S643-2011 Actions

• Jan 4, 2012: REFERRED TO CODES
• Jan 4, 2012: returned to senate
• Jan 4, 2012: died in assembly
• Jun 16, 2011: referred to codes
• Jun 16, 2011: DELIVERED TO ASSEMBLY
• Jun 16, 2011: PASSED SENATE
• Jun 1, 2011: ADVANCED TO THIRD READING
• May 25, 2011: 2ND REPORT CAL.
• May 24, 2011: 1ST REPORT CAL.802
• Jan 5, 2011: REFERRED TO CODES

S643-2011 Meetings

S643-2011 Calendars

S643-2011 Votes

S643-2011 Memo

BILL NUMBER:S643

TITLE OF BILL:
An act
to amend the penal law and the criminal procedure law, in relation
to sentence for persistent misdemeanor offenders

SUMMARY OF PROVISIONS:
Adds a new section 70.16 to the penal law which
defines a persistent misdemeanor offender as a person who stands
convicted of a misdemeanor after having previously been convicted of
five or more crimes within the last five years (excluding time during
which the defendant was incarcerated). When sentencing a persistent
misdemeanor offender, the court must impose a definite sentence of
imprisonment of no less than thirty days, and may impose any sentence
authorized by law other than and in addition to such sentence of
imprisonment.

Adds new section 400.14 to the criminal procedure law which addresses
the procedure for determining whether a defendant should be sentenced
as a persistent misdemeanor offender. The court shall consider the
history and character of the defendant and the nature and
circumstances of his criminal conduct, as well as the public
interest, when determining the length of the definite sentence to be
imposed. The court may order a hearing to determine whether a
persistent misdemeanor offender sentence should be imposed.

PURPOSE AND JUSTIFICATION:
Creates a new classification of "persistent
misdemeanor offender" for the purposes of sentencing, and prescribes
the sentences therefor.

Misdemeanors are serious offenses. Persistent misdemeanor offenders
should face strict and mandatory penalties for their illegal
behavior. More severe punishment may serve as a deterrent to future
criminal activity and will guarantee our citizens that persistent
misdemeanor offenses will not be treated lightly.

PRIOR LEGISLATIVE HISTORY:
2009-10:  S.2105 - CODES
2007-08 - S.2050 - CODES
2005-06 - S.2884 - CODES
2004 - S.2050/A.5842 - CODES/Codes
2002 - S.2616/A.633-A - CODES/Codes
2000 - S.2943/A.1002 - RULES/Codes
1999 - S.2943/A.1002 - PASSED SENATE/Codes
1998 - S.252/A.173 - CODES/Codes
1996 - S.489/A.3782 - CODES/Codes

FISCAL IMPLICATIONS:
Undetermined.

LOCAL FISCAL IMPLICATIONS:
Undetermined.

EFFECTIVE DATE:


First day of November next succeeding the date on
which it shall have become a law.

S643-2011 Text

 S T A T E   O F   N E W   Y O R K
 
 
                                          643
 2011-2012 Regular Sessions
 I N  SENATE
 (PREFILED)
 January 5, 2011
 
 Introduced  by  Sens.  GOLDEN, DeFRANCISCO, JOHNSON, RANZENHOFER -- 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 sentence for persistent misdemeanor offenders
 THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM
 BLY, DO ENACT AS FOLLOWS:

 

Section  1.  The penal law is amended by adding a new section 70.16 to
 read as follows:

 

S 70.16 SENTENCE OF IMPRISONMENT FOR PERSISTENT MISDEMEANOR OFFENDER.
 1. DEFINITION OF PERSISTENT MISDEMEANOR OFFENDER.
 (A) A PERSISTENT MISDEMEANOR OFFENDER IS A PERSON WHO STANDS CONVICTED
 OF A MISDEMEANOR AFTER HAVING PREVIOUSLY BEEN CONVICTED OF FIVE OR  MORE
 CRIMES, AS PROVIDED IN PARAGRAPH (B) OF THIS SUBDIVISION.
 (B) A PREVIOUS CRIMINAL CONVICTION WITHIN THE MEANING OF PARAGRAPH (A)
 OF THIS SUBDIVISION IS A CONVICTION OF A CRIME IN THIS STATE, PROVIDED:

