N.Y. Penal Law § 70.02: Sentence of imprisonment for a violent felony offense

§ 70.02 Sentence of imprisonment for a violent felony offense.

1. Definition of a violent felony offense. A violent felony offense is

a class B violent felony offense, a class C violent felony offense, a

class D violent felony offense, or a class E violent felony offense,

defined as follows:

(a) Class B violent felony offenses: an attempt to commit the class

A-I felonies of murder in the second degree as defined in section

125.25, kidnapping in the first degree as defined in section 135.25, and

arson in the first degree as defined in section 150.20; manslaughter in

the first degree as defined in section 125.20, aggravated manslaughter

in the first degree as defined in section 125.22, rape in the first

degree as defined in section 130.35, 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.