NY Penal L § 70.45 (2021)
2021 New York Laws PEN - Penal Part 2 - Sentences Title E - Sentences Article 70 - Sentences of Imprisonment 70.45 - Determinate Sentence; Post-Release Supervision.

§ 70.45 Determinate sentence; post-release supervision.   1. In general. When a court imposes a determinate sentence it shall in each  case  state  not  only  the  term  of  imprisonment,  but  also an additional period of post-release supervision as determined pursuant  to this article. 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 up to the balance of the remaining period of post-release supervision, not  to exceed five years; provided, however, that a defendant serving a term of post-release  supervision  for  a conviction of a felony sex offense, as defined in section 70.80 of this article, may be subject  to  a  further period  of  imprisonment  up  to  the balance of the remaining period of post-release supervision. Such  maximum  limits  shall  not  preclude  a longer  period  of  further  imprisonment  for  a  violation  where  the defendant is subject to indeterminate and determinate sentences.   1-a. When, following a final  hearing,  a  time  assessment  has  been imposed  upon  a person convicted of a felony sex offense who owes three years or more on a period of post-release supervision, imposed  pursuant to  subdivision  two-a  of  this  section, such defendant, after serving three years of the time assessment, shall be reviewed by  the  board  of parole  and  may  be re-released to post-release supervision only upon a determination by the board of parole made in accordance with subdivision two of section  two  hundred  fifty-nine-i  of  the  executive  law.  If re-release  is not granted, the board shall specify a date not more than twenty-four months from such determination for reconsideration, and  the procedures  to  be followed upon reconsideration shall be the same. If a time assessment of  less  than  three  years  is  imposed  upon  such  a defendant,  the  defendant shall be released upon the expiration of such time assessment, unless he or she is subject to further imprisonment  or confinement under any provision of law.   2.  Period  of  post-release  supervision  for  other  than felony sex offenses. The period  of  post-release  supervision  for  a  determinate sentence,  other  than  a  determinate sentence imposed for a felony sex offense as defined in paragraph (a) of subdivision one of section  70.80 of this article, shall be five years except that:  (a)  such  period shall be one year whenever a determinate sentence of imprisonment is imposed pursuant to subdivision two of section 70.70  of this  article  or subdivision nine of section 60.12 of this title upon a conviction of a class D or class E felony offense;  (b) such period shall be not less than one  year  nor  more  than  two years  whenever  a  determinate  sentence  of  imprisonment  is  imposed pursuant to  subdivision  two  of  section  70.70  of  this  article  or subdivision  nine  of section 60.12 of this title upon a conviction of a class B or class C felony offense;  (c) such period shall be not less than one  year  nor  more  than  two years  whenever  a  determinate  sentence  of  imprisonment  is  imposed pursuant to subdivision three or four of section 70.70 of  this  article upon  conviction  of  a class D or class E felony offense or subdivision ten of section 60.12 of this title;  (d) such period shall be not less than one and one-half years nor more than three years whenever a  determinate  sentence  of  imprisonment  is imposed  pursuant  to subdivision three or four of section 70.70 of this article upon conviction of a class B felony or class C felony offense or subdivision eleven of section 60.12 of this title;  (e) such period shall be not less than one and one-half years nor more than three years whenever a  determinate  sentence  of  imprisonment  is imposed  pursuant  to subdivision three of section 70.02 of this article  or subdivision two or eight of  section  60.12  of  this  title  upon  a conviction of a class D or class E violent felony offense or subdivision four, five, six, or seven of section 60.12 of this title;  (f) such period shall be not less than two and one-half years nor more than  five  years  whenever  a  determinate  sentence of imprisonment is imposed pursuant to subdivision three of section 70.02 of  this  article or  subdivision  two  or  eight  of  section  60.12 of this title upon a conviction of a class B or class C violent felony offense.   2-a. Periods of post-release supervision for felony sex offenses.  The period  of  post-release  supervision for a determinate sentence imposed for a felony sex offense as defined in paragraph (a) of subdivision  one of section 70.80 of this article shall be as follows:  (a)  not  less  than  three  years  nor more than ten years whenever a determinate sentence of imprisonment is imposed pursuant to  subdivision four  of section 70.80 of this article upon a conviction of a class D or class E felony sex offense;  (b) not less than five years nor more than fifteen  years  whenever  a determinate  sentence of imprisonment is imposed pursuant to subdivision four of section 70.80 of this article upon a conviction  of  a  class  C felony sex offense;  (c)  not  less  than  five years nor more than twenty years whenever a determinate sentence of imprisonment is imposed pursuant to  subdivision four  of  section  70.80  of this article upon a conviction of a class B felony sex offense;  (d) not less than three years nor  more  than  ten  years  whenever  a determinate sentence is imposed pursuant to