 (I) THAT A SENTENCE FOR SUCH CONVICTION WAS IMPOSED THEREFOR; AND
 (II) THAT THE DEFENDANT WAS SENTENCED FOR SUCH CONVICTION PRIOR TO THE
 DATE OF COMMISSION OF THE PRESENT MISDEMEANOR; AND
 (III)  SUBJECT  TO  THE  PERIOD  OF  TIME  EXCLUDED  PURSUANT  TO  THE
 PROVISIONS OF PARAGRAPH (C) OF THIS SUBDIVISION, THAT THE DEFENDANT  WAS
 SENTENCED  FOR SUCH CONVICTION NO MORE THAN FIVE YEARS PRIOR TO THE DATE
 OF COMMISSION OF THE PRESENT MISDEMEANOR; AND
 (IV) THAT THE DEFENDANT WAS NOT PARDONED ON THE GROUNDS OF INNOCENCE.
 (C) ANY PERIOD OF TIME DURING WHICH THE DEFENDANT WAS INCARCERATED FOR
 ANY REASON BETWEEN THE DATE OF COMMISSION OF THE PREVIOUS CRIME AND  THE
 DATE  OF  COMMISSION  OF THE PRESENT MISDEMEANOR SHALL NOT COUNT AS TIME
 WHICH HAS ELAPSED IN DETERMINING THE FIVE YEAR PERIOD WITHIN  WHICH  THE
 DEFENDANT MUST HAVE BEEN SENTENCED FOR THE PREVIOUS CRIME UNDER SUBPARA
 GRAPH  (III) OF PARAGRAPH (B) OF THIS SUBDIVISION; SUCH FIVE YEAR PERIOD
 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
 [ ] is old law to be omitted.
 LBD04233-01-1
 
       S. 643                              2
 SHALL BE EXTENDED BY SUCH PERIOD OR PERIODS OF TIME SERVED IN INCARCERA
 TION.
 (D) THE TERM "SENTENCE", WHEN REFERRING TO THE SENTENCE FOR A PREVIOUS
 CRIMINAL CONVICTION WITHIN THE MEANING OF PARAGRAPH (B) OF THIS SUBDIVI
 SION,  SHALL  INCLUDE  BUT  NOT  BE  LIMITED TO: A SUSPENDED SENTENCE; A
 SUSPENDED EXECUTION OF SENTENCE; A SENTENCE OF PROBATION; A SENTENCE  OF
 CONDITIONAL  DISCHARGE  OR  OF  UNCONDITIONAL  DISCHARGE;  A SENTENCE OF
 CERTIFICATION TO THE CARE AND CUSTODY OF THE OFFICE  OF  ALCOHOLISM  AND
 SUBSTANCE  ABUSE  SERVICES;  OR  A SENTENCE OF ANY COMBINATION OF ONE OR
 MORE OF THE FOREGOING SENTENCES.
 2. AUTHORIZED SENTENCE. WHEN THE COURT  HAS  FOUND,  PURSUANT  TO  THE
 PROVISIONS  OF THE CRIMINAL PROCEDURE LAW, THAT A PERSON IS A PERSISTENT
 MISDEMEANOR OFFENDER, THE COURT  MUST  IMPOSE  A  DEFINITE  SENTENCE  OF
 IMPRISONMENT,  THE  TERM OF WHICH SHALL BE FIXED BY THE COURT AT NO LESS
 THAN THIRTY DAYS AND NO MORE THAN ONE YEAR, AND MAY IMPOSE ANY  SENTENCE
 AUTHORIZED  BY LAW OTHER THAN AND IN ADDITION TO SUCH SENTENCE OF IMPRI
 SONMENT. IN FIXING THE LENGTH OF THE TERM OF  SUCH  DEFINITE  PERIOD  OF
 IMPRISONMENT TO WHICH THE COURT MUST SENTENCE THE DEFENDANT UPON A FIND
 ING  THAT  SUCH  PERSON  IS A PERSISTENT MISDEMEANOR OFFENDER, THE COURT
 SHALL CONSIDER THE HISTORY AND CHARACTER OF THE DEFENDANT AND THE NATURE
 AND CIRCUMSTANCES OF SUCH PERSON'S CRIMINAL CONDUCT AND  SHALL  SENTENCE
 THE DEFENDANT TO A TERM HAVING A LENGTH, WITHIN THE FOREGOING PRESCRIBED
 LIMITS, THAT WILL BEST SERVE THE PUBLIC INTEREST.
 

