that caused such death, as

required by this section.

Vehicular manslaughter in the second degree is a class D felony.

Vehicular manslaughter in the first degree.

A person is guilty of vehicular manslaughter in the first degree when

he or she commits the crime of vehicular manslaughter in the second

degree as defined in section 125.12 of this article, and either:

(1) commits such crime while operating a motor vehicle while such

person has .18 of one per centum or more by weight of alcohol in such

person's blood as shown by chemical analysis of such person's blood,

breath, urine or saliva made pursuant to the provisions of section

eleven hundred ninety-four of the vehicle and traffic law;

(2) commits such crime while knowing or having reason to know that:

(a) his or her license or his or her privilege of operating a motor

vehicle in another state or his or her privilege of obtaining a license

to operate a motor vehicle in another state is suspended or revoked and

such suspension or revocation is based upon a conviction in such other

state for an offense which would, if committed in this state, constitute

a violation of any of the provisions of section eleven hundred

ninety-two of the vehicle and traffic law; or (b) his or her license or

his or her privilege of operating a motor vehicle in the state or his or

her privilege of obtaining a license issued by the commissioner of motor

vehicles is suspended or revoked and such suspension or revocation is

based upon either a refusal to submit to a chemical test pursuant to

section eleven hundred ninety-four of the vehicle and traffic law or

following a conviction for a violation of any of the provisions of

section eleven hundred ninety-two of the vehicle and traffic law;

(3) has previously been convicted of violating any of the provisions

of section eleven hundred ninety-two of the vehicle and traffic law

within the preceding ten years, provided that, for the purposes of this

subdivision, a conviction in any other state or jurisdiction for an

offense which, if committed in this state, would constitute a violation

of section eleven hundred ninety-two of the vehicle and traffic law,

shall be treated as a violation of such law;

(4) causes the death of more than one other person;

(5) has previously been convicted of violating any provision of this

article or article one hundred twenty of this title involving the

operation of a motor vehicle, or was convicted in any other state or

jurisdiction of an offense involving the operation of a motor vehicle

which, if committed in this state, would constitute a violation of this

article or article one hundred twenty of this title;

(6) commits such crime while operating a motor vehicle while a child

who is fifteen years of age or less is a passenger in such motor vehicle

and causes the death of such child; or

(7) commits such crime while operating a vessel in violation of

paragraph (e-1) of subdivision two of section forty-nine-a of the

navigation law while a child who is fifteen years of age or less is a

passenger in such vessel and causes the death of such child.

If it is established that the person operating such motor vehicle

caused such death or deaths while unlawfully intoxicated or impaired by

the use of alcohol or a drug, or by the combined influence of drugs or

of alcohol and any drug or drugs, then there shall be a rebuttable

presumption that, as a result of such intoxication or impairment by the

use of alcohol or a drug, or by the combined influence of drugs or of

alcohol and any drug or drugs, such person operated the motor vehicle in

a manner that caused such death or deaths, as required by this section

and section 125.12 of this article.

Vehicular manslaughter in the first degree is a class C felony.

Aggravated vehicular homicide.

A person is guilty of aggravated vehicular homicide when he or she

engages in reckless driving as defined by section twelve hundred twelve

of the vehicle and traffic law, and commits the crime of vehicular

manslaughter in the second degree as defined in section 125.12 of this

article, and either:

(1) commits such crimes while operating a motor vehicle while such

person has .18 of one per centum or more by weight of alcohol in such

person's blood as shown by chemical analysis of such person's blood,

breath, urine or saliva made pursuant to the provisions of section

eleven hundred ninety-four of the vehicle and traffic law;

(2) commits such crimes while knowing or having reason to know that:

(a) his or her license or his or her privilege of operating a motor

vehicle in another state or his or her privilege of obtaining a license

to operate a motor vehicle in another state is suspended or revoked and

such suspension or revocation is based upon a conviction in such other

state for an offense which would, if committed in this state, constitute

a violation of any of the provisions of section eleven hundred

ninety-two of the vehicle and traffic law; or (b) his or her license or

his or her privilege of operating a motor vehicle in this state or his

or her privilege of obtaining a license issued by the commissioner of

motor vehicles is suspended or revoked and such suspension or revocation

is based upon either a refusal to submit to a chemical test pursuant to

section eleven hundred ninety-four of the vehicle and traffic law or

following a conviction for a violation of any of the provisions of

section eleven hundred ninety-two of the vehicle and traffic law;

(3) has previously been convicted of violating any of the provisions

of section eleven hundred ninety-two of the vehicle and traffic law

within the preceding ten years, provided that, for the purposes of this

subdivision, a conviction in any other state or jurisdiction for an

offense which, if committed in this state, would constitute a violation

of section eleven hundred ninety-two of the vehicle and traffic law,

shall be treated as a violation of such law;

(4) causes the death of more than one other person;

(5) causes the death of one person and the serious physical injury of

at least one other person;

(6) has previously been convicted of violating any provision of this

article or article one hundred twenty of this title involving the

operation of a motor vehicle, or was convicted in any other state or

jurisdiction of an offense involving the operation of a motor vehicle

which, if committed in this state, would constitute a violation of this

article or article one hundred twenty of this title; or

(7) commits such crime while operating a motor vehicle while a child

who is fifteen years of age or less is a passenger in such motor vehicle

and causes the death of such child.

If it is established that the person operating such motor vehicle

caused such death or deaths while unlawfully intoxicated or impaired by

the use of alcohol or a drug, or by the combined influence of drugs or

of alcohol and any drug or drugs, then there shall be a rebuttable

presumption that, as a result of such intoxication or impairment by the

use of alcohol or a drug, or by the combined influence of drugs or of

alcohol and any drug or drugs, such person operated the motor vehicle in

a manner that caused such death or deaths, as required by this section

and section 125.12 of this article.

Aggravated vehicular homicide is a class B felony.

Manslaughter in the second degree.

A person is guilty of manslaughter in the second degree when:

1. He recklessly causes the death of another person; or

3. He intentionally causes or aids another person to commit suicide.

Manslaughter in the second degree is a class C felony.

Manslaughter in the first degree.

A person is guilty of manslaughter in the first degree when:

1. With intent to cause serious physical injury to another person, he

causes the death of such person or of a third person; or

2. With intent to cause the death of another person, he causes the

death of such person or of a third person under circumstances which do

not constitute murder because he acts under the influence of extreme

emotional disturbance, as defined in paragraph (a) of subdivision one of

section 125.25. The fact that homicide was committed under the influence

of extreme emotional disturbance constitutes a mitigating circumstance

reducing murder to manslaughter in the first degree and need not be

proved in any prosecution initiated under this subdivision; or

4. Being eighteen years old or more and with intent to cause physical

injury to a person less than eleven years old, the defendant recklessly

engages in conduct which creates a grave risk of serious physical injury

to such person and thereby causes the death of such person.

Manslaughter in the first degree is a class B felony.

Aggravated manslaughter in the second degree.

A person is guilty of aggravated manslaughter in the second degree

when he or she recklessly causes the death of a police officer or peace

officer where such officer was in the course of performing his or her

official duties and the defendant knew or reasonably should have known

that such victim was a police officer or peace officer.

Aggravated manslaughter in the second degree is a class C felony.

Aggravated manslaughter in the first degree.

A person is guilty of aggravated manslaughter in the first degree

when:

1. with intent to cause serious physical injury to a police officer or

peace officer, where such officer was in the course of performing his or

her official duties and the defendant knew or reasonably should have

known that such victim was a police officer or a peace officer, he or

she causes the death of such officer or another police officer or peace

officer; or

2. with intent to cause the death of a police officer or peace

officer, where such officer was in the course of performing his or her

official duties and the defendant knew or reasonably should have known

that such victim was a police officer or peace officer, he or she causes

the death of such officer or another police officer or peace officer

under circumstances which do not constitute murder because he or she

acts under the influence of extreme emotional disturbance, as defined in

paragraph (a) of subdivision one of section 125.25. The fact that

homicide was committed under the influence of extreme emotional

disturbance constitutes a mitigating circumstance reducing murder to

aggravated manslaughter in the first degree or manslaughter in the first

degree and need not be proved in any prosecution initiated under this

subdivision.

