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NEW YORK PENAL LAW
CHAPTER 40 OF THE CONSOLIDATED LAWS
PART ONE--GENERAL PROVISIONS
TITLE A--GENERAL PURPOSES, RULES OF CONSTRUCTION, AND DEFINITIONS
ARTICLE 1--GENERAL PURPOSES

Section 1.00 Short title

 This chapter shall be known as the "Penal Law."
 

Section 1.05 General purposes

 The general purposes of the provisions of this chapter are:

 1. To proscribe conduct which unjustifiably and inexcusably causes or threatens substantial harm to individual or public interests;

 2. To give fair warning of the nature of the conduct proscribed and of the sentences authorized upon conviction;

 3. To define the act or omission and the accompanying mental state which constitute each offense;

 4. To differentiate on reasonable grounds between serious and minor offenses and to prescribe proportionate penalties therefore;

 5. To provide for an appropriate public response to particular offenses, including consideration of the consequences of the offense for the victim, including the victim's family, and the community;  and

 6. To insure the public safety by preventing the commission of offenses through the deterrent influence of the sentences authorized, the rehabilitation of those convicted, and their confinement when required in the interests of public protection.


ARTICLE 5--GENERAL RULES OF CONSTRUCTION AND APPLICATION

Section 5.00 Penal law not strictly construed

 The general rule that a penal statute is to be strictly construed does not apply to this chapter, but the provisions herein must be construed according to the fair import of their terms to promote justice and effect the objects of the law.
 

Section 5.05 Application of chapter to offenses committed before and after enactment

 1. The provisions of this chapter shall govern the construction of and punishment for any offense defined in this chapter and committed after the effective date hereof, as well as the construction and application of any defense to a prosecution for such an offense.

 2. Unless otherwise expressly provided, or unless the context otherwise requires, the provisions of this chapter shall govern the construction of and punishment for any offense defined outside of this chapter and committed after the effective date thereof, as well as the construction and application of any defense to a prosecution for such an offense.

 3. The provisions of this chapter do not apply to or govern the construction of and punishment for any offense committed prior to the effective date of this chapter, or the construction and application of any defense to a prosecution for such an offense.  Such an offense must be construed and punished according to the provisions of law existing at the time of the commission thereof in the same manner as if this chapter had not been enacted.
 

Section 5.10 Other limitations on applicability of this chapter

 1. Except as otherwise provided, the procedure governing the accusation, prosecution, conviction and punishment of offenders and offenses is not regulated by this chapter but by the criminal procedure law.

 2. This chapter does not affect any power conferred by law upon any court-martial or other military authority or officer to prosecute and punish conduct and offenders violating military codes or laws.

 3. This chapter does not bar, suspend, or otherwise affect any right or liability to damages, penalty, forfeiture or other remedy authorized by law to be recovered or enforced in a civil action, regardless of whether the conduct involved in such civil action constitutes an offense defined in this chapter.

 4. Sections 120.45, 120.50, 120.55 and 120.60 and section 240.25, subdivisions two and three of section 240.26, and sections 240.70 and 240.71 of this chapter (a) do not apply to conduct which is otherwise lawful under the provisions of the National Labor Relations Act as amended, the National Railway Labor Act as amended, or the Federal Employment Labor Management Act as amended, and (b) do not bar any conduct, including, but not limited to, peaceful picketing or other peaceful demonstration, protected from legal prohibition by the federal and state constitutions.


ARTICLE 10--DEFINITIONS

Section 10.00 Definitions of terms of general use in this chapter

 Except where different meanings are expressly specified in subsequent provisions of this chapter, the following terms have the following meanings:

 1. "Offense" means conduct for which a sentence to a term of imprisonment or to a fine is provided by any law of this state or by any law, local law or ordinance of a political subdivision of this state, or by any order, rule or regulation of any governmental instrumentality authorized by law to adopt the same.

 2. "Traffic infraction" means any offense defined as "traffic infraction" by section one hundred fifty-five of the vehicle and traffic law.

 3. "Violation" means an offense, other than a "traffic infraction," for which a sentence to a term of imprisonment in excess of fifteen days cannot be imposed.

 4. "Misdemeanor" means an offense, other than a "traffic infraction," for which a sentence to a term of imprisonment in excess of fifteen days may be imposed, but for which a sentence to a term of imprisonment in excess of one year cannot be imposed.

 5. "Felony" means an offense for which a sentence to a term of imprisonment in excess of one year may be imposed.

 6. "Crime" means a misdemeanor or a felony.

 7. "Person" means a human being, and where appropriate, a public or private corporation, an unincorporated association, a partnership, a government or a governmental instrumentality.

 8. "Possess" means to have physical possession or otherwise to exercise dominion or control over tangible property.

 9. "Physical injury" means impairment of physical condition or substantial pain.

 10. "Serious physical injury" means physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ.

 11. "Deadly physical force" means physical force which, under the circumstances in which it is used, is readily capable of causing death or other serious physical injury.

 12. "Deadly weapon" means any loaded weapon from which a shot, readily capable of producing death or other serious physical injury, may be discharged, or a switchblade knife, gravity knife, pilum ballistic knife, metal knuckle knife, dagger, billy, blackjack, or metal knuckles.

 13. "Dangerous instrument" means any instrument, article or substance, including a "vehicle" as that term is defined in this section, which, under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or other serious physical injury.

 14. "Vehicle" means a "motor vehicle", "trailer" or "semi-trailer," as defined in the vehicle and traffic law, any snowmobile as defined in the parks and recreation law, any aircraft, or any vessel equipped for propulsion by mechanical means or by sail.

 15. "Public servant" means (a) any public officer or employee of the state or of any political subdivision thereof or of any governmental instrumentality within the state, or (b) any person exercising the functions of any such public officer or employee.  The term public servant includes a person who has been elected or designated to become a public servant.

 16. "Juror" means any person who is a member of any jury, including a grand jury, impaneled by any court in this state or by any public servant authorized by law to impanel a jury.  The term juror also includes a person who has been drawn or summoned to attend as a prospective juror.

 17. "Benefit" means any gain or advantage to the beneficiary and includes any gain or advantage to a third person pursuant to the desire or consent of the beneficiary.

 18. "Juvenile offender" means (1) a person thirteen years old who is criminally responsible for acts constituting murder in the second degree as defined in subdivisions one and two of section 125.25 of this chapter;  and (2) a person thirteen, fourteen or fifteen years of age is criminally responsible for acts constituting murder in the second degree as defined in subdivision one and two of section 125.25 and in subdivision three of such section provided that the underlying crime for the murder charge is one for which such person is criminally responsible; and a person fourteen or fifteen years of age is criminally responsible for acts constituting the crimes defined in section 135.25 (kidnapping in the first degree); 150.20 (arson in the first degree);  subdivisions one and two of section 120.10 (assault in the first degree);  125.20 (manslaughter in the first degree);  subdivisions one and two of section 130.35 (rape in the first degree);  subdivisions one and two of section 130.50 (sodomy in the first degree);  130.70 (aggravated sexual abuse);  140.30 (burglary in the first degree);  subdivision one of section 140.25 (burglary in the second degree); 150.15 (arson in the second degree);  160.15 (robbery in the first degree);  or subdivision two of section 160.10 (robbery in the second degree) of this chapter;   subdivision four of section 265.02 of this chapter, where such firearm is possessed on school grounds, as that phrase is defined in subdivision fourteen of section 220.00 of this chapter;  or section 265.03 of this chapter, where such machine gun or such firearm is possessed on school grounds, as that phrase is defined in subdivision fourteen of section 220.00 of this chapter;  or defined in this chapter as an attempt to commit murder in the second degree or kidnapping in the first degree.

19. For the purposes of section 260.30 and 120.01 of this chapter the term "child day care provider" shall be defined as provided for in section three hundred ninety of the social services law.


20. For purposes of sections 120.13, 120.18, 125.11, 125.21 and 125.22 of this chapter, the term "peace officer" means a peace officer as defined in subdivision one, two, three, four, six, twelve, thirteen, fifteen, sixteen, seventeen, eighteen, nineteen, twenty, twenty-one, twenty-three, twenty-three-a, twenty-four, twenty-five, twenty-six, twenty-eight, twenty- nine, thirty, thirty-one, thirty-two, thirty-four, thirty-five, thirty-six, forty-three, forty-five, forty-seven, forty-eight, forty-nine, fifty-one, fifty-two, fifty-eight, sixty-one, as added by chapter two hundred fifty-seven of the laws of nineteen hundred ninety-two, sixty-one, as added by chapter three hundred twenty-one of the laws of nineteen hundred ninety-two, sixty-two, as added by chapter two hundred four of the laws of nineteen hundred ninety-three, sixty-two, as added by chapter six hundred eighty-seven of the laws of nineteen hundred ninety-three, sixty-three, as amended by chapter six hundred thirty-eight of the laws of two thousand three, sixty-four, sixty-five, sixty-eight, as added by chapter one hundred sixty-eight of the laws of two thousand, sixty-eight, as added by chapter three hundred eighty-one of the laws of two thousand, seventy, seventy-one, seventy-four, as added by chapter five hundred forty-eight of the laws of two thousand one, seventy-five, as added by chapter three hundred twenty-one of the laws of two thousand two, seventy-five, as added by chapter six hundred twenty-three of the laws of two thousand two, seventy-seven, as added by chapter three hundred sixty-seven of the laws of two thousand four, seventy-eight or seventy-nine, as added by chapter two hundred forty-one of the laws of two thousand four, of section 2.10 of the criminal procedure law, as well as any federal law enforcement officer defined in section 2.15 of the criminal procedure law.

 


TITLE B--PRINCIPLES OF CRIMINAL LIABILITY
ARTICLE 15--CULPABILITY

Section 15.00 Culpability;  definitions of terms

 The following definitions are applicable to this chapter:

 1. "Act" means a bodily movement.

 2. "Voluntary act" means a bodily movement performed consciously as a result of effort or determination, and includes the possession of property if the actor was aware of his physical possession or control thereof for a sufficient period to have been able to terminate it.

 3.  "Omission" means a failure to perform an act as to which a duty of performance is imposed by law.

 4. "Conduct" means an act or omission and its accompanying mental state.

 5. "To act" means either to perform an act or to omit to perform an act.

 6. "Culpable mental state" means "intentionally" or "knowingly" or "recklessly" or with "criminal negligence," as these terms are defined in section 15.05.
 

Section 15.05 Culpability;  definitions of culpable mental states

 The following definitions are applicable to this chapter:

 1. "Intentionally."  A person acts intentionally with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct.

 2. "Knowingly."  A person acts knowingly with respect to conduct or to a circumstance described by a statute defining an offense when he is aware that his conduct is of such nature or that such circumstance exists.

 3. "Recklessly."  A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists.  The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.  A person who creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts recklessly with respect thereto.

 4. "Criminal negligence."  A person acts with criminal negligence with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists.  The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.
 

Section 15.10 Requirements for criminal liability in general and for offenses of strict liability and mental culpability

 The minimal requirement for criminal liability is the performance by a person of conduct which includes a voluntary act or the omission to perform an act which he is physically capable of performing.  If such conduct is all that is required for commission of a particular offense, or if an offense or some material element thereof does not require a culpable mental state on the part of the actor, such offense is one of "strict liability."  If a culpable mental state on the part of the actor is required with respect to every material element of an offense, such offense is one of "mental culpability."
 

Section 15.15 Construction of statutes with respect to culpability requirements

 1. When the commission of an offense defined in this chapter, or some element of an offense, requires a particular culpable mental state, such mental state is ordinarily designated in the statute defining the offense by use of the terms "intentionally," "knowingly," "recklessly" or "criminal negligence," or by use of terms, such as "with intent to defraud" and "knowing it to be false," describing a specific kind of intent or knowledge.  When one and only one of such terms appears in a statute defining an offense, it is presumed to apply to every element of the offense unless an intent to limit its application clearly appears.

 2. Although no culpable mental state is expressly designated in a statute defining an offense, a culpable mental state may nevertheless be required for the commission of such offense, or with respect to some or all of the material elements thereof, if the proscribed conduct necessarily involves such culpable mental state.  A statute defining a crime, unless clearly indicating a legislative intent to impose strict liability, should be construed as defining a crime of mental culpability.  This subdivision applies to offenses defined both in and outside this chapter.
 

Section 15.20 Effect of ignorance or mistake upon liability

 1. A person is not relieved of criminal liability for conduct because he engages in such conduct under a mistaken belief of fact, unless:

  (a) Such factual mistake negatives the culpable mental state required for the commission of an offense;  or

  (b) The statute defining the offense or a statute related thereto expressly provides that such factual mistake constitutes a defense or exemption;  or

  (c) Such factual mistake is of a kind that supports a defense of justification as defined in article thirty-five of this chapter.

 2. A person is not relieved of criminal liability for conduct because he engages in such conduct under a mistaken belief that it does not, as a matter of law, constitute an offense, unless such mistaken belief is founded upon an official statement of the law contained in (a) a statute or other enactment, or (b) an administrative order or grant of permission, or (c) a judicial decision of a state or federal court, or (d) an interpretation of the statute or law relating to the offense, officially made or issued by a public servant, agency or body legally charged or empowered with the responsibility or privilege of administering, enforcing or interpreting such statute or law.

 3. Notwithstanding the use of the term "knowingly" in any provision of this chapter defining an offense in which the age of a child is an element thereof, knowledge by the defendant of the age of such child is not an element of any such offense and it is not, unless expressly so provided, a defense to a prosecution therefor that the defendant did not know the age of the child or believed such age to be the same as or greater than that specified in the statute.

 4. Notwithstanding the use of the term "knowingly" in any provision of this chapter defining an offense in which the aggregate weight of a controlled substance or marihuana is an element, knowledge by the defendant of the aggregate weight of such controlled substance or marihuana is not an element of any such offense and it is not, unless expressly so provided, a defense to a prosecution therefor that the defendant did not know the aggregate weight of the controlled substance or marihuana.

Section 15.25 Effect of intoxication upon liability

 Intoxication is not, as such, a defense to a criminal charge;  but in any prosecution for an offense, evidence of intoxication of the defendant may be offered by the defendant whenever it is relevant to negative an element of the crime charged.


ARTICLE 20--PARTIES TO OFFENSES AND LIABILITY THROUGH ACCESSORIAL CONDUCT

 

Section 20.00 Criminal liability for conduct of another

 When one person engages in conduct which constitutes an offense, another person is criminally liable for such conduct when, acting with the mental culpability required for the commission thereof, he solicits, requests, commands, importunes, or intentionally aids such person to engage in such conduct.

 Section 20.05 Criminal liability for conduct of another;  no defense

 In any prosecution for an offense in which the criminal liability of the defendant is based upon the conduct of another person pursuant to section 20.00, it is no defense that:

 1. Such other person is not guilty of the offense in question owing to criminal irresponsibility or other legal incapacity or exemption, or to unawareness of the criminal nature of the conduct in question or of the defendant's criminal purpose or to other factors precluding the mental state required for the commission of the offense in question;  or

 2. Such other person has not been prosecuted for or convicted of any offense based upon the conduct in question, or has previously been acquitted thereof, or has legal immunity from prosecution therefor;  or

 3. The offense in question, as defined, can be committed only by a particular class or classes of persons, and the defendant, not belonging to such class or classes, is for that reason legally incapable of committing the offense in an individual capacity.
 

Section 20.10 Criminal liability for conduct of another;  exemption

 Notwithstanding the provisions of sections 20.00 and 20.05, a person is not criminally liable for conduct of another person constituting an offense when his own conduct, though causing or aiding the commission of such offense, is of a kind that is necessarily incidental thereto.  If such conduct constitutes a related but separate offense upon the part of the actor, he is liable for that offense only and not for the conduct or offense committed by the other person.
 

Section 20.15 Convictions for different degrees of offense

 Except as otherwise expressly provided in this chapter, when, pursuant to section 20.00, two or more persons are criminally liable for an offense which is divided into degrees, each person is guilty of such degree as is compatible with his own culpable mental state and with his own accountability for an aggravating fact or circumstance.
 

Section 20.20 Criminal liability of corporations

 1. As used in this section:

  (a) "Agent" means any director, officer or employee of a corporation, or any other person who is authorized to act in behalf of the corporation.

  (b) "High managerial agent" means an officer of a corporation or any other agent in a position of comparable authority with respect to the formulation of corporate policy or the supervision in a managerial capacity of subordinate employees.

 2. A corporation is guilty of an offense when:

  (a) The conduct constituting the offense consists of an omission to discharge a specific duty of affirmative performance imposed on corporations by law;  or

  (b) The conduct constituting the offense is engaged in, authorized, solicited, requested, commanded, or recklessly tolerated by the board of directors or by a high managerial agent acting within the scope of his employment and in behalf of the corporation;  or

  (c) The conduct constituting the offense is engaged in by an agent of the corporation while acting within the scope of his employment and in behalf of the corporation, and the offense is (i) a misdemeanor or a violation, (ii) one defined by a statute which clearly indicates a legislative intent to impose such criminal liability on a corporation, or (iii) any offense set forth in title twenty-seven of article seventy-one of the environmental conservation law.
 

Section 20.25 Criminal liability of an individual for corporate conduct

  A person is criminally liable for conduct constituting an offense which he performs or causes to be performed in the name of or in behalf of a corporation to the same extent as if such conduct were performed in his own name or behalf.


TITLE C--DEFENSES
ARTICLE 25--DEFENSES IN GENERAL

Section 25.00 Defenses;  burden of proof

 1. When a "defense," other than an "affirmative defense," defined by statute is raised at a trial, the people have the burden of disproving such defense beyond a reasonable doubt.

 2. When a defense declared by statute to be an "affirmative defense" is raised at a trial, the defendant has the burden of establishing such defense by a preponderance of the evidence.


ARTICLE 30-DEFENSE OF INFANCY

Section 30.00 Infancy

 1. Except as provided in subdivision two of this section, a person less than sixteen years old is not criminally responsible for conduct.

 2. A person thirteen, fourteen or fifteen years of age is criminally responsible for acts constituting murder in the second degree as defined in subdivisions one and two of section 125.25 and in subdivision three of such section provided that the underlying crime for the murder charge is one for which such person is criminally responsible;  and a person fourteen or fifteen years of age is criminally responsible for acts constituting the crimes defined in section 135.25 (kidnapping in the first degree);  150.20 (arson in the first degree);  subdivisions one and two of section 120.10 (assault in the first degree);  125.20 (manslaughter in the first degree);  subdivisions one and two of section 130.35 (rape in the first degree);  subdivisions one and two of section 130.50 (criminal sexual act in the first degree);  130.70 (aggravated sexual abuse);  140.30 (burglary in the first degree);  subdivision one of section 140.25 (burglary in the second degree);  150.15 (arson in the second degree); 160.15 (robbery in the first degree) or subdivision two of section 160.10 (robbery in the second degree) of this chapter;   subdivision four of section 265.02 of this chapter, where such firearm is possessed on school grounds, as that phrase is defined in subdivision fourteen of section 220.00 of this chapter, or section 265.03 of this chapter, where such machine gun or such firearm is possessed on school grounds, as that phrase is defined in subdivision fourteen of section 220.00 of this chapter;  or defined in this chapter as an attempt to commit murder in the second degree or kidnapping in the first degree.

 3. In any prosecution for an offense, lack of criminal responsibility by reason of infancy, as defined in this section, is a defense.


ARTICLE 35--DEFENSE OF JUSTIFICATION

Section 35.00 Justification;  a defense

 In any prosecution for an offense, justification, as defined in sections 35.05 through 35.30, is a defense.
 

Section 35.05 Justification;  generally

 Unless otherwise limited by the ensuing provisions of this article defining justifiable use of physical force, conduct which would otherwise constitute an offense is justifiable and not criminal when:

 1. Such conduct is required or authorized by law or by a judicial decree, or is performed by a public servant in the reasonable exercise of his official powers, duties or functions;  or

 2. Such conduct is necessary as an emergency measure to avoid an imminent public or private injury which is about to occur by reason of a situation occasioned or developed through no fault of the actor, and which is of such gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding such injury clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue.  The necessity and justifiability of such conduct may not rest upon considerations pertaining only to the morality and advisability of the statute, either in its general application or with respect to its application to a particular class of cases arising thereunder.  Whenever evidence relating to the defense of justification under this subdivision is offered by the defendant, the court shall rule as a matter of law whether the claimed facts and circumstances would, if established, constitute a defense.
 

Section 35.10 Justification;  use of physical force generally

 The use of physical force upon another person which would otherwise constitute an offense is justifiable and not criminal under any of the following circumstances:

 1. A parent, guardian or other person entrusted with the care and supervision of a person under the age of twenty-one or an incompetent person, and a teacher or other person entrusted with the care and supervision of a person under the age of twenty-one for a special purpose, may use physical force, but not deadly physical force, upon such person when and to the extent that he reasonably believes it necessary to maintain discipline or to promote the welfare of such person.

 2. A warden or other authorized official of a jail, prison or correctional institution may, in order to maintain order and discipline, use such physical force as is authorized by the correction law.

 3. A person responsible for the maintenance of order in a common carrier of passengers, or a person acting under his direction, may use physical force when and to the extent that he reasonably believes it necessary to maintain order, but he may use deadly physical force only when he reasonably believes it necessary to prevent death or serious physical injury.

 4. A person acting under a reasonable belief that another person is about to commit suicide or to inflict serious physical injury upon himself may use physical force upon such person to the extent that he reasonably believes it necessary to thwart such result.

5. A duly licensed physician, or a person acting under a physician's direction, may use physical force for the purpose of administering a recognized form of treatment which he or she reasonably believes to be adapted to promoting the physical or mental health of the patient if (a) the treatment is administered with the consent of the patient or, if the patient is under the age of eighteen years or an incompetent person, with the consent of the parent, guardian or other person entrusted with the patient's care and supervision, or (b) the treatment is administered in an emergency when the physician reasonably believes that no one competent to consent can be consulted and that a reasonable person, wishing to safeguard the welfare of the patient, would consent.

6. A person may, pursuant to the ensuing provisions of this article, use physical force upon another person in self-defense or defense of a third person, or in defense of premises, or in order to prevent larceny of or criminal mischief to property, or in order to effect an arrest or prevent an escape from custody. Whenever a person is authorized by any such provision to use deadly physical force in any given circumstance, nothing contained in any other such provision may be deemed to negate or qualify such authorization.
 

Section 35.15 Justification;  use of physical force in defense of a person

 1. A person may, subject to the provisions of subdivision two, use physical force upon another person when and to the extent he or she  reasonably believes such to be necessary to defend himself, herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful physical force by such other person, unless:

  (a) The latter's conduct was provoked by the actor with intent to cause physical injury to another person;  or

  (b) The actor was the initial aggressor;  except that in such case use of  physical force is nevertheless justifiable if the actor has withdrawn from the encounter and effectively communicated such withdrawal to such other person but the latter persists in continuing the incident by the use or threatened imminent use of unlawful physical force;  or

  (c) The physical force involved is the product of a combat by agreement not specifically authorized by law.