S  2.  The  criminal  procedure law is amended by adding a new section
 400.14 to read as follows:

 

S  400.14    PROCEDURE  FOR  DETERMINING  WHETHER  DEFENDANT  SHOULD  BE
 SENTENCED AS A PERSISTENT MISDEMEANOR OFFENDER.
 1.  APPLICABILITY. THE PROVISIONS OF THIS SECTION GOVERN THE PROCEDURE
 THAT MUST BE FOLLOWED IN ORDER  TO  IMPOSE  THE  PERSISTENT  MISDEMEANOR
 OFFENDER  SENTENCE AUTHORIZED BY SUBDIVISION TWO OF SECTION 70.16 OF THE
 PENAL LAW. SUCH SENTENCE MAY NOT BE IMPOSED UNLESS, BASED UPON  EVIDENCE
 IN  THE RECORD OF A HEARING HELD PURSUANT TO THIS SECTION, THE COURT (A)
 HAS FOUND THAT THE DEFENDANT IS A  PERSISTENT  MISDEMEANOR  OFFENDER  AS
 DEFINED  IN  SUBDIVISION  ONE OF SECTION 70.16 OF THE PENAL LAW, AND (B)
 HAS CONSIDERED THE HISTORY AND CHARACTER OF THE DEFENDANT AND THE NATURE
 AND CIRCUMSTANCES OF HIS OR HER CRIMINAL CONDUCT, AS WELL AS THE  PUBLIC
 INTEREST,  IN  DETERMINING  THE  LENGTH  OF  THE DEFINITE SENTENCE TO BE
 IMPOSED WITHIN THE LIMITS PRESCRIBED BY SUBDIVISION TWO OF SECTION 70.16
 OF THE PENAL LAW.
 2. AUTHORIZATION FOR HEARING. WHEN INFORMATION AVAILABLE TO THE  COURT
 PRIOR  TO SENTENCING INDICATES THAT THE DEFENDANT IS A PERSISTENT MISDE
 MEANOR OFFENDER, AND WHEN, IN THE OPINION OF THE  COURT,  THE  AVAILABLE
 INFORMATION SHOWS THAT A PERSISTENT MISDEMEANOR OFFENDER SENTENCE MAY BE
 WARRANTED,  THE  COURT  MAY ORDER A HEARING TO DETERMINE (A) WHETHER THE
 DEFENDANT IS IN FACT A PERSISTENT MISDEMEANOR OFFENDER, AND (B)  IF  SO,
 WHETHER A PERSISTENT MISDEMEANOR OFFENDER SENTENCE SHOULD BE IMPOSED.
 3.  ORDER  DIRECTING A HEARING. AN ORDER DIRECTING A HEARING TO DETER
 MINE WHETHER THE DEFENDANT SHOULD BE SENTENCED AS A PERSISTENT MISDEMEA
 NOR OFFENDER MUST BE FILED WITH THE CLERK OF THE COURT AND MUST  SPECIFY
 A DATE FOR THE HEARING NOT LESS THAN TWENTY DAYS FROM THE DATE THE ORDER
 IS  FILED.  THE  COURT MUST ANNEX TO AND FILE WITH THE ORDER A STATEMENT
 SETTING FORTH THE FOLLOWING:

 (A) THE DATES AND PLACES OF THE PREVIOUS CONVICTIONS WHICH RENDER  THE
 DEFENDANT  A  PERSISTENT  MISDEMEANOR OFFENDER AS DEFINED IN SUBDIVISION
 ONE OF SECTION 70.16 OF THE PENAL LAW; AND
 
       S. 643                              3
 (B) THE FACTORS IN  THE  DEFENDANT'S  BACKGROUND  AND  PRIOR  CRIMINAL
 CONDUCT,  AS WELL AS THE PUBLIC INTEREST, WHICH THE COURT DEEMS RELEVANT
 FOR THE PURPOSE OF SENTENCING THE DEFENDANT AS A PERSISTENT  MISDEMEANOR
 OFFENDER.
 4.  NOTICE  OF HEARING. UPON RECEIPT OF THE ORDER AND STATEMENT OF THE
 COURT, THE CLERK OF THE COURT MUST SEND  A  NOTICE  OF  HEARING  TO  THE
 DEFENDANT,  HIS  OR  HER  COUNSEL AND THE DISTRICT ATTORNEY. SUCH NOTICE
 MUST SPECIFY THE TIME AND PLACE OF THE HEARING AND  THE  FACT  THAT  THE
 PURPOSE  OF  THE  HEARING  IS  TO DETERMINE WHETHER OR NOT THE DEFENDANT
 SHOULD BE SENTENCED AS A PERSISTENT MISDEMEANOR  OFFENDER.  EACH  NOTICE
 REQUIRED  TO  BE  SENT  HEREUNDER  MUST  BE ACCOMPANIED BY A COPY OF THE
 STATEMENT OF THE COURT.
 5. BURDEN AND STANDARD OF  PROOF;  EVIDENCE.  UPON  ANY  HEARING  HELD
 PURSUANT TO THIS SECTION THE BURDEN OF PROOF IS UPON THE PEOPLE. A FIND
 ING  THAT THE DEFENDANT IS A PERSISTENT MISDEMEANOR OFFENDER, AS DEFINED
 IN SUBDIVISION ONE OF SECTION 70.16 OF THE PENAL LAW, MUST BE BASED UPON
 PROOF BEYOND A REASONABLE DOUBT BY EVIDENCE ADMISSIBLE UNDER  THE  RULES
 APPLICABLE TO THE TRIAL OF THE ISSUE OF GUILT. MATTERS PERTAINING TO THE
 DEFENDANT'S  HISTORY  AND  CHARACTER AND THE NATURE AND CIRCUMSTANCES OF
 HIS OR HER CRIMINAL CONDUCT, AS WELL AS  THE  PUBLIC  INTEREST,  MAY  BE
 ESTABLISHED BY ANY RELEVANT EVIDENCE, NOT LEGALLY PRIVILEGED, REGARDLESS
 OF ADMISSIBILITY UNDER THE EXCLUSIONARY RULES OF EVIDENCE, AND THE STAN
 DARD  OF  PROOF WITH RESPECT TO SUCH MATTERS SHALL BE A PREPONDERANCE OF
 THE EVIDENCE.
 6. CONSTITUTIONALITY OF PRIOR CONVICTIONS. A  PREVIOUS  CONVICTION  IN
 THIS  OR  ANY  OTHER JURISDICTION WHICH WAS OBTAINED IN VIOLATION OF THE
 RIGHTS OF THE DEFENDANT UNDER THE APPLICABLE PROVISIONS OF THE CONSTITU
