NYS Penal Law
Penal Law Criminal Code
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Article 65 - NY Penal Law
SENTENCES OF PROBATION, CONDITIONAL DISCHARGE AND UNCONDITIONAL DISCHARGE
Section |
Description |
65.00 |
Sentence of probation. |
65.05 |
Sentence of conditional discharge. |
65.10 |
Conditions of probation and of conditional discharge. |
65.15 |
Calculation of periods of probation and of conditional discharge. |
65.20 |
Sentence of unconditional discharge. |
S 65.00 Sentence of probation.
1. Criteria. (a) Except as otherwise required by section 60.04 or
60.05 of this title, and except as provided by paragraph (b) hereof, the
court may sentence a person to a period of probation upon conviction of
any crime if the court, having regard to the nature and circumstances of
the crime and to the history, character and condition of the defendant,
is of the opinion that:
(i) Institutional confinement for the term authorized by law of the
defendant is or may not be necessary for the protection of the public;
(ii) the defendant is in need of guidance, training or other
assistance which, in his case, can be effectively administered through
probation supervision; and
(iii) such disposition is not inconsistent with the ends of justice.
(b) The court, with the concurrence of either the administrative judge
of the court or of the judicial district within which the court is
situated or such administrative judge as the presiding justice of the
appropriate appellate division shall designate, may sentence a person to
a period of probation upon conviction of a class A-II felony defined in
article two hundred twenty, 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 where the person is a second felony drug
offender as defined in paragraph (b) of subdivision one of section 70.70
of this chapter, if the prosecutor either orally on the record or in a
writing filed with the indictment recommends that the court sentence
such person to a period of probation upon the ground that such person
has or is providing material assistance in the investigation,
apprehension or prosecution of any person for a felony defined in
article two hundred twenty or the attempt or the conspiracy to commit
any such felony, and if the court, having regard to the nature and
circumstances of the crime and to the history, character and condition
of the defendant is of the opinion that:
(i) Institutional confinement of the defendant is not necessary for
the protection of the public;
(ii) The defendant is in need of guidance, training or other
assistance which, in his case, can be effectively administered through
probation supervision;
(iii) The defendant has or is providing material assistance in the
investigation, apprehension or prosecution of a person for a felony
defined in article two hundred twenty or the attempt or conspiracy to
commit any such felony; and
(iv) Such disposition is not inconsistent with the ends of justice.
* Provided, however, that the court shall not, except to the extent
authorized by paragraph (d) of subdivision two of section 60.01 of this
chapter, impose a sentence of probation in any case where it sentences a
defendant for more than one crime and imposes a sentence of imprisonment
for any one of the crimes, or where the defendant is subject to an
undischarged indeterminate or determinate sentence of imprisonment which
was imposed at a previous time by a court of this state and has more
than one year to run.
* NB Effective until September 1, 2017
* Provided, however, that the court shall not, except to the extent
authorized by paragraph (d) of subdivision two of section 60.01 of this
chapter, impose a sentence of probation in any case where it sentences a
defendant for more than one crime and imposes a sentence of imprisonment
for any one of the crimes, or where the defendant is subject to an
undischarged indeterminate or reformatory sentence of imprisonment which
was imposed at a previous time by a court of this state and has more
than one year to run.
* NB Effective September 1, 2017
2. Sentence. When a person is sentenced to a period of probation the
court shall, except to the extent authorized by paragraph (d) of
subdivision two of section 60.01 of this chapter, impose the period
authorized by subdivision three of this section and shall specify, in
accordance with section 65.10, the conditions to be complied with. The
court may modify or enlarge the conditions or, if the defendant commits
an additional offense or violates a condition, revoke the sentence at
any time prior to the expiration or termination of the period of
probation.
3. Periods of probation. Unless terminated sooner in accordance with
the criminal procedure law, the period of probation shall be as follows:
(a) (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;
(ii) For a class A-II felony drug offender as defined in paragraph (a)
of subdivision one of section 70.71 of this chapter as described in
paragraph (b) of subdivision one of this section, or a class B felony
committed by a second felony drug offender described in paragraph (b) of
subdivision one of this section, the period of probation shall be life
and for a class B felony defined in section 220.48 of this chapter, the
period of probation shall be twenty-five years;
(iii) For a felony sexual assault, the period of probation shall be
ten years.
