Relates to establishing terms of probation sentences.
TITLE OF BILL: An act to amend the penal law and the criminal procedure law, in relation to establishing terms of probation sentences and revocations thereof under certain circumstances
SUMMARY OF PROVISIONS: The bill would amend PL § 65.00 to provide the court with the discretion to impose a probation term of three, four or five years for a felony. This would only apply to felonies other than (1) Class A-II felonies defined in PL Article 220; (2) the Class B felony defined in PL § 220.48; (3) any other Class B felony defined in PL Article 220 committed by a second felony drug offender; or (4) any felony involving a sexual assault.
Section 2 of the bill would provide the court with the discretion to impose a probation term of two or three years for a class A misdemeanor other than a sexual assault.
Section 3 of the bill would give the court the discretion to impose a probation term of two or three years for an unclassified misdemeanor, for which the authorized sentence of imprisonment is greater than three months.
Section 4 of the bill would amend would clarify that when someone is found to have violated terms of probation and the court continues or modifies the sentence, the court may extend remaining period of probation up to the maximum term authorized by § 65.00.
Section 5 amends Criminal Procedure Law § 410.70(5) to make corresponding changes
REASONS FOR SUPPORT: Currently, sentences involving probation are oriented to the conviction, rather than to the offender. Penal Law § 65.00 stipulates that, with very few exceptions, a period of probation for a felony offense must be five years, and a period of probation for a class A misdemeanor must be three years. Unlike sentences of incarceration, about which judges maintain broad discretion in determining the length of the sentence, judges are limited when determining the lengths of probation sentences.
This lack of judicial discretion prevents judges from distinguishing among convicted individuals on the basis of their prior criminal history; degree of culpability (major/minor actors); the risk level they pose to public safety; and their actuarially determined risk of re-offense. Moreover, all felony convictions, except those for certain drug-related offenses, receive five-year probation terms with no discretion for the
court to distinguish between the levels of such felonies (e.g., Vehicular manslaughter in the First Degree.
This proposal reflects "evidence-based practices" - that is, practices based on studies of what has been proven to be effective in the probation field - and reflects the idea that appropriate judicial discretion is critical to imposing correct probation term lengths in order to advance public safety. Research into community supervision and community corrections has shown that: (1) most re-offending and technical violations occur within the first eighteen months of one's probation term; and (2) supervision has its greatest impact in the first twelve months. As such, of those felony probationers who violate their terms of probation, more than 80% do so within the first three years, and 80% of misdemeanor probationers who violate the terms of supervision do so within the first two years.
This bill would allow probation departments to advance public safety by focusing scarce probation resources on the period of time when probationers are most likely to re-offend and when probation supervision is most effective. All Counties in New York, including the five boroughs New York City, are now employing evidence-based risk assessment instruments mandated by the State's Office of Probation and Correctional Alternatives. These are one of several tools that counties are utilizing to provide probation services that are tailored more closely to the individual. They can be used to guide judges in determining probation lengths, allowing their probation departments to focus scarce resources on higher risk probationers,- while lower-risk probationers are supervised for the period of time when it matters most. This use of evidence-based practices to concentrate resources on those who pose the highest risk to public safety will result in lower recidivism rates and increased positive outcomes for persons on probation.
Additionally, this proposal provides the court directly, and probation departments indirectly, with a new tool to impose graduated sanctions when probation is revoked. Currently, upon revocation, the only sanction available to the Court is to sentence an individual to incarceration, or a period of incarceration and probation. In other words, if a probationer is not following all the terms of probation even if the mistakes are not criminal in nature - the only recourse the court has is to sentence the probationer to a period in jailor prison. This proposal provides the court with an intermediate option, which is to impose a longer period of probation. In instances where an individual does not receive the maximum amount of probation time at sentencing, that sentence can be increased upon revocation, to the maximum probation sentence that had been originally available to the court.
FISCAL IMPACT: To be determined.
This act shall take effect immediately and would apply to offenses committed on or after the date upon which it becomes law. It shall also apply to offenses committed before such date, where the sentence upon conviction for such offense is imposed no earlier than ten days after such date.
STATE OF NEW YORK ________________________________________________________________________ 6880 IN SENATE April 4, 2012 ___________Introduced by Sen. GOLDEN -- 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 establishing terms of probation sentences and revocations thereof under certain circumstances THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Subparagraph (i) of paragraph (a) of subdivision 3 of section 65.00 of the penal law, as amended by section 20 of part AAA of chapter 56 of the laws of 2009, is amended to read as follows: (i) For a felony, other than a class A-II felony defined in article two hundred twenty of this chapter or the class B felony defined in section 220.48 of this chapter, or any other class B felony defined in article two hundred twenty of this chapter committed by a second felony drug offender, or a sexual assault, the period of probation shall be A TERM OF THREE, FOUR OR five years; S 2. Subparagraph (i) of paragraph (b) of subdivision 3 of section 65.00 of the penal law, as amended by chapter 264 of the laws of 2003, is amended to read as follows: (i) For a class A misdemeanor, other than a sexual assault, the period of probation shall be A TERM OF TWO OR three years; S 3. Paragraph (d) of subdivision 3 of section 65.00 of the penal law, as amended by chapter 264 of the laws of 2003, is amended to read as follows: (d) For an unclassified misdemeanor, the period of probation shall be A TERM OF TWO OR three years if the authorized sentence of imprisonment is in excess of three months, otherwise the period of probation shall be one year. S 4. Subdivision 4 of section 65.00 of the penal law is renumbered subdivision 5 and a new subdivision 4 is added to read as follows: 4. IF DURING THE PERIODS OF PROBATION REFERENCED IN SUBPARAGRAPH (I) OF PARAGRAPH (A), SUBPARAGRAPH (I) OF PARAGRAPH (B) AND PARAGRAPH (D) OF SUBDIVISION THREE OF THIS SECTION AN ALLEGED VIOLATION IS SUSTAINED AND THE COURT CONTINUES OR MODIFIES THE SENTENCE, THE COURT MAY EXTEND THEEXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD11927-01-1 S. 6880 2
REMAINING PERIOD OF PROBATION UP TO THE MAXIMUM TERM AUTHORIZED BY THIS SECTION. S 5. Subdivision 5 of section 410.70 of the criminal procedure law, as amended by chapter 112 of the laws of 1985, is amended to read as follows: 5. Revocation; modification; continuation. At the conclusion of the hearing the court may revoke, continue or modify the sentence of probation or conditional discharge. Where the court revokes the sentence, it must impose sentence as specified in subdivisions three and four of section 60.01 of the penal law. Where the court continues or modifies the sentence, it must vacate the declaration of delinquency and direct that the defendant be released. If the alleged violation is sustained and the court continues or modifies the sentence, it may extend the sentence up to the period of interruption specified in subdi- vision two of section 65.15 of the penal law, but any time spent in custody in any correctional institution pursuant to section 410.60 of this article shall be credited against the term of the sentence. PROVIDED FURTHER, WHERE THE ALLEGED VIOLATION IS SUSTAINED AND THE COURT CONTINUES OR MODIFIES THE SENTENCE, THE COURT MAY ALSO EXTEND THE REMAINING PERIOD OF PROBATION UP TO THE MAXIMUM TERM AUTHORIZED BY SECTION 65.00 OF THE PENAL LAW. S 6. This act shall take effect immediately; provided, however, that it shall apply to offenses committed on or after the date this act shall have become a law, and provided, further, however, that it shall also apply to offenses committed before such date, where the sentence upon conviction for such offense is imposed no earlier than ten days after such date.