 2. A person may not use deadly physical force upon another person under circumstances specified in subdivision one unless:

  (a) The actor reasonably believes that such other person is using or about to use deadly physical force.  Even in such case, however, the actor may not use deadly physical force if he or she knows that with complete personal safety, to oneself and others he or she may avoid the necessity of so doing by retreating; except that the actor is under no duty to retreat if he or she is:

   (i) in his or her dwelling and not the initial aggressor;  or

   (ii) a police officer or peace officer or a person assisting a police officer or a peace officer at the latter's direction, acting pursuant to section 35.30;  or

  (b) He or she reasonably believes that such other person is committing or attempting to commit a kidnapping, forcible rape, forcible criminal sexual act or robbery;  or

  (c) He or she reasonably believes that such other person is committing or attempting  to commit a burglary, and the circumstances are such that the use of deadly physical force is authorized by subdivision three of section 35.20.
 

Section 35.20 Justification;  use of physical force in defense of premises and in defense of a person in the course of burglary

1. Any person may use physical force upon another person when he or she reasonably believes such to be necessary to prevent or terminate what he or she reasonably believes to be the commission or attempted commission by such other person of a crime involving damage to premises. Such person may use any degree of physical force, other than deadly physical force, which he or she reasonably believes to be necessary for such purpose, and may use deadly physical force if he or she reasonably believes such to be necessary to prevent or terminate the commission or attempted commission of arson.

2. A person in possession or control of any premises, or a person licensed or privileged to be thereon or therein, may use physical force upon another person when he or she reasonably believes such to be necessary to prevent or terminate what he or she reasonably believes to be the commission or
attempted commission by such other person of a criminal trespass upon such premises. Such person may use any degree of physical force, other than deadly physical force, which he or she reasonably believes to be necessary for such purpose, and may use deadly physical force in order to prevent or terminate the commission or attempted commission of arson, as prescribed in subdivision one, or in the course of a burglary or attempted burglary, as prescribed in subdivision three.

3. A person in possession or control of, or licensed or privileged to be in, a dwelling or an occupied building, who reasonably believes that another person is committing or attempting to commit a burglary of such dwelling or building, may use deadly physical force upon such other person when he or she reasonably believes such to be necessary to prevent or terminate the commission or attempted commission of such burglary.

4. As used in this section, the following terms have the following meanings:

(a) The terms "premises," "building" and "dwelling" have the meanings prescribed in
140.00;

(b) Persons "licensed or privileged" to be in buildings or upon other premises include, but are not limited to:

(i) police officers or peace officers acting in the performance of their duties; and

(ii) security personnel or employees of nuclear powered electric generating facilities located within the state who are employed as part of any security plan approved by the federal operating license agencies acting in the performance of their duties at such generating facilities. For purposes of this subparagraph, the term "nuclear powered electric generating facility" shall mean a facility that generates electricity using nuclear power for sale, directly or indirectly, to the public, including the land upon which the facility is located and the safety and security zones as defined under federal regulations.

 

Section 35.25 Justification;  use of physical force to prevent or terminate larceny or criminal mischief

A person may use physical force, other than deadly physical force, upon another person when and to the extent that he or she reasonably believes such to be necessary to prevent or terminate what he or she reasonably believes to be the commission or attempted commission by such other person of larceny or of criminal mischief with respect to property other than premises.


Section 35.27 Justification;  use of physical force in resisting arrest prohibited

 A person may not use physical force to resist an arrest, whether authorized or unauthorized, which is being effected or attempted by a police officer or peace officer when it would reasonably appear that the latter is a police officer or peace officer.
 

Section 35.30 Justification;  use of physical force in making an arrest or in preventing an escape

 1. A police officer or a peace officer, in the course of effecting or attempting to effect an arrest, or of preventing or attempting to prevent the escape from custody, of a person whom he or she reasonably believes to have committed an offense, may use physical force  when and to the extent he or she reasonably believes such to be necessary to effect the arrest, or to prevent the escape from custody, or in self-defense or to defend a third person from what he or she reasonably believes to be the use or imminent use of physical force; except that deadly physical force may be used for such purposes only when he or she reasonably believes that:

  (a) The offense committed by such person was:

   (i) a felony or an attempt to commit a felony involving the use or attempted use or threatened imminent use of physical force against a person;  or

   (ii) kidnapping, arson, escape in the first degree, burglary in the first degree or any attempt to commit such a crime;  or

  (b) The offense committed or attempted by such person was a felony and that, in the course of resisting arrest therefor or attempting to escape from custody, such person is armed with a firearm or deadly weapon;  or

  (c) Regardless of the particular offense which is the subject of the arrest or attempted escape, the use of deadly physical force is necessary to defend the police officer or peace officer or another person from what the officer reasonably believes to be the use or imminent use of deadly physical force.

 2. The fact that a police officer or a peace officer is justified in using deadly physical force under circumstances prescribed in paragraphs (a) and (b) of subdivision one does not constitute justification for reckless conduct by such police officer or peace officer amounting to an offense against or with respect to innocent persons whom he or she is not seeking to arrest or retain in custody.

 3. A person who has been directed by a police officer or a peace officer to assist such police officer or peace officer to effect an arrest or to prevent an escape from custody may use physical force, other than deadly physical force, when and to the extent that he reasonably believes such to be necessary to carry out such police officer's or peace officer's direction, unless he or she knows that the arrest or prospective arrest is not or was not authorized and he may use deadly physical force under such circumstances when:

  (a) He reasonably believes such to be necessary to defend himself or a third person from what he reasonably believes to be the use or imminent use of deadly physical force;  or

  (b) He is directed or authorized by such police officer or peace officer to use deadly physical force unless he knows that the police officer or peace officer himself is not authorized to use deadly physical force under the circumstances.

 4. A private person acting on his or her own account may use physical force, other than deadly physical force, upon another person when and to the extent that he or she reasonably believes such to be necessary to effect an arrest or to prevent the escape from custody of a person whom he or she reasonably believes to have committed an offense and who in fact has committed such offense;  and he or she may use deadly physical force for such purpose when he or she reasonably believes such to be necessary to:

  (a) Defend himself, herself or a third person from what he or she reasonably believes to be the use or imminent use of deadly physical force;  or

  (b) Effect the arrest of a person who has committed murder, manslaughter in the first degree, robbery, forcible rape or forcible criminal sexual act and who is in immediate flight therefrom.

 5. A guard, police officer or peace officer who is charged with the duty of guarding prisoners in a detention facility, as that term is defined in section 205.00, or while in transit to or from a detention facility, may use physical force when and to the extent that he or she reasonably believes such to be necessary to prevent the escape of a prisoner from a detention facility or from custody while in transit thereto or therefrom.


ARTICLE 40--OTHER DEFENSES INVOLVING LACK OF CULPABILITY

Section 40.00 Duress

  1. In any prosecution for an offense, it is an affirmative defense that the defendant engaged in the proscribed conduct because he was coerced to do so by the use or threatened imminent use of unlawful physical force upon him or a third person, which force or threatened force a person of reasonable firmness in his situation would have been unable to resist.

 2. The defense of duress as defined in subdivision one of this section is not available when a person intentionally or recklessly places himself in a situation in which it is probable that he will be subjected to duress.
 

Section 40.05 Entrapment

 In any prosecution for an offense, it is an affirmative defense that the defendant engaged in the proscribed conduct because he was induced or encouraged to do so by a public servant, or by a person acting in cooperation with a public servant, seeking to obtain evidence against him for purpose of criminal prosecution, and when the methods used to obtain such evidence were such as to create a substantial risk that the offense would be committed by a person not otherwise disposed to commit it.  Inducement or encouragement to commit an offense means active inducement or encouragement.  Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.
 

Section 40.10 Renunciation

 1. In any prosecution for an offense, other than an attempt to commit a crime, in which the defendant's guilt depends upon his criminal liability for the conduct of another person pursuant to section 20.00, it is an affirmative defense that, under circumstances manifesting a voluntary and complete renunciation of his criminal purpose, the defendant withdrew from participation in such offense prior to the commission thereof and made a substantial effort to prevent the commission thereof.

 2. In any prosecution for criminal facilitation pursuant to article one hundred fifteen, it is an affirmative defense that, prior to the commission of the felony which he facilitated, the defendant made a substantial effort to prevent the commission of such felony.

 3. In any prosecution pursuant to section 110.00 for an attempt to commit a crime, it is an affirmative defense that, under circumstances manifesting a voluntary and complete renunciation of his criminal purpose, the defendant avoided the commission of the crime attempted by abandoning his criminal effort and, if mere abandonment was insufficient to accomplish such avoidance, by taking further and affirmative steps which prevented the commission thereof.

 4. In any prosecution for criminal solicitation pursuant to article one hundred or for conspiracy pursuant to article one hundred five in which the crime solicited or the crime contemplated by the conspiracy was not in fact committed, it is an affirmative defense that, under circumstances manifesting a voluntary and complete renunciation of his criminal purpose, the defendant prevented the commission of such crime.

 5. A renunciation is not "voluntary and complete" within the meaning of this section if it is motivated in whole or in part by (a) a belief that circumstances exist which increase the probability of detection or apprehension of the defendant or another participant in the criminal enterprise, or which render more difficult the accomplishment of the criminal purpose, or (b) a decision to postpone the criminal conduct until another time or to transfer the criminal effort to another victim or another but similar objective.
 

Section 40.15 Mental disease or defect

 In any prosecution for an offense, it is an affirmative defense that when the defendant engaged in the proscribed conduct, he lacked criminal responsibility by reason of mental disease or defect.  Such lack of criminal responsibility means that at the time of such conduct, as a result of mental disease or defect, he lacked substantial capacity to know or appreciate either:

 1. The nature and consequences of such conduct;  or

 2. That such conduct was wrong.


PART TWO--SENTENCES
TITLE E--SENTENCES
ARTICLE 55--CLASSIFICATION AND DESIGNATION OF OFFENSES

Section 55.00 Applicability of article

 The provisions of this article govern the classification and designation of every offense, whether defined within or outside of this chapter.
 

Section 55.05 Classifications of felonies and misdemeanors

 1. Felonies.  Felonies are classified, for the purpose of sentence, into five categories as follows:

  (a) Class A felonies;

  (b) Class B felonies;

  (c) Class C felonies;

  (d) Class D felonies;  and

  (e) Class E felonies.

  Class A felonies are subclassified, for the purpose of sentence, into two categories as follows:  subclass I and subclass II, to be known as class A-I and class A-II felonies, respectively.

 2. Misdemeanors.  Misdemeanors are classified, for the purpose of sentence, into three categories as follows:

  (a) Class A misdemeanors;

  (b) Class B misdemeanors;  and

  (c) Unclassified misdemeanors.
 

Section 55.10 Designation of offenses

 1. Felonies.

  (a) The particular classification or subclassification of each felony defined in this chapter is expressly designated in the section or article defining it.

  (b) Any offense defined outside this chapter which is declared by law to be a felony without specification of the classification thereof, or for which a law outside this chapter provides a sentence to a term of imprisonment in excess of one year, shall be deemed a class E felony.

 2. Misdemeanors.

  (a) Each misdemeanor defined in this chapter is either a class A misdemeanor or a class B misdemeanor, as expressly designated in the section or article defining it.

  (b) Any offense defined outside this chapter which is declared by law to be a misdemeanor without specification of the classification thereof or of the sentence therefor shall be deemed a class A misdemeanor.

  (c) Except as provided in paragraph (b) of subdivision three, where an offense is defined outside this chapter and a sentence to a term of imprisonment in excess of fifteen days but not in excess of one year is provided in the law or ordinance defining it, such offense shall be deemed an unclassified misdemeanor.

 3. Violations.  Every violation defined in this chapter is expressly designated as such.  Any offense defined outside this chapter which is not expressly designated a violation shall be deemed a violation if:

  (a) Notwithstanding any other designation specified in the law or ordinance defining it, a sentence to a term of imprisonment which is not in excess of fifteen days is provided therein, or the only sentence provided therein is a fine;  or
  (b) A sentence to a term of imprisonment in excess of fifteen days is provided for such offense in a law or ordinance enacted prior to the effective  date of this chapter but the offense was not a crime prior to that date.

 4. Traffic infraction.  Notwithstanding any other provision of this section, an offense which is defined as a "traffic infraction" shall not be deemed a violation or a misdemeanor by virtue of the sentence prescribed therefor.


ARTICLE 60--AUTHORIZED DISPOSITIONS OF OFFENDERS

Section 60.00 Applicability of provisions

 1. The sentences prescribed by this article shall apply in the case of every offense, whether defined within or outside of this chapter.

 2. The sole provision of this article that shall apply in the case of an offense committed by a juvenile offender is section 60.10 of this article and no other provisions of this article shall be deemed or construed to apply in any such case.
 

Section 60.01 Authorized dispositions;  generally

 1. Applicability.  Except as otherwise specified in this article, when the court imposes sentence upon a person convicted of an offense, the court must impose a sentence prescribed by this section.

 2. Revocable dispositions.

  (a) The court may impose a revocable sentence as herein specified:

   (i) the court, where authorized by article sixty-five, may sentence a person to a period of probation or to a period of conditional discharge as provided in that article;  or

   (ii) the court, where authorized by article eighty-five, may sentence a person to a term of intermittent imprisonment as provided in that article.

  (b) A revocable sentence shall be deemed a tentative one to the extent that it may be altered or revoked in accordance with the provisions of the article under which it was imposed, but for all other purposes shall be deemed to be a final judgment of conviction.

  (c) In any case where the court imposes a sentence of probation, conditional discharge, or a sentence of intermittent imprisonment, it may also impose a fine authorized by article eighty.

  (d) In any case where the court imposes a sentence of imprisonment not in excess of sixty days, for a misdemeanor or not in excess of six months for a felony or in the case of a sentence of intermittent imprisonment not in excess of four months, it may also impose a sentence of probation or conditional discharge provided that the term of probation or conditional discharge together with the term of imprisonment shall not exceed the term of probation or conditional discharge authorized by article sixty-five of this chapter. The sentence of imprisonment shall be a condition of and run concurrently with the sentence of probation or conditional discharge.

 3. Other dispositions.  When a person is not sentenced as specified in subdivision two, or when a sentence specified in subdivision two is revoked, the sentence of the court must be as follows:

  (a) A term of imprisonment;  or

  (b) A fine authorized by article eighty, provided, however, that when the conviction is of a class B felony or of any felony defined in article two hundred twenty, the sentence shall not consist solely of a fine;  or

  (c) Both imprisonment and a fine;  or

  (d) Where authorized by section 65.20, unconditional discharge as provided in that section;  or

  (e) Following revocation of a sentence of conditional discharge imposed pursuant to section 65.05 of this chapter or paragraph (d) of subdivision two of this section, probation as provided in section 65.00 of this chapter or to the sentence of imprisonment and probation as provided for in paragraph (d) of subdivision two of this section.

 4. In any case where a person has been sentenced to a period of probation imposed pursuant to section 65.00 of this chapter, if the part of the sentence that provides for probation is revoked, the court must sentence such person to imprisonment or to the sentence of imprisonment and probation as provided for in paragraph (d) of subdivision two of this section.
 

Section 60.02 Authorized disposition;  youthful offender

 When a person is to be sentenced upon a youthful offender finding, the court must impose a sentence as follows:

 (1) If the sentence is to be imposed upon a youthful offender finding which has been substituted for a conviction of an offense other than a felony, the court must impose a sentence authorized for the offense for which the youthful offender finding was substituted, except that if the youthful offender finding was entered pursuant to paragraph (b) of subdivision one of section 720.20 of the criminal procedure law, the court must not impose a definite or intermittent sentence of imprisonment with a term of more than six months;  or

 (2) If the sentence is to be imposed upon a youthful offender finding which has been substituted for a conviction for any felony, the court must impose a sentence authorized to be imposed upon a person convicted of a class E felony provided, however, that the court must not impose a sentence of conditional discharge or unconditional discharge if the youthful offender finding was substituted for a conviction of a felony defined in article two hundred twenty of this chapter.

(3) The provisions of section 60.35 of this article shall apply to a sentence imposed upon a youthful offender finding and the amount of the mandatory surcharge and crime victim assistance fee which shall be levied at sentencing shall be equal to the amount specified in such section for the offense of conviction for which the youthful offender finding was substituted.

Section 60.05 Authorized dispositions;  class A, B, certain C and D felonies and multiple felony offenders

 1. Applicability.  This section shall govern the dispositions authorized when a person is to be sentenced upon a conviction of a class A felony, a class B felony or a class C, class D or class E felony specified herein, or when a person is to be sentenced upon a conviction of a felony as a multiple felony offender.

 2. Class A felony.  Except as provided in subdivisions three and four of section 70.06 of this chapter, every person convicted of a class A felony must be sentenced to imprisonment in accordance with section 70.00, unless such person is convicted of either murder in the first degree and is sentenced in accordance with section 60.06 or of a class A-II felony and is sentenced to probation in accordance with section 65.00.

 3. Class B felony.  Except as provided in subdivision six, every person convicted of a class B violent felony offense as defined in subdivision one of section 70.02, must be sentenced to imprisonment in accordance with section 70.02;  and, except as provided in subdivision six, every person convicted of any other class B felony must be sentenced to imprisonment in accordance with section 70.00, unless such person is convicted of a class B felony defined in article two hundred twenty and is sentenced to a period of probation for life in accordance with section 65.00.

 4. Certain class C felonies.  Except as provided in subdivision six, every person convicted of a class C violent felony offense as defined in subdivision one of section 70.02, must be sentenced to imprisonment in accordance with section 70.02;  and, except as provided in subdivision six, every person convicted of the class C felonies of:  attempt to commit any of the class B felonies of bribery in the first degree as defined in section 200.04, bribe receiving in the first degree as defined in section 200.12, conspiracy in the second degree as defined in section 105.15 and criminal mischief in the first degree as defined in section 145.12;  criminal usury in the first degree as defined in section 190.42, rewarding official misconduct in the first degree as defined in section 200.22, receiving reward for official misconduct in the first degree as defined in section 200.27, criminal possession of a controlled substance in the fourth degree as defined in subdivision one, two, three, four, five, six, seven, eight or nine of section 220.09, or criminal sale of a controlled substance in the fourth degree as defined in subdivision one or two of section 220.34, to promote prostitution in the first degree as defined in section 230.32, promoting prostitution in the second degree as defined in section 230.30, arson in the third degree as defined in section 150.10, must be sentenced to imprisonment in accordance with section 70.00.

 5. Certain class D felonies.  Except as provided in subdivision six, every person convicted of the class D felonies of attempt to commit assault in the first degree as defined in section 120.10, or assault in the second degree as defined in section 120.05, attempt to commit a class C felony as defined in section 230.30, must be sentenced in accordance with section 70.00 or 85.00.

 6. Multiple felony offender.  When the court imposes sentence upon a second violent felony offender, as defined in section 70.04, or a second felony offender, as defined in section 70.06, the court must impose a sentence of imprisonment in accordance with section 70.04 or 70.06, as the case may be, unless it imposes a sentence of imprisonment in accordance with section 70.08 or 70.10.

 7. Fines.  Where the court imposes a sentence of imprisonment in accordance with this section, the court also may impose a fine authorized by article eighty and in such case the sentence shall be both imprisonment and a fine.

Section 60.06 Authorized disposition; murder in the first degree offenders; aggravated murder; certain murder in the second degree offenders; certain terrorism offenders; criminal possession of a chemical weapon or biological weapon offenders; criminal use of a chemical weapon or biological weapon offenders.

When a defendant is convicted of murder in the first degree as defined in section 125.27 of this chapter, the court shall, in accordance with the provisions of section 400.27 of the criminal procedure law, sentence the defendant to death, to life imprisonment without parole in accordance with subdivision five of section 70.00 of this title, or to a term of imprisonment for a class A-I felony other than a sentence of life imprisonment without parole, in accordance with subdivisions one through three of section 70.00 of this title. When a person is convicted of murder in the second degree as defined in subdivision five of section 125.25 of this chapter or of the crime of aggravated murder as defined in section 125.26 of this chapter, the court shall sentence the defendant to life imprisonment without parole in accordance with subdivision five of section 70.00 of this title. When a defendant is convicted of the crime of terrorism as defined in section 490.25 of this chapter, and the specified offense the defendant committed is a class A-I felony offense, or when a defendant is convicted of the crime of criminal possession of a chemical weapon or biological weapon in the first degree as defined in section 490.45 of this chapter, or when a defendant is convicted of the crime of criminal use of a chemical weapon or biological weapon in the first degree as defined in section 490.55 of this chapter, the court shall sentence the defendant to life imprisonment without parole in accordance with subdivision five of section 70.00 of this title; provided, however, that nothing in this section shall preclude or prevent a sentence of death when the defendant is also convicted of murder in the first degree as defined in section 125.27 of this chapter.

Section 60.07 Authorized disposition; criminal attack on operators for for-hire vehicles.

1. Notwithstanding any other provisions of law to the contrary, when a court has found, pursuant to the provisions of section 200.61 of the criminal procedure law, both that a person has been convicted of a specified offense as defined in subdivision two of this section and the victim of such offense was operating a for-hire vehicle in the course of providing for-hire vehicle services at the time of the commission of such offense, the sentence of imprisonment imposed upon conviction of such offense shall be the sentence authorized by the applicable provisions of article seventy of this chapter, provided, however, that the minimum term of a indeterminate sentence or minimum determinate sentence shall be not less than three years nor more than five years greater than the minimum term or sentence otherwise required to be imposed pursuant to such provisions. The provisions of this subdivision shall not apply where the court, having regard to the nature and circumstances of the crime and the history and character of the defendant, finds on the record that such additional term or sentence would be unduly harsh and that not imposing such additional term or sentence would be consistent with the public safety and would not deprecate the seriousness of the crime.

2. For purposes of this section:

a) the term "specified offense" shall mean an attempt to commit murder in the second degree as defined in section 125.25 of this chapter, gang assault in the first degree as defined in section 120.07 of this chapter, gang assault in the second degree as defined in section 120.06 of this chapter, assault in the first degree as defined in section 120.10 of this chapter, manslaughter in the first degree as defined in section 125.20 of this chapter, manslaughter in the second degree as defined in section 125.15 of this chapter, robbery in the first degree as defined in section 160.15 of this chapter, robbery in the second degree as defined in section 160.10 of this chapter, or attempted commission of any of the following offenses: gang assault in the first degree as defined in section 120.07, assault in the first degree as defined in section 120.10, manslaughter in the first degree as defined in section 125.20 or robbery in the first degree as defined in section 160.15;

b) the term "for-hire vehicle" shall mean a vehicle designed to carry not more than five passengers for compensation and such vehicle is a taxicub, as defined in section one hundred forty-eight-a of the vehicle and traffic law, a livery, as such term is defined in section one hundred twenty-one-e of the vehicle and traffic law, or a "black car", as such term is defined in paragraph (g) of this subdivision;

c) the term "livery car base" shall mean a central facility, wherever located, that dispatches a livery operator to both pick-up and discharge passengers in the state;

d) "for-hire vehicle services" shall mean:

(i) with respect to a taxicab, the transport of passengers pursuant to a license or permit issued by a local authority by a person duly authorized to operate such taxicub;

(ii) with respect to a livery, the transport of passengers by a livery operator while affiliated with a livery car base; or

(iii) with respect to a "black car", the transport of passengers by a "black car operator" pursuant to dispatches form or by a central dispatch facility regardless of where the pick-up and discharge occurs, and, with respect to dispatches from or by a central dispatch facility located outside the state, all dispatches involving a pick-up in the state, regardless of where the discharge occurs.

e) "livery operator" shall mean the registered owner of a livery, as such term is defined in section one hundred twenty-one-e of the vehicle and traffic law, or a driver designated by such registered owner to operate the registered owner's livery as the registered owner's authorized designee, where such registered owner or driver provides services while affiliated with a livery car base;

f) "black car operator" shall mean the registered owner of a "black car" or a driver designated by such registered owner to operate the registered owner's black car as the registered owner's authorized designee; and

g) "black car" shall mean a for-hire vehicle dispatched from a central facility, which has certified to the satisfaction of the department of state pursuant to article six-F of the executive law that more than ninety percent of the central facility's for-hire business is on a payment basis other than direct cash payment by a passenger.