(b) (i) For a class A misdemeanor, other than a sexual assault, the
period of probation shall be a term of two or three years;
(ii) For a class A misdemeanor sexual assault, the period of probation
shall be six years.
(c) For a class B misdemeanor, the period of probation shall be one
year, except the period of probation shall be no less than one year and
no more than three years for the class B misdemeanor of public lewdness
as defined in section 245.00 of this chapter;
(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.
For the purposes of this section, the term "sexual assault" means an
offense defined in article one hundred thirty or two hundred
sixty-three, or in section 255.25, 255.26 or 255.27 of this chapter, or
an attempt to commit any of the foregoing offenses.
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
following a hearing pursuant to section 410.70 of the criminal procedure
law and the court continues or modifies the sentence, the court may
extend the remaining period of probation up to the maximum term
authorized by this section. Provided, however, a defendant shall receive
credit for the time during which he or she was supervised under the
original probation sentence prior to any declaration of delinquency and
for any time spent in custody pursuant to this article for an alleged
violation of probation.
5. In any case where a court pursuant to its authority under
subdivision four of section 60.01 of this chapter revokes probation and
sentences such person to imprisonment and probation, as provided in
paragraph (d) of subdivision two of section 60.01 of this chapter, the
period of probation shall be the remaining period of the original
probation sentence or one year whichever is greater.
S 65.05 Sentence of conditional discharge.
1. Criteria. (a) Except as otherwise required by section 60.05, the
court may impose a sentence of conditional discharge for an offense if
the court, having regard to the nature and circumstances of the offense
and to the history, character and condition of the defendant, is of the
opinion that neither the public interest nor the ends of justice would
be served by a sentence of imprisonment and that probation supervision
is not appropriate.
(b) When a sentence of conditional discharge is imposed for a felony,
the court shall set forth in the record the reasons for its action.
2. Sentence. Except to the extent authorized by paragraph (d) of
subdivision two of section 60.01 of this chapter, when the court imposes
a sentence of conditional discharge the defendant shall be released with
respect to the conviction for which the sentence is imposed without
imprisonment or probation supervision but subject, during the period of
conditional discharge, to such conditions as the court may determine.
The court shall impose the period of conditional discharge authorized by
subdivision three of this section and shall specify, in accordance with
section 65.10, the conditions to be complied with. If a defendant is
sentenced pursuant to paragraph (e) of subdivision two of section 65.10
of this chapter, the court shall require the administrator of the
program to provide written notice to the court of any violation of
program participation by the defendant. The court may modify or enlarge
the conditions or, if the defendant commits an additional offense or
violates a condition, revoke the sentence at any time prior to the
expiration or termination of the period of conditional discharge.
3. Periods of conditional discharge. Unless terminated sooner in
accordance with the criminal procedure law, the period of conditional
discharge shall be as follows:
(a) Three years in the case of a felony; and
(b) One year in the case of a misdemeanor or a violation.
Where the court has required, as a condition of the sentence, that the
defendant make restitution of the fruits of his or her offense or make
reparation for the loss caused thereby and such condition has not been
satisfied, the court, at any time prior to the expiration or termination
of the period of conditional discharge, may impose an additional period.
The length of the additional period shall be fixed by the court at the
time it is imposed and shall not be more than two years. All of the
incidents of the original sentence, including the authority of the court
to modify or enlarge the conditions, shall continue to apply during such
additional period.
S 65.10 Conditions of probation and of conditional discharge.
1. In general. The conditions of probation and of conditional
discharge shall be such as the court, in its discretion, deems
reasonably necessary to insure that the defendant will lead a
law-abiding life or to assist him to do so.
