Tuesday, September 18, 2012

Sentencing in New York - A Primer

Jill Paperno,
Special Assistant Monroe County Public Defender and
author of Representing the Accused: a Practical Guide to Criminal Defense (See)

This post is aimed at reviewing some basics of felony sentencing that those who don't handle it on a regular basis may not be familiar with yet.  First, most sentencing information can be found in Article 70  of the Penal Law, but it is dense and confusing, and even those who have practiced for years have trouble understanding it.  If you have questions about a sentencing matter, as with anything, talk to more senior attorneys.  The following rules are general - there are exceptions, and if you look at the statutes, there are many specific sentences for specific charges, so it's getting impossible to memorize the sentencing schemes the way attorneys could many years ago. 

There are three types of sentences involving straight (not intermittent) incarceration.  They are definite sentences, indeterminate sentences and determinate sentences. 

Definite sentences 
Definite sentences are sentences of one year or less, and they are served in local (instead of state) facilities.  They can run concurrently or consecutively with other sentences, although if they run with probation sentences and exceed the amount of time one can spend in jail while on probation they may void the probation part.  But that's a memo for another day.  They can be imposed for violations that permit jail time sentences, misdemeanors, and felonies for defendants who do not have "predicate" felonies (see below) and are convicted of felonies that do not require state prison 

A definite sentence is reduced by one third if a client does not lose good time while incarcerated (doesn't get into trouble in jail).  Definite sentences may be part of probation sentences (shock probation) and run at the same time as probation sentences.  The maximum definite sentence a person can serve on a misdemeanor while serving probation is 60 days, and the max on a felony is 6 months.   

Definite sentences can run consecutively.  Once a person has several consecutive definite sentences the time they spend in jail caps out at 2 years.  In other words, if they get three years consecutive on definite sentences they serve 2/3, or two years.  If they get four years it still caps at two years.  (I decided not to add statutory references because it would take me too long to write this but if anyone else wants to that would be awesome.) 

Definite sentences are not followed by post-incarceration supervision, such as parole or post-release supervision.  (By the way, probation is a sentence of supervision in the community that is in lieu of jail; parole and post-release supervision are sentences that follow a sentence of incarceration except when the sentence is directly to parole as a Willard sentence.) 

Indeterminate sentences 
Indeterminate sentences are imposed on two types of felonies - non-violent felonies and really bad felonies. 

An indeterminate sentence is a sentence that has a minimum and a maximum.  The minimum is the time a defendant must serve before s/he is eligible for parole.  It's not a guarantee of release - it's just the first time a defendant sees the Parole Board. Indeterminate sentences are served in state prison. 

Non-VFO Indeterminates 
If a client receives an indeterminate sentence such as 1-3, the client sees the Board after 1 year (but if there was jail time served prior to sentencing the 1 year is reduced by that time).  If a person is released after seeing the Parole Board they are released to parole, a form of supervision.  Jail time credit also reduces the maximum on an indeterminate. 

On an indeterminate sentence where there is a number for the max - like the "3" in the example - the defendant has to serve 2/3 before s/he is eligible for conditional release.  That means if the defendant has not lost good time in prison ( not lost time based on misbehavior) s/he can be released after 2/3 of the sentence to conditional discharge.  But be aware, in DWI and sex offense cases, the conditions are so onerous that a person may not get released at that time.  If a person is released at the conditional release date ("CR") s/he is released to a form of parole supervision, conditional release.  This is called being - you guessed it - "CR'd". 

If a person does not get released until the maximum date - the "3" in the prior example, that is called being "maxxed" (sp?) or "maxxing out" (sp?).  If you max, you are not on supervision afterwards. 

VFO, Drug, Sex Offense or Persistent Indeterminates 
If a client is convicted of an A felony (murder, certain sex offenses or drug offenses) or convicted as a persistent offender the indeterminate sentence still has a minimum and a maximum, but the maximum is life.  That means that a defendant must serve the minimum before being eligible for parole, and then can see the Parole Board.  As with other indeterminate sentences, if the defendant is not released at the first parole board meeting, they can return every two years or so - but that doesn't guarantee release.  In the case of a life sentence, the defendant may never be released by the parole board.   

