§ 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.
(As amended by L.2018 c.189 effective 11/13/18.)
(b) (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.
(As amended by L.2020 c.94 effective 06/12/20.)
(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.
(As amended by L.2019 c.134 effective 01/26/20.)
(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, 2020
* (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, 2020
(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:
* NB Effective January 26, 2020
(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.