2. Conditions relating to conduct and rehabilitation. When imposing a
sentence of probation or of conditional discharge, the court shall, as a
condition of the sentence, consider restitution or reparation and may,
as a condition of the sentence, require that the defendant:
(a) Avoid injurious or vicious habits;
(b) Refrain from frequenting unlawful or disreputable places or
consorting with disreputable persons;
(c) Work faithfully at a suitable employment or faithfully pursue a
course of study or of vocational training that will equip him for
suitable employment;
(d) Undergo available medical or psychiatric treatment and remain in a
specified institution, when required for that purpose;
(e) Participate in an alcohol or substance abuse program or an
intervention program approved by the court after consultation with the
local probation department having jurisdiction, or such other public or
private agency as the court determines to be appropriate;
(e-1) Participate in a motor vehicle accident prevention course. The
court may require such condition where a person has been convicted of a
traffic infraction for a violation of article twenty-six of the vehicle
and traffic law where the commission of such violation caused the
serious physical injury or death of another person. For purposes of this
paragraph, the term "motor vehicle accident prevention course" shall
mean a motor vehicle accident prevention course approved by the
department of motor vehicles pursuant to article twelve-B of the vehicle
and traffic law;
(f) Support his dependents and meet other family responsibilities;
(g) Make restitution of the fruits of his or her offense or make
reparation, in an amount he can afford to pay, for the actual
out-of-pocket loss caused thereby. When restitution or reparation is a
condition of the sentence, the court shall fix the amount thereof, the
manner of performance, specifically state the date when restitution is
to be paid in full prior to the expiration of the sentence of probation
and may establish provisions for the early termination of a sentence of
probation or conditional discharge pursuant to the provisions of
subdivision three of section 410.90 of the criminal procedure law after
the restitution and reparation part of a sentence of probation or
conditional discharge has been satisfied. The court shall provide that
in the event the person to whom restitution or reparation is to be made
dies prior to the completion of said restitution or reparation, the
remaining payments shall be made to the estate of the deceased.
(g-1) Reimburse a consumer credit reporting agency for the amount of
the fee or fees that could have been charged by such agency to a
domestic violence victim, as defined in section three hundred eighty-t
of the general business law, had such victim not been eligible to
receive security freeze services without charge pursuant to subdivision
(n) of such section;
(h) Perform services for a public or not-for-profit corporation,
association, institution or agency, including but not limited to
services for the division of substance abuse services, services in an
appropriate community program for removal of graffiti from public or
private property, including any property damaged in the underlying
offense, or services for the maintenance and repair of real or personal
property maintained as a cemetery plot, grave, burial place or other
place of interment of human remains. Provided however, that the
performance of any such services shall not result in the displacement of
employed workers or in the impairment of existing contracts for
services, nor shall the performance of any such services be required or
permitted in any establishment involved in any labor strike or lockout.
The court may establish provisions for the early termination of a
sentence of probation or conditional discharge pursuant to the
provisions of subdivision three of section 410.90 of the criminal
procedure law after such services have been completed. Such sentence may
only be imposed upon conviction of a misdemeanor, violation, or class D
or class E felony, or a youthful offender finding replacing any such
conviction, where the defendant has consented to the amount and
conditions of such service;
(i) If a person under the age of twenty-one years, (i) resides with
his parents or in a suitable foster home or hostel as referred to in
section two hundred forty-four of the executive law, (ii) attends
school, (iii) spends such part of the period of the sentence as the
court may direct, but not exceeding two years, in a facility made
available by the division for youth pursuant to article nineteen-G of
the executive law, provided that admission to such facility may be made
only with the prior consent of the division for youth, (iv) attend a
non-residential program for such hours and pursuant to a schedule
prescribed by the court as suitable for a program of rehabilitation of
youth, (v) contribute to his own support in any home, foster home or
hostel;
(j) Post a bond or other security for the performance of any or all
conditions imposed;
(k) Observe certain specified conditions of conduct as set forth in an
order of protection issued pursuant to section 530.12 or 530.13 of the
criminal procedure law.
(k-1) Install and maintain a functioning ignition interlock device, as
that term is defined in section one hundred nineteen-a of the vehicle
and traffic law, in any vehicle owned or operated by the defendant if
the court in its discretion determines that such a condition is
necessary to ensure the public safety. The court may require such
condition only where a person has been convicted of a violation of
subdivision two, two-a or three of section eleven hundred ninety-two of
the vehicle and traffic law, or any crime defined by the vehicle and
traffic law or this chapter of which an alcohol-related violation of any
provision of section eleven hundred ninety-two of the vehicle and
traffic law is an essential element. The offender shall be required to
install and operate the ignition interlock device only in accordance
with section eleven hundred ninety-eight of the vehicle and traffic law.