Section 60.08 Authorized dispositions;  resentencing of certain controlled substance offenders

 Any person convicted of an offense and sentenced to prison for an indeterminate sentence, the minimum of which was at least one year and the maximum of which was life imprisonment, which sentence was imposed pursuant to chapter two hundred seventy-six, two hundred seventy-seven, two hundred seventy-eight, or ten hundred fifty-one of the laws of nineteen hundred seventy-three, and for which such sentence was imposed upon conviction of the crime of criminal possession of a controlled substance in the first degree, criminal possession of a controlled substance in the second degree, criminal possession of a controlled substance in the third degree, criminal sale of a controlled substance in the first degree, criminal sale of a controlled substance in the second degree, or criminal sale of a controlled substance in the third degree, and the sole controlled substance involved was methadone, may apply, upon notice to the appropriate district attorney, for resentencing in the court which originally imposed sentence.

 Such resentencing shall, unless substantial justice dictates otherwise, be pursuant to the current provisions of the penal law, and shall include credit for any jail time incurred upon the subject conviction as well as credit for any period of incarceration incurred pursuant to the sentence originally imposed.

  In cases where the proof before the court is not available or is not sufficiently reliable to determine the amount of methadone present in any preparation, compound, mixture or substance containing methadone, there shall exist a rebuttable presumption that each ounce of the preparation, compound, mixture or substance contained sixty milligrams of methadone.
 

Section 60.09 Authorized dispositions;  resentencing of certain persons convicted of specified controlled substance offenses

 a. Any person convicted of an offense as defined in section 115.05, 220.16, 220.18, 220.39 or 220.41 of this chapter or of an attempt thereof, for an act committed on or after September first, nineteen hundred seventy-three but prior to the date on which the provisions of this section become effective, may, upon notice to the appropriate district attorney, apply for resentencing in the court which originally imposed sentence.  Such resentencing shall be in accordance with the provisions of subdivision (b) of this section and shall include credit for any jail time incurred upon the subject conviction as well as credit for any period of incarceration incurred pursuant to the sentence originally imposed.

 b. A court, upon an application specified in subdivision (a) of this section may resentence a person as follows:

  (i) if the conviction was for a class A-III offense the court may impose a new maximum term which shall be no less than three times the amount of the minimum term imposed in the original sentence and no more than twenty-five years;

  (ii) if the conviction was for a class A-II offense the court may impose a new minimum term which shall be no less than three years imprisonment and no more than eight and one-third years;

  (iii) upon resentence of a person as specified in paragraph (i) of this subdivision the court shall resentence the person to the same minimum term previously imposed;

  (iv) upon resentence of a person as specified in paragraph (ii) of this subdivision the court shall impose a maximum term of life imprisonment;

  (v) if the conviction was for an offense as specified in section 115.05 of this chapter and the offense which was the object of the criminal facilitation was a class A-III felony then the court shall set aside the conviction and substitute it with a conviction for violation of section 115.01 or 115.00 of this chapter, whichever is appropriate under the facts of the case, and impose a sentence in accordance with those provisions.

 c. Upon resentence as provided in this section the court may not impose a sentence greater than the sentence previously imposed.
 

Section 60.10 Authorized disposition;  juvenile offender

 1. When a juvenile offender is convicted of a crime, the court shall sentence the defendant to imprisonment in accordance with section 70.05 or sentence him upon a youthful offender finding in accordance with section 60.02 of this chapter.

 2. Subdivision one of this section shall apply when sentencing a juvenile offender notwithstanding the provisions of any other law that deals with the authorized sentence for persons who are not juvenile offenders.  Provided, however, that the limitation prescribed by this section shall not be deemed or construed to bar use of a conviction of a juvenile offender, other than a juvenile offender who has been adjudicated a youthful offender pursuant to section 720.20 of the criminal procedure law, as a previous or predicate felony offender under section 70.04, 70.06, 70.08 or 70.10, when sentencing a person who commits a felony after he has reached the age of sixteen.
 

Section 60.11 Authorized dispositions;  criminal possession of a weapon in the fourth degree

 When a person is to be sentenced upon a conviction of the crime of criminal possession of a weapon in the fourth degree as defined in subdivision one of section 265.01 as a result of a plea of guilty entered in satisfaction of an indictment or count thereof charging the defendant with the class D violent felony offense of criminal possession of a weapon in the third degree as defined in subdivision four of section 265.02, the court must sentence the defendant in accordance with the provisions of section 70.15.
 

Section 60.12 Authorized dispositions;  alternative indeterminate sentence of imprisonment;  domestic violence cases

 1.  Notwithstanding any other provision of law, where a court is imposing sentence pursuant to section 70.02 upon a conviction for an offense enumerated in subdivision one of such section, other than an offense defined in article one hundred thirty of this chapter, and is authorized or required pursuant to such section to impose a determinate sentence of imprisonment for such offense, the court, upon a determination following a hearing that (a) the defendant was the victim of physical, sexual, or psychological abuse by the victim or intended victim of such offense, (b) such abuse was a factor in causing the defendant to commit such offense and (c) the victim or intended victim of such offense was a member of the same family or household as the defendant as such term is defined in subdivision one of section 530.11 of the criminal procedure law, may, in lieu of imposing such determinate sentence of imprisonment, impose an indeterminate sentence of imprisonment in accordance with subdivisions two and three of this section.

 2. The maximum term of an indeterminate sentence imposed pursuant to subdivision one of this section must be fixed by the court as follows:

   (a) For a class B felony, the term must be at least six years and must not exceed twenty-five years;

   (b) For a class C felony, the term must be at least four and one-half years and must not exceed fifteen years;

   (c) For a class D felony, the term must be at least three years and must not exceed seven years; and

   (d) For a class E felony, the term must be at least three years and must not exceed four years.

3. The minimum period of imprisonment under an indeterminate sentence imposed pursuant to subdivision one of this section must be fixed by the court at one-half of the maximum term imposed and must be specified in the sentence.
 

Section 60.20 Authorized dispositions;  traffic infraction

 1. When a person is convicted of a traffic infraction, the sentence of the court shall be as follows:

  (a) A period of conditional discharge, as provided in article sixty-five;  or

  (b) Unconditional discharge as provided in section 65.10;  or

  (c) A fine or a sentence to a term of imprisonment, or both, as prescribed in and authorized by the provision that defines the infraction;  or

  (d) A sentence of intermittent imprisonment, as provided in article eighty- five.

 2. Where a sentence of conditional discharge is imposed for a traffic infraction, all incidents of the sentence shall be the same as would be applicable if the sentence were for a violation.
 

Section 60.25 Authorized dispositions;  corporation

 When a corporation is convicted of an offense, the sentence of the court shall be as follows:

  (a) A fine authorized by section 80.10;  or

  (b) Where authorized by section 65.05, a period of conditional discharge as provided in that section;  or

  (c) Where authorized by section 65.20, unconditional discharge as provided in that section.

 In any case where a corporation has been sentenced to a period of conditional discharge and such sentence is revoked, the court shall sentence the corporation to pay a fine.
 

Section 60.27 Restitution and reparation

 1. In addition to any of the dispositions authorized by this article, the court shall consider restitution or reparation to the victim of the crime and may require restitution or reparation as part of the sentence imposed upon a person convicted of an offense, and after providing the district attorney with an opportunity to be heard in accordance with the provisions of this subdivision, require the defendant to make restitution of the fruits of his or her offense or reparation for the actual out-of-pocket loss caused thereby and, in the case of a violation of section 190.78, 190.79, 190.80, 190.82 or 190.83 of this chapter, any costs or losses incurred due to any adverse action taken against the victim. The district attorney shall where appropriate, advise the court at or before the time of sentencing that the victim seeks restitution or reparation, the extent of injury or economic loss or damage of the victim, and the amount of restitution or reparation sought by the victim in accordance with his or her responsibilities under subdivision two of section 390.50 of the criminal procedure law and article twenty-three of the executive law.  The court shall hear and consider the information presented by the district attorney in this regard.  In that event, or when the victim impact statement reports that the victim seeks restitution or reparation, the court shall require, unless the interests of justice dictate otherwise, in addition to any of the dispositions authorized by this article that the defendant make restitution of the fruits of the offense and reparation for the actual out-of-pocket loss and, in the case of a violation of section 190.78, 190.79, 190.80, 190.82 or 190.83 of this chapter, any costs or losses incurred due to any adverse action, caused thereby to the victim.  In the event that restitution or reparation are not ordered, the court shall clearly state its reasons on the record. Adverse action as used in this subdivision shall mean and include actual loss incurred by the victim and the consequential financial losses from such action.

 2. Whenever the court requires restitution or reparation to be made, the court must make a finding as to the dollar amount of the fruits of the offense and the actual out-of-pocket loss to the victim caused by the offense.  In making this finding, the court must consider any victim impact statement provided to the court.  If the record does not contain sufficient evidence to support such finding or upon request by the defendant, the court must conduct a hearing upon the issue in accordance with the procedure set forth in section 400.30 of the criminal procedure law.

 3. The provisions of sections 420.10, 420.20 and 420.30 of the criminal procedure law shall apply in the collection and remission of restitution and reparation.

 4. For purposes of the imposition, determination and collection of restitution or reparation, the following definitions shall apply:

  (a) the term "offense" shall include the offense for which a defendant was convicted, as well as any other offense that is part of the same criminal transaction or that is contained in any other accusatory instrument disposed of by any plea of guilty by the defendant to an offense.

  (b) the term "victim" shall include the victim of the offense, the representative of a crime victim as defined in subdivision six of section six hundred twenty-one of the executive law, an individual whose identity was assumed or whose personal identifying information was used in violation of section 190.78, 190.79 or 190.80 of this chapter, or any person who has suffered a financial loss as a direct result of the acts of a defendant in violation of section 190.78, 190.79, 190.80, 190.82 or 190.83 of this chapter, a good samaritan as defined in section six hundred twenty-one of the executive law and the crime victims' board or other governmental agency that has received an application for or has provided financial assistance or compensation to the victim.

5. (a) Except upon consent of the defendant or as provided in paragraph (b) of this subdivision, or as a condition of probation or conditional discharge as provided in paragraph (g) of subdivision two of section 65.10 of this chapter, the amount of restitution or reparation required by the court shall not exceed fifteen thousand dollars in the case of a conviction for a felony, or ten thousand dollars in the case of a conviction for any offense other than a felony. Notwithstanding the provisions of this subdivision, if an officer of a school district is convicted of violating any section of article one hundred fifty-five of this chapter where the victim of such crime is such officer's school district, the court may require an amount of restitution up to the full amount of the fruits of the offense or reparation up to the full amount of the actual out-of-pocket loss suffered by the victim, provided further that in such case the provisions of paragraph (b) of this subdivision shall not apply.

  (b) The court in its discretion may impose restitution or reparation in excess of the amounts specified in paragraph (a) of this subdivision, provided however that the amount in excess must be limited to the return of the victim's property, including money, or the equivalent value thereof;  and reimbursement for medical expenses actually incurred by the victim prior to sentencing as a result of the offense committed by the defendant.

 6. Any payment made as restitution or reparation pursuant to this section shall not limit, preclude or impair any liability for damages in any civil action or proceeding for an amount in excess of such payment.

 7. In the event that the court requires restitution or reparation to be made to a person and that person dies prior to the completion of said restitution or reparation, the remaining payments shall be made to the estate of the deceased.

 8. The court shall in all cases where restitution or reparation is imposed direct as part of the disposition that the defendant pay a designated surcharge of five percent of the entire amount of a restitution or reparation payment to the official or organization designated pursuant to subdivision eight of section 420.10 of the criminal procedure law.  The designated surcharge shall not exceed five percent of the amount actually collected.  Upon the filing of an affidavit of the official or organization designated pursuant to subdivision eight of section 420.10 of the criminal procedure law demonstrating that the actual cost of the collection and administration of restitution or reparation in a particular case exceeds five percent of the entire amount of the payment or the amount actually collected, as the case may be, the court shall direct that the defendant pay an additional surcharge of not more than five percent of the entire amount of a restitution or reparation payment to such official or organization, or the actual cost of collection or administration, whichever is less unless, upon application of the defendant, the court determines that imposition of such additional surcharge would cause undue hardship to the defendant, or any other person who is financially supported by the defendant, or would otherwise not be in the interest of justice.  Such additional surcharge, when added to the initial five percent surcharge, shall not exceed ten percent of the amount actually collected.

 9. If the offense of which a person is convicted is a class A, class B, class C, or class D felony involving the sale of a controlled substance, as defined in article two hundred twenty of this chapter, and no other victim who is a person is seeking restitution in the case, the term "victim" as used in this section, in addition to its ordinary meaning, shall mean any law enforcement agency of the state of New York or of any subdivision thereof which has expended funds in the purchase of any controlled substance from such person or his agent as part of the investigation leading to such conviction.  Any restitution which may be required to be made to a law enforcement agency pursuant to this section shall be limited to the amount of funds expended in the actual purchase of such controlled substance by such law enforcement agency, less the amount of any funds which have been or will be recovered from any other source, and shall not include a designated surcharge pursuant to subdivision eight of this section.  Any law enforcement agency seeking restitution pursuant to this section shall file with the court and the district attorney an affidavit stating that funds expended in the actual purchase of a controlled substance for which restitution is being sought have not been and will not be recovered from any other source or in any other civil or criminal proceeding.  Any law enforcement agency receiving restitution pursuant to this section shall promptly transmit to the commissioner of the division of criminal justice services a report stating the dollar amount of the restitution received.

 10. If the offense of which a person is convicted is defined in section 150.10, 150.15 or 150.20 of this chapter, and no other victim who is a person is seeking restitution in the case, the term "victim" as used in this section, in addition to its ordinary meaning, shall mean any municipality which has expended funds or will expend funds for the purpose of restoration, rehabilitation or clean-up of the site of the arson.  Any restitution which may be required to be made to a municipality pursuant to this section shall be limited to the amount of funds reasonably expended or to be expended for the purpose of restoration, rehabilitation or clean-up of the site of the arson, less the amount of any funds which have been or will be recovered from any other source, and shall not include a designated surcharge pursuant to subdivision eight of this section.  Any municipality seeking restitution pursuant to this section shall file with the court, district attorney and defense counsel an affidavit stating that the funds reasonably expended or to be expended for which restitution is being sought have not been and will not be recovered from any other source or in any other civil or criminal proceeding.

* 11. Notwithstanding any other provision of this section to the contrary, when a person is convicted of harming an animal trained to aid a person with a disability in the second degree as defined in section 195.11 of this chapter, or harming an animal trained to aid a person with a disability in the first degree as defined in section 195.12 of this chapter, the court, in addition to any other sentence, shall order the payment of restitution to the person with a disability who was aided by such animal. 

* NB There are 2 sub 11`s. 

* 11. If the offense of which a person is convicted is defined in section 240.50, subdivision one or two of section 240.55, section 240.60 or section 240.61 of this chapter, and no other victim who is a person is seeking restitution in the case, the term "victim" as used in this subdivision, in addition to the ordinary meaning, shall mean any school, municipality, fire district, fire company, fire corporation, ambulance association, ambulance corporation, or other legal or public entity engaged in providing emergency services which has expended funds for the purpose of responding to a false report of an incident or false bomb as defined in section 240.50, subdivision one or two of section 240.55, section 240.60 or section 240.61 of this chapter. Any restitution which may be required to be made to a victim pursuant to this subdivision shall be limited to the amount of funds reasonably expended for the purpose of responding to such false report of incident or false bomb, less the amount of any funds which have been or will be recovered from any other source and shall not include a designated surcharge pursuant to subdivision eight of this section. Any victim seeking restitution pursuant to this subdivision shall file with the court, district attorney and defense counsel an affidavit stating that the funds reasonably expended for which restitution is being sought have not been and will not be recovered from any other source or in any other civil or criminal proceeding, except as provided for by section 3-112 of the general obligations law

* NB There are 2 sub 11`s. 

12. If the offense of which a person is convicted is defined in section 155.25, 155.30, 155.35, 155.40 or 155.42 of this chapter, and the property taken is timber, the court may upon conviction, in addition to any other sentence, direct the defendant to pay the rightful owner of such timber an amount equal to treble the stumpage value of the timber stolen as defined in section 71-0703 of the environmental conservation law and for any permanent and substantial damage caused to the land or the improvements thereon as a result of such violation. Such reparations shall be of such kind, nature and extent as will reasonably restore the lands affected by the violation to their condition immediately before the violation and may be made by physical restoration of such lands and/or by the assessment of monetary payment to make such restoration. * NB Effective March 1, 2004
 

Section 60.28 Authorized disposition;  making graffiti and possession of graffiti instruments

 When a person is convicted of an offense defined in section 145.60 or 145.65 of this chapter, or of an attempt to commit such offense, and the sentence imposed by the court for such conviction includes a sentence of probation or conditional discharge, the court shall, where appropriate, include as a condition of such sentence the defendant's successful participation in a graffiti removal program pursuant to paragraph (h) of subdivision two of section 65.10 of this chapter.
 

Section 60.29 Authorized disposition;  cemetery desecration

 When a person is convicted of an offense defined in section 145.22 or 145.23 of this chapter or of an attempt to commit such an offense, and the sentence imposed by the court for such conviction includes a sentence of probation or conditional discharge, such sentence shall, where appropriate, be in accordance with paragraph (h) of subdivision two of section 65.10 of this article as such section relates to cemetery crime.
 

Section 60.30 Civil penalties

 This article does not deprive the court of any authority conferred by law to decree a forfeiture of property, suspend or cancel a license, remove a person from office, or impose any other civil penalty and any appropriate order exercising such authority may be included as part of the judgment of conviction.
 

Section 60.35 Mandatory surcharge, sex offender registration fee, DNA databank fee,  supplemental  sex  offender  victim fee and crime victim assistance fee required in certain cases.
 

 1. Except as provided in section eighteen hundred nine of the vehicle and traffic law and section 27.12 of the parks, recreation and historic preservation law, whenever proceedings in an administrative tribunal or a court of this state result in a conviction for a felony, a misdemeanor, or a violation, as these terms are defined in section 10.00 of this chapter, there shall be levied at sentencing a mandatory surcharge sex offender registration fee, DNA databank fee and a crime victim assistance fee in addition to any sentence required or permitted by law, in accordance with the following schedule:

  (a) a person convicted of a felony shall pay a mandatory surcharge of two hundred fifty dollars and a crime victim assistance fee of twenty dollars;

  (b) a person convicted of a misdemeanor shall pay a mandatory surcharge of one hundred forty dollars and a crime victim assistance fee of twenty dollars;

  (c) a person convicted of a violation shall pay a mandatory surcharge of seventy-five dollars and a crime victim assistance fee of twenty dollars.

  (d) a person convicted of a sex offense as defined by subdivision two of section one hundred sixty-eight-a of the correction law or a sexually violent offense as defined by subdivision three of section one hundred sixty-eight-a of the correction law shall, in addition to a mandatory surcharge and crime victim assistance fee, pay a sex offender registration fee of fifty dollars. 

  (e) a person convicted of a designated offense as defined by subdivision seven of section nine hundred ninety-five of the executive law shall, in addition to a mandatory surcharge and crime victim assistance fee, pay a DNA databank fee of fifty dollars.

2. Where a person is convicted of two or more crimes or violations committed through a single act or omission, or through an act or omission which in itself constituted one of the crimes or violations and also was a material element of the other, the court shall impose a mandatory surcharge and a crime victim assistance fee in accordance with the provisions of this section for the crime or violation which carries the highest classification, and no other sentence to pay a mandatory surcharge or a crime victim assistance fee required by this section shall be imposed. Where a person is convicted of two or more sex offenses or sexually violent offenses, as defined by subdivisions two and three of section one hundred sixty-eight-a of the correction law, committed through a single act or omission, or through an act or omission which in itself constituted one of the offenses and also was a material element of the other, the court shall impose only one sex offender registration fee. Where a person is convicted of two or more designated offenses, as defined by subdivision seven of section nine hundred ninety-five of the executive law, committed through a single act or omission, or through an act or omission which in itself constituted one of the offenses and also was a material element of the other, the court shall impose only one DNA databank fee.

3. The mandatory surcharge, sex offender registration fee, DNA databank fee and crime victim assistance fee provided for in subdivision one of this section shall be paid to the clerk of the court or administrative tribunal that rendered the conviction. Within the first ten days of the month following collection of the mandatory surcharge and crime victim assistance fee, the collecting authority shall determine the amount of mandatory surcharge and crime victim assistance fee collected and, if it is an administrative tribunal, or a town or village justice court, it shall then pay such money to the state comptroller who shall deposit such money in the state treasury pursuant to section one hundred twenty-one of the state finance law to the credit of the criminal justice improvement account established by section ninety-seven-bb of the state finance law. Within the first ten days of the month following collection of the sex offender registration fee and DNA databank fee, the collecting authority shall determine the amount of the sex offender registration fee and DNA databank fee collected and, if it is an administrative tribunal, or a town or village justice court, it shall then pay such money to the state comptroller who shall deposit such money in the state treasury pursuant to section one hundred twenty-one of the state finance law to the credit of the general fund. If such collecting authority is any other court of the unified court system, it shall, within such period, pay such money attributable to the mandatory surcharge or crime victim assistance fee to the state commissioner of taxation and finance to the credit of the criminal justice improvement account established by section ninety-seven-bb of the state finance law. If such collecting authority is any other court of the unified court system, it shall, within such period, pay such money attributable to the sex offender registration fee and the DNA databank fee to the state commissioner of taxation and finance to the credit of the general fund.

4. Any person who has paid a mandatory surcharge, sex offender registration fee, DNA databank fee or a crime victim assistance fee under the authority of this section based upon a conviction that is subsequently reversed or who paid a mandatory surcharge, sex offender registration fee, DNA databank fee or a crime victim assistance fee under the authority of this section which is ultimately determined not to be required by this section shall be entitled to a refund of such mandatory surcharge, sex offender registration fee, DNA databank fee or crime victim assistance fee upon application to the state comptroller. The state comptroller shall require such proof as is necessary in order to determine whether a refund is required by law.

