New York Violent Crimes are taken very seriously by both state and federal prosecutors. Usually, violent crimes have an identifiable victim who suffered bodily harm.
Which Crimes Are Considered Violent Crimes Under New York State Law?
Under New York State Law, there is no legal definition of what constitutes a violent crime. Rather, New York Penal Law Section 70.02 contains a list of all New York violent crimes, broken up by degree of crime. Importantly, under New York Law only felonies are characterized as “violent” or “non-violent.” That is because misdemeanors (lower-level crimes punishable by up to 1 year in prison) do not have that same distinction.
Examples of Violent Crimes under New York Law:
– Murder in the Second Degree (PL 125.25),
– Kidnapping in the First Degree (PL 135.25),
– Arson in the First Degree (PL 150.20).
– Manslaughter in the First Degree (PL 125.20),
– Rape in the First Degree (PL 130.35),
– Criminal Sexual Act in the First Degree (PL 130.50),
– Robbery in the First Degree (PL 160.15),
– Sex Trafficking (PL 230.34(5)(a) and (b)), AND
– Criminal Possession of a Weapon in the First Degree (PL 265.04).
What is the Difference in Sentencing for Determinate and Indeterminate Felonies Under New York State Law?
Under New York Law, whether a felony is considered a “violent” felony or a “non-violent felony” is important because the designation controls the sentencing range for the charge.
Violent Felonies Have Determinate Sentences
Violent felonies are punishable by determinate sentence. A determinate sentence is a sentence that is a definite number within the sentencing range.
For example, Assault in the First Degree is a Class “B” Violent Felony. As such, it is punishable by 5 to 25 years in prison. The sentence that will be imposed will be a set number between 5 and 25 years i.e. 7 years. A determinate sentence will be followed by what is called post-release supervision (commonly referred to as “PRS”). During post-release supervision, the individual is supervised by a parole officer. Violations of post-release supervision can result in the revocation of PRS and the resentencing up to the maximum on the original felony charge.
Non-Violent Felonies Have Indeterminate Sentences
New York non-violent felonies, on the other hand, are punishable by indeterminate sentences. Indeterminate sentence are a range of a minimum and a maximum incarceration period within the statutory minimum and maximum. The minimum in an indeterminate sentence is 1/3 of the maximum, and the maximum in an indeterminate sentence is 3x the minimum.
For example, Grand Larceny in the First Degree is a Class “B” Non-violent felony. As such, the statutory sentencing range is: minimum of 1-3 years incarceration and maximum of 8 1/3 to 25 years. Looking at both the minimum and the maximum sentencing ranges, the minimum is 1/3 of the maximum and the maximum is 3x the minimum.
On an indeterminate sentence, a person is required to serve at least the minimum and then become eligible to go before the parole board. The half-way point is presumed to be a conditional release, that is when an individual is to be released by the Parole Board, unless there are issues with the individual’s conduct. The maximum release is the end of the individual’s sentence, even if s/he has been denied release by the parole board.
Which Crimes Are Considered Violent Crimes Under Federal Criminal Law?
Under federal law, the definition of what is considered to be a violent crime comes from the Armed Career Criminal Act of 1984, which is codified in 18 U.S.C. Section 924(e). The term “violent felony” is defined under federal law as any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, that—
- Has as an element of the use, attempted use, or threatened use of physical force against the person of another; OR
- Is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.
Thus, unlike New York State law, there is a set legal definition of violent crimes, rather than a lengthy list of crimes that are considered to be violent felonies.
The federal definition of what is considered to be a violent felony, has also been narrowed by the Supreme Court decision in a 2015 case called Johnson v. United States. In the Johnson case, the U.S. Supreme Court has held that in order to determine whether the crime has an element of the “use, attempted use, or threatened use of physical force against the person of another” the court must engage in what’s called “ordinary analysis” of the charge. That is, the court is to disregard the specific facts of the case before it and consider only the “ordinary,” or typical facts of the crime that the Defendant was convicted of.
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