Bill S2298-2013

Provides for revocation of probation where a person is convicted of a new offense while such person is under probation supervision for a felony offense

Provides for revocation of probation where a person is convicted of a felony or an offense in another jurisdiction which if committed in this state would constitute a felony, while the defendant is under probation supervision for a felony offense.

Details

Actions

  • Jun 11, 2014: referred to codes
  • Jun 11, 2014: DELIVERED TO ASSEMBLY
  • Jun 11, 2014: PASSED SENATE
  • May 28, 2014: ADVANCED TO THIRD READING
  • May 21, 2014: 2ND REPORT CAL.
  • May 20, 2014: 1ST REPORT CAL.899
  • Jan 8, 2014: REFERRED TO CODES
  • Jan 8, 2014: returned to senate
  • Jan 8, 2014: died in assembly
  • Jun 13, 2013: referred to codes
  • Jun 13, 2013: DELIVERED TO ASSEMBLY
  • Jun 13, 2013: PASSED SENATE
  • Jun 12, 2013: ORDERED TO THIRD READING CAL.1315
  • Jun 12, 2013: COMMITTEE DISCHARGED AND COMMITTED TO RULES
  • Jan 15, 2013: REFERRED TO CODES

Meetings

Calendars

Votes

VOTE: COMMITTEE VOTE: - Rules - Jun 12, 2013
Ayes (21): Skelos, Libous, Bonacic, Carlucci, Farley, Flanagan, Fuschillo, Hannon, Larkin, LaValle, Marcellino, Maziarz, Nozzolio, Seward, Valesky, Stewart-Cousins, Breslin, Dilan, Parker, Espaillat, Gianaris
Ayes W/R (1): Krueger
Nays (2): Hassell-Thompson, Montgomery
Excused (1): Perkins
VOTE: COMMITTEE VOTE: - Rules - Jun 17, 2013
Ayes (21): Skelos, Libous, Bonacic, Carlucci, Farley, Flanagan, Fuschillo, Hannon, Larkin, LaValle, Marcellino, Maziarz, Nozzolio, Seward, Valesky, Stewart-Cousins, Breslin, Dilan, Parker, Espaillat, Gianaris
Ayes W/R (1): Krueger
Nays (2): Hassell-Thompson, Montgomery
Excused (1): Perkins
VOTE: COMMITTEE VOTE: - Codes - May 20, 2014
Ayes (12): Nozzolio, Boyle, DeFrancisco, Flanagan, Gallivan, Golden, Lanza, O'Mara, Griffo, Avella, Hoylman, O'Brien
Ayes W/R (2): Squadron, Krueger
Nays (2): Perkins, Espaillat

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.


Text

STATE OF NEW YORK ________________________________________________________________________ 2298 2013-2014 Regular Sessions IN 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
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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