5. [Eff. until Sept. 1, 2007, pursuant to L.1995, c. 3, 74(h). See, also, subd. 5, below.] (a) When a person who is convicted of a crime or violation and sentenced to a term of imprisonment has failed to pay the mandatory surcharge, sex offender registration fee, DNA databank fee, crime victim assistance fee or supplemental sex offender victim fee required by this section, the clerk of the court that rendered the conviction shall notify the superintendent or the municipal official of the facility where the person is confined. The superintendent or the municipal official shall cause any amount owing to be collected from such person during his or her term of imprisonment from moneys to the credit of an inmates' fund or such moneys as may be earned by a person in a work release program pursuant to section eight hundred sixty of the correction law. Such moneys attributable to the mandatory surcharge or crime victim assistance fee shall be paid over to the state comptroller to the credit of the criminal justice improvement account established by  section ninety-seven-bb of the state finance law and such moneys attributable to the sex offender registration fee or DNA databank fee shall be paid over to the state comptroller to the credit of the general fund, except Laws of New York that any such moneys collected which are surcharges, sex offender registration fees, DNA databank fees, crime victim assistance fees or supplemental sex offender victim fees levied in relation to convictions obtained in a town or village justice court shall be paid within thirty days after the receipt thereof by the superintendent or municipal official of the facility to the justice of the court in which the conviction was obtained. For the purposes of collecting such mandatory surcharge, sex offender registration fee, DNA databank fee, crime victim assistance fee, and supplemental sex offender victim fee, the state shall be legally entitled to the money to the credit of an inmates' fund or money which is earned by an inmate in a work release program. For purposes of this subdivision, the term "inmates' fund" shall mean moneys in the possession of an inmate at the time of his or her admission into such facility, funds earned by him or her as provided for in section one hundred eighty-seven of the correction law and any other funds received by him or her or on his or her behalf and deposited with such superintendent or municipal official.

  (b) The incarceration fee provided for in subdivision two of section one hundred eighty-nine of the correction law shall not be assessed or collected if any order of restitution or reparation, fine, mandatory surcharge, sex offender registration fee, DNA databank fee or crime victim assistance fee remains unpaid. In such circumstances, any monies which may lawfully be withheld from the compensation paid to a prisoner for work performed while housed in a general confinement facility in satisfaction of such an obligation shall first be applied toward satisfaction of such obligation.

5. [Eff. until Sept. 1, 2007, pursuant to L.1995, c. 3, 74(h). See, also, subd. 5, below.] (a) When a person who is convicted of a crime or violation and sentenced to a term of imprisonment has failed to pay the mandatory surcharge, sex offender registration fee, DNA databank fee, crime victim assistance fee or supplemental sex offender victim fee required by this section, the clerk of the court that rendered the conviction shall notify the superintendent or the municipal official of the facility where the person is confined. The superintendent or the municipal official shall cause any amount owing to be collected from such person during his or her term of imprisonment from moneys to the credit of an inmates' fund or such moneys as may be earned by a person in a work release program pursuant to section eight hundred sixty of the correction law. Such moneys attributable to the mandatory surcharge or crime victim assistance fee shall be paid over to the state comptroller to the credit of the criminal justice improvement account established by section ninety-seven-bb of the state finance, and such moneys attributable to the sex offender registration fee or DNA databank fee shall be paid over to the state comptroller to the credit of the general fund, except that any such moneys collected which are surcharges, sex offender registration fees, DNA databank fees, crime victim assistance fees or supplemental sex offender victim fees levied in relation to convictions obtained in a town or village justice court shall be paid within thirty days after the receipt thereof by the superintendent or municipal official of the facility to the justice of the court in which the conviction was obtained. For the purposes of collecting such mandatory surcharge, sex offender registration fee, DNA databank fee, crime victim assistance fee, and supplemental sex offender victim fee, the state shall be legally entitled to the money to the credit of an inmates' fund or money which is earned by an inmate in a work release program. For purposes of this subdivision, the term "inmates' fund" shall mean moneys in the possession of an inmate at the time of his or her admission into such facility, funds earned by him or her as provided for in section one hundred eighty-seven of the correction law and any other funds received by him or her or on his or her behalf and deposited with such superintendent or municipal official.

 6. Notwithstanding any other provision of this section, where a person has made restitution or reparation pursuant to section 60.27 of this chapter, such person shall not be required to pay a mandatory surcharge or a crime victim assistance fee.

 7. Notwithstanding the provisions of subdivision one of section 60.00 of this chapter, the provisions of subdivision one of this section shall not apply to a violation under any law other than this chapter.

8. Subdivision one of section 130.10 of the criminal procedure law notwithstanding, at the time that the mandatory surcharge, sex offender registration fee or DNA databank fee is imposed a town or village court may, and all other courts shall, issue and cause to be served upon the person required to pay the mandatory surcharge, sex offender registration fee or DNA databank fee, a summons directing that such person appear before the court regarding the payment of the mandatory surcharge, sex offender registration fee or DNA databank fee if after sixty days from the date it was imposed it remains unpaid. The designated date of appearance on the summons shall be set for the first day court is in session falling after the sixtieth day from the imposition of the mandatory surcharge, sex offender registration fee or DNA databank fee. The summons shall contain the information required by subdivision two of section 130.10 of the criminal procedure law except that in substitution for the requirement of paragraph (c) of such subdivision the summons shall state that the person served must appear at a date, time and specific location specified in the summons if after sixty days from the date of issuance the mandatory surcharge, sex offender registration fee or DNA databank fee remains unpaid. The court shall not issue a summons under this subdivision to a person who is being sentenced to a term of confinement in excess of sixty days in jail or in the department of correctional services. The mandatory surcharges, sex offender registration fee and DNA databank fees for those persons shall be governed by the provisions of section 60.30 of the penal law.

 9. Notwithstanding the provisions of subdivision one of this section, in the event a proceeding is in a town or village court, such court shall add an additional five dollars to the surcharges imposed by such subdivision one.

10. The provisions of this section shall apply to sentences imposed upon a youthful offender finding.


ARTICLE 65--SENTENCES OF PROBATION, CONDITIONAL DISCHARGE AND UNCONDITIONAL DISCHARGE

Section 65.00 Sentence of probation

 1. Criteria.  (a) Except as otherwise required by section 60.05, 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 or a class B felony defined in article two hundred twenty 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.

[Eff. until Sept. 1, 2009, pursuant to L.1995, c. 3, 74, par. d. See, also, closing par. below.] 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.

[Eff. Sept. 1, 2009. See, also, closing par. above.] 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.

 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 or a class B felony defined in article two hundred twenty of this chapter or a sexual assault, the period of probation shall be five years;

   (ii) For a class A-II felony or a class B felony defined in article two hundred twenty of this chapter, the period of probation shall be life;

   (iii) For a felony sexual assault, the period of probation shall be ten years.

  (b)(i) For a class A misdemeanor, other than sexual assault, the period of probation shall be 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 three years if the authorized sentence of imprisonment is in excess of three months, otherwise the period of probation shall be one year.

For 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 of this chapter, or an attempt to commit any of the foregoing offenses.

4. 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. 

Section 65.05 Sentence of conditional discharge

 1. Criteria.  (a) Except as otherwise required by section 60.05, the court may impose a sentence of conditional discharge for an offense if the court, having regard to the nature and circumstances of the offense and to the history, character and condition of the defendant, is of the opinion that neither the public interest nor the ends of justice would be served by a sentence of imprisonment and that probation supervision is not appropriate.

  (b) When a sentence of conditional discharge is imposed for a felony, the court shall set forth in the record the reasons for its action.

 2. Sentence.  Except to the extent authorized by paragraph (d) of subdivision two of section 60.01 of this chapter, when the court imposes a sentence of conditional discharge the defendant shall be released with respect to the conviction for which the sentence is imposed without imprisonment or probation supervision but subject, during the period of conditional discharge, to such conditions as the court may determine.  The court shall impose the period of conditional discharge authorized by subdivision three of this section and shall specify, in accordance with section 65.10, the conditions to be complied with. If a defendant is sentenced pursuant to paragraph (e) of subdivision two of section 65.10 of this chapter, the court shall require the administrator of the program to provide written notice to the court of any violation of program participation by the defendant.  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 conditional discharge.

 3. Periods of conditional discharge.  Unless terminated sooner in accordance with the criminal procedure law, the period of conditional discharge shall be as follows:

  (a) Three years in the case of a felony;  and

  (b) One year in the case of a misdemeanor or a violation.

 Where the court has required, as a condition of the sentence, that the defendant make restitution of the fruits of his or her offense or make reparation for the loss caused thereby and such condition has not been satisfied, the court, at any time prior to the expiration or termination of the period of conditional discharge, may impose an additional period.  The length of the additional period shall be fixed by the court at the time it is imposed and shall not be more than two years.  All of the incidents of the original sentence, including the authority of the court to modify or enlarge the conditions, shall continue to apply during such additional period.
 

Section 65.10 Conditions of probation and of conditional discharge

 1. In general.  The conditions of probation and of conditional discharge shall be such as the court, in its discretion, deems reasonably necessary to insure that the defendant will lead a law-abiding life or to assist him to do so.

 2. Conditions relating to conduct and rehabilitation.  When imposing a sentence of probation or of conditional discharge, the court shall, as a condition of the sentence, consider restitution or reparation and may, as a condition of the sentence, require that the defendant:

  (a) Avoid injurious or vicious habits;

  (b) Refrain from frequenting unlawful or disreputable places or consorting with disreputable persons;

  (c) Work faithfully at a suitable employment or faithfully pursue a course of study or of vocational training that will equip him for suitable employment;

  (d) Undergo available medical or psychiatric treatment and remain in a specified institution, when required for that purpose;

  (e) Participate in an alcohol or substance abuse program or an intervention program approved by the court after consultation with the local probation department having jurisdiction, or such other public or private agency as the court determines to be appropriate;

  (f) Support his dependents and meet other family responsibilities;

  (g) Make restitution of the fruits of his or her offense or make reparation, in an amount he can afford to pay, for the actual out-of-pocket loss caused thereby.  When restitution or reparation is a condition of the sentence, the court shall fix the amount thereof, the manner of performance, specifically state the date when restitution is to be paid in full prior to the expiration of the sentence of probation and may establish provisions for the early termination of a sentence of probation or conditional discharge pursuant to the provisions of subdivision three of section 410.90 of the criminal  procedure law after the restitution and reparation part of a sentence of probation or conditional discharge has been satisfied.  The court shall provide that in the event the person to whom restitution or reparation is to be made dies prior to the completion of said restitution or reparation, the remaining payments shall be made to the estate of the deceased. 

  (h) Perform services for a public or not-for-profit corporation, association, institution or agency, including but not limited to services for the division of substance abuse services, services in an appropriate community program for removal of graffiti from public or private property, including any property damaged in the underlying offense, or services for the maintenance and repair of real or personal property maintained as a cemetery plot, grave, burial place or other place of interment of human remains.  Provided however, that the performance of any such services shall not result in the displacement of employed workers or in the impairment of existing contracts for services, nor shall the performance of any such service be required or permitted in any establishment involved in any labor strike or lockout. The court may establish provisions for the early termination of a sentence of probation or conditional discharge pursuant to the provisions of subdivision three of section 410.90 of the criminal procedure law after such services have been completed.  Such sentence may only be imposed upon conviction of a misdemeanor, violation, or class D or class E felony, or a youthful offender finding replacing any such conviction, where the defendant has consented to the amount and conditions of such service;

   (i) If a person under the age of twenty-one years, (i) resides with his  parents or in a suitable foster home or hostel as referred to in section two hundred forty-four of the executive law, (ii) attends school, (iii) spends such part of the period of the sentence as the court may direct, but not exceeding two years, in a facility made available by the division for youth pursuant to article nineteen-G of the executive law, provided that admission to such facility may be made only with the prior consent of the division for youth, (iv) attend a non-residential program for such hours and pursuant to a schedule prescribed by the court as suitable for a program of rehabilitation of youth, (v) contribute to his own support in any home, foster home or hostel;

  (j) Post a bond or other security for the performance of any or all conditions imposed;

  (k) Observe certain specified conditions of conduct as set forth in an order of protection issued pursuant to section 530.12 or 530.13 of the criminal procedure law.

  (k-1) Install and maintain a functioning ignition interlock device, as that term is defined in section one hundred nineteen-a of the vehicle and traffic law, in any vehicle owned or operated on a regular basis by the defendant if the court in its discretion determines that such a condition is necessary to ensure the public safety.  The court may require such condition only where a person has been convicted of a violation of subdivision two or three of section eleven hundred ninety-two of the vehicle and traffic law, or any crime defined by the vehicle and traffic law or this chapter of which an alcohol-related violation of any provision of section eleven hundred ninety-two of the vehicle and traffic law is an essential element.

  (l) Satisfy any other conditions reasonably related to his rehabilitation.

 3. Conditions relating to supervision.  When imposing a sentence of probation the court, in addition to any conditions imposed pursuant to subdivision two of this section, shall require as conditions of the sentence, that the defendant:

  (a) Report to a probation officer as directed by the court or the probation officer and permit the probation officer to visit him at his place of abode or elsewhere;

  (b) Remain within the jurisdiction of the court unless granted permission to leave by the court or the probation officer;  and

  (c) Answer all reasonable inquiries by the probation officer and notify the probation officer prior to any change in address or employment.

 4. Electronic monitoring.  When imposing a sentence of probation the court may, in addition to any conditions imposed pursuant to subdivisions two and three of this section, require the defendant to submit to the use of an electronic monitoring device and/or to follow a schedule that governs the defendant's daily movement.  Such condition may be imposed only where the court, in its discretion, determines that requiring the defendant to comply with such condition will advance public safety, probationer control or probationer surveillance.  Electronic monitoring shall be used in accordance with uniform procedures developed by the division of probation and correctional alternatives.

4-a. Mandatory condition for sex offenders. When imposing a sentence of probation or conditional discharge upon a person convicted of an offense defined in article one hundred thirty, two hundred thirty-five or two hundred sixty-three of this chapter, or section 255.25 of this chapter, and the victim of such offense was under the age of eighteen at the time of such offense or such person has been designated a level three sex offender pursuant to subdivision six of section 168-1 of the correction law, the court shall require, as a mandatory condition of such sentence, that such sentenced offender shall refrain from knowingly entering into or upon any school grounds, as that term is defined in subdivision fourteen of section 220.00 of this chapter, or any other facility or institution primarily used for the care or treatment of persons under the age of eighteen while one or more of such persons under the age of eighteen are present, provided however, that when such sentenced offender is a registered student or participant or an employee of such facility or institution or entity contracting therewith or has a family member enrolled in such facility or institution, such sentenced offender may, with the written authorization of his or her probation officer or the court and the superintendent or chief administrator of such facility, institution or grounds, enter such facility, institution or upon such grounds for the limited purposes authorized by the probation officer or the court and superintendent or chief officer. Nothing in this subdivision shall be construed as restricting any lawful condition of supervision that may be imposed on such sentenced offender.

 5. Other conditions.  When imposing a sentence of probation the court may, in addition to any conditions imposed pursuant to subdivisions two, three and four of this section, require that the defendant comply with any other reasonable condition as the court shall determine to be necessary or appropriate to ameliorate the conduct which gave rise to the offense or to prevent the incarceration of the defendant.
 

Section 65.15 Calculation of periods of probation and of conditional discharge

 1. A period of probation or a period or additional period of conditional discharge commences on the day it is imposed.  Multiple periods, whether imposed at the same or at different times, shall run concurrently.

 2. When a person has violated the conditions of his probation or conditional discharge and is declared delinquent by the court, the declaration of delinquency shall interrupt the period of the sentence as of the date of the delinquency and such interruption shall continue until a final determination as to the delinquency has been made by the court pursuant to a hearing held in accordance with the provisions of the criminal procedure law.

3. [Eff. until Sept. 1, 2009, pursuant to L.1995, c. 3, 74, par. d. See, also, subd. 3 below.] In any case where a person who is under a sentence of probation or of conditional discharge is also under an indeterminate or determinate sentence of imprisonment, imposed for some other offense by a court of this state the service of the sentence of imprisonment shall satisfy the sentence of probation or of conditional discharge unless the sentence of probation or of conditional discharge is revoked prior to the next to occur of parole or conditional release under, or satisfaction of, the sentence of imprisonment. Provided, however, that the service of an indeterminate or determinate sentence of imprisonment shall not satisfy a sentence of probation if the sentence of probation was imposed at a time when the sentence of imprisonment had one year or less to run.

3. [Eff. Sept. 1, 2009. See, also, subd. 3 above.] In any case where a person who is under a sentence of probation or of conditional discharge is also under an indeterminate sentence of imprisonment, or a reformatory sentence of imprisonment authorized by section 75.00, imposed for some other offense by a court of this state the service of the sentence of imprisonment shall satisfy the sentence of probation or of conditional discharge unless the sentence of probation or of conditional discharge is revoked prior to the next to occur of parole or conditional release under, or satisfaction of, the sentence of imprisonment. Provided, however, that the service of an indeterminate or a reformatory sentence of imprisonment shall not satisfy a sentence of probation if the sentence of probation was imposed at a time when the sentence of imprisonment had one year or less to run.

 

Section 65.20 Sentence of unconditional discharge

 1. Criteria.  The court may impose a sentence of unconditional discharge in any case where it is authorized to impose a sentence of conditional discharge under section 65.05 if the court is of the opinion that no proper purpose would be served by imposing any condition upon the defendant's release.

 When a sentence of unconditional discharge is imposed for a felony, the court shall set forth in the record the reasons for its action.

  2. Sentence.  When the court imposes a sentence of unconditional discharge, the defendant shall be released with respect to the conviction for which the sentence is imposed without imprisonment, fine or probation supervision.  A sentence of unconditional discharge is for all purposes a final judgment of conviction.


ARTICLE 70--SENTENCES OF IMPRISONMENT

Section 70.00 Sentence of imprisonment for felony

1. [Eff. until Sept. 1, 2009, pursuant to L.1995, c. 3, 74, subd. d. See, also, subd. 1 below.] Indeterminate sentence. Except as provided in subdivisions four, five and six of this section, a sentence of imprisonment for a felony, other than a felony defined in article two hundred twenty or two hundred twenty-one of this chapter, shall be an indeterminate sentence. When such a sentence is imposed, the court shall impose a maximum term in accordance with the provisions of subdivision two of this section and the minimum period of imprisonment shall be as provided in subdivision three of this section.

1. [Eff. Sept. 1, 2009. See, also, subd. 1, above.] Indeterminate sentence. Except as provided in subdivisions four and five of this section, a sentence of imprisonment for a felony, other than a felony defined in article two hundred twenty or two hundred twenty-one of this chapter, shall be an indeterminate sentence. When such a sentence is imposed, the court shall impose a maximum term in accordance with the provisions of subdivision two of this section and the minimum period of imprisonment shall be as provided in subdivision three of this section.

2. Maximum term of sentence. The maximum term of an indeterminate sentence shall be at least three years and the term shall be fixed as follows:

(a) For a class A felony, the term shall be life imprisonment;

(b) For a class B felony, the term shall be fixed by the court, and shall not exceed twenty-five years;

(c) For a class C felony, the term shall be fixed by the court, and shall not exceed fifteen years;

(d) For a class D felony, the term shall be fixed by the court, and shall not exceed seven years; and

(e) For a class E felony, the term shall be fixed by the court, and shall not exceed four years.

3. Minimum period of imprisonment. The minimum period of imprisonment under an indeterminate sentence shall be at least one year and shall be fixed as follows:

(a) In the case of a class A felony, the minimum period shall be fixed by the court and specified in the sentence.

(i) For a class A-I felony, such minimum period shall not be less than fifteen years nor more than twenty-five years; provided, however, that (A) where a sentence, other than a sentence of death or life imprisonment without parole, is imposed upon a defendant convicted of murder in the first degree as defined in section 125.27 of this chapter such minimum period shall be not less than twenty years nor more than twenty-five years, and, (B) where a sentence is imposed upon a defendant convicted of murder in the second degree as defined in subdivision five of section 125.25 of this chapter or convicted of aggravated murder as defined in section 125.26 of this chapter, the sentence shall be life imprisonment without parole, and, (C) where a sentence is imposed upon a defendant convicted of attempted murder in the first degree as defined in article one hundred ten of this chapter and subparagraph (i), (ii) or (iii) of paragraph (a) of subdivision one and paragraph (b) of subdivision one of section 125.27 of this chapter or attempted aggravated murder as defined in article one hundred ten of this chapter and section 125.26 of this chapter such minimum period shall be not less than twenty years nor more than forty years.

(ii) For a class A-II felony, such minimum period shall not be less than three years nor more than eight years four months.

(b) For a class B felony, the minimum period shall be fixed by the court and specified in the sentence and shall be not less than one year nor more than one-third of the maximum term imposed.

4. Alternative definite sentence for class D and E felonies. When a person, other than a second or persistent felony offender, is sentenced for a class D or class E felony, and 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 an indeterminate or determinate sentence, the court may impose a definite sentence of imprisonment and fix a term of one year or less.

5. Life imprisonment without parole. Notwithstanding any other provision of law, a defendant sentenced to life imprisonment without parole shall not be or become eligible for parole or conditional release. For purposes of commitment and custody, other than parole and conditional release, such sentence shall be deemed to be an indeterminate sentence. A defendant may be sentenced to life imprisonment without parole upon conviction for the crime of murder in the first degree as defined in section 125.27 of this chapter and in accordance with the procedures provided by law for imposing a sentence for such crime. A defendant must be sentenced to life imprisonment without parole upon conviction for the crime of terrorism as defined in section 490.25 of this chapter, where the specified offense the defendant committed is a class A-I felony; the crime of criminal possession of a chemical weapon or biological weapon in the first degree as defined in section 490.45 of this chapter; or the crime of criminal use of a chemical weapon or biological weapon in the first degree as defined in section 490.55 of this chapter; provided, however, that nothing in this subdivision shall preclude or prevent a sentence of death when the defendant is also convicted of the crime of murder in the first degree as defined in section 125.27 of this chapter. A defendant must be sentenced to life imprisonment without parole upon conviction for the crime of murder in the second degree as defined in subdivision five of section 125.25 of this chapter or for the crime of aggravated murder as defined in section 125.26 of this chapter.

6. [Deemed repealed Sept. 1, 2009, pursuant to L.1995, c. 3, 74, subd. d.] Determinate sentence. Except as provided in subdivision four of this section and subdivisions two and four of section 70.02, when a person is sentenced as a violent felony offender pursuant to section 70.02 or as a second violent felony offender pursuant to section 70.04 or as a second felony offender on a conviction for a violent felony offense pursuant to section 70.06, the court must impose a determinate sentence of imprisonment in accordance with the provisions of such sections and such sentence shall include, as a part thereof, a period of post-release supervision in accordance with section 70.45.
 

Section 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, criminal sexual act in the first degree as 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, 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); 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, fireman or emergency medical services professional as defined in section 120.08, gang assault in the second degree as defined in section 120.06, 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, 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); 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, 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, criminal possession of a weapon in the third degree as defined in subdivision four, five, six, seven or eight 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, and aggravated unpermitted use of indoor pyrotechnics in the first degree as defined in section 405.18.

