NY Penal L § 70.02 (2021)
2021 New York Laws PEN - Penal Part 2 - Sentences Title E - Sentences Article 70 - Sentences of Imprisonment 70.02 - Sentence of Imprisonment for a Violent Felony Offense.

§ 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, sex trafficking as defined in paragraphs (a) and (b)  of subdivision  five  of  section  230.34,  sex  trafficking  of a child as defined in section 230.34-a, incest in the first degree  as  defined  in section  255.27,  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)  of  this  subdivision; 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,  firefighter or emergency medical services professional as defined in section 120.08, assault  on  a  judge  as defined in section 120.09, gang assault in the second degree as defined in section 120.06, strangulation in  the  first degree as defined in section 121.13, aggravated strangulation as defined in section 121.13-a, 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, aggravated criminal possession of a weapon as  defined  in  section  265.19,  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); reckless assault of a child as defined in section 120.02, 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, strangulation in the second degree as defined  in section  121.12, rape in the second degree as defined in section 130.30, criminal sexual act in the second degree as defined in  section  130.45, 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,  facilitating  a  sex  offense  with  a  controlled substance as defined in section 130.90, labor trafficking as defined  in paragraphs  (a) and (b) of subdivision three of section 135.35, criminal possession of a weapon in the third degree  as  defined  in  subdivision five, six, seven, eight, nine or ten 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,  aggravated  unpermitted use of indoor pyrotechnics in the first degree as defined in section 405.18, and criminal manufacture, sale,  or transport  of  an  undetectable  firearm, rifle or shotgun as defined in section 265.50.  (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 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,  persistent  sexual  abuse  as  defined  in section  130.53, aggravated sexual abuse in the fourth degree as defined in section 130.65-a, 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) 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.   * NB Effective until September 1, 2023   * (a)  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.   * NB Effective September 1, 2023  (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 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 corrections   and  community  supervision,  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 five, seven, eight or nine of section 265.02, criminal sale of a firearm in the third  degree  as  defined  in section  265.11,  the  class  E  violent  felonies of attempted criminal possession of a weapon in the third degree  as  defined  in  subdivision five,  seven,  eight or nine of section 265.02, or criminal manufacture, sale, or transport of an  undetectable  firearm,  rifle  or  shotgun  as defined  in section 265.50 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;  (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; and (iv) at least five  years  and  must  not  exceed  fifteen years where the sentence is imposed  for  the crime of aggravated criminal possession of a weapon as defined in section 265.19 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: (i) 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 (ii) at least three and  one-half years  and must not exceed seven years where the sentence is imposed for the crime of criminal possession of a weapon  in  the  third  degree  as defined in subdivision ten of section 265.02 of this chapter;  (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.  (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.