§ 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, 2023
* 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, 2023
* 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, 2023
* 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, 2023
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, 2023
* 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, 2023
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