2023 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.
* NB Effective until September 1, 2024
* (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, a crime formerly 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.
* NB Effective September 1, 2024
(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.
* NB Effective until September 1, 2024
* (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,
a crime formerly 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.
* NB Effective September 1, 2024
(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, 2025
* (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, 2025
(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.