S2298-2013 Actions

• Jan 15, 2013: REFERRED TO CODES

S2298-2013 Memo

BILL NUMBER:S2298

TITLE OF BILL:  An act to amend the penal law and the criminal
procedure law, in relation to revocation of probation and
re-sentencing upon conviction of a felony while under probation
supervision for a felony conviction

PURPOSE:  This bill would require that the court revoke probation and
impose a State prison sentence for felony offenders, where they are
subsequently convicted of committing a new felony while on probation
and sentenced to State time for that new felony. Additionally, the
bill would mandate that this new sentence run consecutively to the new
term of imprisonment, unless the court finds that mitigating
circumstances exist, in which case the court may impose a concurrent
term of incarceration.

SUMMARY OF PROVISIONS:  This bill would require that the court revoke
probation and impose a State prison sentence for felony offenders,
where they are subsequently convicted of committing a new felony while
on probation and sentenced to State time for that new felony.
Additionally, the bill would mandate that this new sentence run
consecutively to the new term of imprisonment, unless the court finds
that mitigating circumstances exist, in which case the court may
impose a concurrent term of incarceration. This bill would amend
subdivision 4 of 5 60.01 of the Penal Law ("PL") with respect to
authorized dispositions, and would add a new subdivision 6 to PL
70.25, the section pertaining to concurrent and consecutive terms of
imprisonment. In addition, subdivision 2 of Criminal Procedure Law
("CPL") � 410.10 and subdivision 1 of CPL � 410,70 would be amended,
which govern conditions of probation and hearings on violation of
probation, respectively. Subdivision 1 of CPL � 410.90 would also be
amended, stating that the court may at any time terminate either a
period of probation, other than a period of lifetime probation, for
conviction of a crime or a period of conditional discharge for an
offense, except that conviction of a new felony or conviction of an
offense in another jurisdiction which if committed in this state would
constitute a felony, which new felony is committed while under his or
her present probation supervision for a felony offense, shall result
in revocation of probation upon imposition of an indeterminate or
determinate sentence for the new offense pursuant to subdivision four
of section 60.01 of the penal law, and shall not result in the
termination of probation. Section 6. This act shall take effect on the
ninetieth day after it shall have become a law.

JUSTIFICATION:  Current law does not mandate revocation of probation
under circumstances where a person on probation for having been
convicted of a felony is convicted of a new felony. In fact, existing
law does not mandate revocation of probation at all, regardless of the
nature of the violation of probation. When the court determines that
an offender is in violation of the conditions of probation, Judges
have the discretion to impose whatever penalty they choose, including
restoring the person to probation, terminating probation without any
penalty or imposing a concurrent sentence which merely runs along with
a sentence for a new offense. Although CPL � 410.10(2) specifically
states that commission of an additional offense while on probation is
grounds for revocation of such probation sentence, some courts


nevertheless do not revoke probation and re-sentence offenders to
State time for the original offense, even when these offenders are
already on probation for a felony and are now convicted of another
felony. What most commonly occurs is that probation is terminated or
the probationer receives a concurrent sentence. In either case, the
probationer is receiving no additional time for the underling felony.
Failure of some courts to revoke probation and impose a consecutive
sentence of incarceration in this situation provides the defendant
with felony convictions that remain unpunished. In other words, their
first felony is absolutely free.  Any probation sentence represents an
agreement between the defendant and the court that he or she will not
be incarcerated, provided that he or she remains law-abiding and
complies with the conditions of supervision. The defendant is being
given a second chance. A sentence of anything less than a consecutive
sentence sends the message to probationers that they need not worry
about committing another felony while on probation, because the first
felony may be virtually ignored. It also signals that there may be few
or no consequences for lesser offenses or failure to comply with court
or probation directives, thereby undermining Department of Probation's
ability to safely supervise these offenders in the community. In
general, the goal of a sentence of probation is to rehabilitate the
offender, and particular conditions of probation are imposed that are
deemed "reasonably necessary to insure that the defendant will lead a
law abiding life or assist him to do so," PL � 65.10(1). Commission of
a new felony while on probation is a obviously a serious violation of
probation, and one that should have serious consequences. In contrast,
with respect to State parolees, Executive Law � 259-i (3)(d)(iii)
provides for the automatic declaration of delinquency when a parolee
has been convicted of a new felony and sentenced to state prison.
Moreover, PL � 70.25 currently provides for consecutive sentences in
special circumstances. This bill would amend PL �� 60.01 and 70.25 and
CPL �� 410.10 and 410.70 to minor the Executive Law by requiring
revocation of probation for felony probationers who have been
convicted of a new felony and are sentenced to state time for that new
felony. It also would require a sentence of at least a year on the
original felony, and would add this to the situations triggering
consecutive sentences, unless a judge finds mitigating circumstances.

