BILL NUMBER: S2633         Revised 1/8/18

SPONSOR: LANZA
 
TITLE OF BILL:  An act to amend the penal law and the criminal proce-
dure law, in relation to revocation of probation and re-sentencing upon
conviction of a felony while under probation supervision for a felony
conviction

 
PURPOSE:

This bill would require that the court revoke probation and impose a
State prison sentence for felony offenders, where they are subsequently
convicted of committing a new felony while on probation and sentenced to
State time for that new felony. Additionally, the bill would mandate
that this new sentence run consecutively to the new term of imprison-
ment, unless the court finds that mitigating circumstances exist, in
which case the court may impose a concurrent term of incarceration.

 
SUMMARY OF PROVISIONS:

This bill would require that the court revoke probation and impose a
              

State prison sentence for felony offenders, where they are subsequently
convicted of committing a new felony while on probation and sentenced to
State time for that new felony. Additionally, the bill would mandate
that this new sentence run consecutively to the new term of imprison-
ment, unless the court finds that mitigating circumstances exist, in
which case the court may impose a concurrent term of incarceration. This
bill would amend subdivision 4 of 560.01 of the Penal Law ("PL") with
respect to authorized dispositions, and would add a new subdivision 6 to
PL § 70.25, the section pertaining to concurrent and consecutive terms
of imprisonment. In addition, subdivision 2 of Criminal Procedure Law
("CPL") § 410.10 and subdivision 1 of CPL § 410,70 would be amended,
which govern conditions of probation and hearings on violation of
probation, respectively. Subdivision 1 of CPL § 410.90 would also be
amended, stating that the court may at any time terminate either a peri-
od of probation, other than a period of lifetime probation, for
conviction of a crime oròa period of conditional discharge for an
offense, except that conviction of a new felony or conviction of an
offense in another jurisdiction which if committed in this state would
constitute a felony, which new felony is committed while under his or
her present probation supervision for a felony offense, shall result in
revocation of probation upon imposition of an indeterminate or determi-
nate sentence for the new offense pursuant to subdivision four of
section 60.01 of the penal law, and shall not result in the termination
of probation. Section 6. This act shall take effect on the ninetieth day
after it shall have become a law.

 
JUSTIFICATION:

Current law does not mandate revocation of probation under circumstances
where a person on probation for having been convicted of a felony is
convicted of a new felony. In fact, existing law does not mandate revo-
cation of probation at all, regardless of the nature of the violation of
probation. When the court determines that an offender is in violation of
the conditions of probation, Judges have the discretion to impose what-
ever penalty they choose, including restoring the person to probation,
terminating probation without any penalty or imposing a concurrent
sentence which merely runs along with a sentence for a new offense.
Although CPL § 410.10(2) specifically states that commission of an addi-
tional offense while on probation is grounds for revocation of such
probation sentence, some courts nevertheless do not revoke probation and
re-sentence offenders to State time for the original offense, even when
these offenders are already on probation for a felony and are now
convicted of another felony. What most commonly occurs is that probation
is terminated or the probationer receives a concurrent sentence. In
either case, the probationer is receiving no additional time for the
underling felony. Failure of some courts to revoke probation and impose
a consecutive sentence of incarceration in this situation provides the
defendant with felony convictions that remain unpunished. In other
words, their first felony is absolutely free.  Any probation sentence
represents an agreement between the defendant and the court that he or
she will not be incarcerated, provided that he or she remains law-abid-
ing and complies with the conditions of supervision. The defendant is
being given a second chance. A sentence of anything less than a consec-
utive sentence sends the message to probationers that they need not
worry about committing another felony while on probation, because the
first felony may be virtually ignored. It also signals that there may be
few or no consequences for lesser offenses or failure to comply with
court or probation directives, thereby undermining Department of
Probation's ability to safely supervise these offenders in the communi-
ty. In general, the goal of a sentence of probation is to rehabilitate
the offender, and particular conditions of probation are imposed that
are deemed "reasonably necessary to insure that the defendant will lead
a law abiding life or assist him to do so," PL § 65.10(1). Commission of
a new felony while on probation is a obviously a serious violation of
probation, and one that should have serious consequences. In contrast,
with respect to State parolees, Executive Law § 259-i (3) (d)(iii)
provides for the automatic declaration of delinquency when a parolee has
been convicted of a new felony and sentenced to state prison. Moreover,
PL § 70.25 currently provides for consecutive sentences in special
circumstances. This bill would amend PL §§ 60.01 and 70.25 and CPL §§
410.10 and 410.70 to minor the Executive Law by requiring revocation of
probation for felony probationers who have been convicted of a new felo-
ny and are sentenced to state time for that new felony. It also would
require a sentence of at least a year on the original felony, and would
add this to the situations triggering consecutive sentences, unless a
judge finds mitigating circumstances.

 
LEGISLATIVE HISTORY:

2017: S.2633 - Died on 3rd Reading Calendar / A.6542 - Referred to Codes
2016: S.4515 - Passed Senate
2015: S.4515 - Passed Senate
2014: S.2298 - Passed Senate / A.4966 - Referred to Codes
2013: S.2298 - Passed Senate / A.4966 - Referred to Codes
2012: S.2944 - Referred to Codes / A.10427 - Referred to Codes
2011: S.2944 - Referred to Codes
2010: S.613 Referred to Codes / A.7809 - Referred to Codes
2009: S.613 - Referred to Codes / A.7809 - Referred to Codes
2008: S.5802 - Passed Senate / A.8384 - Referred to Codes
2007: S.5802 - Passed Senate / A.8384 - Referred to Codes

 
FISCAL IMPLICATIONS:

None.

 
EFFECTIVE DATE:
This act shall take effect on the ninetieth day after it shall have
become law.