Bill Text: NY A08163 | 2011-2012 | General Assembly | Introduced
Bill Title: Creates new classification of "persistent misdemeanor offender" for the purposes of sentencing a person convicted of a misdemeanor after having been convicted of five or more crimes within the last five years, and prescribes that the sentence therefor shall include a mandatory definite sentence of imprisonment of no less than thirty days and no more than one year.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2012-01-04 - referred to codes [A08163 Detail]
Download: New_York-2011-A08163-Introduced.html
S T A T E O F N E W Y O R K
________________________________________________________________________
8163
2011-2012 Regular Sessions
I N A S S E M B L Y
June 3, 2011
___________
Introduced by M. of A. LANCMAN -- read once and referred to the Commit-
tee on Codes
AN ACT to amend the penal law and the criminal procedure law, in
relation to sentence for persistent misdemeanor offenders
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. The penal law is amended by adding a new section 70.16 to
2 read as follows:
3 S 70.16 SENTENCE OF IMPRISONMENT FOR PERSISTENT MISDEMEANOR OFFENDER.
4 1. DEFINITION OF PERSISTENT MISDEMEANOR OFFENDER.
5 (A) A PERSISTENT MISDEMEANOR OFFENDER IS A PERSON WHO STANDS CONVICTED
6 OF A MISDEMEANOR AFTER HAVING PREVIOUSLY BEEN CONVICTED OF FIVE OR MORE
7 CRIMES, AS PROVIDED IN PARAGRAPH (B) OF THIS SUBDIVISION.
8 (B) A PREVIOUS CRIMINAL CONVICTION WITHIN THE MEANING OF PARAGRAPH (A)
9 OF THIS SUBDIVISION IS A CONVICTION OF A CRIME IN THIS STATE, PROVIDED:
10 (I) THAT A SENTENCE FOR SUCH CONVICTION WAS IMPOSED THEREFOR; AND
11 (II) THAT THE DEFENDANT WAS SENTENCED FOR SUCH CONVICTION PRIOR TO THE
12 DATE OF COMMISSION OF THE PRESENT MISDEMEANOR; AND
13 (III) SUBJECT TO THE PERIOD OF TIME EXCLUDED PURSUANT TO THE
14 PROVISIONS OF PARAGRAPH (C) OF THIS SUBDIVISION, THAT THE DEFENDANT WAS
15 SENTENCED FOR SUCH CONVICTION NO MORE THAN FIVE YEARS PRIOR TO THE DATE
16 OF COMMISSION OF THE PRESENT MISDEMEANOR; AND
17 (IV) THAT THE DEFENDANT WAS NOT PARDONED ON THE GROUNDS OF INNOCENCE.
