BILL NUMBER:S4664A

TITLE OF BILL:  An act to amend the penal law and the criminal procedure
law, in relation to establishing terms of probation sentences and revo-
cations thereof under certain circumstances; and to amend the criminal
procedure law, in relation to pre-sentence investigations and written
reports thereon in any city having a population of one million or more

SUMMARY OF PROVISIONS:

Section 1 of the bill would amend Penal Law ("PL") § 65.00(3)(a)(1) 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 felo-
nies other than (1) Class A-II felonies defined in PL Article 220; (2)
the Class P 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 amend PL § 65.00(3)(b)(i) to 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 amend PL § 65.00(3)(d) to 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 imprison-
ment is greater than three months.
              

Section 4 of the bill would amend PL § 65.00 by adding a new subdivision
4, which would clarify that when a person 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 of the bill would amend Criminal Procedure Law ("CPL")
410.70(5) to make corresponding changes that reflect the amendments
proposed by section 4 of the bill.

Section 6 of the bill would add a new subdivision 5 to CPL § 390.20,
which would provide that notwithstanding the provisions of subdivision 1
or 2 of the section, in any city having a population of one million or
more a pre-sentence investigation and report thereon ("PSI") would not
be required where a negotiated sentence of imprisonment for a term of
three hundred sixty-five days or less has been mutually agreed upon by
the parties, with the consent of the judge, as a result of a conviction
or revocation of a sentence of probation, and no sentence of probation
will be imposed.

REASONS FOR SUPPORT: This proposal reflects "evidence-based practices" -
that is, practices based on studies of what has been proven to be effec-
tive 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 and that eliminating the cost-

ly requirement of Pre Sentence Investigation's (PSI) for negotiated
sentences in cities of one million or more, will allow the New York City
Department of Probation to more appropriately reassign probation offi-
cers to provide supervision and services to probation clients.

Currently, sentences involving probation are oriented to the conviction,
rather than to the offender. Penal Law 05.00 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. However, 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. Unlike sentences of incarceration, about which judges maintain
broad discretion in determining the length of the sentence, judges in
New York have no such discretion 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 histo-
ry; 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
and sexual assault offenses, receive five-year probation terms with no
discretion for the court to distinguish between the levels of such felo-
nies (e.g., Vehicular manslaughter in the First Degree, a class C felo-
ny; Assault in the Second Degree, a class D felony, and Auto stripping
in the Second Degree, a class E felony). Therefore, probation sentences
do not appropriately correlate to the severity of the conviction, nor to
the risk factors posed by the offender. Additionally, this proposal
provides the court directly, and probation departments indirectly, with
a new tool to impose graduated sanctions when the terms of probation are
violated.

Currently, the court has limited options when a probationer violates the
terms of his/her probation. The court can revoke the probation sentence
and sentence the individual to incarceration, or a period of incarcera-
tion and probation; or, the court can release the individual and place
him/her back on probation. 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 when a
violation of probation is sustained, to the maximum probation sentence
that could have originally been imposed by the court.

This intermediate option would be consistent with evidence-based prac-
tices, which suggest that graduated and appropriate responses to behav-
ior increase a probationer's likelihood of success and decrease future
criminal behavior. This proposal would also eliminate the costly
requirement of Pre Sentence Investigation's (PSI) for cities of one
million or more, and allow The New York City Department of Probation to
more appropriately reassign probation officers to provide supervision

and services to probation clients sentenced to a negotiated sentence of
one year or less in jail, who also pose a higher risk of recidivism.

Currently, probation departments throughout the State are required to
conduct PSIs and prepare written reports on all defendants convicted in
felony cases, and on all defendants convicted in misdemeanor cases who
receive a sentence of imprisonment for a term in excess of 180 days.

This bill would amend § 390.20 to maintain these requirements except
where a negotiated sentence of imprisonment for a term of 365 days or
less has been reached as a result of a conviction or revocation of a
probation sentence, and where probation will not be imposed under either
scenario. In the interest of public safety, probation departments would
continue to prepare PSIs in all other felony cases, including those
where a plea bargain is reached and the defendant is returning to the
community (i.e., probation, fine, conditional discharge).

The current PSI requirements necessitate additional court hearings,
delay sentencing, and expend public resources for a pre-sentence inves-
tigation and report that rarely impact the final sentencing outcome. It
is important to note that subdivision 3 of CPL § 390.20 (proposed to be
renumbered subdivision 5) allows judges to order a PSI in any case when
they believe it is appropriate. This proposal would not affect the
discretion of the Court to order a PSI even if the statute would no
longer automatically require one. In instances where a PSI is not
required, and the judge does not order one, a defendant and the prosecu-
tor can always submit their own PSI if they deem it appropriate (CPL
390.40).

Finally, the bill contains a technical amendment that would eliminate
the closing paragraph of § 390.20(4)(a) in order to implement and
conform to the amendments proposed in the bill, whether they pertain to
indeterminate or determinate sentences. That provision (in effect until
September 1, 2013) now prohibits the waiver of a PSI if an indeterminate
or determinate sentence of imprisonment is imposed -- essentially all
cases with a sentence of imprisonment. The same rationale applies to the
amendment proposed by section 3 of the bill, which would repeal the
provisions of the statute that go back into effect on September 1, 2013.
The removal of the PSI requirement would include cases where a plea deal
has been reached and the defendant will be sentenced to an indeterminate
term of imprisonment.

FISCAL IMPACT: None to NYS

EFFECTIVE DATE: Immediately