N.Y. PEN Law § 70.02 — New York Code / Act PEN / Part 2 / Title E / Article 70 / Section 70.02
Sentence of imprisonment for a violent felony offense
Status: in_force

§ 70.02 Sentence of imprisonment for a violent felony offense.\n  1. Definition of a violent felony offense. A violent felony offense is\na class B violent felony offense, a class C violent felony offense, a\nclass D violent felony offense, or a class E violent felony offense,\ndefined as follows:\n  (a) Class B violent felony offenses: an attempt to commit the class\nA-I felonies of murder in the second degree as defined in section\n125.25, kidnapping in the first degree as defined in section 135.25, and\narson in the first degree as defined in section 150.20; manslaughter in\nthe first degree as defined in section 125.20, aggravated manslaughter\nin the first degree as defined in section 125.22, rape in the first\ndegree as defined in section 130.35, a crime formerly defined in section\n130.50, aggravated sexual abuse in the first degree as defined in\nsection 130.70, course of sexual conduct against a child in the first\ndegree as defined in section 130.75, assault in the first degree as\ndefined in section 120.10, kidnapping in the second degree as defined in\nsection 135.20, burglary in the first degree as defined in section\n140.30, arson in the second degree as defined in section 150.15, robbery\nin the first degree as defined in section 160.15, sex trafficking as\ndefined in paragraphs (a) and (b) of subdivision five of section 230.34,\nsex trafficking of a child as defined in section 230.34-a, incest in the\nfirst degree as defined in section 255.27, criminal possession of a\nweapon in the first degree as defined in section 265.04, criminal use of\na firearm in the first degree as defined in section 265.09, criminal\nsale of a firearm in the first degree as defined in section 265.13,\naggravated assault upon a police officer or a peace officer as defined\nin section 120.11, gang assault in the first degree as defined in\nsection 120.07, intimidating a victim or witness in the first degree as\ndefined in section 215.17, hindering prosecution of terrorism in the\nfirst degree as defined in section 490.35, criminal possession of a\nchemical weapon or biological weapon in the second degree as defined in\nsection 490.40, and criminal use of a chemical weapon or biological\nweapon in the third degree as defined in section 490.47.\n  (b) Class C violent felony offenses: an attempt to commit any of the\nclass B felonies set forth in paragraph (a) of this subdivision;\naggravated criminally negligent homicide as defined in section 125.11,\naggravated manslaughter in the second degree as defined in section\n125.21, aggravated sexual abuse in the second degree as defined in\nsection 130.67, assault on a peace officer, police officer, firefighter\nor emergency medical services professional as defined in section 120.08,\nassault on a judge as defined in section 120.09, gang assault in the\nsecond degree as defined in section 120.06, strangulation in the first\ndegree as defined in section 121.13, aggravated strangulation as defined\nin section 121.13-a, burglary in the second degree as defined in section\n140.25, robbery in the second degree as defined in section 160.10,\ncriminal possession of a weapon in the second degree as defined in\nsection 265.03, criminal use of a firearm in the second degree as\ndefined in section 265.08, criminal sale of a firearm in the second\ndegree as defined in section 265.12, criminal sale of a firearm with the\naid of a minor as defined in section 265.14, aggravated criminal\npossession of a weapon as defined in section 265.19, soliciting or\nproviding support for an act of terrorism in the first degree as defined\nin section 490.15, hindering prosecution of terrorism in the second\ndegree as defined in section 490.30, and criminal possession of a\nchemical weapon or biological weapon in the third degree as defined in\nsection 490.37.\n  (c) Class D violent felony offenses: an attempt to commit any of the\nclass C felonies set forth in paragraph (b); reckless assault of a child\nas defined in section 120.02, assault in the second degree as defined in\nsection 120.05, menacing a police officer or peace officer as defined in\nsection 120.18, stalking in the first degree, as defined in subdivision\none of section 120.60, strangulation in the second degree as defined in\nsection 121.12, rape in the second degree as defined in section 130.30,\na crime formerly defined in section 130.45, sexual abuse in the first\ndegree as defined in section 130.65, course of sexual conduct against a\nchild in the second degree as defined in section 130.80, aggravated\nsexual abuse in the third degree as defined in section 130.66,\nfacilitating a sex offense with a controlled substance as defined in\nsection 130.90, labor trafficking as defined in paragraphs (a) and (b)\nof subdivision three of