NY Penal L § 70.30 (2021)
2021 New York Laws PEN - Penal Part 2 - Sentences Title E - Sentences Article 70 - Sentences of Imprisonment 70.30 - Calculation of Terms of Imprisonment.

§ 70.30 Calculation of terms of imprisonment.   1. * Indeterminate or determinate sentences.   * NB Effective until September 1, 2023   * Indeterminate sentences.   * NB Effective September 1, 2023   * An  indeterminate  or determinate sentence of imprisonment commences when the prisoner is received in an institution under  the  jurisdiction of  the state department of corrections and community supervision. Where a person is under more than one indeterminate or  determinate  sentence, the sentences shall be calculated as follows:   * NB Effective until September 1, 2023   * An   indeterminate  sentence  of  imprisonment  commences  when  the prisoner is received in an institution under  the  jurisdiction  of  the state  department  of  corrections  and  community  supervision. Where a person is under more than  one  indeterminate  sentence,  the  sentences shall be calculated as follows:   * NB Effective September 1, 2023   * (a)  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;   * NB Effective until September 1, 2023   * (a)  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;   * NB Effective September 1, 2023   * (b)  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;   * NB Effective until September 1, 2023   * (b)  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;   * NB Effective September 1, 2023   * (c) 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.   * NB Effective until September 1, 2023    * (c)  (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;   * NB Effective September 1, 2023   * (d)  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.   * NB Effective until September 1, 2023   * (d) 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.   * NB Effective September 1, 2023   * (e) (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, commmitted 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.   * NB Effective until September 1, 2023   * (f) 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.   * NB Effective until September 1, 2023   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.  Jail  time.  The  term  of  a  definite  sentence, a determinate 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 or period of post-release supervision 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.   * NB Effective until September 1, 2023   * 3. 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   or   period   of post-release  supervision  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.   * NB Effective September 1, 2023   * 4. 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 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.   * NB Effective until September 1, 2023   * 4.  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.   * NB Effective September 1, 2023   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  corrections and community supervision, 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.  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 corrections and community supervision or a facility under the jurisdiction of the  state  office  of  children  and family  services to participate in a program of temporary release, fails to return  to  the  institution  or  facility  at  or  before  the  time prescribed  for  his  or  her  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 corrections and community supervision or a facility under the jurisdiction of the  state  office  of  children  and family  services  to  an  institution  under  the  jurisdiction  of that department or a facility under the jurisdiction of that office. Any time spent by such person in an institution from  the  date  of  his  or  her failure  to  return  to  the  date  his or her 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.   * NB Expires September 1, 2023