§ 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 [pros-
titute] 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, aggra-
vated 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 offen-
der" 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 subdivi-
sion 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 para-
graph (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 defi-
nite 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, pursu-
ant 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.
NYSentencing