(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 four, 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, 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) [Eff. until Sept. 1, 2009, pursuant to L.1995, c. 3, 74, par. d. See, also, par. (a) below.] 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.

(a) [Eff. Sept. 1, 2009. See, also, par. (a) above.] 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.

(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 four, 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 correctional services, 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 four, five, seven or eight of section 265.02, criminal sale of a firearm in the third degree as defined in section 265.11 or the class E violent felonies of attempted criminal possession of a weapon in the third degree as defined in subdivision four, five, seven or eight of section 265.02 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; and (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;

(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 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

(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 pursuant to section 70.00.

  (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.
 

Section 70.04 Sentence of imprisonment for second violent felony offender

 1. Definition of second violent felony offender.

  (a) A second violent felony offender is a person who stands convicted of a violent felony offense as defined in subdivision one of section 70.02 after having previously been subjected to a predicate violent felony conviction as defined in paragraph (b) of this subdivision.

  (b) For the purpose of determining whether a prior conviction is a predicate violent felony conviction the following criteria shall apply:

   (i) The conviction must have been in this state of a class A felony (other than one defined in article two hundred twenty) or of a violent felony offense as defined in subdivision one of section 70.02, or of an offense defined by the penal law in effect prior to September first, nineteen hundred sixty-seven, which includes all of the essential elements of any such felony, or in any other jurisdiction of an offense which includes all of the essential elements of any such felony for which a sentence to a term of imprisonment in excess of one year or a sentence of death was authorized and is authorized in this state irrespective of whether such sentence was imposed;

   (ii) Sentence upon such prior conviction must have been imposed before commission of the present felony;

   (iii) Suspended sentence, suspended execution of sentence, a sentence of probation, a sentence of conditional discharge or of unconditional discharge, and a sentence of certification to the care and custody of the division of substance abuse services, shall be deemed to be a sentence;

   (iv) Except as provided in subparagraph (v) of this paragraph, sentence must have been imposed not more than ten years before commission of the felony of which the defendant presently stands convicted;

   (v) In calculating the ten year period under subparagraph (iv), any period of time during which the person was incarcerated for any reason between the time of commission of the previous felony and the time of commission of the present felony shall be excluded and such ten year period shall be extended by a period or periods equal to the time served under such incarceration;

   (vi) An offense for which the defendant has been pardoned on the ground of innocence shall not be deemed a predicate violent felony conviction.

 2. [Eff. until Sept. 1, 2009, as amended by L.1995, c. 3, 74, par. d. See, also, subd. 2 below.] Authorized sentence. When the court has found, pursuant to the provisions of the criminal procedure law, that a person is a second violent felony offender the court must impose a determinate sentence of imprisonment which shall be in whole or half years. Except where sentence is imposed in accordance with the provisions of section 70.10, the term of such sentence must be in accordance with the provisions of subdivision three of this section.

2. [Eff. Sept. 1, 2009. See, also, subd. 2 above.] Authorized sentence. When the court has found, pursuant to the provisions of the criminal procedure law, that a person is a second violent felony offender the court must impose an indeterminate sentence of imprisonment. Except where sentence is imposed in accordance with the provisions of section 70.10, 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.

3. [Eff. until Sept. 1, 2009, pursuant to L.1995, c. 3, 74, par. d. See, also, subd. 3 below.] Term of sentence. The term of a determinate sentence for a second violent felony offender must be fixed by the court as follows:

  (a) For a class B felony, the term must be at least ten years and must not exceed twenty-five years;

  (b) For a class C felony, the term must be at least seven years and must not exceed fifteen years;  and

  (c) For a class D felony, the term must be at least five years and must not exceed seven years.

  (d) For a class E felony, the term must be at least three years and must not exceed four years.

3. [Eff. Sept. 1, 2009. See, also, subd. 3 above.] Maximum term of sentence. The maximum term of an indeterminate sentence for a second violent felony offender must be fixed by the court as follows:

  (a) For a class B felony, the term must be at least twelve years and must not exceed twenty-five years;

  (b) For a class C felony, the term must be at least eight years and must not exceed fifteen years;  and

  (c) For a class D felony, the term must be at least five years and must not exceed seven years.

  (d) For a class E felony, the term must be at least four years.
 

Section 70.05 Sentence of imprisonment for juvenile offender

 1. Indeterminate sentence.  A sentence of imprisonment for a felony committed by a juvenile offender shall be an indeterminate sentence.  When such a sentence is imposed, the court shall impose a maximum term in accordance with the provisions of subdivision two of this section and the minimum period of imprisonment shall be as provided in subdivision three of this section.  The court shall further provide that where a juvenile offender is under placement pursuant to article three of the family court act, any sentence imposed pursuant to this section which is to be served consecutively with such placement shall be served in a facility designated pursuant to subdivision four of section 70.20 of this article prior to service of the placement in any previously designated facility.

 2. Maximum term of sentence.  The maximum term of an indeterminate sentence for a juvenile offender shall be at least three years and the term shall be fixed as follows:

  (a) For the class A felony of murder in the second degree, the term shall be life imprisonment;

  (b) For the class A felony of arson in the first degree, or for the class A felony of kidnapping in the first degree the term shall be fixed by the court, and shall be at least twelve years but shall not exceed fifteen years;

  (c) For a class B felony, the term shall be fixed by the court, and shall not exceed ten years;

  (d) For a class C felony, the term shall be fixed by the court, and shall not exceed seven years;  and

  (e)  For a class D felony, the term shall be fixed by the court and shall not exceed four years.

 3. Minimum period of imprisonment.  The minimum period of imprisonment under an indeterminate sentence for a juvenile offender shall be specified in the sentence as follows:

  (a) For the class A felony of murder in the second degree, the minimum period of imprisonment shall be fixed by the court and shall be not less than five years but shall not exceed nine years provided, however, that where the sentence is for an offense specified in subdivision one or two of section 125.25 of this chapter and the defendant was fourteen or fifteen years old at the time of such offense, the minimum period of imprisonment shall be not less than seven and one-half years but shall not exceed fifteen years;

  (b) For the class A felony of arson in the first degree, or for the class A felony of kidnapping in the first degree, the minimum period of imprisonment shall be fixed by the court and shall be not less than four years but shall not exceed six years;  and

  (c) For a class B, C, or D felony, the minimum period of imprisonment shall be fixed by the court at one-third of the maximum term imposed.
 

Section 70.06 Sentence of imprisonment for second felony offender

 1. Definition of second felony offender.

  (a) A second felony offender is a person, other than a second violent felony offender as defined in section 70.04, who stands convicted of a felony defined in this chapter, other than a class A-I felony, after having previously been subjected to one or more predicate felony convictions as defined in paragraph (b) of this subdivision.

  (b) For the purpose of determining whether a prior conviction is a predicate felony conviction the following criteria shall apply:

   (i) The conviction must have been in this state of a felony, or in any other jurisdiction of an offense for which a sentence to a term of imprisonment in excess of one year or a sentence of death was authorized and is authorized in this state irrespective of whether such sentence was imposed;

   (ii) Sentence upon such prior conviction must have been imposed before commission of the present felony;

   (iii) Suspended sentence, suspended execution of sentence, a sentence of probation, a sentence of conditional discharge or of unconditional discharge, and a sentence of certification to the care and custody of the division of substance abuse services, shall be deemed to be a sentence;

   (iv) Except as provided in subparagraph (v) of this paragraph, sentence must have been imposed not more than ten years before commission of the felony of which the defendant presently stands convicted;

   (v) In calculating the ten year period under subparagraph (iv), any period of time during which the person was incarcerated for any reason between the time of commission of the previous felony and the time of commission of the present felony shall be excluded and such ten year period shall be extended by a period or periods equal to the time served under such incarceration;

   (vi) An offense for which the defendant has been pardoned on the ground of innocence shall not be deemed a predicate felony conviction.

2. [Eff. until Sept. 1, 2009, pursuant to L.1995, c. 3, 74, par. d. See, also, subd. 2 below.] Authorized sentence. Except as provided in subdivision five or six of this section, when the court has found, pursuant to the provisions of the criminal procedure law, that a person is a second felony offender the court must impose an indeterminate sentence of imprisonment. 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.

2. [Eff. Sept. 1, 2009. See, also, subd. 2 above.] Authorized sentence. Except as provided in subdivision five of this section, when the court has found, pursuant to the provisions of the criminal procedure law, that a person is a second felony offender the court must impose an indeterminate sentence of imprisonment. 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.

3. [Eff. until Sept. 1, 2009, . See, also, subd. 3 below.] Maximum term of sentence. Except as provided in subdivision five or six of this section, the maximum term of an indeterminate sentence for a second felony offender must be fixed by the court as follows:

  (a) For a class A-II felony, the term must be life imprisonment;

  (b) For a class B felony, the term must be at least nine years and must not exceed twenty-five years;

  (c) For a class C felony, the term must be at least six years and must not exceed fifteen years;

  (d) For a class D felony, the term must be at least four years and must not exceed seven years;  and

  (e) For a class E felony, the term must be at least three years and must not exceed four years;  provided, however, that where the sentence is for the class E felony offense specified in section 240.32 of this chapter, the maximum term must be at least three years and must not exceed five years.

3. [Eff. Sept. 1, 2009. See, also, subd. 3 above.] Maximum term of sentence. Except as provided in subdivision five of this section, the maximum term of an indeterminate sentence for a second felony offender must be fixed by the court as follows:

  (a) For a class A-II felony, the term must be life imprisonment;

  (b) For a class B felony, the term must be at least nine years and must not exceed twenty-five years;

  (c) For a class C felony, the term must be at least six years and must not exceed fifteen years;

  (d) For a class D felony, the term must be at least four years and must not exceed seven years;  and

  (e) For a class E felony, the term must be at least three years and must not exceed four years.

 4. Minimum period of imprisonment.  (a) The minimum period of imprisonment for a second felony offender convicted of a class A-II felony must be fixed by the court at no less than six years and not to exceed twelve and one-half years and must be specified in the sentence.

  (b) Except as provided in paragraph (a), the minimum period of imprisonment under an indeterminate sentence for a second felony offender must be fixed by the court at one-half of the maximum term imposed and must be specified in the sentence.

 5. Lifetime probation.  Notwithstanding any other provision of law the court may sentence a person convicted of a class A-II felony or a class B felony defined in article two hundred twenty of this chapter to lifetime probation in accordance with the provisions of section 65.00.

6. [Deemed repealed Sept. 1, 2009, pursuant to L.1995, c. 3, 74, subd. d.] Determinate sentence. When the court has found, pursuant to the provisions of the criminal procedure law, that a person is a second felony offender and the sentence to be imposed on such person is for a violent felony offense, as defined in subdivision one of section 70.02, the court must impose a determinate sentence of imprisonment the term of which must be fixed by the court as follows:

  (a) For a class B violent felony offense, the term must be at least eight years and must not exceed twenty-five years;

  (b) For a class C violent felony offense, the term must be at least five years and must not exceed fifteen years;

  (c) For a class D violent felony offense, the term must be at least three years and must not exceed seven years;  and

  (d) For a class E violent felony offense, the term must be at least two years and must not exceed four years.

7. [Deemed repealed Sept. 1, 2009, pursuant to L.1995, c. 3, 74, subd. d.] Notwithstanding any other provision of law, 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 correctional services, the court may direct that such sentence 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.

Section 70.07 Sentence or imprisonment for second child sexual assault felony offender.

1. A person who stands convicted of a felony offense for a sexual assault against a child, having been subjected to a predicate felony conviction for  a sexual assault against a child, must be sentenced in accordance with the provisions of subdivision four or five of this section.

2. A "sexual assault against a child" means a felony offense, other than persistent sexual abuse as defined in section 130.53 of this chapter, (a) the essential elements of which include the commission or attempted commission of sexual conduct, as defined in subdivision ten of section 130.00 of this chapter, (b) committed or attempted to be committed against a child less than fifteen years old.

3. For purposes of determining whether a person has been subjected to a predicate felony conviction under this section, the criteria set forth in paragraph (b) of subdivision one of section 70.06 shall apply provided however that for purposes of this subdivision, the terms "ten year" or "ten years", as provided in subparagraphs (iv) and (v) of paragraph (b) of subdivision one of such section 70.06, shall be "fifteen year" or "fifteen years". The provisions of section 400.19 of the criminal procedure law shall govern the procedures that must be followed to determine whether a person who stands convicted of a sexual assault against a child has been previously subjected to a predicate felony conviction for such a sexual assault and whether such offender was eighteen years of age or older at the time of the commission of the predicate felony.

4. Where the court has found pursuant to subdivision three of this section that a person who stands convicted of a felony offense defined in article one hundred thirty of this chapter for the commission or attempted commission or a sexual assault against a child has been subjected to a predicate felony conviction for a sexual assault against a child, the court shall sentence the defendant as follows:

(a) where the defendant stands convicted of such sexual assault against a child and such conviction is for a class B felony offense, and the predicate conviction for such sexual assault against a child is for a class B or class C felony offense, the court shall impose an indeterminate sentence of imprisonment, the maximum term of which shall be life and the minimum period of which shall be at least fifteen years and no more than twenty-five years;

(b) where the defendant stands convicted of such sexual assault against a child and the conviction is for a class C felony offense, and the predicate conviction for such sexual assault against a child is for a class B or class C felony offense, the court shall impose a determinate sentence of imprisonment, the term of which must be at least twelve years and must not exceed thirty years; provided however, that if the court determines that a longer sentence is warranted, the court shall set forth on the record the reasons for such determination and, in lieu of imposing such sentence of imprisonment, may impose an indeterminate sentence of imprisonment, the maximum term of which shall be life and the minimum period of which shall be at least fifteen years and no more than twenty-five years;

(c) where the defendant stands convicted of such sexual assault against a child and the conviction is for a class B felony offense, and the predicate conviction for such sexual assault against a child is for a class D or class E felony offense, the court shall impose a determinate sentence of imprisonment, the term of which must be at least twelve years and must not exceed thirty years;

(d) where the defendant stands convicted of such sexual assault against a child and the conviction is for a class C felony offense, and the predicate conviction for such sexual assault against a child is for a class D or class E felony offense, the court shall impose a determinate sentence of imprisonment, the term of which must be at least ten years and must not exceed twenty-five years;

(e) where the defendant stands convicted of such sexual assault against a child and the conviction is for a class D felony offense, and the predicate conviction for such sexual assault against a child is for a felony offense, the court shall impose a determinate sentence of imprisonment, the term of which must be at least five years and must not exceed fifteen years: and

(f) where the defendant stands convicted of such sexual assault against a child and the conviction is for a class E felony offense, and the predicate conviction for such sexual assault against a child is for a felony offense, the court shall impose a determinate sentence of imprisonment, the term of which must be at least four years and must not exceed twelve years.

5. Notwithstanding subdivision four of this section, where the court has found pursuant to subdivision three of this section that a person: (a) stands convicted of a felony offense defined in article one hundred thirty of this chapter for the commission or attempted commission of a sexual assault against a child; and (b) has been subjected to a predicate felony conviction for sexual assault against a child as defined in subdivision two of this section; and (c) who was under the age of eighteen years at the time of the commission of such predicate felony offense, then the court may, in lieu of the sentence authorized by subdivision four of this section, sentence the defendant to a term of imprisonment in accordance with the sentence authorized for the instant felony offense pursuant to subdivision three of section 70.04 of this article. The court shall set forth on the record the reasons for such determination.

Section 70.08 Sentence of imprisonment for persistent violent felony offender;  criteria

 1. Definition of persistent violent felony offender.

  (a) A persistent violent felony offender is a person who stands convicted of a violent felony offense as defined in subdivision one of section 70.02 after having previously been subjected to two or more predicate violent felony convictions as defined in paragraph (b) of subdivision one of section 70.04.

  (b) For the purpose of determining whether a person has two or more predicate violent felony convictions, the criteria set forth in paragraph (b) of subdivision one of section 70.04 shall apply.

 2. Authorized sentence.  When the court has found, pursuant to the provisions of the criminal procedure law, that a person is a persistent violent felony offender the court must impose an indeterminate sentence of imprisonment, the maximum term of which shall be life imprisonment.  The minimum period of imprisonment under such sentence must be in accordance with subdivision three of this section.

3. [Eff. until Sept. 1, 2009, pursuant to L.1995, c. 3, 74, par. d. See, also, subd. 3 below.] Minimum period of imprisonment. The minimum period of imprisonment under an indeterminate life sentence for a persistent violent felony offender must be fixed by the court as follows:

  (a) For a class B felony, the minimum period must be at least twenty years and must not exceed twenty-five years;

  (b) For a class C felony, the minimum period must be at least sixteen years and must not exceed twenty-five years;

  (c) For a class D felony, the minimum period must be at least twelve years and must not exceed twenty-five years.

3. [Eff. Sept. 1, 2009. See, also, subd. 3 above.] Minimum period of imprisonment. The minimum period of imprisonment under an indeterminate life sentence for a persistent violent felony offender must be fixed by the court as follows:

  (a) For a class B felony, the minimum period must be at least ten years and must not exceed twenty-five years;

  (b) For a class C felony, the minimum period must be at least eight years and must not exceed twenty-five years;

  (c) For a class D felony, the minimum period must be at least six years and must not exceed twenty-five years.
 

Section 70.10 Sentence of imprisonment for persistent felony offender

 1. Definition of persistent felony offender.

  (a) A persistent felony offender is a person, other than a persistent violent felony offender as defined in section 70.08, who stands convicted of a felony after having previously been convicted of two or more felonies, as provided in paragraphs (b) and (c) of this subdivision.

  (b) A previous felony conviction within the meaning of paragraph (a) of this subdivision is a conviction of a felony in this state, or of a crime in any other jurisdiction, provided:

   (i) that a sentence to a term of imprisonment in excess of one year, or a sentence to death, was imposed therefor;  and

   (ii) that the defendant was imprisoned under sentence for such conviction prior to the commission of the present felony;  and

   (iii) that the defendant was not pardoned on the ground of innocence; and

   (iv) that such conviction was for a felony offense other than persistent sexual abuse, as defined in section 130.53 of this chapter.

  (c) For the purpose of determining whether a person has two or more previous felony convictions, two or more convictions of crimes that were committed prior to the time the defendant was imprisoned under sentence for any of such convictions shall be deemed to be only one conviction.

 2. Authorized sentence.  When the court has found, pursuant to the provisions of the criminal procedure law, that a person is a persistent felony offender, and when it is of the opinion that the history and character of the defendant and the nature and circumstances of his criminal conduct indicate that extended incarceration and life-time supervision will best serve the public interest, the court, in lieu of imposing the sentence of imprisonment authorized by section 70.00, 70.02, 70.04 or 70.06 for the crime of which such person presently stands convicted, may impose the sentence of imprisonment authorized by that section for a class A-I felony.  In such event the reasons for the court's opinion shall be set forth in the record.
 

Section 70.15 Sentences of imprisonment for misdemeanors and violation

 1. Class A misdemeanor.  A sentence of imprisonment for a class A misdemeanor shall be a definite sentence.  When such a sentence is imposed the term shall be fixed by the court, and shall not exceed one year;  provided, however, that a sentence of imprisonment imposed upon a conviction of criminal possession of a weapon in the fourth degree as defined in subdivision one of section 265.01 must be for a period of no less than one year when the conviction was the result of a plea of guilty entered in satisfaction of an indictment or any count thereof charging the defendant with the class D violent felony offense of criminal possession of a weapon in the third degree as defined in subdivision four of section 265.02, except that 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 felony or 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.

 2. Class B misdemeanor.  A sentence of imprisonment for a class B misdemeanor shall be a definite sentence.  When such a sentence is imposed the term shall be fixed by the court, and shall not exceed three months.

 3. Unclassified misdemeanor.  A sentence of imprisonment for an unclassified misdemeanor shall be a definite sentence.  When such a sentence is imposed the term shall be fixed by the court, and shall be in accordance with the sentence specified in the law or ordinance that defines the crime.

 4. Violation.  A sentence of imprisonment for a violation shall be a definite sentence.  When such a sentence is imposed the term shall be fixed by the court, and shall not exceed fifteen days.

 In the case of a violation defined outside this chapter, if the sentence is expressly specified in the law or ordinance that defines the offense and consists solely of a fine, no term of imprisonment shall be imposed.
 

Section 70.20 Place of imprisonment

1. [Eff. until Sept. 1, 2009, pursuant to L.1995, c. 3, 74, subd. d. See, also, subd. 1 below.] (a) Indeterminate or determinate sentence. Except as provided in subdivision four of this section, when an indeterminate or determinate sentence of imprisonment is imposed, the court shall commit the defendant to the custody of the state department of correctional services for the term of his or her sentence and until released in accordance with the law; provided, however, that a defendant sentenced pursuant to subdivision seven of section 70.06 shall be committed to the custody of the state department of correctional services for immediate delivery to a reception center operated by the department.

  (b) The court in committing a defendant who is not yet eighteen years of age to the department of correctional services shall inquire as to whether the parents or legal guardian of the defendant, if present, will grant to the minor the capacity to consent to routine medical, dental and mental health services and treatment.

  (c) Notwithstanding paragraph (b) of this subdivision, where the court commits a defendant who is not yet eighteen years of age to the custody of the department of correctional services in accordance with this section and no medical consent has been obtained prior to said commitment, the commitment order shall be deemed to grant the capacity to consent to routine medical, dental and mental health services and treatment to the person so committed.

  (d) Nothing in this subdivision shall preclude a parent or legal guardian of an inmate who is not yet eighteen years of age from making a motion on notice to the department of correctional services pursuant to article twenty-two of the civil practice law and rules and section one hundred forty of the correction law, objecting to routine medical, dental or mental health services and treatment being provided to such inmate under the provisions of paragraph (b) of this subdivision.

  (e) Nothing in this section shall require that consent be obtained from the parent or legal guardian, where no consent is necessary or where the defendant is authorized by law to consent on his or her own behalf to any medical, dental, and mental health service or treatment.
 
  1. [Eff. Sept. 1, 2009. See, also, subd. 1 above.] (a) Indeterminate sentence. Except as provided in subdivision four of this section, when an indeterminate sentence of imprisonment is imposed, the court shall commit the defendant to the custody of the state department of correctional services for the term of his or her sentence and until released in accordance with the law.

  (b) The court in committing a defendant who is not yet eighteen years of age to the department of correctional services shall inquire as to whether the parents or legal guardian of the defendant, if present, will grant to the minor the capacity to consent to routine medical, dental and mental health services and treatment.

  (c) Notwithstanding paragraph (b) of this subdivision, where the court commits a defendant who is not yet eighteen years of age to the custody of the department of correctional services in accordance with this section and no medical consent has been obtained prior to said commitment, the commitment order shall be deemed to grant the capacity to consent to routine medical, dental and mental health services and treatment to the person so committed.

  (d) Nothing in this subdivision shall preclude a parent or legal guardian of an inmate who is not yet eighteen years of age from making a motion on notice to the department of correctional services pursuant to article twenty-two of the civil practice law and rules and section one hundred forty of the correction law, objecting to routine medical, dental or mental health services and treatment being provided to such inmate under the provisions of paragraph (b) of this subdivision.

  (e) Nothing in this section shall require that consent be obtained from the parent or legal guardian, where no consent is necessary or where the defendant is authorized by law to consent on his or her own behalf to any medical, dental, and mental health service or treatment.