The minimum time on indeterminate sentences can be reduced in some cases by participation in programming, but it is unlikely that will happen with a minimum of less than 3 years, since the programs take a while to get into and complete. 

Determinate Sentences 

Determinate sentences are sentences imposed for violent felonies.  They are periods of incarceration in state prison.  They include a single number that represents the time a person will spend in prison, and another number that represents a period of post release supervision.  Post release supervision is another word for parole (created after New York politicians claimed they were eliminating parole for violent offenders, if memory serves).  So the sentence may be described as something like "5 determinate, 2 1/2 post release supervision".   On a determinate sentence a defendant has to serve 6/7 of the time before s/he can be released.  Long story about what happens to that other 1/7.  If a person on a determinate sentence is released s/he will then be under post release supervision,. 

With non-VFO determinate sentences (drug cases), a defendant may be able to participate in programs to reduce the sentence another 1/7. 

Determinate sentences were enacted, again if memory serves - and it does less and less these days -  in 1998, so sentences prior to that time for VFOs were indeterminate, with minimums being half of the maxes.   

Predicate Felonies 

If a person has a prior felony conviction, that will affect the type of sentence they can receive on a new felony.  There are many issues relating to prior felonies in determining whether they constitute "predicate" felonies for sentencing purposes  - including whether the priors are actually felonies, whether there were legal issues at the time that prevent them from qualifying as predicates, and most importantly, when they occurred. Youthful Offender adjudications do not count as prior felonies.   A felony does not count as a predicate felony (except for persistent felonies and persistent violent - another memo for another day - phew - lots to do) unless the conviction was within ten years of the current offense.  So the easy example is if a person has a felony in 2005, and picks up a new charge today - clearly within the ten years.  If the prior constitutes a felony in NY and meets other statutory criteria, and was not a YO, the person is a predicate for sentencing purposes.  But what about if the felony was in 1998?  Can that qualify as a predicate?  Depends.  If the person spent time in prison or in jail - basically time incarcerated - between 1998 and now, and that time prevented the defendant from having ten years of "street time", then the person is a predicate.  In other words, if the 1998 conviction resulted in a 5-15 year sentence, and the defendant wasn't released until 2003, then that person hasn't had 10 years of street time and is a predicate felon for sentencing purposes. 

If a defendant has a prior felony, it does not affect the time they can spend on a definite sentence. 

If a defendant has a prior felony and a new non-VFO, on a conviction for the new felony, the sentence must be an indeterminate sentence.  The amount of time depends on what level felony the new charge is. 

If a defendant has a prior felony conviction and a new VFO, on a conviction for the new charge the sentence must be a determinate sentence with a period of post release.  The amount of time depends on whether the prior was a VFO or non-VFO, and the level of the new charge. 

A word about Jail Time Credit and Concurrent/Consecutive Sentences 

Once a person starts serving a sentence, they no longer accrue jail time credit toward their other charges.  If a sentence is imposed concurrently to another sentence, but the other sentence has concluded, the full sentence will have to be served.  These are often concepts that attorneys are not familiar with, and sometimes cause us to tell clients they will be serving less time than they actually wind up serving.  Please feel free to talk to more experienced attorneys when you're trying to work out dispositions that may be affected by other pending charges or sentences that have already been imposed.  The jail records office at the Monroe County Jail, and the New York State Department of Corrections Office of Sentencing Review is also helpful in figuring out what a negotiated sentence will actually mean to your clients. 


  1. Can a person receive probation if they are a predicate

  2. Not for a felony, no. The minimum would be 1.5-3 for an E felony. Predicates have to receive state prison time.

  3. Can a person get out on 9 month post release if they have 10 months and another10 months to do they are not ran together

  4. Can I be sentance 1 1/2 years with 2 year post realese in new York state?