N.Y. Penal Law § 70.80: Sentences of imprisonment for conviction of a felony sex offense

§ 70.80 Sentences of imprisonment for conviction of a felony sex

offense.

1. Definitions. (a) For the purposes of this section, a "felony sex

offense" means a conviction of any felony defined in article one hundred

thirty of this chapter, including a sexually motivated felony, or

patronizing a person for prostitution in the first degree as defined in

section 230.06 of this chapter, patronizing a person for prostitution in

the second degree as defined in section 230.05 of this chapter,

aggravated patronizing a minor for prostitution in the third degree as

defined in section 230.11 of this chapter, aggravated patronizing a

minor for prostitution in the second degree as defined in section 230.12

of this chapter, aggravated patronizing a minor for prostitution in the

first degree as defined in section 230.13 of this chapter, incest in the

second degree as defined in section 255.26 of this chapter, or incest in

the first degree as defined in section 255.27 of this chapter, or a

felony attempt or conspiracy to commit any of the above.

(b) A felony sex offense shall be deemed a "violent felony sex

offense" if it is for an offense defined as a violent felony offense in

section 70.02 of this article, or for a sexually motivated felony as

defined in section 130.91 of this chapter where the specified offense is

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

(c) For the purposes of this section, a "predicate felony sex

offender" means a person who stands convicted of any felony sex offense

as defined in paragraph (a) of this subdivision, other than a class A-I

felony, after having previously been subjected to one or more predicate

felony convictions as defined in subdivision one of section 70.06 or

subdivision one of section 70.04 of this article.

(d) For purposes of this section, a "violent felony offense" is any

felony defined in subdivision one of section 70.02 of this article, and

a "non-violent felony offense" is any felony not defined therein.

2. In imposing a sentence within the authorized statutory range for

any felony sex offense, the court may consider all relevant factors set

forth in section 1.05 of this chapter, and in particular, may consider

the defendant's criminal history, if any, including any history of sex

offenses; any mental illness or mental abnormality from which the

defendant may suffer; the defendant's ability or inability to control

his sexual behavior; and, if the defendant has difficulty controlling

such behavior, the extent to which that difficulty may pose a threat to

society.

3. Except as provided by subdivision four, five, six, seven or eight

of this section, or when a defendant is being sentenced for a conviction

of the class A-II felonies of predatory sexual assault and predatory

sexual assault against a child as defined in sections 130.95 and 130.96

of this chapter, or for any class A-I sexually motivated felony for

which a life sentence or a life without parole sentence must be imposed,

a sentence imposed upon a defendant convicted of a felony sex offense

shall be a determinate sentence. The determinate sentence shall be

imposed by the court in whole or half years, and shall include as a part

thereof a period of post-release supervision in accordance with

subdivision two-a of section 70.45 of this article. Persons eligible for

sentencing under section 70.07 of this article governing second child

sexual assault felonies shall be sentenced under such section and

paragraph (j) of subdivision two-a of section 70.45 of this article.

4. (a) Sentences of imprisonment for felony sex offenses. Except as

provided in subdivision five, six, seven, or eight of this section, the

term of the determinate sentence must be fixed by the court as follows:

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

must not exceed twenty-five years;

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

one-half years and must not exceed fifteen years;

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

must not exceed seven years; and

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

years and must not exceed four years.

(b) Probation. The court may sentence a defendant convicted of a class

D or class E felony sex offense to probation in accordance with the

provisions of section 65.00 of this title.

(c) Alternative definite sentences for class D and class E felony sex

offenses. 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 D or class E felony sex offense, the court may impose a

definite sentence of imprisonment and fix a term of one year or less.

5. Sentence of imprisonment for a predicate felony sex offender. (a)

Applicability. This subdivision shall apply to a predicate felony sex

offender who stands convicted of a non-violent felony sex offense and

who was previously convicted of one or more felonies.

(b) Non-violent predicate felony offense. When the court has found,

pursuant to the provisions of the criminal procedure law, that a person

is a predicate felony sex offender, and the person's predicate

conviction was for a non-violent felony offense, the court must impose a

determinate sentence of imprisonment, the term of which must be fixed by

the court as follows:

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

must not exceed twenty-five years;

(ii) for a class C felony, the term must be at least five years and

must not exceed fifteen years;

(iii) for a class D felony, the term must be at least three years and

must not exceed seven years; and

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

must not exceed four years.

(c) Violent predicate felony offense. When the court has found,

pursuant to the provisions of the criminal procedure law, that a person

is a predicate felony sex offender, and the person's predicate

conviction was for a violent felony offense, the court must impose a

determinate sentence of imprisonment, the term of which must be fixed by

the court as follows:

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

must not exceed twenty-five years;

(ii) for a class C felony, the term must be at least six years and

must not exceed fifteen years;

(iii) for a class D felony, the term must be at least four years and

must not exceed seven years; and

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

years and must not exceed four years.

(d) A defendant who stands convicted of a non-violent felony sex

offense, other than a class A-I or class A-II felony, who is adjudicated

a persistent felony offender under section 70.10 of this article, shall

be sentenced pursuant to the provisions of section 70.10 or pursuant to

this subdivision.

6. Sentence of imprisonment for a violent felony sex offense. Except

as provided in subdivisions seven and eight of this section, a defendant

who stands convicted of a violent felony sex offense must be sentenced

pursuant to the provisions of section 70.02, section 70.04, subdivision

six of section 70.06, section 70.08, or section 70.10 of this article,

as applicable.

7. Sentence for a class A felony sex offense. When a person stands

convicted of a sexually motivated felony pursuant to section 130.91 of

this chapter and the specified offense is a class A felony, the court

must sentence the defendant in accordance with the provisions of:

(a) section 60.06 of this chapter and section 70.00 of this article,

as applicable, if such offense is a class A-I felony; and

(b) section 70.00, 70.06 or 70.08 of this article, as applicable, if

such offense is a class A-II felony.

8. Whenever a juvenile offender stands convicted of a felony sex

offense, he or she must be sentenced pursuant to the provisions of

sections 60.10 and 70.05 of this chapter.

9. Every determinate sentence for a felony sex offense, as defined in

paragraph (a) of subdivision one of this section, imposed pursuant to

any section of this article, shall include as a part thereof a period of

post-release supervision in accordance with subdivision two-a of section

70.45 of this article.