BILL NUMBER:  S959

 TITLE OF BILL :
An act to amend the penal law, in relation to consecutive sentences
and the calculation of sentences


 PURPOSE :
This bill would require that the sentences for conviction of two or
more crimes, when one crime is assault or homicide, to run
consecutively.

 SUMMARY OF PROVISIONS :
The bill amends subdivision 2 of Section 70.25 of the Penal Law to
require that when a defendant receives separate sentences for multiple
homicides or multiple assaults committed through a single act or
omission, those sentences must run consecutively. Presently, such
sentences are required to run concurrently.

The measure also amends paragraph (e) of subdivision 1 of Section
70.30 of the Penal Law to provide that defendants who receive
consecutive sentences involving one or more class A felonies and/or
violent felony offenses shall not receive the benefit of the Penal
Law's sentence merger provision. This provision requires that state
prison terms, which are designated by sentencing courts to run
consecutively, must automatically "merge down" so that they do not
              

exceed a statutorily predetermined maximum total of years, even though
the total number of years imposed by the court is greater.

Presently, only class A felony convictions are not subject to this
sentence merger requirement. This bill will increase the scope of that
exclusion so that multiple sentences for one or more class A felonies
and/or one or more violent felonies (violent felonies include forcible
rape, forcible sodomy, armed robbery and assault in the first degree),
will not be automatically reduced by the merger statute.

 JUSTIFICATION :
Two of the current provisions of the state's Penal Law operate,
sometimes singularly and sometimes in combination, to frustrate the
ability of a sentencing court to impose appropriate punishment on a
convicted, violent offender. The first of these two laws is
subdivision 2 of Section 70.25 of the Penal law. This statute
currently provides that the multiple sentences imposed on offenders
who have committed numerous crimes by means of a single act must run
concurrently. This means that all of the sentences are served at the
same time. In the other form of multiple sentencing, known as
consecutive sentencing, the service of each sentence is completed
before the service of the next sentence begins. The unfairness of this
mandatory concurrent sentencing law can be seen in the following
examples:

* A defendant, angry at having been evicted from a rooming house, sets
fire to it. As a result of the fire, five persons residing in the home
are killed. Since the five deaths were caused by setting a single
fire, the sentences imposed for the killings must run concurrently, a
fact decried by the sentencing judge.

* In order to obtain revenge on a former girlfriend, a defendant
throws an incendiary device into the crowded social club where she is
employed. Eighty-seven persons die in the resulting fire. Under
current law, each of the twenty-five years to life sentences imposed
for the eighty-seven resulting murder convictions must run
concurrently, thus amounting to approximately three and a half months
of imprisonment per murder victim.


* An offender sets off an incendiary device in a crowded subway car
and although no one is killed, numerous persons are severely burned
and many suffer permanent or protracted serious physical injury. No
matter how many persons are injured or how serious the injuries, the
sentences for the injury to each victim is required to run
concurrently to all the other sentences imposed.

These examples are not based on hypothesis; rather, each is based on
an actual case occurring in a different county of the state. In each
instance, the sentence which may be imposed for the harm caused to all
the victims is no greater than the sentence which can be imposed for
the harm to one of those victims. Thus, the offender effectively
receives no additional punishment for the additional victims harmed
beyond the first. These unfair results are not limited to cases in
which deaths or injuries are caused by a single fire or incendiary
device. The use by a defendant of an automatic weapon which could fire
repeated shots from one pull of the trigger, thereby causing multiple
deaths or injuries would mandate the same unfair imposition of
concurrent sentences for the resulting crimes.

This terrible unfairness is due to the fact that under the operation
of existing law, an offender causing multiple deaths or injuries by
one act is punished in proportion to the single unlawful act and not
in proportion to the number of victims killed or injured as a result
of that act. The net effect is that the offender is sentenced for the
harm caused to one victim and receives no additional punishment for
the harm to all the others, no matter how many. This unjust situation
can only be remedied by requiring that the punishment in such cases be
measured by the number of victims and the severity of their injuries.

We simply cannot afford to continue the current sentencing scheme in
which one act equals one punishment no matter how many victims. The
portion of the bill amending Penal Law Section 70.25 will remedy this
situation by requiring that the separate sentences imposed for
multiple injuries or deaths caused by one act run consecutively. This
will allow a defendant to be punished for more than just the harm
caused to one of his or her multiple victims. In this way, the bill
will help ensure that the extent of a defendant's sentence will
directly and appropriately relate to the amount of suffering he or she
has caused to society.