Aggravated manslaughter in the first degree is a class B felony.

Murder in the second degree.

A person is guilty of murder in the second degree when:

1. With intent to cause the death of another person, he causes the

death of such person or of a third person; except that in any

prosecution under this subdivision, it is an affirmative defense that:

(a) (i) The defendant acted under the influence of extreme emotional

disturbance for which there was a reasonable explanation or excuse, the

reasonableness of which is to be determined from the viewpoint of a

person in the defendant's situation under the circumstances as the

defendant believed them to be. Nothing contained in this paragraph shall

constitute a defense to a prosecution for, or preclude a conviction of,

manslaughter in the first degree or any other crime. (ii) It shall not

be a "reasonable explanation or excuse" pursuant to subparagraph (i) of

this paragraph when the defendant's conduct resulted from the discovery,

knowledge or disclosure of the victim's sexual orientation, sex, gender,

gender identity, gender expression or sex assigned at birth; or

(b) The defendant's conduct consisted of causing or aiding, without

the use of duress or deception, another person to commit suicide.

Nothing contained in this paragraph shall constitute a defense to a

prosecution for, or preclude a conviction of, manslaughter in the second

degree or any other crime; or

2. Under circumstances evincing a depraved indifference to human life,

he recklessly engages in conduct which creates a grave risk of death to

another person, and thereby causes the death of another person; or

3. Acting either alone or with one or more other persons, he commits

or attempts to commit robbery, burglary, kidnapping, arson, rape in the

first degree, a crime formerly defined in section 130.50 of this title,

the crime of sexual abuse in the first degree, aggravated sexual abuse,

escape in the first degree, or escape in the second degree, and, in the

course of and in furtherance of such crime or of immediate flight

therefrom, he, or another participant, if there be any, causes the death

of a person other than one of the participants; except that in any

prosecution under this subdivision, in which the defendant was not the

only participant in the underlying crime, it is an affirmative defense

that the defendant:

(a) Did not commit the homicidal act or in any way solicit, request,

command, importune, cause or aid the commission thereof; and

(b) Was not armed with a deadly weapon, or any instrument, article or

substance readily capable of causing death or serious physical injury

and of a sort not ordinarily carried in public places by law-abiding

persons; and

(c) Had no reasonable ground to believe that any other participant was

armed with such a weapon, instrument, article or substance; and

(d) Had no reasonable ground to believe that any other participant

intended to engage in conduct likely to result in death or serious

physical injury; or

4. Under circumstances evincing a depraved indifference to human life,

and being eighteen years old or more the defendant recklessly engages in

conduct which creates a grave risk of serious physical injury or death

to another person less than eleven years old and thereby causes the

death of such person; or

5. Being eighteen years old or more, while in the course of committing

rape in the first, second or third degree, a crime formerly defined in

section 130.50, 130.45 or 130.40 of this title, the crime of sexual

abuse in the first degree, aggravated sexual abuse in the first, second,

third or fourth degree, or incest in the first, second or third degree,

against a person less than fourteen years old, he or she intentionally

causes the death of such person.

Murder in the second degree is a class A-I felony.

Aggravated murder.

