2023 New York Laws › PEN - Penal › Part 2 - Sentences › Title E - Sentences › Article 70 - Sentences of Imprisonment › 70.06 - Sentence of Imprisonment for Second Felony Offender.

§ 70.06 Sentence of imprisonment for second felony offender.
1. Definition of second felony offender.
(a)  A second felony offender is a person, other than a second violent
felony offender as defined in section 70.04, who stands convicted  of  a
felony  defined  in  this  chapter, other than a class A-I felony, after
having previously  been  subjected  to  one  or  more  predicate  felony
convictions as defined in paragraph (b) of this subdivision.
(b)  For  the  purpose  of determining whether a prior conviction is a
predicate felony conviction the following criteria shall apply:
(i) The conviction must have been in this state of a felony, or in any
other jurisdiction of an offense for which  a  sentence  to  a  term  of
imprisonment in excess of one year or a sentence of death was authorized
and  is  authorized  in this state irrespective of whether such sentence
was imposed;
(ii) Sentence upon such prior conviction must have been imposed before
commission of the present felony;
(iii) Suspended sentence, suspended execution of sentence, a  sentence
of  probation,  a  sentence of conditional discharge or of unconditional
discharge, and a sentence of certification to the care  and  custody  of
the  division  of  substance  abuse  services,  shall  be deemed to be a
sentence;
(iv) Except  as  provided  in  subparagraph  (v)  of  this  paragraph,
sentence  must  have  been  imposed  not  more  than  ten  years  before
commission of  the  felony  of  which  the  defendant  presently  stands
convicted;
(v)  In  calculating  the ten year period under subparagraph (iv), any
period of time during which the person was incarcerated for  any  reason
between  the  time  of commission of the previous felony and the time of
commission of the present felony shall be excluded  and  such  ten  year
period shall be extended by a period or periods equal to the time served
under such incarceration;
(vi)  An  offense  for  which  the  defendant has been pardoned on the
ground of innocence shall not be deemed a predicate felony conviction.
* 2. Authorized sentence. Except as provided in  subdivision  five  or
six of this section, or as provided in subdivision five of section 70.80
of this article, when the court has found, pursuant to the provisions of
the  criminal  procedure  law, that a person is a second felony offender
the court must impose an indeterminate  sentence  of  imprisonment.  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 until September 1, 2025
* 2. Authorized sentence. Except as provided in  subdivision  five  of
this  section,  or  as  provided in subdivision five of section 70.80 of
this article, when the court has found, pursuant to  the  provisions  of
the  criminal  procedure  law, that a person is a second felony offender
the court must impose an indeterminate  sentence  of  imprisonment.  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
* 3. Maximum term of sentence. Except as provided in subdivision  five
or  six  of  this section, or as provided in subdivision five of section
70.80 of this article, the maximum term of an indeterminate sentence for
a second felony offender must be fixed by the court as follows:
(a) For a class A-II felony, the term must be life imprisonment;
(b) For a class B felony, the term must be at  least  nine  years  and
must not exceed twenty-five years;
(c) For a class C felony, the term must be at least six years and must
not exceed fifteen years;
(d)  For  a  class  D felony, the term must be at least four years and
must not exceed seven years; and
(e) For a class E felony, the term must be at least  three  years  and
must  not  exceed four years; provided, however, that where the sentence
is for the class E felony offense specified in section  240.32  of  this
chapter,  the  maximum  term  must  be at least three years and must not
exceed five years.
* NB Effective until September 1, 2025
* 3. Maximum term of sentence. Except as provided in subdivision  five
of  this section, or as provided in subdivision five of section 70.80 of
this article, the maximum term of an indeterminate sentence for a second
felony offender must be fixed by the court as follows:
(a) For a class A-II felony, the term must be life imprisonment;
(b) For a class B felony, the term must be at  least  nine  years  and
must not exceed twenty-five years;
(c) For a class C felony, the term must be at least six years and must
not exceed fifteen years;
(d)  For  a  class  D felony, the term must be at least four years and
must not exceed seven years; and
(e) For a class E felony, the term must be at least  three  years  and
must not exceed four years.
* NB Effective September 1, 2025
4.   Minimum  period  of  imprisonment.  (a)  The  minimum  period  of
imprisonment for a second felony offender  convicted  of  a  class  A-II
felony  must  be fixed by the court at no less than six years and not to
exceed twelve and one-half years and must be specified in the  sentence,
except  that  for  the  class A-II felony of predatory sexual assault as
defined in section 130.95 of this chapter or the class  A-II  felony  of
predatory sexual assault against a child as defined in section 130.96 of
this  chapter,  such minimum period shall be not less than ten years nor
more than twenty-five years.
(b) Except as  provided  in  paragraph  (a),  the  minimum  period  of
imprisonment  under  an  indeterminate  sentence  for  a  second  felony
offender must be fixed by the court at  one-half  of  the  maximum  term
imposed and must be specified in the sentence.
* 6.  Determinate  sentence. When the court has found, pursuant to the
provisions of the criminal procedure law, that  a  person  is  a  second
felony  offender  and the sentence to be imposed on such person is for a
violent felony offense, as defined in subdivision one of section  70.02,
the court must impose a determinate sentence of imprisonment the term of
which must be fixed by the court as follows:
(a)  For  a  class B violent felony offense, the term must be at least
eight years and must not exceed twenty-five years;
(b) For a class C violent felony offense, the term must  be  at  least
five years and must not exceed fifteen years;
(c)  For  a  class D violent felony offense, the term must be at least
three years and must not exceed seven years; and
(d) For a class E violent felony offense, the term must  be  at  least
two years and must not exceed four years.
* NB Repealed September 1, 2025
* 7.  Notwithstanding  any  other  provision  of law, in the case of a
person sentenced for a specified  offense  or  offenses  as  defined  in
subdivision  five  of  section 410.91 of the criminal procedure law, who
stands convicted of no other felony offense, who has not previously been

convicted of either a violent felony offense as defined in section 70.02
of this article, a class A felony offense or a class B  felony  offense,
and  is  not  under  the  jurisdiction  of  or  awaiting delivery to the
department  of  corrections  and  community  supervision,  the court may
direct that such sentence be executed as a parole  supervision  sentence
as  defined  in  and  pursuant  to  the procedures prescribed in section
410.91 of the criminal procedure law.
* NB Repealed September 1, 2025