N.Y. Penal Law § 70.45: Determinate sentence; post-release supervision

§ 70.45 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.