A person is guilty of aggravated murder when:

1. With intent to cause the death of another person, he or she causes

the death of such person, or of a third person who was a person

described in subparagraph (i), (ii), (ii-a) or (iii) of paragraph (a) of

this subdivision engaged at the time of the killing in the course of

performing his or her official duties; and

(a) Either:

(i) the intended victim was a police officer as defined in subdivision

thirty-four of section 1.20 of the criminal procedure law who was at the

time of the killing engaged in the course of performing his or her

official duties, and the defendant knew or reasonably should have known

that the victim was a police officer; or

(ii) the intended victim was a peace officer as defined in paragraph a

of subdivision twenty-one, subdivision twenty-three, twenty-four or

sixty-two (employees of the division for youth) of section 2.10 of the

criminal procedure law who was at the time of the killing engaged in the

course of performing his or her official duties, and the defendant knew

or reasonably should have known that the victim was such a uniformed

court officer, parole officer, probation officer, or employee of the

division for youth; or

(ii-a) the intended victim was a firefighter, emergency medical

technician, ambulance driver, paramedic, physician or registered nurse

involved in a first response team, or any other individual who, in the

course of official duties, performs emergency response activities and

was engaged in such activities at the time of killing and the defendant

knew or reasonably should have known that the intended victim was such

firefighter, emergency medical technician, ambulance driver, paramedic,

physician or registered nurse; or

(iii) the intended victim was an employee of a state correctional

institution or was an employee of a local correctional facility as

defined in subdivision two of section forty of the correction law, who

was at the time of the killing engaged in the course of performing his

or her official duties, and the defendant knew or reasonably should have

known that the victim was an employee of a state correctional

institution or a local correctional facility; and

(b) The defendant was more than eighteen years old at the time of the

commission of the crime; or

2. (a) With intent to cause the death of a person less than fourteen

years old, he or she causes the death of such person, and the defendant

acted in an especially cruel and wanton manner pursuant to a course of

conduct intended to inflict and inflicting torture upon the victim prior

to the victim's death. As used in this subdivision, "torture" means the

intentional and depraved infliction of extreme physical pain that is

separate and apart from the pain which otherwise would have been

associated with such cause of death; and

(b) The defendant was more than eighteen years old at the time of the

commission of the crime.

3. In any prosecution under subdivision one or two of this section, it

is an affirmative defense that:

(a) (i) The defendant acted under the influence of extreme emotional

disturbance for which there was a reasonable explanation or excuse, the

reasonableness of which is to be determined from the viewpoint of a

person in the defendant's situation under the circumstances as the

defendant believed them to be. Nothing contained in this paragraph shall

constitute a defense to a prosecution for, or preclude a conviction of,

aggravated manslaughter in the first degree, manslaughter in the first

degree or any other crime except murder in the second degree. (ii) It

shall not be a "reasonable explanation or excuse" pursuant to

subparagraph (i) of this paragraph when the defendant's conduct resulted

from the discovery, knowledge or disclosure of the victim's sexual

orientation, sex, gender, gender identity, gender expression or sex

assigned at birth; or

(b) The defendant's conduct consisted of causing or aiding, without

the use of duress or deception, another person to commit suicide.

Nothing contained in this paragraph shall constitute a defense to a

prosecution for, or preclude a conviction of, aggravated manslaughter in

the second degree, manslaughter in the second degree or any other crime

except murder in the second degree.

Aggravated murder is a class A-I felony.

Murder in the first degree.

A person is guilty of murder in the first degree when:

1. With intent to cause the death of another person, he causes the

death of such person or of a third person; and

(a) Either:

(i) the intended victim was a police officer as defined in subdivision

34 of section 1.20 of the criminal procedure law who was at the time of

the killing engaged in the course of performing his official duties, and

the defendant knew or reasonably should have known that the intended

victim was a police officer; or

(ii) the intended victim was a peace officer as defined in paragraph a

of subdivision twenty-one, subdivision twenty-three, twenty-four or

sixty-two (employees of the division for youth) of section 2.10 of the

criminal procedure law who was at the time of the killing engaged in the

course of performing his official duties, and the defendant knew or

reasonably should have known that the intended victim was such a

uniformed court officer, parole officer, probation officer, or employee

of the division for youth; or

(ii-a) the intended victim was a firefighter, emergency medical

technician, ambulance driver, paramedic, physician or registered nurse

involved in a first response team, or any other individual who, in the

course of official duties, performs emergency response activities and

was engaged in such activities at the time of killing and the defendant

knew or reasonably should have known that the intended victim was such

firefighter, emergency medical technician, ambulance driver, paramedic,

physician or registered nurse; or

(iii) the intended victim was an employee of a state correctional

institution or was an employee of a local correctional facility as

defined in subdivision two of section forty of the correction law, who

was at the time of the killing engaged in the course of performing his

official duties, and the defendant knew or reasonably should have known

that the intended victim was an employee of a state correctional

institution or a local correctional facility; or

(iv) at the time of the commission of the killing, the defendant was

confined in a state correctional institution or was otherwise in custody

upon a sentence for the term of his natural life, or upon a sentence

commuted to one of natural life, or upon a sentence for an indeterminate

term the minimum of which was at least fifteen years and the maximum of

which was natural life, or at the time of the commission of the killing,

the defendant had escaped from such confinement or custody while serving

such a sentence and had not yet been returned to such confinement or

custody; or

(v) the intended victim was a witness to a crime committed on a prior

occasion and the death was caused for the purpose of preventing the

intended victim's testimony in any criminal action or proceeding whether

or not such action or proceeding had been commenced, or the intended

victim had previously testified in a criminal action or proceeding and

the killing was committed for the purpose of exacting retribution for

such prior testimony, or the intended victim was an immediate family

member of a witness to a crime committed on a prior occasion and the

killing was committed for the purpose of preventing or influencing the

testimony of such witness, or the intended victim was an immediate

family member of a witness who had previously testified in a criminal

action or proceeding and the killing was committed for the purpose of

exacting retribution upon such witness for such prior testimony. As used

in this subparagraph "immediate family member" means a husband, wife,

father, mother, daughter, son, brother, sister, stepparent, grandparent,

stepchild or grandchild; or

(vi) the defendant committed the killing or procured commission of the

killing pursuant to an agreement with a person other than the intended

victim to commit the same for the receipt, or in expectation of the

receipt, of anything of pecuniary value from a party to the agreement or

from a person other than the intended victim acting at the direction of

a party to such agreement; or

(vii) the victim was killed while the defendant was in the course of

committing or attempting to commit and in furtherance of robbery,

burglary in the first degree or second degree, kidnapping in the first

degree, arson in the first degree or second degree, rape in the first

degree, a crime formerly defined in section 130.50 of this title, sexual

abuse in the first degree, aggravated sexual abuse in the first degree

or escape in the first degree, or in the course of and furtherance of

immediate flight after committing or attempting to commit any such crime

or in the course of and furtherance of immediate flight after attempting

to commit the crime of murder in the second degree; provided however,

the victim is not a participant in one of the aforementioned crimes and,

provided further that, unless the defendant's criminal liability under

this subparagraph is based upon the defendant having commanded another

person to cause the death of the victim or intended victim pursuant to

section 20.00 of this chapter, this subparagraph shall not apply where

the defendant's criminal liability is based upon the conduct of another

pursuant to section 20.00 of this chapter; or

(viii) as part of the same criminal transaction, the defendant, with

intent to cause serious physical injury to or the death of an additional

person or persons, causes the death of an additional person or persons;

