N.Y. Criminal Procedure Law § 380.50: Statements at time of sentence

§ 380.50 Statements at time of sentence.

1. At the time of pronouncing sentence, the court must accord the

prosecutor an opportunity to make a statement with respect to any matter

relevant to the question of sentence. The court must then accord counsel

for the defendant an opportunity to speak on behalf of the defendant.

The defendant also has the right to make a statement personally in his

or her own behalf, and before pronouncing sentence the court must ask

the defendant whether he or she wishes to make such a statement.

2. (a) For purposes of this section "victim" shall mean:

(1) the victim as indicated in the accusatory instrument; or

(2) if such victim is unable or unwilling to express himself or

herself before the court or a person so mentally or physically disabled

as to make it impracticable to appear in court in person or the victim

is deceased, a member of the family of such victim, or the legal

guardian or representative of the legal guardian of the victim where

such guardian or representative has personal knowledge of and a

relationship with the victim, unless the court finds that it would be

inappropriate for such person to make a statement on behalf of the

victim.

(b) If the defendant is being sentenced for a felony the court, if

requested at least ten days prior to the sentencing date, shall accord

the victim the right to make a statement with regard to any matter

relevant to the question of sentence. The court shall notify the

defendant no less than seven days prior to sentencing of the victim's

intent to make a statement at sentencing. If the defendant does not

receive timely notice pursuant to this subdivision, the defendant may

request a reasonable adjournment.

(c) Any statement by the victim must precede any statement by counsel

to the defendant or the defendant made pursuant to subdivision one of

this section. The defendant shall have the right to rebut any statement

made by the victim.

(d) Where the people and the defendant have agreed to a disposition

which includes a sentence acceptable to the court, and the court intends

to impose such sentence, any rebuttal by the defendant shall be limited

to an oral presentation made at the time of sentencing.

(e) Where (1) the defendant has been found guilty after trial or there

is no agreement between the people and the defendant as to a proposed

sentence or the court, after the statement by the victim, chooses not to

impose the proposed sentence agreed to by the parties; (2) the statement

by the victim includes allegations about the crime that were not fully

explored during the proceedings or that materially vary from or

contradict the evidence at trial; and (3) the court determines that the

allegations are relevant to the issue of sentencing, then the court

shall afford the defendant the following rights:

(A) a reasonable adjournment of the sentencing to allow the defendant

to present information to rebut the allegations by the victim; and

(B) allow the defendant to present written questions to the court that

the defendant desires the court to put to the victim. The court may, in

its discretion, decline to put any or all of the questions to the

victim. Where the court declines to put any or all of the questions to

the victim it shall state its reasons therefor on the record.

(f) If the victim does not appear to make a statement at the time of

sentencing, the right to make a statement is waived. The failure of the

victim to make a statement shall not be cause for delaying the

proceedings against the defendant nor shall it affect the validity of a

conviction, judgment or order.

(g) Following the acquittal after trial or the sentencing of any

defendant for a felony, the district attorney, or their designee, shall

provide a written summary of the disposition of such felony to any

victim who was not present at the time such defendant was sentenced or

acquitted after trial. Such written summary shall be provided by mail,

electronically, or by any other reasonable and secure means of written

communication.

3. The court may, either before or after receiving such statements,

summarize the factors it considers relevant for the purpose of sentence

and afford an opportunity to the defendant or his or her counsel to

comment thereon.

4. Regardless of whether the victim requests to make a statement with

regard to the defendant's sentence, where the defendant is committed to

the custody of the department of corrections and community supervision

upon a sentence of imprisonment for conviction of a violent felony

offense as defined in section 70.02 of the penal law or a felony defined

in article one hundred twenty-five of such law, or a sex offense as

defined in subdivision (p) of section 10.03 of the mental hygiene law,

within sixty days of the imposition of sentence the prosecutor shall

provide the victim with a form, prepared and distributed by the

commissioner of the department of corrections and community supervision,

on which the victim may indicate a demand to be informed of the escape,

absconding, discharge, parole, conditional release, release to

post-release supervision, transfer to the custody of the office of

mental health pursuant to article ten of the mental hygiene law, or

release from confinement under article ten of the mental hygiene law of

the person so imprisoned. If the victim submits a completed form to the

prosecutor, it shall be the duty of the prosecutor to mail promptly such

form to the department of corrections and community supervision.

5. Following the receipt of such form from the prosecutor, it shall be

the duty of the department of corrections and community supervision or,

where the person is committed to the custody of the office of mental

health, at the time such person is discharged, paroled, conditionally

released, released to post-release supervision, or released from

confinement under article ten of the mental hygiene law, to notify the

victim of such occurrence by certified mail or with the prior consent of

the victim either by regular mail or by electronic transmission using

the contact information provided by the victim. In the event such person

escapes or absconds from a facility under the jurisdiction of the

department of corrections and community supervision, it shall be the

duty of such department to notify immediately the victim of such

occurrence using the contact information provided by the victim in the

most reasonable and expedient possible manner. In the event such escapee

or absconder is subsequently taken into custody by the department of

corrections and community supervision, it shall be the duty of such

department to notify the victim of such occurrence by certified or

regular mail or by electronic transmission using the contact information

provided by the victim within forty-eight hours of regaining such

custody. In the case of a person who escapes or absconds from

confinement under article ten of the mental hygiene law, the office of

mental health shall notify the victim or victims in accordance with the

procedures set forth in subdivision (g) of section 10.10 of the mental

hygiene law. In no case shall the state be held liable for failure to

provide any notice required by this subdivision.

6. Regardless of whether the victim requests to make a statement with

regard to the defendant's sentence, where the defendant is sentenced for

a violent felony offense as defined in section 70.02 of the penal law or

a felony defined in article one hundred twenty-five of such law or any

of the following provisions of such law sections 130.25, 130.30, former

section 130.40, former section 130.45, sections 255.25, 255.26, 255.27,

article two hundred sixty-three, 135.10, 135.25, 230.05, 230.06, 230.11,

230.12, 230.13, subdivision two of section 230.30 or 230.32, the

prosecutor shall, within sixty days of the imposition of sentence,

provide the victim with a form, prepared and distributed by the

commissioner of the division of criminal justice services, in

consultation with the director of the office of victim services, on

which the victim may indicate a demand to be informed of any petition to

change the name of such defendant. Such forms shall be maintained by

such prosecutor. Upon receipt of a notice of a petition to change the

name of any such defendant, pursuant to subdivision two of section

sixty-two of the civil rights law, the prosecutor shall promptly notify

the victim at the most current address or telephone number provided by

such victim in the most reasonable and expedient possible manner of the

time and place such petition will be presented to the court.