N.Y. PEN Law § 70.04 — New York Code / Act PEN / Part 2 / Title E / Article 70 / Section 70.04
Sentence of imprisonment for second violent felony offender
Status: in_force

§ 70.04 Sentence of imprisonment for second violent felony offender.\n  1. Definition of second violent felony offender.\n  (a) A second violent felony offender is a person who stands convicted\nof a violent felony offense as defined in subdivision one of section\n70.02 after having previously been subjected to a predicate violent\nfelony conviction as defined in paragraph (b) of this subdivision.\n  (b) For the purpose of determining whether a prior conviction is a\npredicate violent felony conviction the following criteria shall apply:\n  (i) The conviction must have been in this state of a class A felony\n(other than one defined in article two hundred twenty) or of a violent\nfelony offense as defined in subdivision one of section 70.02, or of an\noffense defined by the penal law in effect prior to September first,\nnineteen hundred sixty-seven, which includes all of the essential\nelements of any such felony, or in any other jurisdiction of an offense\nwhich includes all of the essential elements of any such felony for\nwhich a sentence to a term of imprisonment in excess of one year or a\nsentence of death was authorized and is authorized in this state\nirrespective of whether such sentence was imposed;\n  (ii) Sentence upon such prior conviction must have been imposed before\ncommission of the present felony;\n  (iii) Suspended sentence, suspended execution of sentence, a sentence\nof probation, a sentence of conditional discharge or of unconditional\ndischarge, and a sentence of certification to the care and custody of\nthe division of substance abuse services, shall be deemed to be a\nsentence;\n  (iv) Except as provided in subparagraph (v) of this paragraph,\nsentence must have been imposed not more than ten years before\ncommission of the felony of which the defendant presently stands\nconvicted;\n  (v) In calculating the ten year period under subparagraph (iv), any\nperiod of time during which the person was incarcerated for any reason\nbetween the time of commission of the previous felony and the time of\ncommission of the present felony shall be excluded and such ten year\nperiod shall be extended by a period or periods equal to the time served\nunder such incarceration;\n  (vi) An offense for which the defendant has been pardoned on the\nground of innocence shall not be deemed a predicate violent felony\nconviction.\n  * 2. Authorized sentence. When the court has found, pursuant to the\nprovisions of the criminal procedure law, that a person is a second\nviolent felony offender the court must impose a determinate sentence of\nimprisonment which shall be in whole or half years. Except where\nsentence is imposed in accordance with the provisions of section 70.10,\nthe term of such sentence must be in accordance with the provisions of\nsubdivision three of this section.\n  * NB Effective until September 1, 2027\n  * 2. Authorized sentence. When the court has found, pursuant to the\nprovisions of the criminal procedure law, that a person is a second\nviolent felony offender the court must impose an indeterminate sentence\nof imprisonment. Except where sentence is imposed in accordance with the\nprovisions of section 70.10, the maximum term of such sentence must be\nin accordance with the provisions of subdivision three of this section\nand the minimum period of imprisonment under such sentence must be in\naccordance with subdivision four of this section.\n  * NB Effective September 1, 2027\n  * 3. Term of sentence. The term of a determinate sentence for a second\nviolent felony offender must be fixed by the court as follows:\n  (a) For a class B felony, the term must be at least ten years and must\nnot exceed twenty-five years;\n  (b) For a class C felony, the term must be at least seven years and\nmust not exceed fifteen years; and\n  (c) For a class D felony, the term must be at least five years and\nmust not exceed seven years.\n  (d) For a class E felony, the term must be at least three years and\nmust not exceed four years.\n  * NB Effective until September 1, 2027\n  * 3. Maximum term of sentence. The maximum term of an indeterminate\nsentence for a second violent felony offender must be fixed by the court\nas follows:\n  (a) For a class B felony, the term must be at least twelve years and\nmust not exceed twenty-five years;\n  (b) For a class C felony, the term must be at least eight years and\nmust not exceed fifteen years; and\n  (c) For a class D felony, the term must be at least five years and\nmust not exceed seven years.\n  (d) For a class E felony, the term must be at least four years.\n  * NB Effective September 1, 2027\n  * 4. Minimum period of imprisonment. The minimum period of\nimprisonment under an indeterminate sentence for a second violent felony\noffender must be fixed by the court at one-half of the maximum term\nimposed and must be specified in the sentence.\n  * NB Effective September 1, 2027\n