(l) Satisfy any other conditions reasonably related to his
rehabilitation.
3. Conditions relating to supervision. When imposing a sentence of
probation the court, in addition to any conditions imposed pursuant to
subdivision two of this section, shall require as conditions of the
sentence, that the defendant:
(a) Report to a probation officer as directed by the court or the
probation officer and permit the probation officer to visit him at his
place of abode or elsewhere;
(b) Remain within the jurisdiction of the court unless granted
permission to leave by the court or the probation officer. Where a
defendant is granted permission to move or travel outside the
jurisdiction of the court, the defendant shall sign a written waiver of
extradition agreeing to waive extradition proceedings where such
proceedings are the result of the issuance of a warrant by the court
pursuant to subdivision two of section 410.40 of the criminal procedure
law based on an alleged violation of probation. Where any county or the
city of New York incurs costs associated with the return of any
probationer based on the issuance of a warrant by the court pursuant to
subdivision two of section 410.40 of the criminal procedure law, the
jurisdiction may collect the reasonable and necessary expenses involved
in connection with his or her transport, from the probationer; provided
that where the sentence of probation is not revoked pursuant to section
410.70 of the criminal procedure law no such expenses may be collected.
(c) Answer all reasonable inquiries by the probation officer and
notify the probation officer prior to any change in address or
employment.
4. Electronic monitoring. When imposing a sentence of probation the
court may, in addition to any conditions imposed pursuant to
subdivisions two and three of this section, require the defendant to
submit to the use of an electronic monitoring device and/or to follow a
schedule that governs the defendant`s daily movement. Such condition may
be imposed only where the court, in its discretion, determines that
requiring the defendant to comply with such condition will advance
public safety, probationer control or probationer surveillance.
Electronic monitoring shall be used in accordance with uniform
procedures developed by the division of probation and correctional
alternatives.
4-a. Mandatory conditions for sex offenders. (a) When imposing a
sentence of probation or conditional discharge upon a person convicted
of an offense defined in article one hundred thirty, two hundred
thirty-five or two hundred sixty-three of this chapter, or section
255.25, 255.26 or 255.27 of this chapter, and the victim of such offense
was under the age of eighteen at the time of such offense or such person
has been designated a level three sex offender pursuant to subdivision
six of section 168-l of the correction law, the court shall require, as
a mandatory condition of such sentence, that such sentenced offender
shall refrain from knowingly entering into or upon any school grounds,
as that term is defined in subdivision fourteen of section 220.00 of
this chapter, or any other facility or institution primarily used for
the care or treatment of persons under the age of eighteen while one or
more of such persons under the age of eighteen are present, provided
however, that when such sentenced offender is a registered student or
participant or an employee of such facility or institution or entity
contracting therewith or has a family member enrolled in such facility
or institution, such sentenced offender may, with the written
authorization of his or her probation officer or the court and the
superintendent or chief administrator of such facility, institution or
grounds, enter such facility, institution or upon such grounds for the
limited purposes authorized by the probation officer or the court and
superintendent or chief officer. Nothing in this subdivision shall be
construed as restricting any lawful condition of supervision that may be
imposed on such sentenced offender.
(b) When imposing a sentence of probation or conditional discharge
upon a person convicted of an offense for which registration as a sex
offender is required pursuant to subdivision two or three of section one
hundred sixty-eight-a of the correction law, and the victim of such
offense was under the age of eighteen at the time of such offense or
such person has been designated a level three sex offender pursuant to
subdivision six of section one hundred sixty-eight-l of the correction
law or the internet was used to facilitate the commission of the crime,
the court shall require, as mandatory conditions of such sentence, that
such sentenced offender be prohibited from using the internet to access
pornographic material, access a commercial social networking website,
communicate with other individuals or groups for the purpose of
promoting sexual relations with persons under the age of eighteen, and
communicate with a person under the age of eighteen when such offender
is over the age of eighteen, provided that the court may permit an
offender to use the internet to communicate with a person under the age
of eighteen when such offender is the parent of a minor child and is not
otherwise prohibited from communicating with such child. Nothing in this
subdivision shall be construed as restricting any other lawful condition
of supervision that may be imposed on such sentenced offender. As used
in this subdivision, a "commercial social networking website" shall mean
any business, organization or other entity operating a website that
permits persons under eighteen years of age to be registered users for
the purpose of establishing personal relationships with other users,
where such persons under eighteen years of age may: (i) create web pages
or profiles that provide information about themselves where such web
pages or profiles are available to the public or to other users; (ii)
engage in direct or real time communication with other users, such as a
chat room or instant messenger; and (iii) communicate with persons over
eighteen years of age; provided, however, that, for purposes of this
subdivision, a commercial social networking website shall not include a
website that permits users to engage in such other activities as are not
enumerated herein.
