Introduction False rape accusations in New York are not just legal battles---they are wars for your reputation,...
Sometimes You Lose Trials
As much as every criminal defendant hopes to win their trial and prevail during their day in court, statistically that...
Triple Crown: Third Consecutive Acquittal At Trial
Three weeks ago, in Kings County Supreme Court I gave an opening statement on PSNY v. TD (initials used as the client...
Yaron “Ron” Kweller Files Federal Lawsuit Against Accusers
Yaron "Ron" Kweller Files Federal Lawsuit Against Accusers, County of Broome, City of Binghamton and Others Alleging...
Determinate vs Indeterminate Sentences in New York
New York State divides felony matters into two categories – those with determinate and indeterminate sentences in ny. Simply put, determinate sentences, sometimes called “flat” sentences, run for a specific period of time, such as 5 years of 10 years. Indeterminate sentences, however have a range of time associated with it. Such as 1 to 3 years.
Whether the sentence is determinate or indeterminate depends on whether the felony is classified as “violent” or “non-violent.” That depends on the how the statute defines it. Rather on whether violence is actually used.
Determinate Sentences
Determinate sentences generally apply to violent offenses, most sex offenses and drug offenses.
Under the Sentencing Reform Act of 1998, determinate sentences also have a separate fixed period of post-release supervision. This is distinguishable from indeterminate sentences, where the length of parole supervision depends on the period of incarceration.
NY Crimes with Determinate Sentences
New York Criminal Procedure Law Section 70.02 defines a violent felony offense as Class B, C, D, or E violent felony offense. The following crimes are violent felonies:
Class Felony | Crime |
Class “B” Violent Felony | Attempt to Commit Class A-I Felonies: Class “B” Violent Felonies |
Class “C” Violent Felony |
– Attempt to Commit Any of the Above Class “B” Violent Felonies – Class “C” Violent Felonies |
Class “D” Violent Felony |
– An Attempt to Commit Any of the Above Class “C” Violent Felonies – Reckless Assault Of A Child (PL 120.02), |
Class “E” Violent Felony |
– An Attempt To Commit Any Of The Above Class “D” Violent Felonies – Criminal Possession Of A Weapon In The Third Degree (PL 265.02(5), (6), (7), or (8) |
Additionally, Controlled Substance offenses from Article 220 and Marihuana Offenses from Article 221 have determinate and indeterminate sentences in ny.
Determinate Sentences: Conditional Release
A person serving a determinate sentence of imprisonment may receive time allowance against the term of his or her sentence not to exceed 1/7 of the term imposed by the court. On determinate sentences, individuals must serve at least 6/7 of their determinate sentence to be eligible for a conditional release. So if an individual is sentenced to 7 years in prison on an Assault in the First Degree case, he is eligible for a conditional release at 6 years.
Factors Influencing Sentencing Decisions in New York
In addition to the violent/non-violent distinction, judges consider various aggravating and mitigating factors when determining an appropriate sentence within the statutory ranges for determinate and indeterminate sentences. Aggravating factors, such as the severity of the offense, harm caused to victims, the defendant’s criminal history, and lack of remorse, can result in longer sentences. Conversely, mitigating factors, including the defendant’s age, mental health, acceptance of responsibility, and minimal prior record, may lead to more lenient sentences. The presence or absence of these factors can significantly impact whether a defendant receives a sentence closer to the minimum or maximum allowed by law. Ultimately, sentencing decisions involve a careful weighing of these factors to arrive at a just and appropriate punishment that reflects the unique circumstances of each case while adhering to the determinate or indeterminate sentencing structure prescribed by New York law.
Indeterminate Sentences
In New York, Indeterminate Sentence is one in which the Court imposes a minimum and a maximum term of incarceration. These term ranges are set by statute, Criminal Procedure Law Sections 70.00(2) and 70.00(3).
NY Crimes with Indeterminate Sentences
The definition for what an indeterminate sentence is in NY is one from Criminal Procedure Law Section 70.02, which says crimes with indeterminate sentences are those not listed as violent crimes. Generally speaking, these crimes generally involve property theft or property damage – i.e. Grand Larceny or Felony Criminal Mischief.
Indeterminate Sentence Ranges
Below is the sentencing range on indeterminate felonies. Importantly, the minimum must be 1/3 of the maximum.
Degree of Indeterminate Felony | Minimum | Maximum |
Class “A-I” Felony | 15 – 25 years | life imprisonment |
Class “A-II” Felony | 3 – 8 1/3 years | life imprisonment |
Class “B” Felony | 1 – 8 1/3 years | 25 years |
Class “C” Felony | 1 – 5 years | 15 years |
Class “D” Felony | 1 – 2 1/3 years | 7 years |
Class “E” Felony | 1 – 1 1/3 years | 4 years |
Parole Board for Indeterminate Sentences
Individuals sentenced on indeterminate sentences are eligible to go before the Parole Board for release consideration, upon the completion of the minimum sentence term. This is called a “discretionary release” by the parole board. It is possible to go before the parole board earlier if the individual has merit time.
For example, let’s say a person was sentenced to Grand Larceny in the Third Degree, a Class “D” Felony. The sentencing minimum is 1 – 2 1/3 years and the maximum is 7 years. On the low end, the sentence could be 1 – 3 years. On the high end, the sentence could be 2 1/3 to 7 years. The minimum must always be 1/3 of the maximum for non-predicates.
In these examples, the individual is eligible to seek release from the parole board at 1 year and 2 1/3 years respectively. Until the expiration of the maximum term, the individual will be on parole supervision.
Predicate Felons and Indeterminate Sentences
For second felony offenders, the minimum must be half of the maximum (rather than 1/3 for non-predicates). Therefore, in the above Grand Larceny in the Third Degree example, the minimum sentencing range would be 1.5 to 3 years. The maximum would be 3.5 to 7 years.
Indeterminate Sentence: Conditional Release
A person serving an indeterminate sentence of imprisonment may receive time allowance against the maximum term of his or her sentence not to exceed 1/3 of the maximum term imposed by the court.A conditional release occurs at the half-way point between the minimum and the maximum if the Parole Board does not grant release beforehand.
In the above examples, the conditional release point would be at 2 years and 4 and 2/3 years respectively. The rest of the time until the expiration of the maximum term, will be spent on parole. In the above examples, the parole time will be 1 year and 2 years respectively.
Indeterminate Sentence: Requirements of a Conditional Release
Parole Board does not have discretion to grant or deny a conditional release. However, two conditions must be met by individuals seeking conditional release:
- Inmates must request a conditional release; AND
- Inmates must agree to abide by the conditions of parole until the expiration of their maximum term.
Contact a Top Rated NY Attorney Regarding Your Case
It is important that you fully understand the plea bargain, if one is being offered to you. Not just in terms of the charges, but also in terms of the available sentences. Contact us today regarding your case.