 TION OF THE UNITED STATES MAY NOT BE COUNTED IN DETERMINING WHETHER  THE
 DEFENDANT  IS  A  PERSISTENT MISDEMEANOR OFFENDER. THE DEFENDANT MAY, AT
 ANY TIME DURING THE COURSE OF THE HEARING HEREUNDER CONTROVERT AN  ALLE
 GATION  WITH RESPECT TO SUCH CONVICTION IN THE STATEMENT OF THE COURT ON
 THE GROUNDS THAT THE CONVICTION WAS UNCONSTITUTIONALLY OBTAINED.   FAIL
 URE  TO  CHALLENGE THE PREVIOUS CONVICTION IN THE MANNER PROVIDED HEREIN
 CONSTITUTES A WAIVER ON THE PART OF THE DEFENDANT OF ANY  ALLEGATION  OF
 UNCONSTITUTIONALITY  UNLESS GOOD CAUSE BE SHOWN FOR SUCH FAILURE TO MAKE
 TIMELY CHALLENGE.
 7. PRELIMINARY EXAMINATION. WHEN THE DEFENDANT APPEARS FOR THE HEARING
 THE COURT MUST ASK HIM OR HER WHETHER HE OR SHE WISHES TO CONTROVERT ANY
 ALLEGATION MADE IN THE STATEMENT PREPARED BY THE COURT, AND  WHETHER  HE
 OR SHE WISHES TO PRESENT EVIDENCE ON THE ISSUE OF WHETHER HE OR SHE IS A
 PERSISTENT  MISDEMEANOR  OFFENDER OR ON THE QUESTION OF HIS OR HER BACK
 GROUND AND CRIMINAL CONDUCT. IF THE DEFENDANT WISHES TO  CONTROVERT  ANY
 ALLEGATION  IN  THE  STATEMENT  OF THE COURT, HE OR SHE MUST SPECIFY THE
 PARTICULAR ALLEGATION OR ALLEGATIONS HE OR SHE WISHES TO CONTROVERT.  IF
 HE OR SHE WISHES TO PRESENT EVIDENCE IN HIS OR HER OWN BEHALF, HE OR SHE
 MUST  SPECIFY THE NATURE OF SUCH EVIDENCE. UNCONTROVERTED ALLEGATIONS IN
 THE STATEMENT OF THE COURT ARE DEEMED EVIDENCE IN THE RECORD.
 8. CASES WHERE FURTHER HEARING IS NOT REQUIRED.  WHERE  THE  UNCONTRO
 VERTED  ALLEGATIONS  IN  THE  STATEMENT  OF  THE COURT ARE SUFFICIENT TO
 SUPPORT A FINDING THAT THE DEFENDANT IS A PERSISTENT MISDEMEANOR  OFFEN
 DER  AND  THE COURT IS SATISFIED THAT (A) THE UNCONTROVERTED ALLEGATIONS
 WITH RESPECT TO THE DEFENDANT'S BACKGROUND AND THE NATURE OF HIS OR  HER
 PRIOR CRIMINAL CONDUCT, AS WELL AS THE PUBLIC INTEREST, WARRANT SENTENC
 ING  THE  DEFENDANT  AS  A  PERSISTENT MISDEMEANOR OFFENDER, AND (B) THE
 DEFENDANT EITHER HAS NO RELEVANT EVIDENCE TO PRESENT OR THE FACTS  WHICH
 COULD BE ESTABLISHED THROUGH THE EVIDENCE OFFERED BY THE DEFENDANT WOULD
 