LEGISLATIVE HISTORY:  2012: S.2944 - Referred to Codes/A.10427 -
Referred to Codes 2011: S.2944 - Referred to Codes 2010: S.613
Referred to Codes/A.7809 - Referred to Codes 2009: S.613 - Referred to
Codes/A.7809 - Referred to Codes 2008: S.5802 - Passed Senate/A.8384 -
Referred to Codes 2007: S.5802 - Passed Senate/A.8384 - Referred to
Codes

FISCAL IMPLICATIONS: None.

EFFECTIVE DATE:  This act shall take effect on the ninetieth day after
it shall have become law.

S2298-2013 Text

 S T A T E   O F   N E W   Y O R K
 
 
                                         2298
 2013-2014 Regular Sessions
 I N  SENATE
 January 15, 2013
 
 Introduced  by  Sen.  LANZA  -- read twice and ordered printed, and when
 printed to be committed to the Committee on Codes
 

AN ACT to amend the  penal  law  and  the  criminal  procedure  law,  in
 relation  to revocation of probation and re-sentencing upon conviction
 of a felony while under probation supervision for a felony conviction
 THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM
 BLY, DO ENACT AS FOLLOWS:

 

Section 1. Subdivision 4 of section 60.01 of the penal law, as amended
 by chapter 548 of the laws of 1984, is amended to read as follows:

 4.  In  any  case  where  a  person  has been sentenced to a period of
 probation imposed pursuant to section 65.00 of this chapter, if the part
 of the sentence that provides for probation is revoked, the  court  must
 sentence  such person to imprisonment or to the sentence of imprisonment
 and probation as provided for in paragraph (d)  of  subdivision  two  of
 this  section.    PROVIDED,  HOWEVER,  THAT  WHERE A PERSON WHO HAS BEEN
 SENTENCED TO A PERIOD OF PROBATION UPON CONVICTION OF A FELONY IS SUBSE
 QUENTLY CONVICTED OF A FELONY OR IS CONVICTED OF AN OFFENSE  IN  ANOTHER
 JURISDICTION WHICH IF COMMITTED IN THIS STATE WOULD CONSTITUTE A FELONY,
 WHICH  SUBSEQUENT  FELONY  IS  COMMITTED  WHILE UNDER HIS OR HER PRESENT
 PROBATION SUPERVISION, AND A NEW INDETERMINATE OR  DETERMINATE  SENTENCE
 IS  IMPOSED  FOR  SUCH  SUBSEQUENT FELONY, THE PART OF THE SENTENCE THAT
 PROVIDED FOR PROBATION  SHALL  BE  REVOKED  AND  SUCH  PERSON  SHALL  BE
 SENTENCED  TO  A  TERM OF IMPRISONMENT OF OVER ONE YEAR. SUCH TERM SHALL
 RUN CONSECUTIVELY TO THE TERM OF IMPRISONMENT IMPOSED FOR THE SUBSEQUENT
 FELONY, UNLESS THE COURT DETERMINES THAT MITIGATING CIRCUMSTANCES EXIST,
 IN WHICH CASE THE COURT MUST PLACE SUCH CIRCUMSTANCES ON THE RECORD  AND
 A CONCURRENT SENTENCE MAY BE IMPOSED.
 

S 2. 

Section 70.25 of the penal law is amended by adding a new subdi
 vision 6 to read as follows:

 6.  WHERE  A  PERSON  WHO  HAS BEEN SENTENCED TO A PERIOD OF PROBATION
 IMPOSED PURSUANT TO SECTION 65.00 OF THIS TITLE  UPON  CONVICTION  OF  A
 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
 [ ] is old law to be omitted.
 LBD05443-01-3
 
