N.Y. Penal Law § 65.00: Sentence of probation

§ 65.00 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.