provided, however, the victim is not a participant in the criminal

transaction; or

(ix) prior to committing the killing, the defendant had been convicted

of murder as defined in this section or section 125.25 of this article,

or had been convicted in another jurisdiction of an offense which, if

committed in this state, would constitute a violation of either of such

sections; or

(x) the defendant acted in an especially cruel and wanton manner

pursuant to a course of conduct intended to inflict and inflicting

torture upon the victim prior to the victim's death. As used in this

subparagraph, "torture" means the intentional and depraved infliction of

extreme physical pain; "depraved" means the defendant relished the

infliction of extreme physical pain upon the victim evidencing

debasement or perversion or that the defendant evidenced a sense of

pleasure in the infliction of extreme physical pain; or

(xi) the defendant intentionally caused the death of two or more

additional persons within the state in separate criminal transactions

within a period of twenty-four months when committed in a similar

fashion or pursuant to a common scheme or plan; or

(xii) the intended victim was a judge as defined in subdivision

twenty-three of section 1.20 of the criminal procedure law and the

defendant killed such victim because such victim was, at the time of the

killing, a judge; or

(xiii) the victim was killed in furtherance of an act of terrorism, as

defined in paragraph (b) of subdivision one of section 490.05 of this

chapter; and

(b) The defendant was more than eighteen years old at the time of the

commission of the crime.

2. In any prosecution under subdivision one, it is an affirmative

defense that:

(a) (i) The defendant acted under the influence of extreme emotional

disturbance for which there was a reasonable explanation or excuse, the

reasonableness of which is to be determined from the viewpoint of a

person in the defendant's situation under the circumstances as the

defendant believed them to be. Nothing contained in this paragraph shall

constitute a defense to a prosecution for, or preclude a conviction of,

manslaughter in the first degree or any other crime except murder in the

second degree. (ii) It shall not be a "reasonable explanation or excuse"

pursuant to subparagraph (i) of this paragraph when the defendant's

conduct resulted from the discovery, knowledge or disclosure of the

victim's sexual orientation, sex, gender, gender identity, gender

expression or sex assigned at birth; or

(b) The defendant's conduct consisted of causing or aiding, without

the use of duress or deception, another person to commit suicide.

Nothing contained in this paragraph shall constitute a defense to a

prosecution for, or preclude a conviction of, manslaughter in the second

degree or any other crime except murder in the second degree.

Murder in the first degree is a class A-I felony.

Sex offenses; definitions of terms.

The following definitions are applicable to this article:

1. "Vaginal sexual contact" means conduct between persons consisting

of contact between the penis and the vagina or vulva.

2. (a) "Oral sexual contact" means conduct between persons consisting

of contact between the mouth and the penis, the mouth and the anus, or

the mouth and the vulva or vagina.

(b) "Anal sexual contact" means conduct between persons consisting of

contact between the penis and anus.

3. "Sexual contact" means any touching of the sexual or other intimate

parts of a person for the purpose of gratifying sexual desire of either

party. It includes the touching of the actor by the victim, as well as

the touching of the victim by the actor, whether directly or through

clothing, as well as the emission of ejaculate by the actor upon any

part of the victim, clothed or unclothed.

4. For the purposes of this article "married" means the existence of

the relationship between the actor and the victim as spouses which is

recognized by law at the time the actor commits an offense proscribed by

this article against the victim.

5. "Mentally disabled" means that a person suffers from a mental

disease or defect which renders him or her incapable of appraising the

nature of his or her conduct.

6. "Mentally incapacitated" means that a person is rendered

temporarily incapable of appraising or controlling his conduct owing to

the influence of a narcotic or intoxicating substance administered to

him without his consent, or to any other act committed upon him without

his consent.

7. "Physically helpless" means that a person is unconscious or for any

other reason is physically unable to communicate unwillingness to an

act.

8. "Forcible compulsion" means to compel by either:

a. use of physical force; or

b. a threat, express or implied, which places a person in fear of

immediate death or physical injury to himself, herself or another

person, or in fear that he, she or another person will immediately be

kidnapped.

9. "Foreign object" means any instrument or article which, when

inserted in the vagina, urethra, penis, rectum or anus, is capable of

causing physical injury.

10. "Sexual conduct" means vaginal sexual contact, oral sexual

contact, anal sexual contact, aggravated sexual contact, or sexual

contact.

11. "Aggravated sexual contact" means inserting, other than for a

valid medical purpose, a foreign object in the vagina, urethra, penis,

rectum or anus of a child, thereby causing physical injury to such

child.