       S. 2298                             2
 FELONY  IS  SUBSEQUENTLY  CONVICTED  OF  A  FELONY OR IS CONVICTED OF AN
 OFFENSE IN ANOTHER JURISDICTION WHICH IF COMMITTED IN THIS  STATE  WOULD
 CONSTITUTE  A  FELONY,  WHICH SUBSEQUENT FELONY IS COMMITTED WHILE UNDER
 HIS  OR  HER  PRESENT  PROBATION SUPERVISION, AND A NEW INDETERMINATE OR
 DETERMINATE SENTENCE IS IMPOSED FOR SUCH SUBSEQUENT FELONY, THE PART  OF
 THE  SENTENCE  THAT  PROVIDED  FOR  PROBATION SHALL BE REVOKED, AND SUCH
 PERSON SHALL BE SENTENCED TO A TERM OF IMPRISONMENT OF  OVER  ONE  YEAR.
 SUCH  TERM  SHALL  RUN CONSECUTIVELY TO THE TERM OF IMPRISONMENT IMPOSED
 FOR THE SUBSEQUENT FELONY, UNLESS THE COURT DETERMINES  THAT  MITIGATING
 CIRCUMSTANCES  EXIST,  IN  WHICH  CASE THE COURT MUST PLACE SUCH CIRCUM
 STANCES ON THE RECORD AND A CONCURRENT SENTENCE MAY BE IMPOSED.
 

S 3. Subdivision 2 of section 410.10 of the criminal procedure law  is
 amended to read as follows:

 2.   Commission of an additional offense, other than a traffic infrac
 tion, after imposition of a sentence  of  probation  or  of  conditional
 discharge,  and  prior to expiration or termination of the period of the
 sentence, constitutes a ground for revocation of such sentence irrespec
 tive of whether such fact is specified as a condition of  the  sentence.
 CONVICTION  OF A SUBSEQUENT FELONY OR OF AN OFFENSE IN ANOTHER JURISDIC
 TION WHICH IF COMMITTED IN THIS STATE WOULD CONSTITUTE A  FELONY,  WHILE
 THE DEFENDANT IS UNDER PROBATION SUPERVISION FOR A FELONY OFFENSE, SHALL
 RESULT IN REVOCATION OF PROBATION UPON IMPOSITION OF AN INDETERMINATE OR
 DETERMINATE SENTENCE FOR THE SUBSEQUENT OFFENSE.
 

S  4. Subdivision 1 of section 410.70 of the criminal procedure law is
 amended to read as follows:

 1. In general. The court may not revoke a sentence of probation  or  a
 sentence  of  conditional  discharge unless (a) the court has found that
 the defendant has violated a  condition  of  the  sentence  OR  (B)  THE
 DEFENDANT WHILE UNDER PROBATION SUPERVISION IMPOSED UPON CONVICTION OF A
 FELONY  HAS BEEN CONVICTED OF A SUBSEQUENT FELONY, OR IS CONVICTED OF AN
 OFFENSE IN ANOTHER JURISDICTION WHICH IF COMMITTED IN THIS  STATE  WOULD
 CONSTITUTE  A FELONY, and [(b)] (C) the defendant has had an opportunity
 to be heard. The defendant is entitled to a hearing in  accordance  with
 this  section promptly after the court has filed a declaration of delin
 quency or has committed him OR HER or has fixed bail  pursuant  to  this
 article.
 

S 5. Subdivision 1 of section 410.90 of the criminal procedure law, as
 amended  by  chapter  238  of  the  laws  of 1980, is amended to read as
 follows:

 1. The court may at any time terminate either a period  of  probation,
 other  than a period of lifetime probation, for conviction to a crime or
 a period of conditional discharge for an offense, EXCEPT THAT CONVICTION
 OF A SUBSEQUENT FELONY OR CONVICTION OF AN OFFENSE IN ANOTHER  JURISDIC
 TION  WHICH  IF COMMITTED IN THIS STATE WOULD CONSTITUTE A FELONY, WHICH
 SUBSEQUENT FELONY IS COMMITTED WHILE UNDER HIS OR HER PRESENT  PROBATION
 SUPERVISION  FOR  A  FELONY  OFFENSE,  SHALL  RESULT  IN  REVOCATION  OF
 PROBATION UPON IMPOSITION OF AN INDETERMINATE  OR  DETERMINATE  SENTENCE
 FOR THE SUBSEQUENT OFFENSE PURSUANT TO SUBDIVISION FOUR OF SECTION 60.01
 OF THE PENAL LAW, AND SHALL NOT RESULT IN THE TERMINATION OF PROBATION.
 

S  6.  This  act shall take effect on the ninetieth day after it shall
 have become a law.

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