N.Y. Penal Law § 60.04: Authorized disposition; controlled substances and marihuana felony offenses

§ 60.04 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.