 2. Definite sentence.  Except as provided in subdivision four of this section, when a definite sentence of imprisonment is imposed, the court shall commit the defendant to the county or regional correctional institution for the term of his sentence and until released in accordance with the law.

 2-a. Sentence of life imprisonment without parole.  When a sentence of life imprisonment without parole is imposed, the court shall commit the defendant to the custody of the state department of correctional services for the remainder of the life of the defendant.

3. [Eff. until Sept. 1, 2009, pursuant to L.1995, c. 3, 74, subd. d. See, also, subd. 3 below.] Undischarged imprisonment in other jurisdiction. When a defendant who is subject to an undischarged term of imprisonment, imposed at a previous time by a court of another jurisdiction, is sentenced to an additional term or terms of imprisonment by a court of this state to run concurrently with such undischarged term, as provided in subdivision four of section 70.25, the return of the defendant to the custody of the appropriate official of the other jurisdiction shall be deemed a commitment for such portion of the term or terms of the sentence imposed by the court of this state as shall not exceed the said undischarged term. The defendant shall be committed to the custody of the state department of correctional services if the additional term or terms are indeterminate or determinate or to the appropriate county or regional correctional institution if the said term or terms are definite for such portion of the term or terms of the sentence imposed as shall exceed such undischarged term or until released in accordance with law. If such additional term or terms imposed shall run consecutively to the said undischarged term, the defendant shall be committed as provided in subdivisions one and two of this section.

3. [Eff. Sept. 1, 2009. See, also, subd. 3 above.] Undischarged imprisonment in other jurisdiction. When a defendant who is subject to an undischarged term of imprisonment, imposed at a previous time by a court of another jurisdiction, is sentenced to an additional term or terms of imprisonment by a court of this state to run concurrently with such undischarged term, as provided in subdivision four of section 70.25, the return of the defendant to the custody of the appropriate official of the other jurisdiction shall be deemed a commitment for such portion of the term or terms of the sentence imposed by the court of this state as shall not exceed the said undischarged term. The defendant shall be committed to the custody of the state department of correctional services if the additional term or terms are indeterminate or to the appropriate county or regional correctional institution if the said term or terms are definite for such portion of the term or terms of the sentence imposed as shall exceed such undischarged term or until released in accordance with law. If such additional term or terms imposed shall run consecutively to the said undischarged term, the defendant shall be committed as provided in subdivisions one and two of this section.

 4. (a) Notwithstanding any other provision of law to the contrary, a juvenile offender, or a juvenile offender who is adjudicated a youthful offender and given an indeterminate or a definite sentence, shall be committed to the custody of the director of the division for youth who shall arrange for the confinement of such offender in secure facilities of the division.  The release or transfer or such offenders from the division for youth shall be governed by section five hundred eight of the executive law.

  (b) The court in committing a juvenile offender and youthful offender to the custody of the division for youth shall inquire as to whether the parents or legal guardian of the youth, if present, will consent for the division to provide routine medical, dental and mental health services and treatment.

  (c) Notwithstanding paragraph (b) of this subdivision, where the court commits an offender to the custody of the division for youth in accordance with this section and no medical consent has been obtained prior to said commitment, the commitment order shall be deemed to grant consent for the division for youth to provide for routine medical, dental and mental health services and treatment to the offender so committed.

  (d) Nothing in this subdivision shall preclude a parent or legal guardian of an offender who is not yet eighteen years of age from making a motion on notice to the division for youth pursuant to article twenty-two of the civil practice law and rules objecting to routine medical, dental or mental health services and treatment being provided to such offender under the provisions of paragraph (b) of this subdivision.

  (e) Nothing in this section shall require that consent be obtained from the parent or legal guardian, where no consent is necessary or where the offender is authorized by law to consent on his or her own behalf to any medical, dental and mental health service or treatment.

 5. Subject to regulations of the department of health, routine medical, dental and mental health services and treatment is defined for the purposes of this section to mean any routine diagnosis or treatment, including without limitation the administration of medications or nutrition, the extraction of bodily fluids for analysis, and dental care performed with a local anesthetic. Routine mental health treatment shall not include psychiatric administration of medication unless it is part of an ongoing mental health plan or unless it is otherwise authorized by law.
 

Section 70.25 Concurrent and consecutive terms of imprisonment

 1. Except as provided in subdivisions two, two-a and five of this section, when multiple sentences of imprisonment are imposed on a person at the same time, or when a person who is subject to any undischarged term of imprisonment imposed at a previous time by a court of this state is sentenced to an additional term of imprisonment, the sentence or sentences imposed by the court shall run either concurrently or consecutively with respect to each other and the undischarged term or terms in such manner as the court directs at the time of sentence.  If the court does not specify the manner in which a sentence imposed by it is to run, the sentence shall run as follows:

(a) [Eff. until Sept. 1, 2009, pursuant to L.1995, c. 3, 74, subd. d. See, also, par. (a) below.] An indeterminate or determinate sentence shall run concurrently with all other terms; and

(a) [Eff. Sept. 1, 2009. See, also, par. (a) above.] An indeterminate sentence shall run concurrently with all other terms; and

  (b) A definite sentence shall run concurrently with any sentence imposed at the same time and shall be consecutive to any other term.

 2. When more than one sentence of imprisonment is imposed on a person for two or more offenses committed through a single act or omission, or through an act or omission which in itself constituted one of the offenses and also was a material element of the other, the sentences, except if one or more of such sentences is for a violation of section 270.20 of this chapter, must run concurrently.

2-a. [Eff. until Sept. 1, 2009, pursuant to L.1995, c. 3, 74, subd. d. See, also, subd. 2-a below.] When an indeterminate or determinate sentence of imprisonment is imposed pursuant to section 70.04, 70.06, 70.08, 70.10, subdivision three or four of section 70.70 or subdivision three or four of section 70.71 of this article, and such person is subject to an undischarged indeterminate or determinate sentence of imprisonment imposed prior to the date on which the present crime was committed, the court must impose a sentence to run consecutively with respect to such undischarged sentence.

2-a. [Eff. Sept. 1, 2009. See, also, subd. 2-a above.] When an indeterminate or determinate sentence of imprisonment is imposed pursuant to section 70.04, 70.06, 70.08, 70.10, subdivision three or four of section 70.70 or subdivision three or four of section 70.71 of this article, and such person is subject to an undischarged indeterminate sentence of imprisonment imposed prior to the date on which the present crime was committed, the court must impose a sentence to run consecutively with respect to such undischarged sentence.

2-b. [Eff. until Sept. 1, 2009, pursuant to L.1995, c. 3, 74, subd. d. See, also, subd. 2-b below.] When a person is convicted of a violent felony offense committed after arraignment and while released on recognizance or bail, but committed prior to the imposition of sentence on a pending felony charge, and if an indeterminate or determinate sentence of imprisonment is imposed in each case, such sentences shall run consecutively. Provided, however, that the court may, in the interest of justice, order a sentence to run concurrently in a situation where consecutive sentences are required by this subdivision if it finds either mitigating circumstances that bear directly upon the manner in which the crime was committed or, 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. The defendant and the district attorney shall have an opportunity to present relevant information to assist the court in making this determination and the court may, in its discretion, conduct a hearing with respect to any issue bearing upon such determination. If the court determines that consecutive sentences should not be ordered, it shall make a statement on the record of the facts and circumstances upon which such determination is based.

2-b. [Eff. Sept. 1, 2009. See, also, subd. 2-b above.] When a person is convicted of a violent felony offense committed after arraignment and while released on recognizance or bail, but committed prior to the imposition of sentence on a pending felony charge, and if an indeterminate sentence of imprisonment is imposed in each case, such sentences shall run consecutively. Provided, however, that the court may, in the interest of justice, order a sentence to run concurrently in a situation where consecutive sentences are required by this subdivision if it finds either mitigating circumstances that bear directly upon the manner in which the crime was committed or, 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. The defendant and the district attorney shall have an opportunity to present relevant information to assist the court in making this determination and the court may, in its discretion, conduct a hearing with respect to any issue bearing upon such determination. If the court determines that consecutive sentences should not be ordered, it shall make a statement on the record of the facts and circumstances upon which such determination is based.

 2-c. When a person is convicted of bail jumping in the second degree as defined in section 215.56 or bail jumping in the first degree as defined in section 215.57 committed after arraignment and while released on recognizance or bail in connection with a pending indictment or information charging one or more felonies, at least one of which he is subsequently convicted, and if an indeterminate sentence of imprisonment is imposed in each case, such sentences shall run consecutively.  Provided, however, that the court may, in the interest of justice, order a sentence to run concurrently in a situation where consecutive sentences are required by this subdivision if it finds mitigating circumstances that bear directly upon the manner in which the crime was committed.  The defendant and the district attorney shall have an opportunity to present relevant information to assist the court in making this determination and the court may, in its discretion, conduct a hearing with respect to any issue bearing upon such determination.  If the court determines that consecutive sentences should not be ordered, it shall make a statement on the record of the facts and circumstances upon which such determination is based.

 2-d. When a person is convicted of escape in the second degree as defined in section 205.10 or escape in the first degree as defined in section 205.15 committed after issuance of a securing order, as defined in subdivision five of section 500.10 of the criminal procedure law, in connection with a pending indictment or information charging one or more felonies, at least one of which he is subsequently convicted, and if an indeterminate sentence of imprisonment is imposed in each case, such sentences shall run consecutively. Provided, however, that the court may, in the interest of justice, order a sentence to run concurrently in a situation where consecutive sentences are required by this subdivision if it finds mitigating circumstances that bear directly upon the manner in which the crime was committed.  The defendant and the district attorney shall have an opportunity to present relevant information to assist the court in making this determination and the court may, in its discretion, conduct a hearing with respect to any issue bearing upon such determination.  If the court determines that consecutive sentences should not be ordered, it shall make a statement on the record of the facts and circumstances upon which such determination is based.

 2-e. Whenever a person is convicted of course of sexual conduct against a child in the first degree as defined in section 130.75 or course of sexual conduct against a child in the second degree as defined in section 130.80 and any other crime under article one hundred thirty committed against the same child and within the period charged under section 130.75 or 130.80, the sentences must run concurrently.

2-f. Whenever a person is convicted of facilitating a sex offense with a controlled substance as defined in section 130.90 of this chapter, the sentence imposed by the court for such offense may be ordered to run consecutively to any sentence imposed upon conviction of an offense defined in article one hundred thirty of this chapter arising from the same criminal transaction.

 3. Where consecutive definite sentences of imprisonment are not prohibited by subdivision two of this section and are imposed on a person for offenses which were committed as parts of a single incident or transaction, the aggregate of the terms of such sentences shall not exceed one year.

 4. When a person, who is subject to any undischarged term of imprisonment imposed at a previous time by a court of another jurisdiction, is sentenced to an additional term or terms of imprisonment by a court of this state, the sentence or sentences imposed by the court of this state, subject to the provisions of subdivisions one, two and three of this section, shall run either concurrently or consecutively with respect to such undischarged term in such manner as the court directs at the time of sentence.  If the court of this state does not specify the manner in which a sentence imposed by it is to run, the sentence or sentences shall run consecutively.

5. (a) [Eff. until Sept. 1, 2009, pursuant to L.1995, c. 3, 74, subd. d. See, also, par. (a) below.] Except as provided in paragraph (c) of this subdivision, when a person is convicted of assault in the second degree, as defined in subdivision seven of section 120.05 of this chapter, any definite, indeterminate or determinate term of imprisonment which may be imposed as a sentence upon such conviction shall run consecutively to any undischarged term of imprisonment to which the defendant was subject and for which he was confined at the time of the assault.

5. (a) [Eff. Sept. 1, 2009. See, also, par. (a) above.] Except as provided in paragraph (c) of this subdivision, when a person is convicted of assault in the second degree, as defined in subdivision seven of section 120.05 of this chapter, any definite or indeterminate term of imprisonment which may be imposed as a sentence upon such conviction shall run consecutively to any undischarged term of imprisonment to which the defendant was subject and for which he was confined at the time of the assault.

(b) [Eff. until Sept. 1, 2009, pursuant to L.1995, c. 3, 74, subd. d. See, also, par. (b) below.] Except as provided in paragraph (c) of this subdivision, when a person is convicted of assault in the second degree, as defined in subdivision seven of section 120.05 of this chapter, any definite, indeterminate or determinate term of imprisonment which may be imposed as a sentence upon such conviction shall run consecutively to any term of imprisonment which was previously imposed or which may be prospectively imposed where the person was confined within a detention facility at the time of the assault upon a charge which culminated in such sentence of imprisonment.

(b) [Eff. Sept. 1, 2009. See, also, par. (b) above.] Except as provided in paragraph (c) of this subdivision, when a person is convicted of assault in the second degree, as defined in subdivision seven of section 120.05 of this chapter, any definite or indeterminate term of imprisonment which may be imposed as a sentence upon such conviction shall run consecutively to any term of imprisonment which was previously imposed or which may be prospectively imposed where the person was confined within a detention facility at the time of the assault upon a charge which culminated in such sentence of imprisonment.

  (c) Notwithstanding the provisions of paragraphs (a) and (b) of this subdivision, a term of imprisonment imposed upon a conviction to assault in the second degree as defined in subdivision seven of section 120.05 of this chapter may run concurrently to any other term of imprisonment, in the interest of justice, provided the court sets forth in the record its reasons for imposing a concurrent sentence.  Nothing in this section shall require the imposition of a sentence of imprisonment where it is not otherwise required by law.
 

Section 70.30 Calculation of terms of imprisonment

1. [Eff. until Sept. 1, 2009, pursuant to L.1995, c. 3, 74, subd. d. See, also, opening par. below.] Indeterminate or determinate sentences. An indeterminate or determinate sentence of imprisonment commences when the prisoner is received in an institution under the jurisdiction of the state department of correctional services. Where a person is under more than one indeterminate or determinate sentence, the sentences shall be calculated as follows:

1. [Eff. Sept. 1, 2009. See, also, opening par. above.] Indeterminate sentences. An indeterminate sentence of imprisonment commences when the prisoner is received in an institution under the jurisdiction of the state department of correctional services. Where a person is under more than one indeterminate sentence, the sentences shall be calculated as follows:

(a) [Eff. until Sept. 1, 2009, pursuant to L.1995, c. 3, 74, subd. d. See, also, par. (a) below.] If the sentences run concurrently, the time served under imprisonment on any of the sentences shall be credited against the minimum periods of all the concurrent indeterminate sentences and against the terms of all the concurrent determinate sentences. The maximum term or terms of the indeterminate sentences and the term or terms of the determinate sentences shall merge in and be satisfied by discharge of the term which has the longest unexpired time to run;

(a) [Eff. Sept. 1, 2009. See, also, par. (a) above.] If the sentences run concurrently, the time served under imprisonment on any of the sentences shall be credited against the minimum periods of all the concurrent sentences, and the maximum terms merge in and are satisfied by discharge of the term which has the longest unexpired time to run;

(b) [Eff. until Sept. 1, 2009, pursuant to L.1995, c. 3, 74, subd. d. See, also, par. (b) below.] If the defendant is serving two or more indeterminate sentences which run consecutively, the minimum periods of imprisonment are added to arrive at an aggregate minimum period of imprisonment equal to the sum of all the minimum periods, and the maximum terms are added to arrive at an aggregate maximum term equal to the sum of all the maximum terms, provided, however, that both the aggregate maximum term and the aggregate minimum period of imprisonment shall be subject to the limitations set forth in paragraphs (e) and (f) of this subdivision, where applicable;

(b) [Eff. Sept. 1, 2009. See, also, par. (b) above.] If the sentences run consecutively, the minimum periods of imprisonment are added to arrive at an aggregate minimum period of imprisonment equal to the sum of all the minimum periods, and the maximum terms are added to arrive at an aggregate maximum term equal to the sum of all the maximum terms, provided, however, that both the aggregate maximum term and the aggregate minimum period of imprisonment shall be subject to the limitations set forth in paragraphs (c) and (d) of this subdivision, where applicable;

(c) [Eff. until Sept. 1, 2009, pursuant to L.1995, c. 3, 74, subd. d. See, also, par. (c) below.] If the defendant is serving two or more determinate sentences of imprisonment which run consecutively, the terms of the determinate sentences are added to arrive at an aggregate maximum term of imprisonment, provided, however, that the aggregate maximum term of imprisonment shall be subject to the limitations set forth in paragraphs (e) and (f) of this subdivision, where applicable.

(c) [Eff. Sept. 1, 2009. See, also, par. (c) above.] (i) Except as provided in subparagraph (ii) or (iii) of this paragraph, the aggregate maximum term of consecutive sentences imposed for two or more crimes, other than two or more crimes that include a class A felony, committed prior to the time the person was imprisoned under any of such sentences shall, if it exceeds twenty years, be deemed to be twenty years, unless one of the sentences was imposed for a class B felony, in which case the aggregate maximum term shall, if it exceeds thirty years, be deemed to be thirty years. Where the aggregate maximum term of two or more consecutive sentences is reduced by calculation made pursuant to this paragraph, the aggregate minimum period of imprisonment, if it exceeds one-half of the aggregate maximum term as so reduced, shall be deemed to be one-half of the aggregate maximum term as so reduced;

   (ii) Notwithstanding subparagraph (i) of this paragraph, the aggregate maximum term of consecutive sentences imposed for the conviction of two violent felony offenses committed prior to the time the person was imprisoned under any of such sentences and one of which is a class B violent felony offense, shall, if it exceeds forty years, be deemed to be forty years;

   (iii) Notwithstanding subparagraphs (i) and (ii) of this paragraph, the aggregate maximum term of consecutive sentences imposed for the conviction of three or more violent felony offenses committed prior to the time the person  was imprisoned under any of such sentences and one of which is a class B violent felony offense, shall, if it exceeds fifty years, be deemed to be fifty years;

(d) [Eff. until Sept. 1, 2009, pursuant to L.1995, c. 3, 74, subd. d. See, also, par. (d) below.] If the defendant is serving one or more indeterminate sentences of imprisonment and one or more determinate sentence of imprisonment which run consecutively, the minimum term or terms of the indeterminate sentence or sentences and the term or terms of the determinate sentence or sentences are added to arrive at an aggregate maximum term of imprisonment, provided, however, (i) that in no event shall the aggregate maximum so calculated be less than the term or maximum term of imprisonment of the sentence which has the longest unexpired time to run; and (ii) that the aggregate maximum term of imprisonment shall be subject to the limitations set forth in paragraphs (e) and (f) of this subdivision, where applicable.

(d) [Eff. Sept. 1, 2009. See, also, par. (d) above.] The aggregate maximum term of consecutive sentences imposed upon a juvenile offender for two or more crimes, not including a class A felony, committed before he has reached the age of sixteen, shall, if it exceeds ten years, be deemed to be ten years. If consecutive indeterminate sentences imposed upon a juvenile offender include a sentence for the class A felony of arson in the first degree or for the class A felony of kidnapping in the first degree, then the aggregate maximum term of such sentences shall, if it exceeds fifteen years, be deemed to be fifteen years. Where the aggregate maximum term of two or more consecutive sentences is reduced by a calculation made pursuant to this paragraph, the aggregate minimum period of imprisonment, if it exceeds one-half of the aggregate maximum term as so reduced, shall be deemed to be one-half of the aggregate maximum term as so reduced.

(e) [Formerly par. (c), redesignation and amendment eff. until Sept. 1, 2009, pursuant to L.1995, c. 3, 74, subd. d.] (i) Except as provided in subparagraph (ii), (iii), (iv), (v), (vi) or (vii) of this paragraph, the aggregate maximum term of consecutive sentences, all of which are indeterminate sentences or all of which are determinate sentences, imposed for two or more crimes, other than two or more crimes that include a class A felony, committed prior to the time the person was imprisoned under any of such sentences shall, if it exceeds twenty years, be deemed to be twenty years, unless one of the sentences was imposed for a class B felony, in which case the aggregate maximum term shall, if it exceeds thirty years, be deemed to be thirty years. Where the aggregate maximum term of two or more indeterminate consecutive sentences is reduced by calculation made pursuant to this paragraph, the aggregate minimum period of imprisonment, if it exceeds one-half of the aggregate maximum term as so reduced, shall be deemed to be one-half of the aggregate maximum term as so reduced;

   (ii) Where the aggregate maximum term of two or more consecutive sentences, one or more of which is a determinate sentence and one or more of which is an indeterminate sentence, imposed for two or more crimes, other than two or more crimes that include a class A felony, committed prior to the time the person was imprisoned under any of such sentences, exceeds twenty years, and none of the sentences was imposed for a class B felony, the following rules shall apply:

    (A) if the aggregate maximum term of the determinate sentence or sentences exceeds twenty years, the defendant shall be deemed to be serving to a determinate sentence of twenty years.

    (B) if the aggregate maximum term of the determinate sentence or sentences is less than twenty years, the defendant shall be deemed to be serving an indeterminate sentence the maximum term of which shall be deemed to be twenty years.  In such instances, the minimum sentence shall be deemed to be ten years or six-sevenths of the term or aggregate maximum term of the determinate sentence or sentences, whichever is greater.

   (iii) Where the aggregate maximum term of two or more consecutive sentences, one or more of which is a determinate sentence and one or more of which is an  indeterminate sentence, imposed for two or more crimes, other than two or more crimes that include a class A felony, committed prior to the time the person was imprisoned under any of such sentences, exceeds thirty years, and one of the sentences was imposed for a class B felony, the following rules shall apply:

    (A) if the aggregate maximum term of the determinate sentence or sentences exceeds thirty years, the defendant shall be deemed to be serving a determinate sentence of thirty years;

    (B) if the aggregate maximum term of the determinate sentence or sentences is less than thirty years, the defendant shall be deemed to be serving an indeterminate sentence the maximum term of which shall be deemed to be thirty years.  In such instances, the minimum sentence shall be deemed to be fifteen years or six-sevenths of the term or aggregate maximum term of the determinate sentence or sentences, whichever is greater.

   (iv) Notwithstanding subparagraph (i) of this paragraph, the aggregate maximum term of consecutive sentences, all of which are indeterminate sentences or all of which are determinate sentences, imposed for the conviction of two violent felony offenses committed prior to the time the person was imprisoned under any of such sentences and one of which is a class B violent felony offense, shall, if it exceeds forty years, be deemed to be  forty years;

   (v) Notwithstanding subparagraphs (ii) and (iii) of this paragraph, where the aggregate maximum term of two or more consecutive sentences, one or more of which is a determinate sentence and one or more of which is an indeterminate sentence, and where such sentences are imposed for the conviction of two violent felony offenses committed prior to the time the person was imprisoned under any such sentences and where one of which is a class B violent felony offense, the following rules shall apply:

    (A) if the aggregate maximum term of the determinate sentence or sentences exceeds forty years, the defendant shall be deemed to be serving a determinate sentence of forty years;

    (B) if the aggregate maximum term of the determinate sentence or sentences is less than forty years, the defendant shall be deemed to be serving an indeterminate sentence the maximum term of which shall be deemed to be forty years.  In such instances, the minimum sentence shall be deemed to be twenty years or six-sevenths of the term or aggregate maximum term of the determinate sentence or sentences, whichever is greater.