If, however, the present inequities in the sentencing of violent
offenders who harm multiple victims are to be fully addressed, a
second portion of the problem must be dealt with. That aspect of the
problem is contained in the sentence merger provisions of Penal Law
Section 70.30 subdivision (1) (e). Under the present sentence merger
statute, an adult defendant convicted of multiple, unrelated felonies
and given consecutive indeterminate sentences can serve no more than
an indeterminate sentence of twenty-five to fifty years. This
limitation does not apply to those sentenced for one or more class A
felonies such as murder. However, if no class A felony is involved,
the defendant cannot serve more than the twenty-five to fifty years,
no matter how violent, vicious or numerous the crimes involved and
even if a court has provided that each sentence is to run
consecutively. The twenty-five to fifty year limit applies only when a
defendant is sentenced for at least three violent felonies. If no
violent felonies and no class B felonies are involved, the sentencing
cap is a lesser period of ten to twenty years. Even these limitations
do not take into account additional reductions from the maximum
sentence term for good behavior in prison. The injustice caused by the
operation of the present sentencing merger law is no mere abstraction.
It is compellingly illustrated by the following actual cases:

* A group of five armed defendants invaded a diner late at night and,
at gunpoint, forced the seventy-six persons inside to disrobe and turn
over their possessions. Two of the victims were shot, but not fatally.
Various numbers of the seventy-six victims were forced to commit
sexual acts on the defendants or each other. Some persons were raped
repeatedly. The five defendants fled and were ultimately apprehended
and convicted of over one hundred and fifty-five counts of robbery,
rape, sodomy and weapons possession, as well as other felonies. The
well over one-hundred-year sentence given each defendant was
automatically reduced by previous versions of the sentence merger
statute to a term of fifteen to thirty years although today that
reduction would instead be to a term of twenty-five to fifty years
(due to a 1983 amendment), even that higher amount is woefully
inadequate to punish the brutal, wanton nature of such crimes.

* In another crime spree, a defendant who was a prior felony offender
committed an armed robbery of a business and kidnapped and raped two
female employees. The next day, in an adjoining county, the defendant
again committed another robbery of a business and again raped two of
its female employees. No class A felonies were involved in any of the
numerous violent crimes committed by this defendant.  Although the
defendant received consecutive sentences totalling sixty-two and a
half to one hundred and twenty-five years for his crimes in just one
of the two counties, the total length of these sentences was
automatically reduced, by operation of the sentence merger law, to a
period of fifteen to thirty years. Presently, the reduction would be
to a still inadequate term of twenty-five to fifty years. Not only did
this undervalue the seriousness of the defendant's crimes; it made it
totally impossible for him to serve any additional time for the crimes
he had committed in the other county, no matter how numerous or how
violent. The sentence merger statute in effect gave the defendant a
"free ride" for these additional, multiple violent acts.

* A serial rapist terrorized portions of three counties in the
southern part of the state. Numerous women were victimized by this
defendant, who broke into their homes to commit his crimes. The
defendant was ultimately caught and later convicted in all three
jurisdictions of many counts of rape, burglary and, in one instance,
attempted murder. The consecutive sentences imposed on the defendant
in the three counties totalled to an indeterminate prison term of 447
to 894 years. Yet, because of the sentence merger law, the rapist's
term of imprisonment was automatically reduced to a total term of
twenty-five to fifty years, thereby leaving him effectively unpunished
for most of his crimes.

The second portion of this bill will remedy these deficiencies by
amending the sentence merger statute. As previously indicated, that
statute currently does not cap the sentences of those convicted of one
or more class A felonies such as murder. This bill will widen that
exclusion so that the sentencing merger law will also not apply to
violent felonies as defined in Penal Law Section 70.02. These violent
felonies include forcible rape and sodomy, armed robbery and assault
in the first degree.  Consecutive sentences not involving class A
and/or violent felonies will continue to be subject to the sentence
merger law. The two existing sentencing limits addressed by this bill
(Penal Law Section 70.25(2) and Penal Law Section 70.30 (1)(e)) are
completely at odds with reasonable attempts to provide a sufficient
scope of punishment for violent offenders who harm multiple victims.
Furthermore, these restrictions are totally contrary to both the
letter and the spirit of one of the basic purposes of the Penal Law,
namely, "to differentiate on reasonable grounds between serious and
minor offenses and to prescribe proportionate penalties therefore..."
(Penal Law section 1.05). By lifting these two sentencing limits, the
bill will permit the sentences served to be a far more accurate
reflection of the intent of the sentencing court. Obviously, appellate
review regarding the possibility of excessiveness of sentence will
still be available and it is not changed by this measure. By
permitting the punishment imposed to more appropriately fit the nature
of the crimes committed, the bill adds an extra measure of deterrence
and increases the ability of the criminal justice system to protect
society from its most vicious and violent offenders.

 LEGISLATIVE HISTORY :
2007-08 - S.3874 Referred to Codes
2005 - S.3098 Referred to Codes
2004 - S.472  Referred to Codes
2003 - S.472  Referred to Codes
2002 - S.2869 Referred to Codes
2001 - S.2869 Referred to Codes
2000 - S.857  Referred to Codes
1999 - S.857  Committed to Rules
1998 - S.5950 Passed Senate 61-0

 FISCAL IMPLICATIONS :
None.

 EFFECTIVE DATE :
This act would take effect on the first of November.