18 (C) ANY PERIOD OF TIME DURING WHICH THE DEFENDANT WAS INCARCERATED FOR
19 ANY REASON BETWEEN THE DATE OF COMMISSION OF THE PREVIOUS CRIME AND THE
20 DATE OF COMMISSION OF THE PRESENT MISDEMEANOR SHALL NOT COUNT AS TIME
21 WHICH HAS ELAPSED IN DETERMINING THE FIVE YEAR PERIOD WITHIN WHICH THE
22 DEFENDANT MUST HAVE BEEN SENTENCED FOR THE PREVIOUS CRIME UNDER SUBPARA-
23 GRAPH (III) OF PARAGRAPH (B) OF THIS SUBDIVISION; SUCH FIVE YEAR PERIOD
24 SHALL BE EXTENDED BY SUCH PERIOD OR PERIODS OF TIME SERVED IN INCARCERA-
25 TION.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD04233-01-1
A. 8163 2
1 (D) THE TERM "SENTENCE", WHEN REFERRING TO THE SENTENCE FOR A PREVIOUS
2 CRIMINAL CONVICTION WITHIN THE MEANING OF PARAGRAPH (B) OF THIS SUBDIVI-
3 SION, SHALL INCLUDE BUT NOT BE LIMITED TO: A SUSPENDED SENTENCE; A
4 SUSPENDED EXECUTION OF SENTENCE; A SENTENCE OF PROBATION; A SENTENCE OF
5 CONDITIONAL DISCHARGE OR OF UNCONDITIONAL DISCHARGE; A SENTENCE OF
6 CERTIFICATION TO THE CARE AND CUSTODY OF THE OFFICE OF ALCOHOLISM AND
7 SUBSTANCE ABUSE SERVICES; OR A SENTENCE OF ANY COMBINATION OF ONE OR
8 MORE OF THE FOREGOING SENTENCES.
9 2. AUTHORIZED SENTENCE. WHEN THE COURT HAS FOUND, PURSUANT TO THE
10 PROVISIONS OF THE CRIMINAL PROCEDURE LAW, THAT A PERSON IS A PERSISTENT
11 MISDEMEANOR OFFENDER, THE COURT MUST IMPOSE A DEFINITE SENTENCE OF
12 IMPRISONMENT, THE TERM OF WHICH SHALL BE FIXED BY THE COURT AT NO LESS
13 THAN THIRTY DAYS AND NO MORE THAN ONE YEAR, AND MAY IMPOSE ANY SENTENCE
14 AUTHORIZED BY LAW OTHER THAN AND IN ADDITION TO SUCH SENTENCE OF IMPRI-
15 SONMENT. IN FIXING THE LENGTH OF THE TERM OF SUCH DEFINITE PERIOD OF
16 IMPRISONMENT TO WHICH THE COURT MUST SENTENCE THE DEFENDANT UPON A FIND-
17 ING THAT SUCH PERSON IS A PERSISTENT MISDEMEANOR OFFENDER, THE COURT
18 SHALL CONSIDER THE HISTORY AND CHARACTER OF THE DEFENDANT AND THE NATURE
19 AND CIRCUMSTANCES OF SUCH PERSON'S CRIMINAL CONDUCT AND SHALL SENTENCE
20 THE DEFENDANT TO A TERM HAVING A LENGTH, WITHIN THE FOREGOING PRESCRIBED
21 LIMITS, THAT WILL BEST SERVE THE PUBLIC INTEREST.
22 S 2. The criminal procedure law is amended by adding a new section
23 400.14 to read as follows:
24 S 400.14 PROCEDURE FOR DETERMINING WHETHER DEFENDANT SHOULD BE
25 SENTENCED AS A PERSISTENT MISDEMEANOR OFFENDER.
26 1. APPLICABILITY. THE PROVISIONS OF THIS SECTION GOVERN THE PROCEDURE
27 THAT MUST BE FOLLOWED IN ORDER TO IMPOSE THE PERSISTENT MISDEMEANOR
28 OFFENDER SENTENCE AUTHORIZED BY SUBDIVISION TWO OF SECTION 70.16 OF THE
29 PENAL LAW. SUCH SENTENCE MAY NOT BE IMPOSED UNLESS, BASED UPON EVIDENCE
30 IN THE RECORD OF A HEARING HELD PURSUANT TO THIS SECTION, THE COURT (A)
31 HAS FOUND THAT THE DEFENDANT IS A PERSISTENT MISDEMEANOR OFFENDER AS
32 DEFINED IN SUBDIVISION ONE OF SECTION 70.16 OF THE PENAL LAW, AND (B)
33 HAS CONSIDERED THE HISTORY AND CHARACTER OF THE DEFENDANT AND THE NATURE
34 AND CIRCUMSTANCES OF HIS OR HER CRIMINAL CONDUCT, AS WELL AS THE PUBLIC
35 INTEREST, IN DETERMINING THE LENGTH OF THE DEFINITE SENTENCE TO BE
36 IMPOSED WITHIN THE LIMITS PRESCRIBED BY SUBDIVISION TWO OF SECTION 70.16
37 OF THE PENAL LAW.
38 2. AUTHORIZATION FOR HEARING. WHEN INFORMATION AVAILABLE TO THE COURT
39 PRIOR TO SENTENCING INDICATES THAT THE DEFENDANT IS A PERSISTENT MISDE-
40 MEANOR OFFENDER, AND WHEN, IN THE OPINION OF THE COURT, THE AVAILABLE
41 INFORMATION SHOWS THAT A PERSISTENT MISDEMEANOR OFFENDER SENTENCE MAY BE
42 WARRANTED, THE COURT MAY ORDER A HEARING TO DETERMINE (A) WHETHER THE
43 DEFENDANT IS IN FACT A PERSISTENT MISDEMEANOR OFFENDER, AND (B) IF SO,
44 WHETHER A PERSISTENT MISDEMEANOR OFFENDER SENTENCE SHOULD BE IMPOSED.
45 3. ORDER DIRECTING A HEARING. AN ORDER DIRECTING A HEARING TO DETER-
46 MINE WHETHER THE DEFENDANT SHOULD BE SENTENCED AS A PERSISTENT MISDEMEA-
47 NOR OFFENDER MUST BE FILED WITH THE CLERK OF THE COURT AND MUST SPECIFY
48 A DATE FOR THE HEARING NOT LESS THAN TWENTY DAYS FROM THE DATE THE ORDER
49 IS FILED. THE COURT MUST ANNEX TO AND FILE WITH THE ORDER A STATEMENT
50 SETTING FORTH THE FOLLOWING:
51 (A) THE DATES AND PLACES OF THE PREVIOUS CONVICTIONS WHICH RENDER THE
52 DEFENDANT A PERSISTENT MISDEMEANOR OFFENDER AS DEFINED IN SUBDIVISION
53 ONE OF SECTION 70.16 OF THE PENAL LAW; AND
54 (B) THE FACTORS IN THE DEFENDANT'S BACKGROUND AND PRIOR CRIMINAL
55 CONDUCT, AS WELL AS THE PUBLIC INTEREST, WHICH THE COURT DEEMS RELEVANT
A. 8163 3
1 FOR THE PURPOSE OF SENTENCING THE DEFENDANT AS A PERSISTENT MISDEMEANOR
2 OFFENDER.
3 4. NOTICE OF HEARING. UPON RECEIPT OF THE ORDER AND STATEMENT OF THE
4 COURT, THE CLERK OF THE COURT MUST SEND A NOTICE OF HEARING TO THE
5 DEFENDANT, HIS OR HER COUNSEL AND THE DISTRICT ATTORNEY. SUCH NOTICE
6 MUST SPECIFY THE TIME AND PLACE OF THE HEARING AND THE FACT THAT THE
7 PURPOSE OF THE HEARING IS TO DETERMINE WHETHER OR NOT THE DEFENDANT
8 SHOULD BE SENTENCED AS A PERSISTENT MISDEMEANOR OFFENDER. EACH NOTICE
9 REQUIRED TO BE SENT HEREUNDER MUST BE ACCOMPANIED BY A COPY OF THE
10 STATEMENT OF THE COURT.
11 5. BURDEN AND STANDARD OF PROOF; EVIDENCE. UPON ANY HEARING HELD