   (vi) Notwithstanding subparagraphs (i) and (iv) of this paragraph, the aggregate maximum term of consecutive sentences, all of which are indeterminate or all of which are determinate sentences, imposed for the  conviction of three or more violent felony offenses committed prior to the time the person was imprisoned under any of such sentences and one of which is a class B violent felony offense, shall, if it exceeds fifty years, be deemed to be fifty years;

   (vii) Notwithstanding subparagraphs (ii), (iii) and (v) of this paragraph, where the aggregate maximum term of two or more consecutive sentences, one or more of which is a determinate sentence and one or more of which is an indeterminate sentence, and where such sentences are imposed for the conviction of three or more violent felony offenses committed prior to the time the person was imprisoned under any such sentences and one of which is a class B violent felony offense, the following rules shall apply:

    (A) if the aggregate maximum term of the determinate sentence or sentences exceeds fifty years, the defendant shall be deemed to be serving a determinate sentence of fifty years.

    (B) if the aggregate maximum term of the determinate sentence or sentences is less than fifty years, the defendant shall be deemed to be serving an indeterminate sentence the maximum term of which shall be deemed to be fifty years.  In such instances, the minimum sentence shall be deemed to be twenty- five years or six-sevenths of the term or aggregate maximum term of the determinate sentence or sentences, whichever is greater.

   (viii) Notwithstanding any provision of this subdivision to the contrary where a person is serving two or more consecutive sentences, one or more of which is an indeterminate sentence and one or more of which is a determinate sentence, and if he would be eligible for a reduction provision pursuant to this subdivision if the maximum term or aggregate maximum term of the indeterminate sentence or sentences were added to the term or aggregate maximum term of the determinate sentence or sentences, the person shall be deemed to be eligible for the applicable reduction provision and the rules set forth in this subdivision shall apply.

  (f) [Formerly par. (d), redesignation eff. until Sept. 30, 2005.] The aggregate maximum term of consecutive sentences imposed upon a juvenile offender for two or more crimes, not including a class A felony, committed before he has reached the age of sixteen, shall, if it exceeds ten years, be deemed to be ten years.  If consecutive indeterminate sentences imposed upon a juvenile offender include a sentence for the class A felony of arson in the first degree or for the class A felony of kidnapping in the first degree, then the aggregate maximum term of such sentences shall, if it exceeds fifteen years, be deemed to be fifteen years.  Where the aggregate maximum term of two or more consecutive sentences is reduced by a calculation made pursuant to this paragraph, the aggregate minimum period of imprisonment, if it exceeds  one-half of the aggregate maximum term as so reduced, shall be deemed to be one-half of the aggregate maximum term as so reduced.

 2. Definite sentences.  A definite sentence of imprisonment commences when the prisoner is received in the institution named in the commitment.  Where a person is under more than one definite sentence, the sentences shall be calculated as follows:

  (a) If the sentences run concurrently and are to be served in a single institution, the terms merge in and are satisfied by discharge of the term which has the longest unexpired time to run;

  (b) If the sentences run consecutively and are to be served in a single institution, the terms are added to arrive at an aggregate term and are satisfied by discharge of such aggregate term, or by service of two years imprisonment plus any term imposed for an offense committed while the person is under the sentences, whichever is less;

  (c) If the sentences run concurrently and are to be served in more than one institution, the term of each such sentence shall be credited with the portion of any concurrent term served after that sentence was imposed;

  (d) If the sentences run consecutively and are to be served in more than one institution, the aggregate of the time served in all of the institutions shall not exceed two years plus any term imposed for an offense committed while the  person is under the sentences.

 2-a. Undischarged imprisonment in other jurisdiction.  Where a person who is subject to an undischarged term of imprisonment imposed at a previous time by a court of another jurisdiction is sentenced to an additional term or terms of imprisonment by a court of this state, to run concurrently with such undischarged term, such additional term or terms shall be deemed to commence when the said person is returned to the custody of the appropriate official of such other jurisdiction where the undischarged term of imprisonment is being served.  If the additional term or terms imposed shall run consecutively to the said undischarged term, such additional term or terms shall commence when the prisoner is received in the appropriate institution as provided in subdivisions one and two of this section.  The term or terms of such imprisonment shall be calculated and such other pertinent provisions of this section applied in the same manner as where a person is under more than one sentence in this state as provided in this section.

3. [Eff. Sept. 1, 2009. See, also, subd. 3 above.] Jail time. The term of a definite sentence or the maximum term of an indeterminate sentence imposed on a person shall be credited with and diminished by the amount of time the person spent in custody prior to the commencement of such sentence as a result of the charge that culminated in the sentence. In the case of an indeterminate sentence, if the minimum period of imprisonment has been fixed by the court or by the board of parole, the credit shall also be applied against the minimum period. The credit herein provided shall be calculated from the date custody under the charge commenced to the date the sentence commences and shall not include any time that is credited against the term or maximum term of any previously imposed sentence to which the person is subject. Where the charge or charges culminate in more than one sentence, the credit shall be applied as follows:

  (a) If the sentences run concurrently, the credit shall be applied against each such sentence;

  (b) If the sentences run consecutively, the credit shall be applied against the aggregate term or aggregate maximum term of the sentences and against the aggregate minimum period of imprisonment.

 In any case where a person has been in custody due to a charge that culminated in a dismissal or an acquittal, the amount of time that would have been credited against a sentence for such charge, had one been imposed, shall be credited against any sentence that is based on a charge for which a warrant or commitment was lodged during the pendency of such custody.

3. [Eff. Sept. 1, 2009. See, also, subd. 3 above.] Jail time. The term of a definite sentence or the maximum term of an indeterminate sentence imposed on a person shall be credited with and diminished by the amount of time the person spent in custody prior to the commencement of such sentence as a result of the charge that culminated in the sentence. In the case of an indeterminate sentence, if the minimum period of imprisonment has been fixed by the court or by the board of parole, the credit shall also be applied against the minimum period. The credit herein provided shall be calculated from the date custody under the charge commenced to the date the sentence commences and shall not include any time that is credited against the term or maximum term of any previously imposed sentence to which the person is subject. Where the charge or charges culminate in more than one sentence, the credit shall be applied as follows:

  (a) If the sentences run concurrently, the credit shall be applied against each such sentence;

  (b) If the sentences run consecutively, the credit shall be applied against the aggregate term or aggregate maximum term of the sentences and against the aggregate minimum period of imprisonment.

 In any case where a person has been in custody due to a charge that culminated in a dismissal or an acquittal, the amount of time that would have been credited against a sentence for such charge, had one been imposed, shall be credited against any sentence that is based on a charge for which a warrant or commitment was lodged during the pendency of such custody.

4. [Eff. until Sept. 1, 2009, pursuant to L.1995, c. 3, 74, subd. d. See, also, subd. 4 below.] Good behavior time. Time allowances earned for good behavior, pursuant to the provisions of the correction law, shall be computed and applied as follows:

  (a) In the case of a person serving an indeterminate or determinate sentence, the total of such allowances shall be calculated as provided in section eight hundred three of the correction law and the allowances shall be applied as provided in paragraph (b) of subdivision one of section ;

  (b) In the case of a person serving a definite sentence, the total of such allowances shall not exceed one-third of his term or aggregate term and the allowances shall be applied as a credit against such term.

4. [Eff. Sept. 1, 2009. See, also, subd. 4 above.] Good behavior time. Time allowances earned for good behavior, pursuant to the provisions of the correction law, shall be computed and applied as follows:

  (a) In the case of a person serving an indeterminate sentence, the total of such allowances shall not exceed one-third of his maximum or aggregate maximum term and the allowances shall be applied as provided in subdivision one (b) of section 70.40;

  (b) In the case of a person serving a definite sentence, the total of such  allowances shall not exceed one-third of his term or aggregate term and the allowances shall be applied as a credit against such term.

 5. Time served under vacated sentence.  When a sentence of imprisonment that has been imposed on a person is vacated and a new sentence is imposed on such person for the same offense, or for an offense based upon the same act, the new sentence shall be calculated as if it had commenced at the time the vacated sentence commenced, and all time credited against the vacated sentence shall be credited against the new sentence.  In any case where a vacated sentence also includes a period of post-release supervision, all time credited against the period of post-release supervision shall be credited against the period of post release supervision included with the new sentence.  In the event a period of post-release supervision is not included with the new sentence, such period shall be credited against the new sentence.

 6. Escape.  When a person who is serving a sentence of imprisonment escapes from custody, the escape shall interrupt the sentence and such interruption shall continue until the return of the person to the institution in which the sentence was being served or, if the sentence was being served in an institution under the jurisdiction of the state department of correctional services, to an institution under the jurisdiction of that department.  Any time spent by such person in custody from the date of escape to the date the sentence resumes shall be credited against the term or maximum term of the interrupted sentence, provided:

  (a) That such custody was due to an arrest or surrender based upon the escape;  or

  (b) That such custody arose from an arrest on another charge which culminated  in a dismissal or an acquittal;  or

  (c) That such custody arose from an arrest on another charge which culminated in a conviction, but in such case, if a sentence of imprisonment was imposed, the credit allowed shall be limited to the portion of the time spent in custody that exceeds the period, term or maximum term of imprisonment imposed for such conviction.

7. [Eff. until Sept. 1, 2007, pursuant to L.1972, c. 339, 10.] Absconding from temporary release or furlough program. When a person who is serving a sentence of imprisonment is permitted to leave an institution to participate in a program of work release or furlough program as such term is defined in section six hundred thirty-one of the correction law, or in the case of an institution under the jurisdiction of the state department of correctional services or a facility under the jurisdiction of the state division for youth to participate in a program of temporary release, fails to return to the institution or facility at or before the time prescribed for his return, such failure shall interrupt the sentence and such interruption shall continue until the return of the person to the institution in which the sentence was being served or, if the sentence was being served in an institution under the jurisdiction of the state department of correctional services or a facility under the jurisdiction of the state division for youth to an institution under the jurisdiction of that department or a facility under the jurisdiction of that division. Any time spent by such person in an institution from the date of his failure to return to the date his sentence resumes shall be credited against the term or maximum term of the interrupted sentence, provided:

  (a) That such incarceration was due to an arrest or surrender based upon the failure to return;  or

  (b) That such incarceration arose from an arrest on another charge which culminated in a dismissal or an acquittal;  or

  (c) That such custody arose from an arrest on another charge which culminated in a conviction, but in such case, if a sentence of imprisonment was imposed, the credit allowed shall be limited to the portion of the time spent in custody that exceeds the period, term or maximum term of imprisonment imposed for such conviction.
 

Section 70.35 Merger of certain definite and indeterminate or determinate sentences [Eff. until Sept. 30, 2005, as amended by L.1995, c. 3.  See, also, Section 70.35 post.]

 The service of an indeterminate or determinate sentence of imprisonment shall satisfy any definite sentence of imprisonment imposed on a person for an offense committed prior to the time the indeterminate or determinate sentence was imposed, except as provided in paragraph (b) of subdivision five of section 70.25 of this article.  A person who is serving a definite sentence at the time an indeterminate or determinate sentence is imposed shall be delivered to the custody of the state department of correctional services to commence service of the indeterminate or determinate sentence immediately unless the person is serving a definite sentence pursuant to paragraph (b) of subdivision five of section 70.25 of this article.  In any case where the indeterminate or determinate sentence is revoked or vacated, the person shall receive credit against the definite sentence for each day spent in the custody of the state department of correctional services.
 

Section 70.35 Merger of certain definite and indeterminate sentences [Eff. Sept. 30, 2005.  See, also, Section 70.35 ante.]

 The service of an indeterminate sentence of imprisonment shall satisfy any definite sentence of imprisonment imposed on a person for an offense committed prior to the time the indeterminate sentence was imposed, except as provided in paragraph (b) of subdivision five of section 70.25 of this article.  A person who is serving a definite sentence at the time an indeterminate sentence is imposed shall be delivered to the custody of the state department of correctional services to commence service of the indeterminate sentence immediately unless the person is serving a definite sentence pursuant to paragraph (b) of subdivision five of section 70.25 of this article.  In any case where the indeterminate sentence is revoked or vacated, the person shall receive credit against the definite sentence for each day spent in the custody of the state department of correctional services.
 

Section 70.40 Release on parole;  conditional release; presumptive release.

 1. Indeterminate sentence.

(a) [Eff. until Sept. 1, 2009, pursuant to L.1995, c. 3, 74, subd. d and L.1992, c. 55, 427(r). See, also, par. (a) below.] Release on parole shall be in the discretion of the state board of parole, and such person shall continue service of his sentence or sentences while on parole, in accordance with and subject to the provisions of the executive law.

(i) [Eff. until Sept. 1, 2007, pursuant to L.1997, c. 435, 76, subd. 6, par. a. See, also, subpar. (i) below.] A person who is serving one or more than one indeterminate sentence of imprisonment may be paroled from the institution in which he is confined at any time after the expiration of the minimum or the aggregate minimum period of the sentence or sentences or, where applicable, the minimum or aggregate minimum period reduced by the merit time allowance granted pursuant to paragraph (d) of subdivision one of
section eight hundred three of the correction law.

(i) [Eff. Sept. 1, 2007. See, also, subpar. (i) above.] A person who is serving one or more than one indeterminate sentence of imprisonment may be paroled from the institution in which he is confined at any time after the expiration of the minimum or the aggregate minimum period of the sentence or sentences.

   (ii) A person who is serving one or more than one determinate sentence of imprisonment shall be ineligible for discretionary release on parole.

   (iii) A person who is serving one or more than one indeterminate sentence of imprisonment and one or more than one determinate sentence of imprisonment which run concurrently may be paroled at any time after the expiration of the minimum period of imprisonment of the indeterminate sentence or sentences, or upon the expiration of six-sevenths of the term of imprisonment of the determinate sentence or sentences, whichever is later.

   (iv) A person who is serving one or more than one indeterminate sentence of imprisonment and one or more than one determinate sentence of imprisonment which run consecutively may be paroled at any time after the expiration of the sum of the minimum or aggregate minimum period of the indeterminate sentence or sentences and six-sevenths of the term or aggregate term of imprisonment of the determinate sentence or sentences.

   (v) Notwithstanding any other subparagraph of this paragraph, a person may be paroled from the institution in which he is confined at any time on medical parole pursuant to section two hundred fifty-nine-r of the executive law or for deportation pursuant to paragraph (d) of subdivision two of section two hundred fifty-nine-i of the executive law or after the successful completion of a shock incarceration program pursuant to article twenty-six-A of the correction law.

(a) [Eff. Sept. 1, 2009, pursuant to L.1995, c. 3, 74, subd. d and L.1992, c. 55, 427(r). See, also, par. (a) above.] A person who is serving one or more than one indeterminate sentence of imprisonment may be paroled from the institution in which he is confined at any time after the expiration of the minimum or the aggregate minimum period of imprisonment of the sentence or sentences or after the successful completion of a shock incarceration program, as defined in article twenty-six-A of the correction law, whichever is sooner. Release on parole shall be in the discretion of the state board of parole, and such person shall continue service of his sentence or sentences while on parole, in accordance with and subject to the provisions of the executive law.

(b) [Eff. until Sept. 1, 2009. See, also, par. (b) below.] A person who is serving one or more than one indeterminate or determinate sentence of imprisonment shall, if he so requests, be conditionally released from the institution in which he is confined when the total good behavior time allowed to him, pursuant to the provisions of the correction law, is equal to the unserved portion of his term, maximum term or aggregate maximum term; provided, however, that (i) in no event shall a person serving one or more indeterminate sentence of imprisonment and one or more determinate sentence of imprisonment which run concurrently be conditionally released until serving at least six-sevenths of the determinate term of imprisonment which has the longest unexpired time to run and (ii) in no event shall a person be conditionally released prior to the date on which such person is first eligible for discretionary parole release. The conditions of release, including those governing post-release supervision, shall be such as may be imposed by the state board of parole in accordance with the provisions of the executive law.

 The conditions of release, including those governing post-release supervision, shall be such as may be imposed by the state board of parole in accordance with the provisions of the executive law.

 Every person so released shall be under the supervision of the state board of parole for a period equal to the unserved portion of the term, maximum term, aggregate maximum term, or period of post-release supervision.

(b) [Eff. Sept. 1, 2009. See, also, par. (b) above.] A person who is serving one or more than one indeterminate sentence of imprisonment shall, if he so requests, be conditionally released from the institution in which he is confined when the total good behavior time allowed to him, pursuant to the provisions of the correction law, is equal to the unserved portion of his maximum or aggregate maximum term. The conditions of release, including those governing post-release supervision, shall be such as may be imposed by the state board of parole in accordance with the provisions of the executive law.

 Every person so released shall be under the supervision of the state board of parole for a period equal to the unserved portion of the maximum or aggregate maximum term.

(c) [Expires and deemed repealed Sept. 1, 2007, pursuant to L.1997, c. 435, 76, subd. 6.] A person who is serving one or more than one indeterminate sentence of imprisonment shall, if he or she so requests, be released from the institution in which he or she is confined if granted presumptive release pursuant to section eight hundred six of the correction law. The conditions of release shall be such as may be imposed by the state board of parole in accordance with the provisions of the executive law. Every person so released shall be under the supervision of the state board of parole for a period equal to the unserved portion of his or her maximum or aggregate maximum term unless discharged in accordance with law.

2. [Eff. until Sept. 1, 2005, pursuant to L.1989, c. 79, 7. See, also, subd. 2 below.] Definite sentence. A person who is serving one or more than one definite sentence of imprisonment with a term or aggregate term in excess of ninety days may, if he so requests, be conditionally released from the institution in which he is confined at any time after service of sixty days of that term, exclusive of credits allowed under subdivisions four and six of section 70.30. In computing service of sixty days, the credit allowed for jail time under subdivision three of section 70.30 shall be calculated as time served. Conditional release from such institution shall be in the discretion of the local conditional release commission, and shall be upon such conditions as may be imposed by that commission, in accordance with the provisions of the correction law.

Conditional release from such institution shall be in the discretion of the local conditional release commission, and shall be upon such conditions as may be imposed by that commission, in accordance with the provisions of the correction law. Conditional release shall interrupt service of the sentence or sentences and the remaining portion of the term or aggregate term shall be held in abeyance. Every person so released shall be under the supervision of a local probation department and in the custody of the local conditional release commission in accordance with article twelve of the correction law for a period of one year. The local probation department shall cause complete records to be kept of every person released to its supervision pursuant to this subdivision. The division of parole may supply to a local probation department and the local condition release commission custody information and records maintained on persons under the supervision of such local probation department to aid in the performance of its supervision responsibilities. Compliance with the conditions of release during the period of supervision shall satisfy the portion of the term or aggregate term that has been held in abeyance.

2. [Effective Sep. 1, 2005] Definite sentence. A person who is serving one or more than one definite sentence of imprisonment with a term or aggregate term in excess of ninety days may, if he so requests, be conditionally released from the institution in which he is confined at any time after service of sixty days of that term, exclusive of credits allowed under subdivisions four and six of section 70.30. In computing service of sixty days, the credit allowed for jail time under subdivision three of section 70.30 shall be calculated as time served. 

Conditional release from such institution shall be in the discretion of the parole board, and shall be upon such conditions as may be imposed by that board, in accordance with the provisions of the executive law. Conditional release shall interrupt service of the sentence or sentences and the remaining portion of the term or aggregate term shall be held in abeyance. Every person so released shall be under the supervision of the parole board for a period of one year. Compliance with the conditions of release during the period of supervision shall satisfy the portion of the term or aggregate term that has been held in abeyance.

 3. Delinquency.

  (a) When a person is alleged to have violated the terms of presumptive release or parole and the state board of parole has declared such person to be delinquent, the declaration of delinquency shall interrupt the person`s sentence as of the date of the delinquency and such interruption shall continue until the return of the person to an institution under the jurisdiction of the state department of correctional services.

  (b) [Eff. until Sept. 1, 2005] When a person is alleged to have violated the terms of his conditional release or post-release supervision and has been declared delinquent by the board having supervision over such person or the local conditional release commission, the declaration of delinquency shall interrupt the period of supervision or post-release supervision as of the date of the delinquency. For a conditional releasee, such interruption shall continue until the return of the person to the local correctional facility located in the jurisdiction of the commission having custody of such person or, if he was released from an institution under the jurisdiction of the state department of correctional services, to an institution under the jurisdiction of that department. Upon such return, the person shall resume service of his sentence. For a person released to post-release supervision, the provisions of section 70.45 shall apply. 

  (b) [Eff. Sept. 1, 2005] When a person is alleged to have violated the terms of his conditional release or post-release supervision and has been declared delinquent by the board or commission having supervision over him, the declaration of delinquency shall interrupt the period of supervision or post-release supervision as of the date of the delinquency. For a conditional release, such interruption shall continue until the return of the person to the institution from which he was released or, if he was released from an institution under the jurisdiction of the state department of correction, to an institution under the jurisdiction of that department. Upon such return, the person shall resume service of his sentence. For a person released to post-release supervision, the provisions of section 70.45 shall apply.

  (c) Any time spent by a person in custody from the time of delinquency to the time service of the sentence resumes shall be credited against the term or maximum term of the interrupted sentence, provided:

   (i) that such custody was due to an arrest or surrender based upon the delinquency;  or

   (ii) that such custody arose from an arrest on another charge which culminated in a dismissal or an acquittal;  or

   (iii) that such custody arose from an arrest on another charge which culminated in a conviction, but in such case, if a sentence of imprisonment was imposed, the credit allowed shall be limited to the portion of the time spent in custody that exceeds the period, term or maximum term of imprisonment imposed for such conviction.
 

Section 70.45  Determinate sentence; post-release supervision

 1. In general, Each determinate sentence also includes, as part thereof, an additional period of post-release supervision.  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 of at least six months and up to the balance of the remaining period of post-release supervision, not to exceed five years.  Such maximum limits shall preclude a longer period of further imprisonment for a violation where the defendant is subject to indeterminate and determinate sentences.

 2. Period of post-release supervision. The period of post-release supervision for a determinate sentence shall be five years, except that such period shall be three years whenever a determinate sentence of imprisonment is imposed pursuant to section 70.02 of this article upon a conviction for a class D or class E violent felony offense; provided, however, that when a determinate sentence is imposed pursuant to section 70.02 of this article, the court at the time of sentence, may specify a shorter period of post-release supervision of not less than two and  one-half years upon a conviction for a class B or class C violent felony offense and a shorter period of post-release supervision of not less than one and one-half years upon a conviction for a class D or class E violent felony offense.

 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 division of parole 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 correctional services, 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 division of parole 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 and the division of parole 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 correctional services, any time spent in custody from the date of delinquency until restoration to post-release supervision shall be first 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 correctional services, the person shall be required to serve a time assessment of at least six months before being re-released to post-release supervision.  In the event the balance of the remaining period of post-release supervision is six months or less, such time assessment shall be six months unless a longer period is authorized pursuant to subdivision one of this section.  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 correctional services 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 correctional services.  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 correctional services 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 correctional services 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 correctional services.  Such period of post release supervision shall resume running upon the person’s re-release.
 


