2023 New York Laws › PEN - Penal › Part 2 - Sentences › Title E - Sentences › Article 70 - Sentences of Imprisonment › 70.80 - Sentences of Imprisonment for Conviction of a Felony Sex Offense.

§ 70.80 Sentences  of  imprisonment  for  conviction  of  a  felony  sex
offense.
1. Definitions. (a) For the purposes of this section,  a  "felony  sex
offense" means a conviction of any felony defined in article one hundred
thirty  of  this  chapter,  including  a  sexually  motivated felony, or
patronizing a person for prostitution in the first degree as defined  in
section 230.06 of this chapter, patronizing a person for prostitution in
the  second  degree  as  defined  in  section  230.05  of  this chapter,
aggravated patronizing a minor for prostitution in the third  degree  as
defined  in  section  230.11  of  this chapter, aggravated patronizing a
minor for prostitution in the second degree as defined in section 230.12
of this chapter, aggravated patronizing a minor for prostitution in  the
first degree as defined in section 230.13 of this chapter, incest in the
second degree as defined in section 255.26 of this chapter, or incest in
the  first  degree  as  defined  in section 255.27 of this chapter, or a
felony attempt or conspiracy to commit any of the above.
(b) A felony sex  offense  shall  be  deemed  a  "violent  felony  sex
offense"  if it is for an offense defined as a violent felony offense in
section 70.02 of this article, or for a  sexually  motivated  felony  as
defined in section 130.91 of this chapter where the specified offense is
a violent felony offense as defined in section 70.02 of this article.
(c)  For  the  purposes  of  this  section,  a  "predicate  felony sex
offender" means a person who stands convicted of any felony sex  offense
as  defined in paragraph (a) of this subdivision, other than a class A-I
felony, after having previously been subjected to one or more  predicate
felony  convictions  as  defined  in subdivision one of section 70.06 or
subdivision one of section 70.04 of this article.
(d) For purposes of this section, a "violent felony  offense"  is  any
felony  defined in subdivision one of section 70.02 of this article, and
a "non-violent felony offense" is any felony not defined therein.
2. In imposing a sentence within the authorized  statutory  range  for
any  felony sex offense, the court may consider all relevant factors set
forth in section 1.05 of this chapter, and in particular,  may  consider
the  defendant's  criminal history, if any, including any history of sex
offenses; any mental  illness  or  mental  abnormality  from  which  the
defendant  may  suffer;  the defendant's ability or inability to control
his sexual behavior; and, if the defendant  has  difficulty  controlling
such  behavior, the extent to which that difficulty may pose a threat to
society.
3. Except as provided by subdivision four, five, six, seven  or  eight
of this section, or when a defendant is being sentenced for a conviction
of  the  class  A-II  felonies of predatory sexual assault and predatory
sexual assault against a child as defined in sections 130.95 and  130.96
of  this  chapter,  or  for  any class A-I sexually motivated felony for
which a life sentence or a life without parole sentence must be imposed,
a sentence imposed upon a defendant convicted of a  felony  sex  offense
shall  be  a  determinate  sentence.  The  determinate sentence shall be
imposed by the court in whole or half years, and shall include as a part
thereof  a  period  of  post-release  supervision  in  accordance   with
subdivision two-a of section 70.45 of this article. Persons eligible for
sentencing  under  section  70.07 of this article governing second child
sexual assault felonies  shall  be  sentenced  under  such  section  and
paragraph (j) of subdivision two-a of section 70.45 of this article.
4.  (a)  Sentences  of imprisonment for felony sex offenses. Except as
provided in subdivision five, six, seven, or eight of this section,  the
term of the determinate sentence must be fixed by the court as follows:
(i)  for  a  class  B felony, the term must be at least five years and
must not exceed twenty-five years;
(ii) for a class C felony,  the  term  must  be  at  least  three  and
one-half years and must not exceed fifteen years;
(iii)  for  a  class D felony, the term must be at least two years and
must not exceed seven years; and
(iv) for a class E felony, the term must be at least one and  one-half
years and must not exceed four years.