12 PURSUANT TO THIS SECTION THE BURDEN OF PROOF IS UPON THE PEOPLE. A FIND-
13 ING THAT THE DEFENDANT IS A PERSISTENT MISDEMEANOR OFFENDER, AS DEFINED
14 IN SUBDIVISION ONE OF SECTION 70.16 OF THE PENAL LAW, MUST BE BASED UPON
15 PROOF BEYOND A REASONABLE DOUBT BY EVIDENCE ADMISSIBLE UNDER THE RULES
16 APPLICABLE TO THE TRIAL OF THE ISSUE OF GUILT. MATTERS PERTAINING TO THE
17 DEFENDANT'S HISTORY AND CHARACTER AND THE NATURE AND CIRCUMSTANCES OF
18 HIS OR HER CRIMINAL CONDUCT, AS WELL AS THE PUBLIC INTEREST, MAY BE
19 ESTABLISHED BY ANY RELEVANT EVIDENCE, NOT LEGALLY PRIVILEGED, REGARDLESS
20 OF ADMISSIBILITY UNDER THE EXCLUSIONARY RULES OF EVIDENCE, AND THE STAN-
21 DARD OF PROOF WITH RESPECT TO SUCH MATTERS SHALL BE A PREPONDERANCE OF
22 THE EVIDENCE.
23 6. CONSTITUTIONALITY OF PRIOR CONVICTIONS. A PREVIOUS CONVICTION IN
24 THIS OR ANY OTHER JURISDICTION WHICH WAS OBTAINED IN VIOLATION OF THE
25 RIGHTS OF THE DEFENDANT UNDER THE APPLICABLE PROVISIONS OF THE CONSTITU-
26 TION OF THE UNITED STATES MAY NOT BE COUNTED IN DETERMINING WHETHER THE
27 DEFENDANT IS A PERSISTENT MISDEMEANOR OFFENDER. THE DEFENDANT MAY, AT
28 ANY TIME DURING THE COURSE OF THE HEARING HEREUNDER CONTROVERT AN ALLE-
29 GATION WITH RESPECT TO SUCH CONVICTION IN THE STATEMENT OF THE COURT ON
30 THE GROUNDS THAT THE CONVICTION WAS UNCONSTITUTIONALLY OBTAINED. FAIL-
31 URE TO CHALLENGE THE PREVIOUS CONVICTION IN THE MANNER PROVIDED HEREIN
32 CONSTITUTES A WAIVER ON THE PART OF THE DEFENDANT OF ANY ALLEGATION OF
33 UNCONSTITUTIONALITY UNLESS GOOD CAUSE BE SHOWN FOR SUCH FAILURE TO MAKE
34 TIMELY CHALLENGE.
35 7. PRELIMINARY EXAMINATION. WHEN THE DEFENDANT APPEARS FOR THE HEARING
36 THE COURT MUST ASK HIM OR HER WHETHER HE OR SHE WISHES TO CONTROVERT ANY
37 ALLEGATION MADE IN THE STATEMENT PREPARED BY THE COURT, AND WHETHER HE
38 OR SHE WISHES TO PRESENT EVIDENCE ON THE ISSUE OF WHETHER HE OR SHE IS A
39 PERSISTENT MISDEMEANOR OFFENDER OR ON THE QUESTION OF HIS OR HER BACK-
40 GROUND AND CRIMINAL CONDUCT. IF THE DEFENDANT WISHES TO CONTROVERT ANY
41 ALLEGATION IN THE STATEMENT OF THE COURT, HE OR SHE MUST SPECIFY THE
42 PARTICULAR ALLEGATION OR ALLEGATIONS HE OR SHE WISHES TO CONTROVERT. IF
43 HE OR SHE WISHES TO PRESENT EVIDENCE IN HIS OR HER OWN BEHALF, HE OR SHE
44 MUST SPECIFY THE NATURE OF SUCH EVIDENCE. UNCONTROVERTED ALLEGATIONS IN
45 THE STATEMENT OF THE COURT ARE DEEMED EVIDENCE IN THE RECORD.
46 8. CASES WHERE FURTHER HEARING IS NOT REQUIRED. WHERE THE UNCONTRO-
47 VERTED ALLEGATIONS IN THE STATEMENT OF THE COURT ARE SUFFICIENT TO
48 SUPPORT A FINDING THAT THE DEFENDANT IS A PERSISTENT MISDEMEANOR OFFEN-
49 DER AND THE COURT IS SATISFIED THAT (A) THE UNCONTROVERTED ALLEGATIONS
50 WITH RESPECT TO THE DEFENDANT'S BACKGROUND AND THE NATURE OF HIS OR HER
51 PRIOR CRIMINAL CONDUCT, AS WELL AS THE PUBLIC INTEREST, WARRANT SENTENC-
