Sentencing

Pre-Sentencing Report

Most felony convictions require that a pre-sentence report be prepared by the Department of Probation before a sentence can be imposed. This report informs the judge about the defendant's background, possible mitigating circumstances of the crime, the likelihood of a successful probationary sentence, and suggested programs for rehabilitation. The judge is not obligated to follow any of the report's recommendations. The pre-sentence report requirement can be waived if the sentence will be satisfied by time already served; if a probation sentence is to be imposed; or if a report had been prepared in the preceding twelve months.

Possible Sentences

After the judge or the jury renders a guilty verdict or after the defendant pleads guilty, he will be sentenced. The sentence a defendant receives depends on a variety of factors including the seriousness and circumstances of the crime, the defendant's participation, and his personal background and history. Following is a list of possible dispositions, or sentences, for a convicted defendant in a criminal case.

Conditional discharge

A conditional discharge may be imposed where neither public interest nor justice would be served by imprisonment, and where probation supervision is inappropriate. The defendant is released under certain conditions such as leading a law-abiding life, participating in a specific program, avoiding contact with certain people, making restitution, entering a program such as a drug, anger management, vocational or GED program, or paying a fine. If any of the conditions are violated, the defendant may be re-sentenced to a jail or prison term. The period of conditional discharge is three years for a felony and one year for a misdemeanor or violation.

Imprisonment

The defendant is confined to a prison or jail for a specified amount of time. There are various sentence terms that may be imposed.

Definite Sentence: A sentence with a specific term of one year or less. For example, 30 days, 120 days, 1 year.

Determinate Sentence: A sentence with a specific term in excess of one year. For example, 5 years.

Indeterminate Sentence: A sentence that has both a minimum term that generally must be served before the inmate can be released on parole and maximum term that could be served (without regard to time off for good behavior). For example, 7 to 10 years.

Split sentence: A sentence in which part of the sentence is served in jail and the rest is served on probation.

Probation

Probation may be imposed when confinement is unnecessary for the protection of the public and the defendant is in need of supervision. The defendant may be required to comply with certain conditions such as making restitution, entering a program such as drug rehabilitation, anger management, vocational or GED program, or paying a fine. The defendant will be supervised by the Department of Probation for three years on a misdemeanor and for five years on most felonies.

Fine

As part of a sentence, or as the sole punishment in cases where it is authorized, a judge may order the defendant to pay a fine. Depending on the offense the law specifies the minimum and maximum fine permitted.

Restitution or Resparation

In addition to any other sentence aspect the court may order restitution of the fruits of the offense (for example, the return of money stolen) or reparation for loss or damage (for example, the payment of an assault victim's medical bills). Restitution is generally ordered as a condition of probation or a conditional discharge.

Unconditional Discharge

The defendant is sentenced and released without the judge setting any conditions on his or her release.

Mandatory Assessments

The judge will impose two financial assessments: the mandatory surcharge and crime victim assistance fee. Depending on the nature of the matter additional fees may be applicable as well. These assessments are separate and distinct from any fine which the court imposes.

Mandatory Surcharge: $300 for a felony, $175 for a misdemeanor, and $95 for a violation.

Crime Victim Assistance Fee: $25 for a felony, misdemeanor, or violation.

Sex Offender Registration Fee: $50 for any sex offense or sexually violent offense.

DNA Databank Fee: $50 for certain 'qualifying' offenses.

Sentencing Circumstances and Factors

Concurrent and Consecutive Sentences: If the defendant is currently serving another sentence, or has been convicted of more than one offense or on more than one indictment, he may receive concurrent sentences (which will run simultaneously) or consecutive sentences (which run one right after the other). A combination of concurrent and consecutive sentences may also be imposed.

Repeat Offenders: A predicate felon is a person convicted of a felony within 10 years of a previous felony conviction. There is a sharp increase in the minimum sentence that a judge may impose on a predicate felon. A persistent felony offender is a person found guilty of a felony after two or more previous felony convictions. After a hearing, judges have the discretion to sentence persistent felony offenders to life imprisonment regardless of the usual sentence for the crime.

Persistent Violent Felony Offenders: First-time violent offenders may be sentenced to from 1 to 25 years depending on the class of violent felony committed. Second-time violent offenders may be sentenced to from 3 to 25 years. Third-time violent felons are deemed persistent felony offenders and may be sentenced to life imprisonment.

Youthful Offender (YO): The court may, and depending on certain factors must, treat a youth as a Youthful Offender (YO) so as not to stigmatize him with a criminal record for acts which, although criminal, stem from the haste and thoughtlessness of youth. A youth older than 16 but less than 19 who has no prior felony convictions, and has not previously been adjudicated a Youthful Offender, is eligible to be treated as a Youthful Offender. If adjudicated as a Youthful Offender the youth's records are sealed and the adjudication is not regarded as a criminal conviction. However, the court must notify a school official of the adjudication. Youthful Offender adjudication also reduces the maximum sentence of incarceration that may be imposed.

New York State DNA Databank

Offenders convicted of certain 'qualifying' offenses must, after sentencing, provide a DNA sample for inclusion in the New York State DNA Databank.

New York State Sex Offender Registry

The Sex Offender Registration Act (SORA), also known as 'Megan's Law', requires the registration of individuals convicted in New York State of certain Sex Offenses as well as the registration of those individuals convicted in another jurisdiction if the offense is equivalent to a New York State registrable sex offense.

Sex offenders are classified as either low risk (Level 1), moderate risk (Level 2) or high risk (Level 3).

All sex offenders are required to register with the Division of Criminal Justice Services (DJCS) within 10 days of discharge.

A Level 1 or Level 2 sex offender is required to register with DJCS, verify his address each year and notify DJCS no later than 10 days after any change of address. In addition to the same duties required of a Level 1 or 2 sex offender, a Level 3 sex offender or a sexual predator regardless of level, is also required to personally verify his address every 90 days with the local law enforcement agency having jurisdiction over his residence.

A Level 1 and Level 2 sex offender is required to provide DJCS an updated photograph every three years from the date of registration. A Level 3 sex offender is required to provide an updated photograph to DJCS on an annual basis. All sex offenders must notify DJCS of any institution of higher education at which he is or expects to be employed, residing, enrolled or attending. Any change of status at such institution must also be reported to the Division.

A Level 3 sex offender is required to provide his employment address to DJCS. The Electronic Security and Targeting of Online Predators Act requires a registered sex offenders to report to DJCS any internet accounts with internet service providers belonging to him and e-mail addresses and designations used by him for the purposes of chat, instant messaging, social networking or other similar internet communication. In addition, a registered sex offender must notify the Division no later than 10 days after any change of the above-mentioned internet information.