section 135.35, criminal possession of a weapon\nin the third degree as defined in subdivision five, six, seven, eight,\nnine or ten of section 265.02, criminal sale of a firearm in the third\ndegree as defined in section 265.11, intimidating a victim or witness in\nthe second degree as defined in section 215.16, soliciting or providing\nsupport for an act of terrorism in the second degree as defined in\nsection 490.10, and making a terroristic threat as defined in section\n490.20, falsely reporting an incident in the first degree as defined in\nsection 240.60, placing a false bomb or hazardous substance in the first\ndegree as defined in section 240.62, placing a false bomb or hazardous\nsubstance in a sports stadium or arena, mass transportation facility or\nenclosed shopping mall as defined in section 240.63, aggravated\nunpermitted use of indoor pyrotechnics in the first degree as defined in\nsection 405.18, and criminal manufacture, sale, or transport of an\nundetectable firearm, rifle or shotgun as defined in section 265.50.\n  (d) Class E violent felony offenses: an attempt to commit any of the\nfelonies of criminal possession of a weapon in the third degree as\ndefined in subdivision five, six, seven or eight of section 265.02 as a\nlesser included offense of that section as defined in section 220.20 of\nthe criminal procedure law, persistent sexual abuse as defined in\nsection 130.53, aggravated sexual abuse in the fourth degree as defined\nin section 130.65-a, falsely reporting an incident in the second degree\nas defined in section 240.55 and placing a false bomb or hazardous\nsubstance in the second degree as defined in section 240.61.\n  2. Authorized sentence.\n  * (a) Except as provided in subdivision six of section 60.05, the\nsentence imposed upon a person who stands convicted of a class B or\nclass C violent felony offense must be a determinate sentence of\nimprisonment which shall be in whole or half years. The term of such\nsentence must be in accordance with the provisions of subdivision three\nof this section.\n  * NB Effective until September 1, 2027\n  * (a) The sentence imposed upon a person who stands convicted of a\nclass B or class C violent felony offense must be an indeterminate\nsentence of imprisonment. Except as provided in subdivision five of\nsection 60.05, the maximum term of such sentence must be in accordance\nwith the provisions of subdivision three of this section and the minimum\nperiod of imprisonment under such sentence must be in accordance with\nsubdivision four of this section.\n  * NB Effective September 1, 2027\n  (b) Except as provided in paragraph (b-1) of this subdivision,\nsubdivision six of section 60.05 and subdivision four of this section,\nthe sentence imposed upon a person who stands convicted of a class D\nviolent felony offense, other than the offense of criminal possession of\na weapon in the third degree as defined in subdivision five, seven or\neight of section 265.02 or criminal sale of a firearm in the third\ndegree as defined in section 265.11, must be in accordance with the\napplicable provisions of this chapter relating to sentencing for class D\nfelonies provided, however, that where a sentence of imprisonment is\nimposed which requires a commitment to the state department of\ncorrections and community supervision, such sentence shall be a\ndeterminate sentence in accordance with paragraph (c) of subdivision\nthree of this section.\n  (b-1) Except as provided in subdivision six of section 60.05, the\nsentence imposed upon a person who stands convicted of the class D\nviolent felony offense of menacing a police officer or peace officer as\ndefined in section 120.18 of this chapter must be a determinate sentence\nof imprisonment.\n  (c) Except as provided in subdivision six of section 60.05, the\nsentence imposed upon a person who stands convicted of the class D\nviolent felony offenses of criminal possession of a weapon in the third\ndegree as defined in subdivision five, seven, eight or nine of section\n265.02, criminal sale of a firearm in the third degree as defined in\nsection 265.11, the class E violent felonies of attempted criminal\npossession of a weapon in the third degree as defined in subdivision\nfive, seven, eight or nine of section 265.02, or criminal manufacture,\nsale, or transport of an undetectable firearm, rifle or shotgun as\ndefined in section 265.50 must be a sentence to a determinate period of\nimprisonment, or, in the alternative, a definite sentence of\nimprisonment for a period of no less than one year, except that:\n  (i) the court may impose any other sentence authorized by law upon a\nperson who has not been previously convicted in the five years\nimmediately preceding the commission of the offense for a class A\nmisdemeanor defined in this chapter, if the court having regard to the\nnature and circumstances of the crime and to the history and character\nof the defendant, finds on the record that such sentence would be unduly\nharsh and that the alternative sentence would be consistent with public\nsafety and does not deprecate the seriousness of the crime; and\n  (ii) the court may apply the provisions of paragraphs (b) and (c) of\nsubdivision four of this section when imposing a sentence upon a person\nwho has previously been convicted of a class A misdemeanor defined in\nthis chapter in the five years immediately preceding the commission of\nthe offense.