       S. 643                              4
 NOT  AFFECT THE COURT'S DECISION, THE COURT MAY ENTER A FINDING THAT THE
 DEFENDANT IS A PERSISTENT MISDEMEANOR OFFENDER AND SENTENCE HIM  OR  HER
 IN ACCORDANCE WITH THE PROVISIONS OF SUBDIVISION TWO OF SECTION 70.16 OF
 THE PENAL LAW.
 9.  CASES  WHERE  FURTHER  HEARING  IS  REQUIRED.  WHERE THE DEFENDANT
 CONTROVERTS AN ALLEGATION IN THE STATEMENT OF THE COURT AND  THE  UNCON
 TROVERTED  ALLEGATIONS IN SUCH STATEMENT ARE NOT SUFFICIENT TO SUPPORT A
 FINDING THAT THE DEFENDANT  IS  A  PERSISTENT  MISDEMEANOR  OFFENDER  AS
 DEFINED  IN  SUBDIVISION ONE OF SECTION 70.16 OF THE PENAL LAW, OR WHERE
 THE UNCONTROVERTED ALLEGATIONS WITH RESPECT TO THE  DEFENDANT'S  HISTORY
 AND  THE  NATURE  OF  HIS  OR HER PRIOR CRIMINAL CONDUCT, AS WELL AS THE
 PUBLIC INTEREST, WARRANT SENTENCING HIM OR  HER  TO  A  LESSER  TERM  OF
 IMPRISONMENT  AS  A  PERSISTENT  MISDEMEANOR  OFFENDER,  WITHIN THE TERM
 LIMITS PRESCRIBED BY LAW, OR WHERE THE DEFENDANT HAS OFFERED TO  PRESENT
 EVIDENCE  TO  ESTABLISH  FACTS THAT WOULD AFFECT THE COURT'S DECISION ON
 THE QUESTION OF WHETHER A PERSISTENT MISDEMEANOR  OFFENDER  SENTENCE  IS
 WARRANTED, THE COURT MAY FIX A DATE FOR A FURTHER HEARING.  SUCH HEARING
 SHALL  BE BEFORE THE COURT WITHOUT A JURY AND EITHER PARTY MAY INTRODUCE
 EVIDENCE WITH RESPECT TO  THE  CONTROVERTED  ALLEGATIONS  OR  ANY  OTHER
 MATTER  RELEVANT  TO THE ISSUE OF WHETHER OR NOT THE DEFENDANT SHOULD BE
 SENTENCED AS A PERSISTENT MISDEMEANOR OFFENDER AND ON THE ISSUE  OF  THE
 LENGTH  OF  SUCH  SENTENCE.   AT THE CONCLUSION OF THE HEARING THE COURT
 MUST MAKE A FINDING AS TO WHETHER OR NOT THE DEFENDANT IS  A  PERSISTENT
 MISDEMEANOR  OFFENDER  AND,  UPON A FINDING THAT HE OR SHE IS SUCH, MUST
 THEN MAKE SUCH FINDINGS OF FACT AS IT DEEMS RELEVANT TO THE QUESTION  OF
 WHAT LENGTH OF PERSISTENT MISDEMEANOR OFFENDER INCARCERATION SENTENCE IS
 WARRANTED,  AND WHAT OTHER SENTENCE AUTHORIZED BY LAW SHOULD BE IMPOSED.
 IF THE COURT FINDS THAT THE DEFENDANT IS A PERSISTENT MISDEMEANOR OFFEN
 DER, IT MAY SENTENCE THE DEFENDANT IN ACCORDANCE WITH THE PROVISIONS  OF
 SUBDIVISION TWO OF SECTION 70.16 OF THE PENAL LAW.
 10. TERMINATION OF HEARING. AT ANY TIME DURING THE PENDENCY OF A HEAR
 ING  PURSUANT  TO THIS SECTION, THE COURT MAY, IN ITS DISCRETION, TERMI
 NATE THE HEARING WITHOUT MAKING ANY FINDING.  IN SUCH CASE,  UNLESS  THE
 COURT  RECOMMENCES THE PROCEEDINGS AND MAKES THE NECESSARY FINDINGS, THE
 DEFENDANT MAY NOT BE SENTENCED AS A PERSISTENT MISDEMEANOR OFFENDER.
 

S 3. This act shall take effect on the first of November next succeed
 ing the date on which it shall have become a law.

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