Under New York Criminal Procedure Law Section 65.05, a NY Conditional Discharge is type of sentence a sentence that is imposed by the Court that does not involve imprisonment or probation supervision.

Conditions Set by the Court on a Conditional Discharge Sentence

Rather, the Court will determine the appropriate conditions relating to rehabilitation, restitution and or reparation. Common conditions include:

• No new arrests;
• Participation in a treatment or substance abuse program;
• Obtain and maintain employment;
• Support dependents and meet family obligations;
• Perform Community Service.

Oftentimes, your attorney is able to negotiate the exact terms of the conditional discharge with the prosecutor, before approaching the judge about a conditional discharge plea.

Special Conditional Discharge Conditions for Sex Offense Cases

For individuals convicted of a sex offense under Article 130, or Article 262 of the New York Penal Code, or Sections 255.25, 255.26 or 255.27 in which the victim was under the age of 18 or the person has been designated a Level 3 Sex Offender Under SORA, then the Court shall order these mandatory conditions for a conditional discharge:

1. Staying off school grounds, unless a student of said school or a family member is a student of said school. However, permission from the court or the superintendent of the facility is required to be on premises.
2. Staying off the internet. It is a mandatory condition of a conditional discharge that individuals:

• Do not use the internet to access pornographic material;
• Do not access a commercial social networking website;
• Do not communicate with individuals or groups for the purpose of promoting sexual relationships with persons under the age of 18, when the offender is over the age of 18. However, the Court may allow the individual to communicate with their child through the internet, so long as the person is otherwise not prohibited from communicating with their child.

Once again, these special conditional discharge conditions only apply to individuals convicted of certain Sex Offenses, relating to individuals under the age of 18, who have a Level 3 registration requirement for SORA.

NY Conditional Discharge Must be In the Interests of Justice

The Court can only impose a sentence of conditional discharge after reviewing the nature of the circumstances of the offense, and the history, characteristics and condition of the defendant. The Court must be of the opinion that neither the public interest not the ends of justice would be served by either imprisonment or probation supervision.

NY Conditional Discharge Must Be an Authorized Sentence

Importantly, before the judge is able to sentence someone to a conditional discharge, a conditional discharge must be an authorized sentence. Generally, a conditional discharge can be a sentence on:

• Violations (unless a fine is an authorized sentence on VTL violations);
• Class A Misdemeanors;
• Class B Misdemeanors;
• Class E Non-Violent Felonies;
• Class E Violent Felonies;
• Class D Non-Violent Felonies;
• Class D Violent Felonies.

So even if a Judge wants to sentence someone to a conditional discharge on an Assault in the First Degree Charge, Class B Violent Felony, the Judge is unable to do so because a Conditional Discharge is not an applicable sentence on that level of crime.

Length of NY Conditional Discharge

Generally, on a misdemeanor charges and violations, the length of the conditional discharge is 1 year. For felonies, the duration of the conditional discharge is 3 years. The period of the conditional discharge begins to run on the day that it is imposed.

If the persons stops coming to court, or abiding by the conditions of the conditional discharge, the Court is able to order a Declaration of Delinquency (“DOD”), that will be in effect until the individual comes to court and clears it up. The period of time that the DOD is filed is not counted toward the completion of the conditional discharge.

Extension of Time for a NY Conditional Discharge on Restitution cases

In cases where the conditional discharge involves restitution, the judge is able to extend the length of the NY conditional discharge past the expiration of the term to allow more time for the payment of restitution. However, the time cannot be extended for more than 2 years past the expiration of the original term.

Once the conditional discharge term ends, the Court no longer has any power over the case. So if a restitution (or any other term of the conditional discharge) is not fully complete at the maximum term of the conditional discharge, the Court will either have to deem the condition satisfied (even if it’s not) or violate someone or not successfully completing the conditional discharge. Generally, if the Courts see someone making a substantial effort toward the completion of their conditions, then the Court will deem the condition satisfied, even though it fully may not be.

Violations of a NY Conditional Discharge

If the individual violates the terms of the conditional discharge, he may be subject to a Violation of a Conditional Discharge Hearing. The judge can take no action on a violation of a conditional discharge, however the Judge is able to re-sentence someone up to the maximum on the charge.

Example of Re-sentencing on a Violation of a NY Conditional Discharge

For example, let’s say an individual is convicted of Rape in the Third Degree, under New York Penal Law Section 130.25(1) and the judge sentences him to a three year conditional discharge. If the individual does not abide by the terms of the conditional discharge, such a completion of a sex offender treatment program or no new arrests, the judge is able to take back the original plea offer and re-sentence.

As the charge is a Class E Non-Violent Felony, it is punishable by 1 1/3 to 4 years in prison. The Judge is able to re-sentence that person to 4 years in prison, without giving any credit for good time before the violation of the conditional discharge.

Note About Unconditional Discharges

If the Court is of the opinion that no purpose will be served by sentencing an individual to a conditional discharge, probation or a jail term, under New York Penal Law Section 65.20, the Court can sentence someone to an unconditional discharge. An unconditional discharge does not have any conditions that have to be fulfilled and becomes final at sentencing.

Importantly, a NY Conditional Discharge sentence only becomes final at the end of the conditional discharge period, plus any extensions.

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