(b) Probation. The court may sentence a defendant convicted of a class
D  or  class  E  felony  sex offense to probation in accordance with the
provisions of section 65.00 of this title.
(c) Alternative definite sentences for class D and class E felony  sex
offenses. If the court, having regard to the nature and circumstances of
the  crime  and to the history and character of the defendant, is of the
opinion that a sentence of imprisonment is necessary but that  it  would
be unduly harsh to impose a determinate sentence upon a person convicted
of  a  class  D  or  class  E felony sex offense, the court may impose a
definite sentence of imprisonment and fix a term of one year or less.
5. Sentence of imprisonment for a predicate felony sex  offender.  (a)
Applicability.  This  subdivision  shall apply to a predicate felony sex
offender who stands convicted of a non-violent felony  sex  offense  and
who was previously convicted of one or more felonies.
(b)  Non-violent  predicate  felony offense. When the court has found,
pursuant to the provisions of the criminal procedure law, that a  person
is   a  predicate  felony  sex  offender,  and  the  person's  predicate
conviction was for a non-violent felony offense, the court must impose a
determinate sentence of imprisonment, the term of which must be fixed by
the court as follows:
(i) for a class B felony, the term must be at least  eight  years  and
must not exceed twenty-five years;
(ii)  for  a  class C felony, the term must be at least five years and
must not exceed fifteen years;
(iii) for a class D felony, the term must be at least three years  and
must not exceed seven years; and
(iv)  for  a  class  E felony, the term must be at least two years and
must not exceed four years.
(c) Violent predicate  felony  offense.  When  the  court  has  found,
pursuant  to the provisions of the criminal procedure law, that a person
is  a  predicate  felony  sex  offender,  and  the  person's   predicate
conviction  was  for  a  violent felony offense, the court must impose a
determinate sentence of imprisonment, the term of which must be fixed by
the court as follows:
(i) for a class B felony, the term must be at  least  nine  years  and
must not exceed twenty-five years;
(ii)  for  a  class  C felony, the term must be at least six years and
must not exceed fifteen years;
(iii) for a class D felony, the term must be at least four  years  and
must not exceed seven years; and
(iv)  for a class E felony, the term must be at least two and one-half
years and must not exceed four years.
(d) A defendant who stands  convicted  of  a  non-violent  felony  sex
offense, other than a class A-I or class A-II felony, who is adjudicated
a  persistent felony offender under section 70.10 of this article, shall
be sentenced pursuant to the provisions of section 70.10 or pursuant  to
this subdivision.
6.  Sentence  of imprisonment for a violent felony sex offense. Except
as provided in subdivisions seven and eight of this section, a defendant
who stands convicted of a violent felony sex offense must  be  sentenced
pursuant  to the provisions of section 70.02, section 70.04, subdivision

six of section 70.06, section 70.08, or section 70.10 of  this  article,
as applicable.
7.  Sentence  for  a  class A felony sex offense. When a person stands
convicted of a sexually motivated felony pursuant to section  130.91  of
this  chapter  and  the specified offense is a class A felony, the court
must sentence the defendant in accordance with the provisions of:
(a) section 60.06 of this chapter and section 70.00 of  this  article,
as applicable, if such offense is a class A-I felony; and
(b)  section  70.00, 70.06 or 70.08 of this article, as applicable, if
such offense is a class A-II felony.
8. Whenever a juvenile offender  stands  convicted  of  a  felony  sex
offense,  he  or  she  must  be  sentenced pursuant to the provisions of
sections 60.10 and 70.05 of this chapter.
9. Every determinate sentence for a felony sex offense, as defined  in
paragraph  (a)  of  subdivision one of this section, imposed pursuant to
any section of this article, shall include as a part thereof a period of
post-release supervision in accordance with subdivision two-a of section
70.45 of this article.