§ 70.80 — Sentences of imprisonment for conviction of a felony sex offense

New York § 70.80

• Jurisdiction: New York
• Law PEN: Penal
• Title E: Sentences
• Art. 70: Sentences of Imprisonment

Text

§ 70.80 Sentences of imprisonment for conviction of a felony sex\n offense.\n 1. Definitions. (a) For the purposes of this section, a "felony sex\noffense" means a conviction of any felony defined in article one hundred\nthirty of this chapter, including a sexually motivated felony, or\npatronizing a person for prostitution in the first degree as defined in\nsection 230.06 of this chapter, patronizing a person for prostitution in\nthe second degree as defined in section 230.05 of this chapter,\naggravated patronizing a minor for prostitution in the third degree as\ndefined in section 230.11 of this chapter, aggravated patronizing a\nminor for prostitution in the second degree as defined in section 230.12\nof this chapter, aggravated patronizing a minor for prostitution in the\nfirst degree as defined in section 230.13 of this chapter, incest in the\nsecond degree as defined in section 255.26 of this chapter, or incest in\nthe first degree as defined in section 255.27 of this chapter, or a\nfelony attempt or conspiracy to commit any of the above.\n (b) A felony sex offense shall be deemed a "violent felony sex\noffense" if it is for an offense defined as a violent felony offense in\nsection 70.02 of this article, or for a sexually motivated felony as\ndefined in section 130.91 of this chapter where the specified offense is\na violent felony offense as defined in section 70.02 of this article.\n (c) For the purposes of this section, a "predicate felony sex\noffender" means a person who stands convicted of any felony sex offense\nas defined in paragraph (a) of this subdivision, other than a class A-I\nfelony, after having previously been subjected to one or more predicate\nfelony convictions as defined in subdivision one of section 70.06 or\nsubdivision one of section 70.04 of this article.\n (d) For purposes of this section, a "violent felony offense" is any\nfelony defined in subdivision one of section 70.02 of this article, and\na "non-violent felony offense" is any felony not defined therein.\n 2. In imposing a sentence within the authorized statutory range for\nany felony sex offense, the court may consider all relevant factors set\nforth in section 1.05 of this chapter, and in particular, may consider\nthe defendant's criminal history, if any, including any history of sex\noffenses; any mental illness or mental abnormality from which the\ndefendant may suffer; the defendant's ability or inability to control\nhis sexual behavior; and, if the defendant has difficulty controlling\nsuch behavior, the extent to which that difficulty may pose a threat to\nsociety.\n 3. Except as provided by subdivision four, five, six, seven or eight\nof this section, or when a defendant is being sentenced for a conviction\nof the class A-II felonies of predatory sexual assault and predatory\nsexual assault against a child as defined in sections 130.95 and 130.96\nof this chapter, or for any class A-I sexually motivated felony for\nwhich a life sentence or a life without parole sentence must be imposed,\na sentence imposed upon a defendant convicted of a felony sex offense\nshall be a determinate sentence. The determinate sentence shall be\nimposed by the court in whole or half years, and shall include as a part\nthereof a period of post-release supervision in accordance with\nsubdivision two-a of section 70.45 of this article. Persons eligible for\nsentencing under section 70.07 of this article governing second child\nsexual assault felonies shall be sentenced under such section and\nparagraph (j) of subdivision two-a of section 70.45 of this article.\n 4. (a) Sentences of imprisonment for felony sex offenses. Except as\nprovided in subdivision five, six, seven, or eight of this section, the\nterm of the determinate sentence must be fixed by the court as follows:\n (i) for a class B felony, the term must be at least five years and\nmust not exceed twenty-five years;\n (ii) for a class C felony, the term must be at least three and\none-half years and must not exceed fifteen years;\n (iii) for a class D felony, the term must be at least two years and\nmust not exceed seven years; and\n (iv) for a class E felony, the term must be at least one and one-half\nyears and must not exceed four years.\n (b) Probation. The court may sentence a defendant convicted of a class\nD or class E felony sex offense to probation in accordance with the\nprovisions of section 65.00 of this title.\n (c) Alternative definite sentences for class D and class E felony sex\noffenses. If the court, having regard to the nature and circumstances of\nthe crime and to the history and character of the defendant, is of the\nopinion that a sentence of imprisonment is necessary but that it would\nbe unduly harsh to impose a determinate sentence upon a person convicted\nof a class D or class E felony sex offense, the court may impose a\ndefinite sentence of imprisonment and fix a term of one year or less.\n 5. Sentence of imprisonment for a predicate felony sex offender. (a)\nApplicability. This subdivision shall apply to a predicate felony sex\noffender who stands convicted of a non-violent felony sex offense and\nwho was previously convicted of one or more felonies.\n (b) Non-violent predicate felony offense. When the court has found,\npursuant to the provisions of the criminal procedure law, that a person\nis a predicate felony sex offender, and the person's predicate\nconviction was for a non-violent felony offense, the court must impose a\ndeterminate sentence of imprisonment, the term of which must be fixed by\nthe court as follows:\n (i) for a class B felony, the term must be at least eight years and\nmust not exceed twenty-five years;\n (ii) for a class C felony, the term must be at least five years and\nmust not exceed fifteen years;\n (iii) for a class D felony, the term must be at least three years and\nmust not exceed seven years; and\n (iv) for a class E felony, the term must be at least two years and\nmust not exceed four years.\n (c) Violent predicate felony offense. When the court has found,\npursuant to the provisions of the criminal procedure law, that a person\nis a predicate felony sex offender, and the person's predicate\nconviction was for a violent felony offense, the court must impose a\ndeterminate sentence of imprisonment, the term of which must be fixed by\nthe court as follows:\n (i) for a class B felony, the term must be at least nine years and\nmust not exceed twenty-five years;\n (ii) for a class C felony, the term must be at least six years and\nmust not exceed fifteen years;\n (iii) for a class D felony, the term must be at least four years and\nmust not exceed seven years; and\n (iv) for a class E felony, the term must be at least two and one-half\nyears and must not exceed four years.\n (d) A defendant who stands convicted of a non-violent felony sex\noffense, other than a class A-I or class A-II felony, who is adjudicated\na persistent felony offender under section 70.10 of this article, shall\nbe sentenced pursuant to the provisions of section 70.10 or pursuant to\nthis subdivision.\n 6. Sentence of imprisonment for a violent felony sex offense. Except\nas provided in subdivisions seven and eight of this section, a defendant\nwho stands convicted of a violent felony sex offense must be sentenced\npursuant to the provisions of section 70.02, section 70.04, subdivision\nsix of section 70.06, section 70.08, or section 70.10 of this article,\nas applicable.\n 7. Sentence for a class A felony sex offense. When a person stands\nconvicted of a sexually motivated felony pursuant to section 130.91 of\nthis chapter and the specified offense is a class A felony, the court\nmust sentence the defendant in accordance with the provisions of:\n (a) section 60.06 of this chapter and section 70.00 of this article,\nas applicable, if such offense is a class A-I felony; and\n (b) section 70.00, 70.06 or 70.08 of this article, as applicable, if\nsuch offense is a class A-II felony.\n 8. Whenever a juvenile offender stands convicted of a felony sex\noffense, he or she must be sentenced pursuant to the provisions of\nsections 60.10 and 70.05 of this chapter.\n 9. Every determinate sentence for a felony sex offense, as defined in\nparagraph (a) of subdivision one of this section, imposed pursuant to\nany section of this article, shall include as a part thereof a period of\npost-release supervision in accordance with subdivision two-a of section\n70.45 of this article.\n