§ 65.00 Sentence of probation.
1. Criteria. (a) Except as otherwise required by section 60.04 or
60.05 of this title, and except as provided by paragraph (b) hereof, the
court may sentence a person to a period of probation upon conviction of
any crime if the court, having regard to the nature and circumstances of
the crime and to the history, character and condition of the defendant,
is of the opinion that:
(i) Institutional confinement for the term authorized by law of the
defendant is or may not be necessary for the protection of the public;
(ii) the defendant is in need of guidance, training or other
assistance which, in his case, can be effectively administered through
probation supervision; and
(iii) such disposition is not inconsistent with the ends of justice.
(b) The court, with the concurrence of either the administrative judge
of the court or of the judicial district within which the court is
situated or such administrative judge as the presiding justice of the
appropriate appellate division shall designate, may sentence a person to
a period of probation upon conviction of a class A-II felony defined in
article two hundred twenty, the class B felony defined in section 220.48
of this chapter or any other class B felony defined in article two
hundred twenty of this chapter where the person is a second felony drug
offender as defined in paragraph (b) of subdivision one of section 70.70
of this chapter, if the prosecutor either orally on the record or in a
writing filed with the indictment recommends that the court sentence
such person to a period of probation upon the ground that such person
has or is providing material assistance in the investigation,
apprehension or prosecution of any person for a felony defined in
article two hundred twenty or the attempt or the conspiracy to commit
any such felony, and if the court, having regard to the nature and
circumstances of the crime and to the history, character and condition
of the defendant is of the opinion that:
(i) Institutional confinement of the defendant is not necessary for
the protection of the public;
(ii) The defendant is in need of guidance, training or other
assistance which, in his case, can be effectively administered through
probation supervision;
(iii) The defendant has or is providing material assistance in the
investigation, apprehension or prosecution of a person for a felony
defined in article two hundred twenty or the attempt or conspiracy to
commit any such felony; and
(iv) Such disposition is not inconsistent with the ends of justice.
* Provided, however, that the court shall not, except to the extent
authorized by paragraph (d) of subdivision two of section 60.01 of this
chapter, impose a sentence of probation in any case where it sentences a
defendant for more than one crime and imposes a sentence of imprisonment
for any one of the crimes, or where the defendant is subject to an
undischarged indeterminate or determinate sentence of imprisonment which
was imposed at a previous time by a court of this state and has more
than one year to run.
* NB Effective until September 1, 2023
* Provided, however, that the court shall not, except to the extent
authorized by paragraph (d) of subdivision two of section 60.01 of this
chapter, impose a sentence of probation in any case where it sentences a
defendant for more than one crime and imposes a sentence of imprisonment
for any one of the crimes, or where the defendant is subject to an
undischarged indeterminate or reformatory sentence of imprisonment which
was imposed at a previous time by a court of this state and has more
than one year to run.
* NB Effective September 1, 2023
2. Sentence. When a person is sentenced to a period of probation the
court shall, except to the extent authorized by paragraph (d) of
subdivision two of section 60.01 of this chapter, impose the period
authorized by subdivision three of this section and shall specify, in
accordance with section 65.10, the conditions to be complied with. The
court may modify or enlarge the conditions or, if the defendant commits
an additional offense or violates a condition, revoke the sentence at
any time prior to the expiration or termination of the period of
probation.
3. Periods of probation. Unless terminated sooner in accordance with
the criminal procedure law, the period of probation shall be as follows:
(a) (i) For a felony, other than a class A-II felony defined in
article two hundred twenty of this chapter or the class B felony defined
in section 220.48 of this chapter, or any other class B felony defined
in article two hundred twenty of this chapter committed by a second
felony drug offender, or a sexual assault, the period of probation shall
be a term of three, four or five years;
(ii) For a class A-II felony drug offender as defined in paragraph (a)
of subdivision one of section 70.71 of this chapter as described in
paragraph (b) of subdivision one of this section, or a class B felony
committed by a second felony drug offender described in paragraph (b) of
subdivision one of this section, the period of probation shall be life
and for a class B felony defined in section 220.48 of this chapter, the
period of probation shall be twenty-five years;
(iii) For a felony sexual assault, the period of probation shall be
ten years.
(b) (i) For a class A misdemeanor, other than a sexual assault, the
period of probation shall be a term of two or three years;
(ii) For a class A misdemeanor sexual assault, the period of probation
shall be six years.
(c) For a class B misdemeanor, the period of probation shall be one
year, except the period of probation shall be no less than one year and
no more than three years for the class B misdemeanor of public lewdness
as defined in section 245.00 of this chapter;
(d) For an unclassified misdemeanor, the period of probation shall be
a term of two or three years if the authorized sentence of imprisonment
is in excess of three months, otherwise the period of probation shall be
one year.
For the purposes of this section, the term "sexual assault" means an
offense defined in article one hundred thirty or two hundred
sixty-three, or in section 255.25, 255.26 or 255.27 of this chapter, or
an attempt to commit any of the foregoing offenses.
4. If during the periods of probation referenced in subparagraph (i)
of paragraph (a), subparagraph (i) of paragraph (b) and paragraph (d) of
subdivision three of this section an alleged violation is sustained
following a hearing pursuant to section 410.70 of the criminal procedure
law and the court continues or modifies the sentence, the court may
extend the remaining period of probation up to the maximum term
authorized by this section. Provided, however, a defendant shall receive
credit for the time during which he or she was supervised under the
original probation sentence prior to any declaration of delinquency and
for any time spent in custody pursuant to this article for an alleged
violation of probation.
5. In any case where a court pursuant to its authority under
subdivision four of section 60.01 of this chapter revokes probation and
sentences such person to imprisonment and probation, as provided in
paragraph (d) of subdivision two of section 60.01 of this chapter, the
period of probation shall be the remaining period of the original
probation sentence or one year whichever is greater.
NYSentencing