5. Other conditions. When imposing a sentence of probation the court
may, in addition to any conditions imposed pursuant to subdivisions two,
three and four of this section, require that the defendant comply with
any other reasonable condition as the court shall determine to be
necessary or appropriate to ameliorate the conduct which gave rise to
the offense or to prevent the incarceration of the defendant.
5-a. Other conditions for sex offenders. When imposing a sentence of
probation upon a person convicted of an offense for which registration
as a sex offender is required pursuant to subdivision two or three of
section one hundred sixty-eight-a of the correction law, in addition to
any conditions required under subdivisions two, three, four, four-a and
five of this section, the court may require that the defendant comply
with a reasonable limitation on his or her use of the internet that the
court determines to be necessary or appropriate to ameliorate the
conduct which gave rise to the offense or to protect public safety,
provided that the court shall not prohibit such sentenced offender from
using the internet in connection with education, lawful employment or
search for lawful employment.
S 65.15 Calculation of periods of probation and of conditional discharge.
1. A period of probation or a period or additional period of
conditional discharge commences on the day it is imposed. Multiple
periods, whether imposed at the same or at different times, shall run
concurrently.
2. When a person has violated the conditions of his probation or
conditional discharge and is declared delinquent by the court, the
declaration of delinquency shall interrupt the period of the sentence as
of the date of the delinquency and such interruption shall continue
until a final determination as to the delinquency has been made by the
court pursuant to a hearing held in accordance with the provisions of
the criminal procedure law.
* 3. In any case where a person who is under a sentence of probation
or of conditional discharge is also under an indeterminate or
determinate sentence of imprisonment, imposed for some other offense by
a court of this state the service of the sentence of imprisonment shall
satisfy the sentence of probation or of conditional discharge unless the
sentence of probation or of conditional discharge is revoked prior to
the next to occur of parole or conditional release under, or
satisfaction of, the sentence of imprisonment. Provided, however, that
the service of an indeterminate or determinate sentence of imprisonment
shall not satisfy a sentence of probation if the sentence of probation
was imposed at a time when the sentence of imprisonment had one year or
less to run.
* NB Effective until September 1, 2017
* 3. In any case where a person who is under a sentence of probation
or of conditional discharge is also under an indeterminate sentence of
imprisonment, or a reformatory sentence of imprisonment authorized by
section 75.00, imposed for some other offense by a court of this state
the service of the sentence of imprisonment shall satisfy the sentence
of probation or of conditional discharge unless the sentence of
probation or of conditional discharge is revoked prior to the next to
occur of parole or conditional release under, or satisfaction of, the
sentence of imprisonment. Provided, however, that the service of an
indeterminate or a reformatory sentence of imprisonment shall not
satisfy a sentence of probation if the sentence of probation was imposed
at a time when the sentence of imprisonment had one year or less to run.
* NB Effective September 1, 2017
S 65.20 Sentence of unconditional discharge.
1. Criteria. The court may impose a sentence of unconditional
discharge in any case where it is authorized to impose a sentence of
conditional discharge under section 65.05 if the court is of the opinion
that no proper purpose would be served by imposing any condition upon
the defendant`s release.
When a sentence of unconditional discharge is imposed for a felony,
the court shall set forth in the record the reasons for its action.
2. Sentence. When the court imposes a sentence of unconditional
discharge, the defendant shall be released with respect to the
conviction for which the sentence is imposed without imprisonment, fine
or probation supervision. A sentence of unconditional discharge is for
all purposes a final judgment of conviction.
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