subdivision three of section 70.02  of this article upon a conviction of a class D or class E violent felony sex offense as defined in paragraph (b)  of  subdivision  one  of section 70.80 of this article;  (e)  not  less  than five years nor more than fifteen years whenever a determinate sentence is imposed pursuant to subdivision three of section 70.02 of this article upon a conviction of a class C violent felony  sex offense as defined in section 70.80 of this article;  (f)  not  less  than  five years nor more than twenty years whenever a determinate sentence is imposed pursuant to subdivision three of section 70.02 of this article upon a conviction of a class B violent felony  sex offense as defined in section 70.80 of this article;  (g)  not  less  than five years nor more than fifteen years whenever a determinate sentence of  imprisonment  is  imposed  pursuant  to  either section  70.04,  section  70.06, or subdivision five of section 70.80 of this article upon a conviction of a  class  D  or  class  E  violent  or non-violent  felony  sex  offense  as  defined  in section 70.80 of this article;  (h) not less than seven years nor more than twenty  years  whenever  a determinate  sentence  of  imprisonment  is  imposed  pursuant to either section 70.04, section 70.06, or subdivision five of  section  70.80  of this  article  upon  a  conviction  of  a class C violent or non-violent felony sex offense as defined in section 70.80 of this article;  (i) such period shall be  not  less  than  ten  years  nor  more  than twenty-five  years  whenever  a  determinate sentence of imprisonment is imposed pursuant to either section 70.04, section 70.06, or  subdivision five  of  section  70.80  of this article upon a conviction of a class B violent or non-violent felony sex offense as defined in section 70.80 of this article; and  (j) such period shall be not less than ten years nor more than  twenty years  whenever  any  determinate  sentence  of  imprisonment is imposed pursuant to subdivision four of section 70.07 of this article.    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 department of corrections and community supervision 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 corrections and community  supervision,  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 department of  corrections  and  community supervision  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 department of corrections and community supervision  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 corrections and community supervision, any time spent  in  custody  from the  date  of  delinquency until restoration to post-release supervision 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. 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 corrections and community supervision, the person shall be required  to  serve  the  time  assessment  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 may be up to 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 corrections and community supervision 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 corrections and community supervision. 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.   * NB Effective until March 1, 2022   * (d)  When  a  person  is  alleged  to  have  violated a condition of post-release supervision by absconding and the department of corrections and community supervision 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 corrections and community supervision, any time  spent  in custody  from  the date of delinquency until restoration to post-release supervision 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. 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 corrections and community supervision, the person shall be required to  serve  the  time  assessment  before  being re-released  to  post-release  supervision.  If  the  person is detained pursuant to paragraph (a) of subdivision three of  section  two  hundred fifty-nine-i  of  the  executive  law  pending  a  preliminary  or final revocation hearing, the time assessment imposed following  such  hearing shall  commence  upon  the  execution  of  the warrant. If a warrant was executed pursuant to paragraph (a) of subdivision three of  section  two hundred  fifty-nine-i  of  the  executive  law  but a court released the person pending a preliminary  or  final  revocation  hearing,  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 community  supervision  in  an  important respect, and shall include the time period between execution of the warrant and release of  the  person  pending  a  preliminary  or  final  revocation hearing. If a releasee is committed to the custody of the sheriff pursuant to article five hundred thirty of the criminal procedure law, the time assessment, if any, shall include  any  time  the  releasee  spent in such custody. If a notice of violation was issued  pursuant  to  subdivision  three  of  section  two hundred  fifty-nine-i  of  the  executive law, 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 corrections and community supervision 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 corrections and community supervision. 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.   * NB Effective March 1, 2022  (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  corrections  and  community supervision 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  corrections  and  community  supervision 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 corrections and community supervision. Such period of post-release supervision  shall  resume  running  upon  the  person's re-release.