N.Y. Penal Law § 70.70: Sentence of imprisonment for felony drug offender other than a class A felony

§ 70.70 Sentence of imprisonment for felony drug offender other than a

class A felony.

1. For the purposes of this section, the following terms shall mean:

(a) "Felony drug offender" means a defendant who stands convicted of

any felony, defined in article two hundred twenty or two hundred

twenty-two of this chapter other than a class A felony.

(b) "Second felony drug offender" means a second felony offender as

that term is defined in subdivision one of section 70.06 of this

article, who stands convicted of any felony, defined in article two

hundred twenty or two hundred twenty-two of this chapter other than a

class A felony.

(c) "Violent felony" shall have the same meaning as that term is

defined in subdivision one of section 70.02 of this article.

2. Except as provided in subdivision three or four of this section, a

sentence of imprisonment for a felony drug offender shall be a

determinate sentence as provided in paragraph (a) of this subdivision.

(a) Term of determinate sentence. Except as provided in paragraph (b)

or (c) of this subdivision, the court shall impose a determinate term of

imprisonment upon a felony drug offender which shall be imposed by the

court in whole or half years, which shall include as a part thereof a

period of post-release supervision in accordance with section 70.45 of

this article. The terms of imprisonment authorized for such determinate

sentences are as follows:

(i) for a class B felony, the term shall be at least one year and

shall not exceed nine years, except that for the class B felony of

criminal sale of a controlled substance in or near school grounds as

defined in subdivision two of section 220.44 of this chapter or on a

school bus as defined in subdivision seventeen of section 220.00 of this

chapter or criminal sale of a controlled substance to a child as defined

in section 220.48 of this chapter, the term shall be at least two years

and shall not exceed nine years;

(ii) for a class C felony, the term shall be at least one year and

shall not exceed five and one-half years;

(iii) for a class D felony, the term shall be at least one year and

shall not exceed two and one-half years; and

(iv) for a class E felony, the term shall be at least one year and

shall not exceed one and one-half years.

(b) Probation. Notwithstanding any other provision of law, the court

may sentence a defendant convicted of a class B, class C, class D or

class E felony offense defined in article two hundred twenty or two

hundred twenty-two of this chapter to probation in accordance with the

provisions of sections 60.04 and 65.00 of this chapter.

(c) Alternative definite sentence for class B, class C, class D, and

class E felonies. If the court, having regard to the nature and

circumstances of the crime and to the history and character of the

defendant, is of the opinion that a sentence of imprisonment is

necessary but that it would be unduly harsh to impose a determinate

sentence upon a person convicted of a class C, class D or class E felony

offense defined in article two hundred twenty or two hundred twenty-two

of this chapter, or a class B felony defined in article two hundred

twenty of this chapter, other than the class B felony defined in section

220.48 of this chapter, as added by a chapter of the laws of two

thousand nine the court may impose a definite sentence of imprisonment

and fix a term of one year or less.

(d) The court may direct that a determinate sentence imposed on a

defendant convicted of a class B felony, other than the class B felony

defined in section 220.48 of this chapter, pursuant to this subdivision

be executed as a sentence of parole supervision in accordance with

section 410.91 of the criminal procedure law.

3. Sentence of imprisonment for second felony drug offender.

(a) Applicability. This subdivision shall apply to a second felony

drug offender whose prior felony conviction was not a violent felony.

(b) Except as provided in paragraphs (c), (d) and (e) of this

subdivision, when the court has found pursuant to the provisions of

section 400.21 of the criminal procedure law that a defendant is a

second felony drug offender who stands convicted of a class B, class C,

class D or class E felony offense defined in article two hundred twenty

or two hundred twenty-two of this chapter the court shall impose a

determinate sentence of imprisonment. Such determinate sentence shall

include as a part thereof a period of post-release supervision in

accordance with section 70.45 of this article. The terms of such

determinate sentence shall be imposed by the court in whole or half

years as follows:

(i) for a class B felony, the term shall be at least two years and

shall not exceed twelve years;

(ii) for a class C felony, the term shall be at least one and one-half

years and shall not exceed eight years;

(iii) for a class D felony, the term shall be at least one and

one-half years and shall not exceed four years; and

(iv) for a class E felony, the term shall be at least one and one-half

years and shall not exceed two years.

(c) Probation. Notwithstanding any other provision of law, the court

may sentence a second felony drug offender convicted of a class B felony

to lifetime probation in accordance with the provisions of section 65.00

of this chapter and may sentence a second felony drug offender convicted

of a class C, class D or class E felony to probation in accordance with

the provisions of section 65.00 of this chapter.

(d) Sentence of parole supervision. In the case of a person sentenced

for a specified offense or offenses as defined in subdivision five of

section 410.91 of the criminal procedure law, who stands convicted of no

other felony offense, who has not previously been convicted of either a

violent felony offense as defined in section 70.02 of this article, a

class A felony offense or a class B felony offense, and is not under the

jurisdiction of or awaiting delivery to the department of corrections

and community supervision, the court may direct that a determinate

sentence imposed pursuant to this subdivision shall be executed as a

parole supervision sentence as defined in and pursuant to the procedures

prescribed in section 410.91 of the criminal procedure law.

(e) Alternate definite sentence for class C, class D and class E

felonies. If the court, having regard to the nature and circumstances of

the crime and to the history and character of the defendant, is of the

opinion that a sentence of imprisonment is necessary but that it would

be unduly harsh to impose a determinate sentence upon a person convicted

of a class C, class D or class E felony offense defined in article two

hundred twenty or two hundred twenty-two of this chapter, the court may

impose a definite sentence of imprisonment and fix a term of one year or

less.

4. Sentence of imprisonment for second felony drug offender previously

convicted of a violent felony.

(a) Applicability. This subdivision shall apply to a second felony

drug offender whose prior felony conviction was a violent felony.

(b) Authorized sentence. When the court has found pursuant to the

provisions of section 400.21 of the criminal procedure law that a

defendant is a second felony drug offender whose prior felony conviction

was a violent felony, who stands convicted of a class B, class C, class

D or class E felony offense defined in article two hundred twenty or two

hundred twenty-two of this chapter, the court shall impose a determinate

sentence of imprisonment. Such determinate sentence shall include as a

part thereof a period of post-release supervision in accordance with

section 70.45 of this article. The terms of such determinate sentence

shall be imposed by the court in whole or half years as follows:

(i) for a class B felony, the term shall be at least six years and

shall not exceed fifteen years;

(ii) for a class C felony, the term shall be at least three and

one-half years and shall not exceed nine years;

(iii) for a class D felony, the term shall be at least two and

one-half years and shall not exceed four and one-half years; and

(iv) for a class E felony, the term shall be at least two years and

shall not exceed two and one-half years.