ARTICLE 80--FINES

Section 80.00 Fine for felony

 1. A sentence to pay a fine for a felony shall be a sentence to pay an amount, fixed by the court, not exceeding the higher of

  a. five thousand dollars;  or

  b. double the amount of the defendant's gain from the commission of the crime;  or

  c. if the conviction is for any felony defined in article two hundred twenty or two hundred twenty-one of this chapter, according to the following schedule:

   (i) for A-I felonies, one hundred thousand dollars;

   (ii) for A-II felonies, fifty thousand dollars;

   (iii) for B felonies, thirty thousand dollars;

   (iv) for C felonies, fifteen thousand dollars.

  When imposing a fine pursuant to the provisions of this paragraph, the court shall consider the profit gained by defendant's conduct, whether the amount of the fine is disproportionate to the conduct in which defendant engaged, its impact on any victims, and defendant's economic circumstances, including the defendant's ability to pay, the effect of the fine upon his or her immediate family or any other persons to whom the defendant owes an obligation of support.

 2. As used in this section the term "gain" means the amount of money or the value of property derived from the commission of the crime, less the amount of money or the value of property returned to the victim of the crime or seized by or surrendered to lawful authority prior to the time sentence is imposed.

 3. When the court imposes a fine for a felony pursuant to paragraph b of subdivision one of this section, the court shall make a finding as to the amount of the defendant's gain from the crime.  If the record does not contain sufficient evidence to support such a finding or to permit adequate consideration of the matters specified in paragraph c of subdivision one of this section, the court may conduct a hearing upon such issues.

 4. Exception.  The provisions of this section shall not apply to a corporation.

 5. All moneys in excess of five thousand dollars received or collected in payment of a fine imposed pursuant to paragraph c of subdivision one of this section are the property of the state and the state comptroller shall deposit all such fines to the rehabilitative alcohol and substance treatment fund established pursuant to section ninety-seven-cc of the state finance law.

 6. Notwithstanding any inconsistent provision of subdivision one of this section a sentence to pay a fine for a felony set forth in the vehicle and traffic law shall be a sentence to pay an amount fixed by the court in accordance with the provisions of the law that defines the crime.

 7. When the court imposes a fine pursuant to section 145.22 or 145.23 of this chapter, the court shall direct that no less than ten percent of such fine be credited to the state cemetery vandalism restoration and administration fund created pursuant to section ninety-seven-r of the state finance law.
 

Section 80.05 Fines for misdemeanors and violation

 1. Class A misdemeanor.  A sentence to pay a fine for a class A misdemeanor shall be a sentence to pay an amount, fixed by the court, not exceeding one thousand dollars, provided, however, that a sentence imposed for a violation of section 215.80 of this chapter may include a fine in an amount equivalent to double the value of the property unlawfully disposed of in the commission of the crime.

 2. Class B misdemeanor.  A sentence to pay a fine for a class B misdemeanor shall be a sentence to pay an amount, fixed by the court, not exceeding five hundred dollars.

 3. Unclassified misdemeanor.  A sentence to pay a fine for an unclassified misdemeanor shall be a sentence to pay an amount, fixed by the court, in accordance with the provisions of the law or ordinance that defines the crime.

 4. Violation.  A sentence to pay a fine for a violation shall be a sentence to pay an amount, fixed by the court, not exceeding two hundred fifty dollars.

 In the case of a violation defined outside this chapter, if the amount of the fine is expressly specified in the law or ordinance that defines the offense, the amount of the fine shall be fixed in accordance with that law or ordinance.

 5. Alternative sentence.  If a person has gained money or property through the commission of any misdemeanor or violation then upon conviction thereof, the court, in lieu of imposing the fine authorized for the offense under one of the above subdivisions, may sentence the defendant to pay an amount, fixed by the court, not exceeding double the amount of the defendant's gain from the commission of the offense; provided, however, that the amount fixed by the court pursuant to this subdivision upon a conviction under section 11-1904 of the environmental conservation law shall not exceed five thousand dollars.   In such event the provisions of subdivisions two and three of section 80.00 shall be applicable to the sentence.

 6. Exception.  The provisions of this section shall not apply to a corporation.
 

Section 80.10 Fines for corporations

 1. In general.  A sentence to pay a fine, when imposed on a corporation for an offense defined in this chapter or for an offense defined outside this chapter for which no special corporate fine is specified, shall be a sentence to pay an amount, fixed by the court, not exceeding:

  (a) Ten thousand dollars, when the conviction is of a felony;

  (b) Five thousand dollars, when the conviction is of a class A misdemeanor or of an unclassified misdemeanor for which a term of imprisonment in excess of three months is authorized;

  (c) Two thousand dollars, when the conviction is of a class B misdemeanor or of an unclassified misdemeanor for which the authorized term of imprisonment is not in excess of three months;

  (d) Five hundred dollars, when the conviction is of a violation;

  (e) Any higher amount not exceeding double the amount of the corporation's gain from the commission of the offense.

 2. Exception.  In the case of an offense defined outside this chapter, if a special fine for a corporation is expressly specified in the law or ordinance that defines the offense, the fine fixed by the court shall be as follows:

  (a) An amount within the limits specified in the law or ordinance that defines the offense;  or

  (b) Any higher amount not exceeding double the amount of the corporation's gain from the commission of the offense.

 3. Determination of amount or value.  When the court imposes the fine authorized by paragraph (e) of subdivision one or paragraph (b) of subdivision two for any offense the provisions of subdivision three of section 80.00 shall be applicable to the sentence.
 

Section 80.15 Multiple offenses

 Where a person is convicted of two or more offenses committed through a single act or omission, or through an act or omission which in itself constituted one of the offenses and also was a material element of the other, and the court imposes a sentence of imprisonment or a fine or both for one of the offenses, a fine shall not be imposed for the other.  The provisions of this section shall not apply to any offense or offenses set forth in the vehicle and traffic law.


ARTICLE 85--SENTENCE OF INTERMITTENT IMPRISONMENT

Section 85.00 Sentence of intermittent imprisonment

 1. Definition.  A sentence of intermittent imprisonment is a revocable sentence of imprisonment to be served on days or during certain periods of days, or both, specified by the court as part of the sentence.  A person who receives a sentence of intermittent imprisonment shall be incarcerated in the institution to which he is committed at such times as are specified by the court in the sentence.

 2. Authorization for use of sentence.  The court may impose a sentence of intermittent imprisonment in any case where:

  (a) the court is imposing sentence, upon a person other than a second or persistent felony offender, for a class D or class E felony or for any offense that is not a felony;  and

  (b) the court is not imposing any other sentence of imprisonment upon the defendant at the same time;  and

  (c) the defendant is not under any other sentence of imprisonment with a term in excess of fifteen days imposed by any other court;  and

  [(d) Repealed]

 3. Duration of sentence.  A sentence of intermittent imprisonment may be for any term that could be imposed as a definite sentence of imprisonment for the offense for which such sentence is imposed.  The term of the sentence shall commence on the day it is imposed and shall be calculated upon the basis of the duration of its term, rather than upon the basis of the days spent in confinement, so that no person shall be subject to any such sentence for a period that is longer than a period that commences on the date the sentence is imposed and ends on the date the term of the longest definite sentence for the offense would have expired, after deducting the credit that would have been applicable to a definite sentence for jail time but without regard to any credit authorized to be allowed against the term of a definite sentence for good behavior.  The provisions of section five hundred-l of the correction law shall not be applicable to a sentence of intermittent imprisonment.

 4. Imposition of sentence.  (a) When the court imposes a sentence of intermittent imprisonment the court shall specify in the sentence:

   (i) that the court is imposing a sentence of intermittent imprisonment;

   (ii) the term of such sentence;

   (iii) the days or parts of days on which the sentence is to be served, but except as provided in paragraph (iv) hereof such specification need not include the dates on which such days fall;  and

   (iv) the first and last dates on which the defendant is to be incarcerated under the sentence.

  (b) The court, in its discretion, may specify any day or days or parts thereof on which the defendant shall be confined and may specify a period to commence at the commencement of the sentence and not to exceed fifteen days during which the defendant is to be continuously confined.
 

Section 85.05 Modification and revocation of sentences of intermittent imprisonment

 1. Authorization.  A sentence of intermittent imprisonment may be modified by the court in its discretion upon application of the defendant;  and the court on its own motion may modify or revoke any such sentence if:

  (a) the court is satisfied during the term of the sentence that the defendant has committed another offense during such term;

  (b) the defendant has failed to report to the institution to which he has been committed, or to the institution designated by the head of the agency to  which he has been committed, on a day or dates specified in the commitment and is unable or unwilling to furnish a reasonable and acceptable explanation for such failure;  or

  (c) the defendant has violated a rule or regulation of the institution or agency to which he has been committed and the head of such institution or agency or someone delegated by him has reported such violation in writing to the court.

 2. Interruption of sentence.  In any case where the defendant fails to report to the institution or to an institution of the agency to which he has been committed, the term of the sentence shall be interrupted and such interruption shall continue until the defendant either reports to such institution or appears before the court that imposed the sentence, whichever occurs first.  If the defendant reports to the institution before he appears before the court, he shall be brought before the court.

 3. Action by court.  The court shall not modify or revoke a sentence of intermittent imprisonment unless the defendant has been afforded an opportunity to be heard.  Any modification of a sentence of intermittent imprisonment:

  (a) may provide (i) for different or additional or fewer days or parts of days on which the defendant is to be confined, or (ii) where the defendant has failed to report as specified in the sentence, an extension of the term of the  sentence for the period during which it was interrupted, or (iii) for both;  and

  (b) shall be by written order of the court and shall be delivered and filed in the same manner as the original sentence, as specified in subdivision two of section 85.10 of this article.

 4. Jail time.  Where a sentence of intermittent imprisonment is revoked and a sentence of imprisonment is imposed in its place for the same offense, time spent in confinement under the sentence of intermittent imprisonment shall be calculated as jail time under subdivision three of section 70.30 of this chapter and shall be added to any jail time accrued against such sentence prior to imposition thereof.
 

Section 85.10 Commitment;  notifications;  warrants

 1. Commitment.  Commitment under a sentence of intermittent imprisonment and execution of the judgment shall be in accordance with the procedure applicable to a definite sentence of imprisonment, except that:  (a) detention of the defendant under the judgment shall be executed during the time specified in the sentence;  and (b) the court may provide that the defendant is to report to a specified institution on a specified date at a specified time to commence service of the sentence and in such case the defendant need not be taken into or retained in custody when sentence is imposed.

 2. Notifications.  A written copy of the sentence imposed by the court signed by the judge who imposed the sentence shall be delivered to the defendant and shall be annexed to the commitment and to each copy of the commitment required to be delivered or filed.  When the defendant is not taken into or retained in custody at the time sentence is imposed, the commitment and copy of the sentence shall forthwith be delivered to the person whose duty it is to execute the judgment.  If at any time the defendant fails to report for confinement as provided in the sentence the officer in charge of the institution or department to which such commitment is made or someone designated by such officer shall forthwith notify the court in writing of such failure to report.

 3. Warrants.  Upon receipt of any such notification the court may issue a warrant to an appropriate police officer or peace officer directing him to take the defendant into custody and bring him before the court.  The court may then commit such person to custody or fix bail or release him on his own recognizance for future appearance before the court.
 

Section 85.15 Subsequent sentences

1. [Eff. until Sept. 1, 2009, pursuant to L.1995, c. 3, 74, subd. d. See, also, subd. 1 below.] Indeterminate and determinate sentences. The service of an indeterminate or a determinate sentence of imprisonment shall satisfy any sentence of intermittent imprisonment imposed on a person for an offense committed prior to the time the indeterminate or determinate sentence was imposed. A person who is serving a sentence of intermittent imprisonment at the time an indeterminate or a determinate sentence of imprisonment is imposed shall be delivered to the custody of the state department of correctional services to commence service of the indeterminate or determinate sentence immediately.

1. [Eff. Sept. 1, 2009. See, also, subd. 1 above.] Indeterminate and reformatory sentences. The service of an indeterminate or a reformatory sentence of imprisonment shall satisfy any sentence of intermittent imprisonment imposed on a person for an offense committed prior to the time the indeterminate or reformatory sentence was imposed. A person who is serving a sentence of intermittent imprisonment at the time an indeterminate or a reformatory sentence of imprisonment is imposed shall be delivered to the custody of the state department of correction to commence service of the indeterminate or reformatory sentence immediately.

 2. Definite sentences.  If a definite sentence of imprisonment is imposed on a person who is under a previously imposed sentence of intermittent imprisonment, such person shall commence service of the definite sentence immediately.  Where such definite sentence is for a term in excess of thirty days, the service of such sentence shall satisfy the sentence of intermittent imprisonment unless the sentence of intermittent imprisonment is revoked, or a warrant is issued pursuant to subdivision three of section 85.10 of this article and prior to satisfaction of, or conditional release under, such definite sentence of imprisonment.



PART THREE--SPECIFIC OFFENSES
TITLE G--ANTICIPATORY OFFENSES
ARTICLE 100--CRIMINAL SOLICITATION

Section 100.00 Criminal solicitation in the fifth degree

 A person is guilty of criminal solicitation in the fifth degree when, with intent that another person engage in conduct constituting a crime, he solicits, requests, commands, importunes or otherwise attempts to cause such other person to engage in such conduct.

 Criminal solicitation in the fifth degree is a violation.
 

Section 100.05 Criminal solicitation in the fourth degree

 A person is guilty of criminal solicitation in the fourth degree when:

 1. with intent that another person engage in conduct constituting a felony, he solicits, requests, commands, importunes or otherwise attempts to cause such other person to engage in such conduct;  or

 2. being over eighteen years of age, with intent that another person under sixteen years of age engage in conduct that would constitute a crime, he solicits, requests, commands, importunes or otherwise attempts to cause such other person to engage in such conduct.

 Criminal solicitation in the fourth degree is a class A misdemeanor.
 

Section 100.08 Criminal solicitation in the third degree

 A person is guilty of criminal solicitation in the third degree when, being over eighteen years of age, with intent that another person under sixteen years of age engage in conduct that would constitute a felony, he solicits, requests, commands, importunes or otherwise attempts to cause such other person to engage in such conduct.

 Criminal solicitation in the third degree is a class E felony.
 

Section 100.10 Criminal solicitation in the second degree

 A person is guilty of criminal solicitation in the second degree when, with intent that another person engage in conduct constituting a class A felony, he solicits, requests, commands, importunes or otherwise attempts to cause such other person to engage in such conduct.

 Criminal solicitation in the second degree is a class D felony.
 

Section 100.13 Criminal solicitation in the first degree

 A person is guilty of criminal solicitation in the first degree when, being over eighteen years of age, with intent that another person under sixteen years of age engage in conduct that would constitute a class A felony, he solicits, requests, commands, importunes or otherwise attempts to cause such other person to engage in such conduct.

 Criminal solicitation in the first degree is a class C felony.
 

Section 100.15 Criminal solicitation;  no defense

 It is no defense to a prosecution for criminal solicitation that the person solicited could not be guilty of the crime solicited owing to criminal irresponsibility or other legal incapacity or exemption, or to unawareness of the criminal nature of the conduct solicited or of the defendant's criminal purpose or to other factors precluding the mental state required for the commission of the crime in question.
 

Section 100.20 Criminal solicitation;  exemption

 A person is not guilty of criminal solicitation when his solicitation constitutes conduct of a kind that is necessarily incidental to the commission of the crime solicited.  When under such circumstances the solicitation constitutes an offense other than criminal solicitation which is related to but separate from the crime solicited, the actor is guilty of such related and separate offense only and not of criminal solicitation.


ARTICLE 105--CONSPIRACY

Section 105.00 Conspiracy in the sixth degree

 A person is guilty of conspiracy in the sixth degree when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct.

 Conspiracy in the sixth degree is a class B misdemeanor.
 

Section 105.05 Conspiracy in the fifth degree

 A person is guilty of conspiracy in the fifth degree when, with intent that conduct constituting:

 1. a felony be performed, he agrees with one or more persons to engage in or cause the performance of such conduct;  or

 2. a crime be performed, he, being over eighteen years of age, agrees with one or more persons under sixteen years of age to engage in or cause the performance of such conduct.

 Conspiracy in the fifth degree is a class A misdemeanor.
 

Section 105.10 Conspiracy in the fourth degree

 A person is guilty of conspiracy in the fourth degree when, with intent that conduct constituting:

 1. a class B or class C felony be performed, he or she agrees with one or more persons to engage in or cause the performance of such conduct;  or

 2. a felony be performed, he or she, being over eighteen years of age, agrees with one or more persons under sixteen years of age to engage in or cause the performance of such conduct; or

3. the felony of money laundering in the third degree as defined in section 470.10 of this chapter, be performed, he or she agrees with one or more persons to engage in or cause the performance of such conduct.

 Conspiracy in the fourth degree is a class E felony.
 

Section 105.13 Conspiracy in the third degree

 A person is guilty of conspiracy in the third degree when, with intent that conduct constituting a class B or a class C felony be performed, he, being over eighteen years of age, agrees with one or more persons under sixteen years of age to engage in or cause the performance of such conduct.

 Conspiracy in the third degree is a class D felony.
 

Section 105.15 Conspiracy in the second degree

 A person is guilty of conspiracy in the second degree when, with intent that conduct constituting a class A felony be performed, he agrees with one or more persons to engage in or cause the performance of such conduct.

 Conspiracy in the second degree is a class B felony.
 

Section 105.17 Conspiracy in the first degree

 A person is guilty of conspiracy in the first degree when, with intent that conduct constituting a class A felony be performed, he, being over eighteen years of age, agrees with one or more persons under sixteen years of age to engage in or cause the performance of such conduct.

 Conspiracy in the first degree is a class A-I felony.
 

Section 105.20 Conspiracy;  pleading and proof;  necessity of overt act

 A person shall not be convicted of conspiracy unless an overt act is alleged and proved to have been committed by one of the conspirators in furtherance of the conspiracy.
 

Section 105.25 Conspiracy;  jurisdiction and venue

 1. A person may be prosecuted for conspiracy in the county in which he entered into such conspiracy or in any county in which an overt act in furtherance thereof was committed.

 2. An agreement made within this state to engage in or cause the performance of conduct in another jurisdiction is punishable herein as a conspiracy only when such conduct would constitute a crime both under the laws of this state if performed herein and under the laws of the other jurisdiction if performed therein.

 3. An agreement made in another jurisdiction to engage in or cause the performance of conduct within this state, which would constitute a crime herein, is punishable herein only when an overt act in furtherance of such conspiracy is committed within this state.  Under such circumstances, it is no defense to a prosecution for conspiracy that the conduct which is the objective of the conspiracy would not constitute a crime under the laws of the other jurisdiction if performed therein.
 

Section 105.30 Conspiracy;  no defense

 It is no defense to a prosecution for conspiracy that, owing to criminal irresponsibility or other legal incapacity or exemption, or to unawareness of the criminal nature of the agreement or the object conduct or of the defendant's criminal purpose or to other factors precluding the mental state required for the commission of conspiracy or the object crime, one or more of the defendant's co-conspirators could not be guilty of conspiracy or the object crime.
 

Section 105.35 Conspiracy;  enterprise corruption:  applicability

 For purposes of this article, conspiracy to commit the crime of enterprise corruption in violation of section 460.20 of this chapter shall not constitute an offense.


ARTICLE 110--ATTEMPT

Section 110.00 Attempt to commit a crime

 A person is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime.
 

Section 110.05 Attempt to commit a crime;  punishment

An attempt to commit a crime is a:

1. Class A-I felony when the crime attempted is the A-I felony of murder in the first degree, criminal possession of a controlled substance in the first degree, criminal sale of a controlled substance in the first degree, criminal possession of a chemical or biological weapon in the first degree or criminal use of a chemical or biological weapon in the first degree;

2. Class A-II felony when the crime attempted is a class A-II felony;

3. Class B felony when the crime attempted is a class A-I felony except as provided in subdivision one hereof;

4. Class C felony when the crime attempted is a class B felony;

5. Class D felony when the crime attempted is a class C felony;

6. Class E felony when the crime attempted is a class D felony;

7. Class A misdemeanor when the crime attempted is a class E felony;

8. Class B misdemeanor when the crime attempted is a misdemeanor.

Section 110.10 Attempt to commit a crime;  no defense

 If the conduct in which a person engages otherwise constitutes an attempt to commit a crime pursuant to section 110.00, it is no defense to a prosecution for such attempt that the crime charged to have been attempted was, under the attendant circumstances, factually or legally impossible of commission, if such crime could have been committed had the attendant circumstances been as such person believed them to be.


ARTICLE 115--CRIMINAL FACILITATION

Section 115.00 Criminal facilitation in the fourth degree

 A person is guilty of criminal facilitation in the fourth degree when, believing it probable that he is rendering aid:

 1. to a person who intends to commit a crime, he engages in conduct which provides such person with means or opportunity for the commission thereof and which in fact aids such person to commit a felony;  or

 2. to a person under sixteen years of age who intends to engage in conduct which would constitute a crime, he, being over eighteen years of age, engages in conduct which provides such person with means or opportunity for the commission thereof and which in fact aids such person to commit a crime.

 Criminal facilitation in the fourth degree is a class A misdemeanor.
 

Section 115.01 Criminal facilitation in the third degree

 A person guilty of criminal facilitation in the third degree, when believing it probable that he is rendering aid to a person under sixteen years of age who intends to engage in conduct that would constitute a felony, he, being over eighteen years of age, engages in conduct which provides such person with means or opportunity for the commission thereof and which in fact aids such person to commit a felony.

 Criminal facilitation in the third degree is a class E felony.
 

Section 115.05 Criminal facilitation in the second degree

 A person is guilty of criminal facilitation in the second degree when, believing it probable that he is rendering aid to a person who intends to commit a class A felony, he engages in conduct which provides such person with means or opportunity for the commission thereof and which in fact aids such person to commit such class A felony.

 Criminal facilitation in the second degree is a class C felony.
 

Section 115.08 Criminal facilitation in the first degree

 A person is guilty of criminal facilitation in the first degree when, believing it probable that he is rendering aid to a person under sixteen years of age who intends to engage in conduct that would constitute a class A felony, he, being over eighteen years of age, engages in conduct which provides such person with means or opportunity for the commission thereof and which in fact aids such person to commit such a class A felony.

 Criminal facilitation in the first degree is a class B felony.
 

Section 115.10 Criminal facilitation;  no defense

 It is no defense to a prosecution for criminal facilitation that:

 1. The person facilitated was not guilty of the underlying felony owing to criminal irresponsibility or other legal incapacity or exemption, or to unawareness of the criminal nature of the conduct in question or to other factors precluding the mental state required for the commission of such felony;  or

 2. The person facilitated has not been prosecuted for or convicted of the underlying felony, or has previously been acquitted thereof;  or

 3. The defendant himself is not guilty of the felony which he facilitated because he did not act with the intent or other culpable mental state required for the commission thereof.
 

Section 115.15 Criminal facilitation;  corroboration

 A person shall not be convicted of criminal facilitation upon the testimony of a person who has committed the felony charged to have been facilitated unless such testimony be corroborated by such other evidence as tends to connect the defendant with such facilitation.