\n  3. Term of sentence. The term of a determinate sentence for a violent\nfelony offense must be fixed by the court as follows:\n  (a) For a class B felony, the term must be at least five years and\nmust not exceed twenty-five years, provided, however, that the term must\nbe:  (i) at least ten years and must not exceed thirty years where the\nsentence is for the crime of aggravated assault upon a police officer or\npeace officer as defined in section 120.11 of this chapter; and (ii) at\nleast ten years and must not exceed thirty years where the sentence is\nfor the crime of aggravated manslaughter in the first degree as defined\nin section 125.22 of this chapter;\n  (b) For a class C felony, the term must be at least three and one-half\nyears and must not exceed fifteen years, provided, however, that the\nterm must be: (i) at least seven years and must not exceed twenty years\nwhere the sentence is for the crime of aggravated manslaughter in the\nsecond degree as defined in section 125.21 of this chapter; (ii) at\nleast seven years and must not exceed twenty years where the sentence is\nfor the crime of attempted aggravated assault upon a police officer or\npeace officer as defined in section 120.11 of this chapter; (iii) at\nleast three and one-half years and must not exceed twenty years where\nthe sentence is for the crime of aggravated criminally negligent\nhomicide as defined in section 125.11 of this chapter; and (iv) at least\nfive years and must not exceed fifteen years where the sentence is\nimposed for the crime of aggravated criminal possession of a weapon as\ndefined in section 265.19 of this chapter;\n  (c) For a class D felony, the term must be at least two years and must\nnot exceed seven years, provided, however, that the term must be: (i) at\nleast two years and must not exceed eight years where the sentence is\nfor the crime of menacing a police officer or peace officer as defined\nin section 120.18 of this chapter; and (ii) at least three and one-half\nyears and must not exceed seven years where the sentence is imposed for\nthe crime of criminal possession of a weapon in the third degree as\ndefined in subdivision ten of section 265.02 of this chapter;\n  (d) For a class E felony, the term must be at least one and one-half\nyears and must not exceed four years.\n  4. (a) Except as provided in paragraph (b) of this subdivision, where\na plea of guilty to a class D violent felony offense is entered pursuant\nto section 220.10 or 220.30 of the criminal procedure law in\nsatisfaction of an indictment charging the defendant with an armed\nfelony, as defined in subdivision forty-one of section 1.20 of the\ncriminal procedure law, the court must impose a determinate sentence of\nimprisonment.\n  (b) In any case in which the provisions of paragraph (a) of this\nsubdivision or the provisions of subparagraph (ii) of paragraph (c) of\nsubdivision two of this section apply, the court may impose a sentence\nother than a determinate sentence of imprisonment, or a definite\nsentence of imprisonment for a period of no less than one year, if it\nfinds that the alternate sentence is consistent with public safety and\ndoes not deprecate the seriousness of the crime and that one or more of\nthe following factors exist:\n  (i) mitigating circumstances that bear directly upon the manner in\nwhich the crime was committed; or\n  (ii) where the defendant was not the sole participant in the crime,\nthe defendant's participation was relatively minor although not so minor\nas to constitute a defense to the prosecution; or\n  (iii) possible deficiencies in proof of the defendant's commission of\nan armed felony.\n  (c) The defendant and the district attorney shall have an opportunity\nto present relevant information to assist the court in making a\ndetermination pursuant to paragraph (b) of this subdivision, and the\ncourt may, in its discretion, conduct a hearing with respect to any\nissue bearing upon such determination. If the court determines that a\ndeterminate sentence of imprisonment should not be imposed pursuant to\nthe provisions of such paragraph (b), it shall make a statement on the\nrecord of the facts and circumstances upon which such determination is\nbased. A transcript of the court's statement, which shall set forth the\nrecommendation of the district attorney, shall be forwarded to the state\ndivision of criminal justice services along with a copy of the\naccusatory instrument.\n