52 ING THE DEFENDANT AS A PERSISTENT MISDEMEANOR OFFENDER, AND (B) THE
53 DEFENDANT EITHER HAS NO RELEVANT EVIDENCE TO PRESENT OR THE FACTS WHICH
54 COULD BE ESTABLISHED THROUGH THE EVIDENCE OFFERED BY THE DEFENDANT WOULD
55 NOT AFFECT THE COURT'S DECISION, THE COURT MAY ENTER A FINDING THAT THE
56 DEFENDANT IS A PERSISTENT MISDEMEANOR OFFENDER AND SENTENCE HIM OR HER
A. 8163 4
1 IN ACCORDANCE WITH THE PROVISIONS OF SUBDIVISION TWO OF SECTION 70.16 OF
2 THE PENAL LAW.
3 9. CASES WHERE FURTHER HEARING IS REQUIRED. WHERE THE DEFENDANT
4 CONTROVERTS AN ALLEGATION IN THE STATEMENT OF THE COURT AND THE UNCON-
5 TROVERTED ALLEGATIONS IN SUCH STATEMENT ARE NOT SUFFICIENT TO SUPPORT A
6 FINDING THAT THE DEFENDANT IS A PERSISTENT MISDEMEANOR OFFENDER AS
7 DEFINED IN SUBDIVISION ONE OF SECTION 70.16 OF THE PENAL LAW, OR WHERE
8 THE UNCONTROVERTED ALLEGATIONS WITH RESPECT TO THE DEFENDANT'S HISTORY
9 AND THE NATURE OF HIS OR HER PRIOR CRIMINAL CONDUCT, AS WELL AS THE
10 PUBLIC INTEREST, WARRANT SENTENCING HIM OR HER TO A LESSER TERM OF
11 IMPRISONMENT AS A PERSISTENT MISDEMEANOR OFFENDER, WITHIN THE TERM
12 LIMITS PRESCRIBED BY LAW, OR WHERE THE DEFENDANT HAS OFFERED TO PRESENT
13 EVIDENCE TO ESTABLISH FACTS THAT WOULD AFFECT THE COURT'S DECISION ON
14 THE QUESTION OF WHETHER A PERSISTENT MISDEMEANOR OFFENDER SENTENCE IS
15 WARRANTED, THE COURT MAY FIX A DATE FOR A FURTHER HEARING. SUCH HEARING
16 SHALL BE BEFORE THE COURT WITHOUT A JURY AND EITHER PARTY MAY INTRODUCE
17 EVIDENCE WITH RESPECT TO THE CONTROVERTED ALLEGATIONS OR ANY OTHER
18 MATTER RELEVANT TO THE ISSUE OF WHETHER OR NOT THE DEFENDANT SHOULD BE
19 SENTENCED AS A PERSISTENT MISDEMEANOR OFFENDER AND ON THE ISSUE OF THE
20 LENGTH OF SUCH SENTENCE. AT THE CONCLUSION OF THE HEARING THE COURT
21 MUST MAKE A FINDING AS TO WHETHER OR NOT THE DEFENDANT IS A PERSISTENT
22 MISDEMEANOR OFFENDER AND, UPON A FINDING THAT HE OR SHE IS SUCH, MUST
23 THEN MAKE SUCH FINDINGS OF FACT AS IT DEEMS RELEVANT TO THE QUESTION OF
24 WHAT LENGTH OF PERSISTENT MISDEMEANOR OFFENDER INCARCERATION SENTENCE IS
25 WARRANTED, AND WHAT OTHER SENTENCE AUTHORIZED BY LAW SHOULD BE IMPOSED.
26 IF THE COURT FINDS THAT THE DEFENDANT IS A PERSISTENT MISDEMEANOR OFFEN-
27 DER, IT MAY SENTENCE THE DEFENDANT IN ACCORDANCE WITH THE PROVISIONS OF
28 SUBDIVISION TWO OF SECTION 70.16 OF THE PENAL LAW.
29 10. TERMINATION OF HEARING. AT ANY TIME DURING THE PENDENCY OF A HEAR-
30 ING PURSUANT TO THIS SECTION, THE COURT MAY, IN ITS DISCRETION, TERMI-
31 NATE THE HEARING WITHOUT MAKING ANY FINDING. IN SUCH CASE, UNLESS THE
32 COURT RECOMMENCES THE PROCEEDINGS AND MAKES THE NECESSARY FINDINGS, THE
33 DEFENDANT MAY NOT BE SENTENCED AS A PERSISTENT MISDEMEANOR OFFENDER.
34 S 3. This act shall take effect on the first of November next succeed-
35 ing the date on which it shall have become a law.