12. "Health care provider" means any person who is, or is required to

be, licensed or registered or holds himself or herself out to be

licensed or registered, or provides services as if he or she were

licensed or registered in the profession of medicine, chiropractic,

dentistry or podiatry under any of the following: article one hundred

thirty-one, one hundred thirty-two, one hundred thirty-three, or one

hundred forty-one of the education law.

13. "Mental health care provider" shall mean a licensed physician,

licensed psychologist, registered professional nurse, licensed clinical

social worker, licensed master social worker under the supervision of a

physician, psychologist or licensed clinical social worker, licensed

mental health counselor or a licensed marriage and family therapist.

Sex offenses; lack of consent.

1. Whether or not specifically stated, it is an element of every

offense defined in this article that the sexual act was committed

without consent of the victim.

2. Lack of consent results from:

(a) Forcible compulsion; or

(b) Incapacity to consent; or

(c) Where the offense charged is sexual abuse or forcible touching,

any circumstances, in addition to forcible compulsion or incapacity to

consent, in which the victim does not expressly or impliedly acquiesce

in the actor's conduct; or

(d) Where the offense charged is rape in the third degree as defined

in subdivision seven, eight or nine of section 130.25, or a crime

formerly defined in subdivision three of section 130.40, in addition to

forcible compulsion, circumstances under which, at the time of the act

of vaginal sexual contact, oral sexual contact or anal sexual contact,

the victim clearly expressed that he or she did not consent to engage in

such act, and a reasonable person in the actor's situation would have

understood such person's words and acts as an expression of lack of

consent to such act under all the circumstances.

3. A person is deemed incapable of consent when he or she is:

(a) less than seventeen years old; or

(b) mentally disabled; or

(c) mentally incapacitated; or

(d) physically helpless; or

(e) committed to the care and custody or supervision of the state

department of corrections and community supervision or a hospital, as

such term is defined in subdivision two of section four hundred of the

correction law, and the actor is an employee who knows or reasonably

should know that such person is committed to the care and custody or

supervision of such department or hospital. For purposes of this

paragraph, "employee" means (i) an employee of the state department of

corrections and community supervision who, as part of his or her

employment, performs duties: (A) in a state correctional facility in

which the victim is confined at the time of the offense consisting of

providing custody, medical or mental health services, counseling

services, educational programs, vocational training, institutional

parole services or direct supervision to incarcerated individuals; or

(B) of supervising persons released on community supervision and

supervises the victim at the time of the offense or has supervised the

victim and the victim is still under community supervision at the time

of the offense; or

(ii) an employee of the office of mental health who, as part of his or

her employment, performs duties in a state correctional facility or

hospital, as such term is defined in subdivision two of section four

hundred of the correction law in which the incarcerated individual is

confined at the time of the offense, consisting of providing custody,

medical or mental health services, or direct supervision to such

incarcerated individuals; or

(iii) a person, including a volunteer, providing direct services to

incarcerated individuals in a state correctional facility in which the

victim is confined at the time of the offense pursuant to a contractual

arrangement with the state department of corrections and community

supervision or, in the case of a volunteer, a written agreement with

such department, provided that the person received written notice

concerning the provisions of this paragraph; or

(f) committed to the care and custody of a local correctional

facility, as such term is defined in subdivision two of section forty of

the correction law, and the actor is an employee, not married to such

person, who knows or reasonably should know that such person is

committed to the care and custody of such facility. For purposes of this

paragraph, "employee" means an employee of the local correctional

facility where the person is committed who performs professional duties

consisting of providing custody, medical or mental health services,

counseling services, educational services, or vocational training for

incarcerated individuals. For purposes of this paragraph, "employee"

