2023 New York Laws › PEN - Penal › Part 2 - Sentences › Title E - Sentences › Article 60 - Authorized Dispositions of Offenders › 60.04 - Authorized Disposition; Controlled Substances and Marihuana Felony Offenses.

§ 60.04 Authorized  disposition;  controlled  substances  and  marihuana
felony offenses.
1. Applicability. Notwithstanding the  provisions  of  any  law,  this
section  shall govern the dispositions authorized when a person is to be
sentenced upon a conviction of a felony offense defined in  article  two
hundred  twenty  or  two  hundred  twenty-one  of this chapter or when a
person is to be sentenced upon a  conviction  of  such  a  felony  as  a
multiple felony offender as defined in subdivision five of this section.
2.  Class A felony. Every person convicted of a class A felony must be
sentenced to imprisonment in  accordance  with  section  70.71  of  this
title,  unless  such  person  is convicted of a class A-II felony and is
sentenced to probation for life in accordance with section 65.00 of this
title.
3. Class B felonies. Every person convicted of a class B  felony  must
be   sentenced   to  imprisonment  in  accordance  with  the  applicable
provisions of section 70.70 of this  chapter,  a  definite  sentence  of
imprisonment  with a term of one year or less or probation in accordance
with section 65.00 of this chapter provided, however, a person convicted
of criminal sale of a controlled substance to  a  child  as  defined  in
section  220.48  of  this  chapter  must  be  sentenced to a determinate
sentence of imprisonment in accordance with the applicable provisions of
section 70.70  of  this  chapter  or  to  a  sentence  of  probation  in
accordance  with  the  opening paragraph of paragraph (b) of subdivision
one of section 65.00 of this chapter.
4. Alternative  sentence.  Where  a  sentence  of  imprisonment  or  a
sentence  of probation as an alternative to imprisonment is not required
to be imposed pursuant  to  subdivision  two,  three  or  five  of  this
section,  the  court may impose any other sentence authorized by section
60.01 of this article, provided that when the court imposes  a  sentence
of  imprisonment, such sentence must be in accordance with section 70.70
of this title. Where the court imposes a  sentence  of  imprisonment  in
accordance  with  this  section,  the  court  may  also  impose  a  fine
authorized by article eighty of this title and in such case the sentence
shall be both imprisonment and a fine.
5. Multiple felony  offender.  Where  the  court  imposes  a  sentence
pursuant  to  subdivision  three of section 70.70 of this chapter upon a
second felony drug offender, as defined in paragraph (b) of  subdivision
one  of section 70.70 of this chapter, it must sentence such offender to
imprisonment in accordance with the  applicable  provisions  of  section
70.70  of  this chapter, a definite sentence of imprisonment with a term
of one year or less, or probation in accordance with  section  65.00  of
this chapter, provided, however, that where the court imposes a sentence
upon  a  class  B  second  felony  drug  offender, it must sentence such
offender to a determinate sentence of imprisonment  in  accordance  with
the  applicable  provisions  of  section  70.70  of this chapter or to a
sentence of probation  in  accordance  with  the  opening  paragraph  of
paragraph  (b) of subdivision one of section 65.00 of this chapter. When
the court imposes sentence on a second felony drug offender pursuant  to
subdivision  four  of  section  70.70  of this chapter, it must impose a
determinate  sentence  of   imprisonment   in   accordance   with   such
subdivision.
6.  Substance  abuse  treatment.  When the court imposes a sentence of
imprisonment which requires a commitment  to  the  state  department  of
corrections and community supervision upon a person who stands convicted
of  a  controlled  substance  or  marihuana offense, the court may, upon
motion of the defendant in its discretion, issue an order directing that
the department of  corrections  and  community  supervision  enroll  the
defendant  in  the  comprehensive  alcohol and substance abuse treatment

program in an alcohol and substance abuse correctional annex as  defined
in  subdivision  eighteen of section two of the correction law, provided
that the defendant will satisfy the statutory eligibility  criteria  for
participation  in such program. Notwithstanding the foregoing provisions
of this subdivision, any  defendant  to  be  enrolled  in  such  program
pursuant  to  this  subdivision  shall be governed by the same rules and
regulations promulgated by the department of corrections  and  community
supervision,  including  without  limitation those rules and regulations
establishing requirements for completion and those rules and regulations
governing discipline and removal from the program.  No  such  period  of
court  ordered  corrections  based drug abuse treatment pursuant to this
subdivision  shall  be  required  to  extend  beyond   the   defendant's
conditional release date.
7.  a.  Shock  incarceration  participation.  When the court imposes a
sentence of imprisonment which requires a commitment to  the  department
of  corrections  and  community  supervision  upon  a  person who stands
convicted of a controlled substance or marihuana offense, upon motion of
the  defendant,  the  court  may  issue  an  order  directing  that  the
department of corrections and community supervision enroll the defendant
in the shock incarceration program as defined in article twenty-six-A of
the   correction  law,  provided  that  the  defendant  is  an  eligible
incarcerated individual, as described  in  subdivision  one  of  section
eight  hundred  sixty-five  of  the  correction law. Notwithstanding the
foregoing provisions of this subdivision, any defendant to  be  enrolled
in  such  program  pursuant to this subdivision shall be governed by the
same rules and regulations promulgated by the department of  corrections
and  community supervision, including without limitation those rules and
regulations establishing requirements for completion and such rules  and
regulations governing discipline and removal from the program.
b.  (i)  In  the  event  that an incarcerated individual designated by
court order for enrollment in the shock incarceration program requires a
degree of medical care or mental health care that cannot be provided  at
a shock incarceration facility, the department, in writing, shall notify
the  incarcerated  individual,  provide a proposal describing a proposed
alternative-to-shock-incarceration program, and notify him or  her  that
he   or   she   may   object   in   writing   to   placement   in   such
alternative-to-shock-incarceration   program.   If   the    incarcerated
individual     objects    in    writing    to    placement    in    such
alternative-to-shock-incarceration   program,    the    department    of
corrections and community supervision shall notify the sentencing court,
provide  such  proposal  to  the court, and arrange for the incarcerated
individual's prompt appearance before the court. The court shall provide
the proposal and notice  of  a  court  appearance  to  the  people,  the
incarcerated  individual  and  the  appropriate  defense attorney. After
considering the proposal and any submissions by the parties, and after a
reasonable opportunity for the people, the incarcerated  individual  and
counsel  to  be  heard,  the  court  may  modify  its  sentencing  order
accordingly, notwithstanding the provisions of  section  430.10  of  the
criminal procedure law.
(ii)   An   incarcerated  individual  who  successfully  completes  an
alternative-to-shock-incarceration  program  within  the  department  of
corrections  and  community  supervision  shall  be  treated in the same
manner  as  a  person  who  has   successfully   completed   the   shock
incarceration program, as set forth in subdivision four of section eight
hundred sixty-seven of the correction law.