Difference between a NY determinate and indeterminate sentence

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New York State divides felony matters into two categories – those with determinate and indeterminate sentences. 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 FelonyCrime
Class “B” Violent FelonyAttempt to Commit Class A-I Felonies:
– Murder in the Second Degree (PL 125.25),
– Kidnapping in the First Degree (PL 135.25),
– Arson in the First Degree (PL 150.20).

Class “B” Violent Felonies
– Manslaughter in the First Degree (PL 125.20),
– Aggravated Manslaughter in the First Degree (PL 125.22),
– Rape in the First Degree (PL 130.35),
– Criminal Sexual Act in the First Degree (PL 130.50),
– Aggravated Sexual Abuse in the First Degree (PL 130.70),
– Course of Sexual Conduct Against a Child in the First Degree (PL 130.75),
– Assault in the First Degree (PL 120.10),
– Kidnapping in the Second Degree (PL 135.20),
– Burglary in the First Degree (PL 140.30),
– Arson in the Second Degree (PL 150.15),
– Robbery in the First Degree (PL 160.15),
– Sex Trafficking (PL 230.34(5)(a) and (b)),
– Incest in the First Degree (PL 255.27),
– Criminal Possession of a Weapon in the First Degree (PL 265.04),
– Criminal Use of a Firearm in the First Degree (PL 265.09),
– Criminal Sale of a Firearm in the First Degree (PL 265.13),
– Aggravated Assault upon a Police Officer or a Peace Officer (PL 120.11),
– Gang Assault in the First Degree (PL 120.07),
– Intimidating a Victim or Witness in the First Degree (PL 215.17),
– Hindering Prosecution of Terrorism in the First Degree (PL 490.35),
– Criminal Possession of a Chemical Weapon or Biological Weapon in the Second Degree (PL 490.40), and
– Criminal Use of a Chemical Weapon or Biological Weapon in the Third Degree (PL 490.47).
Class “C” Violent Felony– Attempt to Commit Any of the Above Class “B” Violent Felonies

– Class “C” Violent Felonies
– aggravated criminally negligent homicide (PL 125.11,
– aggravated manslaughter in the second degree (PL
125.21,
– Aggravated Sexual Abuse in the Second Degree (PL 130.67),
– Assault on a Peace Officer, Police Officer, Fireman or Emergency Medical Services Professional (PL 120.08),
– Assault on a Judge (PL 120.09),
– Gang Assault in the Second Degree (PL 120.06),
– Strangulation in the First Degree (PL 121.13),
– Burglary in the Second Degree (PL 140.25),
– Robbery in the Second Degree (PL 160.10),
– Criminal Possession of a Weapon in the Second Degree (PL 265.03),
– Criminal Use of a Firearm in the Second Degree (PL 265.08),
– Criminal Sale of a Firearm in the Second Degree (PL 265.12),
– Criminal Sale of a Firearm with the Aid of a Minor (PL 265.14),
– Aggravated Criminal Possession of a Weapon (PL 265.19),
– Soliciting or Providing Support for an Act of Terrorism in the First Degree (PL 490.15),
– Hindering Prosecution of Terrorism in the Second Degree (PL 490.30), and
– Criminal Possession of a Chemical Weapon or Biological Weapon in the Third Degree (PL 490.37).
Class “D” Violent Felony– An Attempt to Commit Any of the Above Class “C” Violent Felonies

– Reckless Assault Of A Child (PL 120.02),
– Assault In The Second Degree (PL 120.05),
– Menacing A Police Officer Or Peace Officer (PL 120.18),
– Stalking In The First Degree (PL 120.60),
– Strangulation In The Second Degree (PL 121.12),
– Rape In The Second Degree (PL 130.30),
– Criminal Sexual Act In The Second Degree (PL 130.45),
– Sexual Abuse In The First Degree (PL 130.65),
– Course Of Sexual Conduct Against A Child In The Second Degree (PL 130.80),
– Aggravated Sexual Abuse In The Third Degree (PL 130.66),
– Facilitating A Sex Offense With A Controlled Substance (PL 130.90),
– Labor Trafficking As Defined In (PL 135.35(3)(A) and (B)),
– Criminal Possession Of A Weapon In The Third Degree (PL 265.02(5), (6), (7), (8), (9), or (10)),
– Criminal Sale Of A Firearm In The Third Degree (PL 265.11),
– Intimidating A Victim Or Witness In The Second Degree (PL 215.16),
– Soliciting Or Providing Support For An Act Of Terrorism In The Second Degree (PL 490.10),
– Making A Terroristic Threat (PL 490.20),
– Falsely Reporting An Incident In The First Degree (PL 240.60),
– Placing A False Bomb Or Hazardous Substance In The First Degree (PL 240.62),
– Placing A False Bomb Or Hazardous Substance In A Sports Stadium Or Arena, Mass
Transportation Facility Or Enclosed Shopping Mall (PL 240.63), and
– Aggravated Unpermitted Use Of Indoor Pyrotechnics In The First Degree (PL 405.18).
 
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)
– Persistent Sexual Abuse (PL 130.53),
– Aggravated Sexual Abuse In The Fourth Degree (PL 130.65-A),
– Falsely Reporting An Incident In The Second Degree (PL 240.55), And
– Placing A False Bomb Or Hazardous Substance In The Second Degree (PL 240.61).
 
New York Determinate Sentence Crimes

Additionally, Controlled Substance offenses from Article 220 and Marihuana Offenses from Article 221 have determinate sentences.

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.

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 FelonyMinimumMaximum
Class “A-I” Felony15 – 25 yearslife imprisonment
Class “A-II” Felony3 – 8 1/3 yearslife imprisonment
Class “B” Felony1 – 8 1/3 years25 years
Class “C” Felony1 – 5 years15 years
Class “D” Felony1 – 2 1/3 years7 years
Class “E” Felony1 – 1 1/3 years4 years
New York Indeterminate Sentence Minimums and Maximums

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:

  1. Inmates must request a conditional release; AND
  2. Inmates must agree to abide by the conditions of parole until the expiration of their maximum term.

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