shall also mean a person, including a volunteer or a government employee

of the state department of corrections and community supervision or a

local health, education or probation agency, providing direct services

to incarcerated individuals in the local correctional facility in which

the victim is confined at the time of the offense pursuant to a

contractual arrangement with the local correctional department or, in

the case of such a volunteer or government employee, a written agreement

with such department, provided that such person received written notice

concerning the provisions of this paragraph; or

(g) committed to or placed with the office of children and family

services and in residential care, and the actor is an employee, not

married to such person, who knows or reasonably should know that such

person is committed to or placed with such office of children and family

services and in residential care. For purposes of this paragraph,

"employee" means an employee of the office of children and family

services or of a residential facility in which such person is committed

to or placed at the time of the offense who, as part of his or her

employment, performs duties consisting of providing custody, medical or

mental health services, counseling services, educational services,

vocational training, or direct supervision to persons committed to or

placed in a residential facility operated by the office of children and

family services; or

(h) a client or patient and the actor is a health care provider or

mental health care provider charged with rape in the third degree as

defined in section 130.25, a crime formerly defined in section 130.40,

aggravated sexual abuse in the fourth degree as defined in section

130.65-a, or sexual abuse in the third degree as defined in section

130.55, and the act of sexual conduct occurs during a treatment session,

consultation, interview, or examination; or

(i) a resident or inpatient of a residential facility operated,

licensed or certified by (i) the office of mental health; (ii) the

office for people with developmental disabilities; or (iii) the office

of alcoholism and substance abuse services, and the actor is an employee

of the facility not married to such resident or inpatient. For purposes

of this paragraph, "employee" means either: an employee of the agency

operating the residential facility, who knows or reasonably should know

that such person is a resident or inpatient of such facility and who

provides direct care services, case management services, medical or

other clinical services, habilitative services or direct supervision of

the residents in the facility in which the resident resides; or an

officer or other employee, consultant, contractor or volunteer of the

residential facility, who knows or reasonably should know that the

person is a resident of such facility and who is in direct contact with

residents or inpatients; provided, however, that the provisions of this

paragraph shall only apply to a consultant, contractor or volunteer

providing services pursuant to a contractual arrangement with the agency

operating the residential facility or, in the case of a volunteer, a

written agreement with such facility, provided that the person received

written notice concerning the provisions of this paragraph; provided

further, however, "employee" shall not include a person with a

developmental disability who is or was receiving services and is also an

employee of a service provider and who has sexual contact with another

service recipient who is a consenting adult who has consented to such

contact; or

(j) detained or otherwise in the custody of a police officer, peace

officer, or other law enforcement official and the actor is a police

officer, peace officer or other law enforcement official who either: (i)

is detaining or maintaining custody of such person; or (ii) knows, or

reasonably should know, that at the time of the offense, such person was

detained or in custody.

(k) under the supervision of a local probation department, pursuant to

section two hundred seventy-two of the correction law, or another local

department or agency which fulfills a similar function and the actor is

an employee who knows or reasonably should know that such person is

committed to the supervision of a local probation department. For

purposes of this paragraph, "employee" means an employee of such local

probation department or agency who, as part of his or her employment,

supervises the victim at the time of the offense or has supervised the

victim and the victim is still under supervision of a local probation

department or agency at the time of the offense.

Sex offenses; limitation; defenses.

1. In any prosecution under this article in which the victim's lack of

consent is based solely upon his or her incapacity to consent because he

or she was mentally disabled, mentally incapacitated or physically

helpless, it is an affirmative defense that the defendant, at the time

he or she engaged in the conduct constituting the offense, did not know

of the facts or conditions responsible for such incapacity to consent.

2. Conduct performed for a valid medical or mental health care purpose

shall not constitute a violation of any section of this article in which

incapacity to consent is based on the circumstances set forth in

paragraph (h) of subdivision three of section 130.05 of this article.

3. In any prosecution for the crime of rape in the third degree as

defined in section 130.25, a crime formerly defined in section 130.40,

aggravated sexual abuse in the fourth degree as defined in section

130.65-a, or sexual abuse in the third degree as defined in section

130.55 in which incapacity to consent is based on the circumstances set

forth in paragraph (h) of subdivision three of section 130.05 of this

article it shall be an affirmative defense that the client or patient

consented to such conduct charged after having been expressly advised by